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Shao v. Director of Bureau of Immigration And Customs Enforcement

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

May 10, 2017

NAHIDH G. SHAO, Petitioner,
v.
DIRECTOR OF BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [#1]

          Denise Page Hood Chief Judge

         I. BACKGROUND

         On March 27, 2017, Petitioner Nahidh G. Shao (“Shao”) filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc # 1) On March 31, 2017, the Court issued an Order Directing Service and Response and staying the removal of Shao. (Doc # 3) On April 6, 2017, the Government filed an Emergency Motion to Vacate Stay of Removal for Good Cause Shown. (Doc # 5) On April 7, 2017, Shao filed a Response. (Doc # 6) On April 7, 2017, the Court entered an Order Granting the Government's Emergency Motion to Vacate Stay of Removal. (Doc # 7) The Court vacated the stay of removal and reset the hearing on Shao's Petition. On May 1, 2017, the Government filed a Response in Opposition to Shao's Petition. (Doc # 9) The Court held the hearing on May 4, 2017.

         Shao is a native of Iraq who last entered the United States as a child and lawful permanent resident in February 1967. (Doc # 5-2, Pg ID 44) In 1983, Shao was convicted in Oakland County of assault with intent to commit murder, two counts of armed robbery, and three counts of felony firearm. Id.; Doc # 1-1. He was sentenced to a minimum of 40 years in prison. (Doc # 5-2, Pg ID 44; Doc # 1, Pg ID 8-9) In November 1994, Shao was ordered removed to Iraq, and in July 1995, the Board of Immigration Appeals (“BIA”) dismissed Shao's appeal. (Doc # 5-2, Pg ID 44) On September 13, 2016, Shao was paroled from the Michigan Department of Corrections into the custody of the U.S. Immigration and Customs Enforcement (“ICE”) pursuant to an immigration detainer. Id.

         Shao has since been in ICE custody for approximately seven and a half months pending his removal to Iraq. According to a declaration of Bryan Norburn, ICE Deportation Officer, ICE has been working diligently to remove Shao. Id. ICE submitted a travel document request to the Iraqi Consulate in October 2016, and Consulate officials interviewed Shao in November 2016. On December 12, 2016, ICE issued a Decision to Continue Detention in Shao's case following a 90-day post-order custody review. The letter informed Shao that ICE was working on obtaining a travel document for his removal, and that he was considered a public safety threat due to his criminal history. Id. at 44-45. ICE subsequently received a letter from the Iraqi Consulate denying the request for a travel document for Shao due to the absence of Shao's original Iraqi documents and his stated unwillingness to return to Iraq. Id. at 45.

         Shao's case was then transferred to ICE Headquarters' Office of Enforcement and Removal Operations (“HQ ERO”) where Removal and Internal Operations (“HQ RIO”) took over efforts to remove Shao. Id. On January 27, 2017, HQ RIO issued a Decision to Continue Detention in Shao's case. The letter informed Shao that ICE was working on obtaining a travel document for his removal, and that one was expected. Id.

         According to a declaration of Julius Clinton (“Clinton”), ICE Deportation Officer in HQ RIO,

[HQ] ERO has been in negotiations with the government of Iraq over the past year regarding the repatriation of Iraqi nationals subject to a final order of removal. As a result of these recent negotiations, via the United States Embassy in Baghdad, Iraq, ERO has received approval from the Iraqi government to return a number of Iraqi nationals ordered removed from the United States.
On February 6, 2017, ERO received approval to move forward with scheduling the removals. HQ ERO has approved a list of Iraq[i] nationals that will be repatriated. Iraq has agreed to accept these subjects without a travel document.

(Doc # 5-3, Pg ID 48) The declaration indicates that the first removals were scheduled for April 2017, and Shao was among the individuals approved for removal in April 2017. Id.

         On April 12, 2017, Shao filed a motion with the BIA to reopen his removal proceedings. (Doc # 9-5) On April 17, 2017, the BIA granted Shao's emergency request for a stay of removal pending the BIA's consideration of his motion. (Doc # 9-6)

         An ICE charter removal flight to Iraq departed as scheduled on April 18, 2017; however, Shao was not on the flight as planned. (Doc # 9-4, Pg ID 130) According to a Supplemental Declaration of Clinton, Shao was removed from the manifest of the charter flight due entirely to the stay of removal granted by the BIA the day before. Id. All of the Iraqi nationals that were on the charter flight were successfully repatriated to Iraq. Id. According to Clinton, more charter removal flights to Iraq are being scheduled for the coming months. Id. at 131. He asserts that, except for the stay granted by the BIA, he knows of no barrier that would prevent ICE from removing Shao on one of these upcoming charter flights to Iraq. Id.

         II. ANALYSIS

         Shao seeks release under supervision from ICE custody via the instant petition for writ of habeas corpus filed under 28 U.S.C. § 2241. He argues that his detention is unconstitutional because it has been indefinitely extended beyond the detention period ...


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