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March 25, 1998

JUAN CARLOS CABREJA-ROJAS A30-123-793, Petitioner,
JANET RENO, Attorney General of the United States, and EDWARD McELROY, New York District Director, Immigration and Naturalization Service, Respondents.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 This petition for a writ of habeas corpus presents the question whether the Due Process Clause requires that a permanent resident alien who is subject to a final order of deportation is entitled to a hearing before a decision maker independent of the Immigration and Naturalization Service ("INS"), rather than the INS district director, on his application for release pursuant to the Transitional Period Custody Rules ("TPCR"). On the return of petitioner's order to show cause, the Court concluded that it does and entered an order directing the petitioner's release unless the INS affords petitioner a hearing before an Immigration Judge ("IJ") within ten days of the date of the order. This opinion now sets forth the basis for that decision.


 Petitioner, now age 32, has been a lawful permanent resident of the United States since the age of 4. His entire family resides in this country.

 In 1990, petitioner was convicted in New York State court of attempted sale of a controlled substance in the third degree and sentenced to probation. He was convicted of parole violation in 1995, based in part on a New Jersey credit card theft conviction, and sentenced to one to three years in prison. He succeeded in shortening the sentence by serving time in a shock incarceration program and was released in late 1995.

 While petitioner was in New Jersey custody, the INS commenced deportation proceedings against petitioner on the basis of the New York drug conviction. Petitioner sought a waiver of deportation pursuant to Section 212(c) of the Immigration and Nationality Act. *fn1" In 1996, however, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), *fn2" which eliminated the possibility of waiver of deportation for those convicted of aggravated felonies. The statute did not directly answer the question whether it precluded waivers in favor of aliens who, like petitioner, had applied prior to the enactment of AEDPA. Nevertheless, in February 1997, the Attorney General ruled that AEDPA precluded waivers in favor those who had applied prior to its enactment. *fn3" In consequence, the IJ denied petitioner's application and ordered him deported, a decision that was affirmed in January 1998 by the Board of Immigration Appeals ("BIA"). Petitioner has sought review of the deportation order in the Second Circuit, which has stayed the order pending its review. His case evidently will be governed by the decision in Henderson v. INS,4 which raises the same issue and was argued on January 21, 1998.

 On January 20, 1998, petitioner was taken into INS custody in the wake of the BIA's affirmance of the deportation order and now is incarcerated in Pike County, Pennsylvania. On January 27, 1998, petitioner, through counsel, applied pursuant to the TPCR to the district director of the INS for release on his own recognizance or on bond pending review of the deportation order. The request was denied on February 13, 1998 in a brief letter. Petitioner promptly appealed the district director's custody decision to the BIA.

 Petitioner filed this petition on March 10, 1998. Although the initial filing appeared to seek review of the district director's decision as well as other relief, petitioner at oral argument limited his claim to the single contention that the Due Process Clause entitles him to have his application for release pursuant to the TPCR heard by a decision maker independent of the INS such as an IJ.


 Insofar as is relevant here, the TPCR *fn5" provide that the Attorney General may release petitioner and others similarly situated if "the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding . . ." *fn6" The regulations implementing the TPCR provide that an alien seeking release thereunder may apply to the district director, *fn7" whose decision is subject to de novo review by the BIA. *fn8"

 In this case, it is undisputed that petitioner was admitted lawfully to the United States. He contended before the district director, unsuccessfully, that he should be released pending the outcome of his petition for review of the deportation order because he would not pose a danger and would appear for scheduled proceedings. Much of his petition reads as if he were seeking review by this Court of the district director's decision, which of course he may not now obtain because he has appealed from that decision to the BIA and he therefore has not exhausted his administrative remedies. *fn9" As noted above, however, petitioner has abandoned all such claims. He presses only a more basic, structural issue concerning the procedure by which his application for release pending review was determined -- he contends that the Due Process Clause entitles him to a hearing on the issue before an impartial adjudicator.


 The government's threshold response is that this aspect of the petition too should be dismissed for failure to exhaust. In considering exhaustion arguments, however, "it is important to focus on the precise issue as to which the petitioner seeks judicial relief." *fn10" The question therefore is whether petitioner has any administrative remedy with respect to his procedural due process claim, which is in the nature of a facial challenge to the INS regulations governing procedures under the TPCR, and, if so, whether he must exhaust it. The Court is ...

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