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DIAZ v. MCELROY

March 7, 2001

MARIO ABREU DIAZ, PETITIONER,
V.
EDWARD J. MCELROY, DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



The opinion of the court was delivered by: Batts, District Judge.

MEMORANDUM AND ORDER

Petitioner Mario Abreu Diaz, an alien currently held in custody pending removal, challenges both the removal order and his continued detention without bail, pursuant to 22 U.S.C. § 2241 (the "Petition").

Magistrate Judge Frank Maas issued a Report and Recommendation dated December 29, 1999 (the "Recommendation") in this case. See 28 U.S.C. § 636(B)(1)(c); Local Civil Rule 72.1(d). Respondent has filed objections to the Report and Recommendation. 28 U.S.C. § 636(B)(1)(C) requires the Court to make a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." After conducting a de novo review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C); see also Local Civil Rule 72.1(d).

The Court does not adopt the Recommendation because Magistrate Maas relied upon an outdated procedural record, through no fault on his part. Specifically, Magistrate Maas' chambers did not receive a letter from the Government dated December 17, 1999, in which it was noted that the Board of Immigration Appeals ("BIA") had rejected Diaz' removal appeal as of October 7, 1999 and the INS District Director had refused Diaz' request to be released from detention during the pendency of the removal appeal as of December 16, 1999, prior to the issuance of the Recommendation.

I. BACKGROUND

Diaz is a thirty-nine year old citizen of the Dominican Republic. He was admitted to the United States in June 1967 as a lawful permanent resident. (Decl. of Meredith E. Kotler ("Kotler Decl.") Ex. A at 1m, Ex. B at 59). He has a lengthy criminal history which includes a felony conviction in December 1980 for robbery in the second degree, eight misdemeanor convictions over the course of seventeen years, and, most recently, a May 22, 1997 conviction upon a plea of guilty on May 5, 1997 to burglary in the third degree, for which he was sentenced to one to three years' imprisonment. (Id. Ex. A at 1-10, Ex. B. at 56-57). At least five bench warrants related to these charges have been issued against Diaz. (Id.).

It appears that Diaz' criminal problems are attributable, at least: in part, to his sporadic use of crack cocaine since 1985. (Id. Ex. C at 20). Although he has spent much of the past ten years living in shelters and on the street, he has substantial ties to this country, including a mother, two sisters, a daughter, and a stepfather who are United States citizens. (Id. at 19; Petition ¶ 10.)

The INS commenced removal proceedings against Diaz on July 28, 1997, through a Notice to Appear which charged that he was subject to removal because the May 1997 burglary conviction constituted an aggravated felony, pursuant to the Illegal Immigration Reform and Immigrant Responsibility of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (hereinafter "IIRIRA") (as an alien convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii)). (Id. Ex. B at 71-73). Ultimately, on February 12, 1998, after Diaz conceded his deportability, an Immigration Judge (hereafter "IJ") found that he was ineligible for cancellation of removal and ordered him removed to the Dominican Republic. (Id. at 24-26). On February 19, 1998, Diaz timely appealed the IJ's removal order to the BIA. (Id. at 15-16). On October 7, 1999, the BIA affirmed the IJ's order of removal. (Kotler December 17, 1999 Letter (the "December 17 Letter") at 1).

In May 1998, following the completion of his criminal sentence on the burglary charge, Diaz was turned over to the custody of the INS. (See Resp.'s Mem. Opp'n at 7). After the transfer of custody, the District Director of the INS set Diaz' bail pending removal in the amount of $25,000 bond, and Diaz requested a redetermination of that decision by an IJ. (Id. Ex. C at 51). Following several adjournments so that Diaz could secure legal representation, the bond hearing was completed on June 9, 1998. Although the District Director's counsel urged that Diaz be held in lieu of a bond, the IJ upheld the District Director's original determination, which he termed "very reasonable bail." (Id. at 17-24).

In July 1998, Diaz appealed the IJ's custody redetermination to the BIA. (Id. at 12-14). On April 12, 1999, the BIA vacated the IJ's bond order as moot and dismissed the appeal, holding that Mr, Diaz "may not be released from custody during the pendency of [his] removal proceedings." (Id. at 3). The BIA decision turned on its interpretation of IIRIRA, and certain regulations promulgated pursuant thereto. Subsequently, however, the INS Commissioner issued two memoranda reinterpreting the Act and accompanying regulations which overrule, by implication, the BIA bail determination. (Id. Exs. E, F). Because Diaz is no longer subject to the INA's mandatory detention provision, 8 U.S.C. § 1226(c) (Supp. II 1996), the INS District Director considered Diaz' suitability for release from INS custody and determined on December 16, 1999 that he should remain detained. (Govt. Letter to the Court, dated Dec. 17, 1999 at Ex. B.) Diaz had the right to appeal within ten days of the date of the District Director's decision and to date, apparently has not filed such an appeal with the BIA. (Decl. of Wanda Sue Gearheart ¶ 5.)

Diaz again requested release in February 2000, but was denied by the INS District Director on November 1, 2000, again with the admonition that he had ten days in which to file an appeal to the BIA. (Govt Letter to the Court, dated November 3, 2000, at Ex. C, D).

Construed broadly, Diaz' petition encompasses three motions. First, Diaz challenges his removal order on the ground that he should have been permitted to seek a discretionary waiver of deportation, pursuant to former section 212(c) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1182(c) (1994) (hereafter the "INA"). Diaz argues that the bar to such a waiver under the Antiterrorism and Effective Death Penalty Act of 1996 (hereafter "AEDPA"), Pub.L. No. 104-208, Div. C, Title III-A, § 304(b), 110 Stat. 1214, 1277 (Apr. 24, 1996), was impermissibly applied to him retroactively.

Second, in a letter dated January 10, 2000, Diaz made a motion for custody redetermination pursuant to 8 C.F.R. § 236(a)(1) that appears to have been served on "the pro se office of Magistrate Judge Frank A. Maas" and the Government.

Finally, Diaz has filed a post-petition "Motion for Release on Health Related Basis" dated June 4, 1999, which requests that he be released ...


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