4) the defendants have violated 8 U.S.C. § 1252(a)(2)(A) by failing to retain custody of illegal aliens convicted of aggravated felonies and on parole, see id. at PP 71-72;
5) the defendants violated 8 U.S.C. § 1252(a)(3)(A) by failing to implement a system to assist the plaintiffs in identifying aliens convicted of aggravated felonies, see id. at PP 72-74;
6) the defendants' failure to take aliens and to retain illegal aliens who have been convicted of aggravated felonies upon their release on parole or supervised release is arbitrary, capricious, an abuse of discretion not in accordance with law and in violation of the Administrative Procedure Act, 5 U.S.C. § 706(1) & (2)(A) & (C), see id. at PP 75-76; and
7) the defendants' failure to implement an information system to assist the plaintiffs in identifying aliens convicted of aggravated felonies is arbitrary, capricious, an abuse of discretion not in accordance with law and in violation of the Administrative Procedure Act, 5 U.S.C. § 706(1) & (2)(A) & (C), see id. at PP 77-78.
The standard of review for a summary judgment motion, while easy to state, is generally quite difficult to apply: A motion for summary judgment must be granted where there exists no genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265, (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, (1986). It has been held that a material fact is one which affects the outcome of the litigation. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S. Ct. 1495, 47 L. Ed. 2d 754 (1976). Inasmuch as both parties have moved for summary judgment, it may well be that there are no genuine issues of material fact and, thus, the litigation would be a pure question of law for this court to decide. See Cargill, Inc. v. Charles Kowsky Resources, Inc., 949 F.2d 51, 55 (2d Cir. 1991); Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir. 1988); Bank of Am. Nat'l Trust & Sav. Ass'n v. Gillaizeau, 766 F.2d 709, 716 (2d Cir. 1985); Benson v. RMJ Securities Corp., 683 F. Supp. 359, 365 (S.D.N.Y. 1988). However, that is not necessarily the case, and the court must evaluate each side's motion on its own merits, in each instance drawing all inferences in favor of the nonmoving party. Schwabenbauer v. Board of Educ. of City School Dist. of City of Olean, 667 F.2d 305, 313-14 (2d Cir. 1981).
Rather than discuss each cause of action, the court will rather address the issues presented by the parties in their motions for summary judgment.
I. Parole for Deportation Only
Section 1252(a)(2)(A) provides that the Attorney General must take into his custody all alien prisoners who have been convicted of aggravated felonies upon their release from State correctional facilities. The statute continues parenthetically to provide that the Attorney General shall, irrespective of the possibility of rearrest for further confinement for the same offense, take custody of these prisoners, regardless of whether the release is to "parole," "supervised release," or "probation."
New York State has a statute that allows for "conditional parole for deportation only" which the plaintiffs contend falls within the meaning of "parole" as Congress intended that term. With this the defendants take issue.
Conditional Parole for Deportation Only [hereinafter referred to as "CPDO'] is provided for in section 259-i(2)(d)(i) of the New York Executive Law, which reads in pertinent part as follows:
"After an inmate has served his minimum period of imprisonment imposed by the court, if the inmate is subject to deportation by the United States Immigration and Naturalization Service, in addition to the criteria set forth in paragraph (c), the [parole] board may consider, as a factor warranting earlier release, the fact that such inmate will be deported, and may grant parole to such inmate conditioned specifically on his prompt deportation. The board may make such conditional grant of early parole only where it has received from the United States Immigration and Naturalization Service assurance (A) that an order of deportation will be executed or that proceedings will promptly be commenced for the purpose of the deportation upon release of the inmate from the custody of the department of correctional services, and (B) that the inmate, if granted parole pursuant to this paragraph, will not be released from the custody of the United States Immigration and Naturalization Service, unless such release be as a result of deportation without providing the board a reasonable opportunity to arrange for the execution of its warrant for the retaking of such parolee."