drug convictions spread out over nearly twelve years.
I agree that this case presents novel issues, but I cannot find, on the basis of the papers submitted by the government, that they have made a particularly strong showing of likelihood of success on appeal.
2. Irreparable Harm and the Public Interest
The government argues that because at least three of Dhine's convictions constitute aggravated felonies within the meaning of 8 U.S.C. § 1101(a)(43), by definition he poses a danger to the community and a risk to abscond.
The issue before the Court, however, is not whether Dhine is an aggravated felon within the meaning of the Immigration and Nationality Act, but whether his release poses a danger to the community, which presumably would be contrary to the public interest.
Dhine has never been accused of committing any crime of violence. He has, however, been convicted four times for offenses relating to drugs. Militating in his favor are the facts that his offenses involved relatively small amounts of drugs, and that he has been drug free for three years now, although that has been in a secure setting during that period.
The government has identified a legitimate concern that Dhine would return to drug use if he were released. There is no dispute that this result would work against the public interest. The magnitude of that risk, however, is reduced by Dhine's efforts at rehabilitation and the promises to assist Dhine upon his release made by various agencies and individuals.
The government also argues that Dhine is likely to abscond, given that he has two prior convictions for failure to appear. On his own behalf, Dhine argues that he has every incentive not to abscond since a court has awarded him the relief he seeks. While I recognize that there is some risk that Dhine will abscond, I think that risk is fairly small given the likelihood of success of his petition, and because a favorable result from the Second Circuit will afford him exactly what he seeks: the right to stay in this country.
Clearly the government does have legitimate concerns about whether Dhine will remain drug free and whether he can be relied upon to appear as directed. However, I do not think that full custody is necessary to address these concerns. I believe that strict supervision could provide sufficient assurance that Dhine would remain drug free and appear when directed, if he were released.
3. Injury to the Petitioner
The government argues that Dhine will not be prejudiced if the stay is granted because he has been in custody for more than three years now, and an additional brief period of incarceration would not cause substantial injury. I reject that argument outright. Dhine does face substantial injury for every day he is forced to remain in custody.
In evaluating the factors employed to determine whether a stay should be issued, I find that the factors militate in favor of release, although there is a strong argument to impose at least some supervision. That result would minimize the injury to the petitioner, while providing sufficiently protecting the public interest. Furthermore, I think that this result complies with the direction of Rule 23(c).
Accordingly, I enter the following order: Respondents are directed to release petitioner from custody. The petitioner will be subject to strict parole supervision; that supervision will be structured and administered by respondents. If petitioner finds that the terms of supervision are too onerous, he may apply for the Court for relief.
I further grant the government's request that this order be stayed for ten (10) days to allow the government to petition the Second Circuit for a stay of this Court's order.
It is SO ORDERED.
Dated: New York, New York
May 24, 1993
CHARLES S. HAIGHT, JR.