LING v. HENDRICKS
OPINION. Signed by Judge Kevin McNulty on 3/27/14. (jd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
QI XIANG LING,
Civ. No. 13-7610 (KM)
ROY L. HENDRICKS,
KEVIN MCNULTY, U.S.D.J.
Petitioner, Qi Xiang Ling, is currently an immigration detainee who was previously
detained at the Essex County Correctional Facility in Newark, New Jersey.’ Mr. Ling is a citizen
of the People’s Republic of China. He is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C.
seeking his release from immigration detention. For the
following reasons, the habeas petition will be dismissed without prejudice.
Mr. Ling was ordered removed from the United States in 1993 and again in 1998. He
remained in the United States unlawfully. On February 17, 2013, Mr. Ling encountered Bureau
The Bureau of Immigration and Customs Enforcement’s online detainee locator indicates
that Mr. Ling is now detained at the Etowah County Detention Center in Gadsden, Alabama.
Accordingly, the Clerk will be ordered to update Mr. Ling’s listed address. Although Mr. Ling is
no longer detained in this District, this Court retains jurisdiction over this action as Mr. Ling was
detained within this District when he filed his habeas petition. See Rumsfeld v. Padilla, 542 U.S.
426, 441(2004) (“[W]hen the Government moves a habeas petitioner after she properly files a
petition naming her immediate custodian, the District Court retains jurisdiction and may direct
the writ to any respondent within its jurisdiction who has legal authority to effectuate the
prisoner’s release.”); see also Lee v. Zickefoose, No. 12-130, 2012 WL 5403134, at *2 (D.N.J.
Nov. 5, 2012) (“Jurisdiction is determined as of the time the petition is filed.”)
of Immigration and Customs Enforcement (“ICE”) officers who determined he was a fugitive
with an outstanding order of exclusion and deportation (albeit under a different name). On
March, 19, 2013, Mr. Ling was taken into immigration custody pending his removal.
Thereafter, ICE began the process of attempting to effectuate Mr. Ling’s removal from
the United States. On March 22, 2013, the deportation officer sent an application for a travel
document to the Chinese Consulate. Mr. Ling then completed a Chinese Citizenship Verific
Application which was sent to the Chinese Consulate on April 5, 2013.
On May 8, 2013, the deportation officer received an email from Mr. Huang of the
Chinese Consulate requesting that Mr. Ling provide information as to where he lived before
entering the United States. Mr. Ling told the deportation officer that, before he entered the
United States, he last lived in the city of Fuijan. On May 30, 2013, Mr. Huang again requested
the name of the village where Mr. Ling lived. Mr. Ling wrote the name of his village in Chinese
characters. On June 5, 2013, Mr. Huang stated in an email to the deportation officer that Mr.
Ling’ s identification of the village where he had lived was incorrect.
Thereafter, Mr. Huang interviewed Mr. Ling by telephone on June 11, 2013. Mr. Ling
claimed that he did not know the name of the village where he was born. Mr. Huang agreed to
speak to Mr. Ling’s family to find out more details.
On July 16, 2013, Mr. Ling provided the deportation officer with a telephone number for
his family. The number turned out to be invalid. On July 25, 2013, an ICE staff member
discussed Mr. Ling’s case with the Chinese Consulate. The Chinese Consulate told this staff
member that Mr. Ling’s birth village needed to be provided before a travel document would be
issued. On September 4, 2013, the deportation officer heard from Mr. Huang who stated that
Mr. Ling’ s family never called and that he still did not have Mr. Ling’ s birth village information.
Mr. Ling completed a second travel document application, which included his birth
village, on October 7, 2013. On October 21, 2013, however, the Chinese Consulate
that Mr. Ling was not telling the truth about his birth village. The Chinese Consulate
that the birth village that Mr. Ling has identified is not located where Mr. Ling says it
is, and that
there is no record of Mr. Ling’ s birth at that village.
On November 5, 2013, Mr. Ling refused to complete another travel document application
and stated that his family would not call the Chinese Consulate. Mr. Ling again refused
complete a travel document application on December 11, 2013. The deportation officer
since sent an email to the Chinese Consulate so that it can interview Mr. Ling again.
On June 15, 2013, ICE’s Field Office Director reviewed Mr. Ling’s custody status and
determined that Mr. Ling would not be released at that time. On September 30, 2013, the
Headquarters Post Order Unit of ICE reviewed Mr. Ling’s custody status. Again, it was
determined that Mr. Ling would not be released at that time. On December 30, 2013, the Field
Office Director again reviewed Mr. Ling’ s detention. He provided Mr. Ling with a Notice
Failure to Comply, and again determined that Mr. Ling would not be released from custod
that time. ICE explained to Mr. Ling that he failed to assist ICE in its efforts to remove him
because he had provided false information to the Chinese Consulate. Thus, ICE informed Mr.
Ling that his removal period was being extended and that he would remain in ICE custod
such time as he demonstrated that he was making reasonable efforts to cooperate with ICE’s
efforts to have him removed.
In December, 2013, this Court received Mr. Ling’s federal habeas petition. The petition
raises two issues: (1) whether the amount of time Mr. Ling has spent in immigration detenti
violates Zadvydas v. Davis, 533 U.S. 678 (2001); and (2) whether his constit
utional rights have
been violated by ICE’s failure to personally interview him.
The Attorney General has the authority to detain aliens in removal proceedings
before and after the issuance of a final order of removal. Post-removal order immig
detention is governed by 8 U.S.C.
§ 1231(a). Section 123 1(a)(1)(A) states that, “except as
otherwise provided in this section, when an alien is ordered removed, the Attorn
ey General shall
remove the alien from the United States within a period of 90 days (in this section
referred to as
the “removal period”).” Id.
§ 123 1(a)(1)(A). The removal period begins on the latest of the
The date the order of removal becomes administratively
If the removal order is judicially reviewed and if a court
orders a stay of the removal of the alien, the date of the
court’s final order.
If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
§ 1231 (a)( l)(B). Federal regulations provide that:
An order of removal made by the immigration judge at the
conclusion of the proceedings under section 240 of the Act shall
(a) Upon dismissal of an appeal by the Board of Immigration
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if the
respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of
the subsequent decision ordering removal; or
(e) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay
of the voluntary departure period, or upon the failure to post a
required voluntary department bond within 5 business days. If
the respondent has filed a timely appeal with the Board, the
order shall become final upon an order of removal by the
Board or the Attorney General, or upon overstay of the
voluntary departure period granted or reinstated by the Board
or the Attorney General.
§ 1241.1 (a). Section 1231 (a)(2) requires that the alien be detained during the ninety
day post-removal order period. See 8 U.S.C.
ninety-day period, then
§ 123 l(a)(2). If the alien is not removed during the
§ 123 1(a)(6) authorizes that the alien be released on bond or that the
alien be continued to be detained:
An alien ordered removed who is inadmissible under section 1982
of this title, 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 of
removal, may be detained beyond the removal period and, if
released, shall be subject to the terms of supervision in paragraph
§ 123 1(a)(6).
A. Zadvydas Claim
In Zadvydas, 533 U.S. 678, the United States Supreme Court stated that
§ 123 l(a)(6)
does not authorize the Attorney General to detain aliens indefinitely beyond the removal period
but “limits an alien’s post-removal-period detention to a period reasonably necessary to bring
about that alien’s removal from the United States. It does not permit indefinite detention.” 533
U.S. at 689. The Supreme Court stated that a period of six months is a presumptively reason
period of post-removal detention under
for a petitioner to state a claim under
§ 123 1(a)(6). See Zadvydas, 533 U.S. at 701. However,
§ 2241, the petitioner must provide in the petition facts
showing good reason to believe that there is no reasonable likelihood of his actual removal
reasonably foreseeable future. See
“Zadvydas does not delineate the boundaries of
evidentiary sufficiency, but it suggests that an inversely proportional relationship is at play: the
longer an alien is detained, the less he must put forward to obtain relief.” Alexander
Gen. of United States, 495 F. App’x 274, 276-77 (3d Cir. 2012) (per curiam) (citing Zadvy
533 U.S. at 701).
Nevertheless, “[t]he removal period shall be extended beyond a period of 90 days and
alien may remain in detention during such extended period if the alien fails or refuses
timely application in good faith for travel or other documents necessary to the alien’s departu
or conspires or acts to prevent the alien’s removal subject to an order of removal.” 8
123 1(a)(C). “Zadvydas does not save an alien who fails to provide requested docum
effectuate his removal. The reason is self-evident: the detainee cannot convincingly argue
there is no significant likelihood of removal in the reasonably foreseeable future if the detaine
controls the clock.” Pelich v. INS, 329 F.3d 1057, 1060 (9th Cir. 2003); Xiangquan v. Holder
No. 12-7650, 2013 WL 1750145, at *3 (D.N.J. Apr. 23, 2013) (“[A]n alien who, during his/her
presumptive Zadvydas based period, takes actions delaying his/her removal (e.g. by refusing to
cooperate with the ICE’s removal efforts), cannot demand his/her release upon expiration of
these six months.
Rather, the period affected by the alien’s obstructive actions is excluded
from the presumptive period articulated in Zadvydas, thus causing a quasi-tolling mimicking, in
its operation.j”) (internal citations omitted). Accordingly, Courts have found that a petitioner
who fails to cooperate with his removal fails to establish that there is no likelihood of remov
the reasonably foreseeable future under Zadvydas. See Conceicao v. Holder, No. 12-4668, 2013
WL 1121373, at *3 (D.N.J. Mar. 13, 2013) (“[Wjhere Petitioner is refusing to sign the necess
travel documents, he has failed to cooperate in his removal and has failed, in this Court, to
establish that there is no likelihood of his removal in the reasonably foreseeable future.”); Diaz
Martin v. Holder, No. 11-6692, 2012 WL 4661479, at *4..5 (D.N.J. Oct. 2, 2012) (finding that
where petitioner failed to cooperate in his removal, he failed to establish that there is
likelihood of his removal in the reasonably foreseeable future); Camara v. Gonzales, No.
061568, 2007 WL 4322949, at *4 (D.N.J. Dec. 6, 2007) (finding that petitioner failed to state
constitutional claim under Zadvydas due to his failure to cooperate with INS to obtain the
necessary travel documentation).
In this case, Mr. Ling has failed to cooperate with ICE officials to effectuate his removal.
Indeed, Mr. Ling has apparently lied to Chinese officials regarding his birthplace as well as his
address immediately prior to moving to the United States. Furthermore, Mr. Ling apparently
provided an invalid telephone number for his family members. This has apparently made
obtaining the necessary travel documents difficult. Additionally, Mr. Ling has refused to sign
further travel removal application documents. ICE has instructed Mr. Ling what he needs to do:
provide documentation of his true identity and fill out the Chinese Identity Verification Form
truthfully. (See Dkt. No. 5-4 at p. 14.) Because he has failed to cooperate with removal
proceedings, Mr. Ling has failed to show that he is entitled to habeas relief under Zadvydas. He
cannot shown that there is no likelihood of his removal in the reasonably foreseeable future
because it is he himself who stands in the way. Accord Conceicao, 2013 WL 1121373, at *3;
Diaz-Martin 2012 WL 4661479, at *4..5; Camara, 2007 WL 4322949, at *4
This claim is therefore dismissed. Because Mr. Ling may in the future be able to satisfy
the Zadvydas standard, the dismissal of this claim will be without prejudice.
B. Personal Interview Claim
Mr. Ling also claims that iCE has not provided him with a constitutionally adequate
custody review. More specifically, Mr. Ling claims that he was never personally interviewed or
given a fair opportunity to show why he should be released from immigration detention.
It is not entirely clear upon what basis Mr. Ling claims he is entitled to a person
interview, or that the failure of United States immigration authorities to conduc
t a personal
interview violates his constitutional rights. Nevertheless, the Court notes that C.F.R.
provides regulations for the continued detention of inadmissible, criminal and
beyond the removal period. The regulations state that the initial custody determ
ination shall be
made by the District Directors and Directors of Detention and Removal Field Office
s in the three
month period immediately following the expiration of the ninety-day removal period
. See 8
§ 241.4(c)(1). At that initial review, the District Director has discretion to schedule a
personal or telephone interview with the alien as part of the custody determination
. See id.
241 .4(h)(1). Additionally:
For any alien the district director refers for further review after the
removal period, or any alien who has not been released or removed
by the expiration of the three-month period after the review, all
further custody determinations will be made by the Executive
Associate Commissioner, acting through the [Headquarters PostOrder Detention Unit] HQPDU.
§ 241 .4(c)(2). The regulations further lay out how determinations are made by the Executive
Associate Commissioner, they include the following:
Determinations by the Executive Associate Commissioner.
Determinations by the Executive Associate Commission to
release or retain custody of aliens shall be developed in
accordance with the following procedures:
(1) Review panels. The HQPDU Director shall designate
a panel or panels to make recommendations to the
Executive Associate Commissioner. A Review Panel
shall, except as otherwise provided, consist of two
persons. Members of a Review Panel shall be
selected from the professional staff of the Service. All
recommendations by the two-member Review Panel
shall be unanimous. If the vote of the two-member
Review Panel is split, it shall adjourn its deliberations
concerning that particular detainee until a third
Review Panel member is added. The third member of
any Review Panel shall be the Director of the HQPDU
or his or her designee. A recommendation by a threemember Review Panel shall be by majority vote.
(2) Records Review. Initially, and at the beginning of
each subsequent review, the HQPDU Director or a
Review Panel shall review the alien’s records. Upon
completion of this records review, the HQPDU
Director or the Review Panel may issue a written
recommendation that the alien be released and reasons
(3) Personal Interview.
If the HQPDU Director does not accept a
panel’s recommendation to grant release
after a records review, or if the alien is not
recommended for release, a Review Panel
shall personally interview the detainee. The
scheduling of such interviews shall be at the
discretion of the HQPDU Director. The
HQPDU Director will provide a translator f
he or she determines that such assistance is
As these regulations provide, Mr. Ling would potentially be entitled to a personal
interview after the ninety-day removal period has ended, but only after the decision to contin
to detain him has reached the HQPDU level.
Section 241 .4(g)(ii) of the regulations also states that:
The removal period shall run for a period of 90 days. However,
the removal period is extended under section 241 (a)(l)(C) of the
Act 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. The Service will provide such an
alien with a Notice of Failure to Comply, as provided in paragraph
(g)(5) of this section, before the expiration of the removal period.
The removal period shall be extended until the alien demonstrates
to the Service that he or she has complied with the statutory
obligations. One the alien has complied with his or her obligations
under the law, the Service shall have a reasonable period of time in
order to effect the alien’s removal.
§ 241 .4(g)(ii). The regulations also note the need for the alien to be cooperative;
Release will be denied and the alien may remain in
detention if the alien fails or refuses to make timely
application in good faith for travel documents necessary to
the alien’s departure or conspires or acts to prevent the
alien’s removal. The detention provisions of section
241(a)(2) of the Act will continue to apply, including
provisions that mandate detention of certain criminal and
The Service shall serve the alien with a Notice of Failure to
Comply, which shall advise the alien of the following: the
provisions of section 241(a)(1)(C) (extension of removal
period) and 243(a) of the Act (criminal penalties related to
removal); the circumstances demonstrating his or her
failure to comply with the requirements of section
241(a)(1)(C) of the Act; and an explanation of the
necessary steps that the alien must take in order to comply
with the statutory requirements.
The Service shall advise the alien that the Notice of Failure
to Comply shall have the effect of extending the removal
period as provided by law, if the removal period has not yet
expired, and that the Service is not obligated to complete its
scheduled custody reviews under this section until the alien
has demonstrated compliance with the statutory
§ 241 .4(g)(5)(i)-(iii).
In accordance with this regulation, ICE provided Mr. Ling with a Notice of Failure to
Comply on December 30, 2013, stating that his custody status had been reviewed and
removal period had been extended because he had failed to cooperate. The removal period
suspended or tolled during Mr. Ling’s continued non-compliance. See Oreihomme v.
Napolitano, No. 11-0496, 2011 WL 3155921, at *1 (W.D. La. June 28, 2011) (“[hf an alien
or refuses to cooperate with ICE in obtaining a travel document to effect removal, or
actions to prevent his removal, the removal period is suspended or tolled, and his continu
detention is authorized.”), report and recommendation adopted by,
2011 WL 3155839 (W.D. La.
July 26, 2011); Cuello v. Adduci, No. 10-13641, 2010 WL 42266
88, at *4 n. 4 (E.D. Mich. Oct.
21, 2010) (“Generally, courts have only tolled the removal period
in cases where the alien has
demonstrated some sort of bad faith failure to cooperate, such as provid
ing authorities with false
or inconsistent information regarding identity or country of origin, or
refusing to complete travel
arrangements or name a country for deportation.”) (citations omitted).
Mr. Ling’s non-cooperation began, at the latest, on June 5, 2013 (within
removal period), when the Chinese Consulate informed deportation author
ities that the village
Mr. Ling claimed to have lived in prior to his arrival in the United States
was incorrect. As
noted above, Mr. Ling has continued to be non-cooperative since that
time. Additionally, ICE
extended the removal period in its December 30, 2013 Notice of Failure
to Comply, which put
Mr. Ling on notice what he needed to do to be in compliance. Therefore,
because the removal
period has been extended/tolled due to Mr. Ling’s lack of cooperation, he
cannot show that any
right to a personal interview has been violated. Such a right would arise
only at the conclusion
note that ICE did not provide Mr. Ling with a copy of the Notice of Failure
to Comply (which
acted to extend the removal period) within the ninety-day removal period
set forth by the
regulations. See 8 C.F.R. § 241 .4(g)(1 )(ii) (stating that a notice of failure
to comply will be
provided to the alien before the expiration of the ninety-day removal period
). However, at least
one court has noted that immigration authorities comply with their regulatory
thereby retaining the ability to extend the removal period even after it is expired
petitioner is not cooperating to effectuate his removal. See Ramos v. Cherto
fj No. 07-85 8, 2009
WL 1563894, at *6 (W.D.N.Y. June 2,2009) (citing 8 C.F.R. 241.4(g)(5)(i
v)). Indeed, the
regulations even specifically recognize that a notice of failure to comply may
be entered after
ninety-days has passed by stating that “[t]he fact that the Service does not
provide a Notice of
Failure to Comply within the 90-day removal period, to an alien who has failed
to comply with
the requirements of section 241(a)(1)(C) of the Act, shall not have the effect
of excusing the
alien’s conduct.” 8 C.F.R. § 241 .4(g)(5)(iv). Additionally, it is worth reitera
ting in this case that
Mr. Ling’s non-cooperation began during the initial ninety days, on or about
June 5, 2013, when
immigration officials found out that the village Mr. Ling had stated to Chines
e officials that he
lived at prior to his arrival in the United States was incorrect.
of Mr. Ling’s removal period (which, as extended, is still in effect)
and potential possible review
by HQPDU. Accordingly, this claim will also be dismissed withou
For the foregoing reasons, the habeas petition will be dismissed
without prejudice. An
appropriate order will be entered.
Dated: March 27, 2014
KEVfNM NU Y
United States District Jud
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