The opinion of the court was delivered by: EDWARD R. KORMAN
Christopher Nwafor Nwankwo was arrested at John F. Kennedy Airport while attempting to import a substance containing 188.8 grams of a substance of which 35% was heroin. On September 20, 1991, after pleading guilty to the offense for which he was arrested, Mr. Nwankwo was sentenced to twenty-seven months imprisonment, three years supervised release and $ 50 special assessment.
Mr. Nwankwo completed serving his sentence on February 12, 1993, at which time he was transferred to the custody of the Immigration and Naturalization Service at the Federal Deportation Center at Oakdale, Louisiana to await deportation proceedings. These proceedings should have been commenced long before the expiration of his sentence if the Attorney General had complied with Section 701 of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1252(i).
Section 701 directs the Attorney General to "begin any deportation proceeding as expeditiously as possible after the date of conviction." In Soler v. Scott, 942 F.2d 597, 600 (9th Cir. 1991), vacated as moot, U.S. , 113 S. Ct. 454 (1992), Judge Browning set out concisely the "single objective" that Congress sought to accomplish by the enactment of Section 701:
Congress enacted Section 701 . . . to require the INS to abandon its practice of postponing prisoner deportation hearings until after the expiration of a prisoner's sentence. Rather than deporting aliens promptly upon the expiration of their prison sentence, the INS waited until a prisoner completed his or her sentence before even scheduling a hearing to determine whether the prisoner would be deported. These aliens remained in prison while awaiting their deportation hearing. Congress concluded this practice of keeping aliens in prison after they had completed their sentence contributed to prison overcrowding and imposed an unfair, unnecessary and expensive burden on limited federal and state resources. Congress enacted Section 701 to require the INS to begin deportation hearings as soon as possible after conviction so the question of deportation could be resolved before the prisoner's term expired, and if the prisoner was found deportable, deportation could be accomplished promptly.
The Immigration and Naturalization Service did not comply with Section 701 here, just as it has ignored the intent of Congress in other cases. Soler, 942 F.2d at 600-601. Indeed, Mr. Nwankwo's initial deportation hearing was held on January 27, 1993, only sixteen days before the expiration of his sentence. Largely as result of this unexplained delay, "which, at a minimum, is contrary to the spirit of the law," United States v. Restrepo, 999 F.2d 640, 1993 WL 274416, *7 (2d Cir.), Mr. Nwankwo finds himself among the countless number of illegal aliens who are being incarcerated at Oakdale long after the service of their sentence at an enormous cost to the taxpayers. The circumstances that surround the detention of Mr. Nwankwo and others like him were recently described by the Court of Appeals for the Fifth Circuit:
In the instant case (and in the cases of many of the detainees at Oakdale), the alien was (1) convicted of the kind of crime that made him deportable, (2), nevertheless served his entire prison sentence, (3) was then shipped to the federal holding center at Oakdale, (4) had a deportability hearing in which he was found deportable, and (5) languishes in Oakdale awaiting deportation. It appears to us that such lengthy delays have caused considerable expenditures of the very tax dollars that Congress was concerned about when it passed much of the subject legislation (not to mention the de facto extension of prison time beyond that for which such detainees have been sentenced). Compounding the expenditures that Congress was concerned with is the expense being borne by the Western District of Louisiana in processing the flood of habeas petitions being filed by the detainees who, by any fair reading of the statute, should long since have been deported.
Emejulu v. Immigration and Naturalization Serv., 989 F.2d 771, 772 n.1 (5th Cir. 1993).
On June 6, 1993, during his fourth month of detention following the completion of his sentence, Mr. Nwankwo wrote a letter indicating that as of May 14, 1993, he had abandoned all efforts to contest his deportation:
"Without pretense, it will be very, very miserably heartbreaking, a move to leave behind, my young children and wife, all of the United States citizens to be deported. But I have accepted the unfaithful circumstance that I cannot change. In view of all these, however, I have immensely and desperately pleaded with the (INS) to deport me in-order to rejoin my 74 year-old ailing mother and also make all alternative plans to bring my children and wife home into the country that they know little or nothing about."
The letter was treated as a petition for a writ of habeas corpus pursuant to 8 U.S.C. § 1252(c), which provides that "the Attorney General shall have a period of six months" from the date of a final order of deportation "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 [or] released on bond . . .." Section 1252(c) goes on to provide a remedy for the failure of the Attorney General to proceed with reasonable dispatch in effectuating an alien's departure 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 ...