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PAN v. ASHCROFT

June 9, 2005.

PENG CHENG PAN, Petitioner,
v.
JOHN ASHCROFT, Attorney General, WILLIAM CLEARY, Acting Detention and Removal Field Office Director, DHS, ICE Respondents.



The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge

DECISION AND ORDER

Now before the Court are petitioner's petition for a writ of habeas corpus [#1], pursuant to 28 U.S.C. § 2241 (2005), petitioner's motion for a preliminary injunction [#3], petitioner's motion for summary judgment [#9], and petitioner's motion for bail [#12]. For the reasons that follow, petitioner's petition is dismissed and the motions are denied.

BACKGROUND

  The facts of this case are not in dispute. Petitioner is a citizen of China, who entered the United States illegally on November 20, 1991. On October 11, 1995, petitioner was convicted in State court of petit larceny and received a conditional discharge. Subsequently, on September 12, 1996, petitioner was convicted in Federal court of Racketeering and Extortion, and was sentenced to 110 months of imprisonment on February 13, 2004 and three years of supervised release. Upon completion of his Federal confinement, petitioner came into the custody of the Bureau of Immigration and Customs Enforcement ("BICE"), Department of Homeland Security ("DHS"). On March 2, 2004, an immigration judge ordered petitioner's removal from the United States to the People's Republic of China, pursuant to Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) (alien present without being admitted or paroled), INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182 (a)(2)(A)(i)(I) (alien committing a crime of moral turpitude), and INA § 212(a)(2)(B), 8 U.S.C. § 1182 (a)(2)(B) (alien committing two or more criminal offenses). Petitioner did not appeal the order, and presently remains detained at the Buffalo Federal Detention Facility, awaiting deportation to China. (See Aff. of Kenneth Heist [#7], at 2.)

  Pursuant to 8 C.F.R. § 241.4, petitioner's continued detention status was reviewed by DHS. In that regard, on June 1, 2004, DHS sent petitioner a notice entitled "Decision to Continue Detention Following Interview," which stated in relevant part:
You are not being released because:
On October 11, 1995, you were convicted of Petit Larceny and received a conditional discharge. On September 12, 1996, you were convicted of Racketeering and Extortion. For these crimes, you were sentenced to 110 months confinement and 3 years supervised release.
You have failed [to] demonstrate that there is no significant likelihood of your repatriation in the reasonably foreseeable future. The Service*fn1 has been able to repatriate citizens of China in the last year. A request for a travel document to facilitate your removal from the United States to the People's Republic of China is currently pending with the Chinese Consulate in New York. Once this travel document is received, arrangements will be made to remove you to the People's Republic of China.
(Aff. of Kenneth Heist, [#7], Ex. C.) Subsequently, on July 20, 2004, the Office of Detention and Removal Operations of the DHS sent petitioner a notice entitled "Decision to Continue Detention," which again denied him release from custody. This notice contained similar reasoning as the June 1, 2004 notice, but further noted:
A request for a travel document was submitted to the Consulate of China and the process to verify your identity is ongoing. The government of China regularly issues documents to effect the repatriation of its nationals. There is no indication at this time that a certificate will not be issued for your repatriation. Furthermore, your convictions for Racketeering and Extortion and your arrests for Robbery 1st degree, Robbery 2nd degree and Grand Larceny 2nd Degree shows a violent criminal history. You are also a known member of the Fukienese Flying Dragons a criminal organization which achieves it's goals by violence. Based on all of these facts, you are to be detained in custody as ICE*fn2 deems you to be a flight risk and a threat to the community.
(Aff. of Kenneth Heist, [#7], Ex. D.) Although, petitioner received notice of both reviews and had the opportunity to contest the likelihood of his repatriation to China in the reasonably foreseeable future, he failed to do so.

  Petition for Writ of Habeas Corpus

  On September 8, 2004 petitioner, acting pro se, filed his habeas petition and submitted his motion for preliminary injunction. Petitioner argues three main points in his petition. First, he submits that his continued detention is a statutory violation, in that it contravenes 8 U.S.C. § 1231(a)(b) (Pet., at 6) as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001).*fn3 Second, petitioner states, his continued detention is a substantive due process violation through a deprivation of the core liberty interest in freedom from bodily restraint. (Pet., at 7.) Third, petitioner suggests that he has been denied the timely and meaningful opportunity protected by the Due Process Clause of the Fifth Amendment to demonstrate that he should not be detained because, "[t]he failure [of] respondents to provide a neutral decision-maker to review the continued custody of Petitioner violates Petitioner's right to procedural due process." (Pet., at 8.)

  Respondents maintain that petitioner's continued detention is lawful and in accordance with the rules and regulations established by Congress in response to the decision of the Supreme Court in Zadvydas. (Resp't's Mem. in Opp'n to Habeas Pet. and Mot. for Prelim. Inj., at 3.) Thus, respondents maintain that the petition should be denied for failure to state a claim upon which relief can be granted.

  Respondents also submit that petitioner's claim that he was denied due process is without merit. (Resp't's Mem. in Opp'n to Habeas Pet. and Mot. for Prelim. Inj., at 14.) In support of their argument, respondents rely on Wang v. Ashcroft, 320 F. 3d 130, 146 (2d Cir. 2003), a case in which the Second Circuit ruled that an alien's continued detention did not jeopardize his due process rights as long as removal is reasonably foreseeable. Here, respondents submit that, since petitioner's removal is reasonably foreseeable, he has not alleged any basis for this Court to find that his substantive due process rights were violated. (Resp't's Mem. in Opp'n to Habeas Pet. and Mot. for Prelim. Inj., at 14.) In addition, respondents assert petitioner was afforded the opportunity to be heard during the administrative reviews of his detention, but failed to avail himself of such an opportunity for procedural due process (Resp't's Mem. in Opp'n to Habeas Pet. and Mot. for Prelim. Inj., at 16.)

  Motion for Preliminary Injunction

  In addition to filing his habeas petition on September 8, 2004, petitioner also filed a motion for preliminary injunction. In this application, petitioner requests his release from BICE's custody pending resolution of his writ of habeas corpus or his repatriation to China. More specifically, petitioner challenges his continued detention on the grounds that he poses no risk of flight or risk to the community;*fn4 he has not engaged in any violent or threatening behavior while in BICE detention; he has a cousin who is a United States citizen and is able to offer him employment in the United States; and that the balance of harm favors his release.

  On the other hand, respondents argue that petitioner is not entitled to injunctive relief for two reasons. First, respondents state that petitioner cannot establish that he is likely to succeed or that there are sufficiently serious questions going to the merits of his claim, since his continued detention is pursuant to statutory authority and the immigration proceedings have complied with Zadvydas. Second, respondents assert that due to petitioner's violent criminal history, as evidenced by his federal convictions for racketeering and extortion, and his willingness to disregard the laws of the United States, there is a risk of harm to the public if petitioner were released. Respondents submit that the risk of harm to the public counter-balances any harm to petitioner caused by his continued detention as evidenced by his felony conviction for racketeering and extortion. (Resp'ts' Mem. in Opp'n to Habeas Pet. and Mot. for Prelim. Inj., at 17.)

  Motion for Summary Judgment

  On December 2, 2004, petitioner moved for summary judgment and argued that he should be released from custody pursuant to the authority of Zadvydas on the grounds that there is no genuine issue as to any material fact, and he is entitled to judgment as a matter of law. Preliminarily, respondents contend that petitioner's motion should be denied because he failed to comply with the procedural requirements for bringing a summary judgment motion. Alternatively, respondents argue that, if the Court is inclined to consider the motion given petitioner's pro se status, it should deny his application because he has failed to demonstrate that there ...


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