The opinion of the court was delivered by: EDWARD R. KORMAN
United States v. Restrepo, 802 F. Supp. 781 (E.D.N.Y. 1992), discusses at length the harsh and disparate treatment that deportable aliens, who are convicted of crimes, suffer because of the policies of the Bureau of Prisons and the Immigration and Naturalization Service. One of the more disturbing aspects of this treatment is the continued incarceration of the alien, even after he has served in full the sentence imposed upon him, because of the failure of the Attorney General to effect in a timely manner the alien's deportation from the United States.
Any court of competent jurisdiction shall have authority to review or revise any determination of the Attorney General concerning detention . . . during such six-month period upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to effect such alien's departure from the United States within such six-month period.
In 1990 Congress amended 8 U.S.C. § 1252 to deny the Attorney General the discretion to release aliens who have been convicted of aggravated felonies and who were not lawfully admitted into the United States, "notwithstanding" the provisions of subsection (c), which confers such discretion on the Attorney General. 8 U.S.C. § 1252(a)(2)(A). Because the habeas corpus proceedings to which reference is made in § 1252(c) contemplate review or revision of "any determination of the Attorney General concerning detention," it is arguable whether it applies to a case in which the Attorney General does not have the discretion to release an alien.
Of the three aliens involved in these consolidated cases, Kenechukwu Nwankwo and Stanley Umah are permanent resident aliens who were "lawfully admitted" to the United States. Pursuant to 8 U.S.C. § 1252(a)(2)(B), the Attorney General retains the discretion to release them. Under these circumstances, the "determination of the Attorney General concerning their detention" may be reviewed upon a showing that "the Attorney General is not proceeding with such reasonable dispatch as may be warranted" to effect their deportation. 8 U.S.C. § 1252(c). While Egebetayo Peters was arrested before he could be "lawfully admitted" into the United States, relief pursuant to 28 U.S.C. § 2241(c) is nevertheless available.
Congress may mandate the detention of illegal aliens convicted of aggravated felonies pending the execution of an order of deportation or exclusion. Nevertheless, the Attorney General is not free to extend that detention significantly by failing to undertake timely the steps necessary to effectuate deportation. Otherwise, the "detention under pretense of awaiting opportunity for deportation would amount, and will amount to an unlawful imprisonment from which relief may be afforded by . . . habeas corpus." United States ex rel Ross v. Wallis, 279 F. 401, 403-04 (2d Cir. 1922). See also Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387-88 (10th Cir. 1981); Davis v. Weiss, 749 F. Supp. 47, 53 (D. Conn. 1990) (holding mandatory detention of certain criminal aliens pending deportation proceedings constitutional, although "the alien would always have a writ of habeas corpus as a remedy" if he is unduly detained "for any impermissible length of time" pending the deportation hearing).
Accordingly, the issue presented in each of these consolidated cases is whether the Attorney General is "proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case. . . to effect such alien's departure from the United States within such six-month period."
Kenechukwu Nwankwo was sentenced to the custody of the Attorney General for a period of thirty-three months for attempting to import 189.5 grams of a substance of which 61% was heroin. Mr. Nwankwo completed serving his sentence on January 12, 1993, and an uncontested order of deportation was entered on January 15, 1993. Three weeks later, he wrote advising me that he was still incarcerated at the Federal Correctional Institution at Oakdale, Louisiana. Mr. Nwankwo's letter continues as follows:
After receiving this letter I contacted Billy Hammons, a Special Agent of the Immigration and Naturalization Service at the Federal Correctional Institution in Oakdale, Louisiana. Mr. Hammons, who has been relied upon by the United States Attorney as the prime source of information on these matters, advised that the reason for the delay in carrying out the order of deportation was the fact that the Drug Enforcement Administration, which had originally seized Mr. Nwankwo's passport, could not find it. Mr. Hammons indicated that the Immigration and Naturalization Service was in the process of obtaining a substitute travel document from the Nigerian Embassy, a task that Mr. Hammons estimated would take thirty days. Mr. Hammons indicated that Mr. Nwankwo would be deported by the end of February.
On February 17, 1993, I advised Mr. Nwankwo of the reason for the delay in his deportation and told him that I was treating his letter as a petition for a writ of habeas corpus. I further advised him that, in the event he was not deported by March 1, 1993, I intended to enter an order directing his release from custody "subject to any objections the United States Attorney may ...