United States District Court, D. Colorado
ORDER DENYING PETITIONER'S APPLICATION FOR WRIT
OF HABEAS CORPUS AND MOTION FOR TEMPORARY RESTRAINING
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
the Court is Petitioner Quang Minh Lien's Application for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the
“Petition, ” Doc. # 1) and Motion for Temporary
Restraining Order (“the TRO Motion, ” Doc. # 20),
in which Petitioner challenges the validity of his detention
with U.S. Immigration and Customs Enforcement (ICE) as being
“in violation of the Constitution, laws, or treaties of
the United States.” (Doc. # 1 at 11.) The Respondents
filed a response to the TRO Motion on June 5, 2018. (Doc. #
32.) Because this challenge is premature, the Court denies
Petitioner's Petition and dismissed this action without
prejudice, thereby mooting the TRO Motion.
is a native and citizen of Vietnam. (Doc. # 20 at 2.) He was
lawfully admitted into the United States on February 2, 2002.
(Doc. # 1 at 10.) Petitioner married a United States citizen
and consequently applied for an adjustment to lawful
permanent resident status. (Id.) His application was
denied because his then-wife's affidavit was withdrawn
and the two divorced. (Id.; Doc. # 32-1.) The
government then initiated removal proceedings against him.
(Doc. # 32-1 at ¶ 4.) An order of removal became final
on December 27, 2012. (Doc. # 32-1 at ¶ 8.) In 2013,
2014, 2015, 2016, and 2017, ICE granted Petitioner's
requests for one-year discretionary stays of removal.
(Id. at ¶¶ 9-12.) On March 28, 2018, after
Petitioner's most recent stay of removal expired, ICE
took Petitioner into custody. (Id. at ¶ 13;
Doc. # 32-4.) Petitioner challenges this detention. He adds
that he has filed a request for a stay of removal (among
other requests for relief) but that the government “has
made no response or answer to any of [his] requests.”
(Doc. # 20 at 3.) Petitioner therefore requests an order
directing the Respondents to release him from custody and
adjudicate his requests for a stay or other relief from
removal. (Id. at 13.)
STANDARD OF REVIEW
application for habeas corpus pursuant to 28 U.S.C. §
2241 may be granted only if the petitioner “is in
custody in violation of the Constitution, or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3).
Federal courts have habeas jurisdiction to examine the
statutory and constitutional bases for an immigration
detention unrelated to a final order of removal. See
Demore v. Kim, 538 U.S. 510, 517-18 (2003); see also
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir.
2004) (“Challenges to immigration detention are
properly brought directly through habeas.” (citing
Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001))).
challenges the Respondents' authority to detain him under
8 U.S.C. § 1231(a). Specifically, Petitioner contends
that he is “not subject to mandatory detention”
and that the Respondents have no facts to support that his
continued discretionary detention is justified. (Doc. # 1 at
12.) In his TRO motion, Petitioner adds that he is
“entitled to a preliminary injunction and immediate
restraining order preventing and enjoining continued ICE
detention.” (Doc. # 20 at 3.) In their response to
Petitioner's TRO Motion, Respondents contend that the
Petitioner's habeas corpus petition is not yet ripe for
judicial review and that his TRO motion should also be denied
accordingly. The Court agrees.
is a justiciability doctrine “drawn both from Article
III limitations on judicial power and from prudential reasons
for refusing to exercise jurisdiction.” Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993).
The ripeness inquiry “focuses not on whether the
plaintiff was in fact harmed, but rather whether the harm
asserted has matured sufficiently to warrant judicial
intervention.” Morgan v. McCotter, 365 F.3d
882, 890 (10th Cir. 2004). In other words, the Court must
determine “whether the case involves uncertain or
contingent future events that may not occur as anticipated,
or indeed may not occur at all.” Initiative &
Referendum Inst. v. Walker, 450 F.3d 1082, 1097 (10th
an order of removal becomes administratively final, the
Attorney General “shall detain” the non-citizen
during the 90-day removal period established under 8 U.S.C.
§ 1231(a)(2). See Zadvydas, 533 U.S. at 683;
see also Morales-Fernandez v. INS, 418 F.3d 1116,
1123 (10th Cir. 2005). Generally, the government is required
to remove the non-citizen held in its custody within the
90-day removal period. See 8 U.S.C. § 1231(a)(1)(A)-(B).
While the government may detain an inadmissible non-citizen
beyond the statutory removal period, see Id. §
1231(a)(6), the government may not detain such a non-citizen
indefinitely. Zadvydas, 533 U.S. at 699. Instead,
the detention of an non-citizen subject to a final order of
removal for up to six months is presumptively reasonable in
view of the time required to accomplish removal. Id.
at 701. Beyond that period, if the non-citizen shows that
there is “no significant likelihood of removal in the
reasonably foreseeable future, the Government must respond
with evidence sufficient to rebut that showing.”
as the period of detention grows, “what counts as the
‘reasonably foreseeable future' conversely would
have to shrink.” Id. The six-month presumption
does not mean that every non-citizen must be released after
that time, but rather a non-citizen may be detained
“until it has been determined that there is no
significant likelihood of removal in the reasonably
foreseeable future.” Id.
Zadvydas, Petitioner's detention of a little
over two months is presumptively reasonable and does not
trigger constitutional concerns. See, e.g., Novitskiy v.
Holm, No. 12-CV-00965-MSK, 2013 WL 229577, at *6 (D.
Colo. Jan. 22, 2013) (citing Chance v. Napolitano,
453 Fed.Appx. 535, 536 (5th Cir. 2011) (holding that district
court did not err in finding that petitioner's challenge
to his continued post removal detention was premature where
petitioner had not been in post removal order detention
longer than the presumptively reasonable six-month period set
forth in Zadvydas)); see also Akinwale v.
Ashcroft, 287 F.3d 1050, 1051-52 (11th Cir. 2002).
even if it did, Petitioner presents no argument to suggest
that there is not a significant likelihood of removal in the
reasonably foreseeable future. To the contrary, Respondents
contend that they are in frequent contact with the Vietnamese
Consulate, which “has not declined to issue a travel
document for the Petitioner, ” adding that “ICE
does not foresee any impediments to Petitioner's return
to Vietnam once a travel document is issued.” (Doc. #
32-1 at ¶ 18.) Petitioner even concedes that
“there is no question that the government can take [him
into] custody . . . [and] can hold him while they attempt to
gain travel documents for his removal.” (Doc. # 1 at
Court also denies Petitioner's request that this Court
order Respondents to address his requests for relief from
removal. This request is vague, without any supporting legal
authority, and partially moot. Indeed, Respondents represent
that, on April 13, 2018, ICE denied Petitioner's latest
request for a stay. To the extent that any of
Petitioner's requests remain unadjudicated, this Court
has the authority to review agency action that is either: (1)
made reviewable by statute; or (2) a “final”
action “for which there is no other adequate remedy in