United States District Court, D. New Jersey
October 17, 2005.
QING DI WANG, Petitioner,
JOHN CARBONE, et al., Respondents.
The opinion of the court was delivered by: JOEL PISANO, District Judge
Currently pending is a Petition filed by Qing Di Wang
("Petitioner") for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. The Court resolves this petition without oral argument,
as permitted by Federal Rule of Civil Procedure 78. For the
reasons set forth below, the Court denies the Petition.
I. Factual History
Petitioner is a native and citizen of China. (Petition ¶ 3;
Answer at 1). Petitioner entered the United States on or about
August 18, 2000 at the Honolulu International Airport in
Honolulu, Hawaii. (Petition ¶ 6; Anderson Decl. ¶ 3). Petitioner
did not arrive with valid travel documents. (Petition ¶ 6;
Anderson Decl. ¶ 3). Petitioner was taken into custody and stated
that he was seeking asylum. (Petition ¶ 6; Anderson Decl. ¶ 3).
Respondents state that Petitioner was placed in removal
proceedings by the Immigration and Naturalization Service.
(Anderson Decl. ¶ 3). On September 14, 2000, Petitioner was
released from custody after posting a $75,000 bond. (Petition ¶
6; Anderson Decl. ¶ 4). Petitioner states that he filed a series
of motions to change venue from Seattle, Washington to New York,
New York, but that these motions were denied, as were appeals
taken by the Petitioner. (Petition ¶¶ 6-7).
Petitioner and Respondents appear to be in agreement as to the
underlying facts until the time that Petitioner was released on
bond in September 2000. From that point until April 12, 2005,
Petitioner simply does not address the facts in his Petition
other than to suggest that the procedural history is
"complicated." (Petition ¶ 7). On April 4, 2002, Petitioner was
ordered removed in absentia by the Immigration Judge. (Anderson
Decl. ¶ 5; Anderson Decl. Ex. B (Warrant of
Removal/Deportation)). On April 26, 2002, Petitioner filed a
motion to reopen the proceedings, which was denied by the Immigration Judge on May 23,
2002. (Anderson Decl. ¶ 6). Respondents state that, on July 2,
2002, through the bonding company Petitioner was advised to
report for removal. (Anderson Decl. ¶ 6). Petitioner did not so
report and on July 16, 2002, a Notice of Immigration Bond Breach
was sent to the bonding company. (Anderson Decl. ¶ 7; Anderson
Decl. Ex. C (Notice of Immigration Bond Breach)). The Petition
acknowledges that Petitioner's bond was forfeited by the
Department of Homeland Security. (Petition ¶ 7). Petitioner
either surrendered or was delivered at the Elizabeth Detention
Center by the bail bondsperson. (Anderson Decl. ¶ 8; Anderson
Decl. Ex. D (Body Receipt/Certificate of Surrender)).
On January 28, 2003, a travel document request was sent to the
consulate General of China. However, Petitioner refused to
complete the required Chinese application form and, as a result,
the travel document request was sent without it. (Anderson Decl.
¶ 9). On February 6, 2003, Petitioner was served with a "Warning
for Failure to Depart" form, Form I-229(a). (Anderson Decl. ¶ 10;
Anderson Decl. Ex. E (Form I-229(a))). According to Respondents,
Petitioner actively refused to cooperate in providing a
fingerprint and a signature and had to be physically restrained
to be fingerprinted. (Anderson Decl. ¶ 10). Also on February 6,
2003, Petitioner was placed in a Special Housing Unit for failure
to comply and engaging in disruptive behavior. (Anderson Decl. ¶
11). As a result of these incidents, Petitioner was served with a
Failure to Comply Notice on March 14, 2003. (Anderson Decl. ¶ 12;
Anderson Decl. Ex. F (Notice of Failure to Comply)).
On May 19, 2003, Petitioner filed a Petition for Review with
the United States Court of Appeals for the Nine Circuit, which
then stayed Petitioner's removal. (Anderson Decl. ¶ 13). The Ninth Circuit denied the Petition for Review on September 27,
2004 and issued the Mandate on November 19, 2004. (Petition ¶ 7;
Anderson Decl. ¶ 15). Petitioner has filed two petitions for
writs of habeas corpus in this court. The first was filed on
August 24, 2004 and is docketed as Civil Action No. 04-4048
(JAG). (Anderson Decl. ¶ 14). The second is the instant petition,
which was filed on May 5, 2005 and is docketed as Civil Action
No. 05-2386 (JAP).
On January 28, 2005, Petitioner was served a second time with a
"Warning for Failure to Depart" form, Form I-229(a). (Anderson
Decl. ¶ 16; Anderson Decl. Ex. G (Form I-229(a))). Not until
April 12, 2005 did Petitioner complete travel document forms for
the Chinese Embassy. (Anderson Decl. ¶ 16). The Chinese Consulate
completed an interview of Petitioner at or about that time.
(Anderson Decl. ¶ 17). Petitioner states that he filed a Request
for Release on April 12, 2005, which, at the time of the filing
of his Petition on May 5, 2005, had not been responded to or
granted. (Petition ¶ 9).
On May 10, 2005 Petitioner was placed on a list for special
flights arranged for the removal of aliens by the Department of
Homeland Security. (Anderson Decl. ¶ 18). On July 21, 2005, an
updated presentation, including Petitioner's original birth
certification documents, was made to the Chinese Consulate for
Petitioner's travel document. (Anderson Decl. ¶ 19). On August
25, 2005, Petitioner was interviewed via telephone by a Chinese
consular officer. (Anderson Decl. ¶ 20).
On September 12, 2005, the Department of Homeland Security
reviewed Petitioner's case, presumably in response to
Petitioner's April 12, 2005 Request for Release referenced above,
and determined that in light of Petitioner's completion of his
travel document forms and interview in April, "it now appears
likely that the Chinese authorities will issue a travel document on [his] behalf, and therefore [his] removal is
imminent." (Anderson Decl. ¶ 21; Anderson Decl. Ex. H (Decision
to Continue Detention)). Moreover, the Department of Homeland
Security determined that Petitioner had not established that he
was not a flight risk. (Anderson Decl. ¶ 21; Anderson Decl. Ex. H
(Decision to Continue Detention)). Accordingly, the Department of
Homeland Security denied Petitioner's release. (Anderson Decl. ¶
21; Anderson Decl. Ex. H (Decision to Continue Detention)).
The Department of Homeland Security Officer charged with this
case, Michael Anderson, reports that he has been informed by the
Chinese consular officer who interviewed Petitioner
telephonically that the matter has been submitted to the Chinese
government and the consular officer is awaiting a response.
(Anderson Decl. ¶ 22). Mr. Anderson also represents that "the
Chinese consulate has been issuing travel documents in cases such
as this and the Chinese consulate has not said they will not
issue a document in this case." (Anderson Decl. ¶ 22). Petitioner
conversely represents that "[u]pon information and belief, China
has stopped issuing travel documents to detained Chinese
nationals with final deportation orders." (Petition ¶ 10).
Petitioner presently remains in a detention facility in Newton,
New Jersey. (Petition ¶ 11(b)).
Petitioner alleges that his detention violates
8 U.S.C. § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas v.
Davis, 533 U.S. 678 (2001). Petitioner argues that although
Zadvydas established a presumptively reasonable six-month
period for the government to attempt to secure an alien's
removal, "where, as here, China is not accepted [sic.] any of
its nationals from the United States, then there is no purpose in
waiting for the full six-months." (Petition ¶ 11(a)). Under the Immigration and Naturalization Act ("INA"), once an
alien has been determined to be inadmissible and ordered removed,
the alien initially may be detained for a ninety-day period
following the final order of removal. 8 U.S.C. §§ 1231(a)(1)(A),
1231(a)(1)(B)(I). Certain aliens, including "[a]n alien ordered
removed who is inadmissible under section 1182 of this title", a
category which includes Petitioner,*fn1 may be detained
beyond the original 90-day period. 8 U.S.C. § 1231(a)(6); Clark
v. Martinez, ___ U.S. ___, 125 S.Ct 716, 722 (2005) (holding
that Zadvydas, infra, is applicable to inadmissible aliens
ordered removed pursuant to 8 U.S.C. § 1182); Zadvydas v.
Davis, 533 U.S. 678, 682 (2001). The presumptively reasonable
period to detain an alien under such circumstances is six months.
Zadvydas v. Davis, 533 U.S. 678, 701 (2001). "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." Id. After the six-month period,
the alien bears the burden of showing there is no significant
likelihood of removal in the reasonably foreseeable future. If
the alien successfully makes that showing, "the Government must
respond with evidence sufficient to rebut that showing." Id.
"Therefore, in order to state a claim under Zadvydas, the alien
not only must show post-removal order detention in excess of six
months but also must provide evidence of a good reason to believe
that there is no significant likelihood of removal in the
reasonably foreseeable future." Akinwale v. Ashcroft,
287 F.3d 1050, 1052 (11th Cir. 2002); see also Nma v. Ridge, 286 F. Supp. 2d 469, 474 (E.D. Pa. 2003).
In the case at hand, Petitioner states that his order of
removal became final on January 28, 2005. (Petition ¶ 12; see
also Answer at 3). Assuming that to be accurate, the six-month
presumptively reasonable period of detention ordinarily would
have expired on July 28, 2005. (Petition ¶ 12; Answer at 3).
Under that calculation, Petitioner's filing of his Petition on
May 5, 2004 was premature. Moreover, as discussed above,
Petitioner initially refused both to complete a required
application form for his Chinese travel documents and to
cooperate in providing a fingerprint and a signature Form when
initially served with Form I-229(a). (Anderson Decl. ¶¶ 9-10).
Only on or about April 12, 2005 did Petitioner finally complete
travel document forms for the Chinese Embassy and participate an
interview by the Chinese Consulate. (Anderson Decl. ¶¶ 16-17).
Accordingly, until April 12, 2005, Petitioner had caused the
continued detention and had prevented resolution either through
removal or a finding that removal is unlikely. Significantly, an
extended period of detention under such circumstances is
required: the removal period "shall be extended beyond a period
of 90 days and the alien may remain in detention during such
extended period 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."
8 U.S.C. § 1231(a)(1)(C); see also Pelich v. INS, 329 F.3d 1057 (9th
Cir. 2003) ("Zadvydas does not save an alien who fails to
provide requested documentation to effectuate his removal. The
reason is self-evident: the detainee cannot convincingly argue
that there is no significant likelihood of removal in the
reasonably foreseeable future if the detainee controls the
clock."); Riley v. Green, 149 F. Supp. 2d 1256, 1262 (D. Colo.
2001) (holding that alien who refused to cooperate can be held in
excess of 90-day period); Sango-Dema v. District Director, 122 F. Supp. 2d 213, 221 (D.
Mass. 2000) (same). If the Court calculates the presumptively
reasonable period from the date on which Petitioner finally
cooperated with the authorities, it will expire on November 12,
2005. Under either calculation, Petitioner's filing was
Notwithstanding Petitioner's premature filing, he will shortly
have been in custody beyond six months under both calculations
and the Court will proceed, arguendo, as though the petition
were timely under Zadvydas. As a result, the Court must
consider whether Petitioner has provided evidence of a good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future. In short, Petition
has provided no such evidence. Petitioner's sole effort in this
regard are two unsupported allegations in his Petition: (1)
"[u]pon information and belief, China has stopped issuing travel
documents to detained Chinese nationals with final deportation
orders" and (2) "where, as here, China is not accepted [sic.]
any of its nationals from the United States. . . ." (Petition ¶¶
10, 11(a)). Petitioner has not provided any documents,
declarations, or other evidence to support his contentions that
China has stopped issuing travel document and/or is no longer
accepting its nationals from the United States. Moreover, the
length of time that has passed since the request for travel
documents was made and the continued contact with the Chinese
authorities do not at this time support an inference that travel
documents will not be issued. Accordingly, Petitioner has not
shown good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future and,
therefore, has failed to satisfy his burden. See Joseph v.
U.S., 127 Fed. Appx. 79, 81 (3d Cir. 2005). In contrast, it is
noteworthy that, as discussed above, Respondents have provided
ample evidence demonstrating a significant likelihood of removal in the
reasonably foreseeable future, including that once Petitioner's
necessary cooperation began, the Department of Homeland Security
executed the steps necessary to obtain travel documents for
Petitioner and to prearrange for his transport and that there is
no reason to believe that China will not issue the requisite
travel documents and accept Petitioner. Petitioner's failure to
provide evidence that there is no significant likelihood of
removal in the reasonably foreseeable future requires that the
petition be denied.
For the reasons explained above, the petition is denied and the
case is dismissed with prejudice.*fn3
© 1992-2005 VersusLaw Inc.