Pelich v. I.N.S.

• Decision Date: 22 May 2003
• Docket Number: No. 01-56796.,01-56796.
• Citation: Pelich v. I.N.S., 329 F.3d 1057 (9th Cir. 2003)
• Parties: Adam PELICH, Petitioner-Appellant, v. IMMIGRATION and NATURALIZATION SERVICE; Adele J. Fasano, District Director, for the San Diego District, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1057

329 F.3d 1057

Adam PELICH, Petitioner-Appellant, v.IMMIGRATION and NATURALIZATION SERVICE; Adele J. Fasano, District Director, for the San Diego District, Respondents-Appellees.

No. 01-56796.

United States Court of Appeals, Ninth Circuit.

Submitted January 15, 2003.^*

Filed May 22, 2003.

Jason I. Ser, Federal Defenders of San Diego, Inc., San Diego, CA, for the petitioner-appellant.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Samuel W. Bettwy, Special Assistant U.S. Attorney, San Diego, CA, for the respondents-appellees.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding.D.C. No. CV-01-00874-JM/JFS.

Before FRIEDMAN,^**KOZINSKI and RAWLINSON, Circuit Judges.

OPINION

RAWLINSON, Circuit Judge.

We are aware of the proscription against indefinite detention articulated in Zadvydas v. Davis,533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653(2001).However, Petitioner's detention in this case is indefinite only because he refuses to cooperate with the Immigration and Naturalization Service's ("INS") efforts to remove him.In such a circumstance, Petitioner has no cause to complain; we thus AFFIRM the district court's denial of Appellant's habeas petition.

I.BACKGROUND

Adam Pelich("Pelich") was born on January 3, 1957, in Brzeg, Poland.In September 1981, he fled Poland to a refugee camp in Austria.Shortly thereafter, he applied for refugee status in the United States.In that application, he identified himself as a Polish national.The application was approved on March 25, 1982, and Pelich entered the United States as a refugee on April 15, 1982.

On May 12, 1983, Pelich submitted his application for lawful permanent resident status, stating that he was a German national.Pelich also averred that his father was born in Germany, and that he did not know his mother's place of birth.His application reflected his mother's residence as Brzeg, Poland, and that his father was deceased.This application was approved on April 6, 1984, with the INS's record of Pelich's permanent resident status reflecting Polish nationality.

Pelich pled guilty to embezzlement on May 18, 1998, and was sentenced to five years' imprisonment.He was detained by the INS upon completion of his sentence.On October 27, 2000, Pelich was interviewed by an INS deportation officer.During the interview, Pelich told the INS officer that his father was from Israel and his mother was from Monaco.He also gave the officer different names for his parents than those provided on his permanent resident application.On January 3, 2001, Pelich appeared before an Immigration Judge ("IJ"), who ordered Pelich deported to Poland or Germany.Pelich requested deportation to Germany and waived his right to appeal the IJ's order.

Immediately following issuance of the removal order, the INS initiated efforts to obtain travel documents for Pelich from Poland.In the documents sent to Poland, the INS represented that Pelich's parents were born in Poland and that Pelich was a Polish citizen.The Polish consulate responded with a letter dated January 9, 2001.In the letter, the Polish consulate enclosed a passport application to enable the consulate to determine whether Pelich was eligible for Polish travel documents.Pelich has consistently refused to complete the Polish passport application because he is of the view that, given his parents' backgrounds, he is not a Polish citizen.

In August 2001, the INS forwarded a passport application completed by Pelich, along with a formal request for travel documents, to Germany.In that application, Pelich represented that his name was Erich Hans Rothmann, he was of Jewish nationality, and he was born in Potsdam in 1947.Attached to this application was a letter from the INS, representing that Pelich was both a Polish citizen and a German citizen by virtue of his father's birth in Germany.The application was denied without recourse.

Pelich has been in INS custody since November 21, 2000.He petitioned for a writ of habeas corpus, which was denied.Pelich's motion to amend the district court's order was denied on October 3, 2001, and Pelich filed a timely appeal.

II.STANDARD OF REVIEW

A district court's denial of a petition for a writ of habeas corpus is reviewed de novo.SeeAngulo-Dominguez v. Ashcroft,290 F.3d 1147, 1149(9th Cir.2002).

III.DISCUSSION

A. Pelich's "Indefinite Detention" Argument

Pelich's petition challenges his ongoing detention by the INS.Ordinarily the INS is expected to remove an alien in its custody within ninety days from the issuance of a final removal order.See8 U.S.C. § 1231(a)(1)(A)-(B).An exception to this requirement is provided in 8 U.S.C. § 1231(a)(1)(C), which states:

The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.

8 U.S.C. § 1231(a)(1)(C).The INS contends that Pelich's detention is authorized by this exception.

Pelich counters that his continued detention violates the Supreme Court's ruling in Zadvydas as well as this court's ruling in Ma v. Ashcroft,257 F.3d 1095(9th Cir.2001).Zadvydas addressed the plight of two aliens who, through no fault of their own, could not be removed from the United States.See533 U.S. at 684-86, 121 S.Ct. 2491.The aliens in Zadvydas were detained by the INS pursuant to 8 U.S.C. § 1231(a)(6),¹ which provides that certain classes of aliens, including those removable due to criminal convictions and those deemed a risk to the community, may be detained beyond the standard ninety-day period.Seeid. at 682, 121 S.Ct. 2491.Due to the aliens' particular circumstances, their detention could have continued for an indefinite period of time.²Because the Court concluded that indefinite detention of aliens under these circumstances"would raise serious constitutional concerns,"id. at 682, 121 S.Ct. 2491, it construed 8 U.S.C. § 1231(a)(6) to limit an alien's post-removal detention to "a period reasonably necessary to bring about that alien's removal."Id. at 689, 121 S.Ct. 2491.

Zadvydas places the burden on the alien to show, after a detention period of six months, that there is "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future."Id. at 701, 121 S.Ct. 2491.The INS must then introduce evidence to refute that assertion.Seeid.;see alsoXi v. I.N.S.,298 F.3d 832, 839-40(9th Cir.2002).

Although Pelich tries hard, he cannot squeeze his case into the confines of Zadvydas.There is significant evidence in the record that, unlike the detainees in Zadvydas, Pelich himself is responsible for his plight.Pelich has steadfastly refused to fill out a Polish passport application, which directly impedes Poland's ability to determine whether Pelich qualifies for Polish travel documents.In the January letter, the Polish consulate explicitly reserved its determination of Pelich's citizenship status pending review of the information requested in the letter, including the passport application.Compounding the dilemma is the fact that Pelich has provided the INS with conflicting information regarding his name, his parents' names, his parents' birthplaces and residences, his birthplace and his nationality.

Equally of note is the fact that the provision under which Pelich is being detained 8 U.S.C. § 1231(a)(1)(C). does not present the same constitutional concerns raised by 8 U.S.C. § 1231(a)(6), the provision at issue in Zadvydas.The risk of indefinite detention that motivated the Supreme Court's statutory interpretation in Zadvydas does not exist when an alien is the cause of his own detention.Unlike the aliens in Zadvydas, Pelich has the "keys [to his freedom] in his pocket" and could likely effectuate his removal by providing the information requested by the INS.SeeParra v. Perryman,172 F.3d 954, 958(7th Cir.1999)(finding, pre-Zadvydas, that a criminal alien who opted to "postpon[e] the inevitable" by delaying his removal proceeding "has no constitutional right to remain at large during the ensuing delay").

We are further persuaded by the district courts that have addressed this issue and concluded that Zadvydas does not save an alien who fails to provide requested documentation to effectuate his removal.The reason is self-evident: the detainee cannot convincingly argue that there is no significant likelihood of removal in the reasonably foreseeable future if the detainee controls the clock.

In Lema v. I.N.S.,214 F.Supp.2d 1116(W.D.Wash.2002), the district court recognized that "§ 1231(a)(1)(C) evidences Congress' intent to permit continued detention when an alien refuses to cooperate and attempts to thwart the INS' efforts to deport him."Id. at 1117.Although the court acknowledged a possible "constitutional limit to the amount of time an alien can be detained under [§ 1231(a)(1)(C)]," it elected not to address that issue.Id.We pause for a moment to stress that we expressly decline to endorse or reject any inferred Zadvydas-inspired limitation to § 1231(a)(1)(C).With that reservation, we agree that a petitioner who impedes INS removal efforts "has not met his burden of showing that there is no significant likelihood of removal in the reasonably foreseeable future."Id. at 1118(citation and internal quotation marks omitted).

Powell v. Ashcroft,194 F.Supp.2d 209(E.D.N.Y.2002), involved a petitioner who resorted to tactics similar to those employed by Pelich.Mr. Powell provided a false name, place of birth and date of entry.Id. at 210-11.After finding that Mr. Powell's actions "prevent[ed] his removal...