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June 27, 1991


The opinion of the court was delivered by: Mukasey, District Judge.


These are cross-motions for summary judgment by defendant, the Immigration and Naturalization Service ("INS"), and by plaintiff, Jesus Ferreira Paulino, a prison inmate in the custody of the New York State Department of Correctional Services on the issue of whether INS has violated plaintiff's due process rights by not conducting a deportation hearing pursuant to 8 U.S.C. § 1252 while he is imprisoned. For the reasons set forth below, defendant's motion for summary judgment is granted; plaintiff's cross-motion for summary judgment is denied.

The facts are not in dispute. On or about September 15, 1987, plaintiff, a native of the Dominican Republic who has permanent resident status in the United States, pleaded guilty in state court to criminal sale of a controlled substance in the second degree and was sentenced to an indefinite term of imprisonment of from 4 1/2 years to life. On September 6, 1989, defendant Connery, Assistant District Director for Investigations of INS, issued an Order to Show Cause and arrest warrant for plaintiff, which charged that he was subject to deportation as a result of his conviction.

Plaintiff filed with INS an Application for Notice of Custody Determination Pursuant to 8 C.F.R. § 242.2, requesting that INS issue a Notice of Custody Determination. He alleged that he had a stable employment history and strong family ties in the United States, and is neither a threat to national security nor a poor bail risk — factors to consider in determining whether he would be held in INS custody pending a final determination of deportability. (Kekatos Declaration, Exh. H) Plaintiff filed this action pro se after receiving no response from INS.

His Complaint alleges that INS procedures require an initial determination concerning his custody pending deportation proceedings, which determination must be made immediately after issuance of an arrest warrant. INS did not make an initial custody determination in his case, but rather lodged a "detainer" against him. As a result, he is unable to qualify for Temporary Release consideration because, under New York law, any outstanding warrant lodged by INS automatically makes a prisoner ineligible for Temporary Release consideration. He alleges that if the issue of custody was resolved, and the detainer lifted, he would be eligible.

Plaintiff argues that INS's alleged failure to follow its procedures is a violation of his right to due process and his rights under 8 C.F.R. § 242.2. He seeks an order of mandamus requiring defendant to make a custody determination pursuant to 8 C.F.R. § 242.2.*fn1

INS moves for summary judgment on the ground that it does not have custody of plaintiff until he is released from prison, and hence has no authority to proceed until he is release from confinement. 8 U.S.C. § 1252(h). The detainer lodged against him, which is attached as an Exhibit on this motion, merely notifies prison officials that an investigation has been initiated to determine whether plaintiff is subject to deportation, and states that prison officials should inform INS of his time of release at least 30 days prior to release or in the event of his death or transfer to another institution. (Kekatos Declaration, Exh. G)

Plaintiff, now represented by an attorney, opposes defendant's motion and cross-moves for summary judgment, arguing a new theory: 8 U.S.C. § 1252(i) requires the Attorney General to conduct a deportation proceeding as soon as possible after the date of the conviction. By not complying with that statute and granting plaintiff an expeditious deportation hearing, he now argues INS has violated his due process rights.*fn2

8 U.S.C. § 1252(i) states:

  (i) In the case of an alien who is convicted of an
  offense which makes the alien subject to
  deportation, the Attorney General shall begin any
  deportation proceeding as expeditiously as
  possible after the date of conviction.

8 U.S.C. § 1252 (1975 and 1990 Supp.) Plaintiff argues that delay in holding a custody determination proceeding and final deportation proceedings renders meaningless the requirement that the Attorney General proceed expeditiously. He argues that delay in holding a hearing interferes with his right to defend himself: evidence gathering becomes more difficult, availability of witnesses decreases, and that he has an interest in knowing his legal status upon release from prison. Although he has no constitutional right to qualify for work release, that restriction is an example of the injury he has suffered as a result of defendant's violation of his due process rights by failing to follow its regulations.

To determine the duties imposed on INS by Congress, 8 U.S.C. § 1252(i) must be read in conjunction with 8 U.S.C. § 1252(h) and 1252(c). Section 1252(h) provides that "[a]n alien sentenced to imprisonment shall not be deported until such imprisonment has been terminated by the release of the alien from confinement" — clearly stating that criminal sentences must be served before deportation. Section 1252(c) states:

  When a final order of deportation under
  administrative processes is made against any
  alien, the Attorney General shall have a period of
  six months from the date of such order, or, if
  judicial review is had, then from the date of the
  final order of the court, within which to effect
  the alien's departure from the United States,
  during which period, at the Attorney General's
  discretion, the alien may be detained, released on
  bond in an amount and containing such conditions
  as the Attorney General may prescribe, or released
  on such other condition as the Attorney General
  may prescribe. . . . The Attorney General ...

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