DONG v. AVILES

Filing 3

MEMORANDUM OPINION. Signed by Judge William J. Martini on 4/9/14. (jr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHU WEI DONG,

Civil Action No. 14-1862 (WJM)

Petitioner,
v.

MEMORANDUM OPINION

OSCAR AVILES,
Respondent.

MARTINI, District Judge:
1. On March 14, 2014, Shu Wei Dong signed his second Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 challenging his detention since February 8, 2013, at Hudson
County Correctional Facility in New Jersey by the Department of Homeland Security (“DHS”).
He asserts in the Petition that he entered the United States in 2005, and on February 8, 2013, DHS
issued a notice to appear for removal and took him into custody. Attached to the Petition is an
application for issuance of an order to show cause wherein Mr. Dong asserts that a final order of
removal was issued on September 3, 2013. (ECF No. 1-1 at 1.)
2. This § 2241 Petition is essentially the same as the § 2241 petition Mr. Dong filed on or
about February 26, 2014. See Dong v. Aviles, Civil No. 14-1336 (WJM) (D.N.J. filed Mar. 3,
2014). On March 10, 2014, this Court dismissed Mr. Dong’s first § 2241 petition because he did
not allege facts showing that his detention since February 8, 2013, violated the Constitution, laws
or treaties of the United States. See Dong, Civil No. 14-1336 (WJM) opinion (D.N.J. Mar. 10,
2014). This Court noted in its Opinion that the dismissal was without prejudice to the filing of a
new § 2241 petition (in a new case), in the event that Mr. Dong was able to allege facts showing
either (a) his order of removal is not administratively final and his pre-removal-period detention

without a bond hearing has become unreasonably prolonged within the meaning of Diop v.
ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), or (b) his order of removal is administratively
final, Mr. Dong has been detained for more than six months since his order of removal became
administratively final, and there is no significant likelihood of his removal in the reasonably
foreseeable future within the holding of Zadvydas v. Davis, 533 U.S. 678, 701 (2001).
3. In the Petition presently before this Court, Mr. Dong again challenges his detention
since February 8, 2013, without a bond hearing. First, as in his first petition, Mr. Dong argues
that he is not subject to mandatory pre-removal-period detention pursuant to 8 U.S.C. § 1226(c)
because DHS did not take him into custody when he was released from criminal incarceration.
Second, he argues that he is not subject to mandatory pre-removal-period detention pursuant to 8
U.S.C. § 1226(c) because he has a substantial challenge to his removal. Third, he argues that his
detention is not statutorily authorized because he has been detained beyond the period of time
reasonably necessary to conclude his removal proceedings and he has been detained for a
prolonged period of time without a constitutionally adequate hearing. Fourth, he argues that his
detention violates due process because he has not received a hearing where the government
established that he poses a danger to the community or a risk of flight.
4. This Court has subject matter jurisdiction over the Petition under § 2241 because
Petitioner was detained within its jurisdiction in the custody of the DHS at the time he filed his
Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention violates
federal law and his constitutional rights. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d
Cir. 2005).

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5. In accordance with Rule 4 of the Rules Governing Section 2254 Cases, applicable to §
2241 cases through Rule 1(b), see 28 U.S.C. § 2254 Rules 1(b), this Court has screened the Petition
for dismissal. See McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized
to dismiss summarily any habeas petition that appears legally insufficient on its face.”). This
Court will summarily dismiss Mr. Dong’s second Petition without prejudice because, like his first
petition, this Petition does not assert facts showing that his detention violates the Constitution,
laws or treaties of the United States. See 28 U.S.C. § 2241(c)(3).
6. As this Court explained in the Opinion dismissing Mr. Dong’s first petition, the
statutory authority for immigration detention varies, depending on where the petitioner is in the
removal process. Detention prior to the date the removal order is final is governed by 8 U.S.C. §
1226 and detention after the removal order becomes final is governed by 8 U.S.C. § 1231.
7. Because Mr. Dong asserts in the present Petition that his removal order became final on
September 3, 2013 1 (ECF No. 1-1 at 1), as of September 3, 2013, Mr. Dong’s detention was no
longer governed by 8 U.S.C. § 1226, but became authorized by 8 U.S.C. § 1231. This is because,
unless a Court of Appeals has stayed an alien’s removal, the 90-day removal period begins on the
date the order of removal becomes administratively final. 2 See 8 U.S.C. § 1231(a)(1)(B).
Significantly, § 1231(a)(2) requires DHS to detain aliens during this 90-day removal period. See
8 U.S.C. § 1231(a)(2) (“During the removal period, the Attorney General shall detain the alien”).
1

An order of removal becomes “final upon the earlier of - (i) a determination by the Board of
Immigration Appeals affirming such order; or (ii) 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); see also 8 C.F.R. § 1241.1; Giraldo v. Holder, 654 F.3d 609, 611 (6th Cir. 2011);
Hakim v. Holder, 611 F.3d 73, 77 (1st Cir. 2010); Chupina v. Holder, 570 F.3d 99, 103 (2d Cir.
2009); United States v. Calderon-Minchola, 351 F. App’x 610, 611 n.1 (3d Cir. 2009).
2

Nothing alleged by Mr. Dong indicates that he filed a petition for review in the Court of Appeals
or that the Court of Appeals has stayed his removal.
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In this case, since Mr. Dong asserts that his removal order became final on September 3, 2013, §
1231(a)(2) required DHS to detain Mr. Dong during his 90-day removal period, which ran from
September 3, 2013, until December 3, 2013.
8. If DHS does not remove an alien during the 90-day removal period, then § 1231(a)(6)
authorizes DHS to thereafter release the alien on bond or to continue to detain the alien. See 8
U.S.C. § 1231(a)(6) (“An alien ordered removed . . . may be detained beyond the removal period
and, if released, shall be subject to the terms of supervision in paragraph (3).”) The Supreme
Court held in Zadvydas v. Davis, 533 U.S. 678 (2001), that § 1231(a)(6) “limits an alien’s
post-removal-period detention to a period reasonably necessary to bring about that alien’s removal
from the United States.” Zadvydas, 533 U.S. at 689. The Supreme Court recognized six months
as a presumptively reasonable period of post-removal-period detention. Id. at 701.
9. To state a claim for habeas relief pursuant to Zadvydas, an alien must assert facts
showing that he has been detained for more than six months after his order of removal became
final, and that there is no significant likelihood of the alien’s removal in the reasonably foreseeable
future. See Zadvydas, 533 U.S. at 701. Specifically, the Zadvydas Court held:
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. And for detention to
remain reasonable, as the period of prior postremoval confinement
grows, what counts as the “reasonably foreseeable future”
conversely would have to shrink. This 6-month presumption, of
course, does not mean that every alien not removed must be released
after six months. To the contrary, an alien may be held in
confinement until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.
Zadvydas, 533 U.S. at 701.

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10. Based on the facts alleged in Mr. Dong’s Petition, his presumptively reasonable
six-month period of post-removal-period detention began on September 3, 2013, and ran through
March 3, 2014. While Mr. Dong signed his Petition on March 14, 2014, after the expiration of the
presumptively reasonable six-month period, he did not set forth facts indicating that there is good
reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable
future. In the absence of such a factual showing, Mr. Dong’s detention is authorized by §
1231(a)(6) and Zadvydas does not require the government to respond with facts to rebut that
showing. See Zadvydas, 533 U.S. at 701 (“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.”); see also Barenboy v. Attorney General of U.S., 160 F. App’x 258, 261 n.2 (3d Cir.
2005) (“Once the six-month period has passed, the burden is on the alien to provide[] good reason
to believe that there is no significant likelihood of removal in the reasonably foreseeable future . . .
. Only then does the burden shift to the Government, which must respond with evidence
sufficient to rebut that showing”) (citation and internal quotation marks omitted).
11. Moreover, Zadvydas does not require a hearing unless Mr. Dong has been detained
beyond the presumptively reasonable six month period and he alleges facts showing that there is
no significant likelihood of removal in the reasonably foreseeable future. Zadvydas, 533 U.S. at
701. 3

3

This Court declines to adopt the Ninth Circuit’s holding in Diouf v. Napolitano, 634 F.3d 1081,
1092 (9th Cir. 2011), that “an alien facing prolonged detention under § 1231(a)(6) is entitled to a
bond hearing before an immigration judge and is entitled to be released from detention unless the
government establishes that the alien poses a risk of flight or a danger to the community.”
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12. The instant Petition must be dismissed because Mr. Dong has not alleged facts
showing that his detention violates the Constitution, laws or treaties of the United States. See 28
U.S.C. § 2241(c)(3).
13. The dismissal of the Petition is without prejudice to the filing of a new § 2241 petition
(in a new case), in the event that Mr. Dong can allege facts indicating that there is no significant
likelihood of his removal in the reasonably foreseeable future. See Zadvydas, 533 U.S. at 701.
14. An appropriate Order accompanies this Memorandum Opinion.
s/William J. Martini

WILLIAM J. MARTINI, U.S.D.J.
Dated: April 9, 2014

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