NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

PUI MAN LI, :

:

Petitioner, :

:

v. :

:

ERIC HOLDER, et al., :

:

Respondents. :

 :

Civil Action No. 10-3905 (MLC)

O P I N I O N

APPEARANCES:

PUI MAN LI, 091-308-464, Petitioner Pro Se

Monmouth County Correctional Institution, One Waterworks Road

Freehold, New Jersey 07728

COOPER, District Judge

Pui Man Li, a citizen of Hong King, China, filed a Petition

for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging

his detention in the custody of Immigration and Customs

Enforcement (“ICE”) of the Department of Homeland Security

(“DHS”). Petitioner challenges his detention at the Monmouth

County Correctional Institution as not statutorily authorized and

in violation of due process guaranteed by the Fifth Amendment,

and seeks an order directing respondents to release him from

custody. Because Petitioner has not alleged facts showing that

his removal is not reasonably foreseeable, his detention is

statutorily authorized by 8 U.S.C. § 1231(a)(6). This Court will

summarily dismiss the Petition, without prejudice to the filing

of a new petition in a new civil action in the event that

Petitioner’s removal is not reasonably foreseeable.

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I. BACKGROUND

Petitioner entered the United States on January 4, 1991, and

asserts that he served a three-year prison term for selling

illegal drugs. Petitioner alleges that DHS took him into custody

on January 5, 2010, when he was released from prison. Petitioner

asserts that he has “cooperated fully with all efforts by ICE to

remove him from the U.S.A. [and, a]lthough he has signed for his

removal back to China and he is still being detained, it’s been

over seven months that he has signed his documents to go back to

China.” (Docket Entry #1, p. 3.) Petitioner contends that he

“has already been detained in excess of six months and

Petitioner’s removal is not significantly likely to occur in the

reasonably foreseeable future,” but he provides no factual

support for this conclusion. (Id. at p. 4.) He argues that his

continued detention is not statutorily authorized and violates

procedural and substantive due process. (Id. at pp. 3-5.) He

seeks a writ of habeas corpus “directing the Respondents to

immediately release Petitioner from custody.” (Id., p. 5.) 

II. DISCUSSION

A. Jurisdiction

Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not

extend to a prisoner unless . . . [h]e is in custody in violation

of the Constitution or laws or treaties of the United States.” 

28 U.S.C. § 2241(c)(3). A federal court has subject matter

jurisdiction under § 2241(c)(3) if two requirements are satisfied: 

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(1) the petitioner is “in custody,” and (2) the custody is “in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488,

490 (1989); 1 James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice & Procedure § 8.1 (4th ed. 2001). This Court has

subject matter jurisdiction over the Petition under § 2241

because Petitioner was detained within its jurisdiction in the

custody of the DHS at the time he filed his Petition, see Spencer

v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention

is not statutorily authorized and violates his constitutional

rights. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d

Cir. 2005).

B. Standard of Review

Habeas Rule 4 requires a district court to examine a habeas

petition before ordering an answer and to dismiss the petition if

the petitioner is not entitled to relief. See 28 U.S.C. § 2254

Rule 4, applicable through Rule 1(b). Habeas Rule 4 provides in

relevant part:

The clerk must promptly forward the petition to a judge

. . . and the judge must promptly examine it. If it

plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief

in the district court, the judge must dismiss the

petition and direct the clerk to notify the petitioner.

28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b).

“Federal courts are authorized to dismiss summarily any

habeas petition that appears legally insufficient on its face.” 

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McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan, 773

F.2d 37, 45 (3d Cir. 1985). Dismissal without the filing of an

answer is warranted “if it appears on the face of the petition

that petitioner is not entitled to relief.” Siers, 773 F.2d at

45; see United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)

(habeas petition may be dismissed where “none of the grounds

alleged in the petition would entitle [petitioner] to relief”).

C. Legality of Detention

The Immigration and Nationality Act authorizes the Attorney

General of the United States to issue a warrant for the arrest

and detention of an alien pending a decision on whether the alien

is to be removed from the United States. See 8 U.S.C. § 1226(a)

(“On a warrant issued by the Attorney General, an alien may be

arrested and detained pending a decision on whether the alien is

to be removed from the United States”). “Detention during

removal proceedings is a constitutionally permissible part of

that process.” Demore v. Kim, 538 U.S. 510, 531 (2003).

Once an alien is ordered removed, the Attorney General must

remove him or her from the United States within a 90-day “removal

period.” See 8 U.S.C. § 1231(a)(1)(A) (“Except as otherwise

provided in this section, when an alien is ordered removed, 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). This 90-day

removal period begins:

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on the latest of the following:

(i) The date the order of removal becomes

administratively final.

(ii) If the removal order is judicially reviewed and if

a court orders a stay of the removal of the alien, the

date of the court’s final order.

(iii) 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). 

Section § 1231(a)(2) requires the Attorney General to detain

aliens during this 90-day removal period. See 8 U.S.C. §

1231(a)(2). However, if the DHS does not remove the alien during

this 90-day removal period, then § 1231(a)(6) authorizes the

Attorney General to thereafter release or continue to detain the

alien. Specifically, § 1231(a)(6) provides: 

An alien ordered removed who is inadmissible under

section 1182 of this title, removable under section

1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title

or who has been determined by the Attorney General to

be a risk to the community or unlikely to comply with

the order of removal, may be detained beyond the

removal period and, if released, shall be subject to

the terms of supervision in paragraph (3).

8 U.S.C. § 1231(a)(6).

Section 1231(a)(6) does not authorize the Attorney General

to detain aliens indefinitely beyond the removal period, but

“limits an alien’s post-removal-period detention to a period

reasonably necessary to bring about that alien’s removal from the

United States.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). 

But “once removal is no longer reasonably foreseeable, continued

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detention is no longer authorized by statute.” Id. at 699. Six

months is a “presumptively reasonable period” of post-removalperiod detention. Id. at 701. “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.” Id.1

Petitioner’s six-month presumptively reasonable period of

detention under § 1231(a)(6), as interpreted by Zadvydas, began

to run at the earliest on January 5, 2010, when he was taken into

custody of DHS, and continued through July 5, 2010. Petitioner

executed the § 2241 Petition on July 16, 2010, eleven days after

the six-month presumptively reasonable period of detention

expired. Petitioner’s detention continues to be authorized by 8

U.S.C. § 1231(a)(6), however, because no facts alleged in his

Petition “provide[] good reason to believe that there is no

significant likelihood of removal [to China] in the reasonably

foreseeable future,” as required by Zadvydas, 533 U.S. at 701,

 The Supreme Court ruled in Clark v. Martinez, 543 U.S. 371 1

(2005), that the post-removal-period detention of two

inadmissible aliens from Cuba who had not effected “entry” was no

longer statutorily authorized by § 1231(a)(6) because removal to

Cuba was not reasonably foreseeable. See id. at 384.

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which would require the government to “respond with evidence

sufficient to rebut that showing.” Id.2

Because Petitioner has not made the required showing under

Zadvydas, his detention is authorized by § 1231(a)(6) and this

Court will dismiss the Petition for failure to assert facts

showing that Petitioner is detained contrary to the laws, the

Constitution, or treaties of the United States. However, the

dismissal is without prejudice to the filing of a new § 2241

petition (in a new civil action) in the event that Petitioner can

show that there is good reason to believe that there is no

significant likelihood of Petitioner’s removal in the reasonably

foreseeable future. See Akinwale, 287 F.3d at 1052 (“Because

circumstances may ultimately change in [petitioner’s] situation,

 To state a claim of unauthorized detention, a petitioner 2

must provide “good reason to believe that there is no likelihood

of removal in the reasonably foreseeable future.” Zadvydas, 533

U.S. at 701; see Joseph v. United States, 127 Fed.Appx. 79, 81

(3d Cir. 2005) (affirming dismissal of § 2241 petition

challenging detention pursuant to § 1231(a)(6): “Under Zadvydas,

a petitioner must provide ‘good reason’ to believe there is no

likelihood of removal, 533 U.S. at 701, and Alva has failed to

make that showing here”); Soberanes v. Comfort, 388 F.3d 1305

(10th Cir. 2004) (affirming dismissal of § 2241 petition

challenging detention pursuant to § 1231(a)(6) where petitioner

failed to provide good reason to believe that there is no

likelihood of removal); Akinwale v. Ashcroft, 287 F.3d 1050, 1052

(11th Cir. 2002) (“to state a claim under Zadvydas the alien not

only must show post-removal order detention in excess of six

months but also must provide evidence of a good reason to believe

that there is no significant likelihood of removal in the

reasonably foreseeable future”).

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we affirm the dismissal [of his habeas petition] without

prejudice to [his] ability to file a new § 2241 petition in the

future”).

III. CONCLUSION

The Court will dismiss the Petition without prejudice to the

filing of another petition (in a new civil action) in the event

that there is no significant likelihood of removal in the

reasonably foreseeable future.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: December 23, 2010

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