United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon UNITED STATES DISTRICT JUDGE
Changming Lin is currently being held at the Pulaski County
Detention Center in Ullin, Illinois. (Doc. 1, p. 2).
Proceeding pro se, Petitioner has filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2241,
challenging his detention by Immigration & Customs
Enforcement officials since July 24, 2015. (Doc. 1).
Petitioner insists that his detention is improper because he
has been detained pending removal for longer than the six
months that is presumptively allowed under Zadvydas v.
Davis, 533 U.S. 678 (2001), and there is no likelihood
of removal in the reasonably foreseeable future.
matter is now before the Court for review of the Petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases
in United States District Courts, which provides that upon
preliminary consideration by the district court judge,
“[i]f 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.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus
cases. Following careful review of the Petition in the
present case, this Court concludes that Petitioner is not
entitled to relief, and the Petition must be dismissed.
Petition states Lin was born in China but became a legal
permanent resident of the United States. (Doc. 1, p. 4). In
2003, 2007 and 2010, respectively, Lin was convicted of
assault causing bodily injury, distribution of marijuana, and
conspiracy to distribute methamphetamine. Id. Upon
completion of his federal sentence for conspiracy to
distribute methamphetamine on July 24, 2015, Lin was
transferred directly into the custody of ICE pending removal
proceedings. (Doc. 1, p. 5). He was charged with removability
under 8 U.S.C. §§ 1227(a)(2)(A)(iii) (for having
committed an “aggravated felony”) and
1227(a)(2)(B) (for having been convicted of a controlled
substance offense) on August 7, 2015. Id.
not dispute either charge and conceded his removability, but
he did apply for withholding of removal under the Convention
Against Torture based on a claimed fear of torture by the
Chinese government because of his criminal convictions and a
tattoo on his body which he says would incorrectly suggest he
was a member of a criminal gang. Id. An immigration
court continued proceedings once to allow Lin time to prepare
and file an application for such relief, and also
re-scheduled an evidentiary hearing on Lin's claim for
withholding to allow him time to retain an expert witness.
Id. Efforts to retain an expert witness were
ultimately unsuccessful and his application was ultimately
denied after a December 1, 2015 hearing. Id. The
immigration court indicated it would deny the petition and
allowed Lin time to decide whether to appeal, in which case
the court would issue a written decision. Id. Lin
decided to appeal (around December 19, 2015) and a decision
was thus prepared and mailed to him February 2, 2016.
Id. Petitioner's appeal to the Board of
Immigration Appeals was denied on June 30, 2016, and he
waived his right to continue appeal proceedings. (Doc. 1, p.
has made no request to immigration authorities that he be
released on bond because such authorities interpret
applicable law-namely, Section 236(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1226(c)-as providing
Petitioner no such right. See Matter of Joseph, 22
I&N Dec. 799, 802 (BIA 1999) (immigration judge may hold
hearing on whether detainee is properly subject to §
1226(c) but noting detention of those subject to statute is
mandatory). Unfortunately for Petitioner, however, the
relevant federal courts interpret applicable law the same
way. See Demore v. Kim, 538 U.S. 510 (2003)
(upholding no-bail, mandatory detention provision of §
1226(c) against constitutional challenge); Parra v.
Perryman, 172 F.3d 954 (7th Cir. 1999) (same); see
also Lian Awi v. Rodney Kreitzman, No. 15-CV-1529 (E.D.
Wis. Feb. 23, 2016) (same). In Section 236(c) of the INA,
Congress has mandated that the Attorney General “shall
take into custody any alien who” is removable by reason
(among others) of having committed an aggravated felony or
controlled substance offense. § 1226(c)(1)(B). This is
in contrast to aliens pending removal proceedings but who
have not been convicted of the specified crimes, for which
Congress has granted the Attorney General discretion to
release the alien on bond or conditional parole. §
1226(a). The only exception to mandatory detention for those
subject to § 1226(c) deals with the witness protection
program, which is not applicable here. § 1226(c)(2).
acknowledges that the Seventh Circuit has not found mandatory
custody under § 1226(c) to violate due process. (Doc. 1,
p. 8). But he nonetheless argues his continued detention is
unconstitutional. He notes that a number of courts, relying
on Zadvydas v. Davis, 533 U.S. 678, 690 (2001), in
which the Supreme Court read an implicit time limit into
another detention provision of the INA, § 1231(a)(6),
have read such an implicit time limit into the
mandatory-detention provision of § 1226(c). E.g.
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015);
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013).
Petitioner acknowledges that the Seventh Circuit has not
adopted this reading of § 1226(c) but suggests the
Seventh Circuit has “hinted” it would. (Doc. 1,
p. 8) (citing Hussain v. Mukasey, 510 F.3d 739, 743
(7th Cir. 2007) (“Inordinate delay before the order was
entered might well justify relief, Ly v. Hansen, 351
F.3d 263, 271-73 (6th Cir. 2003), with habeas corpus the
appropriate vehicle for obtaining it, as we know from
Zadvydas and Kim. It would be a
considerable paradox to confer a constitutional or
quasi-constitutional right to release on an alien ordered
removed (Zadvydas) but not on one who might have a
good defense to removal.”)).
March 24, 2016, Petitioner filed a petition for habeas corpus
pursuant to 28 U.S.C. § 2241 in the United States
District Court for the Eastern District of Wisconsin. Lin
v. Schmidt, Case No. 16-cv-368 (E.D.Wis. April 5, 2016)
(Doc. 1). Petitioner admits in the Petition in the instant
case that he raised the same claim in his Wisconsin petition
as he has brought in this case. (Doc. 1, p. 2). The District
Court for the Eastern District of Wisconsin denied
Petitioner's petition with prejudice, holding
“Petitioner's continued detention is lawful under
§ 1226(c) and the Due Process Clause.”
Schmidt, Case No. 16-cv-368 at (Doc. 3, p. 4). The
Court noted that “even if Petitioner is correct and the
Seventh Circuit is poised to follow the Second and Ninth
Circuits in Lora and Rodriguez, that is a
decision only the Seventh Circuit can make. Parra-in
which the Seventh Circuit rejected a due process challenge to
§ 1226(c) by an alien who, like Petitioner, conceded he
was deportable because of criminal convictions-forecloses
Petitioner's claim in this Court until the Seventh
Circuit holds otherwise.” Id. Petitioner
admits in his Petition that the Seventh Circuit has not yet
deviated from its holding in Parra. (Doc. 1, p. 8).
has reasserted the same grounds in his Petition in the
instant case (Doc. 1) that the Eastern District of Wisconsin
deemed meritless and dismissed with prejudice in
Petitioner's earlier motion under 28 U.S.C. § 2241.
Thus, Petitioner's claims are clearly barred by 28 U.S.C.
§ 2244(a), which provides in pertinent part that no
shall be required to entertain an application for a writ of
habeas corpus to inquire into the detention of a person
pursuant to the judgment of a court of the United States if
it appears that the legality of such detention has been
determined by a judge or court of the United States on a
prior application for a writ of habeas corpus....
Seventh Circuit Court of Appeals has construed this provision
to bar successive § 2241 petitions that are directed at
the same issue raised in a prior petition. See Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998);
West v. Zuercher, Case No. 07-1127, 2007 WL 2680566,
at *2 (CD. Ill. July 18, 2007). The improper successive
Petition must be dismissed for lack of jurisdiction.
See, e.g., Schaefer v. Bezy, Case No.
06-1101, 2006 WL 2829002, at *2 (7th Cir. Sept. 29, 2006).