Chen v. Aitken

Decision Date08 January 2013
Docket NumberNo. C 12-6024 PJH,C 12-6024 PJH
CourtU.S. District Court — Northern District of California
PartiesGANG "STEVEN" CHEN, Petitioner, v. TIMOTHY AITKEN, et al., Respondents.
ORDER GRANTING PETITION FOR
WRIT OF HABEAS CORPUS

Before the court is petitioner Gang "Steven" Chen's ("petitioner" or "Chen") petition for writ of habeas corpus, along with his motion for a temporary restraining order and motion for preliminary injunction. Although the court indicated at the hearing that it was inclined to deny the petition, having read the parties' papers and carefully considered the arguments and the relevant legal authority, and upon further reflection and good cause appearing, the court hereby GRANTS the habeas petition as follows.

BACKGROUND

Petitioner Gang "Steven" Chen is a citizen of China who has been a lawful permanent resident ("LPR") of the United States since 2001. In 2008, the US filed a criminal complaint against Chen. Initially, the government charged Chen with making false statements in his immigration papers and conspiring to obtain citizenship through fraudulent means, with a potential sentence of up to ten years. But in 2009, the government filed a superseding information, charging Chen with only a single count of making false statements in relation to naturalization, with a potential sentence of up to five years. Chen pled guilty to this reduced charge, and was sentenced to five years of probation. In pleading guilty, Chen admitted that the corporate sponsor for his H1-B visa was a sham entity, that the visa application itself was based on a forged signature, that hisnaturalization application concealed the fact that he was married to two women at the same time, and that these statements were "false, material, and intended to deceive."

After conviction and sentencing, Chen sought and obtained judicial approval to travel to China. When he returned, on July 17, 2010, immigration officials determined that he was inadmissible due to his prior conviction, and because his conviction is for a crime involving moral turpitude, the Department of Homeland Security ("DHS") placed him into removal proceedings. Chen is contesting the grounds of removal, and even if he is found removable, Chen has requested relief from removal in the form of waivers of deportation and inadmissibility.

Even after he was put into removal proceedings, Chen was allowed to enter the United States, albeit on "parole." During this time, he was allowed to leave the country, so long as he obtained permission from either a federal judge or a probation officer. Between July 2010 and May 2012, Chen was granted permission to travel abroad four times. However, when returning from his fourth trip (in May 2012), Chen was detained at San Francisco International Airport, and taken into custody by DHS. Chen has remained in custody since May 19, 2012.

Chen's removal proceedings are still ongoing. On October 9, 2012, the immigration judge stated that it was "the court's intention to enter an order of removal to China." An additional hearing was previously scheduled, but the parties informed the court that the immigration judge intended to rule without any further hearings. In fact, on January 7, 2013, the immigration judge did indeed order petitioner Chen's removal to China.1

Shortly after the immigration judge issued his preliminary findings on October 9, Chen filed a written request to DHS requesting his release on parole while removalproceedings were ongoing. On December 3, 2012, the request was denied, based on the conclusion that Chen was a "significant flight risk" due to his prior criminal history and the immigration judge's preliminary findings sustaining the charge of removability. DHS rejected the argument that Chen's detention was "unduly prolonged," and instead found that Chen's removal was "reasonably foreseeable."

On November 27, 2012, Chen filed a petition for writ of habeas corpus, along with a request for a temporary restraining order and a motion for preliminary injunction, all seeking the same relief - an individualized bond hearing to challenge his continued detention during the duration of his removal proceedings. Chen named as respondents the following individuals: Timothy Aitken (ICE field director), James Grottkau (captain of the West County Detention Facility, where petitioner is being held), Janet Napolitano (Secretary of DHS), John Morton (ICE Director), Juan P. Osuna (Director of the Executive Office for Immigration Review), and Eric Holder (US Attorney General) (together, "respondents"). Petitioner asserts two causes of action: (1) violation of the Immigration and Nationality Act; and (2) violation of due process under the Fifth Amendment.

DISCUSSION

Chen is being detained pursuant to 8 U.S.C. § 1225(b), which applies to "arriving aliens" who are "seeking admission." Notably, section 1225(b) applies to all non-citizens arriving in the United States, even those with LPR status, such as petitioner. Petitioner does not challenge his classification as an "arriving alien" under section 1225(b). Nor does petitioner appear to dispute that, as a non-citizen convicted of a crime involving moral turpitude (i.e. making false statements relating to naturalization), he was initially subject to mandatory detention under section 1225(b) and its related regulations. Under those regulations, an immigration judge does not have jurisdiction to conduct a bond hearing, and any possibility of parole lies within the sole discretion of DHS officials. While petitioner does not challenge the government's initial decision to detain him, he argues that the detention, which has lasted over seven months, has now become prolonged, implicating due process concerns. Petitioner points to a number of recent Ninth Circuit cases as"definitively" establishing that detention becomes "prolonged" after six months, and that such prolonged detention "raises serious constitutional concerns," such that the government must be required to justify the burden of continued detention at an individualized bond hearing. See, e.g., Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011) (holding that aliens facing prolonged detention under section 1231(a)(6) are entitled to a bond hearing).

Respondents dispute the applicability of the cases cited by petitioner, pointing out that nearly all of the cases involve "admitted" aliens, who are entitled to more constitutional protection than "arriving" aliens such as Chen. Respondents emphasize the importance of this distinction between "admitted" and "arriving" aliens, arguing that an alien's classification is the key determinant of "whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention." Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). In respondents' view, petitioner's only avenue for challenging his detention was by requesting parole from DHS. As explained above, petitioner made such a request, and the request was denied. Respondents further argue that the cases cited by petitioner all involved individuals who were detained for much longer than six months - at least two years in every case where a bond hearing was ordered, and up to six or seven years in some cases. See, e.g., Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) (detainee held for two years and eight months); Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008) (detainee held for nearly seven years). Respondents point to the Supreme Court's decision in Demore v. Kim as expressly authorizing detentions that last beyond six months. 538 U.S. 510, 531 (2003) (upholding detention of an alien under section 1226(c)). The Demore Court noted that detention "lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal," and even though the specific detention at issue was "somewhat longer than average" at six months, it was still "constitutionally permissible." Id. at 530-31.

The court does find that petitioner was properly classified as an "arriving alien" undersection 1226(b), and was thus properly subject to mandatory detention. The court further finds that none of the cases cited by petitioner establishes a bright-line rule entitling detainees to a bond hearing after six months of detention. In fact, Demore specifically held that detention of over six months did not automatically raise any constitutional problems. However, the court does find that, in this specific case, petitioner Chen is entitled to an individualized bond hearing before an immigration judge. The court limits its holding to this specific set of facts, and makes no findings regarding the rights of other alien detainees (under section 1226(b) or any other immigration statute). Specifically, the court finds that the detention of petitioner Chen - a legal permanent resident, who had been detained for over six months without receiving a removal order, and who intends to appeal the now-issued removal order to the Board of Immigration Appeals, which would further extend his detention - does raise a due process concern sufficient to make an individualized bond hearing appropriate. Importantly, the court does not find that all "arriving aliens" are entitled to a bond hearing after six months of detention, nor does the court make any determination regarding whether Chen should be entitled to release after a bond hearing. The court finds only that, when a legal permanent resident has been detained under section 1225(b) for over six months, and removal or release is not imminent or even reasonably foreseeable (due to the ongoing nature of his removal proceedings, which are subject to appeal), it is appropriate to require the government to shoulder the "reasonable" burden of providing a bond hearing before an immigration judge. See, e.g., Diouf, 634 F.3d at 1091-92 ("When detention crosses the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT