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holding that, since the INS is prevented from effectuating an alien's removal when he is granted a stay on his final order of removal, the time during which a stay is in place is not counted in determining whether the petitioner has been detained for a reasonable time
Summary of this case from Abimbola v. AshcroftOpinion
98 Civ. 2589 (JGK)
July 23, 2001
Gerald Hilly, Esq., for the petitioner.
Meredith E. Kotler, AUSA, for the respondent.
OPINION AND ORDER
The petitioner, Samira Zada Copes ("Copes"), has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner challenges her order of deportation on the ground that the petitioner should have been permitted to seek a discretionary waiver of deportation pursuant to former Section 212(c) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1182(c) (repealed by Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). § 304(b), Pub.L. No. 104-208, 1996 U.S.C.C.A.N. (110 Stat.) 3009, 3009-597). While the petition was pending, the petitioner also requested that she be released due to her medical condition and also argued that she is entitled to immediate release in light of the Supreme Court's recent decision in Zadvydas v. Davis, 121 S.Ct. 2491, 2001 WL 720662 (Jun. 28, 2001).
The petitioner had also raised issues with respect to her continued detention in the custody of the Immigration and Naturalization Service ("INS"), in particular, arguing that she not been accorded a subsequent Release from Custody Hearing as required by the decision of Hearing Officer Richard Bieber signed by District Director Edward J. McElroy dated August 9, 2000. (Letter from Gerald W. Hilly dated June 25, 2001 ("Hilly June 25, 2001 Ltr.") at 1); Letter from Meredith Kotler dated September 25, 2000 ("Kotler Sept. 25, 2000 Ltr.") Ex. A at 27.) By letter dated June 7, 2001, the Government represented that, pursuant to new administrative regulations, the INS's Headquarters Post-Order Detention Unit ("HQPDU") scheduled an interview of the petitioner in connection with her custody status on July 3, 2001, and will issue a written decision concerning the petitioner's custody status within 21 days of the interview. (Letter from Meredith E. Kotler dated June 7, 2001 ("Kotler June 7, 2001 Ltr."), at 5-6.) Based on this representation, the petitioner has withdrawn as moot the issues raised with respect to the petitioner's custody status subject to the HQPDU custody status review. (Hilly June 25, 2001 Ltr. at 5.)
I.
The petitioner, a native of Jordan, was convicted by a jury on November 8, 1990, in the New York State Supreme Court, Orange County, of criminal possession of a controlled substance (cocaine) in the second degree, criminal possession of a controlled substance (cocaine) with intent to sell in the third degree, criminal possession of a weapon (rifle) in the third degree, and two counts of criminal possession of a weapon (firearm) in the fourth degree. (Certified Administrative Record for Alien Registration Number A11 545 429, attached to Letter from Meredith E. Kotler dated September 13, 1999 ("Kotler Sept. 1999 Ltr.") as Ex. B at 136-143 (hereinafter "Record").) The petitioner was sentenced on December 12, 1990 to a term of incarceration, and a judgment of conviction was entered. (Record at 137-141.) The petitioner's conviction was affirmed on appeal. People v. Copes, No. 91-00745 (N.Y. A.D. Jan. 24, 1994) (attached in Record at 130-31.) The petitioner began serving her term of incarceration on January 3, 1991. (Letter of Gerald W. Hilly dated September 27, 2000 ("Hilly Sept. 2000 Ltr.") at 7.)In February 1996, the petitioner was served with an order to show cause and notice of hearing for deportation dated July 13, 1995 from the INS. (Record at 179-86.) The order to show cause charged that the petitioner was subject to deportation because she had been convicted on December 12, 1990 of an aggravated felony and of a violation of a controlled substance law, pursuant to 8 U.S.C. § 1251(a)(2)(A)(iii) (a)(2)(B)(i) (1994). (Record at 179-84.) On April 29, 1996, the INS filed the order to show cause with the Immigration Court. (Declaration of Thomas J. Bonita III ("Bonita Decl."), ¶¶ 3-7 Ex. A, attached to Kotler Sept. 1999 Ltr. as Ex. C.) During the petitioner's deportation proceedings before an immigration judge ("IJ"), the petitioner's counsel admitted the charges in the order to show cause which included the charge that she had been convicted on December 12, 1990 and that she was subject to deportation as an alien who had been convicted of an aggravated felony. (Record at 90-93, 105, 179.) The petitioner testified that she had served 6 years imprisonment. (Record at 106.)
These provisions were recodified in 1996 without substantive alterations as 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1227(a)(2)(B)(i) respectively.
On October 1, 1996, the IJ ordered the petitioner deported, noting that the petitioner had conceded her deportability as charged by the INS. (Record at 74-75.) The IJ further found that the petitioner was ineligible to apply for discretionary waiver of deportation under former Section 212(c) for two reasons: (1) because the petitioner had served more than five years' imprisonment and was barred by Section 511(a) of the Immigration Act of 1990 ("IMMAct"), Pub L. No. 101-649, 1990 U.S.C.C.A.N. (104 Stat.) 4978, 5052 (codified at 8 U.S.C. § 1182(c)(1994); and (2) because Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 ("AEDPA"), 1996 U.S.C.C.A.N. (110 Stat.) 1214, 1277, independently rendered the petitioner ineligible for relief under Section 212(c). (Record at 75-77.) On October 23, 1996, the petitioner was paroled from state custody and transferred to INS custody. (Letter from Meredith Kotler dated January 14, 2000 ("Kotler Jan. 2000 Ltr.") Ex. C.)
Section 440(d) eliminated Section 212(c) waiver hearings for aliens convicted of certain crimes, including various drug and weapons offenses and crimes of moral turpitude.
The petitioner appealed the IJ's deportation order to the Board of Immigration Appeals ("BIA"). (Record at 9-15.) While her appeal was pending before the BIA, the petitioner filed a petition for a writ of habeas corpus dated June 23, 1997 in this Court challenging the IJ's deportation order. (Kotler Jan. 2000 Ltr. Ex. D at 1-6.) Judge Martin dismissed this habeas petition for failure to exhaust administrative remedies. See Copes v. McElroy, No. 97 Civ. 4600, 1997 WL 529013, at *2 (S.D.N.Y. Aug. 25, 1997). On January 16, 1998, the BIA dismissed the petitioner's appeal, finding that the petitioner was ineligible for Section 212(c) relief under Section 440(d) of AEDPA. (Record at 2.)
In February 1998, the petitioner filed a petition for review in the Court of Appeals for the Second Circuit. By Stipulation and Order this petition was subsequently withdrawn from the Court's active consideration subject to reinstatement. The petition was subsequently reinstated and withdrawn again subject to reinstatement but it has not been reinstated. (Kotler Jan. 2000 Ltr. Ex. D at 31-32, 38, 47-49.)
In April 1998, the petitioner filed a second habeas petition in this Court, which was assigned to Judge Martin. (Kotler Jan. 2000 Ltr. Ex. D at 9-17.) The petitioner filed an amended petition for a writ of habeas corpus on July 15, 1998. This case was reassigned to this Court on September 21, 1999. On November 24, 1999, this case was accepted as related to Nicholas v. Reno, 97 Civ. 6892(JGK), which raised the issue of the retroactivity of Section 440(d) of AEDPA. On February 10, 2000, all cases accepted as related to Nicholas, were stayed until the Court of Appeals for the Second Circuit issued its decision in Pottinger v. Reno, No. 99-2694 (2d Cir. filed Nov. 19, 1999), except upon individual application and on a case-by-case basis. See Order dated February 10, 2000.
By letter dated August 28, 2000, the petitioner challenged her continued detention in the custody of the INS and requested that the Court render a decision with respect to her habeas petition. (Letter from Gerald W. Hilly dated August 28, 2000 ("Hilly Aug. 2000 Ltr."), at 1-4.) On December 18, 2000, the Court of Appeals for the Second Circuit issued a summary order in Pottinger v. Reno, 242 F.3d 367(2000) (unpublished disposition), following the Court's decision in St. Cyr v. INS, 229 F.3d 406 (2nd Cir. 2000), cert. granted, 121 S.Ct. 848 (Jan. 12, 2001) and held that Section 440(d)'s bar to Section 212(c) waivers was impermissibly retroactive as applied to guilty or nolo contendere pleas entered prior to the April 26, 1996 effective date of AEDPA. After a hearing on February 9, 2001, this Court stayed briefing on all those cases accepted as related to Nicholas until a decision by the Supreme Court in St. Cyr.
The decision in St. Cyr was subsequently affirmed by the Supreme Court. See INS v. St. Cyr, 121 S.Ct. 2271(2001).
In a letter dated February 27, 2001, the petitioner requested that the Court stay a decision in this matter pending a decision in Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999), cert. granted, 121 S.Ct. 297(2000). (Letter from Gerald W. Hilly dated February 27, 2001.) In view of the petitioner's request, the Court stayed the petitioner's petition as it had in the other related cases before the Court, pending a decision by the Supreme Court in St. Cyr v. INS, 229 F.3d 406 (2nd Cir. 2000),cert. granted, 121 S.Ct. 848 (Jan. 12, 2001). See Order dated February 27, 2001. By letter dated May 16, 2001, the petitioner requested that the Court set aside its order staying this matter so that the court could determine the merits of the petition along with the petitioner's other requests for relief. (Letter from Gerald W. Hilly dated May 16, 2001 ("Hilly May 16, 2001 Ltr.")).
The petitioner now asserts three grounds for relief. First, the petitioner challenges her order of deportation on the ground that she should have been permitted to seek a discretionary waiver of deportation pursuant to former Section 212(c) of the INA. Second, the petitioner requests that she be released due to her medical condition. Third, the petitioner alleges that she is entitled to immediate release in light of the Supreme Court's recent decision in Zadvydas v. Davis, 121 S.Ct. 2491(2001).
II.
The petitioner challenges her order of deportation on the ground that she should have been permitted to seek a discretionary waiver of deportation pursuant to former Section 212(c) of the INA. Because the BIA affirmed the order of deportation on January 16, 1998, the petitioner has exhausted her administrative remedies and the habeas petition is properly before the Court. In addition, this Court retains jurisdiction under 28 U.S.C. § 2241 to review the legal claims against a final order of deportation raised by an alien subject to deportation by reason of having committed a criminal offense. See INS v. St. Cyr, 121 S.Ct. at 2271, 2287(2001).
Former Section 212(c) provided:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . . .8 U.S.C. § 1182(c)(1994). Although Section 212(c) by its terms applies to residents returning from temporary departures abroad, it has long been interpreted to apply to lawful permanent residents who have not left the United States but who face deportation. See St. Cyr, 121 S.Ct. at 2276; Bedoya-Valencia v. INS, F.3d 891, 895-98 (2d Cir. 1993); Francis v. INS, 532 F.3d 268, 273 (2d Cir. 1976).
Former Section 212(c) was repealed by IIRIRA Section 304(b) in 1996 and was replaced by a form of relief entitled "cancellation of removal," codified at 8 U.S.C. § 1229b. IIRIRA, 1996 U.S.C.C.A.N. (110 Stat.) at 3009-597. Aliens who have been convicted of an aggravated felony are not eligible for cancellation of removal regardless of an alien's term of incarceration. See 8 U.S.C. § 1229b(a)(3); see also Arias-Agramonte v. Commissioner of INS, NO. 00 Civ. 2412, 2000 WL 1059678, at *13 (S.D.N.Y. Aug. 1, 2000). IIRIRA Section 309(a) provides that IIRIRA Section 304 shall take effect for any removal proceedings commenced after April 1, 1997, and thus does not apply to this case. IIRIRA, § 309(a), (c), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-625. Neither party argues that IIRIRA applies in this case.
With IMMAct § 511(a), effective November 29, 1990, Congress amended former Section 212(c), to provide that "an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years" shall not be eligible for a discretionary waiver under Section 212(c). IMMAct § 511(a), 1990 U.S.C.C.A.N. (104 Stat.) at 5052 (amending former 8 U.S.C. § 1182(c)). In this case, the BIA dismissed the petitioner's appeal on the basis that the petitioner was ineligible for former Section 212(c) relief under Section 440(d) of AEDPA. (Record at 2.) AEDPA Section 440(d) amended Section 212(c) to eliminate Section 212(c) relief for aliens convicted of certain criminal offenses, including various drug offenses. See AEDPA § 440(d), 1996 U.S.C.C.A.N. (110 Stat.) at 1277 (amending former 8 U.S.C. § 1182(c)). Thus, AEDPA limited the cases where discretionary relief from removal could be sought and is more restrictive than the IMMAct amendments to former Section 212(c). See St. Cyr, 121 S.Ct. at 2277 n. 7 ("The new provision barred review for individuals ordered deported because of a conviction for an aggravated felony, for a drug conviction, for certain weapons or national security violations, and for multiple convictions involving crimes of moral turpitude.")
The language of this amendment was further revised in the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 ("MTINA") to clarify that the five-year term could be served for multiple convictions. MTINA § 306(a)(10), Pub.L. No. 102-232, 1991 U.S.C.C.A.N. (105 Stat.) 1733, 1751. MTINA replaced the phrase "an aggravated felony and has served" with "one or more aggravated felonies and has served for such felony or felonies," and provided that the amendment became effective with the enactment of IMMAct. MTINA § 310, 1991 U.S.C.C.A.N. (105 Stat.) at 1759.
The arguments raised by the petitioner in her amended petition for a writ of habeas corpus primarily concern whether the IJ incorrectly determined that Section 511(a) of IMMAct applied to the petitioner. The Government recognizes that the petitioner could raise a challenge to the application of AEDPA Section 440(d) to her, but argues that any such challenge would be unsuccessful. Because the petitioner is barred from discretionary relief under former Section 212(c) as amended by IMMAct, however, she is barred from relief without regard to the application of AEDPA Section 440(d).
A.
The petitioner first argues that the order of deportation is fatally defective because it is based on an incorrect date of conviction. Specifically, the petitioner argues that the proper date of conviction is November 8, 1996, the date the jury rendered its verdict, rather than December 12, 1990 when sentence was imposed. The petitioner argues that, because November 8, 1996 precedes the effective date of IMMAct, she was convicted before Congress defined the term "aggravated felony" and before Section 511(a) of IMMAct amended Section 212(c) to bar relief for aliens who served five years' imprisonment for aggravated felonies. The petitioner contends that the retroactive application of IMMAct Section 511(a) to her conviction would be unconstitutional.
The petitioner incorrectly asserts that IMMAct became effective on November 24, 1990. IMMAct became effective on November 29, 1990. 1990 U.S.C.C.A.N. (104 Stat.) at 4978, 5088.
Initially, the petitioner is bound by the December 12, 1990 conviction date because her counsel conceded at the hearing before the IJ all of the allegations in the order to show cause, including the allegation that she was convicted on December 12, 1990 of criminal possession of a controlled substance in the second degree and third degree and criminal possession of a weapon, a rifle, in the third degree. (Record at 90-94, 179-84.) "Absent egregious circumstances, a distinct and formal admission made before, during, or even after a proceeding by an attorney acting in his professional capacity binds his client as a judicial admission." Ali v. Reno, 22 F.3d 442, 446 (2d Cir. 1994) (parentheses, internal quotation marks, and citation omitted); see also Diaz v. Reno, No. 97 Civ. 6580, 2000 WL 502852, at *3 (S.D.N.Y. April 26, 2000) (finding admission of deportability binding). In this case, in conceding the allegations contained in the order to show cause, the petitioner was fully aware of the respective dates of her conviction and sentencing during her proceedings before the IJ. (Record at 112.) Thus, there are no egregious circumstances that warrant relieving the petitioner of her counsel's admissions to the IJ that she was convicted on December 12, 1990 as charged in the order to show cause. Moreover, because the petitioner never raised the issue of an allegedly incorrect conviction date to the IJ or the BIA she has waived the issue. See Drozd v. INS, 155 F.3d 81, 91 (2d Cir. 1998) (finding argument waived where it was not raised before the immigration judge or the BIA).
In any event, even if the jury's verdict on November 8, 1990 constituted a "conviction" for purposes of the immigration laws, the petitioner's arguments that she was convicted before Congress defined the term "aggravated felony" and that Section 511(a) of IMMAct does not apply to her because the retroactive application of IMMAct Section 511(a) would be unconstitutional are without merit. First, Congress defined the term "aggravated felony" before the petitioner was convicted of the crimes for which the INS sought deportation. In 1988, Congress passed the Anti-Drug Abuse Act of 1988 ("ADAA"), which made conviction of an "aggravated felony" a ground for deportation. ADAA § 7344, Pub.L. No. 100-690, 1988 U.S.C.C.A.N. (102 Stat.) 4181, 4470-71 (1988) (codified at 8 U.S.C. § 1251(a)(2)(A)(iii)(1994)). The ADAA defined an "aggravated felony" to include murder, drug trafficking, illicit trafficking in firearms or destructive devices and any attempt or conspiracy to commit such acts within the United States. ADAA § 7342, 1988 U.S.C.C.A.N. (102 Stat.) at 4469-70. In addition, Section 501(a)(5) of IMMAct made the "aggravated felony" definition applicable to convictions under both federal and state law. IMMAct § 501(a)(5), 1990 U.S.C.C.A.N. (104 Stat.) at 5048. Congress specifically provided that Section 501(a)(5) "shall be effective as if included in the enactment of section 7342" of the ADAA. Id. at § 501(b). Thus, when the petitioner was convicted of criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance with intent to sell, those convictions were already defined as aggravated felonies under the ADAA.
In addition, prior to the petitioner's conviction, the BIA had already determined that, for purposes of the "aggravated felony" definition contained in ADAA Section 7342, drug trafficking crimes included convictions under state laws sufficiently analogous to a federal offense. See In re Barrett, 20 I N Dec. 171, 174-76 (BIA 1990). The parties do not dispute that the petitioner's convictions under New York State law for drug offenses are sufficiently analogous to a federal offense as to constitute drug trafficking. Indeed, the petitioner's counsel conceded at the hearing before the IJ that the petitioner was convicted of an aggravated felony. (Record at 105.)
Second, the Court of Appeals for the Second Circuit has already rejected the petitioner's argument that IMMAct Section 511(a) does not apply retroactively. See Buitrago-Cuesta v. INS, 7 F.3d 291(1993). InButrago-Cuesta, the Court of Appeals held that the plain language of IMMAct indicated a congressional intent that IMMAct Section 511(a)'s bar to Section 212(c) relief applied to aliens seeking such relief who had been convicted of aggravated felonies and who served at least five years imprisonment regardless of the date of their convictions. See Buitrago-Cuesta, 7 F.3d at 294-96; see also Scheidemann v. INS, 83 F.3d 1517, 1525-26 (3d Cir. 1996) (concluding that Section 212(c), as amended by IMMAct Section 511(a) applies to all convictions for aggravated felonies as defined in the ADAA "regardless of the conviction date, where the alien applied for discretionary relief after" IMMAct's effective date); Samaniego-Meraz v. INS, 53 F.3d 254, 257 (9th Cir. 1995); Asencio v. INS, 37 F.3d 614, 617 (11th Cir. 1994) (per curiam);Campos v. INS, 16 F.3d 118, 121 (6th Cir. 1994); De Osorio v. INS, 10 F.3d 1034, 1039-42 (4th Cir. 1993). Thus, Butrago-Cuesta is binding on this Court and the IJ properly concluded that former Section 212(c), as amended by IMMAct Section 511(a), applied to the petitioner.
After the Court of Appeals decided Buitrago-Cuesta, the Supreme Court decided a number of cases, including Landgraf v. USI Film Prod., 511 U.S. 244(1994), that have clarified retroactivity analysis. See St. Cyr, 121 S.Ct. at 2286-88. In applying the principles set forth inLandgraf, other courts have continued to interpret IMMAct Section 511(a) to apply regardless of the date of conviction, finding that Congress clearly provided for the temporal reach of the statute to apply to convictions regardless of the date or that the INS's reasonable interpretation of the statute to the same effect should receive deference. See, e.g., Scheidemann, 83 F.3d at 1521-23; Samaniego-Meraz, 53 F.3d at 256-57.
B.
The petitioner next argues that even if former Section 212(c), as amended by IMMAct Section 511(a), does apply to her conviction, she is still entitled to Section 212(c) relief because she had not served five years imprisonment on July 13, 1995, the date the INS issued the order to show cause and initiated proceedings against her. She argues that, at that time, she had only served 4 years, 6 months and 13 days of imprisonment. (Letter from Gerald W. Hilly dated October 3, 2000.)
However, the petitioner's argument is foreclosed by the decision of the Court of Appeals for the Second Circuit in Buitrago-Cuesta. InBuitrago-Cuesta, the Court of Appeals determined that, for purposes of determining whether IMMAct § 511(a)'s bar to Section 212(c) relief applies, an alien's period of incarceration accrues through and including the date that an administratively final order of deportation is entered against her. Buitrago-Cuesta, 7 F.3d at 296. The Court of Appeals stated: "Just as we credit aliens for time spent in the country while an appeal is pending before the BIA so that they are eligible for § 212(c) relief, we will also consider the time an alien spent in prison during the course of a hearing for purposes of rendering them ineligible for § 212(c) relief." Id. at 296. In this case, the order of deportation did not become final until January 16, 1998, when the BIA dismissed the petitioner's appeal, by which time the petitioner had already served more than five years of imprisonment. See 8 C.F.R. § 241.1(a). Indeed, the petitioner admits that she served six years' imprisonment starting on January 3, 1991 (Record at 106, 111; Hilly Sept. 2000 Ltr. at 7), and thus the petitioner had served more than five years' imprisonment by the time she was served with the order to show cause in February 1996, by the time the order to show cause was filed with the Immigration Court on April 29, 1996, by the time the petitioner appeared before the IJ on July 31, 1996, and by the time the IJ ordered the petitioner deported on October 1, 1996.
The petitioner argues that the INS never advised the petitioner that she was eligible for Section 212(c) relief and the IJ never gave the petitioner a reasonable opportunity to make application for such relief. As discussed above, however, the petitioner is not eligible for relief under former Section 212(c). In addition, the petitioner made an application for Section 212(c) relief at the hearing on October 1, 1996, and the IJ properly concluded that the petitioner was ineligible for relief under Section 212(c). (Record at 73-79, 89, 103-111.)
Accordingly, IMMAct Section 511(a) applies to the petitioner and the petitioner is barred from seeking a discretionary waiver of her deportation under former Section 212(c) because the petitioner was convicted of an aggravated felony and served a term of imprisonment of at least five years.
III.
The petitioner also requests that she be released from her incarceration so that she can seek medical attention allegedly not presently available to her for a medical condition. The petitioner contends that the medical department at the facility where she is currently detained, York County Prison, has consistently misdiagnosed her medical condition. The Government argues that the petitioner's medical condition does not require release from INS custody because she is receiving adequate medical care.
The correspondence from the parties indicates that the petitioner's medical needs are being cared for by the medical staff of York County Prison, as well as by two visits to a local hospital, and that her medical condition does not warrant release from INS custody. The petitioner has submitted unsubstantiated hearsay letters to the Court through her counsel regarding the petitioner's alleged medical condition. (Hilly May 16, 2001 Ltr.; Letter from Gerald W. Hilly dated May 23, 2001; Hilly June 25, 2001 Ltr.) The Court followed up by requiring an explanation from the Government and the Government has provided evidence indicating that the petitioner is receiving adequate medical care for her medical problems. (Kotler June 7, 2001 Ltr. at 2-3 and attached Declaration of Jyl Hummel and attached medical records.) No further action by the Court is necessary. See Diaz v. McElroy, 134 F. Supp.2d 315, 320 (S.D.N.Y. 2001) (denying a motion for release based on health reasons where the medical records indicated that the petitioner was receiving adequate medical care).
Moreover, it is well-settled that "a habeas petition is the appropriate means to challenge the `actual fact or duration' of one's confinement, . . . whereas a civil rights claim is the proper means to challenge the `conditions' of one's confinement." Kamara v. Farquharson, 2 F. Supp.2d 81, 89 (D. Mass. 1998) (citations omitted). Thus, a claim of inadequate medical treatment is not properly brought in a petition for a writ of habeas corpus. See id. (noting that "a claim of inadequate medical treatment while in legal custody is ordinarily brought as a civil rights suit for damages or injunctive relief pursuant to 42 U.S.C. § 1983 . . . or on a Bivens theory"). Accordingly, the petitioner's request that she be released due to her medical condition is denied without prejudice to any proper claims or proceedings with respect to the petitioner's medical needs.
IV.
The petitioner also asserts that she is entitled to immediate release in light of the Supreme Court's recent decision in Zadvydas, 121 S.Ct. 2491. In Zadvydas, the Supreme Court held that the INS cannot detain an alien who is subject to a final order of removal indefinitely; rather, an alien's postremoval period of detention is limited to that period reasonably necessary to bring about the alien's removal from the United States. See Zadvydas, 121 S.Ct. 2491, 2498. Thus, where the INS is unable to remove an alien who is subject to a final order of removal during the 90-day removal period set forth in 8 U.S.C. § 1231(a)(1), or within a six-month period, the burden rests on the INS to rebut an alien's showing that "there is no significant likelihood of removal in the reasonably foreseeable future." Id. at 2505. The petitioners in Zadvydas, however, did not challenge their final removal orders, but rather only challenged their detention pending removal. See Zadvydas v. Underdown, 185 F.3d 279, 283 (5th Cir. 1999), vacated and remanded, 121 S.Ct. 2491 (2001); Ma v. Reno, 208 F.3d 815, 818-20 (9th Cir. 2000), vacated and remanded, 121 S.Ct. 2491(2001). In this case, the INS has not effected the petitioner's deportation because her deportation has been stayed pending the resolution of her habeas petition challenging her order of deportation. Thus, although the petitioner has been detained for some time, the INS has not yet had a six month period of time to effect her removal as contemplated in Zadvydas and for the parties to demonstrate whether there is a significant likelihood of the petitioner's removal in the reasonably foreseeable future. Accordingly, the petitioner's request for release in light of the Supreme Court's decision in Zadvydas is denied at this time.
The petitioner has questioned whether her deportation was in fact stayed as a result of her applications rather than because of an inability to remove her. The petitioner's deportation has been subject to stays by the Court of Appeals for the Second Circuit. See Kotler Jan. 2000 Ltr. Ex. D at 39-41, 47-49. In addition, the Court ordered, with the consent of the Government, the stay of the deportation of all petitioners in cases related to Nicholas assigned to this Court, including the petitioner's, pending this Court's decision and, in the event of any appeal to the Court of Appeals, pending that Court's issuance of its mandate. See Order dated November 17, 1999.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied. The petitioner's request for release due to her medical condition is also denied without prejudice to any other actions the petitioner may bring. The Clerk of the Court is directed to close this case.
SO ORDERED.