1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HAU CHEONG CHAN, Case No.: 24-CV-1315 JLS (MSB)
12 Petitioner, ORDER REQUIRING FURTHER 13 v. RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS 14 ALEJANDRO MAYORKAS, Secretary, PURSUANT TO 28 U.S.C. § 2241 United States Department of Homeland 15 Security; et al.,
16 Respondents. 17
18 Presently before the Court is Petitioner Hau Cheong Chan’s Petition for a Writ of 19 Habeas Corpus Under 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). Also before the Court are 20 Respondents Merrick Garland (United States Attorney General), Christopher LaRose 21 (Warden, Otay Mesa Detention Center), Patrick Lechleitner (Acting Director, United 22 States Immigration and Customs Enforcement), Alejandro Mayorkas (Secretary, United 23 States Department of Homeland Security), and Jesus Rocha’s (Acting Field Office 24 Director, San Diego Field Office, United States Immigration and Customs Enforcement) 25 (collectively, “Respondents”) Return to Petition (“Return,” ECF No. 5) and Petitioner’s 26 Traverse (“Traverse,” ECF No. 6). 27 / / / 28 / / / 1 BACKGROUND 2 Petitioner was born in Hong Kong, on October 15, 1955, when Hong Kong was a 3 British colony. Pet. ¶ 19. He immigrated to the United States in 1973 as a Lawful 4 Permanent Resident using a British passport. Id. ¶ 20. Petitioner has never resided in 5 China nor possessed a Chinese passport or identity documents. Traverse at 2. 6 In 1988, Petitioner was convicted of multiple charges that culminated in a sentence 7 of life in prison. Return at 2. In November 2023, Petitioner was released from prison 8 following a decision by a parole board and the California appeals court that he did not pose 9 a danger to the public. Traverse at 2; Pet. ¶ 22. On November 2, 2023, upon being released 10 from prison, Petitioner was immediately detained by Immigration and Customs 11 Enforcement (“ICE”). Id.; Pet. ¶ 23. On November 4, 2023, an Immigration Judge ordered 12 Petitioner deported to Hong Kong; as Petitioner did not reserve appeal, his deportation 13 order became final the same day. Id.; Return at 2; Pet. ¶ 24. 14 As a result, Petitioner is presently detained at the Otay Mesa Detention Center in 15 San Diego, California. Pet. ¶ 26. After Petitioner was ordered deported, “an application 16 to acquire travel documents was created and submitted for processing at the beginning of 17 2024.” Return at 3; Declaration of Luis Valentin (“Valentin Decl.”) ¶ 5, ECF No. 5-3. In 18 March 2024, Petitioner received a Decision to Continue Detention that indicated his 19 custody status had been reviewed and that ICE would not be releasing him, with another 20 review to be conducted within 90 days—by June 3, 2024. Pet. ¶ 27. On March 19, 2024, 21 “a second application to acquire travel documents for Petitioner was created and submitted 22 for processing.” Return at 3; Valentin Decl. ¶ 6. 23 On July 19, 2024, ICE served a decision on Petitioner, dated June 20, 2024, that it 24 would continue his detention. Pet. ¶ 29. On August 9, the ICE Enforcement and Removal 25 Operations (“ERO”) San Diego field office submitted a travel document packet to the 26 Consulate General of the People’s Republic of China in Los Angeles. Return at 3. That 27 same day, ERO’s Removal and International Operations (“RIO”) division presented this 28 travel document packet to the ERO Assistant Attaché for Removals in Beijing, China for 1 presentation of the travel document packet to the Hong Kong Immigration Department. Id. 2 Petitioner has called the Chinese consulate from detention consistently following up 3 on the application and has not received a response from China nor Hong Kong with respect 4 to any of the three applications made by Respondents for a travel document. Traverse at 2. 5 LEGAL STANDARD 6 To succeed on a habeas petition, a petitioner must show that he is “in custody in 7 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 8 § 2241(c)(3). Under 8 U.S.C. § 1231, “when an alien is ordered removed from the United 9 States, the Attorney General is obliged to facilitate that individual’s actual removal within 10 90 days, a period called the ‘removal period.’” Xi v. I.N.S., 298 F.3d 832, 834–35 (9th Cir. 11 2002) (quoting 8 U.S.C. § 1231(a)(1)). “During the removal period, the Attorney General 12 is required to detain an individual who has been ordered removed on certain specified 13 grounds.” Id. at 835 (citing 8 U.S.C. § 1231(a)(2)). “Congress, however, recognized that 14 securing actual removal within 90 days will not always be possible. Consequently, 15 [§ 1231] authorizes detention beyond the removal period[.]” Id. (citing § 1231(a)(6)). 16 “[T]he statute ‘does not permit indefinite detention.’” Id. at 836 (quoting Zadvydas v. 17 Davis, 533 U.S. 678, 689 (2001)). Section 1231, “read in light of the Constitution's 18 demands, limits an alien’s post-removal-period detention to a period reasonably necessary 19 to bring about that alien's removal from the United States.” Zadvydas, 533 U.S. at 689. 20 The Attorney General may detain an alien subject to a final removal order for a 21 “presumptively reasonable period” of six months. Id. at 701. After this six-month period, 22 an alien's “continued detention is permissible if his removal is reasonably foreseeable.” Xi, 23 298 F.3d at 839 (citing Zadvydas, 533 U.S. at 699–701). 24 The petitioner “has the burden to provide ‘good reason to believe that there is no 25 significant likelihood of removal in the reasonably foreseeable future.’” Id. at 839–840 26 (quoting Zadvydas, 533 U.S. at 701). The petitioner's allegations must go beyond “the 27 absence of an extant or pending repatriation agreement” and give “due weight to the 28 likelihood of successful future negotiations.” Zadvydas, 533 U.S. at 702 (citation and 1 internal quotation marks omitted). However, the allegations need not demonstrate “the 2 absence of any prospect of removal.” Id. “Once the [petitioner] provides good reason to 3 believe that there is no significant likelihood of removal in the reasonably foreseeable 4 future, the Government must respond with evidence sufficient to rebut that showing.” Id. 5 at 701. The government may rebut the detainee’s showing with “evidence of 6 progress . . . in negotiating a petitioner’s repatriation.” Kim v. Ashcroft, 7 No. 02CV1524-J (LAB), 2003 U.S. Dist. LEXIS 30818, at *11–12 (S.D. Cal. June 2, 2003) 8 (citing Khan v. Fasano, 194 F. Supp. 2d 1134, 1136 (S.D. Cal. 2001); Fahim v. Ashcroft, 9 227 F. Supp. 2d 1359, 1366 (N.D. Ga. 2002)). 10 ANALYSIS 11 Petitioner has now been detained for over a year, and he represents that during such 12 time, neither he nor Respondents have received a response to the requests for travel 13 documents, nor confirmation that a travel document is likely forthcoming. Traverse at 5. 14 Petitioner argues the U.S. lacks a repatriation agreement with China as well as with Hong 15 Kong. Id. at 3.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HAU CHEONG CHAN, Case No.: 24-CV-1315 JLS (MSB)
12 Petitioner, ORDER REQUIRING FURTHER 13 v. RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS 14 ALEJANDRO MAYORKAS, Secretary, PURSUANT TO 28 U.S.C. § 2241 United States Department of Homeland 15 Security; et al.,
16 Respondents. 17
18 Presently before the Court is Petitioner Hau Cheong Chan’s Petition for a Writ of 19 Habeas Corpus Under 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). Also before the Court are 20 Respondents Merrick Garland (United States Attorney General), Christopher LaRose 21 (Warden, Otay Mesa Detention Center), Patrick Lechleitner (Acting Director, United 22 States Immigration and Customs Enforcement), Alejandro Mayorkas (Secretary, United 23 States Department of Homeland Security), and Jesus Rocha’s (Acting Field Office 24 Director, San Diego Field Office, United States Immigration and Customs Enforcement) 25 (collectively, “Respondents”) Return to Petition (“Return,” ECF No. 5) and Petitioner’s 26 Traverse (“Traverse,” ECF No. 6). 27 / / / 28 / / / 1 BACKGROUND 2 Petitioner was born in Hong Kong, on October 15, 1955, when Hong Kong was a 3 British colony. Pet. ¶ 19. He immigrated to the United States in 1973 as a Lawful 4 Permanent Resident using a British passport. Id. ¶ 20. Petitioner has never resided in 5 China nor possessed a Chinese passport or identity documents. Traverse at 2. 6 In 1988, Petitioner was convicted of multiple charges that culminated in a sentence 7 of life in prison. Return at 2. In November 2023, Petitioner was released from prison 8 following a decision by a parole board and the California appeals court that he did not pose 9 a danger to the public. Traverse at 2; Pet. ¶ 22. On November 2, 2023, upon being released 10 from prison, Petitioner was immediately detained by Immigration and Customs 11 Enforcement (“ICE”). Id.; Pet. ¶ 23. On November 4, 2023, an Immigration Judge ordered 12 Petitioner deported to Hong Kong; as Petitioner did not reserve appeal, his deportation 13 order became final the same day. Id.; Return at 2; Pet. ¶ 24. 14 As a result, Petitioner is presently detained at the Otay Mesa Detention Center in 15 San Diego, California. Pet. ¶ 26. After Petitioner was ordered deported, “an application 16 to acquire travel documents was created and submitted for processing at the beginning of 17 2024.” Return at 3; Declaration of Luis Valentin (“Valentin Decl.”) ¶ 5, ECF No. 5-3. In 18 March 2024, Petitioner received a Decision to Continue Detention that indicated his 19 custody status had been reviewed and that ICE would not be releasing him, with another 20 review to be conducted within 90 days—by June 3, 2024. Pet. ¶ 27. On March 19, 2024, 21 “a second application to acquire travel documents for Petitioner was created and submitted 22 for processing.” Return at 3; Valentin Decl. ¶ 6. 23 On July 19, 2024, ICE served a decision on Petitioner, dated June 20, 2024, that it 24 would continue his detention. Pet. ¶ 29. On August 9, the ICE Enforcement and Removal 25 Operations (“ERO”) San Diego field office submitted a travel document packet to the 26 Consulate General of the People’s Republic of China in Los Angeles. Return at 3. That 27 same day, ERO’s Removal and International Operations (“RIO”) division presented this 28 travel document packet to the ERO Assistant Attaché for Removals in Beijing, China for 1 presentation of the travel document packet to the Hong Kong Immigration Department. Id. 2 Petitioner has called the Chinese consulate from detention consistently following up 3 on the application and has not received a response from China nor Hong Kong with respect 4 to any of the three applications made by Respondents for a travel document. Traverse at 2. 5 LEGAL STANDARD 6 To succeed on a habeas petition, a petitioner must show that he is “in custody in 7 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 8 § 2241(c)(3). Under 8 U.S.C. § 1231, “when an alien is ordered removed from the United 9 States, the Attorney General is obliged to facilitate that individual’s actual removal within 10 90 days, a period called the ‘removal period.’” Xi v. I.N.S., 298 F.3d 832, 834–35 (9th Cir. 11 2002) (quoting 8 U.S.C. § 1231(a)(1)). “During the removal period, the Attorney General 12 is required to detain an individual who has been ordered removed on certain specified 13 grounds.” Id. at 835 (citing 8 U.S.C. § 1231(a)(2)). “Congress, however, recognized that 14 securing actual removal within 90 days will not always be possible. Consequently, 15 [§ 1231] authorizes detention beyond the removal period[.]” Id. (citing § 1231(a)(6)). 16 “[T]he statute ‘does not permit indefinite detention.’” Id. at 836 (quoting Zadvydas v. 17 Davis, 533 U.S. 678, 689 (2001)). Section 1231, “read in light of the Constitution's 18 demands, limits an alien’s post-removal-period detention to a period reasonably necessary 19 to bring about that alien's removal from the United States.” Zadvydas, 533 U.S. at 689. 20 The Attorney General may detain an alien subject to a final removal order for a 21 “presumptively reasonable period” of six months. Id. at 701. After this six-month period, 22 an alien's “continued detention is permissible if his removal is reasonably foreseeable.” Xi, 23 298 F.3d at 839 (citing Zadvydas, 533 U.S. at 699–701). 24 The petitioner “has the burden to provide ‘good reason to believe that there is no 25 significant likelihood of removal in the reasonably foreseeable future.’” Id. at 839–840 26 (quoting Zadvydas, 533 U.S. at 701). The petitioner's allegations must go beyond “the 27 absence of an extant or pending repatriation agreement” and give “due weight to the 28 likelihood of successful future negotiations.” Zadvydas, 533 U.S. at 702 (citation and 1 internal quotation marks omitted). However, the allegations need not demonstrate “the 2 absence of any prospect of removal.” Id. “Once the [petitioner] provides good reason to 3 believe that there is no significant likelihood of removal in the reasonably foreseeable 4 future, the Government must respond with evidence sufficient to rebut that showing.” Id. 5 at 701. The government may rebut the detainee’s showing with “evidence of 6 progress . . . in negotiating a petitioner’s repatriation.” Kim v. Ashcroft, 7 No. 02CV1524-J (LAB), 2003 U.S. Dist. LEXIS 30818, at *11–12 (S.D. Cal. June 2, 2003) 8 (citing Khan v. Fasano, 194 F. Supp. 2d 1134, 1136 (S.D. Cal. 2001); Fahim v. Ashcroft, 9 227 F. Supp. 2d 1359, 1366 (N.D. Ga. 2002)). 10 ANALYSIS 11 Petitioner has now been detained for over a year, and he represents that during such 12 time, neither he nor Respondents have received a response to the requests for travel 13 documents, nor confirmation that a travel document is likely forthcoming. Traverse at 5. 14 Petitioner argues the U.S. lacks a repatriation agreement with China as well as with Hong 15 Kong. Id. at 3. Moreover, Petitioner points out he has never lived in China, nor held any 16 identity documents issued by the Chinese government, complicating any efforts to obtain 17 a travel document for him. Pet. ¶ 31. 18 Further, Petitioner cites various government reports describing difficulties obtaining 19 travel documents from China spanning two decades. First, Petitioner cites a 2004 report 20 by the United States General Accounting Office that notes ICE described “significant 21 problems” obtaining travel documents from China which “consistently refused to issue 22 travel documents.” Traverse at 2–3, 3 n2 (citing United States General Accounting Office, 23 Immigration Enforcement: Better Data and Controls are Needed to Assure Consistency 24 with the Supreme Court Decision on Long- Term Alien Detention 21 (2004), 25 http://www.gao.gov/assets/250/242498.pdf). Next, Petitioner points to a 2019 report by 26 the Office of the Inspector General identifying China as one of a handful of countries that 27 had been “consistently categorized” as uncooperative in executing removal orders. Id. at 28 3 & n3 (citing Office of the Inspector General, ICE Faces Barriers in Timely Repatriation 1 of Detained Aliens 19 n 32 (2019), https://www.oig.dhs.gov/sites/default/files/assets/2019- 2 03/OIG-19-28-Mar19.pdf). Finally, Petitioner cites a 2022 announcement by the Embassy 3 of People’s Republic of China, indicating China suspended “cooperation on the repatriation 4 of illegal immigrants” with the United States. Id. at 3 & n4 (citing Embassy of People’s 5 Republic of China, The Ministry of Foreign Affairs Announces Countermeasures in 6 Response to Nancy Pelosi’s Visit to Taiwan (August 5, 2022), 7 http://us.china˗embassy.gov.cn/eng/zmgx/zxxx/202208/t20220805_10735706.htm). 8 Respondents argue ICE has worked to acquire the necessary travel documents to 9 execute Petitioner’s deportation, and, as recently as August 9, 2024, submitted a new travel 10 document request to the Consulate General of the People’s Republic of China in Los 11 Angeles. Return at 5. Respondents indicate the submission was elevated to the ICE 12 headquarters who presented the travel document packet to the ERO Assistant Attaché for 13 Removals in Beijing, China for presentation to the Hong Kong Immigration Department. 14 Id. Respondents contend that issuance of a Hong Kong travel document is often time 15 consuming, and timelines vary case by case, taking sometimes beyond 30 to 45 days to 16 finalize processing. Id. Finally, Respondents assert, “Hong Kong Immigration Department 17 has issued travel documents in other cases, and removals to Hong Kong have been 18 successfully executed throughout the past six years,” citing to the Declaration of Yolanda 19 Harrison (“Harrison Decl.” ¶ 7, ECF No. 7), which states that Hong Kong has issued “two 20 travel documents to ICE” and references an ICE Annual Report demonstrating removals 21 to Hong Kong. U.S. Immigration and Customs Enforcement, ICE Annual Report Fiscal 22 Year 2023 96 (2023), https://www.ice.gov/doclib/eoy/iceAnnualReportFY2023.pdf 23 (indicating fifteen individuals were removed to Hong Kong in Fiscal Year (“FY”) 2018, 24 seven in FY 2019, three in FY 2020, three in FY 2021, four in FY 2022, and four in FY 25 2023). 26 The Court finds Respondents have set forth evidence demonstrating attempts to 27 secure travel documents for Petitioner’s removal, and evidence revealing such travel 28 documents have been secured before. However, Petitioner has now been detained for over 1 || a year and it is unclear whether or when the Hong Kong Immigration Department will issue 2 ||a travel document. The Court is particularly mindful that Petitioner need not demonstrate 3 absence of any prospect of removal,” Zadvydas, 533 U.S. at 702 (emphasis in 4 |/original), and “for detention to remain reasonable, as the period of prior postremoval 5 confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would 6 to shrink,” id. at 701. 7 Accordingly, the Court ORDERS Respondents to file a supplemental brief, not to 8 ||exceed ten (10) pages, addressing the following items within fourteen (14) days of this 9 || Order: 10 1. The present status of, and any and all facts regarding, Respondents’ efforts to 11 secure travel documents for Petitioner from the Hong Kong Immigration 12 Department or any other relevant authorities on the request for travel documents 13 for Petitioner. 14 2. Any responses or communications from the Hong Kong Immigration 15 Department, or other relevant authorities on the request for travel documents for 16 Petitioner. 17 3. Any evidence of negotiations between the Hong Kong Immigration Department 18 and Respondents, or other relevant authorities on the request for travel documents 19 for Petitioner, relating to the approval of such travel documents. 20 4. Respondents’ position as to whether there is any justification for Petitioner’s 21 detention if the Court were to find there is no significant likelihood of Petitioner’s 22 removal in the reasonably foreseeable future. 23 The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1) 24 remains pending. 25 IT IS SO ORDERED. 26 Dated: December 18, 2024 . tt 27 jen Janis L. Sammartino 28 United States District Judge