1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 CHUNG PHUNG, Case No. 23-cv-00253-YGR (PR)

5 Petitioner, ORDER TO SHOW CAUSE

v. 6

7 DAVID W. JENNINGS, et al., Respondents. 8

9 I. INTRODUCTION 10 This suit was reassigned from Magistrate Judge Virginia K. DeMarchi to the undersigned 11 in light of a recent Ninth Circuit decision.1 See Dkt. 9. 12 On January 19, 2023, petitioner Chung Phung filed a pro se petition for a writ of habeas 13 corpus under 28 U.S.C. § 2241 challenging his ongoing detention by the United States 14 Immigration and Customs Enforcement (“ICE”). Dkt. 1. On the same date, the Clerk of the Court 15 sent petitioner a notice that his petition was missing pages, and that he must submit a complete 16 petition in the envelope provided. Dkt. 2. The Clerk attached a blank habeas petition form. Id. at 17 2-11. On February 1, 2023, petitioner retuned the habeas petition form, and it appears that he 18 attempted to fill it out. Dkt. 5. However, it seems that petitioner did not understand how to fill 19 out this form. Id. For example, he did not fill in the caption. Id. at 1.2 Under the section labeled, 20 “First appeal,” he put the case number for this action, (“C 23-253 VKD”), and he claims that this 21 “case [was] not yet final.” Id. at 2. Moreover, in response to an inquiry about why he did not file 22 his “third appeal,” he writes, “Did not know how to do it.” Id. at 4. In addition, his responses on 23 the proof of service shows a discrepancy between the date he handed it to prison officials for 24

25 1 Williams v. King, 875 F.3d 500, 503 (9th Cir. 2017) (magistrate judge lacked jurisdiction to dismiss case on initial screening because unserved defendants had not consented to proceed 26 before magistrate judge).

27 2 Page number citations refer to those assigned by the Court’s electronic case management 1 mailing and the date he signed it. Id. at 9. Some of his responses in the body of the form could be 2 seen as an effort to provide information from the missing pages of his first petition. Id. at 1-8. 3 The Court construes his new filing (dkt. 5) as a supplement to his original petition (dkt. 1), as 4 opposed to an amended petition, and thus the operative petition is the original petition (dkt. 1). 5 He has been granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. Dkt. 9. 6 II. BACKGROUND 7 It seems that petitioner was born in Vietnam and admitted into the United States on an 8 unstated date. See Dkt. 1-2. He is not a citizen of the United States. Id. at 5. He claims that on 9 an unstated date, an Immigration Judge ordered him removed from the United States. Id. He 10 further claims that on or about “2008-2009,” the Board of Immigration Appeals dismissed his 11 appeal because he “lost [his] ap[p]eal paperwork because [he was] transferred to Atascadero State 12 Mental Hospital . . . .” Id. at 2, 5. 13 Petitioner “do[esn’t] remember” when he received his “Decision to Continue Detention” 14 from ICE. Id. He “has cooperated fully with all of ICE’s efforts to remove [him],” but ICE has 15 been unable to remove him and is unlikely to be able to remove him because “Vietnam do[es] not 16 want [him] back in their country.” Id. He also claims he suffers from a “mental illness.” Id. at 5. 17 Petitioner seeks to “appeal [his] case so [he] can get [his] green card.”3 Id. And he also 18 requests the Court to “[i]ssue an order pursuant to 28 U.S.C. § 2243 directing Respondents to 19 show cause why the writ of habeas corpus should not be granted,” “[g]rant the writ of habeas 20 corpus and order [his] immediate release from custody,” and “[g]rant any other further relief as the 21 Court deems just and proper.” Id. at 3. 22 III. DISCUSSION 23 A. Standard of Review 24 This Court may entertain a petition for a writ of habeas corpus on behalf of a person “in 25 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 26

27 3 Petitioner’s supplement to the petition also states that he is seeking a new green card 1 § 2241(c)(3). It shall “award the writ or issue an order directing the respondent to show cause 2 why the writ should not be granted, unless it appears from the application that the applicant or 3 person detained is not entitled thereto.” Id. § 2243. 4 B. Claims 5 District courts have jurisdiction under 28 U.S.C. § 2241 to review habeas petitions by non- 6 citizens challenging the lawfulness of their detention. Zadvydas v. Davis, 533 U.S. 678, 699 7 (2001). Although 8 U.S.C. § 1231(a)(6) authorizes the government to continue to detain an alien 8 after entry of a final removal order, it does not permit indefinite detention of an alien whose native 9 country will not accept him if he is removed. Id. at 687-88, 697-98. Once removal is no longer 10 reasonably foreseeable, continued detention is no longer authorized by statute. Id. at 699-700. 11 Petitioner contends that his continued detention is unlawful under 8 U.S.C. § 1231(a)(6) as 12 interpreted by the Supreme Court in Zadvydas. Liberally construed, the petition states a 13 cognizable claim for habeas relief under section 2241 based on petitioner’s prolonged detention by 14 ICE. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro 15 se petitions for writs of habeas corpus liberally). 16 IV. CONCLUSION 17 For the foregoing reasons and for good cause shown, 18 1. The Clerk shall serve (1) a copy of this Order, and (2) the petition (dkt. 1), the 19 supplement to the petition (dkt. 5) and all attachments thereto on respondents and respondents’ 20 attorney, the United States Attorney for the Northern District of California, and the Attorney 21 General of the United States in Washington, D.C. The petition and the exhibits thereto are 22 available via the Electronic Case Filing System for the Northern District of California. The Clerk 23 shall serve by mail a copy of this order on petitioner. 24 2. Respondents shall file with this Court and serve upon petitioner, within sixty (60) 25 days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules 26 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. 27 Respondents shall file with the Answer a copy of all portions of the relevant state records that 1 by the petition. 2 3. If petitioner wishes to respond to the Answer, he shall do so by filing a Traverse 3 with the Court and serving it on respondents within sixty (60) days of his receipt of the Answer. 4 Should petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty 5 (60) days after the date petitioner is served with respondents’ Answer. 6 4. Respondents may file with this Court and serve upon petitioner, within sixty (60) 7 days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an 8 || Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 9 2254 Cases. If respondents file such a motion, petitioner shall file with the Court and serve on 10 || respondents an opposition or statement of non-opposition to the motion within sixty (60) days of 11 receipt of the motion, and respondents shall file with the Court and serve on petitioner a reply 12 || within fourteen (14) days of receipt of any opposition. 5 13 5. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 14 || Court and respondents informed of any change of address and must comply with the Court’s 3 15 || orders in a timely fashion. Pursuant to Northern District Local Rule 3-11, a party proceeding pro 16 || se whose address changes while an action is pending must promptly file a notice of change of 3 17 address specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action 18 without prejudice when: (1) mail directed to the pro se party by the Court has been returned to the 19 Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written 20 || communication from the pro se party indicating a current address. See L.R. 3-11(b); see also 21 Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 22 || Petitioner must also serve on respondent’s counsel all communications with the Court by mailing 23 a true copy of the document to respondent’s counsel. 24 6. Upon a showing of good cause, requests for a reasonable extension of time will be 25 granted provided they are filed on or before the deadline they seek to extend. 26 IT IS SO ORDERED. 27 || Dated: July 5, 2023 Lorene Hagtel lcs.

J E YVONNE GONZALEZ RO S

28 United States District Judge