Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

FONG v. ASHCROFT

United States District Court, S.D. New York


June 10, 2004.

MEI YING FONG, Petitioner,
v.
JOHN ASHCROFT, Attorney General of the United States of America, Respondent.

The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge

OPINION AND ORDER ON RECONSIDERATION

The government asks me to reconsider my Opinion and Order dated April 30, 2004, granting habeas corpus. With one exception, I deny the government's motion.

1. The government argues that at the time my Stay Order was issued, Fong was on a "sealed" airplane, preventing the Order from being executed. The government contends that because the plane was "sealed," notice of my Stay Order was ineffective under Local Civil Rule 83.4(e). But the government has not adequately proved that the doors were "sealed," or that any legal consequence derives from such a condition. The Declaration of the Assistant United States Attorney stated that shortly after 1:45 p.m. on September 18, 2003, an unnamed agent of the Bureau of Immigration and Customs Enforcement ("ICE") "informed this Office by telephone that Fong could not be removed from her aircraft because it had already been sealed for take-off." This statement is hearsay; further, it does nothing to show that Fong was "no longer in the government's custody" or that the airplane had "left the terminal" at the time my Stay Order was transmitted to the office of the United States Attorney. Local Civil Rule 83.4(e). These, not "sealing," are the material concepts provided by the Local Civil Rule. In the absence of a showing to the contrary, I find that Fong was still in the government's custody, and that Local Civil Rule 83.4 is inapplicable, since the airplane had not "left the terminal" when the Stay Order was transmitted to the Assistant United States Attorney. See Singh v. Waters, 87 F.3d 346, 349 (9th Cir. 1996) (deportation was unlawful where it occurred after a stay had been ordered; alien on plane in flight considered still in custody); Rantesalu v. Cangemi, 2004 U.S. Dist. Lexis 7189, at *13-*15, 2004 WL 898584, at *5 (D. Minn. April 23, 2004) (alien had moved for a stay and requested expedited review; considered in custody until plane arrived in Jakarta).

  Moreover, the government's argument is disingenuous. The government knew, well before Fong was placed aboard the airplane, that an Order to Show Cause containing a provision for a stay was on my desk, and that I had refrained from signing the stay, and had deferred hearing the parties until 3:00 p.m. that afternoon, in order to accommodate the Assistant United States Attorney and give him an opportunity to review the matter before having to present the government's position. The government could have refrained from bringing Fong to the airport or putting her aboard the plane when the Assistant notified my Chambers, at approximately 1:00 p.m. that day, that Fong's airplane was scheduled to leave at 1:55 p.m, or when I signed the Order to Show Cause and Stay, at 1:35 p.m.

  The government cannot hinder execution of a properly issued writ of habeas corpus by transferring custody of a petitioner, or placing her aboard an airplane. The rule of Mississippi Valley Barge Line Co. v. United States, 273 F. Supp. 1, 6 (E.D. Miss. 1967), aff'd, 389 U.S. 579 (1968), is very much in point. 2. The government supplements the administrative record by presenting further documentation pertaining to the Notice to Appear ("NTA") which was allegedly sent to Fong, but perhaps not received by her, in advance of her February 11, 1998 removal hearing. The supplemental documentation purports to be a more complete copy of the NTA that shows the date, time, and place scheduled for Fong's removal hearing. The government apologizes for its inadvertence in failing to include these materials in the record initially filed.*fn1

  The late produced documentation, supplementing the record that I summarized in my Opinion, does not alter my decision. The government violated Fong's due process rights and its own procedures by failing to wait the 72 hours required by regulation and by flouting an Order of this Court.

  3. The government argues that the grounds for staying removal have not been satisfied, and that the petitioner has not shown by clear and convincing evidence that the order providing for her removal was invalid. The government misconceives the narrow scope of my opinion. Habeas corpus was granted, and Fong was ordered returned to the United States, because the government denied Fong her constitutional right to due process of law. She was ordered returned in order to be able to pursue the remedies that she could have pursued within the 72-hour period that the regulations gave her, including taking the steps that the government argues she should have taken. As I ruled, "[s]he is entitled to pursue whatever remedies she could have pursued in the 72 hours the regulations gave her, and such consequences that would normally arise from pursuit of those remedies." Opinion at 14-15. 4. The government asserts that I overlooked evidence in the record demonstrating that Fong's adjustment application had been determined, and denied, on August 21, 2003, before her removal on September 18, 2003. But the effect of this document is unclear. We do not know whether Fong knew or was on notice of the letter or August 21, 2003, nor what proper objections she may have asserted with respect to it. The denial of Fong's adjustment application was predicated upon the legality of her in absentia removal order. To the extent that she succeeds in challenging the effectiveness of that order, she may be able to challenge as well the denial of her adjustment application, and to seek the benefits of the application that she and her daughter filed.

  Based on the August 21, 2003 denial of Fong's adjustment application, the government asserts that she had been on notice of her in absentia removal order for no less than 27 days prior to her removal on September 18, 2003. But there is no evidence of that in the record. While the record shows that the government mentioned Fong's February 11, 1998 in absentia removal order in its August 21, 2003 denial letter, it fails to show that the August 21, 2003 letter was sent or received. In an affidavit dated February 5, 2004, Fong's daughter, Oi Wing Chan, states that neither she nor her mother ever saw the August 21, 2003 letter until after this case started, despite having met with immigration officials on August 21 and 22 and September 17, 2003.

  5. The government contends that the 72-hour period is to be computed beginning from the time the final order of removal was served on the alien, rather than from the time she was taken into custody. The government relies on 8 C.F.R. § 241.33(b), which provides that "the order shall be executed no sooner than 72 hours after service of the decision, regardless of whether the alien is in Service custody. . . . Nothing in this paragraph shall be construed, however, to preclude assumption of custody by the Service at the time of issuance of the final order." But the government cannot deport an alien in less than 72 hours from the time that the alien is taken into custody. 8 C.F.R. § 241.22 provides 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 thereto." Taking the two provisions together, and interpreting them consistently, an alien cannot be removed from the United States without consent before the later of the date of custody or the date of service of the final order of removal. This reading comports with the purpose of the 72-hour provisions, to satisfy due process by allowing proper time for the alien to raise any applicable administrative or judicial challenges.

  6. The government asks me to reconsider the penultimate paragraph in the "Exhaustion" section of my Opinion and Order. See Opinion at 14 (paragraph beginning "In any event, it is doubtful that exhaustion requires a motion to reopen."). The government observes that this paragraph is unnecessary for my decision and may adversely affect administrative procedures. After reviewing the matter, I agree that this paragraph is unnecessary for my decision, and I therefore withdraw it from my Opinion and Order.

  7. The other arguments made by the government have all been discussed in my Opinion and Order. The government fails to present any new facts or authorities to persuade me to change my views. For the reasons stated, the government's motion for reconsideration is denied, except insofar as I withdraw from my prior Opinion and Order the paragraph noted in item 6 above.

  SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.