United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Gerald Bruce Lee United States District Judge
This matter is before the Court on Respondents Loretta Lynch, Jeh Johnson, Michael Koransky, Matthew Munroe, James Maddox, David M. Griddle and John R. Kuplinski's ("Respondents") Motions for Summary Judgment (Docs. 23, 40). Petitioner challenges his continued detention by the Department of Homeland Security ("DHS") by way of a habeas corpus action brought pursuant to 28 U.S.C. § 2241. Respondents move for summary judgment on the basis that Petitioner cannot satisfy his burden to demonstrate that there is no significant likelihood of removal in the reasonably foreseeable future, and any putatively unreasonable delay in Petitioner's detention is a result of his own actions.
The issue before the Court is whether Petitioner Ming Hui Lu has established a genuine issue of material fact that his continued detention pending his removal violates due process under Zadvydas v. Davis, 533 U.S. 678 (2001) where Petitioner claims that there is "no significant likelihood of removal in the foreseeable future" because (a) United States Immigration and Customs Enforcement ("ICE") has not secured travel documents for his return to his native People's Republic of China ("PRC"), (b) Respondents are not "actively seeking Petitioner's removal, " (c) ICE has failed to adhere to its internal procedures for conducting custody determinations, and (d) Petitioner's Motion to Reopen pending before the Second Circuit Court of Appeals triggers the Second Circuit's forbearance policy with the Government and therefore, prevents his removal in the foreseeable future.
The Court GRANTS Respondents' Motions for Summary Judgment because Petitioner has not established a genuine issue of material fact that his continued detention pending his removal violates due process under Zadvydas. Specifically, Petitioner is not able to satisfy his burden that there is there is "no significant likelihood of removal in the foreseeable future." Additionally, the record reflects that Petitioner's own actions have contributed significantly to his continued detention. Accordingly, the Court DENIES Petitioner's Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Declaratory and Injunctive Relief, and hereby DISMISSES this action.
Petitioner Ming Hui Lu is a native and citizen of the Peoples Republic of China ("PRC") (Doc. 1). He came to the United States without possessing valid entry documents on or about March 31, 2000, allegedly to escape persecution in PRC (Docs. 1, 24-1). Petitioner conceded his removability from the United States but applied for relief from removal via asylum (Docs. 24, 24-1). On February 13, 2001, an immigration judge denied Petitioner's application for asylum (Docs. 1, 24). On November 18, 2002, the Board of Immigration Appeals ("BIA") affirmed the immigration judge's decision in a per curiam decision (Docs. 24, 24-1). Petitioner moved the BIA for reconsideration, but, on January 22, 2003, the BIA denied his request (Docs. 24, 24-3). Petitioner was not immediately detained; his case was later transferred to the Fugitive Operations Unit (Docs. 24, 24-4).
A. Petitioner's Conviction for Conspiracy in this Court
In 2011, the DHS learned that Petitioner was involved in attempts to obtain a fraudulent permanent resident card and application for adjustment of status (Docs. 24, 24-4). On June 14, 2012, Petitioner, along with twenty-three other individuals, was indicted in this Court for conspiracy to commit immigration fraud (Doc. 24); United States of America v. Li, et al., Case No.
1:12-cr-00258-12 (E.D. Va. June 11, 2012).
On November 13, 2014, Petitioner pleaded guilty to the conspiracy charge (Docs. 24, 24-5). According to the plea agreement, Petitioner acknowledged that his removal was "presumptively mandatory." Id. Accordingly, Petitioner specifically agreed "not to contest any removal proceedings brought against [him]" and to "consent to removal" as necessary. Id. He further waived "any and all rights to appeal, reopen, reconsider, or otherwise challenge" his removal. Id. Petitioner also agreed to waive his right to apply for "any and all forms of relief or protection" from removal, including, but not limited to, "(a) voluntary departure; (b) asylum; (c) withholding of deportation or removal; (d) cancellation of removal; (e) suspension of deportation; (f) adjustment of status; and (g) protection under Article 3 of the Convention against Torture." Id. Petitioner specifically acknowledged and stated that he "has not been persecuted in, and has no present fear of persecution in, China on account of race, religion, nationality, membership in a particular social group or political opinion" and that he "has not been tortured in, and has no present fear of torture in China." Id. The 2014 Plea Agreement was "binding for purposes of any future removal proceeding before the Board of Immigration Appeals, an immigration judge, or the DHS." Id.
On February 2, 2015, Petitioner was convicted and sentenced by this Court to time served with no supervised release (Doc. 24); Li, Case No.
1:12-cr-00258-12 (E.D. Va. Feb. 2, 2015), ECF No. 429. The next day, February 3, 2015, he was transferred to ICE custody because of the final order of removal from 2002 (Docs. 1, 24, 24-12). Petitioner is currently detained in the Virginia Peninsula Regional Jail in Williamsburg, Virginia (Docs. 1, 24).
B. May 8, 2015 Attempt to Remove Petitioner Back to PRC
On February 12, 2015, and March 5, 2015, at ICE's direction, Petitioner completed necessary paperwork to obtain travel papers for removal back to the PRC (Docs. 1, 24, 24-6). Then, on or about March 9, 2015, ICE submitted this paperwork and other information to the PRC Embassy to formally request that travel papers be issued for Petitioner (Docs. 24, 24-6). On April 13, 2015, the PRC Embassy issued travel papers for Petitioner (Docs. 24, 24-4, 24-7). With the necessary paperwork completed, ICE scheduled Petitioner for removal from the United States for May 8, 2015 (Docs. 24, 24-7).
A few days before Petitioner's ninetieth day in ICE custody, Petitioner, through his attorney, requested that ICE render a 90-day redetermination of whether continued detention was necessary (Docs. 1, 24). On May 1, 2015, ICE issued its decision to continue to detain Petitioner, explaining that there was a final order of removal against him and that he was a flight risk. Id.
On May 8, 2015, ICE attempted to remove Petitioner back to the PRC. The sequence of events that day are as follows:
a. Deportation Officer Randall Martinez, who was assigned to oversee Petitioner's removal, arrived at an ICE office located near Fairfax, Virginia, to begin the removal process. He possessed the necessary papers for removal, including a copy of the final removal order and the travel documents obtained from the Embassy of the PRC (Docs. 24, 24-8).
b. Deportation Officer Martinez and other ICE officers transferred Petitioner from his cell to the vehicle for transport to Washington Dulles International Airport ("Dulles") (Docs. 24, 24-8).
c. Deportation Officer Brad Gittus, served a Form 1-205 and Form 1-294 on Petitioner. However, Petitioner refused to sign or affix his thumbprint on the forms. His refusal to do so was noted on the forms (Docs. 24, 24-8).
d. Petitioner indicated to Deportation Officer Martinez that he did not want to go back to the PRC. Deportation Officer Martinez informed Petitioner that he was subject to a final removal order (Docs. 24, 24-8).
e. Upon arrival at Dulles, Deportation Officer Martinez removed the handcuffs from Petitioner and escorted him to a sanitized law-enforcement area, where security screened Petitioner for weapons and contraband. Deportation Officer Martinez then escorted Petitioner to his departure gate, where he would board a commercial flight scheduled to arrive in the PRC (Docs. 24, 24-8)
f. While Petitioner was waiting for his turn to board, he began asking other passengers to borrow their cell phone. Deportation Officer Martinez instructed Petitioner that he would not be able to make any calls from other individuals' cell phones. Petitioner told Deportation Officer Martinez that he was not getting on the flight and attempted to show Deportation Officer Martinez papers from his attorneys to demonstrate that he should not be removed (Docs. 24, 24-8).
g. Deportation Officer Martinez informed the flight attendant at the gate that Petitioner was being removed to the PRC and provided her with a copy of the travel document package. Petitioner was among the first to board the flight, and he proceeded through the jetway to the plane. Deportation Officer Martinez did not board the plane ...