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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

San Francisco Division

MAO HEM,

Petitioner,

v.

WARDEN OF IMMIGRATION 

DETENTION FACILITY AND RIO 

COSUMNES CORRECTIONAL CENTER,

Respondent.

Case No. 16-cv-07359-LB

ORDER TO SHOW CAUSE

[Re: ECF Nos. 1, 2, 3]

INTRODUCTION

Mao Hem has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 to 

challenge his ongoing detention by the United States Immigration and Customs Enforcement 

(“ICE”) at the Rio Cosumnes Correctional Center in Elk Grove, California. He consented to 

proceed before a magistrate judge. (ECF No. 5.)1 Mr. Hem also has applied to proceed in forma 

pauperis and has requested that counsel be appointed to represent him in this action. This order 

requires the respondent to respond to the petition, grants the in forma pauperis application, and 

denies the request for counsel.

 

1 Citations are to material in the Electronic Case File (“ECF”); pinpoint cites are to the ECFgenerated page numbers at the top of the documents.

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STATEMENT

The petition provides the following information: Mr. Hem was born in Cambodia, admitted 

into the United States in 1983, and is not a citizen of the United States. On an unstated date, Mr. 

Hem was convicted of two counts of second degree murder. On or about March 28, 2016, Mr. 

Hem was detained by ICE and has remained in ICE custody since that date. On or about May 16, 

2016, Mr. Hem was ordered removed from the United States; he did not appeal that decision. Mr. 

Hem received a “decision to continue detention” form from ICE on or about August 11, 2016, and 

a second such form on or about November 17, 2016. (ECF No. 1 at 4.) Mr. Hem “has cooperated 

with all of ICE’s efforts to remove” him, but ICE has been unable to remove him and is unlikely 

to be able to remove him because “‘the Royal Government of Cambodia wishes to amend the 

current Memorandum and its Addendum’ until the implementation of a new amendment is 

completed. As a result, the process of deportation is suspended and a travel document is currently 

not pending.” (ECF No.1 at 4 (error and emphasis in source).)

ANALYSIS

1. Habeas Petition

District courts have jurisdiction under 28 U.S.C. § 2241 to review habeas petitions by noncitizens challenging the lawfulness of their detention. Zadvydas v. Davis, 533 U.S. 678, 699 

(2001). Although 8 U.S.C. § 1231(a)(6) authorizes the government to continue to detain an alien 

after entry of a final removal order, it does not permit indefinite detention of an alien whose native 

country will not accept him if he is removed. Id. at 687-88, 697-98. Once removal is no longer 

reasonably foreseeable, continued detention is no longer authorized by statute. Id. at 699-700. 

Mr. Hem contends that his continued detention is unlawful under 8 U.S.C. § 1231(a)(6) as 

interpreted by the Supreme Court in Zadvydas. Liberally construed, the petition states a cognizable 

claim for habeas relief under 28 U.S.C. § 2241 based on Mr. Hem’s indefinite detention by ICE.

Mr. Hem names five persons as respondents, but only one is needed and only one is correct.

There is generally only one proper respondent for a habeas petition under 28 U.S.C. § 2241, and 

that is the person “with the ability to produce the prisoner’s body before the habeas court”.

Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The “longstanding practice” in habeas petitions 

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challenging present physical confinement is that the “warden of the facility where the prisoner is 

being held, not the Attorney General or some other remote supervisory official” is the proper 

respondent. Id. Here, the respondent listed as “Warden of Immigration Detention Facility” is the 

proper respondent. The other respondents are dismissed. 

2. Request for Counsel

Mr. Hem requests that counsel be appointed to represent him in this action. A district court 

may appoint counsel to represent a habeas petitioner whenever “the court determines that the 

interests of justice so require” and such person is financially unable to obtain representation. 18 

U.S.C. § 3006A(a)(2)(B). Appointment of counsel is required when there will be an evidentiary 

hearing. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). The decision to appoint 

counsel otherwise generally is within the discretion of the district court. See Chaney v. Lewis, 801 

F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only when the circumstances of a 

particular case indicate that appointed counsel is necessary to prevent due process violations. See 

id. The interests of justice do not require appointment of counsel in this action. An evidentiary 

hearing does not appear necessary at this time; if one does become necessary later, the court will 

appoint counsel on its own motion. Mr. Hem’s claims for federal habeas relief have been 

adequately presented. See Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (although 

petitioner had no background in law, denial of appointment of counsel was within discretion of 

district court where petitioner adequately presented issues in petition and accompanying 

memorandum. The request for appointment of counsel is DENIED. (ECF No. 2.)

CONCLUSION

1. The clerk shall serve a copy of this order, the petition and all attachments thereto, on the 

respondent (i.e., Warden of Immigration Detention Facility at Rio Cosumnes Correctional Center)

and the respondent’s attorney (i.e., the U.S. Department of Justice, Civil Division Office of 

Immigration Litigation in Washington, D.C.) The clerk shall also serve a copy of this order on the 

petitioner. 

2. The clerk also shall serve a copy of the “consent or declination to magistrate judge 

jurisdiction” form upon the respondent and the respondent's attorney.

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3. No later than March 17, 2017, the respondent must file and serve an answer responding to 

the allegations in the petition and showing cause why a writ of habeas corpus should not be issued.

The respondent must file with the answer a copy of all documents that are relevant to a 

determination of the issues presented by the petition. If the petitioner wishes to respond to the 

answer, he must file and serve a traverse no later than April 14, 2017.

4. In lieu of an answer, the respondent may file and serve a motion to dismiss on procedural 

grounds no later than March 17, 2017. If the respondent files such a motion, the petitioner must 

file and serve an opposition or statement of non-opposition to the motion no later than April 14, 

2017. Respondent must file and serve his reply, if any, no later than April 28, 2017.

5. It is the petitioner’s responsibility to prosecute this case. He must keep the court informed 

of any change of address and must comply with the court's orders in a timely fashion. He also 

must serve on the respondent’s counsel a copy of anything he files with the court by mailing a true 

copy of the document to the respondent’s counsel.

6. The petitioner’s motion for appointment of counsel is DENIED. (ECF No. 2.) The 

petitioner’s in forma pauperis application is GRANTED. (ECF No. 3.)

IT IS SO ORDERED.

Dated: January 13, 2017

______________________________________

LAUREL BEELER

United States Magistrate Judge

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MAO HEM,

Plaintiff,

v.

TIMOTHY S. AITKEN, et al.,

Defendants.

Case No. 16-cv-07359-LB 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 

District Court, Northern District of California.

That on January 13, 2017, I SERVED a true and correct copy(ies) of the attached, by 

placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 

depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 

receptacle located in the Clerk's office.

Mao Hem ID: X-5061554

KBF 500 #43

Rio Cosumnes Correctional Center

12500 Bruceville Rd.

Elk Grove, CA 95757 

Dated: January 13, 2017

Susan Y. Soong

Clerk, United States District Court

By:________________________

Ada Means, Deputy Clerk to the 

Honorable LAUREL BEELER

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