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Yee v. Sessions

United States District Court, E.D. Wisconsin

December 1, 2017



          J. P. Stadtmueller, U.S. District Judge

         This case comes before the Court on a petition for a writ of habeas corpus filed by Amos Pang Sang Yee (“Yee”) pursuant to 28 U.S.C. § 2241, challenging the constitutionality of his continued detention by federal immigration officials. (Docket #1). As an initial matter, the Court must screen Yee's petition under Rule 4 of the Rules Governing Section 2254 Proceedings, which requires the Court to examine the petition and dismiss it if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.[1]


         Yee is a native of Singapore. He came to the United States in December 2016 seeking asylum because he allegedly experienced persecution in his home country for expressing criticism of the Singaporean government.

         Immigration and Customs Enforcement (“ICE”) agents detained Yee upon his arrival at Chicago O'Hare International Airport on December 16, 2016. Yee applied for asylum before the United States Immigration Court in Chicago, and on March 24, 2017 an immigration judge granted Yee's asylum application. According to Yee, the immigration judge found that Yee is a “refugee” within the meaning of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and is therefore entitled to asylum. ICE appealed the decision to the Board of Immigration Appeals (“BIA”), which has not yet ruled on the appeal.

         Yee remains detained at the Dodge County Detention Center in Juneau, Wisconsin. He requests that the Court order his immediate release from custody and placement on parole pending a decision by the BIA.

         2. ANALYSIS

         Yee contends that his detention by ICE since December 2016-now nearly one year-has exceeded a reasonable period and violates his right to due process. (Docket #1 at 6-8).

         The Supreme Court has forbidden indefinite detention of aliens who are ordered removed from this country. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001); see also Clark v. Martinez, 543 U.S. 371, 378 (2005). The presumptively reasonable period of detention for purposes of effecting removal, following issuance of a final removal order, should not exceed six months. Zadvydas, 533 U.S. at 701.

         The question for Yee is whether the Supreme Court's reasoning in Zadvydas and Clark should extend to aliens being held pending a final removal order. Of course, Yee is not subject to a final order of removal; indeed, the point of his petition is to speed the resolution of the proceedings that will culminate in a final order and to secure his release during their pendency. While the Court harbors concern that Supreme Court precedent forecloses Yee's claim, see, e.g., Demore v. Hyung Joon Kim, 538 U.S. 510 (2003) (holding that Zadvydas does not require release of alien detained under § 1226(c) pending judicial review of a removal order), the issue of Yee's entitlement to relief in light of the procedural posture of his removal proceedings will be left for briefing by the parties.

         Next, given the piecemeal nature of the Supreme Court's jurisprudence in this area-with each case focusing generally on the constitutionality of detention under a single statute section-the specific statute under which Yee is being detained may prove relevant to resolution of Yee's petition. While Yee's petition suggests that his detention arises out of 8 U.S.C. § 1226(c), see (Docket #1 at 6-7), it appears to the Court that his detention likely stems from 8 U.S.C. § 1225(b).

         Section 1226(c) would apply to Yee's detention if, prior to being taken into custody, he was admitted into the United States and was thereafter being removed due to criminal convictions. In Yee's case, however, he alleges that he was never admitted into the United States. Rather, upon arriving in the United States at a Chicago airport, Yee states that he was immediately detained by ICE agents. Section 1225(b) appears the better fit, as it applies to “arriving aliens” and prescribes the procedure employed when an arriving alien “indicates an intention to apply for asylum” or a “fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(ii). Because arriving aliens who have never been admitted to the United States might enjoy fewer constitutional protections than admitted aliens, see Zadvydas, 533 U.S. at 693, the distinction is not without a difference. Again, this question will be left to the parties to brief.

         3. CONCLUSION

         In this case, the Court cannot say that Yee's petition is plainly without merit. If the Supreme Court's reasoning in Zadvydas is applied to arriving aliens who are detained pending a final order of removal, meaning that an arriving alien can be detained only for a presumptively reasonable period to effect removal, then Yee's detention has exceeded the presumptively reasonable period. The Court will order a ...

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