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February 24, 1999


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


Petitioner Francisco Rodriguez ("petitioner" or "Rodriguez") has filed a petition for a writ of habeas corpus seeking his release from the custody of the Immigration and Naturalization Service ("I.N.S."). The Government opposes the petition and requests that it be denied on its merits. In the alternative, the Government argues that the petition should be dismissed because of petitioner's failure to exhaust his administrative remedies, and the petition is dismissed for that reason.

Rodriguez was born in Cuba on August 16, 1965 and came to the United States at a young age. According to his petition, Rodriguez was granted humanitarian parole into the U.S. on December 7, 1967; according to an affidavit he executed on April 18, 1990, he entered the country illegally when he was three or four years old. (Loprest Decl. Ex. A at 66.)*fn1 In his petition Rodriguez states that at age five he was taken from his mother and placed in a home for boys and then a foster home; that he has had jobs and paid taxes; that his sisters and grandmother are U.S. citizens; and that he has never left the U.S. since his initial arrival.

Rodriguez has a criminal record. In 1984 he pleaded guilty to two charges of attempted burglary, and he was sentenced to six months' imprisonment and five years' probation on February 14, 1985. (Id. at 44, 57-58.) In 1989 he pleaded guilty to criminal sale of a controlled substance in the second degree, and he was sentenced as a predicate felon to seven and a half years' to life imprisonment on September 26, 1989. (Id. at 48, 51, 54.)

Meanwhile, on April 30, 1998, Rodriguez completed his New York State sentence, and he was taken into the custody of the I.N.S.'s New York District Director, in whose custody he has been ever since. On October 16, 1998, Rodriguez consented to appear without counsel at an interview to determine whether or not he should be released from I.N.S. custody. (Id. at 1.)*fn2 The interview took place on December 3, 1998, at Cambria County Prison, and both members of the interview panel were "unable to conclude that [Rodriguez], upon being released from INS custody, will not pose a threat to the community." (Id. at 7.)

Rodriguez claims that he is being incarcerated unlawfully because the I.N.S. has had him in its custody for over 90 days. Under 8 U.S.C. § 1231(a)(1), the Attorney General has 90 days to remove an alien who has been ordered removed. Rodriguez's removal order became final when his appeal was dismissed by the B.I.A. on May 4, 1998, and thus his 90 day removal period expired on August 2, 1998. 8 C.F.R. § 241.1(a). During the removal period, the Attorney General is to detain the alien. 8 U.S.C. § 1231(a)(2). However, contrary to Rodriguez's assertion, the Attorney General does have the authority to continue to detain a removable alien past the 90 day removal period: "An alien ordered removed who is inadmissible under [8 U.S.C. § 1182], removable under [8 U.S.C. § 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4)] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period . . ." 8 U.S.C. § 1231(a)(6).

Rodriguez was taken into I.N.S. custody pursuant to a Warrant of Removal/Deportation dated May 7, 1998. (Loprest Decl. Ex. A at 8.) That warrant was based on the B.I.A.'s final order of removal dated May 4, 1998 (id. at 9), in which the B.I.A. affirmed the immigration judge's ruling that Rodriguez was inadmissible under § 1182.*fn3 Thus, because he is an "alien ordered removed who is inadmissible under [§ 1182]," the Attorney General may lawfully detain Rodriguez beyond the 90 day removal period. 8 U.S.C. § 1231(a)(6).

Though his continued detention is not per se unlawful, it is also not mandatory. I.N.S. regulations provide Rodriguez an avenue for possible relief:

  The district director may continue in custody any
  alien inadmissible under [8 U.S.C. § 1182(a)] or
  removable under [8 U.S.C. § 1227(a)(1)(C),
  1227(a)(2), or 1227(a)(4)], or who presents a
  significant risk of noncompliance with the order of
  removal, beyond the removal period, as necessary,
  until removal from the United States. If such an
  alien demonstrates by clear and convincing evidence
  that the release would not pose a danger to the
  community or a significant flight risk, the district
  director may, in the exercise of discretion, order
  the alien released from custody on such conditions as
  the district director may prescribe, including bond
  in an amount sufficient to ensure the alien's
  appearance for removal.

8 C.F.R. § 241.4(a).*fn4 In reviewing the alien's case, the "district may consider, but is not limited to considering, the following factors: (1) The nature and seriousness of the alien's criminal convictions; (2) Other criminal history; (3) Sentence(s) imposed and time actually served; (4) History of failures to appear for court (defaults); (5) Probation history; (6) Disciplinary problems while incarcerated; (7) Evidence of rehabilitative effort or recidivism; (8) Equities in the United States; and (9) Prior immigration violations and history." Id.

Rodriguez has not provided evidence that he has already petitioned the New York district director to release him pending his removal pursuant to 8 C.F.R. § 241.4(a). Before bringing a petition for a writ of habeas corpus to the District Court, a petitioner must exhaust his or her administrative remedies. Guida v. Nelson, 603 F.2d 261, 262 (2d Cir. 1979). In the case of a removable alien detained past the 90 day removal period, the petition must first be raised with the I.N.S. district director. 8 C.F.R. § 236.1(d)(1); Aboulkhair v. INS, No. 97 Civ. 1872, 1998 WL 2557, at 2-4 (S.D.N.Y. Jan. 5, 1998); Lleo-Fernandez v. INS, 989 F. Supp. 518, 519 (S.D.N.Y. 1998).

It is possible that the Review Panel's determination (supra, note 2) constituted or was equivalent to a decision by the district director. If true, Rodriguez would still have to appeal the Review Panel's decision to the B.I.A. Oliva v. INS, No. 98 Civ. 6526, 1999 WL 61818 (S.D.N.Y. Feb. 10, 1999); Abdul v. INS District Director, No. 98 Civ. 2460, 1999 WL 58678 (S.D.N Y Feb. 4, 1999); 8 C.F.R. § 236.1(d)(3)(iii). An alien has 10 days to appeal the district director's decision to the B.I.A. 8 C.F.R. § 236.1(d)(3)(iii). Given that the Government here argues that Rodriguez has not yet petitioned the district director (Resp. Mem. at 10), the Court assumes that the Review Panel process is entirely separate from the alien's rights to request relief from the district director under 8 C.F.R. § 236.1(d)(3)(iii). In any event, once Rodriguez requests relief from the district director he must appeal any adverse decision by the district director within 10 days to the B.I.A. before filing a habeas petition in U.S. District Court.

Rodriguez also raises a constitutional claim, asserting that his detention violates his due process rights.*fn5 The essence of the complaint is that he is being detained unlawfully in violation of his constitutional rights to substantive due process and against cruel and unusual punishments. The Court has some very serious concerns about Rodriguez's detention and the detention of similarly situated aliens who are waiting to be removed*fn6, but ...

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