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Keywords

motionhabeas corpusleaserespondent
motionhabeas corpusleaserespondent

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Kim v. Ashcroft

Facts

Petitioner Kinine Kim, a Cambodian national and permanent resident since 1983, was detained by the INS following a final order of removal due to his criminal convictions. He had been in custody since November 19, 2001, and his request for travel documents from the Cambodian government was denied. Although a Memorandum for repatriation was signed between the U.S. and Cambodia, at the time of his petition, the Cambodian government had not decided on his repatriation.

Petitioner Kinine Kim, a Cambodian national and permanent resident since 1983, was detained by the INS following a final order of removal due to his criminal convictions. He had been in custody since November 19, 2001, and his request for travel documents from the Cambodian government was denied. Although a Memorandum for repatriation was signed between the U.S. and Cambodia, at the time of his petition, the Cambodian government had not decided on his repatriation.

Issue

Whether the continued detention of Petitioner Kim by the INS was lawful under 8 U.S.C. 1231(a)(6) given the lack of a significant likelihood of removal in the reasonably foreseeable future.

Whether the continued detention of Petitioner Kim by the INS was lawful under 8 U.S.C. 1231(a)(6) given the lack of a significant likelihood of removal in the reasonably foreseeable future.

Rule

The court applied the principles established in Zadvydas v. Davis, which limits an alien's post-removal detention to a period reasonably necessary to effectuate removal, and places the burden on the alien to provide good reason to believe that there is no significant likelihood of removal in the foreseeable future.

The court applied the principles established in Zadvydas v. Davis, which limits an alien's post-removal detention to a period reasonably necessary to effectuate removal, and places the burden on the alien to provide good reason to believe that there is no significant likelihood of removal in the foreseeable future.

Analysis

The court analyzed the evidence presented by both parties regarding the likelihood of Kim's repatriation. It noted that while the INS had made some progress in negotiating repatriation with Cambodia, Kim had not met his burden of showing that there was no significant likelihood of removal. The court emphasized that the passage of time alone was insufficient to warrant his release.

The court analyzed the evidence presented by both parties regarding the likelihood of Kim's repatriation. It noted that while the INS had made some progress in negotiating repatriation with Cambodia, Kim had not met his burden of showing that there was no significant likelihood of removal. The court emphasized that the passage of time alone was insufficient to warrant his release.

Conclusion

The court granted the Respondent's motion for reconsideration, denied Kim's renewed petition for writ of habeas corpus, and allowed the INS to continue detaining him. Kim was granted leave to refile his petition in six months if he had not been removed by that time.

The court granted the Respondent's motion for reconsideration, denied Kim's renewed petition for writ of habeas corpus, and allowed the INS to continue detaining him. Kim was granted leave to refile his petition in six months if he had not been removed by that time.

Who won?

Respondent (INS) prevailed in the case because the court found that there was still a likelihood of repatriation and that Kim had not provided sufficient evidence to support his claim for release.

Respondent (INS) prevailed in the case because the court found that there was still a likelihood of repatriation and that Kim had not provided sufficient evidence to support his claim for release.

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