Ma v. Jennings et al

Filing 7

Order to Show Cause signed by Magistrate Judge Howard R. Lloyd on 6/9/2017. Response due by 6/16/2017. Traverse due by 6/23/2017. Hearing set for 6/29/2017 at 10:00 AM in Courtroom 2, Fifth Floor, San Jose. (hrllc3S, COURT STAFF) (Filed on 6/9/2017)

E-filed 6/9/2017

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HUAN CHANG MA,
Plaintiff,

United States District Court
Northern District of California

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Case No.17-cv-03307-HRL
ORDER TO SHOW CAUSE

v.
DAVID W. JENNINGS, et al.,
Defendants.
Petitioner Huan Chang Ma (“Ma”) has filed a petition for writ of habeas corpus pursuant to

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28 U.S.C. Section 2241 and an application for an order to show cause pursuant to 28 U.S.C.

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Section 2243. Ma alleges that he is being detained unlawfully by Respondents “based on a

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removal order that cannot be executed” in violation of the Immigration and Nationality Act

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(“INA”), 8 U.S.C. Section 1231(a)(6), and the Fifth Amendment of the U.S. Constitution. Dkt.

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No. 1, ¶ 1. For the reasons described below, the court orders Respondents to show cause why the

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petition should not be granted.

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BACKGROUND
The petition alleges that Ma, who was born in China in 1971, was admitted to the United

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States as a permanent legal resident in 1990. Dkt. No. 1, ¶¶ 17, 18. Ma, a non-citizen, plead

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guilty to manufacturing marijuana plants in violation of 21 U.S.C. Section 841(a)(1) in May 2015,

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and completed his prison sentence in September 2016. Id., ¶¶ 19, 20. Ma was subsequently

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detained by Immigration and Customs Enforcement (“ICE”). Id., ¶¶ 20-22.

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Ma alleges that, despite the issuance of a final order of removal on December 1, 2016, id.,

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¶ 2, Respondents have been attempting to remove him to China without success (because China

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allegedly does not cooperate in accepting its citizens for removal and has not responded to Ma’s

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requests here), id., ¶¶ 4, 24. Ma asserts that he is neither a flight risk nor a danger to the

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community and that his removal is not “significantly likely to occur in the reasonably foreseeable

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future.” Id., ¶¶ 5, 25, 26.

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Respondent David Jennings is the Field Office Director for ICE’s San Francisco Field

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Office, which has jurisdiction over Hawaii, where Ma is currently being held. Respondent

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Thomas D. Homan is the Acting Director of ICE. Respondent John F. Kelly is the Secretary of

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the U.S. Department of Homeland Security, which oversees ICE. And Respondent Jefferson B.

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Sessions III is the Attorney General of the United States.
LEGAL STANDARD

United States District Court
Northern District of California

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District courts have jurisdiction to review a petition for a writ of habeas corpus where the

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petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.”

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28 U.S.C. § 2241(c)(3). Section 2241 proceedings are available for “statutory and constitutional

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challenges to post-removal-period detention” of non-citizens who have been admitted to the

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United States. Zadvydas v. Davis, 533 U.S. 678, 687-88, 693 (2001). Courts “shall forthwith

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award the writ or issue an order directing the respondent to show cause why the writ should not be

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granted, unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where “the allegations in the

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petition are ‘vague [or] conclusory’ or ‘palpably incredible,’ . . . or ‘patently frivolous or false.’”

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S.

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63, 75-76 (1977)).

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DISCUSSION
Petitioner alleges that his continued detention past the presumptively reasonable 6-month-

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period described in Zadvydas violates 8 U.S.C. Section 1231(a)(6) and the Fifth Amendment.

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After reviewing the petition, the court cannot say that the allegations contained therein are vague,

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conclusory, patently incredible, or patently frivolous or false. Therefore, Respondents are directed

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to show cause why the petition should not be granted.
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Petitioner shall serve this order to show cause upon the Respondents immediately. For the

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reasons described above and for good cause shown, Respondents shall file an answer responding

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to the allegations of the petition and showing cause why a writ of habeas corpus should not be

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issued by June 16, 2017. Petitioner shall file a traverse by June 23, 2017. The court will hold a

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hearing on this order to show cause on June 29, 2017, at 10:00 AM in Courtroom 2, Fifth Floor of

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the United States District Court, 280 South First Street, San Jose, CA.

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IT IS SO ORDERED.
Dated: 6/9/2017

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HOWARD R. LLOYD
United States Magistrate Judge

United States District Court
Northern District of California

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