Van Dang v. McDonald

Filing 5

Judge Richard G. Stearns: ORDER entered. re 1 Petition for Writ of Habeas Corpus (2241) filed by Thanh Van Dang. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is DISMISSED without prejudice to its refiling.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-11897-RGS
THANH VAN DANG
v.
SHERIFF JOSEPH D. MCDONALD, JR.
ORDER
October 4, 2017
STEARNS, D.J.
For the reasons stated below, the pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 is DISMISSED without prejudice to its
refiling.
INTRODUCTION
On October 2, 2017 petitioner Than Van Dang, a citizen of Vietnam and
an immigration detainee currently held at the Plymouth County Correctional
Facility in Plymouth, Massachusetts, filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. The $5.00 filing fee was paid.
Petitioner states that he was born in Vietnam in 1974 and entered the
United States with his parents when he was 18 years old.

Petitioner

represents that due to criminal convictions for deportable offenses, a final

order of removal entered on July 24, 2000. He was taken into Immigration
and Customs Enforcement (“ICE”) custody on May 24, 2017.
A subsequent custody review determined that he will not be released
from ICE custody pending his removal from the United States. Petitioner
seeks immediate release under Zadvydas v. Davis, 533 U.S. 678 (2011) (an
admissible alien can be held only for a "reasonable period," which is
presumed to be six months, unless the government can show that there is a
"significant likelihood of removal in the reasonably foreseeable future.”).
DISCUSSION
A. Authority to Screen § 2241 Petition
The Rules Governing Section 2254 and 2255 Cases may be applied at
the discretion of the district court to other habeas petitions. See Rule 1(b) of
the Rules Governing Habeas Corpus Cases Under Section 2254. Under Rule
4(b), the Court is required to examine a petition, and if it "plainly appears
from the face of the motion . . . that the movant is not entitled to relief in the
district court," the Court "shall make an order for its summary dismissal."
Rule 4(b); McFarland v. Scott, 512 U.S. 849, 856 (1994) (habeas petition may
be dismissed if it appears to be legally insufficient on its face). A petition for
a writ of habeas corpus may also be summarily dismissed if it fails to set forth

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facts that give rise to a cause of action under federal law. 28 U.S.C. § 2243;
Marmol v. Dubois, 885 F. Supp. 444, 446 (D. Mass. 1994).
B. Summary Dismissal – Ripeness of Petitioner’s Claim
Section 1231 of Title 8 of the United States Code provides that the
Attorney General shall remove individuals who have been ordered removed
within ninety (90) days, and that he may detain such individuals during this
"removal period." Immigration and Nationality Act (“INA”) § 241(a)(1)(2),
8 U.S.C. § 1231(a)(1)(2). This 90-day removal period is triggered on the latest
of three dates. See INA § 241(a)(1)(B), 8 U.S.C. § 1231(a)(1)(B). Section 1231
also provides that if removal is not effected within 90 days, a detainee may
be released under supervision, see 8 U.S.C. § 1231(a)(3), but that certain
classes of individuals, including those convicted of certain crimes, may
continue to be detained after the 90-day removal period. INA § 241(6), 8
U.S.C. § 1231(a)(6).
In Zadvydas, the Supreme Court held that under the Due Process
clause, where an alien has been detained for a post-removal period of six
months pursuant to the provisions of 8 U.S.C. § 1231(a)(6) and 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. Zadvydas, 533 U.S. at 701. If a habeas court
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determines that removal is not "reasonably foreseeable," then it should order
the alien released from custody, subject to conditions of supervised release
"appropriate in the circumstances." Id. at 699-700. In other words, “after
six months, if an individual provides good reason to believe that there is no
significant likelihood of removal [in the reasonably foreseeable future], the
detention is presumptively invalid and a bond hearing is required.” Reid v.
Donelan, 991 F. Supp. 2d 275, 278 (D. Mass. 2014) (internal quotation marks
omitted).
Here, petitioner, by his own admission, was taken into ICE custody on
May 24, 2017. Although he contends that ICE has not specified the status of
any travel documents from Vietnam, nor whether the government of
Vietnam has been contacted, he has been held for less than six months past
the date his removal order became final. Here, the Zadvydas presumptively
reasonable six-month removal period has not yet expired and any possible
Zadvydas claim is not yet ripe for review. “A petition filed before the
expiration date of the presumptively reasonable six months of detention
[prescribed by Zadvydas] is properly dismissed as premature.” Keita v.
Sabol, No. 11-0248, 2011 WL 1375052, *2 (M.D. Pa. Apr. 12, 2011). Thus, the
instant petition is premature and will be dismissed.

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CONCLUSION
ACCORDINGLY, the Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241 is DISMISSED without prejudice to its refiling.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE 

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