The opinion of the court was delivered by: Wexler, District Judge.
Petitioner Louis Evangelista ("Petitioner" or "Evangelista")
seeks a writ of habeas corpus requiring the Immigration and
Naturalization Service ("INS") to hold a hardship-based hearing
on relief from deportation. A decision on the merits of this
claim was initially held in abeyance pending a decision by the
Second Circuit in the appeal of the case of Jankowski v. INS,
138 F. Supp.2d 269 (Conn. 2001).
After the decision by the Second Circuit in
Jankowski-Burczyk, this court ordered additional briefing in
June 2002. Thereafter, the government was granted until October
2002 to respond to a letter submitted by Petitioner's counsel.
That letter has now been submitted and the matter is now fully
briefed, submitted and ripe for adjudication.
I. Evangelista's Background and Criminal Conviction
Evangelista is a native of Italy who has been a lawful
permanent resident of the United States since 1961. Although
Evangelista never became a citizen of this country, his wife is
a naturalized United States citizen. His five adult children
were all born in this country and remain residents of the United
In October of 1996, Evangelista was convicted, after a jury
trial, of tax evasion. Specifically, Evangelista was convicted
of conspiracy to impede the IRS in collection of income and
payroll taxes in violation of 18 U.S.C. § 371, failure to collect
or pay income/FICA taxes in violation of 26 U.S.C. § 7202 and
attempt to evade or defeat tax in violation of 26 U.S.C. § 7201.
After his conviction, Evangelista was sentenced to a 51 month
term of imprisonment.
II. Proceedings Before the INS
In 1992, Evangelista was placed in removal proceedings by the
INS.*fn2 The government's decision to seek to remove
Evangelista from this country was based upon his conviction of
an aggravated felony. See 8 U.S.C. § 1101(a)(43)(M)(ii).
Evangelista sought administrative relief from deportation before
the INS. In a decision dated April 11, 2000, an Immigration
Judge ("IJ") denied the application. The decision of the IJ
held, specifically, that Evangelista was, indeed convicted of an
"aggravated felony," within the meaning of the relevant statute.
Further, the IJ held that Evangelista was ineligible for a
waiver of deportation pursuant to 8 U.S.C. § 1182(c) (referred to
by the IJ and hereinafter as "Section 212(c)"). The rejection of
the request for a waiver hearing was based on the holding that
Section 212(c) was repealed and no longer available to
individuals who, like Evangelista, were facing deportation and
as a result of a conviction dated after the statute's repeal.
In September of 2001, Evangelista was released from the
custody of the Federal Bureau of Prisons, and, because of the
foregoing proceedings, was placed in INS custody. Shortly
thereafter, this action was commenced.
III. Proceedings After Transfer to INS Custody and Before
On September 13, 2001, after being placed in the custody of
the INS, Petitioner commenced this proceeding seeking release.
Meanwhile, upon being transferred to the custody of the INS,
Petitioner was advised, by notice dated December 3, 2001, that
the decision to detain him would be reviewed, after ninety days,
by the INS District Director (the "District Director").
Petitioner was advised that any release that might be granted
would be dependent upon his ability to demonstrate to the
satisfaction of the INS that he neither posed a risk of flight
nor was a danger to the community. Evangelista applied for
release while this action was pending.
At argument held before this court in October of 2001, counsel
informed the court that on December 12, 2001, the District
Director would be reviewing Petitioner's claim for release
pursuant to an order of supervision under 8 U.S.C. § 1231(a)(6).
In view of the impending INS action, this court denied the
request for release without prejudice to renewal after the INS
In a decision issued in January 2002, the District Director
denied Petitioner's request for release. In support of its
decision, the INS cited Evangelista's history of involvement in
criminal activities, which involvement spanned several years, as
well as Evangelista's behavior during his incarceration. These
factors led the INS to conclude that ...