Sing Fon Pan v. Sessions

• Decision Date: 07 February 2018
• Docket Number: 17 Civ. 9758
• Parties: SING FON PAN (a/k/a Xin Feng Pan), Petitioner, v. Jefferson Beauregard SESSIONS III, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

290 F.Supp.3d 250

SING FON PAN (a/k/a Xin Feng Pan), Petitioner,

v.Jefferson Beauregard SESSIONS III, et al., Respondents.

17 Civ. 9758

United States District Court, S.D. New York.

Signed February 7, 2018

Attorney for Petitioner, THE LAW OFFICE OF THEODORE N. COX, 325 Broadway, Suite 201, New York, NY 10007, By: Theodore N. Cox, Esq.

Attorneys for Respondents, GEOFFREY S. BERMAN, United States Attorney, Southern District of New York, 86 Chambers Street, 3rd Floor, New York, NY 10007, By: Brandon M. Waterman, Esq.

OPINION and ORDER

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 .,requesting 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 the 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. Section 1225(b) contains no limitation on how long a detention under that provision may last. 8 U.S.C. § 1225(b)(2)(A).

Pan's Petition is Granted

The question presented by Pan's petition is the scope and impact of the Second Circuit's decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). Pan asks the Court to apply Lora's holding to his situation and find a six-month, bright-line rule for detentions pursuant to 8 U.S.C. § 1225(b).² See Pet. ¶¶ 56–58. Respondents contend that, unlike the petitioner in Lora who was a LPR in the United States, Pan is an "arriving alien" who needs to be treated for constitutional purposes as if stopped at the border, and therefore is not afforded the same constitutional protections. Opp. Mem. 16–19.

The issue of whether indefinite detention under Section 1225(b) violates the Due Process Clause is presently before, but has not yet been resolved by, the Supreme Court and the Second Circuit. See Jennings v. Rodriguez, ––– U.S. ––––, 136 S.Ct. 2489, 195 L.Ed.2d 821 (2017) (listing as a question presented "[w]hether aliens seeking admission to the United States who are subject to mandatory detention under Section 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months"); Arias v. Aviles, No. 16–3186 (2d Cir. filed Sept. 12, 2016) (proceedings stayed pending the outcome of Jennings ). As a general course of conduct, this Court agrees with others in the circuit that staying a decision pending additional guidance from the Supreme Court or Second Circuit is sensible. Given the issue of prolonged deprivation of liberty that Pan raises in his petition, however, to elect to delay decision an indeterminate period while waiting for a future ruling is "inappropriate."

Ahmed v. Decker, No. 17 Civ. 478 (AJN), 2017 WL 6049387, at *1 & n.1 (S.D.N.Y. Dec. 4, 2017) (citing Osias v. Decker, 273 F.Supp.3d 504, 505 n.3 (S.D.N.Y. 2017), vacated No. 17 Civ. 2786 (VEC), 2017 WL 3432685 (S.D.N.Y. Aug. 9, 2017) ). Accordingly, Pan's petition warrants immediate review.

The Second Circuit's decision in Lora undergirds Pan's petition and is a necessary starting point of analysis. In Lora, the Second Circuit considered whether Lora, an LPR and citizen of the Dominican Republic, could be detained indefinitely under 8 U.S.C. § 1226(c), which mandates detention during the removal proceedings of non-citizens convicted of certain criminal offenses. See 804 F.3d at 613–16. The Lora court found that Section 1226(c)"contain[ed] no explicit provision for bail." Id. at 604. However, the circuit court considered the statute in light of Supreme Court precedent, which had previously held "that, for detention under the statute [ Section 1226(c) ] to be reasonable, it must be for a brief period of time." Id. at 614 (citing Demore, 538 U.S. at 528, 123 S.Ct. 1708 ); see also id. at 606 (alterations in original) (quoting Zadvydas, 533 U.S. at 682, 690, 121 S.Ct. 2491 ) (observing that the Supreme Court has stated that "[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.'"). Therefore, to avoid "serious constitutional concerns" from indefinite detention, the Second Circuit found that there must "be some procedural safeguard in place for immigrants detained for months without a hearing" under Lora's detention statute. Id. at 614. Following the lead of the Ninth Circuit in Rodriguez v. Robbins, 715 F.3d 1127, 1131 (9th Cir. 2013) (" Rodriguez II"), the Second Circuit applied "a bright-line rule to cases of mandatory detention where the government's ‘statutory mandatory detention authority under Section 1226(c)... [is] limited to a six-month period, subject to a finding of flight risk or dangerousness.’ " Id. at 614 (quoting Rodriguez II, 715 F.3d at 1133 ). The Second Circuit declined to adopt the approach of other circuits that analyzed the reasonableness of each individual's detention, concluding that a bright-line rule is preferable because it "ensures that similarly situated detainees receive similar treatment." Id. at 615.

In the wake of Lora , district courts in this circuit have found that the Lora court's due process considerations for the detention of LRPs pursuant to Section 1226(c) extends to the detention of LRP and other non-citizen pursuant to Section 1225(b). See Abdi v. Duke, No. 17 Civ. 721 (EAW), 280 F.Supp.3d 373, 392–93, 2017 WL 5599521, at *12 (W.D.N.Y. Nov. 17, 2017) (Wolford, J.); Ahmed v. Decker, No. 17 Civ. 478 (AJN) (GWG), 2017 WL 6034647, at *6 (S.D.N.Y. Aug. 15, 2017) (Gorenstein, M.J.), report and recommendation adopted, No. 17 Civ. 478 (AJN), 2017 WL 6049387 (S.D.N.Y. Dec. 4, 2017) (Nathan, J.); Osias, 273 F.Supp.3d at 511 (Caproni,...