United States District Court, S.D. New York
June 10, 2004.
MEI YING FONG, Petitioner,
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.