Pang Sang Yee v. Kelly et al

Filing 3

ORDER signed by Judge J.P. Stadtmueller on 12/1/2017. Respondents Jeff Sessions, John F. Kelly, Thomas Holman, Glenn Triveline, and Anthony Brugger DISMISSED from action. Petition AMENDED to include Dale Schmidt, Sheriff of Dodge County, Wisconsin, as a Respondent in this action. Clerk of Court DIRECTED to effect service of the Petition and this Order upon Respondent. Within 30 days, Respondent to file motion to dismiss or answer Petition. IF RESPONDENT FILES ANSWER, briefing to proceed as fo llows: Petitioner's brief in support of his Petition due within 30 days of filing of Respondent's answer; Respondent's opposition brief due within 30 days of service of Petitioner's brief or 45 days of this Order if Petitioner doe s not file a brief; Petitioner's reply due within 10 days of filing of Respondent's brief. IF RESPONDENT FILES MOTION, briefing to proceed as follows: Petitioner's brief in opposition due within 30 days of filing of Respondent's motion; Respondent's reply due within 15 days of filing of Petitioner's brief. Civil L.R. 7(f) governs page limitations. See Order for further details. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AMOS PANG SANG YEE,
Petitioner,

v.

Case No. 17-CV-1035-JPS

JEFF SESSIONS, JOHN F. KELLY,
THOMAS HOLMAN, GLENN
TRIVELINE, and ANTHONY
BRUGGER,

ORDER

Respondents.

This case comes before the Court on a petition for a writ of habeas
corpus filed by Amos Pang Sang Yee (“Yee”) pursuant to 28 U.S.C. § 2241,
challenging the constitutionality of his continued detention by federal
immigration officials. (Docket #1). As an initial matter, the Court must
screen Yee’s petition under Rule 4 of the Rules Governing Section 2254
Proceedings, which requires the Court to examine the petition and dismiss
it if it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.1
1.

FACTS AND PROCEDURAL HISTORY
Yee is a native of Singapore. He came to the United States in

December 2016 seeking asylum because he allegedly experienced

Rule 1(b) of those Rules and Civil Local Rule 9(a)(2) give this Court the
authority to apply the rules to other habeas corpus cases, including the rule
permitting screening of the petition.
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persecution in his home country for expressing criticism of the
Singaporean government.
Immigration and Customs Enforcement (“ICE”) agents detained
Yee upon his arrival at Chicago O’Hare International Airport on
December 16, 2016. Yee applied for asylum before the United States
Immigration Court in Chicago, and on March 24, 2017 an immigration
judge granted Yee’s asylum application. According to Yee, the
immigration judge found that Yee is a “refugee” within the meaning of
the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and
is therefore entitled to asylum. ICE appealed the decision to the Board of
Immigration Appeals (“BIA”), which has not yet ruled on the appeal.
Yee remains detained at the Dodge County Detention Center in
Juneau, Wisconsin. He requests that the Court order his immediate release
from custody and placement on parole pending a decision by the BIA.
2.

ANALYSIS
Yee contends that his detention by ICE since December 2016—now

nearly one year—has exceeded a reasonable period and violates his right
to due process. (Docket #1 at 6-8).
The Supreme Court has forbidden indefinite detention of aliens
who are ordered removed from this country. See Zadvydas v. Davis, 533
U.S. 678, 701 (2001); see also Clark v. Martinez, 543 U.S. 371, 378 (2005). The
presumptively reasonable period of detention for purposes of effecting
removal, following issuance of a final removal order, should not exceed
six months. Zadvydas, 533 U.S. at 701.
The question for Yee is whether the Supreme Court’s reasoning in
Zadvydas and Clark should extend to aliens being held pending a final
removal order. Of course, Yee is not subject to a final order of removal;
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indeed, the point of his petition is to speed the resolution of the
proceedings that will culminate in a final order and to secure his release
during their pendency. While the Court harbors concern that Supreme
Court precedent forecloses Yee’s claim, see, e.g., Demore v. Hyung Joon Kim,
538 U.S. 510 (2003) (holding that Zadvydas does not require release of alien
detained under § 1226(c) pending judicial review of a removal order), the
issue of Yee’s entitlement to relief in light of the procedural posture of his
removal proceedings will be left for briefing by the parties.
Next, given the piecemeal nature of the Supreme Court’s
jurisprudence in this area—with each case focusing generally on the
constitutionality of detention under a single statute section—the specific
statute under which Yee is being detained may prove relevant to
resolution of Yee’s petition. While Yee’s petition suggests that his
detention arises out of 8 U.S.C. § 1226(c), see (Docket #1 at 6-7), it appears
to the Court that his detention likely stems from 8 U.S.C. § 1225(b).
Section 1226(c) would apply to Yee’s detention if, prior to being
taken into custody, he was admitted into the United States and was
thereafter being removed due to criminal convictions. In Yee’s case,
however, he alleges that he was never admitted into the United States.
Rather, upon arriving in the United States at a Chicago airport, Yee states
that he was immediately detained by ICE agents. Section 1225(b) appears
the better fit, as it applies to “arriving aliens” and prescribes the
procedure employed when an arriving alien “indicates an intention to
apply for asylum” or a “fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(ii).
Because arriving aliens who have never been admitted to the United
States might enjoy fewer constitutional protections than admitted aliens,

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see Zadvydas, 533 U.S. at 693, the distinction is not without a difference.
Again, this question will be left to the parties to brief.
3.

CONCLUSION
In this case, the Court cannot say that Yee’s petition is plainly

without merit. If the Supreme Court’s reasoning in Zadvydas is applied to
arriving aliens who are detained pending a final order of removal,
meaning that an arriving alien can be detained only for a presumptively
reasonable period to effect removal, then Yee’s detention has exceeded the
presumptively reasonable period. The Court will order a response to the
petition and will set a briefing schedule. See Rule 4(b) of the Rules
Governing Section 2254 Cases.2
Although Yee’s claims may proceed, the Court will note one final
issue regarding the named respondents. A Section 2241 habeas petition is
properly lodged against “the person who has custody” over the petitioner.
28 U.S.C. § 2242; id. § 2243 (“The writ, or order to show cause shall be
directed to the person having custody of the person detained.”). In “core”
habeas cases—those in which the prisoner challenges his present physical
confinement—this will be the warden of the prison where he is being
held. Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Supreme Court
instructs that in such cases, the respondent should “not [be] the Attorney
General or some other remote supervisory official.” Id.; see also Kholyavskiy
v. Achim, 443 F.3d 946, 949 (7th Cir. 2006) (“[T]he immediate custodian [is]
the individual having ‘day-to-day control’ over the facility in which a
prisoner is housed.”).
Section 2243 sets out a specific timeline for Section 2241 petitions, but the
court’s prerogative over scheduling embodied in Rule 4 of the Rules Governing
Section 2254 Proceedings controls. Bleitner v. Welborn, 15 F.3d 652, 653–54 (7th
Cir. 1994); Kramer v. Jenkins, 108 F.R.D. 429, 432 (N.D. Ill. 1985).
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Yee’s case is clearly one asserting that his present physical
confinement is unlawful. While Yee names as a respondent Anthony
Brugger, in his “official capacity as the Administrator of the Dodge
County Detention Center,” (Docket #1 at 3-4), it appears to the Court that
the proper respondent is one who is not named—Dale Schmidt
(“Schmidt”), the Dodge County Sherriff and the day-to-day overseer of
the Dodge County Detention Center. The Court will therefore amend
Yee’s petition to name Schmidt.
The other named respondents will be dismissed for the present, but
if Schmidt reports that there is some obstacle to granting complete relief
because of a failure to name some other respondent, the Court will
entertain a request to join that person.
Accordingly,
IT IS ORDERED that the petition be and the same is hereby
AMENDED to include as a respondent in this action Dale Schmidt, Sheriff
of Dodge County, Wisconsin;
IT IS FURTHER ORDERED that respondents Jeff Sessions, John F.
Kelly, Thomas Holman, Glenn Triveline, and Anthony Brugger be and the
same are hereby DISMISSED from this action;
IT IS FURTHER ORDERED that the Clerk of the Court shall effect
service of the petition and this Order upon Respondent pursuant to Rule 4
of the Rules Governing Section 2254 Cases; and
IT IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
1.

Within 30 days of entry of this Order, Respondent shall file

either an appropriate motion seeking dismissal of this action or answer

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the petition, complying with Rule 5 of the Rules Governing Section 2254
Cases, and showing cause, if any, why the writ should not issue; and
2.

If Respondent files an answer, then the parties should abide

by the following briefing schedule:
a.

Petitioner shall have 30 days after the filing of

Respondent’s answer within which to file a brief in support of his
petition, providing reasons why the writ of habeas corpus should
be issued. Petitioner is reminded that, in accordance with 28 U.S.C.
§ 2248, unless he disputes allegations made by the respondent in
his answer or motion to dismiss, those allegations “shall be
accepted as true except to the extent that the judge finds from the
evidence that they are not true.”
b.

Respondent shall file an opposition brief, with

reasons why the writ of habeas corpus should not be issued, within
30 days of service of Petitioner’s brief, or within 45 days from the
date of this order if no brief is filed by Petitioner.
c.

Petitioner may then file a reply brief, if he wishes to

do so, within 10 days after Respondent has filed a response brief.
3.

If Respondent files a motion in lieu of an answer, then the

parties should abide by the following briefing schedule:
a.

Petitioner shall have 30 days following the filing of

Respondent’s dispositive motion and accompanying brief within
which to file a brief in opposition to that motion.
b.

Respondent shall have 15 days following the filing of

Petitioner’s opposition brief within which to file a reply brief, if
any.

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Pursuant to Civil Local Rule 7(f), the following page limitations
apply: briefs in support of or in opposition to the habeas petition or a
dispositive motion filed by Respondent must not exceed thirty pages and
reply briefs must not exceed fifteen pages, not counting any caption, cover
page, table of contents, table of authorities, and/or signature block.
Dated at Milwaukee, Wisconsin, this 1st day of December, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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