UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Shixin Lu, 

Petitioner, 

v. 

Rebecca Adducci, et al., 

Respondents.

________________________________/

Case No. 15-cv-11448 

Hon. Judith E. Levy 

Mag. Judge Anthony P. Patti 

OPINION AND ORDER DENYING PETITION FOR 

HABEAS CORPUS [1] WITHOUT PREJUDICE 

 This case is before the Court on Shixin Lu’s petition for a writ of 

habeas corpus challenging her detention in immigration custody. (Dkt. 

1.) Petitioner has moved for an expedited hearing on the petition. (Dkt. 

3.) 

I. Background 

Lu is a Chinese citizen who states that she had a valid B1/B2 

United States visitor’s visa from January through May of 2014. In 

February 2014, Petitioner returned to China to care for her father and 

complete some outstanding work responsibilities. She returned to the 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 1 of 13 Pg ID 290
2 

United States on May 9, 2014, arriving at the Detroit Metropolitan 

Airport, where she attempted to enter using her visitor’s visa. 

When Petitioner arrived, a Customs and Border Protection 

(“CBP”) officer examined her because she did not appear to be 

admissible to the United States. Based on, among other things, 

Petitioner’s admission that her daughter was attending public school 

while in the United States on a visitor’s visa, the CBP officer 

determined that Petitioner was inadmissible and canceled her visa. 

Petitioner was offered the chance to withdraw her application for 

admission to the United States in lieu of being expeditiously removed. 

She did so, but then expressed a fear of returning to China based on 

potential persecution as an adherent of Falun Gong. She was then 

detained pending a credible fear interview that, if successful, would 

warrant the grant of asylum and permit her to stay in the United 

States. 

On May 19, 2014, an asylum officer found that Petitioner 

demonstrated a credible fear of persecution if she were returned to 

China, based on her association with Falun Gong. On May 21, 2014, 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 2 of 13 Pg ID 291
3 

Petitioner’s request for parole was denied due to Immigration and 

Customs Enforcement officials’ belief that she was a flight risk. 

On June 3, 2014, an Immigration Court hearing was held on 

Petitioner’s request, but was continued so that she could obtain counsel. 

The hearing resumed on June 17, 2014, and Petitioner conceded that 

she was removable, but would be filing applications for asylum, 

withholding of removal, and protection under the Convention Against 

Torture. On July 16, August 14, and September 18, 2014, the 

Immigration Judge held and continued a hearing on Petitioner’s claim 

for relief from removal. 

The Immigration Judge denied Petitioner’s applications on 

November 4, 2014, noting both a lack of credibility based on 

inconsistent and uncorroborated statements and a failure to show that 

she met the requirements necessary to succeed on each of her 

applications. (Dkt. 10-2 at 26-44.) On December 15, 2014, Petitioner 

appealed that decision to the Board of Immigration Appeals. 

On January 12, 2015, Immigration and Customs Enforcement 

denied Petitioner’s second request for parole. 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 3 of 13 Pg ID 292
4 

On April 21, 2015, Petitioner filed this petition for a writ of 

habeas corpus, claiming that her continued detention under 8 U.S.C. § 

1225(b) was unlawful and in violation of the Fifth and Fourteenth 

Amendments, as well as the Immigration and Nationality Act. On May 

1, 2015, the Court issued an order requiring a response to the petition, 

and staying transfer of Petitioner’s custody out of the Eastern District 

of Michigan pending the adjudication of her petition. (Dkt. 4.) 

On May 1, 2015, the Board of Immigration Appeals dismissed 

Petitioner’s appeal, making her removal administratively final. (Dkt. 

10-7.) On May 8, 2015, Petitioner filed a petition for review of the 

removal order in the United States Court of Appeals for the Sixth 

Circuit, Case No. 15-3500. On May 12, 2015, Petitioner filed a motion 

for a stay of removal in the Court of Appeals. Lu v. Lynch, Case No. 15-

3500, Dkt. 6. On May 27, 2015, the Court of Appeals denied Petitioner’s 

motion for a stay of removal. Id., Dkt. 11. 

On May 28, 2015, Respondents renewed their motion for the Court 

to vacate its stay of the transfer of Petitioner out of this district. (Dkt. 

14.) The Court vacated its stay on May 29, 2015. (Dkt. 15.) On June 3, 

2015, Petitioner filed a motion seeking clarification of the Court’s order, 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 4 of 13 Pg ID 293
5 

inquiring whether the Court only vacated the stay, or also deemed the 

petition moot and/or dismissed the petition. (Dkt. 16.) The motion also 

renewed the request for an expedited hearing on the habeas petition, 

pursuant to the Board of Immigration Appeal’s (“BIA”) order staying 

her removal pending its determination of her motion to reopen her case. 

(Id.) 

On June 8, 2015, the Court issued an order clarifying that the 

May 29, 2015 order only vacated the stay for lack of jurisdiction, and 

did not rule on the merits of the habeas petition. (Dkt. 18.) The Court 

also requested that Respondents file a response to the request for an 

expedited hearing. (Id.) Respondents filed their response on June 17, 

2015, opposing the hearing and seeking to have the petition dismissed 

without prejudice. (Dkt. 19.) Petitioner replied on June 24, 2015. (Dkt. 

20.) Pursuant to E.D. Mich. Local R. 7.1(f), this matter will be decided 

without oral argument. 

II. Analysis 

Two issues must be resolved before determining whether an 

expedited hearing on the petition is warranted: first, whether 

Petitioner’s removal order is administratively final, and second, 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 5 of 13 Pg ID 294
6 

whether the Court may, at this juncture, grant the relief Petitioner 

requests. 

An administratively final removal order was issued on May 1, 

2015. (Dkt. 10-7.) Pursuant to that removal order, “a petition for 

review filed with an appropriate court of appeals in accordance with 

this section [is] the sole and exclusive means for judicial review of an 

order of removal entered or issued under any provision of this 

chapter[.]” 8 U.S.C. § 1252(a)(5); see also Benitez v. Dedvukaj, 656 F. 

Supp. 2d 725, 727 (E.D. Mich. 2009) (holding that exclusive jurisdiction 

over challenges to removal orders lies with the United States Court of 

Appeals). Petitioner filed her petition for review with the Sixth Circuit 

on May 8, 2015, and a motion to stay her removal on May 12, 2015. The 

Sixth Circuit denied the motion to stay Petitioner’s removal, and set a 

briefing schedule to review the order of removal. Lu v. Lynch, Case No. 

15-3500, Dkt. 12. 

Petitioner now argues that the removal order is not 

administratively final because the BIA has entered a stay of her 

removal. (Dkt. 16-1.) She contends that “[t]his stay functions as would 

the stay request that Ms. Lu had previous[ly] filed before the Sixth 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 6 of 13 Pg ID 295
7 

Circuit.” (Dkt. 16 at 9.) If the removal order is not administratively 

final, Petitioner contends that her period of detention is governed by 8 

U.S.C. § 1226, “which permits release on parole and continued district 

court jurisdiction.” (Id.) 

Respondents argue that the removal order is administratively 

final under 8 U.S.C. § 1231(a), and that Petitioner is subject to 

mandatory detention for the ninety-day period beginning on May 1, 

2015. 

As Respondents indicate, prior to the issuance of a final order of 

removal, “[t]he authority to detain an alien . . . is governed by 8 U.S.C. § 

1226”; “[a]fter the issuance of a final order of removal, the authority to 

detain an alien is governed by 8 U.S.C. § 1231.” Parlak v. U.S. 

Immigration and Customs Enforcement, Case No. 05-2003, 2006 WL 

3634385, at *1 (6th Cir. April 27, 2006) (citations omitted). An order 

becomes final “upon the earlier of a determination by the Board of 

Immigration Appeals affirming such order; or the expiration of the 

period in which the alien is permitted to seek review of such order by 

the Board of Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B)(i)-(ii). 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 7 of 13 Pg ID 296
8 

When an order is administratively final, “the Attorney General 

shall remove the alien from the United States within a period of 90 days 

(in this section referred to as the ‘removal period’).” 8 U.S.C. § 

1231(a)(1)(A). The removal period begins on the latest of the date the 

order of removal becomes administratively final, the date of the Court of 

Appeals’ final order if the order is judicially reviewed and removal is 

stayed, or “if the alien is detained or confined (except under an 

immigration process), the date the alien is released from detention or 

confinement.” 8 U.S.C. § 1231(a)(1)(B)(i)-(iii). “During the removal 

period, the Attorney General shall detain the alien.” 8 U.S.C. § 

1231(a)(2). 

The BIA affirmed Petitioner’s order of removal on May 1, 2015, 

making it administratively final. Petitioner argues that the BIA’s 

voluntary stay of her removal operates in the same manner as a stay 

ordered by a court of appeals, which would mean that the removal 

period had not yet begun, and the order would not be administratively 

final. (Dkt. 20 at 9-10.) 

Section 1231 states that the removal period begins on the latest of 

three specific occurrences, two of which are at issue here: when the 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 8 of 13 Pg ID 297
9 

order becomes administratively final, or when a court of appeals issues 

a final order regarding a petition for review pursuant to which that 

court stayed the removal. The removal order in this case is 

administratively final. The Sixth Circuit determined that it would not 

stay Petitioner’s removal, although it will hear the petition for review. 

The BIA’s decision to voluntarily stay Petitioner’s removal is not the 

“stay of the removal” contemplated under § 1231(a)(1)(B)(ii) for two 

reasons: first, the BIA’s review is an administrative review, rather than 

a “judicial[] review”; second, whatever decision the BIA makes on 

Petitioner’s motion to reopen her case, it is not a “court’s final order.” 

Were the BIA to decide not to reopen Petitioner’s case, her recourse 

would be a petition to the Court of Appeals to review that decision. 

Kucana v. Holder, 558 U.S. 233, 253 (2010). 

Petitioner is now detained pursuant to a final administrative 

order under 8 U.S.C. § 1231. Accordingly, the detainment provisions of 

that section govern. Petitioner is currently in a mandatory detention 

period of ninety days under § 1231(a)(1)(2). The Supreme Court has 

held that a post-removal detention period of six months is 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 9 of 13 Pg ID 298
10 

presumptively reasonable under § 1231. Zadvydas v. Davis, 533 U.S. 

678, 701 (2001). 

Petitioner points to cases governed by the pre-removal guidelines 

of § 1226. See, e.g., Ly v. Hansen, 351 F.3d 263, 265, 271-72 (6th Cir. 

2003) (holding that a year and a half detention was excessive where 

petitioner was still being held under § 1226); Bourguignon v. 

MacDonald, 667 F. Supp. 2d 175, 178 (D. Mass. 2009) (evaluating a 

prisoner who was being held after his removal order was reopened, 

rending the order not administratively final). These cases do not apply 

to detention under § 1231. 

Petitioner also relies on Oyedeji v. Ashcroft, in which a petitioner 

was held in custody from 1999 until 2004, including a four-year period 

from 2000 until 2004, during which the Second Circuit considered, but 

did not rule on, that petitioner’s motion to stay his removal. Oyedeji, 

332 F. Supp. 2d 747, 750 (M.D. Pa. 2004). Here, however, the Sixth 

Circuit has denied Petitioner’s motion to stay her removal, raising no 

questions about the administrative finality of the removal order or the 

applicability of the mandatory detention provision of § 1231 and the 

reasonable detention limitation of Zadvydas. 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 10 of 13 Pg ID 299
11 

Petitioner asks that the Court still hear her petition because the 

combined time she has been detained pre- and post-removal may still 

violate the Constitution. See, e.g., Monestime v. Reilly, 704 F. Supp. 2d 

453, 459 (S.D.N.Y. 2010) (holding that detention for eight months under 

§ 1226 was unreasonable under Zadvydas); Oyedeji, 332 F. Supp. 2d at 

775 (combining various periods of pre- and post-removal time in finding 

that petitioner’s length of detention was unreasonable under § 1226). 

Petitioner has not, however, argued that, even if her pre- and postremoval periods of detention are combined, the Court may upset the 

mandatory detention provisions of § 1231. See Monestime, 704 F. Supp. 

2d at 457-58 (noting that the ninety-day removal period is mandatory 

and that a challenge to post-removal detention begins “[a]fter a period 

of mandatory detention expires[.]”). The Court cannot conduct a habeas 

review of mandatory detention at this juncture. 

If Petitioner is still in custody six months after her order of 

removal became final, habeas review at that time may be proper. 

Zadvydas, 533 U.S. at 701; see also Jiang Lu v. U.S. ICE, 22 F. Supp. 

3d 839, 844 (N.D. Ohio 2014) (denying habeas petition alleging 

excessive post-removal detention under Zadvydas, but dismissing case 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 11 of 13 Pg ID 300
12 

without prejudice to any future petition regarding petitioner’s continued 

detention). However, until that time, regardless of the merits of 

Petitioner’s argument that she is not a flight risk and that she should 

be granted asylum or that she should be released pending the resolution 

of her motion to reopen in front of the BIA, this Court lacks the 

authority to hear Petitioner’s claims. 

III. Conclusion 

For the reasons set forth above, it is hereby ordered that: 

Petitioner’s motion for an expedited hearing (Dkt. 3) is DENIED; 

and 

Petitioner’s petition for a writ of habeas corpus (Dkt. 1) is 

DENIED WITHOUT PREJUDICE. 

IT IS SO ORDERED. 

Dated: June 29, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 12 of 13 Pg ID 301
13 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on June 29, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

5:15-cv-11448-JEL-APP Doc # 21 Filed 06/29/15 Pg 13 of 13 Pg ID 302