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Phan v. Brott

United States District Court, D. Minnesota

September 14, 2017

Chamroeun Phan, Petitioner,
v.
Joel Brott, Sherburne County Sheriff, and Scott Baniecke, Field Office Director, Immigration and Customs Enforcement, all individuals being sued in their Individual and official capacity, Respondents.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER UNITED STATES MAGISTRATE JUDGE

         On February 9, 2017, Petitioner Chamroeun Phan filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his custody by U.S. Immigration and Customs Enforcement (ICE). (Pet. [Doc. No. 1].) As set forth below, the Court recommends that the Petition be granted and Petitioner's Motion for Leave to File Evidence in Support of Petition for Habeas Corpus [Doc. No. 21] be granted.

         I. Background

         Petitioner is a native of Thailand and a citizen of Cambodia. (Lee Decl. ¶ 4 [Doc. No. 1].) Petitioner was admitted into the United States in 1984 as a refugee, and his status was adjusted to that of a lawful permanent resident on March 31, 1986. (Her Decl. Ex. C (Notice to Appear) [Doc. No. 1-3].) On October 26, 2007, he was convicted of Drugs-Fifth Degree-Possess Schedule 1, 2, 3, 4-Not Small Amount of Marijuana in violation of Minnesota Statute 152.025.2(1) in Ramsey County (Minnesota) District Court, and sentenced to five years probation. (Lee Decl. ¶ 4.) On September 3, 2009, he was convicted in Ramsey County District Court of Damage to Property-First Degree, in violation of Minnesota Statute 609.595.1(3), and sentenced to 365 days incarceration. (Lee Decl. ¶ 5.)

         On October 5, 2011, Petitioner was served with a Notice to Appear for removal proceedings. (Lee Decl. ¶ 6.) He was charged as removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227) due to his conviction of an aggravated felony. (Lee Decl. ¶ 6.) He was also charged as removable under section 237(a)(2)(B)(i) of the Act, as amended, after he was convicted of a violation of any law or regulation of a State relating to a controlled substance. (Lee Decl. ¶ 6.)

         Petitioner was ordered removed to Cambodia on June 20, 2013. (Lee Decl. ¶ 7.) ICE then issued a Warrant of Removal/Deportation on June 24, 2013, and Petitioner was detained. (Lee Decl. ¶ 8.) A few months later, on September 30, 2013, Petitioner was released on an Order of Supervision because there was a lack of significant likelihood of removal in the reasonably foreseeable future. (Lee Decl. ¶ 7; Resp. Pet. Habeas Corpus at 3 [Doc. No. 9].) According to Respondents, the removal rate to Cambodia improved after 2013, and in 2016, ICE successfully repatriated seventy-one Cambodian nationals. (Lee Decl. ¶ 9.)

         In August 2016, representatives from the Government of Cambodia agreed to travel to the United States to conduct interviews with Cambodian nationals with final removal orders. (Lee Decl. ¶ 10.) Petitioner's supervised release was revoked to facilitate the interview process. (Lee Decl. ¶ 10.) On September 7, 2016, Petitioner met with Cambodian government representatives in California. (Lee Decl. ¶ 12.) Petitioner returned to Minnesota on October 18, 2016, but remained still in custody. (Lee Decl. ¶ 13.)

         On February 3, 2017, the Cambodian government issued Petitioner a travel document. (Harrison Decl. ¶ 3 [Doc. No. 8].) In preparation of his removal, ICE moved Petitioner to Oakdale, Louisiana to stage for removal. (Lee Decl. ¶ 17.) On February 9, 2017, Petitioner filed this Petition, seeking immediate release from ICE custody pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001), because more than six months had passed since he was first detained and because there was not a significant likelihood of removal in the reasonably foreseeable future. (Pet. at 9.)

         Several important developments occurred in this case after the original briefing was completed on Petitioner's habeas petition. On March 27, 2017, an immigration judge granted a motion to reopen on the basis that Petitioner had demonstrated his eligibility for relief from removal based on a change in the law and had shown a substantial likelihood of a different result to his case. (Supp. Habeas Pet. Ex. G at 2-3 [Doc. No. 14-1].) The immigration judge also found that Petitioner was entitled to favorable discretion in light of his strong family ties to United States, the hardship his immediate relatives would suffer if he was deported, and the evidence of rehabilitation from his criminal convictions. (Id. at 3-4.)

         On May 17, 2017, the immigration judge granted Petitioner an adjustment of status to that of a permanent resident under INA §245, along with a waiver under INA §212(h). (Supp. Habeas Pet. Ex. H [Doc. No. 14-2].) The Department of Homeland Security (“DHS”) appealed that decision on May 25, 2017, to the Board of Immigration Appeals. (Second Lee Decl. ¶ 11 [Doc. No. 16].) The Board of Immigration Appeals issued a briefing schedule, with appeal briefs due on July 20, 2017. (Second Lee Decl. ¶ 12.) DHS then moved for an extension of briefing, and its request was granted, making its brief due August 10, 2017. (Status Report on DHS Appeal to Board of Immigration Appeals Ex. 1 [Doc. No. 19-1].)

         On August 8, 2017, Petitioner's travel documents from Cambodia expired. (Second Lee Decl. ¶ 13.) ICE agent Xiong Lee declared on July 19, 2017, that “Per ICE removal headquarters, it is likely the Cambodian government will re-issue a new travel document at the conclusion of [Petitioner's] case if he is ordered removed to Cambodia and the document has expired.” (Second Lee Decl. ¶ 14.) There is nothing in the record, however, as to whether an application has been made to the Cambodian government for such travel documents. On August 12, 2017, Petitioner filed a motion for leave to file additional evidence in support of his habeas petition [Doc. No. 21]. With his motion, Petitioner filed an article from The Cambodia Daily, dated August 11, 2017, which quotes Cambodian officials as stating that the government of Cambodia has now “halted issuance of any further travel documents.” (Motion Leave File Evidence Supp. Pet. Habeas Corpus Ex. 1 [Doc. No. 21-1].)

         II. Analysis

         Petitioner has now been detained for more than a year. During the first portion of his detention, Petitioner was subject to a final removal order. During the second portion, and currently, Petitioner is no longer subject to a final removal order. The Court explains the standards for reviewing the constitutionality of the two different types of detention and their interplay below.

         After a person is subject to a final order of removal from the United States, he cannot be detained indefinitely, in accordance with constitutional due process. Zadvydas, 533 U.S. at 699-700. In Zadvydas, the Supreme Court held that removal detentions of six months or less are presumptively constitutional, but detentions longer than six months will meet due process standards only if a ‚Äúsignificant likelihood of removal in the reasonably foreseeable ...


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