Nguyen v. U.S. Immigration and Customs Enforcement

Filing 12

MEMORANDUM AND ORDER ENTERED: The parties shall file a joint status report or separate status reports by June 21, 2017. Signed by District Judge John W. Lungstrum on 05/18/17. Mailed to pro se party Quan Hung Nguyen by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
QUAN HUNG NGUYEN,
Petitioner,
v.

CASE NO. 17-3007-JWL

U. S. IMMIGRATION AND CUSTOMS
ENFORCEMENT,
Respondent.
MEMORANDUM AND ORDER
This matter is a pro se petition for writ of habeas corpus filed under 28 U.S.C. § 2241.
Petitioner is detained under an order of removal entered by the immigration court in Kansas City,
Missouri.

Petitioner seeks immediate release from custody, asserting that his continued

detention pending removal has exceeded the six-month period considered presumptively
reasonable. The Court issued an Order to Show Cause (Doc. 2), Respondent filed an Answer
and Return (Doc. 5), and Petitioner filed a Traverse (Doc. 8). On May 1, 2017, the Court entered
an Order (Doc. 9) directing the parties to file status reports by May 15, 2017. Petitioner filed a
status report (Doc. 10) on May 12, 2017; and Respondent filed a status report (Doc. 11) on
May 15, 2017.
I. Background
Petitioner is a native and citizen of Vietnam who entered the United States as a lawful
permanent resident on or about August 11, 2003, at or near Los Angeles, California. On May 21,
2015, Petitioner was convicted of Burglary in the 2nd degree in the 16th Judicial Circuit Court at
Jackson County, Missouri, in Case No. 1416–CR01732, and was sentenced to a period of three
years in the custody of the Missouri Department of Adult Institutions, concurrent to the sentence
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he received in Case No. 0916–CR06566–01. On November 24, 2015, Petitioner was convicted
of Burglary of a Non-dwelling in the District Court of Johnson County, Kansas, in Case
No. 14CR2637, and was sentenced on February 1, 2016, to a period of 27 months in the custody
of the Kansas Department of Corrections (underlying with probation granted), consecutive to the
sentence he received in Case No. 0916–CR06566–01.
On March 9, 2016, U.S. Immigration and Customs Enforcement (“ICE”) issued a Notice
to Appear, charging Petitioner with removability under INA § 237(a)(2)(A)(ii) and
§ 237(a)(2)(A)(iii)1 for having been convicted of (1) two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct; and (2) an aggravated felony, a crime of
violence for which the term of imprisonment ordered is at least one year. Petitioner was taken
into custody by ICE Officials on March 9, 2016. On March 10, 2016, Petitioner was served with
a copy of the Notice to Appear, with the hearing to be scheduled at a later date and time.
On March 14, 2016, the Immigration Court issued a Notice of Hearing in Removal
Proceedings, scheduling a hearing for March 23, 2016. On March 23, 2016, an Immigration
Judge denied the request for a change in custody status and Petitioner waived the right to appeal
this decision.

The Immigration Court issued an additional Notice of Hearing in Removal

Proceedings on March 23, 2016, scheduling a second hearing for April 28, 2016, for Petitioner to
enter pleadings. On April 28, 2016, Petitioner admitted the allegations in the Notice to Appear
and conceded his removability. The Immigration Court scheduled another hearing for May 26,
2016, for Petitioner to file any applications for relief from removal.

On May 26, 2016,

Petitioner’s attorney withdrew. The Immigration Court scheduled a hearing for June 13, 2016,
for Petitioner to file any application for relief.
1

8 U.S.C. §1227(a)(2)(A)(ii) and (iii).

2

On June 13, 2016, the Immigration Court issued a final Notice of Hearing, scheduling a
hearing for June 30, 2016, to take testimony and make a final decision in Petitioner’s case. On
June 30, 2016, Petitioner was ordered removed by the Immigration Judge, and Petitioner waived
his right to appeal. A copy of the decision was sent to Petitioner on the same date. The Order of
Removal became administratively final on June 30, 2016.
Vietnam requires a travel document or a passport for repatriation of their citizens. On
July 8, 2016, Petitioner was questioned, through a language line interpreter, about providing a
passport to ICE Officials. Petitioner claimed to not have a passport and was allowed to complete
a self-declaration form, in his native language, while at the Kansas City ICE Enforcement and
Removal Office (“ERO”). The form would be later translated by the Language Services Section
at the U.S. Citizenship and Immigration Services.

This document is requested from the

Government of Vietnam.
On July 8, 2016, Deportation Office Rita Lasker (“DO Lasker”) served Petitioner a
Notice to Alien of File Custody Review and Warning for Failure to Depart with Instruction
Sheet. Both documents were explained and served using a language line interpreter.
On July 27, 2016, DO Lasker sent a travel document request to ICE ERO Headquarters
(“HQ”). The original self-declaration form was later requested by ICE ERO HQ unit, which DO
Lasker sent on September 1, 2016.
On September 27, 2016, DO Lasker conducted a Post Order Custody Review (“POCR”)
and determined that Petitioner should continue to remain in ICE custody based on the pending
request for a Vietnam travel document, and also due to his past criminal history.
September 30, 2016, a Warrant of Removal/Deportation was issued for Petitioner.

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On

On October 3, 2016, the Assistant Field Office Director and the Field Office Director
signed the decision to continue custody, and a Decision to Continue Detention was entered.
Petitioner was served with the Decision to Continue Detention on October 5, 2016.
On December 19, 2016, DO Lasker completed a transfer checklist and forwarded it to
ICE ERO HQ for Petitioner’s 180-day POCR. ICE ERO HQ decided to continue detention
based on the fact that the request is pending with the Government of Vietnam. The Decision to
Continue Detention was entered on January 10, 2017, and served on Petitioner on January 19,
2017.
ICE ERO HQ advised Kansas City ERO that three individuals from the Vietnam
Government would be traveling to Miami, Florida, from Vietnam, to conduct approximately 100
interviews. These interviews were for detainees claiming to be a national or to have citizenship
in Vietnam, who are listed for repatriation, and who are in need of a travel document. The
interviews were scheduled to take place starting March 20, 2017, and concluding on April 31,
2017. Travel from the Kansas City area to the Miami ICE ERO area was arranged for March 16,
2017, in order to present Petitioner for an interview. Petitioner states that he had his interview in
Miami, and the Vietnamese Agent told Petitioner that Vietnam is not accepting him.
On March 31, 2017, a travel document was issued for Petitioner and uploaded into the
electronic travel document system on that same date. On April 13, 2017, the travel document
was printed and received by the Kansas City ICE ERO, and the ICE ERO Headquarters Removal
and International Operations Unit advised to proceed with a commercial removal versus an ICE
operated charter flight.
Travel arrangements are tentatively set for Petitioner to board a commercial flight to
Vietnam on July 11, 2017. Deportation Officers will escort Petitioner from the United States to
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Vietnam, which requires country clearance and possibly visa processing for the officers. The
Government of Vietnam requires thirty business days for notification of a removal with an
additional five business days for processing the notification. The Government of Vietnam allows
only one deportee on an incoming flight per day. Earlier dates were unavailable due to those
restrictions. Travel arrangements with ticketed itineraries, country clearance, and notifications
were pending as of May 15, 2017.
II. Discussion
A pro se pleading is held to less stringent standards than more formal pleadings drafted
by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976). To obtain habeas corpus relief, a
petitioner must demonstrate that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S. C. § 2241(c)(3). The federal district courts have habeas
corpus jurisdiction to consider the statutory and constitutional grounds for immigration detention
that are unrelated to a final order of removal. Demore v. Kim, 538 U.S. 510, 517–18 (2003); see
also Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (“Challenges to immigration
detention are properly brought directly through habeas.”) (citing Zadvydas v. Davis, 533 U.S.
678, 687–88 (2001)).
Under 8 U.S.C. § 1226, the Attorney General may arrest and detain an alien pending a
determination of whether the alien is to be removed from the United States. Detention during
this “pre-removal period” is considered definite because it terminates upon the immigration
court’s removal decision. Demore, 538 U.S. at 529. Upon the entry of a final removal order, the
matter enters the “removal period,” and the statutory authority for detention shifts to 8 U.S.C.
§ 1231. Under § 1231, the removal period begins on the latest of: (1) the date the order of
removal becomes administratively final; (2) if the removal order is judicially reviewed, and the
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court orders a stay of removal, the date of the court’s final order; or (3) if the alien is detained or
confined (except under an immigration process), the date the alien is released from detention or
confinement. 8 U.S.C. § 1231(a)(1)(B). An order of removal is administratively final upon “a
determination by the Board of Immigration Appeals affirming such order.”

8 U.S.C.

§ 1101(a)(47)(B)(i).
After an order of removal becomes administratively final, the Attorney General “shall
detain the alien” during the 90-day removal period established under 8 U.S.C. § 1231(a)(2). See
Zadvydas, 533 U.S. at 683; Morales-Fernandez v. INS, 418 F.3d 1116, 1123 (10th Cir. 2005).
Generally, the government is required to remove the alien held in its custody within the 90-day
removal period. See 8 U.S.C. § 1231(a)(1)(A)–(B).
While the government may detain an “inadmissible” or criminal alien beyond the
statutory removal period, see 8 U.S.C. § 1231(a)(6),2 the government may not detain such an
alien indefinitely. Zadvydas, 533 U.S. at 699. Instead, the detention of an alien subject to a final
order of removal for up to six months is presumptively reasonable in view of the time required to
accomplish removal. Id. at 701. Beyond that period, if the alien shows that there is “no
significant likelihood of removal in the reasonably foreseeable future, the Government must
respond with evidence sufficient to rebut that showing.” Id. Furthermore, as the period of
detention grows, “what counts as the ‘reasonably foreseeable future’ conversely would have to
shrink.” Id. The six-month presumption does not mean that every alien must be released after
2

Section 1231(a)(6) provides that:
An alien ordered removed who is inadmissible under section 1182 of this title, removable under
section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the
Attorney General to be a risk to the community or unlikely to comply with the order or removal,
may be detained beyond the removal period and, if released, shall be subject to terms of
supervision in paragraph (3).

Petitioner’s removal was under § 1227(a)(2)(A)(ii) and (iii).

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that time, but rather an alien may be detained “until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.” Id.
The order for Petitioner’s removal became administratively final on June 30, 2016.
Although Petitioner has been detained in excess of the presumptively reasonable six-month
period, he must show that there is no significant likelihood of removal within the reasonably
foreseeable future.
Petitioner has met the initial burden under Zadvydas by showing, at the time he filed this
action on January 11, 2017, that he had been held for more than six months following the order
of removal without any apparent likelihood of removal in the foreseeable future. The burden
therefore shifted to Respondents to rebut that showing. Respondents have met that burden by
showing that Petitioner’s travel documents were issued on March 31, 2017, and a tentative travel
plan is in place to remove Petitioner on July 11, 2017.
Because there is a significant likelihood of removal in the reasonably foreseeable future,
the Court finds that Petitioner is not entitled to habeas corpus relief at this time. However, the
Court directs the parties to file status reports with the Court by June 21, 2017.
IT IS THEREFORE BY THE COURT ORDERED that the parties shall file a joint
status report or separate status reports by June 21, 2017.
IT IS SO ORDERED.
Dated this 18th day of May, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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