United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
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.
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.
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) 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.
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
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.
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.
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.
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.
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.
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.
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,
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 ...