United States District Court, C.D. California
FINAL REPORT AND RECOMMENDATION STAYING PETITION
UNTIL JULY 15, 2017 PENDING REMOVAL DEVELOPMENTS
E. SCOTT United States Magistrate Judge
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.
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.
March 29, 2017, Respondents filed an Answer to the Petition.
(Dkt. 9.) Petitioner filed a reply on April 3, 2017. (Dkt.
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.
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”) 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.
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.
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).
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
(ii) If the removal order is judicially reviewed and if the
court orders a stay of the removal of the alien, the date of