Sing Fon Pan v. Sessions

290 F. Supp. 3d 250
CourtDistrict Court, S.D. Illinois
DecidedFebruary 7, 2018
Docket17 Civ. 9758
StatusPublished

This text of 290 F. Supp. 3d 250 (Sing Fon Pan v. Sessions) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sing Fon Pan v. Sessions, 290 F. Supp. 3d 250 (S.D. Ill. 2018).

Opinion

Sweet, D.J.

Petitioner Sing Fon Pan ("Pan" or the "Petitioner"), a native of China, has been detained in Immigration and Customs Enforcement ("ICE") custody pursuant to 8 U.S.C. § 1225(b)(2)(A) since May 17, 2017. Pan has petitioned for a writ of habeas corpus under 28 U.S.C. § 2241 et seq ., *252requesting that his continued detention be found unlawful and that Respondents be ordered to release Pan or, in the alternative, to provide Pan with an individualized bond hearing before an immigration judge.

For the reasons set forth below, the petition is granted to the extent that Respondents are required to hold an individualized bond hearing for Pan within two weeks.

Prior Proceedings

Pan is a 37-year-old Chinese native and citizen who arrived at Newark International Airport in October 1998 and sought entry into the United States without a valid passport. Pet. ¶ 19; Resp'ts' Mem. of Law in Opp. ("Opp. Mem.") Ex. 1 ("I-213"), at 2. That same day, Pan was paroled into the United States. Pet. ¶ 19; I-213, at 2.1

On May 17, 2017, the U.S. Coast Guard encountered Pan while Pan was fishing, at which time Pan was arrested, detained, and turned over to ICE. Pet. ¶ 20; I-213, at 2. That same day, ICE served Pan with a Notice to Appear ("NTA") and commenced removal proceedings, charging Pan as an "arriving alien" and inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Pet. ¶ 20; Opp. Mem. Ex. 2 ("NTA").

On May 26, 2017, Pan filed a Request for Release with ICE and a motion for a bond hearing with an immigration judge. Pet. ¶ 21. On June 29, 2017, Pan appeared before an immigration judge and applied for political asylum, withholding of removal, and protection under the Convention Against Torture. Pet. ¶ 22. That same day, Pan had a bond hearing, during which bond was denied by the immigration judge on the grounds that the immigration court lacked jurisdiction. Pet. ¶ 23.

On September 1, 2017, the immigration judge denied Pan's application for relief, from which Pan timely appealed to the Board of Immigration Appeals ("BIA") on September 11. Pet. ¶¶ 26-27. As of writing, Pan's appeal remains pending. Pet. ¶ 27.

On October 27, 2017, Pan again filed a motion for a bond hearing pursuant to Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). Pet. ¶ 28. On December 4, 2017, Pan had a Lora bond hearing before a different immigration judge, which denied a bond hearing based on lack of jurisdiction because of Pan's previous bond hearing and previous denial. Pet. ¶ 30.

On December 13, 2017, Pan filed the instant petition, contending that his continued detention without a bond hearing violates the Due Process Clause and seeking relief. Dkt. No. 1. On January 24, 2018, the petition was heard and marked fully submitted.

Applicable Law

Section 2241 of Title 28 of the United States Code is the general habeas corpus statute. It "authorizes a district court to grant a writ of habeas corpus whenever a petitioner is 'in custody in violation of the Constitution or laws or treaties of the United States.' " Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3) ). Federal courts have jurisdiction to hear habeas corpus claims by non-citizens challenging *253the constitutionality of their detention. Demore v. Kim, 538 U.S. 510, 516-17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). "[J]urisdiction over [ 28 U.S.C.] § 2241 [habeas] petitions is properly limited to purely legal statutory and constitutional claims and does not extend to review of discretionary determinations" by immigration judges. Chen v. United States Dep't of Justice, 434 F.3d 144, 153 n.5 (2d Cir. 2006) (second and third alteration in original).

Section 1225(b) of Title 8 of the United States Code governs the inspection of aliens seeking admission into the United States, a classification sometimes termed an "arriving aliens." See 8 C.F.R. § 1001.1 ("The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry."). Section 1225(b)(2)(A) authorizes the detention of arriving aliens, which includes all non-citizens, including lawful permanent residents ("LPR"), if "the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted ... for a [removal] proceeding under section 1229a of this title." 8 U.S.C. § 1225(b)(2)(A). Arriving aliens may receive discretionary parole by the Department of Homeland Security, but the statutory regime does not explicitly limit the length of such detention or provide for a bond hearing before an immigration judge. 8 U.S.C. § 1182(d)(5)(A) ; 8 C.F.R. § 212.5.

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Bluebook (online)
290 F. Supp. 3d 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sing-fon-pan-v-sessions-ilsd-2018.