15-42-pr Zheng v. Decker 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 15 th day of October, two thousand fifteen. 3 4 PRESENT: DENNIS JACOBS, 5 RAYMOND J. LOHIER, JR., 6 Circuit Judges , 7 GEOFFREY W. CRAWFORD,  8 District Judge

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_____________________________________ 10 11 GUANGZU ZHENG, 12 13 Petitioner-Appellant, 14 15 v. 15-42-pr 16 17 COLONEL KENNETH A. DECKER, 18 Warden and Administrator of Orange County 19 Jail, New York, 20 21 Respondent-Appellee. 22 23

_____________________________________ 24 25 FOR PETITIONER-APPELLANT: MING HAI, Law Office of Ming Hai, P.C., 26 Flushing, New York. 27 28 FOR RESPONDENT-APPELLEE: CRISTINE IRVIN PHILLIPS, Benjamin H. 29 Torrance, Emily E. Daughtry, Assistant United 30 States Attorneys (for Preet Bharara, United States 31

 The Honorable Geoffrey W. Crawford, of the Un ited States District Court for the District of Vermont, sitting by designation.2 Attorney for the Southern District of New York), 1 New York, New York. 2 3 Appeal from a judgment of the United States District Court for the Southern District of 4 New York (Dolinger, M.J.). 5 6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, and 7 DECREED that the order of the district court is AFFIRMED

. 8 9 Petitioner-Appellant Guangzu Zheng appeals from the judgment of the United States 10

District Court for the Southern District of New York (Dolinger, M.J.), dismissing Zheng’s 11 28 U.S.C. § 2241 petition challenging his con tinued immigration detention. We assume 12 familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. 13

We review de novo the district court’s denial of Zheng’s § 2241 habeas petition and review 14 any factual findings for clea r error. Lugo v. Hudson, 785 F .3d 852, 854 (2d Cir. 2015). The 15 issue is whether Zheng’s continued immigrati on detention is statutorily and constitutionally 16 permissible. 1 17 Because both parties appear to agree that Zheng’s detention is covered by 8 U.S.C. 18 § 1231(a), we will proceed on that assumption. Zheng’s statutory “removal period” commenced 19

on the date his order of removal became administ ratively final. 8 U.S.C. § 1231(a)(1)(B). That 20 was February 27, 2014, the date the Board of Im migration Appeals (“BIA”) upheld the removal 21 order of an immigration judge and dismissed Zheng’s appeal. 8 U.S.C. § 1101(a)(47)(B)(i) 22 (providing that an “order of deportation” become s final upon the BIA’s affirmance of such order); 23

see also Chupina v. Holder, 570 F.3d 99, 104 (2d Cir. 2009) (explaining that “[t]he term ‘order of 24 deportation[]’ . . . is synonymous with the term ‘order of removal’”). 25

1 Zheng has waived any challenge to the district court’s denial of hi s request to order the Government to refrain from transferring him outside of New York. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).3 Pursuant to 8 U.S.C. § 1231(a)(1)(A) and (a)(2 ), “when an alien is ordered removed, the 1 Attorney General shall remove the alien from th e United States within a period of 90 days,” and 2 the alien must be detained during that period of time until removal is effectuated. The 90-day 3 period, however, may be extended. See, e.g., 8 U. S.C. § 1231(a)(6). In Zadvydas v. Davis, 533 4 U.S. 678, 699 (2001), the Supreme Court considered the constitutionality of 8 U.S.C. § 1231, in 5 view of its “apparent authorizat ion of indefinite executive de tention.” Wang v. Ashcroft, 320 6 F.3d 130, 146 (2d Cir. 2003). Saving the statute from possible unconstitutiona lity, the Court held 7 that “once removal is no longer reasonably fo reseeable, continued detention is no longer 8 authorized by statute.” Zadvydas, 533 U.S. at 699. This “reasonably foreseeable” standard 9 governs both whether continued detention is statutor ily authorized and whether it is constitutional. 10 See Wang, 320 F.3d at 146. 11 In Zadvydas, the Supreme Court ruled that a six-month period of detention pending 12 removal is presumptively reasonable. 533 U.S. at 701. An alien cha llenging his detention 13 beyond this period bears the burden to “provide[] good reason to believe that there is no significant 14 likelihood of removal in the reasonably foreseeab le future”; if he provides such reason, “the 15 Government must respond with evidence su fficient to rebut that showing.” Id. 16 Zheng’s six-month, presumptively reasonable period of detention pursuant to § 1231 has 17 expired. Zheng argues that there is “no signi ficant likelihood of removal in the reasonably 18 foreseeable future,” as evidenced by the Governme nt’s purported failure to exercise due diligence 19 in effectuating Zheng’s removal before the expiration of a travel document. Id. 20 Zheng’s argument lacks merit. The Chines e government issued a travel document for 21 Zheng on April 8, 2014, which was valid for three m onths. That same day, Zheng moved the BIA 22 for reconsideration and a stay of removal; the BIA granted the st ay on June 6, 2014. Also on 23 June 6, 2014, Zheng moved this Court for a stay of removal. Zheng v. Lynch, No. 14-802, 244 Dkts. 31, 33 (2d Cir.). In accordance with the Government’s forbearance policy, Zheng may not 1 be removed while his stay motion is pending. See Efstathiadis v. Holder, 752 F.3d 591, 599 n.5 2 (2d Cir. 2014). Thus the Government has been prevented from removing Zheng by the BIA’s 3 stay of removal (sought by Zheng) and by its own forbearance policy (also resulting from Zheng’s 4 pursuit of an additional stay). If this Court denies Zheng’s pe tition for review and pending stay 5 motion, the Government can seek another travel document. Given this record, Zheng has not 6 “provide[d] good reason to believe that there is no significant likelih ood of removal in the 7 reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. 8 Furthermore, the Government has shown a “significant likelihood of removal in the 9 reasonably foreseeable future.” Id. Once this Court decides Zheng’s pending petition for 10 review, the Government will eith er remove or release Zheng. China has once already issued a 11 travel document for Zheng, and there is no reas on to believe it would not do so a second time. 12 For the foregoing reasons, and finding no meri t in Zheng’s other ar guments, we hereby 13

AFFIRM the judgment of the district court. 14

FOR THE COURT: 15 Catherine O = Hagan Wolfe, Clerk 16