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SALAZAR v. REICH

October 9, 1996

JULIAN CALERO SALAZAR, Petitioner, against R.M. REICH, Warden, etc., et ano., Respondents.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 The principal question presented by this petition for a writ of habeas corpus is whether petitioner, a Peruvian national who entered the United States illegally in 1991 and who is wanted in Peru on charges including terrorism and murder as an alleged member of the Shining Path guerrilla movement, is entitled to release on bond pending the determination of his application for political asylum and the deportation proceeding pending against him. Petitioner's request for bond initially was granted by an Immigration Judge ("IJ") and subsequently stayed by the Board of Immigration Appeals ("BIA"). The Court concludes that there is no basis at this time for directing petitioner's release from custody.

 Facts

 Petitioner entered the United States illegally on August 8, 1991 and subsequently has resided in Wilton, Connecticut, where by all accounts he has led a law-abiding and productive life. On December 19, 1994, he applied for political asylum, thereby bringing himself to the attention of the Immigration and Naturalization Service ("INS"). His application stated in substance that his life would be in imminent danger were he to return to Peru because the Peruvian government falsely had accused him and his family of being members of the Shining Path. Indeed, it appears that petitioner's wife, Fresia Calderon Garate, was jailed and tortured for seven months in 1994 on charges of terrorism. *fn1"

 Petitioner apparently remained at liberty pending the asylum and deportation proceedings *fn2" until May 30, 1996, when he was arrested by the INS on an administrative warrant upon his arrival at the INS office for a hearing on his asylum application. On the following day, the United States Attorney's office, acting pursuant to an extradition request lodged by the government of Peru, filed a complaint and obtained a warrant for petitioner's arrest, which was executed on June 3, 1996. Petitioner thereupon was transferred to the custody of the United States Marshal.

 On August 23, 1996, the United States Attorney's office moved to dismiss the complaint against petitioner in view of its conclusion that the government of Peru had failed to establish probable cause to support petitioner's extradition. Petitioner subsequently has been held at the Metropolitan Correctional Center in the custody of the INS.

 Petitioner applied for release on bond pending a determination of his deportability, and a hearing was held on August 30, 1996. The government opposed release, contending that petitioner is a danger to the community and that there are warrants of arrest outstanding against him in Peru, apparently as a result of an incident in which petitioner allegedly participated in an ambush that resulted in the death of six Peruvian police officers, The petitioner denied the charges made against him in Peru, contending among other things that he had been in the United States when the alleged ambush took place and that innocent people routinely are accused falsely of subversive activities in Peru and killed or imprisoned without legal recourse.

 The IJ filed an extensive opinion setting forth her findings and conclusions on September 23, 1996. (Pet. Ex. 1) The IJ concluded that the evidence of petitioner's involvement in the alleged ambush was "not persuasive, reliable [or] probative," noting that the evidence against him consisted in substantial measure of statements from prisoners accused of participating in the ambush who were "beaten and tortured during interrogation..." She concluded also that petitioner was not a flight risk. Given the fact that the written decision was not completed until September 23, 1996, more than two weeks after the BIA stayed the IJ's order, the BIA obviously did not have the benefit of the IJ's reasoning or findings.

 Discussion

 The petition presents three claims for relief. The first contends that petitioner's continued detention on bond is arbitrary, capricious and without reasonable foundation. The second asserts that the BIA's issuance of the stay without a hearing or review of the IJ's decision, as well as its failure to determine the government's appeal from the IJ's order on a timely basis, was arbitrary, capricious and a violation of petitioner's right to due process of law. The third contends that the failure to release petitioner on bond is unreasonable and improper, either standing alone or taken together with the Attorney General's failure to proceed with "reasonable dispatch" in hearing petitioner's political asylum claim.

 Release on Bond Pending the Deportation and Asylum Proceeding

 Petitioner's first and third claims overlap to the extent that both assert in substance that petitioner is entitled to release on bond pending the determination of his asylum application. It would be inappropriate, ...


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