IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TONG HO ZHANG, A-70-577-572 :

:

Petitioner, :

: 

 v. : CIVIL ACTION

 :

JOHN ASHCROFT AND :

IMMIGRATION AND : NO. 02-4377

NATURALIZATION SERVICE :

:

Respondents. : 

ORDER

AND NOW, this day of , 2002, upon

consideration of the Government’s response to Petitioner’s Writ of Habeas Corpus, and

any response thereto, it is hereby ORDERED that the petition is DENIED.

BY THE COURT:

JAN E. DuBOIS

Judge, United States District Court

Case 2:02-cv-04377-JD Document 8 Filed 08/21/2002 Page 1 of 13
1 Tong Ho Zhang also has used an alias, Chin Sun Lin, which is the

name reflected in the Order to Show Cause and the Immigration

Judge’s Order, Exhibits 1 and 2; See Exhibit 3 for information

relating to the alias).

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TONG HO ZHANG, A-70-577-572 :

:

Petitioner, :

: 

 v. : CIVIL ACTION

 :

JOHN ASHCROFT AND :

IMMIGRATION AND : NO. 02-4377

NATURALIZATION SERVICE :

:

Respondents. : 

GOVERNMENT’S RESPONSE TO

PETITION FOR WRIT OF HABEAS CORPUS AND 

REPORT ON PETITIONER’S CUSTODY STATUS

The United States of America, by its attorneys, Patrick L. Meehan, United

States Attorney for the Eastern District of Pennsylvania, and Susan R. Becker, Assistant

United States Attorney for the District, on behalf of respondents, the Attorney General of

the United States and the Immigra tion and Naturalization Service, hereby files this

response to Tong Ho Zhang’s Petition for Writ of Habeas Corpus and moves the Court to

dismiss the Petition with prejudice. 

I. Introduction

This is a habeas petition brought under 28 U.S.C. § 2241 by Tong Ho

Zhang, a native and citizen of China.1 He entered the United States illegally at Douglas,

Arizona on or about July 29, 1992. (See Exhibit 1). On July 30, 1992, the Immigration

Case 2:02-cv-04377-JD Document 8 Filed 08/21/2002 Page 2 of 13
2

In Zhang’s case, the removal period began on December 12, 2001,

the date the Service took Zhang into custody. See 8 U.S.C. §

1231(a)(1)(B)(iii).

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and Naturalization Service (“the Service”) issued an Order to Show Cause and Notice of

Hearing, advising Zhang that he was subject to deportation under Section 241(a)(1)(B) of

the Immigration and Nationality Act (“the Act”) as an alien who entered the United States

without inspection. (See Exhibit 1). On October 14, 1992, an Immigration Judge held a

hearing on the charges set forth in the Order to Show Cause. Zhang breached his bond

and did not appear for the hearing. The Immigration Judge ordered Zhang removed, in

absentia, to China. (See Exhibit 2). 

At some point during 2001, the Service caught up with Zhang when he was

detained for an arrest at a local prison. On or about December 12, 2001, upon his release

from the custody of the local authorities, the Service a rrested Zhang and took him into

custody in order to carry out his final order of removal. On June 27, 2002, Zhang filed

this habeas petition. He claims that his detention during these removal proceedings

violates the Supreme Court’s decision in Zadvydas v. Davis, 121 S.Ct. 2492 (2001), and

that the Service will not be able to remove him to China in the reasonably foreseeable

future. 

Zhang’s argument is without merit. Under the Immigra tion and Nationality

Act (“the Act”), the Service is given a 90 day “removal period” in order to carry out an

order of remova l. 8 U.S.C. § 1231(a)(1)(A).2 In Zadvydas, the Supreme Court held that

the statutory removal period for an alien in deportation proceedings may be extended by

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the Attorney General up to six months. 121 S.Ct. at 2505. However, the Court did not

limit the removal period to a maximum of six months. Rather, as the Court stated: “[t]his

6-month presumption, of course, does not mean that every alien not removed must be

released after six months. To the contrary, an alien may be held in confinement until it

has been determined that there is no significant likelihood of remova l in the reasonably

foreseeable future.” Id. 

The Service has made diligent efforts to obtain travel documents for Zhang

from the consulate in China and believes it will be able to carry out his removal in the

reasonably foreseeable future. The Service has consistently been able to repatriate

Chinese nationals over the past several years, and Zhang has not presented any evidence

that he cannot be returned to his native country. It is lawful under Zadvydas for the

Service to continue to detain Zhang as it completes the proc ess for carrying out his

removal to China. Zhang’s petition for writ of habeas corpus should therefore be

dismissed. The Court has jurisdiction under 28 U.S.C. § 2241(c)(3); there is no

exhaustion requirement. 

II. Factual Background

1. Tong Ho Zhang, a.k.a. Chin Sun Lin, is a native and citizen of China. (See

Exhibit 1, Order to Show Cause; Exhibit 3, Information for Travel

Document or Passport, reflecting Zhang’s alias). 

2. Zhang entered the United States illegally at Douglas, Arizona, on or about

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July 29, 1992. (See Exhibit 1).

3. On July 30, 1992, the Service issued an Order to Show Cause and Notice or

Hearing, advising Zhang that he was excludable from the United States

because he had entered without inspec tion. (See Exhibit 1).

4. On October 14, 1992, an Immigration Judge held a hearing on the charges

set forth in the Order to Show Cause. Zhang breached his bond and did not

appear for the hearing. The Immigration Judge ordered Zhang removed, in

absentia, to China. (See Exhibit 2). Zhang never appealed the decision or

moved to reopen his proceedings before the Board of Immigration Appeals. 

5. In 2001, the Service encountered Zhang when he was detained by local

authorities for an arrest, and became aware of the outstanding order of

deportation. 

6. On August 27, 2001, the Service presented Zhang to the Chinese consulate

in New York as part of the process for obtaining travel documents to

repatriate him to China. (See Exhibit 3 and Exhibit 5, Custody Review

Worksheet, p.1). The Service made subsequent requests for travel

documents from the Chinese consulate on December 10, 2001 and February

12, 2002. (See Exhibit 4 and Exhibit 5, Custody Review Worksheet, p.1).

7. On December 12, 2001, upon his release by local authorities, the Service

took Zhang into custody in order to carry out his removal order. (See

Exhibit 5, Custody Review Workshe et, p.1). 

Case 2:02-cv-04377-JD Document 8 Filed 08/21/2002 Page 5 of 13
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8. On March 14, 2002, because the Service had not yet carried out the order

removing Zhang to China, Service deportation officers performed a review

of his custody sta tus. (See Exhibit 5). 

9. March 19, 2002, the District Director issued a decision that Zhang should

remain in custody based on the risk of flight were he to be released. The

District Director transferred control of Zhang’s custody case to the

Service’s Headquarters Post Order Detention Unit (“HQPDU”). (See

Exhibit 6).

10. On May 16, 2002, the HQPDU issued a Decision to Continue Detention. 

The decision stated that it was likely that a Chinese national such as Zhang

can be removed to China, and noted the numbers of Chinese nationals

removed to China in Fiscal Years 2000, 2001 and 2002. The decision

further stated that Zhang could bring forth evidence at anytime in the future

to demonstrate reason to believe that his removal to China was unlikely.

(See Exhibit 7). 

11. On June 27, 2002, Zhang filed this habeas petition challenging his detention

during these removal proceedings. 

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III. Legal Argument

A. Zhang’s De tention is Lawful Under Both The Act and the Supreme Court’s

Decision in Zadvydas v. Davis.

Under the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq. (“the

Act”), the Service has a 90 day statutory “removal period” in order to effect Zhang’s

removal from the United States. 8 U.S.C. § 1231(a)(1)(A). The removal period starts at

the latest of three points: the date the order becomes administratively final; the date of any

reviewing court’s final order; or the date the alien is released from crimina l confinement. 

See 8 U.S.C. § 1231(a)(1)(B)(i)-(iii). In Zhang’s case, the removal period began

December 12, 2001, the date the Service took him into custody in orde r to carry out his

removal. See 8 U.S.C. § 1231(a)(1)(B)(iii). Detention is mandatory during the removal

period. 8 U.S.C. § 1227(a)(2). If the Service is unable to remove the alien during those

90 days, however, the government “may” continue to detain the alien if the Attorney

General has determined the alien to be a “risk to the community or unlikely to comply

with the order of removal . . . .” 8 U.S.C. § 1231(a)(6); see also 8 C.F.R. § 241.4(a). 

Zhang relies on the Supreme Court’s decision in Zadvydas v. Davis to

support his claim that he is being illegally detained. In Zadvydas, the Supreme Court

addressed the issue of the temporal limits of detention of an alien under a final order of

removal. The Zadvydas petitioner had been admitted to the United States for permanent

residence, but had been ordered deported following criminal convictions. Because

Zadvydas was actually “stateless” (he had been born in a displac ed persons’ camp in

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Europe just after the Second World War), no country would agre e to take him. The Court

held that Zadvydas’ continued detention was not permissible absent some showing that he

could be removed. 

In this case, however, Zhang’s reliance on Zadvydas is misplaced. The

Supreme Court has interpreted § 1231(a)(6) to limit an alien’s post-removal-period

detention “to a period reasonably necessary to bring about that alien’s removal from the

United States.” Zadvydas, 121 S.Ct. at 2498. The Court further stated that extending the

detention period for an alien in deportation proc eedings up to six months is

“presumptively reasonable.” Id. at 2505. Zhang’s removal period began on December

12, 2001, the da te the Se rvice took him into custody in orde r to carry out his removal. 

See 8 U.S.C. § 1231(a)(1)(B)(iii). Thus, under Zadvydas, the Service would have until at

least June 12, 2002 as a presumptively reasonable time to detain Zhang pending actual

removal. The fact that this period has recently expired, however, does not mean that

Zhang is entitled to be released. 

Zadvydas does not limit the Service to a maximum of six months for

carrying out a deportation. Rather, the Court in Zadvydas noted: 

After this 6-month period, once the alien provides good

reason to believe that there is no significant likelihood of

removal in the reasonably foreseeable future, the Government

must respond with evidence sufficient to rebut that showing.

And for detention to remain reasonable, as the period of prior

post-removal confinement grows, what counts as the

"reasonably foreseeable future" conversely would have to

shrink. This 6-month presumption, of course, does not mean

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that every alien not removed must be released after six

months. To the contrary, an alien may be held in confinement

until it has been determined that there is no significant

likelihood of removal in the reasonably foreseeable future.

Zadvydas, 121 S.Ct. at 2505 (emphasis added).

Zhang has not presented sufficient evidence that "there is no significant

likelihood of removal in the reasonably foreseeable future," as required by Zadvydas. 

The Service is making active efforts to obtain travel documents for Zhang. (See Exhibits

4 and 5). Although these requests are still pending, there is no reason to believe that the

Service will be unable to carry out Zhang’s removal within the reasonably foreseeable

future. Petitioner’s sole evidence of the Service’s inability to remove him is his

unsupported statement that he “has been informed that China is not issuing travel

documents for any deported at this point.” (Petition a t p.1). However, this statement is

belied by the Service’s May 16, 2002 custody report, which notes that the Service 

removed 531 persons to China in 2000, 472 persons in 2001, and 207 persons in the first

three months of this year. (See Exhibit 7). Under these circumstances, the Service is we ll

within its rights to detain Zhang a s it completes the process for carrying out his removal. 

The Service has followed its procedures for reviewing Zhang’s custody

status since he has been detained beyond the 90 day statutory removal period. The

regulations pertaining to the Act state that:

The district director may continue in custody any alien

. . . removable under [8 U.S.C. §] 1227(a)(2). . . or who

presents a significant risk of noncompliance with the

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order of removal, beyond the removal period, as

necessary, until removal from the United States. If

such an alien demonstrates by clear and convincing

evidence that the release would not pose a danger to

the community or a significant flight risk, the district

director may, in the exercise of discretion, order the

alien released from custody on such conditions as the

district director may prescribe, including bond in an

amount sufficient to ensure the alien's appearance for

removal.

8 C.F.R. § 241.4(a). 

In reviewing an alien's case for continued detention or release:

The district director may consider, but is not

limited to considering, the following factors: (1)

The nature and seriousness of the alien's

criminal convictions; (2) Other criminal history;

(3) Sentence(s) imposed and time actually

served; (4) History of failures to appear for

court (defaults); (5) Probation history; (6)

Disciplinary problems while incarcerated; (7)

Evidence of rehabilitative effort or recidivism;

(8) Equities in the United States; and (9) Prior

immigration violations and history. 

8 C.F.R. § 241.4(f).

On March 19, 2002, the Distric t Director reviewed Zhang’s custody sta tus. 

Based on a review of Zhang’s file and the Post-Order Custody Review Sheet prepared by

the deportation officer (Exhibit 6), the District Director determined that Zhang would not

be released from Service custody because he posed a significant risk of flight. (See

Exhibit 6). 

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The custody review process has now been transferred to the Service’s

Headquarters Post-Order Detention Unit (“HQPDU”), which found that Zhang had not

demonstrated any evidence that his removal is unlikely. (See Exhibit 7). Should Zhang

continue to be detained for an extended period of time while awaiting removal, he is

entitled to additional custody reviews by the HQPDU on a regular basis, and may present

evidence of changed circumstances that would justify his supervised release, or evidence

that would establish that the Service will not be able to carry out his removal in the

reasonably foreseeable future. At this time, however, the Se rvice’s detention of Zhang is

consistent the Act, its regulations, and with the Supreme Court’s ruling in Zadvydas. 

 

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IV. Conclusion

Petitioner Zhang cannot establish any violation of the Constitution or

statutes of the United States, and there is no basis for the Court to grant the relief he

requests. For the foregoing reasons, the government respectfully requests that the Court

dismiss the Petition with prejudice.

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney

_________________________

JAMES G. SHEEHAN

Assistant United States Attorney

Chief, Civil Division

Dated: August , 2002 ________________________

SUSAN R. BECKER

Assistant United States Attorney

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CERTIFICATE OF SERVICE

I hereby certify that on the day of August, 2002, I caused a true and correct copy

of the foregoing Government’s Response to Petition for Habeas Corpus and Report on

Petitioner’s Custody Status to be served by first-class mail, postage prepaid, upon the

following:

Tong Ho Zhang

Berks County Prison

1287 Welfare County Road

Leesport, PA 19533

Pro se petitioner

_________________________________

Susan R. Becker

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