Bao v. Lynch, 16-CV-6724 (CJS)

HUA LIU BAO, Petitioner, v. LORETTA LYNCH, Attorney General of theUnited States of America, et al., Respondents.

16-CV-6724 (CJS)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 29, 2017

DECISION AND ORDER

INTRODUCTION

Hua Liu Bao ("Bao" or "Petitioner"), a citizen of the Peoples Republic of China ("China"), is subject to a final order of removal, as an alien who entered the United States without inspection. Bao, who is not appealing such order or opposing his removal in any way, has been in the custody of the Department of Homeland Security ("DHS") for almost one year, while waiting for DHS to obtain the travel documents required to remove him to China. In this action filed pursuant to 28 U.S.C. § 2241, Bao argues, inter alia, that his continued detention in Respondents' custody is unreasonable and unlawful, based, inter alia, on the Supreme Court's decision in Zadvydas v. I.N.S., 533 U.S. 678, 121 S.Ct. 2491 (2001) ("Zadvydas"). The Court disagrees, and denies the application for writ of habeas corpus.

BACKGROUND

Unless otherwise noted, the following facts are taken from the Bao's petition and Respondent's Answer and Return, and are not disputed. Bao, born in 1962, is a native and citizen of China, who entered the United States illegally in 1995. On October 26, 1995, Petitioner applied for asylum in the United States. On January 9, 1996, the United States denied the application for asylum. On January 23, 1996, the United States served Bao with an order to show cause, charging him, under former INA § 241(a)(1)(B), as being an alien who entered the United States without inspection. On June 19, 1996, an Immigration Judge granted Bao's application for voluntary departure in lieu of removal, and directed Bao to voluntarily depart from the United States by March 19, 1997. However, Bao remained in the United States. On April 5, 1999, Bao filed a motion to re-open his removal proceeding, but on April 20, 1999, the Immigration Judge denied the application. Bao appealed, but on May 23, 2002, the Board of Immigration Appeals ("BIA") dismissed the appeal. Bao filed a motion for reconsideration, which the BIA denied.

Nevertheless, Bao remained in the United States. In that regard, it appears that because the Department of Homeland Security ("DHS") did not remove Bao within a certain time, on January 7, 2010, it released him on an Order of Supervision.¹ Bao remained free pursuant to such order until 2014, when he was arrested and charged with various crimes including criminal possession of a forged instrument. In 2015, Bao was convicted, in New York State, Albany County Court, of Criminal Possession of a Forged Instrument in the Second Degree, a Class D felony, for which he served a sentence in the Albany County Jail.²

On April 13, 2016, upon his release from jail, Bao was taken into custody by DHS, where he remains to this day. On April 21, 2016, DHS sent a "presentation packet" to the Chinese Consulate, requesting a travel document for Bao. The request as supported by various documentation of Bao's identity, including copies of Bao's birth certificate and passport.

In July 2016, DHS reviewed Bao's custody status and continued his detention. Inthat regard, on July 12, 2016, DHS issued Bao a "Decision to Continue Detention," which reviewed the history of Bao's case, including his failure to voluntarily depart and his subsequent criminal conviction, and noted that there was only "minimal evidence" of Bao's community ties and "no evidence" of non-governmental sponsors or employment prospects in the U.S.. DHS concluded that, "[g]iven [Bao's] past criminal activity and the absence of a strong support network," he might be a danger to the community and a flight risk.³ The decision further indicated that if Bao remained in custody past October 10, 2016, jurisdiction for his custody review would be transferred to the Headquarters Post-order Custody Review Unit ("HQPOCRU").

HQPOCRU subsequently conducted a review of Bao's detention, that included a personal interview of Bao at the Buffalo Federal Detention Facility, and an opportunity for Bao to submit information for consideration.⁴ On October 26, 2016, HQPOCRU issued a "Decision to Continue Detention," noting that Bao had entered the United States without permission and then failed to voluntarily depart as ordered. The decision further stated, in pertinent part: "[DHS] is currently working with the government of China to secure a travel document for your removal from the United States. A travel document from the Government of China is expected; therefore you are to remain in [DHS] custody at this time."⁵

In January 2017, HQPOCRU conducted another review of Bao's detention, and on January 24, 2017, HQPOCRU issued a "Decision to Continue Detention," which noted that Bao had entered the United States without permission, failed to voluntarily depart, and thenbeen convicted of a felony.⁶ The decision reiterated that DHS was working to obtain a travel document and expected that such document would be provided by China.

Bao has no appeals pending, and there is no impediment to his removal to China, other than China's willingness to provide a travel document.

On November 4, 2016, Bao, proceeding pro se, filed the subject petition [#1], which purports to assert five separate claims: 1) "constitutional framework" (He contends that he is not dangerous, is not a flight risk, and cannot be removed, therefore his continued detention violates "substantive and federal due process"); 2) "procedural due process violation" (He contends that his "continued indefinite detention without a hearing" violates his right to procedural due process); 3) "substantive due process violation" (He contends that his detention violates substantive due process because he is neither a flight risk nor a danger to the community); 4) "detention in violation of the statute and regulations" (He contends that his continued detention violates 8 U.S.C. § 1231); and 5) "abuse of discretion" (He contends that on July 12, 2016, the Government conducted a "90-day custody review," and decided to keep him in custody "without rational justification and based on a legally insufficient standard.").

The Court observes that several of these claims are duplicative. In particular, claims one-through-three are really just variations of a single claim, namely, that Bao's continued detention beyond six months violates his right to procedural due process and substantive due process.⁷ Similarly, claims four and five both allege that Respondents violated 8 U.S.C. § 1231 by failing "to conduct a thorough review of Bao's eligibility for release/parole after 90 days . . . or 180 days," and instead issue "rubberstamp denials" that were "withoutrational justification and based on a legally insufficient standard." Accordingly, the five claims in the petition really boil down to just two claims: 1) Bao's continued detention, beyond six months, when there is no likelihood that he will be removed to China, violates his federal procedural- and substantive-due process rights; and 2) Respondents violated 8 U.S.C. § 1231 by failing "to conduct a thorough review of Bao's eligibility for release/parole after 90 days . . . or 180 days" and by failing to apply the proper standards.

On December 22, 2016, Respondents filed an Answer and Return [#4] to the Petition and a Memorandum of Law [#5]. The Memorandum of Law [#5] includes the following points: 1) Bao's continued detention is lawful under 8 U.S.C. § 1231(a) and Zadvydas, since he has not shown that his removal is unlikely to occur in the reasonably foreseeable future; 2) DHS has been in "active and regular communication" with China regarding the request for travel documents; 3) China is in the process of verifying Bao's identity, which "generally takes a number of months,"⁸ and will not issue a travel document until such investigation is completed; 4) China has not indicated that it is unwilling to accept Bao; and 5) DHS has reviewed Bao's detention as required by the pertinent statute and regulation (8 U.S.C. § 1231(a)(6) & 8 C.F.R. § 241.4) and has afforded Bao the due process to which he is entitled. Respondents maintains that the Court should dismiss the petition.

Regarding DHS's communications with China, the record indicates that in addition to DHS's initial request for a travel document in April 2016, it has contacted the Chinese Consulate about the matter on sixteen (16) occasions.⁹ Apparently, most of these communications were by email. In response, DHS has received two emailed responses from the Chinese Consulate; first, on October 14, 2016, DHS received an email indicatingthat the request for a travel document was "pending", and second, on February 16, 2017, DHS received an email indicating that the request was "under review."¹⁰

DHS further indicates that China "has regularly issued travel documents for its citizens who have been ordered removed from the United States."¹¹ On that point, the Court notes that according to DHS's "Yearbook of Immigration Statistics," https://www.dhs.gov/immigration-statistics/yearbook/2015, table 41, China has recently accepted the following numbers of aliens from the United States: 2015 (634 total, of which 117 were criminals); 2014 (659 total, of which 137 were criminals); 2013 (788 total, of which 171 were criminal) and 2012 (1039, of which 208 were criminals).

On January 17, 2017, Bao, who is now represented by an attorney, filed a memorandum of law [#8] in response to the Answer and Return. Bao disputes that the communications between DHS and China suggest that his removal is likely to occur in the reasonably foreseeable future. Bao also cites a number of district-court decisions from jurisdictions outside of the Second Circuit which, he maintains, support his contention that he has made a sufficient showing as required by Zadvydas.¹² Bao admits that there is no institutional barrier to the removal of Chinese citizens to China generally,...