The opinion of the court was delivered by: ORRICK
In an order filed May 3, 1996, in Wang v. Reno, the United States Court of Appeals for the Ninth Circuit ruled: "The appellee's motion for release is granted pending completion of proceedings in the Court of Appeals. Appellant [sic] shall be released upon conditions to be established by the district court."
"Appellee," known to this Court as plaintiff Wang Zong Xiao ("Wang"), comes now before the Court for the purpose of having the Court comply with the Ninth Circuit's order by establishing the conditions under which he is to be released. The Court has had the benefit of a United States Pretrial Services Agency ("Pretrial Services") Memorandum containing its research of alternatives to the detention of Wang and recommending certain conditions. In addition, the parties have provided the Court with comments, both oral and written, addressing the nature and types of conditions to be established.
This case has had a long and shameful history, of which the parties are well aware and which the Court will not here repeat. The essential facts of the case are described at length in the Court's opinion in Xiao v. Reno, 837 F. Supp. 1506 (N.D. Cal. 1993), aff'd, 81 F.3d 808 (9th Cir. 1996).
On October 6, 1993, the Court issued its Opinion and Order permanently enjoining the INS and any other government entity from attempting to remove Wang from the United States or to return him to the custody of the People's Republic of China. Id. at 1564.
With respect to the conditions of Wang's release, Wang is essentially in agreement with the recommendations of Pretrial Services. In addition, Wang has requested that the Immigration and Naturalization Service ("INS") be ordered to provide him with the appropriate documentation reflecting his legal presence in the country and his right to be employed here.
The government vigorously disputes the propriety of, and the Court's authority in, ordering the production of such documentation for Wang. In addition, the government urges the Court to place much more stringent restrictions upon Wang.
Contending that Wang is a flight risk and poses a danger to the community, the government asks the Court to confine Wang to a halfway house, so that Wang is unable to leave at any time, during the first two months following his "release" from custody.
This the Court refuses to do. Such confinement would not, of course, comply with the Ninth Circuit's direction that Wang be released. The Court of Appeals has allowed this Court to place conditions on Wang's release, but those conditions cannot be so restrictive that they deprive Wang of his freedom to the same extent as being in the custody of the United States Marshals Service. To comply with the government's request would be to flout the Ninth Circuit's order. Moreover, given the fact that Wang has already been kept in custody, not charged with any crime, since 1988, the Court is astonished that the government would propose such an arrangement.
The government is strongly opposed to what it characterizes I as an "end run around normal immigration procedures." At the hearing, the government's counsel also contended that Wang cannot now argue that this Court has jurisdiction to order the issuance of immigration papers, because Wang has already argued successfully, both to this Court and to the Court of Appeals, that this ...