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