Dinh v. McCormick

Filing 6

MEMORANDUM filed. Signed by Judge William M Nickerson on 1/10/2013. (ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DUC DINH
v.
CALVIN MCCORMICK
*

*

*

*

*

*

*

*

*
*
*
*
*
*
*

Civil Action No. WMN-12-2275

*

*

*

*

*

*

*

MEMORANDUM
Petitioner Duc Dinh is a Vietnamese citizen who, at the
time this petition was filed, was held in the Baker County
Facility in Key West, Florida awaiting deportation.

In his

petition, Mr. Dinh represents that he has been in immigration
civil custody for more than three years and for more than six
months after the issuance of his removal order.
that he is in seriously declining health.

He also asserts

Mr. Dinh named Calvin

McCormick, the Field Officer of the Baltimore Enforcement and
Removal Operations (ERO), as the respondent to his petition and
alleges that his detention for more than six months after the
issuance of the removal order is unconstitutional under the
Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678
(2001).
Respondent moves for dismissal or for summary judgment on
two grounds - one more procedural and one more substantive.
Respondent argues first that Petitioner should have named the
person with immediate custody over him as the respondent, in

this case, the warden of the Baker County Facility.

Respondent

also argues that this case falls outside of the holding of
Zadvydas because Petitioner himself is the cause of his
continued detention.

According to Respondent, Mr. Dinh has,

until just recently, refused to complete the forms necessary for
ERO to obtain the travel documents necessary to deport him.
Respondent filed his motion on November 1, 2012, ECF No. 5, and
Mr. Dinh filed no response to that motion.
The Court concludes that the motion should be granted.

As

to the first ground, Respondent correctly notes that the Supreme
Court has held that the proper respondent to a pure detention
petition for writ of habeas corpus is the “person who has the
immediate custody of the party detained, with the power to
produce the body of such party before the court or judge, that
he may be liberated if no sufficient reason is shown to the
contrary.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)
(emphasis in original).

“The default rule is that the proper

respondent is the warden of the facility where the prisoner is
being held, not the Attorney General or some other remote
supervisory official.”

Id.

As to the second ground, an alien must generally be removed
within 90 days following entry of an administratively or
judicially final order of removal.

8 U.S.C. § 1231(a).

Here,

the 90-day removal period commenced on January 20, 2012, when
2

the Board of Immigration Appeals dismissed Petitioner’s appeal.
In Zadvydas, the Supreme Court recognized that, while Congress
did not intend, when enacting § 1231(a), that every removal
could be reasonably accomplished in 90 days, it must have
intended some presumptively reasonable period of detention.
U.S. at 701.

533

For the sake of uniform administration, the Court

established 6 months as that presumptively reasonable period.
Id.

“After this 6-month period, once the alien provides good

reason to believe 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.
The Zadvydas holding, however, applies to the situation
where an alien, through no fault of his own, faces the
possibility of indefinite detention.

In contrast, § 1231

provides that the removal period shall be extended and the alien
may remain in detention during such extended period “if the
alien fails or refuses to make timely application in good faith
for travel or other documents necessary to the alien’s departure
or conspires or acts to prevent the alien’s removal subject to
an order of removal.”

8 U.S.C. § 1231(a)(1)(C); see also Pelich

v. INS, 329 F.3d 1057, 1060 (9th Cir. 2003) (holding that “risk
of indefinite detention that motivated the Supreme Court’s
statutory interpretation in Zadvydas does not exist when an
3

alien is the cause of his own detention).

Here, Respondent

represents that Mr. Dinh was presented with, but repeatedly
refused to complete, the form necessary to begin the process of
obtaining travel documents for Vietnam.

Mr. Dinh did not

complete the form until October 11, 2012.

See ECF No. 5-5,

Declaration of Calvin Orem (relating efforts to obtain completed
form from Mr. Dinh).
representations.

Mr. Dinh offers nothing to refute these

Thus, the six-month presumptively reasonable

removal period was tolled until Mr. Dinh completed that
necessary form.
For these reasons, the Court concluded that Mr. Dinh is not
entitled to the relief requested and that this petition must be
dismissed.

A separate order will issue.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED: January 10, 2013

4