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
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.)
In April 1997, while Rodriguez was in New York state prison,
the I.N.S. lodged a detainer with the New York Department of
Corrections, issued a warrant for Rodriguez's arrest, and issued
him a Notice to Appear in removal proceedings. The alleged bases
for Rodriguez's removal were that he was an immigrant who lacked
a valid visa, entry permit, or border-crossing card
(8 U.S.C. § 1182(a)(7)(A)(i)); that he
was an alien who had been convicted of two or more non-political
offenses for which the aggregate sentences to confinement
actually imposed were five years or more
(8 U.S.C. § 1182(a)(2)(B)); and that he was an alien whom a consular or
immigration official knew or had reason to know was or had been
an illicit trafficker in controlled substances
(8 U.S.C. § 1182(a)(2)(C)). (Id. at 32-33.) On August 8, 1997, an
immigration judge ordered Rodriguez removed. (Id. at 23-27.) He
was ordered removed to Cuba, as Rodriguez did not designate a
country to which to be removed and as the I.N.S. selected Cuba.
The Bureau of Immigration Appeals ("B.I.A.") dismissed
Rodriguez's appeal on May 4, 1998. (Id. at 9.)
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 ...