Opinion
Civil Action No. 04-1445
May 6, 2004
REPORT AND RECOMMENDATION
Currently pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2241, by a prisoner in custody of the Immigration and Customs Enforcement agency ("ICE"). For the reasons which follow, the Court recommends that the petition be granted and the petitioner be released on an order of supervision, pursuant to 8 C.F.R. § 241.5, on such terms as the District Director deems appropriate.
I. PROCEDURAL HISTORY
Petitioner, a native and citizen of Vietnam, entered the United States on May 31, 1985, and, approximately two and a half years later, he obtained Lawful Permanent Resident status. On November 16, 1988, he received a conviction, in the Lancaster County Court of Common Pleas, for theft by unlawful taking. Subsequently, on November 24, 1992, he was convicted in the Philadelphia County Court of Common Pleas of third-degree murder, aggravated assault, possession of an instrument of crime and criminal conspiracy, for which he was sentenced to an aggregate term of eight to ten years.
Due to these offenses, the Immigration and Naturalization Service charged petitioner with being removable under both section 241(a)(2)(A)(iii) (now 237(a)(2)(A)(iii)) and section 241(a)(2)(A)(ii) (now 237(a)(2)(A)(ii)) of the Immigration and Nationality Act. On June 24, 1997, Immigration Judge William P. Greene ordered petitioner removed to Vietnam. The Board of Immigration Appeals denied his appeal on February 3, 1998, making the deportation order administratively final. Subsequently, on September 30, 2003, petitioner was taken into custody of ICE.
Section 237(a)(2)(A)(iii) of the INA states that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii).
Section 237(a)(2)(A)(ii) of the INA states that "[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable." 8 U.S.C. § 1227(a)(2)(A) (ii).
On January 20, 2004, after a review of petitioner's custody status, ICE decided to deny his request for release on parole for failing to show that he was neither a flight risk nor a threat to society. Petitioner thereafter filed the present Petition for Writ of Habeas Corpus on April 2, 2004, alleging that his continued detention violates his constitutional rights as established in prevailing Supreme Court jurisprudence.
II. DISCUSSION
Pursuant to the governing provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), aliens under a final order of deportation may be detained under the authority of 8 U.S.C. § 1231. Once an alien has a final order of deportation, the Attorney General has ninety days in which to execute the deportation and secure removal. 8 U.S.C. § 1231(a)(1). "Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible [due to his conviction of an aggravated felony] . . ." 8 U.S.C. § 1231(a)(2). Once the removal period expires, however, the alien must be released on bond. 8 U.S.C. § 1231(3).
This "removal period" begins on the latest of (i) the date the order of removal becomes administratively final; (ii) if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order; or (iii) if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1).
Should the Attorney General be unable to secure the alien's removal within that ninety-day period of time, however, § 1231(a)(6) expressly authorizes continued detention in certain cases. Specifically,
An alien ordered removed who is inadmissible under section 1182 of this title, removable [for violations of nonimmigrant status or entry conditions, violations of criminal laws, or threats to national security] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).8 U.S.C. § 1231(a)(6).
In the seminal case of Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), the United States Supreme Court considered the scope of the government's power under section 1231(a)(6). Two permanent legal residents were ordered removed due to their criminal convictions. Id. at 684-686. Upon the expiration of the ninety day removal period, however, no country was willing to accept them, making their immediate deportation impossible. Id. Rather than release them on parole, the government continued the aliens in custody under § 1231(a)(6). Id. The petitioners subsequently challenged the legality of their seemingly indefinite detention. Id. at 686. "[I]nterpreting the statute to avoid a serious constitutional threat, [the Court] conclude[d] that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 699. The Court therefore imposed a presumptive period of six months during which detention would be deemed reasonable. Id. at 701. It emphasized, however, that "[t]his 6-month presumption . . . does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Id. at 701. Thereafter, "once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id.
In the case at bar, petitioner's six-month presumptive release period expired on March 30, 2004 and, to date, he has yet to be either repatriated or released. The Government has conceded that there is no significant likelihood of removing petitioner either to his home country of Vietnam or any other country in the reasonably foreseeable future. As such, under the mandates ofZadvydas and in light of the Government's agreement, this Court must order that petitioner be released petitioner on such terms and conditions as the District Director deems appropriate.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of May, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be GRANTED and that petitioner be released on an order of supervision, pursuant to 8 C.F.R. § 241.5, on such terms and conditions dictated by the District Director for Pennsylvania of the Department of Homeland Security Bureau of Immigration and Customs Enforcement.