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THOMPSON v. UNITED STATES DOJ INS

November 7, 1995

DWIGHT S. THOMPSON, Petitioner, against UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE ACTING ASSISTANT DIRECTOR EDWARD McELROY, et al., Respondents.


The opinion of the court was delivered by: KAPLAN

 Petitioner seeks review, by a petition for a writ of habeas corpus, of his detention pending judicial review of an order of deportation. Although the Immigration and Naturalization Service ("INS") has not distinguished itself in this matter, the writ nevertheless must be denied.

 Facts

 Petitioner Dwight S. Thompson is a thirty-four year old native and citizen of Jamaica and has been a lawful permanent resident of the United States since June 26, 1983. On July 18, 1989, he was convicted in New York Supreme Court, Kings County, on his plea of guilty, of criminal possession of a loaded firearm in the third degree, which is a class D felony. At about the same time, he was convicted also of attempted robbery in the second degree, also a class D felony. On August 8, 1989, Thompson was sentenced to two concurrent terms of one to three years imprisonment.

 On April 13, 1993, Thompson was convicted in New York Supreme Court, Kings County, as a repeat felony offender of attempted criminal possession of a controlled substance in the third degree, a class E felony. He was sentenced to eighteen months to three years imprisonment on that conviction.

 On or about January 5, 1994, while Thompson was in State custody, the INS issued an administrative order to show cause charging that Thompson was deportable from the United States, pursuant to 8 U.S.C. § 1251(a)(2)(B)(i) and 1251(a)(2)(C), on the bases of his controlled substance and firearms convictions, respectively. At the hearing, Thompson conceded through counsel that he was deportable as charged, but sought to apply for a discretionary waiver of deportation under Section 212(c) of the Immigration and Nationality Act of 1952, as amended (the "Act"), 8 U.S.C. § 1182(c). The Immigration Judge, however, ruled that Thompson was not eligible for a Section 212(c) waiver because his deportability as a convicted firearms offender corresponded to no ground of exclusion. Thompson was ordered deported.

 Thompson appealed to the Board of Immigration Appeals ("BIA") which, on September 6, 1994, affirmed the deportation order. He subsequently sought review in the Second Circuit, although the petition for review has been withdrawn without prejudice to reinstatement following the Second Circuit's impending decision in Cato v. INS, No. 93-4039 (2nd Cir. submitted June 2, 1995), which involves the question whether a convicted firearms offender is eligible for a Section 212(c) waiver.

 Thompson was released from State custody to INS custody on or about November 30, 1994, shortly after he filed his petition for review of the deportation order with the Second Circuit. He began seeking release pending judicial review of his deportation order on May 25, 1995, when his counsel requested the District Director of the INS to fix a bond for Thompson. (Habeas petition ("Pet") P 8 & Ex. G) Although the copy submitted by petitioner bears a received stamp alleged to be that of the District Director, a contention the government does not deny, no action was taken on the request. On August 10, 1995, the Assistant United States Attorney told petitioner's counsel that the INS had no record of receiving such a request. (Pet P 8)

 On May 30, 1995, Thompson's counsel requested the Immigration Judge to fix bond, noting that the previous request had not be responded to. This request was served on the INS Trial Attorney. (Pet P 9 & Ex. H) The Immigration Judge physically returned the request to petitioner's counsel, stating that he could not consider a bond request because Thompson had a case pending in the federal court. (Id.)

 Having been unsuccessful in obtaining any action on the bond requests, Thompson on July 10, 1995 filed an application with the BIA seeking an order directing the District Director to respond to the bond request. (Id. P 11 & Ex. I) The record discloses no action by the BIA.

 Frustrated by the INS's inaction, Thompson filed this petition for a writ of habeas corpus seeking his immediate release, either on his own recognizance or upon furnishing a reasonable bond. (Pet.) On August 17, 1995, this Court directed the government to respond to the petition within thirty days.

 On September 15, 1995, the parties signed a stipulation and order, approved by the Court on September 20, 1995, which provided that (a) "the District Director shall adjudicate petitioner's request for release on bond and render a decision no later than October 11, 1995," and (b) the action was dismissed with prejudice, subject to petitioner's right to reopen by written request if the District Director failed to act by October 11, 1995.

 The District Director again failed to act, ignoring his obligations under the stipulation and order. On November 2, 1995, the Court, on petitioner's application, directed the government to show cause why petitioner should not be immediately released from custody. The papers were served on the government the same day.

 Apparently spurred to action by the order to show cause, the District Director on November 2, 1995, finally denied petitioner's request for release, overruling the recommendation of the deportation officer in charge of petitioner's case, who recommended that petitioner be released on $ 15,000 bond. (Return PP 2-3) The District Director based his decision on the conclusions that Thompson has little chance of success in ultimately avoiding ...


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