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Ling v. Hendricks

United States District Court, D. New Jersey

March 27, 2014

QI XIANG LING, Petitioner,
v.
ROY L. HENDRICKS, Respondent.

OPINION

KEVIN McNULTY, District Judge.

I. INTRODUCTION

Petitioner, Qi Xiang Ling, is currently an immigration detainee who was previously detained at the Essex County Correctional Facility in Newark, New Jersey.[1] Mr. Ling is a citizen of the People's Republic of China. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking his release from immigration detention. For the following reasons, the habeas petition will be dismissed without prejudice.

II. BACKGROUND

Mr. Ling was ordered removed from the United States in 1993 and again in 1998. He remained in the United States unlawfully. On February 17, 2013, Mr. Ling encountered Bureau of Immigration and Customs Enforcement ("ICE") officers who determined he was a fugitive with an outstanding order of exclusion and deportation (albeit under a different name). On March, 19, 2013, Mr. Ling was taken into immigration custody pending his removal.

Thereafter, ICE began the process of attempting to effectuate Mr. Ling's removal from the United States. On March 22, 2013, the deportation officer sent an application for a travel document to the Chinese Consulate. Mr. Ling then completed a Chinese Citizenship Verification Application which was sent to the Chinese Consulate on April 5, 2013.

On May 8, 2013, the deportation officer received an email from Mr. Huang of the Chinese Consulate requesting that Mr. Ling provide information as to where he lived before entering the United States. Mr. Ling told the deportation officer that, before he entered the United States, he last lived in the city of Fuijan. On May 30, 2013, Mr. Huang again requested the name of the village where Mr. Ling lived. Mr. Ling wrote the name of his village in Chinese characters. On June 5, 2013, Mr. Huang stated in an email to the deportation officer that Mr. Ling's identification of the village where he had lived was incorrect.

Thereafter, Mr. Huang interviewed Mr. Ling by telephone on June 11, 2013. Mr. Ling claimed that he did not know the name of the village where he was born. Mr. Huang agreed to speak to Mr. Ling's family to find out more details.

On July 16, 2013, Mr. Ling provided the deportation officer with a telephone number for his family. The number turned out to be invalid. On July 25, 2013, an ICE staff member discussed Mr. Ling's case with the Chinese Consulate. The Chinese Consulate told this staff member that Mr. Ling's birth village needed to be provided before a travel document would be issued. On September 4, 2013, the deportation officer heard from Mr. Huang who stated that Mr. Ling's family never called and that he still did not have Mr. Ling's birth village information.

Mr. Ling completed a second travel document application, which included his birth village, on October 7, 2013. On October 21, 2013, however, the Chinese Consulate advised ICE that Mr. Ling was not telling the truth about his birth village. The Chinese Consulate maintains that the birth village that Mr. Ling has identified is not located where Mr. Ling says it is, and that there is no record of Mr. Ling's birth at that village.

On November 5, 2013, Mr. Ling refused to complete another travel document application and stated that his family would not call the Chinese Consulate. Mr. Ling again refused to complete a travel document application on December 11, 2013. The deportation officer has since sent an email to the Chinese Consulate so that it can interview Mr. Ling again.

On June 15, 2013, ICE's Field Office Director reviewed Mr. Ling's custody status and determined that Mr. Ling would not be released at that time. On September 30, 2013, the Headquarters Post Order Unit of ICE reviewed Mr. Ling's custody status. Again, it was determined that Mr. Ling would not be released at that time. On December 30, 2013, the Field Office Director again reviewed Mr. Ling's detention. He provided Mr. Ling with a Notice of his Failure to Comply, and again determined that Mr. Ling would not be released from custody at that time. ICE explained to Mr. Ling that he failed to assist ICE in its efforts to remove him because he had provided false information to the Chinese Consulate. Thus, ICE informed Mr. Ling that his removal period was being extended and that he would remain in ICE custody until such time as he demonstrated that he was making reasonable efforts to cooperate with ICE's efforts to have him removed.

In December, 2013, this Court received Mr. Ling's federal habeas petition. The petition raises two issues: (1) whether the amount of time Mr. Ling has spent in immigration detention violates Zadvydas v. Davis, 533 U.S. 678 (2001); and (2) whether his constitutional rights have been violated by ICE's failure to personally interview him.

III. DISCUSSION

The Attorney General has the authority to detain aliens in removal proceedings both before and after the issuance of a final order of removal. Post-removal order immigration detention is governed by 8 U.S.C. § 1231(a). Section 1231(a)(1)(A) states that, "except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section ...


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