The opinion of the court was delivered by: Gershon, District Judge.
Petitioner Gordon Semple Halley is an alien under a final order of
deportation for conviction of an aggravated felony and a drug-related
offense pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and
8 U.S.C. § 1227(a)(2)(B)(1). He filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 on August 13, 1999, requesting a
stay of deportation and challenging a decision by the Board of
Immigration Appeals ("BIA") finding him ineligible for relief from
removal under old § 212(c) of the Immigration and Nationality Act
("INA"). Respondents have agreed to stay petitioner's removal pending the
adjudication of this application for a writ of habeas corpus. On February
21, 2001, I issued an order granting a writ of habeas corpus to
petitioner, vacating his removal order and remanding his case to the BIA
for further proceedings pursuant to the old INA § 212(c). However, on
March 12, 2001, I stayed my decision of February 21, 2001 pending the
appeals of St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000), cert. granted.
531 U.S. 1107, 121 S.Ct. 848, 148 L.Ed.2d 733 (2001) and Caleano-Martinez
v. INS, 232 F.3d 328 (2d Cir. 2000), cert. granted, 531 U.S. 1108, 121
S.Ct. 849, 148 L.Ed.2d 733 (2001).
Petitioner now moves for an immediate release from custody or in the
alternative bail, pursuant to the Court of Appeals' recent decision in
Mapp v. Reno, 241 F.3d 221, 223-30 (2d Cir. 2001), which held that
federal courts have inherent authority to admit habeas petitioners to
bail in the immigration context.
Under the statutory scheme for the detention of aliens under final
orders of deportation, the Attorney General has 90 days after an order of
removal becomes final in which to effect an alien's removal. See
8 U.S.C. § 1231(a)(1)(A). During this removal period, the Attorney
General must detain aliens convicted of aggravated felonies and crimes
involving controlled substances. See 8 U.S.C. § 1231(a)(2). If the
Attorney General has not effected removal within the removal period, and
an alien has been convicted of an aggravated felony or a crime involving
a controlled substance; or the Attorney General has (determined that the
alien is a risk to the community or unlikely to comply with an order of
removal, the Attorney General may either continue to detain the alien or
release the alien subject to supervision. See 8 U.S.C. § 1231(a)(6).
In Mapp, the government acknowledged that the Attorney General had
discretion to consider bail pursuant to 8 U.S.C. § 1231(a)(6), but
had failed to exercise that discretion because the INS had mistakenly
believed continued detention was mandatory. See 241 F.3d at. 229 n. 12.
In this case, unlike Mapp. the INS exercised its discretion and
determined, by decision dated March 14, 2001, that petitioner was not
eligible for supervised release because he is a risk to the community and
As the Court of Appeals recognized in Mapp, "it may be the case that
had the INS exercised its discretion under § 1231(a)(6) and decided
not to release [a petitioner] on bail, we would be required to
defer to its decision . . . ." 241 F.3d at 229 n. 12. Even assuming that
the court is not required to defer to an INS exercise of its discretion
under 8 U.S.C. § 1231(a)(6), petitioner is not entitled to bail.
Mapp recognizes that the authority of the court to admit a habeas
petitioner to bail should be exercised "only in unusual cases, or when
extraordinary or exceptional circumstances exist which make the grant of
bail necessary to make the habeas remedy effective . . . . The petitioner
must demonstrate that the habeas petition raises substantial claims and
that extraordinary circumstances exist that make the grant of bail
necessary to make the habeas remedy effective." 241 F.3d at 223, 226,
229. As in Mapp, petitioner has not demonstrated why the grant of bail is
necessary to make the discretionary Section 212(c) hearing, which
guarantees neither his release from detention nor vacature of the INS's
order of removal, effective. See 241 F.3d at 230-31. Thus, even assuming
the court is not required to defer to the INS's exercise of its
discretion in determining whether to grant bail, petitioner is not
entitled to be released on bail. While the petition raises substantial
claims and indeed has been granted, petitioner has failed to show that
bail is necessary to make his habeas remedy effective.
Petitioner's motion for immediate release from custody or in the
alternative bail is denied.
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