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Zhao v. Kelly

United States District Court, C.D. California

April 27, 2017

RUI CHANG ZHAO, Petitioner,
v.
JOHN F. KELLY, ET AL., Respondents.

          FINAL REPORT AND RECOMMENDATION STAYING PETITION UNTIL JULY 15, 2017 PENDING REMOVAL DEVELOPMENTS

          KAREN E. SCOTT United States Magistrate Judge

         This Final Report and Recommendation is submitted to the Honorable Beverly Reid O'Connell, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

         I. INTRODUCTION

         Petitioner is a detainee in the custody of the United States Immigration and Customs Enforcement (“ICE”). On January 21, 2017, Petitioner filed a Petition for Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241. (Dkt. 1.) Petitioner contends that he is being indefinitely detained in violation of Zadvydas v. Davis, 533 U.S. 678 (2001).

         On March 29, 2017, Respondents filed an Answer to the Petition. (Dkt. 9.) Petitioner filed a reply on April 3, 2017. (Dkt. 10.)

         II. FACTUAL BACKGROUND

         Petitioner is a citizen of China and has been a legal permanent resident in the United States since 2004. (Dkt. 9-1 [Declaration of Deportation Officer Jeremy Calcador].) On July 1, 2015, Petitioner was convicted in the Los Angeles County Superior Court of possession of marijuana for sale. (Id.) On December 27, 2015, Petitioner was served with a notice to appear charging him with removability due to drug-related violations. (Id.) On January 28, 2016, an immigration judge ordered Petitioner removed to China. (Id.) On February 29, 2016, Petitioner filed an appeal of the immigration judge's opinion, which the Board of Immigration Appeals dismissed on May 23, 2016. (Id.) On June 3, 2016, Petitioner filed a petition for review of the Board of Immigration Appeals' decision with the Ninth Circuit. The Ninth Circuit entered a temporary stay of removal. See Rui Zhao v. Loretta Lynch, Case No. 16-71764, at Dkt. 1 (9th Cir.). Petitioner later moved to dismiss the petition for review. The Ninth Circuit dismissed the petition and lifted the stay of removal on July 8, 2016. Id. at Dkt. 9.

         Since July 2016, ICE has been involved in regular communications with China with regard to Petitioner's travel documents. (Dkt. 9-1 at 2.) On July 26, 2016, Petitioner's travel document request was mailed to the Consulate of China in Los Angeles. (Id.) In August 2016, a deportation officer emailed the Chinese consulate to enquire about the status of Petitioner's travel documents. (Id.) The Chinese consulate did not respond. (Id.) On September 8, 2016, the officer was informed by the U.S. Headquarters Office of Removal and International Operations (“Headquarters”)[1] that China was currently reviewing cases for issuance of travel documents. On September 13, 2016, the deportation officer emailed the Chinese consulate, and again received no response. One week later the officer sent another email, to which the Chinese consulate replied and “indicated that China was verifying [Petitioner's] status.” Id. at 2. In October 2016, the officer was informed by Headquarters that an “Assistant Attache of Removals” in Beijing is “working with [the] Government of China in Beijing on repatriation efforts.” Id.

         From October 2016 to March 29, 2017, communications between the deportation officer and the Chinese consulate followed the same pattern. The officer would email the consulate approximately once a month inquiring about Petitioner's travel documents. If the consulate responded, they would only say that China was “verifying [Petitioner's] status.” See Id. at 3-4. Occasionally, Headquarters would inform the officer that the Department of Homeland Security, the U.S. Department of State, and the Assistant Attaché of Removals are “working with [the] Government of China in Beijing on repatriation efforts” and on receiving travel documents from China. Id. at 2-4.

         III. APPLICABLE LAW

         A district court may issue habeas corpus relief where a petitioner demonstrates that he or she is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Section 2241 confers jurisdiction upon federal courts to consider challenges to the detention of aliens in removal proceedings. See Demore v. Kim, 538 U.S. 510, 517-18 (2003); Zadvydas, 533 U.S. at 637. Although the READ ID Act of 2005, Pub.L.No. 109-13, Div. B., 119 Stat. 231 (May 11, 2005) eliminated district court jurisdiction over habeas corpus petitions challenging final orders of removal, district courts retain jurisdiction over section 2241 petitions challenging the legality of an alien's detention. See Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006).

         “When a final order of removal has been entered against an alien, the Government must facilitate that alien's removal within a 90-day ‘removal period.'” Thai v. Ashcroft, 366 F.3d 790, 793 (9th Cir. 2004) (citation omitted); 8 U.S.C. § 1231(a)(1)(A). The removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final;
(ii) If the removal order is judicially reviewed and if the court orders a stay of the removal of the alien, the date of ...

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