unless she acts "with such reasonable dispatch as may be warranted by the particular circumstances in the case of any alien to effect such alien's departure from the United States within such six-month period." 8 U.S.C. § 1252(c); Nwankwo v. Reno, F. Supp. , 1993 U.S. Dist. LEXIS 4433. The response of the United States Attorney, however, fails to explain why Mr. Iheme has not been deported since the entry of the order of deportation some three months ago.
The United States Attorney does imply that a timely request for the issuance of travel documents was made to the Nigerian Embassy on January 11, 1993 seven days after the order of deportation became final. The request did not, however, include the passport of Mr. Iheme that the Nigerian Embassy requires before it will issue the necessary travel documents for the alien to return to Nigeria. Although the Immigration and Naturalization Service is aware that "the Embassy of Nigeria requires this Service to present passports, including documents and other biographical data to assist the Embassy in verifying the subject's identity,"
Mr. Iheme's passport was not forwarded to the Nigerian Embassy until April 5, 1993.
The United States Attorney does not offer any explanation for this delay in forwarding the passport. Prior experience, however, suggests that it was probably due to the failure of the Drug Enforcement Administration to forward Mr. Iheme's passport to the Immigration and Naturalization Service. If this is the explanation for the delay, it is simply not adequate. The Immigration and Naturalization Service has long been aware of delays caused by the failure of the Drug Enforcement Administration to forward the necessary travel documents. Indeed, as result of the attention United States v. Restrepo, 802 F. Supp. 781 (E.D.N.Y. 1992), called to this problem, representatives of the United States Attorneys Office and Billy G. Hammons of the Immigration and Naturalization Service met on November 19, 1992 to discuss steps that would be taken to facilitate and expedite the deportation process for convicted aliens at the conclusion of their sentences. The memorandum, which summarizes the outcome of the meeting and which was provided by the United States Attorney, indicates that the "immediate concern" of the meeting was "the delay occasioned by the inability to promptly locate the aliens' travel documents, which are required by the receiving country." Memorandum from William J. Muller, Chief Criminal Division, United States Attorneys Office, dated February 19, 1993.
While procedures were adopted that are intended to avoid such delays with respect to aliens arrested thereafter, there were no steps taken to avoid the delay encountered here. Nor did the Immigration and Naturalization Service make any effort to obtain Mr. Iheme's passport passport until more than two months after the order of deportation became final. In the absence of a more compelling explanation for the delay in deporting Mr. Iheme, it is impossible to conclude that the Attorney General has acted "with such reasonable dispatch as may be warranted by the particular circumstances . . . to effect such alien's departure from the United States." 8 U.S.C. § 1252(c). See United States v. Nwankwo, F. Supp. , 1993 U.S. Dist. LEXIS 4433.
The apparent misconduct of the Immigration and Naturalization Service has not only prejudiced the petitioner, it has cost the taxpayers of the United States approximately $ 2,000 per month for each month Mr. Iheme has served beyond his original fifteen month sentence.
Instead of acquiescing in the issuance of the writ of habeas corpus, which the United States Attorney has conceded would be appropriate if "a particular defendant is detained past his term of incarceration because of Immigration and Naturalization Service non-feasance," Brief for the United States, United States v. Restrepo, No. 92-1631, 2d Cir., p. 32, the United States Attorney continues to aid and abet the Immigration and Naturalization Service in delaying Mr. Iheme's deportation.
Specifically, the United States Attorney objects to my consideration of the petition on the ground that "a district court may not entertain a habeas corpus action unless it has jurisdiction over the custodian of the prisoner." While this is a correct statement of the law, it is difficult to understand the decision of the United States Attorney to rely on it here. The purpose of the rule regarding that the habeas corpus court have jurisdiction over the custodian of prisoner is to avoid placing the burden on the custodian of transporting the prisoner to a district court far from his place of confinement. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 496 (1973). Because the facts are not disputed, there will be no need to move the prisoner to New York for a hearing. Moreover, the United States District Court for the Western District of Louisiana, where petitioner and hundreds like him are detained, is "inundated" with habeas corpus petitions based on allegations similar to those alleged here and is unable to process these petitions in a timely manner. See Emejulu v. United States Immigration and Naturalization Service, 989 F.2d 771, (5th Cir. 1993) ("The administrative delays in processing deportations produces an atypical and unanticipated volume of habeas corpus petitions that is beyond the capability of the district court [for the Western District of Louisiana] to process in a timely fashion." Id. at 772).
The jurisdictional defense asserted by the United States Attorney is one that can be waived. See Nwanko v. reno, F. Supp. , 1993 U.S. Dist. LEXIS 4433, (E.D.N.Y. March 30, 1993). Indeed, in United States v. Huss, 520 F.2d 598 (2d Cir. 1975), the Court of Appeals indicated that it was "disturbed that in the interest of justice the United States Attorney" could not waive an objection similar to the one raised here. Id. at 606 n.16. While I share the same sentiment, the unwillingness of the United States Attorney to waive this objection requires me to transfer the case to the United States District Court for the Western District of Louisiana (Lake Charles Division). Subject to any order of the judge to whom the case is assigned, the United States Attorney for the Western District of Louisiana is directed to show cause why the petitioner should not be released by April 30, 1993, unless he is deported prior thereto.
Edward R. Korman
United States District Judge
Dated: Brooklyn, New York
April 27, 1993