The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge
OPINION AND ORDER
FOR RETURN OF ALIEN
Petitioner Mei Ying Fong petitions for habeas corpus to order her
returned to the United States. She complains that the Bureau of
Immigration and Customs Enforcement ("ICE") removed her from the United
States in less than 72 hours from the time she was arrested, contrary to
applicable Regulations and in violation of a court order, and that she
will be prejudiced in seeking relief from ICE unless she is returned to
the United States. I grant her petition.
Mei Ying Fong is a 56-year-old Chinese citizen. She entered the United
States on December 18, 1995, on a temporary non-immigrant visitor's visa,
which permitted her to stay in the country for six months, until June 17,
On March 12, 1996, before her visa expired, Fong applied for asylum,
claiming that she would be placed in danger if she were to return to China.
She alleged that she had released a woman from custody to prevent a
forced abortion of her seven-month old fetus under the government's
one-child policy, that she was jailed for three months by the Chinese
government, and that she feared future retaliation if she were to return
Fong's affidavit in support of her petition for habeas corpus alleges
that her application for asylum was prepared by Mandy Chen, a travel
agent, that she did not authorize him to file the application, and that
despite assuring Fong that her application would not be submitted, he
nevertheless submitted it on March 20, 1996. Fong alleges that Chen set
down on the application a false address, One East Broadway, #3C, as
Fong's, and also recorded the travel agency's address, 17 East Broadway,
2nd Floor, and that consequently she did not receive any of the notices
that were given in response to the application.
The INS scheduled an interview with Fong regarding her asylum
application for April 25, 1996, but adjourned it to May 28, 1996 at Fong's
request. Fong claims in her affidavit that the travel agency forged the
request for adjournment and that she never saw or signed it. She did not
appear on May 28, 1996, and her application for asylum was denied.
Almost a year and a half later, on October 31, 1997, the INS issued
Fong a Notice to Appear in Removal Proceedings (NTA). The NTA failed to
state the date, time, or place of any scheduled hearings. A hearing on
Fong's removal was held on February 11, 1998, although there is no
evidence that Fong was given notice of that hearing date. Fong did not
appear, and the Immigration Judge issued an in absentia removal order,
ordering that Fong be removed from the United States for the reasons
stated in the NTA. The record does not reflect that notice of the order
of removal was given to Fong. Over a year and a half later, on September 23, 1999, the INS gave
notice to Fong to appear for deportation on November 2, 1999, mailing the
notice to One East Broadway, #3C, the address listed as Fong's on the
asylum application. Fong did not appear, and nothing occurred with regard
to her deportation until September 17, 2003, in the context of an
altogether different proceeding.
On June 17, 2002, Fong's daughter, Oi Ying Chan, an American citizen,
filed an 1-130 petition to classify Fong as the immediate relative of a
United States citizen. Based on that petition, Fong filed, on October 10,
2002, a Form 1-485, an application for an adjustment of her immigration
status to that of a lawful permanent resident. On June 23, 2003, ICE, a
successor to the INS,*fn2 gave notice to Fong to appear in its New York
office on August 21, 2003, for a hearing on the adjustment application,
mailing the notice to the address that Fong had listed on her adjustment
application, 90-26 51st Avenue, Elmhurst, New York.
Fong failed to appear on August 21, 2003, but she requested a
rescheduling, and she duly appeared on the rescheduled date, September
17, 2003. No hearing on Fong's adjustment application was held. Instead,
ICE took Fong into custody for the purpose of removing her from the
On the evening of September 17, 2003, the day she was taken into
custody, Fong's counsel filed the instant habeas corpus petition under
28 U.S.C. § 2241, bringing it by Order to Show Cause. I received it in
Chambers the morning of September 18, 2003, and, in order to hear the
government as well, scheduled a hearing for 3:00 p.m. the same day.
Sometime after 1:00 p.m., however, the Assistant United States Attorney informed
my Chambers by telephone that Fong was to be put on an airline scheduled
for departure to Hong Kong at 1:55 p.m. that same day. When it appeared
that an informal effort to defer her departure until after the 3:00 p.m.
hearing would not succeed, at 1:35 p.m., I signed the Order to Show
Cause, ordering a temporary stay of petitioner's removal pending a
hearing. But the order was not heeded; ICE officials informed the parties
that the plane was sealed and ready for take-off. The airplane departed
on schedule, at 1:55 p.m., with Fong aboard.
Counsel appeared in court that afternoon without Fong, and again on
December 22, 2003 and February 9, 2004. I now grant the petition, for the
reasons discussed below.
The Illegality of Fong's Removal
1. Denial of Due Process Removal in Contravention of Regulations
The Bureau's governing regulations provide that "[a]n alien taken into
custody either upon notice to surrender or by arrest shall not be
deported less than 72 hours thereafter without his or her consent."
8 C.F.R. § 241.22. Fong was taken into custody on September 17, 2003,
and removed from the United States the day after, well short of the
72-hour period provided by the regulations. The government argues that
the 72-hour requirement applies to cases of ...