Lu v. Lowe et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 1/24/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CAN LU,
A# 070-903-730,

:
CIVIL ACTION NO. 3:16-CV-2028
:
Petitioner :
(Judge Munley)
v.
:
:
CRAIG A. LOWE, et al.,
:
:
Respondents :
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Can Lu (“Lu”), presently a detainee of the United States Immigration and Customs
Enforcement (“ICE”), incarcerated at the Pike County Prison, Lords Valley, Pennsylvania,
filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241 on October 6,
2016. (Doc. 1). Respondents filed a response (Doc. 5) to the petition on November 23,
2016. Lu filed his traverse (Doc. 6) on December 7, 2016. Also pending are Lu’s Motions
(Docs. 9, 12) for a Preliminary Injunction and to Expedite Decision.
For the reasons set forth below, the Motion to Expedite Decision on the petition will
be granted, the Motion for a Preliminary Injunction will be denied and the petition will be
dismissed without prejudice.
I.

Background

Lu is a native and citizen of China who entered the United States at an unknown time
and place and without inspection by an immigration officer. (Doc. 5-1, p. 7). An
Immigration Judge (“IJ”) granted asylum on April 28, 2000; Lu adjusted his status to a
Lawful Permanent Resident on either July 31, 2006, or July 31, 2007, under section 209(b) of

the Immigration and Nationality Act, (“INA”), as amended. (Doc. 5-1, pp. 5, 7).
On April 22, 2015, the United States Department of Homeland Security initiated
proceedings against Lu via a Notice to Appear informing him that he was subject to removal
from the United States pursuant to Section 237(a)(2)(A)(iii) of the INA based on his
aggravated felony conviction, Theft by Unlawful Taking, entered in the Court of Common
Pleas of Philadelphia County, Pennsylvania on November 20, 2014. (Id. at pp. 3, 5).
ICE took Lu into custody on December 16, 2015, following service of his Court of
Common Pleas of Philadelphia County sentence. (Doc. 1, p. 2; Doc. 5-1, p. 7). On March
17, 2016, an IJ ordered Lu removed from the United States to China. (Id. ; Id.). Lu waived
his right to appeal. (Doc. 5-1, p. 6). The removal order is therefore administratively final.
On June 15, 2016, and October 12, 2016, Lu received decisions to continue his
detention. (Id. at 7-9). In the October decision, ICE advised Lu that it was working with the
government of China to secure a travel document and that a travel document was expected.
(Id. at 9). Michael Loesch, the deportation officer with the Enforcement and Removal
Operations (“ERO”) division of ICE who is managing the removal efforts, indicates that Lu’s
case is a “priority 1” removal case due to his criminal history. (Id. at 12, ¶ 3). Loesch began
removal efforts on March 29, 2016, and ICE submitted the travel document request to the
Chinese consulate on April 18, 2016; status inquiries are made twice a month. (Id. at ¶¶ 4,
7). Loesch represents that, in his experience, “the government of China does accept the
repatriation of its citizens. However, this process is time consuming.” (Id. at ¶ 9).
According to Fiscal Year 2015 statistics maintained by ICE, 386 Chinese citizens were
2

removed to the People’s Republic of China in that year. (Doc. 5-1, p. 11).
Lu challenges his “prolonged detention as unconstitutional, unreasonable and wellbeyond the limits to the statutes under which he is now detained. . . .” (Doc. 1, p. 1). He also
takes issue with the due process afforded him in the context of the custody review hearings.
(Id. at pp. 6-7).
II.

Discussion
Detention, release, and removal of aliens ordered removed is governed by the

provisions of 8 U.S.C. § 1231. Under § 1231(a), the Attorney General has ninety days to
remove an alien from the United States after his order of removal, during which time
detention is mandatory. Section 1231(a)(1)(B) provides the following:
The removal period begins to run on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if the 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. At the conclusion of the ninety-day period, the alien may be held in
continued detention, or may be released under continued supervision. 8 U.S.C. §§ 1231(a)(3)
& ( 6). The statute “limits an alien’s post-removal-period detention to a period reasonably
necessary to bring about the alien’s removal from the United States. It does not permit
indefinite detention.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). “Once removal is no
longer reasonably foreseeable, continued detention is no longer authorized by statute.” Id. at
3

699. To establish uniformity in the federal courts, a period of six months was recognized as
a “presumptively reasonable period of detention.” Id. at 701.
Following Zadvydas, regulations were promulgated to meet the criteria established by
the Supreme Court. See 8 C.F.R. § 241.4. Prior to the expiration of the mandatory ninetyday removal period, the district director shall conduct a custody review for an alien where the
alien’s removal cannot be accomplished during the prescribed period. 8 C.F.R. §
241.4(k)(1)(i). When release is denied pending the removal, the district director may retain
responsibility for custody determinations for up to three months, or refer the alien to the
Headquarters Post Order Detention Unit (“HQPDU”) for further custody review. 8 C.F.R. §
241.4(k)(1)(ii). Once jurisdiction is transferred, an eligible alien may submit a written
request for release to the HQPDU asserting the basis for the alien’s belief that there is no
significant likelihood that he will be removed in the reasonably foreseeable future. 8 C.F.R.
§ 241.13(d)(1).
The Zadvydas court held that “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,” stating that the alien petitioner has the burden of “provid[ing] good reason to believe
that there is no [such] likelihood” before the government respondents would be required to
provide rebuttal evidence. See Zadvydas, 533 U.S. at 701. See also Encarnacion-Mendez v.
Attorney General of U.S., 176 F. App’x 251, 254 (3d Cir. 2006). As the Third Circuit
explained, “[o]nce 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
4

foreseeable future . . . ’ Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Only then does the
burden shift to the Government, which ‘must respond with evidence sufficient to rebut that
showing.’ Id.” Barenboy v. Attorney General of U.S., 160 F. App’x. 258, 261 n. 2 (3d Cir.
2005).
If at the conclusion of the six-month period the alien provides good reason to believe
that there is no significant likelihood of deportation in the reasonably foreseeable future, the
burden shifts to the government to “respond with evidence sufficient to rebut that showing.”
Zadvydas, 533 U.S. at 701. Not every alien must be released after six months. An alien may
still be detained beyond six months “until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id.
In the matter sub judice, the presumptively reasonable six month period began running
on March 17, 2016, the date the order of removal became administratively final. The sixmonth period has recently expired, and ICE has failed to remove Lu. He argues that
“[a]ssuming a determination based on ‘appearances’ and ‘expecting’ to obtain a travel
document from a country that does NOT issue them and receiving a proper ‘medical
treatment’, does not justify indefinite detention. ‘Expecting to have Petitioner removed from
the U.S. in the foreseeable future is just speculation and Petitioner’s prolonged detention can
not [sic] be reasonably justified based on finite guess.” (Doc. 1, p. 7). However, Lu has not
presented evidence that there is no significant likelihood of his removal in the reasonably
foreseeable future as required by Zadvydas, 533 U.S. at 701. Consequently, he has not
shown that his detention is statutorily unauthorized or violates due process. See, e.g., Joseph
5

v. United States, 127 F. App’x 79, 81 (3d Cir. 2005) (affirming dismissal of § 2241 petition
challenging detention pursuant to § 1231(a)(6) because petitioner did not provide “good
reason” to believe there is no likelihood of removal); Soberanes v. Comfort, 388 F.3d 1305
(10th Cir. 2004)(same). Moreover, his wholly unsupported statement, that China does not
issue travel documents, is directly contradicted by the statistics proffered by ICE, which
indicate that Chine issued 386 travel documents in Fiscal Year 2015. (Doc. 5-1, p. 11).
Accordingly, at this time, this claim must be dismissed
Significantly, “for detention to remain reasonable, as the period of prior post-removal
confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would
have to shrink.” Zadvydas, 533 U.S. at 701. Accordingly, the dismissal is without prejudice
to the filing of a new § 2241 petition, in a new case), in the event that Lu is able to allege
facts that there is good reason to believe that there is no significant likelihood of his removal
in the reasonably foreseeable future. See Akinwale v. Ashcroft, 287 F.3d 1050, 1052
(recognizing that “[b]ecause circumstances may ultimately change in [petitioner’s] situation,
we affirm the dismissal [of his habeas petition] without prejudice to [his] ability to file a new
§ 2241 petition in the future”).1
Lu also challenges the lack of a hearing on his custody review determinations. This

1

Lu also has the option to submit a new request for review directly with ICE. See 8 C.F.R. §
241.13(d)(1) (“An eligible alien may submit a written request for release to the HQPDU asserting
the basis for the alien’s belief that there is no significant likelihood that the alien will be removed in
the reasonably foreseeable future. The alien may submit whatever documentation to the HQPDU he
or she wishes in support of the assertion that there is no significant likelihood of removal in the
reasonably foreseeable future”).
6

claim must also be dismissed. First, the regulations pertaining to post-removal-period
custody reviews do not require a hearing or an interview prior to the issuance of a decision.
See 8 C.F.R. §§ 241.4(h)(1), 241.13(e), (f), (g). Further, “this claim lacks legal merit
because, under the rationale of Zadvydas, an alien is not entitled to a hearing unless he 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.” Hlimi v. Holder, Nos. 13-3210, 13-3691, 2013 WL 4500324, at *4 (D.N.J. Aug.20,
2013) (citing Zadvydas, 533 U.S. at 701; Wilson v. Hendricks, No. 12-7315, 2013 WL
324743, at *2 (D.N.J. Jan.25, 2013)).
III.

Conclusion
Based on the foregoing, the Motion (Doc. 12) to Expedite Decision will be granted,

the Motion (Doc. 9) for a Preliminary Injunction will be denied, and the petition for writ of
habeas corpus will be dismissed without prejudice.
An appropriate Order follows.

BY THE COURT:

s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

Dated: January 24, 2017