Ying Fong v. Ashcroft, No. 03 Civ. 7261(AKH).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtHellerstein
Citation317 F.Supp.2d 398
PartiesMei YING FONG, Petitioner, v. John ASHCROFT, Attorney General of the United States of America, Respondent.
Decision Date30 April 2004
Docket NumberNo. 03 Civ. 7261(AKH).
317 F.Supp.2d 398
Mei YING FONG, Petitioner,
v.
John ASHCROFT, Attorney General of the United States of America, Respondent.
No. 03 Civ. 7261(AKH).
United States District Court, S.D. New York.
April 30, 2004.

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COPYRIGHT MATERIAL OMITTED

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Theodore N. Cox, New York City, for petitioner.

Sean Cenawood, James Loprest, Assistant U.S. Attorneys, S.D.N.Y., New York City, for respondents.

OPINION AND ORDER GRANTING HABEAS CORPUS FOR RETURN OF ALIEN

HELLERSTEIN, District Judge.


Petitioner Mei Ying Fong petitions for habeas corpus to order her returned to the United States. She complains that the Bureau of Immigration and Customs Enforcement ("ICE") removed her from the United States in less than 72 hours from the time she was arrested, contrary to applicable Regulations and in violation of a court order, and that she will be prejudiced in seeking relief from ICE unless she is returned to the United States. I grant her petition.

Background

Mei Ying Fong is a 56-year-old Chinese citizen. She entered the United States on December 18, 1995, on a temporary non-immigrant visitor's visa, which permitted her to stay in the country for six months, until June 17, 1996.1

On March 12, 1996, before her visa expired, Fong applied for asylum, claiming that she would be placed in danger if she were to return to China. She alleged that she had released a woman from custody to prevent a forced abortion of her seven-month old fetus under the government's one-child policy, that she was jailed for three months by the Chinese government, and that she feared future retaliation if she were to return to China.

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Fong's affidavit in support of her petition for habeas corpus alleges that her application for asylum was prepared by Mandy Chen, a travel agent, that she did not authorize him to file the application, and that despite assuring Fong that her application would not be submitted, he nevertheless submitted it on March 20, 1996. Fong alleges that Chen set down on the application a false address, One East Broadway, # 3C, as Fong's, and also recorded the travel agency's address, 17 East Broadway, 2nd Floor, and that consequently she did not receive any of the notices that were given in response to the application.

The INS scheduled an interview with Fong regarding her asylum application for April 25, 1996, but adjourned it to May 28, 1996 at Fong's request. Fong claims in her affidavit that the travel agency forged the request for adjournment and that she never saw or signed it. She did not appear on May 28, 1996, and her application for asylum was denied.

Almost a year and a half later, on October 31, 1997, the INS issued Fong a Notice to Appear in Removal Proceedings (NTA). The NTA failed to state the date, time, or place of any scheduled hearings. A hearing on Fong's removal was held on February 11, 1998, although there is no evidence that Fong was given notice of that hearing date. Fong did not appear, and the Immigration Judge issued an in absentia removal order, ordering that Fong be removed from the United States for the reasons stated in the NTA. The record does not reflect that notice of the order of removal was given to Fong.

Over a year and a half later, on September 23, 1999, the INS gave notice to Fong to appear for deportation on November 2, 1999, mailing the notice to One East Broadway, # 3C, the address listed as Fong's on the asylum application. Fong did not appear, and nothing occurred with regard to her deportation until September 17, 2003, in the context of an altogether different proceeding.

On June 17, 2002, Fong's daughter, Oi Ying Chan, an American citizen, filed an I-130 petition to classify Fong as the immediate relative of a United States citizen. Based on that petition, Fong filed, on October 10, 2002, a Form I-485, an application for an adjustment of her immigration status to that of a lawful permanent resident. On June 23, 2003, ICE, a successor to the INS,2 gave notice to Fong to appear in its New York office on August 21, 2003, for a hearing on the adjustment application, mailing the notice to the address that Fong had listed on her adjustment application, 90-26 51st Avenue, Elmhurst, New York.

Fong failed to appear on August 21, 2003, but she requested a rescheduling, and she duly appeared on the rescheduled date, September 17, 2003. No hearing on Fong's adjustment application was held. Instead, ICE took Fong into custody for the purpose of removing her from the country.

On the evening of September 17, 2003, the day she was taken into custody, Fong's counsel filed the instant habeas corpus petition under 28 U.S.C. § 2241, bringing it by Order to Show Cause. I received it in Chambers the morning of September 18,

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2003, and, in order to hear the government as well, scheduled a hearing for 3:00 p.m. the same day. Sometime after 1:00 p.m., however, the Assistant United States Attorney informed my Chambers by telephone that Fong was to be put on an airline scheduled for departure to Hong Kong at 1:55 p.m. that same day. When it appeared that an informal effort to defer her departure until after the 3:00 p.m. hearing would not succeed, at 1:35 p.m., I signed the Order to Show Cause, ordering a temporary stay of petitioner's removal pending a hearing. But the order was not heeded; ICE officials informed the parties that the plane was sealed and ready for take-off. The airplane departed on schedule, at 1:55 p.m., with Fong aboard.

Counsel appeared in court that afternoon without Fong, and again on December 22, 2003 and February 9, 2004. I now grant the petition, for the reasons discussed below.

The Illegality of Fong's Removal

1. Denial of Due Process — Removal in Contravention of Regulations

The Bureau's governing regulations provide that "[a]n alien taken into custody either upon notice to surrender or by arrest shall not be deported less than 72 hours thereafter without his or her consent." 8 C.F.R. § 241.22. Fong was taken into custody on September 17, 2003, and removed from the United States the day after, well short of the 72-hour period provided by the regulations. The government argues that the 72-hour requirement applies to cases of exclusion, not removal, and Fong was removed, not excluded, from the United States. The government's argument is without merit.

The 72-hour requirement is encoded in two sections of the Code of Federal Regulations: 8 C.F.R. § 241.22, dealing with aliens subject to exclusion, and id. § 241.33(b), dealing with aliens subject to deportation. Prior to 1996, immigrations hearings were classified as either "deportation" or "exclusion" proceedings. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which eliminated this distinction, effective April 1, 1997, in favor of a single set of "removal" proceedings. See IIRIRA § 304(a), Pub.L. No. 104-208, 110 Stat. 3009 (codified at 8 U.S.C. § 1229a (1999)); Rojas-Reyes v. INS, 235 F.3d 115, 120-21 (2d Cir.2000) (IIRIRA "classif[ied] as `removal' proceedings the previously separate `deportation' and `exclusion' proceedings"); United States v. Pantin, 155 F.3d 91, 92 (2d Cir.1998). The existing regulations governing deportations of "Excluded Aliens" and "Aliens in the United States" were carried forward, but only "For Hearings Commenced Prior to April 1, 1997." See 8 C.F.R. §§ 241.20, 241.30. In addition, a third set of regulations was promulgated, governing removal proceedings generally under IIRIRA, without distinction between those aliens who formerly would have been classified as excludable and those who had entered the United States lawfully but had otherwise become subject to deportation. See id. §§ 241.1-241.15.

The new set of Regulations did not provide a time period before which an alien who had come into the government's custody could not be removed. The government argues that there is no longer a 72-hour requirement for hearings commenced after April 1, 1997. I decline to accept the argument. Congress intended by the IIRIRA to merge the separate provisions for excludable and deportable Aliens. There is no suggestion in the statutory or regulatory history that a change to the 72-hour rule was intended. The government's argument, that there should be no time limit whatever before the government can physically remove an alien from the United States, would raise serious due process implications. Presumably, under the government's argument, the

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agency could make a determination of removal and then deport the alien two minutes later, leaving the alien no opportunity even to file an appeal.

There is no question that the policy embodied in the 72-hour requirement of 8 C.F.R. §§ 241.22 and 241.33(b) gives expression to the Fifth Amendment's due process mandates. Indeed, the INS said so itself; in adopting the rule, the INS explained that it was intended "to ensure that due process is accorded the detainee." 51 Fed.Reg. 23,041 (June 25, 1986). Just as the Constitution requires the government to afford notice of any action against an alien, so too it requires an opportunity for the alien to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Fuentes-Argueta v. INS, 101 F.3d 867, 872 (2d Cir.1996); United States v. Perez-Valdera, 899 F.Supp. 181, 184 (S.D.N.Y.1995). The opportunity to be heard must be "meaningful," Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.1999), that is, an "opportunity ... granted at a meaningful time and in a meaningful manner." Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). A nearly instantaneous removal cannot provide such an opportunity. And, as the Second Circuit has made clear, Montilla v. INS, 926 F.2d 162 (2d Cir.1991); Waldron v. INS, 17 F.3d 511 (2d Cir.1993), immigration regulations which are derived from and...

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2 practice notes
  • Nino v. Johnson, Case No. 16-cv-2876
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 30, 2016
    ...in contravention of both federal regulations and a court order, there is no mention of Section 1252(g) in that court's decision. See 317 F. Supp. 2d 398, 402-05 (S.D.N.Y. 2004), amended on reconsideration in part sub nom. Fong v. Ashcroft, No. 03 CIV. 7261 (AKH), 2004 WL 1348994 (S.D.N.Y. J......
  • Rombot v. Souza, Civil Action No. 17–11577–PBS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 8, 2017
    ...to it, the challenged [action] is invalid ...." Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993) ; see also Ying Fong v. Ashcroft, 317 F.Supp.2d 398, 403–04 (S.D.N.Y. 2004) (granting alien's habeas petition where she was deported fewer than 72 hours after her arrest and regulation mandate......
2 cases
  • Nino v. Johnson, Case No. 16-cv-2876
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 30, 2016
    ...in contravention of both federal regulations and a court order, there is no mention of Section 1252(g) in that court's decision. See 317 F. Supp. 2d 398, 402-05 (S.D.N.Y. 2004), amended on reconsideration in part sub nom. Fong v. Ashcroft, No. 03 CIV. 7261 (AKH), 2004 WL 1348994 (S.D.N.Y. J......
  • Rombot v. Souza, Civil Action No. 17–11577–PBS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 8, 2017
    ...to it, the challenged [action] is invalid ...." Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993) ; see also Ying Fong v. Ashcroft, 317 F.Supp.2d 398, 403–04 (S.D.N.Y. 2004) (granting alien's habeas petition where she was deported fewer than 72 hours after her arrest and regulation mandate......

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