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Chen v. Holder

United States District Court, W.D. Louisiana

March 4, 2015

HUI GUI CHEN
v.
ERIC HOLDER, ET AL., Section P

REPORT AND RECOMMENDATION

C. MICHAEL HILL, Magistrate Judge.

Before the court is Hui Gui Chen's petition for writ of habeas corpus filed on December 1, 2014 pursuant to 28 U.S.C. § 2241. Petitioner is in the custody of the Department of Homeland Security/Bureau of Immigration Customs Enforcement (DHS/ICE). He is presently detained at the South Louisiana Correctional Center in Basile, Louisiana. By this petition, Petitioner seeks review of his detention in immigration custody.

This matter has been referred to the undersigned magistrate for review, report, and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B).

FACTUAL BACKGROUND

Petitioner, a citizen of China, was convicted of conspiracy to commit robbery and use of a firearm during and in relation to a crime of violence in 2008, for which he was sentenced to serve a total of 84 months imprisonment. Petitioner was taken into ICE custody on May 9, 2014 after being released from prison. See Government Exhibits A-1, A-2 and A-3.

On July 11, 2014, a Notice of Intent to Issue a Final Administrative Removal Order was issued charging that petitioner was subject to removal because he had been convicted of an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The Notice was served on Petitioner on July 21, 2014. See Government Exhibit A-5. At that time, a travel document request was also sent to the Consul General of the People's Republic of China. See Government Exhibit A-4.

On October 8, 2014, a Final Administrative Removal Order was issued ordering that petitioner be removed to China. See Government Exhibit A-6. Petitioner did not seek judicial review. Accordingly, his Removal Order became final that date.

A second request for a travel document was sent to the Consulate General for the People's Republic of China on November 3, 2014. See Government Exhibit A-7. On January 21, 2015, assistance from the "Chinese POC" in Houston, Texas was requested. See Government Exhibit A-9, pg. 4.

A decision to Continue Detention was issued on January 26, 2015. This decision was based on Petitioner's criminal history which was deemed to place the well-being of the public at risk, and the expectation that Petitioner's removal would be effected in the reasonably foreseeable future. See Government Exhibit A-8.

Petitioner signed his petition for habeas relief on November 20, 2014, seeking his release from custody under an order of supervision on grounds that his post-removalorder custody violates the Constitution and principles set forth by the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

On January 18, 2015, the Court ordered the respondents to respond to this petition. The respondents have filed a response wherein they argue that the petition is premature. For the following reasons, the undersigned agrees.

LAW AND ANALYSIS

The only issue before this court is Petitioner's challenge to his continued detention in the custody of immigration officials.

Because Petitioner is under a final order of removal, his detention is governed by § 241 of the Immigration & Nationality Act (INA). See Byfield v. Ashcroft, 74 Fed.Appx. 411 (5th Cir. 2003); Agyei-Kodie v. Holder, 418 Fed.Appx. 317, 318 (5th Cir. 2011). INA § 241(a)(1)(A) generally provides the Attorney General with 90 days to effect the removal of an alien from the United States after an order of removal becomes final.[1] See INA § 241(a)(1)(A) and (B). This period of 90 days generally begins on the date an Order of Removal becomes administratively final and is referred to as the "removal period." See Id. In this case, Petitioner's Removal Order became ...


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