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Lu v. Adducci

United States District Court, E.D. Michigan, Southern Division

June 29, 2015

Shixin Lu, Petitioner,
v.
Rebecca Adducci, et al., Respondents.

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS [1] WITHOUT PREJUDICE

JUDITH E. LEVY, District Judge.

This case is before the Court on Shixin Lu's petition for a writ of habeas corpus challenging her detention in immigration custody. (Dkt. 1.) Petitioner has moved for an expedited hearing on the petition. (Dkt. 3.)

I. Background

Lu is a Chinese citizen who states that she had a valid B1/B2 United States visitor's visa from January through May of 2014. In February 2014, Petitioner returned to China to care for her father and complete some outstanding work responsibilities. She returned to the United States on May 9, 2014, arriving at the Detroit Metropolitan Airport, where she attempted to enter using her visitor's visa.

When Petitioner arrived, a Customs and Border Protection ("CBP") officer examined her because she did not appear to be admissible to the United States. Based on, among other things, Petitioner's admission that her daughter was attending public school while in the United States on a visitor's visa, the CBP officer determined that Petitioner was inadmissible and canceled her visa. Petitioner was offered the chance to withdraw her application for admission to the United States in lieu of being expeditiously removed. She did so, but then expressed a fear of returning to China based on potential persecution as an adherent of Falun Gong. She was then detained pending a credible fear interview that, if successful, would warrant the grant of asylum and permit her to stay in the United States.

On May 19, 2014, an asylum officer found that Petitioner demonstrated a credible fear of persecution if she were returned to China, based on her association with Falun Gong. On May 21, 2014, Petitioner's request for parole was denied due to Immigration and Customs Enforcement officials' belief that she was a flight risk.

On June 3, 2014, an Immigration Court hearing was held on Petitioner's request, but was continued so that she could obtain counsel. The hearing resumed on June 17, 2014, and Petitioner conceded that she was removable, but would be filing applications for asylum, withholding of removal, and protection under the Convention Against Torture. On July 16, August 14, and September 18, 2014, the Immigration Judge held and continued a hearing on Petitioner's claim for relief from removal.

The Immigration Judge denied Petitioner's applications on November 4, 2014, noting both a lack of credibility based on inconsistent and uncorroborated statements and a failure to show that she met the requirements necessary to succeed on each of her applications. (Dkt. 10-2 at 26-44.) On December 15, 2014, Petitioner appealed that decision to the Board of Immigration Appeals.

On January 12, 2015, Immigration and Customs Enforcement denied Petitioner's second request for parole.

On April 21, 2015, Petitioner filed this petition for a writ of habeas corpus, claiming that her continued detention under 8 U.S.C. ยง 1225(b) was unlawful and in violation of the Fifth and Fourteenth Amendments, as well as the Immigration and Nationality Act. On May 1, 2015, the Court issued an order requiring a response to the petition, and staying transfer of Petitioner's custody out of the Eastern District of Michigan pending the adjudication of her petition. (Dkt. 4.)

On May 1, 2015, the Board of Immigration Appeals dismissed Petitioner's appeal, making her removal administratively final. (Dkt. 10-7.) On May 8, 2015, Petitioner filed a petition for review of the removal order in the United States Court of Appeals for the Sixth Circuit, Case No. 15-3500. On May 12, 2015, Petitioner filed a motion for a stay of removal in the Court of Appeals. Lu v. Lynch, Case No. 15-3500, Dkt. 6. On May 27, 2015, the Court of Appeals denied Petitioner's motion for a stay of removal. Id., Dkt. 11.

On May 28, 2015, Respondents renewed their motion for the Court to vacate its stay of the transfer of Petitioner out of this district. (Dkt. 14.) The Court vacated its stay on May 29, 2015. (Dkt. 15.) On June 3, 2015, Petitioner filed a motion seeking clarification of the Court's order, inquiring whether the Court only vacated the stay, or also deemed the petition moot and/or dismissed the petition. (Dkt. 16.) The motion also renewed the request for an expedited hearing on the habeas petition, pursuant to the Board of Immigration Appeal's ("BIA") order staying her removal pending its determination of her motion to reopen her case. (Id.)

On June 8, 2015, the Court issued an order clarifying that the May 29, 2015 order only vacated the stay for lack of jurisdiction, and did not rule on the merits of the habeas petition. (Dkt. 18.) The Court also requested that Respondents file a response to the request for an expedited hearing. (Id.) Respondents filed their response on June 17, 2015, opposing the hearing and seeking to have the petition dismissed without prejudice. (Dkt. 19.) Petitioner replied ...


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