Phung v. Jennings
- Yvonne Rogers
- 4:23-cv-00253
- U.S. District Court · Northern District of California
- 4
In Chung Phung v. Jennings, Judge Rogers ordered the government to answer Phung’s challenge to his continued immigration detention.
Chung Phung and the government respondents in his challenge to continued immigration detention; the case was ordered to proceed to an answer or a possible procedural motion to dismiss.
What happened
In Chung Phung v. Jennings, Chung Phung, representing himself, challenged his continued detention by Immigration and Customs Enforcement under a federal detention law. He said Vietnam would not accept him and asked for release and help obtaining a green card.
The court found that, read broadly, Phung’s filing stated a valid claim that prolonged detention may be unlawful when removal is no longer reasonably foreseeable. The court treated his later filing as a supplement to his original petition, not as a replacement petition.
Judge Yvonne Gonzalez Rogers ordered the respondents to receive the filings and file an answer explaining why the court should not grant relief within 60 days. The order did not decide whether Phung must be released or whether he will receive a green card.
The detailed version
- Phung v. Jennings · No. 4:23-cv-00253
- Yvonne Rogers
- July 5, 2023
Background
Chung Phung filed a petition under 28 U.S.C. § 2241 challenging his ongoing detention by U.S. Immigration and Customs Enforcement. He was representing himself. After the Clerk notified him that pages were missing, Phung submitted a court form, but the court concluded that he appeared not to understand how to complete it. The court construed that filing as a supplement to the original petition, leaving the original petition as the operative filing.
Phung alleged that he was born in Vietnam, is not a United States citizen, and was ordered removed from the United States. He said the Board of Immigration Appeals dismissed his appeal around 2008 or 2009 after he lost paperwork while being transferred to Atascadero State Mental Hospital. He also said he had cooperated with efforts to remove him, but Vietnam would not accept him, making removal unlikely. He stated that he had a mental illness and sought release from custody and a green card.
Claim and legal standard
A petition under § 2241 may challenge detention that violates the Constitution, federal law, or a treaty. The court cited the Supreme Court’s decision in Zadvydas v. Davis, which held that federal law does not allow indefinite detention when removal is no longer reasonably foreseeable because the country to which the person would be removed will not accept that person.
The court concluded that, liberally construed, Phung’s petition stated a legally recognizable claim under § 2241 based on prolonged detention under 8 U.S.C. § 1231(a)(6), the statute governing detention after a final removal order in circumstances covered by the statute.
Order
The court ordered the Clerk to serve the order, the original petition, the supplement, and their attachments on the respondents and specified government attorneys. The respondents were ordered to file and serve an answer within 60 days showing why the court should not issue the requested writ. They were also required to file relevant records with the answer.
The respondents could instead file a motion to dismiss on procedural grounds within that same 60-day period. If they did so, Phung would have 60 days after receiving the motion to respond, and the respondents would have 14 days after receiving his response to reply. If Phung files a response to an answer, he would have 60 days after receiving the answer to do so.
The court also stated that Phung must prosecute the case, keep the court and respondents informed of address changes, follow court orders, and serve copies of his communications on respondents’ counsel. The order did not decide the ultimate legality of his detention, order his release, or grant his request for a green card.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.