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April 29, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


The respondents Immigration & Naturalization Service ("INS") and U.S. Department of Justice ("DOJ") (collectively, the "Government") have moved pursuant to Rule 12(b)1, Fed.R.Civ.P., to dismiss the application of Cyril Nathaniel Kendall ("Kendall" or "Petitioner") for a writ of habeas corpus on the grounds of jurisdiction. For the reasons set forth below, the motion is granted.

Prior Proceedings

Kendall filed a petition for the issuance of a writ of habeas corpus on December 3, 2002, alleging that an INS detainer has barred his release from state court custody and that the INS procedures have violated his constitutional rights.

The Government's motion was marked fully submitted on March 7, 2003, and opposed by Kendall on March 12 according to a letter from his counsel. No reply or memorandum has been received by chambers or docketed.

The Facts

Kendall, a native and citizen of Guyana, was admitted to the United States as a lawful permanent resident on or about April 29, 1986. On September 7, 1988, in the New York State Supreme Court, Queens County, Kendall was convicted, upon a plea of guilty, of rape in the third degree in violation of N.Y. Penal L. § 130.25 ("rape conviction") and sentenced to a four-month term of imprisonment and five years' probation.

In June 2002, in the New York State Supreme Court, New York County, Kendall was indicted by a grand jury and charged with grand larceny in the second degree in violation of N.Y. Penal L. § 155.40(1); grand larceny in the third degree, in violation of N.Y. Penal L. § 155.35; five counts of criminal possession of a forged instrument in the second degree in violation of N.Y. Penal L. § 170.25; four counts of forgery in the second degree in violation of N.Y. Penal L. § 170.10(1); and offering a false instrument for filing in the second degree in violation of N.Y. Penal L. § 175.35. These charges arose from an alleged scheme on Kendall's part to obtain money from charitable organizations by falsely claiming that his son had died in the 2001 terrorist attacks on the World Trade Center.

On July 30, 2002, the INS lodged an "Immigration Detainer-Notice of Action" ("INS detainer") regarding Kendall with the warden of New York's Rikers Island Correctional Facility. The INS detainer indicated that "[i]nvestigation has been initiated to determine whether this person is subject to deportation," and requested that the warden "[a]ccept this notice as a detainer." The detainer stated that it "is for notification purposes only and does not limit your discretion in any decision affecting the offender's classification, work and quarters assignments, or other treatment which he would otherwise receive." (emphasis added). The detainer also requested, inter alia, that the warden notify the INS "of the time of [petitioner's] release at least 30 days prior to release or as far in advance as possible" and of any "transfer to another institution," and made reference to 8 C.F.R. § 287.7, which, under limited circumstances, requires a "criminal justice agency" to maintain custody of an alien subject to a detainer for a period "not to exceed 48 hours . . . to permit assumption of custody by the [INS]."

On July 31, 2002, the INS sent Kendall a notice to appear ("NTA") charging him as a deportable alien. The basis of the charge was that Kendall's third-degree rape conviction constituted an aggravated felony within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. § 1101(a)(43)(A), rendering Kendall deportable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

Kendall's immigration case was scheduled for a hearing before an immigration judge ("IJ") in New York City on November 13, 2002. On October 13, 2002, although Kendall remained in New York State custody, his counsel submitted to the IJ a motion requesting that Kendall be released on his recognizance or that bond be set at $2,500. On or about November 4, 2002, the INS submitted to the IJ a motion to "administratively close" the proceedings on the basis that Kendall was, as he still is, detained at the Rikers Island facility and, consequently, could not be present for the scheduled hearing. The IJ did not hold court on November 13, 2002 and has yet to rule on the INS suspension motion.

On November 20, 2002, Kendall's counsel and an assistant district attorney ("ADA") appeared before New York State Supreme Court Justice Michael J. Obus for a hearing on Kendall's custody status. The ADA stated that if Kendall were released in the criminal case, the "INS will grab him," and that the INS had indicated that in such circumstances "[t]he closest place he could be sent would be upstate New York or New Jersey." Tr. 3. Defense counsel represented that the INS detainer "would be likely . . . remove[d]" if the IJ granted the INS's suspension motion, and argued that Kendall "has a right to be released on bail." Tr. 5.

Justice Obus reviewed the INS's suspension motion and stated that "[e]ven if [petitioner] were to be granted bail, in our case, there is a detainer and . . . he would be held in INS custody and detained outside of New York City" and that it seemed to the State Court that INS did not "intend to release him if there isn't a case that's holding him," Tr. 6. The Court stated that a bail bond has "been posted," that questions regarding "the source of the funds" had been resolved, and that the bond "is in place now only with everybody's understanding in order to resolve the question of the INS matter," Tr. 6, and then stated:

But what is really before the Court now is whether or not any bail bond should be filed at all or accepted at all. Not in terms of the source of the funds, but whether it's appropriate to have [petitioner] released on a bond in this case given the context including the immigration matter.
As far as I am concerned, it is not appropriate, unless I know that [petitioner] is going to be able to be here. And what I have now is an immigration hold that is in effect. And even according to [the INS suspension motion] [sic]. The whole purpose of that is to await the outcome of this case with the understanding that [petitioner] will be held on this matter . . .
And it also indicates that the motion for bond on the INS matter is . . . totally without merit aside from being currently unripe.
So for the reasons we have put on the record before and now, while I recognize that the bail bond is otherwise proper. . . . I am directing that [petitioner] be remanded at this point on this case until and unless something changes with the INS.
I do ...

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