Gan v. Wolf

D. Nevada

Gan v. Wolf

DecidedMay 29, 2020

Docket2:20-cv-00947

StatusUnknown

This text of Gan v. Wolf (Gan v. Wolf) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gan v. Wolf, (D. Nev. 2020).

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DERRICK WEI CHEN GAN, Case No.: 2:20-cv-00947-APG-NJK

4 Petitioner-Plaintiff, Order 5 v.

6 CHAD WOLF, et al.,

7 Respondents-Defendants.

8 9 Petitioner-plaintiff Derrick Wei Chen Gan has submitted a petition for writ of habeas 10 corpus under 28 U.S.C. § 2241. ECF No. 1. Gan states that he is in the custody of Immigration 11 and Customs Enforcement (ICE) and is housed at the Henderson Detention Center. This order is 12 my initial review under the Rules Governing Section 2254 Cases.1 13 Under Habeas Rule 4, the assigned judge must examine the habeas petition and order a 14 response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 15 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss 16 petitions that are patently frivolous, vague, conclusory, palpably incredible, or false. Hendricks v. 17 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The court may also dismiss 18 claims at screening for procedural defects. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 19 1998). 20 Gan alleges that he has requested expedited removal due to his risk of infection of 21 COVID-19 during his continued detention at a facility where COVID-19 has been detected. Gan 22

23 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order are to the Rules Governing Section 2254 Cases in the United States District Courts. 1 claims that (1) ICE is violating his Fifth Amendment due process rights by continuing to detain 2 him in light of the COVID-19 pandemic, as he does not have recourse for administrative review 3 after requesting expedited removal; (2) ICE is violating his Eighth Amendment right to be free 4 from cruel and unusual punishment, as his continued detention unnecessarily places him at risk 5 for contracting COVID-19; and (3) ICE’s continued detainment is arbitrary and capricious in

6 violation of the Administrative Procedures Act, as he has made arrangements for immediate 7 removal at his own expense. 8 The petition will be served on the respondents-defendants, and in light of the emergent 9 nature of the allegations, the respondents-defendants must respond to the petition by June 5, 10 2020. 11 I THEREFORE ORDER the Clerk to SERVE copies of the petition and its attachments 12 (ECF No. 1) and this order upon the respondents-defendants as follows: 13 1. By having the United States Marshal, before the close of business on May 29, 14 2020, serve a copy of the petition and its attachments (ECF No. 1) and this order

15 on the United States Attorney for the District of Nevada or on an Assistant United 16 States Attorney or clerical employee designated by the United States Attorney 17 under Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. 18 2. And, by sending a copy of the petition and its attachments (ECF No. 1) and this 19 order by registered or certified mail to the following: 20 (1) Robert Culley, Field Office Director, U.S. Immigration and Customs 21 Enforcement, 2975 Decker Lake Drive, Suite 100, West Valley City, UT 22 84119; and 23 1 (2) Chad Wolf, Acting Secretary for the Department of Homeland 2 Security, 245 Murray Lane SW, Washington, D.C. 20528. 3 I FURTHER ORDER that the respondents-defendants SHALL FILE AND SERVE an answer to the petition (ECF No. 1) by June 5, 2020, unless for good cause additional time is allowed. 6 I FURTHER ORDER that if respondents-defendants file an answer to the petition, 7|| Petitioner-plaintiff Derrick Wei Chen Gan will have seven days to file a reply to the answer. 8 I FURTHER ORDER that all exhibits filed by any party shall be filed with a separate index of exhibits identifying the exhibits by number or letter. The CM/ECF attachments that are 10|| filed further shall be identified by the number or letter of the exhibits in the attachment. For this NO PAPER COURTESY COPIES are required. 12 Dated: May 29, 2020. 13 Z a 14 ANDREW P. GORDON 15 UNITED STATES DISTRICT JUDGE

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DERRICK WEI CHEN GAN, Case No.: 2:20-cv-00947-APG-NJK

4 Petitioner-Plaintiff, Order 5 v.

6 CHAD WOLF, et al.,

7 Respondents-Defendants.

8 9 Petitioner-plaintiff Derrick Wei Chen Gan has submitted a petition for writ of habeas 10 corpus under 28 U.S.C. § 2241. ECF No. 1. Gan states that he is in the custody of Immigration 11 and Customs Enforcement (ICE) and is housed at the Henderson Detention Center. This order is 12 my initial review under the Rules Governing Section 2254 Cases.1 13 Under Habeas Rule 4, the assigned judge must examine the habeas petition and order a 14 response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 15 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss 16 petitions that are patently frivolous, vague, conclusory, palpably incredible, or false. Hendricks v. 17 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The court may also dismiss 18 claims at screening for procedural defects. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 19 1998). 20 Gan alleges that he has requested expedited removal due to his risk of infection of 21 COVID-19 during his continued detention at a facility where COVID-19 has been detected. Gan 22

23 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order are to the Rules Governing Section 2254 Cases in the United States District Courts. 1 claims that (1) ICE is violating his Fifth Amendment due process rights by continuing to detain 2 him in light of the COVID-19 pandemic, as he does not have recourse for administrative review 3 after requesting expedited removal; (2) ICE is violating his Eighth Amendment right to be free 4 from cruel and unusual punishment, as his continued detention unnecessarily places him at risk 5 for contracting COVID-19; and (3) ICE’s continued detainment is arbitrary and capricious in

6 violation of the Administrative Procedures Act, as he has made arrangements for immediate 7 removal at his own expense. 8 The petition will be served on the respondents-defendants, and in light of the emergent 9 nature of the allegations, the respondents-defendants must respond to the petition by June 5, 10 2020. 11 I THEREFORE ORDER the Clerk to SERVE copies of the petition and its attachments 12 (ECF No. 1) and this order upon the respondents-defendants as follows: 13 1. By having the United States Marshal, before the close of business on May 29, 14 2020, serve a copy of the petition and its attachments (ECF No. 1) and this order

15 on the United States Attorney for the District of Nevada or on an Assistant United 16 States Attorney or clerical employee designated by the United States Attorney 17 under Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. 18 2. And, by sending a copy of the petition and its attachments (ECF No. 1) and this 19 order by registered or certified mail to the following: 20 (1) Robert Culley, Field Office Director, U.S. Immigration and Customs 21 Enforcement, 2975 Decker Lake Drive, Suite 100, West Valley City, UT 22 84119; and 23 1 (2) Chad Wolf, Acting Secretary for the Department of Homeland 2 Security, 245 Murray Lane SW, Washington, D.C. 20528. 3 I FURTHER ORDER that the respondents-defendants SHALL FILE AND SERVE an answer to the petition (ECF No. 1) by June 5, 2020, unless for good cause additional time is allowed. 6 I FURTHER ORDER that if respondents-defendants file an answer to the petition, 7|| Petitioner-plaintiff Derrick Wei Chen Gan will have seven days to file a reply to the answer. 8 I FURTHER ORDER that all exhibits filed by any party shall be filed with a separate index of exhibits identifying the exhibits by number or letter. The CM/ECF attachments that are 10|| filed further shall be identified by the number or letter of the exhibits in the attachment. For this NO PAPER COURTESY COPIES are required. 12 Dated: May 29, 2020. 13 Z a 14 ANDREW P. GORDON 15 UNITED STATES DISTRICT JUDGE

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