Opinion
No. 03 C 412
March 4, 2003
MEMORANDUM OPINION AND ORDER
Petitioner Rawinder Singh Pamma filed a petition for writ of habeas corpus against United States Attorney General John Ashcroft and the District Director of the Immigration and Naturalization Service (INS) Brian Perryman seeking his release from custody. Along with the petition he filed an application to proceed in forma pauperis. For the following reasons, petitioner's application to proceed in forma pauperis is granted.
Pursuant to 28 U.S.C. § 1915(a) we may authorize petitioner to proceed in forma pauperis if he demonstrates an inability to pay the required costs and fees. Petitioner is presently incarcerated and has no steady source of income. As of January 13, 2002, his account in the prison had a balance of $0.69. We find that petitioner has adequately demonstrated his inability to pay the required court costs.
This is not the end of our inquiry. We must conduct an initial review of petitioner's claims and dismiss the complaint if we determine that the action is frivolous or malicious, it fails to state a claim upon which relief may be granted, or petitioner seeks damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii);Alston v. Debruy, 13 F.3d 1036, 1039 (7th Cir. 1994). We review the claim using the same standard as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Zimmerman v. Tribble, 266 F.3d 568, 571 (7th Cir. 2000).
Petitioner allegedly entered this country illegally and is subject to a final order of removal from the United States issued on January 3, 2000. On April 11, 2002, petitioner was allegedly taken into custody by the INS in order to facilitate his deportation to India. Petitioner alleges that his detention for this period of time is illegal for three reasons. First, he claims that 8 U.S.C. § 1231(a)(6), which allows detention of aliens subject to a deportation order does not allow a detention of this length. He argues that the Supreme Court, in Zadvydas v. Davis, 533 U.S. 678, 689 (2001), determined that such a detention must be limited to "a period reasonably necessary to bring about the alien's removal." Second, petitioner argues that the statute is unconstitutional on its face as a violation of his right to due process. Third, he claims that the statute is unconstitutional as applied to him. Plaintiff seeks his release from custody and declaratory relief stating that respondents are acting beyond the scope of their statutory power and in violation of the Constitution. Without reaching the merits of the case, we find that petitioner adequately states a claim for relief.
For the foregoing reasons, petitioner's application to proceed in forma pauperis is granted.