Nguyen v. U.S. Immigration and Customs Enforcement

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         This matter is a pro se petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is detained under an order of removal entered by the immigration court in Kansas City, Missouri. Petitioner seeks immediate release from custody, asserting that his continued detention pending removal has exceeded the six-month period considered presumptively reasonable. The Court issued an Order to Show Cause (Doc. 2), Respondent filed an Answer and Return (Doc. 5), and Petitioner filed a Traverse (Doc. 8). On May 1, 2017, the Court entered an Order (Doc. 9) directing the parties to file status reports by May 15, 2017. Petitioner filed a status report (Doc. 10) on May 12, 2017; and Respondent filed a status report (Doc. 11) on May 15, 2017.

         I. Background

         Petitioner is a native and citizen of Vietnam who entered the United States as a lawful permanent resident on or about August 11, 2003, at or near Los Angeles, California. On May 21, 2015, Petitioner was convicted of Burglary in the 2nd degree in the 16th Judicial Circuit Court at Jackson County, Missouri, in Case No. 1416-CR01732, and was sentenced to a period of three years in the custody of the Missouri Department of Adult Institutions, concurrent to the sentence he received in Case No. 0916-CR06566-01. On November 24, 2015, Petitioner was convicted of Burglary of a Non-dwelling in the District Court of Johnson County, Kansas, in Case No. 14CR2637, and was sentenced on February 1, 2016, to a period of 27 months in the custody of the Kansas Department of Corrections (underlying with probation granted), consecutive to the sentence he received in Case No. 0916-CR06566-01.

         On March 9, 2016, U.S. Immigration and Customs Enforcement (“ICE”) issued a Notice to Appear, charging Petitioner with removability under INA § 237(a)(2)(A)(ii) and § 237(a)(2)(A)(iii)^[1] for having been convicted of (1) two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct; and (2) an aggravated felony, a crime of violence for which the term of imprisonment ordered is at least one year. Petitioner was taken into custody by ICE Officials on March 9, 2016. On March 10, 2016, Petitioner was served with a copy of the Notice to Appear, with the hearing to be scheduled at a later date and time.

         On March 14, 2016, the Immigration Court issued a Notice of Hearing in Removal Proceedings, scheduling a hearing for March 23, 2016. On March 23, 2016, an Immigration Judge denied the request for a change in custody status and Petitioner waived the right to appeal this decision. The Immigration Court issued an additional Notice of Hearing in Removal Proceedings on March 23, 2016, scheduling a second hearing for April 28, 2016, for Petitioner to enter pleadings. On April 28, 2016, Petitioner admitted the allegations in the Notice to Appear and conceded his removability. The Immigration Court scheduled another hearing for May 26, 2016, for Petitioner to file any applications for relief from removal. On May 26, 2016, Petitioner's attorney withdrew. The Immigration Court scheduled a hearing for June 13, 2016, for Petitioner to file any application for relief.

         On June 13, 2016, the Immigration Court issued a final Notice of Hearing, scheduling a hearing for June 30, 2016, to take testimony and make a final decision in Petitioner's case. On June 30, 2016, Petitioner was ordered removed by the Immigration Judge, and Petitioner waived his right to appeal. A copy of the decision was sent to Petitioner on the same date. The Order of Removal became administratively final on June 30, 2016.

         Vietnam requires a travel document or a passport for repatriation of their citizens. On July 8, 2016, Petitioner was questioned, through a language line interpreter, about providing a passport to ICE Officials. Petitioner claimed to not have a passport and was allowed to complete a self-declaration form, in his native language, while at the Kansas City ICE Enforcement and Removal Office (“ERO”). The form would be later translated by the Language Services Section at the U.S. Citizenship and Immigration Services. This document is requested from the Government of Vietnam.

         On July 8, 2016, Deportation Office Rita Lasker (“DO Lasker”) served Petitioner a Notice to Alien of File Custody Review and Warning for Failure to Depart with Instruction Sheet. Both documents were explained and served using a language line interpreter.

         On July 27, 2016, DO Lasker sent a travel document request to ICE ERO Headquarters (“HQ”). The original self-declaration form was later requested by ICE ERO HQ unit, which DO Lasker sent on September 1, 2016.

         On September 27, 2016, DO Lasker conducted a Post Order Custody Review (“POCR”) and determined that Petitioner should continue to remain in ICE custody based on the pending request for a Vietnam travel document, and also due to his past criminal history. On September 30, 2016, a Warrant of Removal/Deportation was issued for Petitioner.

         On October 3, 2016, the Assistant Field Office Director and the Field Office Director signed the decision to continue custody, and a Decision to Continue Detention was entered. Petitioner was served with the Decision to Continue Detention on October 5, 2016.

         On December 19, 2016, DO Lasker completed a transfer checklist and forwarded it to ICE ERO HQ for Petitioner's 180-day POCR. ICE ERO HQ decided to continue detention based on the fact that the request is pending with the Government of Vietnam. The Decision to Continue Detention was entered on January 10, 2017, and served on Petitioner on January 19, 2017.

         ICE ERO HQ advised Kansas City ERO that three individuals from the Vietnam Government would be traveling to Miami, Florida, from Vietnam, to conduct approximately 100 interviews. These interviews were for detainees claiming to be a national or to have citizenship in Vietnam, who are listed for repatriation, and who are in need of a travel document. The interviews were scheduled to take place starting March 20, 2017, and concluding on April 31, 2017. Travel from the Kansas City area to the Miami ICE ERO area was arranged for March 16, 2017, in order to present ...