Lu v. Adducci et al

Filing 21

MEMORANDUM OPINION and ORDER Denying 1 Petition for Habeas Corpus Without Prejudice - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Shixin Lu,
Petitioner,
v.

Case No. 15-cv-11448
Hon. Judith E. Levy
Mag. Judge Anthony P. Patti

Rebecca Adducci, et al.,
Respondents.
________________________________/
OPINION AND ORDER DENYING PETITION FOR
HABEAS CORPUS [1] WITHOUT PREJUDICE
This case is before the Court on Shixin Lu’s petition for a writ of
habeas corpus challenging her detention in immigration custody. (Dkt.
1.) Petitioner has moved for an expedited hearing on the petition. (Dkt.
3.)
I.

Background
Lu is a Chinese citizen who states that she had a valid B1/B2

United States visitor’s visa from January through May of 2014.

In

February 2014, Petitioner returned to China to care for her father and
complete some outstanding work responsibilities. She returned to the

United States on May 9, 2014, arriving at the Detroit Metropolitan
Airport, where she attempted to enter using her visitor’s visa.
When Petitioner arrived, a Customs and Border Protection
(“CBP”) officer examined her because she did not appear to be
admissible to the United States.

Based on, among other things,

Petitioner’s admission that her daughter was attending public school
while in the United States on a visitor’s visa, the CBP officer
determined that Petitioner was inadmissible and canceled her visa.
Petitioner was offered the chance to withdraw her application for
admission to the United States in lieu of being expeditiously removed.
She did so, but then expressed a fear of returning to China based on
potential persecution as an adherent of Falun Gong.

She was then

detained pending a credible fear interview that, if successful, would
warrant the grant of asylum and permit her to stay in the United
States.
On May 19, 2014, an asylum officer found that Petitioner
demonstrated a credible fear of persecution if she were returned to
China, based on her association with Falun Gong. On May 21, 2014,

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Petitioner’s request for parole was denied due to Immigration and
Customs Enforcement officials’ belief that she was a flight risk.
On June 3, 2014, an Immigration Court hearing was held on
Petitioner’s request, but was continued so that she could obtain counsel.
The hearing resumed on June 17, 2014, and Petitioner conceded that
she was removable, but would be filing applications for asylum,
withholding of removal, and protection under the Convention Against
Torture.

On July 16, August 14, and September 18, 2014, the

Immigration Judge held and continued a hearing on Petitioner’s claim
for relief from removal.
The Immigration Judge denied Petitioner’s applications on
November 4, 2014, noting both a lack of credibility based on
inconsistent and uncorroborated statements and a failure to show that
she met the requirements necessary to succeed on each of her
applications. (Dkt. 10-2 at 26-44.) On December 15, 2014, Petitioner
appealed that decision to the Board of Immigration Appeals.
On January 12, 2015, Immigration and Customs Enforcement
denied Petitioner’s second request for parole.

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On April 21, 2015, Petitioner filed this petition for a writ of
habeas corpus, claiming that her continued detention under 8 U.S.C. §
1225(b) was unlawful and in violation of the Fifth and Fourteenth
Amendments, as well as the Immigration and Nationality Act. On May
1, 2015, the Court issued an order requiring a response to the petition,
and staying transfer of Petitioner’s custody out of the Eastern District
of Michigan pending the adjudication of her petition. (Dkt. 4.)
On May 1, 2015, the Board of Immigration Appeals dismissed
Petitioner’s appeal, making her removal administratively final. (Dkt.
10-7.)

On May 8, 2015, Petitioner filed a petition for review of the

removal order in the United States Court of Appeals for the Sixth
Circuit, Case No. 15-3500. On May 12, 2015, Petitioner filed a motion
for a stay of removal in the Court of Appeals. Lu v. Lynch, Case No. 153500, Dkt. 6. On May 27, 2015, the Court of Appeals denied Petitioner’s
motion for a stay of removal. Id., Dkt. 11.
On May 28, 2015, Respondents renewed their motion for the Court
to vacate its stay of the transfer of Petitioner out of this district. (Dkt.
14.) The Court vacated its stay on May 29, 2015. (Dkt. 15.) On June 3,
2015, Petitioner filed a motion seeking clarification of the Court’s order,
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inquiring whether the Court only vacated the stay, or also deemed the
petition moot and/or dismissed the petition. (Dkt. 16.) The motion also
renewed the request for an expedited hearing on the habeas petition,
pursuant to the Board of Immigration Appeal’s (“BIA”) order staying
her removal pending its determination of her motion to reopen her case.
(Id.)
On June 8, 2015, the Court issued an order clarifying that the
May 29, 2015 order only vacated the stay for lack of jurisdiction, and
did not rule on the merits of the habeas petition. (Dkt. 18.) The Court
also requested that Respondents file a response to the request for an
expedited hearing. (Id.) Respondents filed their response on June 17,
2015, opposing the hearing and seeking to have the petition dismissed
without prejudice. (Dkt. 19.) Petitioner replied on June 24, 2015. (Dkt.
20.) Pursuant to E.D. Mich. Local R. 7.1(f), this matter will be decided
without oral argument.
II.

Analysis
Two issues must be resolved before determining whether an

expedited hearing on the petition is warranted: first, whether
Petitioner’s removal order is administratively final, and second,
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whether the Court may, at this juncture, grant the relief Petitioner
requests.
An administratively final removal order was issued on May 1,
2015.

(Dkt. 10-7.)

Pursuant to that removal order, “a petition for

review filed with an appropriate court of appeals in accordance with
this section [is] the sole and exclusive means for judicial review of an
order of removal entered or issued under any provision of this
chapter[.]” 8 U.S.C. § 1252(a)(5); see also Benitez v. Dedvukaj, 656 F.
Supp. 2d 725, 727 (E.D. Mich. 2009) (holding that exclusive jurisdiction
over challenges to removal orders lies with the United States Court of
Appeals). Petitioner filed her petition for review with the Sixth Circuit
on May 8, 2015, and a motion to stay her removal on May 12, 2015. The
Sixth Circuit denied the motion to stay Petitioner’s removal, and set a
briefing schedule to review the order of removal. Lu v. Lynch, Case No.
15-3500, Dkt. 12.
Petitioner

now

argues

that

the

removal

order

is

not

administratively final because the BIA has entered a stay of her
removal. (Dkt. 16-1.) She contends that “[t]his stay functions as would
the stay request that Ms. Lu had previous[ly] filed before the Sixth
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Circuit.” (Dkt. 16 at 9.) If the removal order is not administratively
final, Petitioner contends that her period of detention is governed by 8
U.S.C. § 1226, “which permits release on parole and continued district
court jurisdiction.” (Id.)
Respondents argue that the removal order is administratively
final under 8 U.S.C. § 1231(a), and that Petitioner is subject to
mandatory detention for the ninety-day period beginning on May 1,
2015.
As Respondents indicate, prior to the issuance of a final order of
removal, “[t]he authority to detain an alien . . . is governed by 8 U.S.C. §
1226”; “[a]fter the issuance of a final order of removal, the authority to
detain an alien is governed by 8 U.S.C. § 1231.”

Parlak v. U.S.

Immigration and Customs Enforcement, Case No. 05-2003, 2006 WL
3634385, at *1 (6th Cir. April 27, 2006) (citations omitted). An order
becomes final “upon the earlier of a determination by the Board of
Immigration Appeals affirming such order; or the expiration of the
period in which the alien is permitted to seek review of such order by
the Board of Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B)(i)-(ii).

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When an order is administratively final, “the Attorney General
shall remove the alien from the United States within a period of 90 days
(in this section referred to as the ‘removal period’).”

8 U.S.C. §

1231(a)(1)(A). The removal period begins on the latest of the date the
order of removal becomes administratively final, the date of the Court of
Appeals’ final order if the order is judicially reviewed and removal is
stayed, or “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)(i)-(iii).

“During the removal

period, the Attorney General shall detain the alien.”

8 U.S.C. §

1231(a)(2).
The BIA affirmed Petitioner’s order of removal on May 1, 2015,
making it administratively final.

Petitioner argues that the BIA’s

voluntary stay of her removal operates in the same manner as a stay
ordered by a court of appeals, which would mean that the removal
period had not yet begun, and the order would not be administratively
final. (Dkt. 20 at 9-10.)
Section 1231 states that the removal period begins on the latest of
three specific occurrences, two of which are at issue here: when the
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order becomes administratively final, or when a court of appeals issues
a final order regarding a petition for review pursuant to which that
court stayed the removal.

The removal order in this case is

administratively final. The Sixth Circuit determined that it would not
stay Petitioner’s removal, although it will hear the petition for review.
The BIA’s decision to voluntarily stay Petitioner’s removal is not the
“stay of the removal” contemplated under § 1231(a)(1)(B)(ii) for two
reasons: first, the BIA’s review is an administrative review, rather than
a “judicial[] review”; second, whatever decision the BIA makes on
Petitioner’s motion to reopen her case, it is not a “court’s final order.”
Were the BIA to decide not to reopen Petitioner’s case, her recourse
would be a petition to the Court of Appeals to review that decision.
Kucana v. Holder, 558 U.S. 233, 253 (2010).
Petitioner is now detained pursuant to a final administrative
order under 8 U.S.C. § 1231. Accordingly, the detainment provisions of
that section govern. Petitioner is currently in a mandatory detention
period of ninety days under § 1231(a)(1)(2). The Supreme Court has
held

that

a

post-removal

detention

9

period

of

six

months

is

presumptively reasonable under § 1231. Zadvydas v. Davis, 533 U.S.
678, 701 (2001).
Petitioner points to cases governed by the pre-removal guidelines
of § 1226. See, e.g., Ly v. Hansen, 351 F.3d 263, 265, 271-72 (6th Cir.
2003) (holding that a year and a half detention was excessive where
petitioner was still being held under § 1226); Bourguignon v.
MacDonald, 667 F. Supp. 2d 175, 178 (D. Mass. 2009) (evaluating a
prisoner who was being held after his removal order was reopened,
rending the order not administratively final). These cases do not apply
to detention under § 1231.
Petitioner also relies on Oyedeji v. Ashcroft, in which a petitioner
was held in custody from 1999 until 2004, including a four-year period
from 2000 until 2004, during which the Second Circuit considered, but
did not rule on, that petitioner’s motion to stay his removal. Oyedeji,
332 F. Supp. 2d 747, 750 (M.D. Pa. 2004). Here, however, the Sixth
Circuit has denied Petitioner’s motion to stay her removal, raising no
questions about the administrative finality of the removal order or the
applicability of the mandatory detention provision of § 1231 and the
reasonable detention limitation of Zadvydas.
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Petitioner asks that the Court still hear her petition because the
combined time she has been detained pre- and post-removal may still
violate the Constitution. See, e.g., Monestime v. Reilly, 704 F. Supp. 2d
453, 459 (S.D.N.Y. 2010) (holding that detention for eight months under
§ 1226 was unreasonable under Zadvydas); Oyedeji, 332 F. Supp. 2d at
775 (combining various periods of pre- and post-removal time in finding
that petitioner’s length of detention was unreasonable under § 1226).
Petitioner has not, however, argued that, even if her pre- and postremoval periods of detention are combined, the Court may upset the
mandatory detention provisions of § 1231. See Monestime, 704 F. Supp.
2d at 457-58 (noting that the ninety-day removal period is mandatory
and that a challenge to post-removal detention begins “[a]fter a period
of mandatory detention expires[.]”). The Court cannot conduct a habeas
review of mandatory detention at this juncture.
If Petitioner is still in custody six months after her order of
removal became final, habeas review at that time may be proper.
Zadvydas, 533 U.S. at 701; see also Jiang Lu v. U.S. ICE, 22 F. Supp.
3d 839, 844 (N.D. Ohio 2014) (denying habeas petition alleging
excessive post-removal detention under Zadvydas, but dismissing case
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without prejudice to any future petition regarding petitioner’s continued
detention).

However, until that time, regardless of the merits of

Petitioner’s argument that she is not a flight risk and that she should
be granted asylum or that she should be released pending the resolution
of her motion to reopen in front of the BIA, this Court lacks the
authority to hear Petitioner’s claims.
III.

Conclusion

For the reasons set forth above, it is hereby ordered that:
Petitioner’s motion for an expedited hearing (Dkt. 3) is DENIED;
and
Petitioner’s petition for a writ of habeas corpus (Dkt. 1) is
DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated: June 29, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on June 29, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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