Zeng v. Sessions et al
DECISION AND ORDER denying 1 Petition for Writ of Habeas Corpus filed by Qinglin Zeng. Zengs petition is denied, and this action is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order woul d not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate this action. Signed by Hon. Charles J. Siragusa on 8/18/17. Copy of this Decision and Order and the NEF mailed to pro se petitioner at Buffalo Federal Detention Facility. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
QUINGLIN ZENG, A046-472-647,
DECISION AND ORDER
JEFF B. SESSIONS, Attorney General of the
United States of America, et al.,
Quinglin Zeng (“Zeng” or “Petitioner”), a citizen of the Peoples Republic of China
(“China”), is subject to a final order of removal, as an alien convicted of an aggravated
felony offense and a firearm offense. Zeng, who is not appealing such order or opposing
his removal in any way, has been in the custody of the Department of Homeland Security
(“DHS”) for approximately nine (9) months, while DHS has been attempting to obtain the
travel documents required to remove him to China. In this action filed pursuant to 28 U.S.C.
§ 2241, Zeng argues that his continued detention is unreasonable and unlawful, based, inter
alia, on the Supreme Court's decision in Zadvydas v. I.N .S., 533 U.S. 678, 121 S.Ct. 2491
(2001) (“Zadvydas”). The Court disagrees, and denies the application for writ of habeas
The facts concerning Zeng’s case are generally not disputed, except insofar was
Zeng disputes the likelihood that he will be removed in the foreseeable future. Zeng is a
native and citizen of China, who entered the United States on November 12, 1997 as a
lawful permanent resident. On June 12, 2014, Zeng was convicted, in New York State, of
Attempted Robbery in the First Degree and Criminal Possession of a Weapon in the Second
Degree, and sentenced to a term of imprisonment. On January 14, 2015, Zeng was served
with a Notice to Appear, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (conviction of an
aggravated felony) and 8 U.S.C. § 1227(a)(2)(C), (firearm offense). On June 25, 2015, an
Immigration Judge ordered that Zeng be removed to China.
On November 10, 2016, upon his release from prison in New York, Zeng was taken
into custody by DHS, where he remains to this day. On November 22, 2016, DHS sent a
“presentation packet” to the Chinese Consulate, requesting a travel document for Zeng.
The request was supported by various documentation of Zeng’s identity, including copies
of his birth certificate, passport and immigrant visa.
In January 2017, DHS reviewed Zeng’s custody status and continued his detention,
after finding that he posed a threat to the safety of the community, and was a flight risk. In
that regard, on or about January 30, 2017, DHS issued Zeng a “Decision to Continue
Detention,” which reviewed the history of his case, including the fact that he had previously
been ordered deported for crimes of moral turpitude, but an Immigration Judge cancelled
his removal, after which Zeng went on to commit the felonies for which he is now facing
removal. On May 17, 2017, DHS issued another “Decision to Continue Detention,” which
notes, inter alia, that “ICE is currently working with the government of China to secure a
travel document,” and that “[a] travel document from the Government of China is expected.”
Zeng has no appeals pending, and there is no impediment to his removal to China,
other than China’s willingness to provide a travel document.
On May 26, 2017, Zeng, proceeding pro se, filed the subject petition [#1], which
purports to assert three claims: 1) his continued detention violates “8 U.S.C. § 1231(a)(6)
as interpreted by the Supreme Court in Zadvydas,” because his removal is not likely to
occur in the reasonably foreseeable future; 2) for the same reasons, his continued
detention violates “substantive due process”; and 3) Respondents have violated his right
to procedural due process by failing to review his custody status in a “neutral and impartial
On July 3, 2017, Respondents filed an Answer and Return [#5] to the Petition and
a Memorandum of Law [#6]. The Memorandum of Law [#6] includes the following points:
1) Zeng’s continued detention is lawful under 8 U.S.C. § 1231(a) and Zadvydas, since he
has not shown that “there is no significant likelihood of removal in the reasonably
foreseeable future”; 2) DHS has been in “regular contact with representatives of the
Chinese Consulate regarding the request for a travel document for Zeng”; 3) China’s
process for issuing travel documents “generally takes a number of months, as China must
complete a lengthy investigation before a travel document is issued”; 4) China has not
indicated that it is unwilling to accept Zeng; 5) Zeng’s petition is based solely on the
passage of time, as opposed to any evidence that China will not issue a travel document;
and 6) Zeng has been provided with due process as required by the pertinent statutes and
regulations, including 8 CFR § 241.4. Respondents maintain that the Court should dismiss
On July 26, 2017, Zeng filed a Traverse [#7], in which he essentially reiterates his
argument that the passage of time to date (9 months) indicates that China is unlikely to
issue a travel document. Further, Zeng contends that government statistics show that the
number of criminal Chinese nationals for whom China has been issuing travel documents
has been decreasing in recent years.
Petitioner challenges his continued detention by way of habeas corpus review under
28 U.S.C. § 2241, which “authorizes a district court to grant a writ of habeas corpus
whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the
United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir.2003) (quoting 28 U.S.C. §
2241(c)(3)); see also Zadvydas v. Davis, 533 U.S. at 687 (petition under § 2241 is the basic
method for statutory and constitutional challenges to detention following order of removal).
Matters pertaining to the detention of aliens pending the completion of immigration
removal proceedings and pending removal following the entry of a final order of removal are
governed by two separate provisions of the INA—respectively, INA § 236, which authorizes
the arrest and detention of an alien on warrant pending a decision on whether the alien is
to be removed from the United States, and INA § 241 (8 U.S.C. § 1231), which authorizes
detention of aliens after the issuance of a final removal order.
Zeng is confined under the latter statute, which provides authority to detain an alien
once the decision on removal is made, and the removal order becomes final. In that regard,
INA § 241(a) requires the Attorney General to accomplish removal within a period of ninety
days (the “removal period”), commencing on the latest of the following dates:
(i) The date the order of removal becomes administratively final.
(ii) 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.
(iii) 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).
Detention during the ninety-day removal period is mandatory. See INA § 241(a)(2)
(“During the removal period, the Attorney General shall detain the alien.”). The statute also
authorizes the Attorney General to continue detention of certain criminal aliens—like
Petitioner—who have been determined to be a threat to the community or a risk of flight,
beyond the expiration of the ninety-day removal period. See, INA § 241(a)(6).1
In Zadvydas, the Supreme Court was presented with the challenge of reconciling the
INA's apparent authorization of indefinite post-removal order detention with the Fifth
See, 8 U.S.C.A. § 1231(a)(6) (“An alien ordered removed who is inadmissible under section
1182 of this title, removable 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 (3).”).
Amendment's prohibition against depriving a person of their liberty without due process. The
Court determined that INA § 241(a) authorizes detention after entry of an administratively
final order of deportation or removal for a period that is “reasonably necessary” to
accomplish the alien's removal from the United States. Zadvydas, 533 U.S. at 699–700.
Recognizing the practical necessity of setting a “presumptively reasonable” time within
which to secure removal, the court adopted a period of six months “for the sake of uniform
administration in the federal courts ....” Id. 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. 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.
In the instant case, Zeng is not entitled to habeas relief because he has not shown
that there is no significant likelihood of his removal to China in the reasonably foreseeable
future. To the contrary, the record indicates, first, that there is no institutional barrier to
Zeng’s removal, since China accepts a significant number of aliens, including criminal
aliens, from the United States each year. Additionally, the record indicates that DHS has
provided the Chinese Consulate with documentary evidence concerning Zeng’s identity,
including a birth certificate, visa and passport, which should facilitate China’s ability to
confirm his identity. Moreover, in this case the mere passage of time does not indicate that
China is unwilling to issue a travel document; rather, Respondents maintain, and Zeng does
not dispute, that in general, the process of obtaining a travel document from China can be
In sum, Zeng has not met his initial burden under Zadvyas. However, even
assuming, arguendo, that Zeng had met his initial burden under Zadvydas, the Court would
nevertheless find that Respondents have met their burden on rebuttal. In short, the
evidence does not establish that there is no significant likelihood of removal in the
reasonably foreseeable future. For these same reasons, Zeng also has not shown that he
is being denied substantive due process.
As for the remaining aspect of Zeng’s petition, it is notable that his Traverse [#7]
does not repeat his contention that he was denied procedural due process, nor does it
challenge the assertions in Respondent’s Answer and Return [#5] on that point.
Accordingly, the Court deems that claim to either be abandoned or to lack merit.
Zeng’s petition is denied, and this action is dismissed. The Court hereby certifies,
pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good
faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v.
United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma
pauperis should be directed on motion to the United States Court of Appeals for the Second
Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk
of the Court is directed to terminate this action.
Dated: Rochester, New York
August 18, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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