United States District Court, E.D. New York
June 12, 2003
Marlon RAJIGAH, Petitioner,
Mike CONWAY, District Director, New Orleans, Immigration and Naturalization Service; Edward J. McElroy, District Director, New York Immigration and Naturalization Service; David Venturella, Director, Headquarters Post-Order Detention Unit, Immigration and Naturalization Service; Michael J. Garcia, Acting Assistant Secretary for Immigration and Customs Enforcement, Department of Homeland Security; Eduardo Aguirre, Acting Director, Bureau of Citizenship and Immigration Services, Department of Homeland Security; Tom Ridge, Secretary of Homeland Security; John Ashcroft, Attorney General of the United States of America; Gary Copes, Warden, Pine Prairie Detention Facility, Respondents.
The opinion of the court was delivered by: RAYMOND DEARIE, District Judge.
MEMORANDUM OF DECISION
On April 9, 2003, petitioner Marlon Rajigah filed the
above-captioned petition for a writ of habeas corpus under
28 U.S.C. § 2241 to enjoin his continued detention by
Respondents. For the following reasons, the petition was granted
on April 24, 2003.
Petitioner Marlon Rajigah is a 41-yearold citizen of Guyana who
was admitted to the United States in 1979. He became a lawful
permanent resident of the United States in 1982. He is married to
a United States citizen and has a six-year-old daughter, both of
whom reside in New York.
On February 26, 1998, after a jury trial in Kings County, New
York, petitioner was convicted of statutory rape in the Third
Degree and endangering the welfare of a child. On July 31, 1998,
he was sentenced to six months of incarceration and five years of
probation. At the sentencing, Judge Michael Gary extended to
Rajigah an offer to serve no jail time upon an admission of
guilt. See Letter of Anne Swern, Counsel to District Attorney
Charles J. Hynes, dated September 19, 2002 ("Swern Letter").
Rajigah declined. On October 25, 1999, the Appellate Division
affirmed the conviction, and on December 30, 1999, the Court of
Appeals denied leave to appeal. Petitioner surrendered to state
authorities on February 25, 2000.
On April 5, 2000, the INS commenced removal proceedings against
petitioner on the grounds that pursuant to Section
237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"),
he had been convicted of an aggravated felony as defined in INA
§ 101(a)(43), and was therefore removable. On June 19, 2000,
after serving four months of his six-month prison term,
petitioner was taken into INS custody and detained pursuant to
INA § 236(c)(1), pending a final order of removal. On June
21, 2000, Rajigah's request for release on bond was denied by the
Immigration Judge ("IJ") on the grounds that he fell within the
mandatory detention requirements of INA § 236(c). On August
25, 2000, an Immigration Judge in Oakdale, Louisiana ordered
Rajigah removed to Guyana. On April 13, 2001, the Bureau of
Immigration Appeals ("BIA") affirmed the IJ's decision, rendering
Rajigah's order of deportation final, pursuant to INA § 241.
Petitioner has filed several challenges in federal court, both
to his underlying state conviction and to his INS detention and
removal order. On May 30, 2000, Rajigah filed a habeas petition,
Rajigah v. Robertson, No. 00-CV-3062 (referred to in the
Government's brief as "Rajigah III") pursuant to
28 U.S.C. § 2254, challenging his state conviction. On June 27, 2000,
petitioner filed another petition, Rajigah v. Reno, No.
00-CV-3802 ("Rajigah I"), this time pursuant to
28 U.S.C. § 2241, challenging his INS pre-removal detention under
8 U.S.C. § 1226(c). On April 23, 2001, petitioner filed a
second § 2241 petition, Rajigah v. Ashcroft, No. 01-CV-2481
("Rajigah II"), challenging his final order of removal. On April
26, 2001, this Court stayed petitioner's removal pending further
order of the Court.
On November 8, 2001, this Court denied all three of Rajigah's
petitions and ordered that his stay of removal be lifted ten
business days after entry of judgment. Judgment in Rajigah I and
Rajigah II was entered on November 13, 2001. The INS
[268 F. Supp.2d 161]
then secured an emergency travel document from the Embassy of the
Republic of Guyana on November 11, 2001, permitting petitioner to
travel to Guyana from "November December 2001." See
Emergency Certificate, Government's Brief, Attachment C. On
November 21, 2001, however, petitioner filed an appeal of the
District Court decisions to the Second Circuit, which granted a
stay pending the appeal. While petitioner's appeal was still
pending, his travel document to Guyana expired.
On June 3, 2002, the Second Circuit dismissed Petitioner's
appeal in Rajigah III, and on October 21, 2002, the Second
Circuit entered an order reflecting petitioner's voluntary
withdrawal of his appeal of Rajigah I and Rajigah II. On October
10, 2002, petitioner filed a written application appealing to the
INS to exercise its prosecutorial discretion and defer action
against him. In support of this application, Rajigah filed
numerous letters advocating for his release, including letters
from the Queens District Attorney's Office (namely, the office
that prosecuted him in his state criminal trial), his trial and
sentencing judge Michael Gary, and several members of Congress.
Judge Gary noted in his letter of October 8, 2002, "I have read
the letter written by the District Attorney's office, dated
September 19, 2002, and agree that the immigration consequences
were not contemplated by the sentence I had imposed." Offering a
similar statement, the Queens District Attorney's Office wrote,
"We believe that justice was fully served by his criminal
sentence. Any further incarceration of him or other immigration
consequences were never contemplated by us." See Swern Letter,
attached to Petitioner's Brief.
On November 8, 2002, the INS denied petitioner's application
for deferred action. As the memorandum recommending against
deferred action from petitioner's deportation officer, Stanley
Steadman, stated, "In light of the nature of his crimes and the
numerous disciplinary records, Mr. Rajigah shows a total lack of
respect for authority and the laws of this country." See Stanley
Steadman Memorandum, dated October 24, 2002, Government's Brief,
Attachment G. This same memorandum listed a number of
disciplinary reports against petitioner, including "being in an
unauthorized area," "refusing to obey an order," "defiance,"
"theft by fraud," and "aggravated disobedience." Id.
Having rejected petitioner's deferred action request, on
November 26, 2002, the INS formally requested that the government
of Guyana issue travel documents for Rajigah. A Guyanese consular
official, however, informed the Bureau of Immigration and Customs
Enforcement ("BICE") that travel documents for petitioner would
be delayed, because petitioner's counsel had alerted the Guyanese
Ambassador that another federal court action would be filed. See
Declaration of Ellarine Alston ("Alston Dec."), Government's
Brief, Attachment H, ¶ 7. According to Ms. Alston, the
government of Guyana does not issue travel documents to its own
nationals if they have any pending actions in court, regardless
of whether or not there is a judicial stay of removal. Alston
Decl. ¶ 4.
On March 25, 2003, BICE received correspondence from the
Guyanese Ambassador, stating that:
[T]he Minister of Home Affairs of Guyana has advised
1. If proceedings have been filed and are engaging
the attention of the Court then a Travel Document in
favor of Mr. Rajigah will not be issued.
2. Also, having regard to the particular eye disease
from which Mr. Ragjigah suffers, and the fact that
there is no treatment or adequate treatment available
in Guyana from which Mr.
[268 F. Supp.2d 162]
Rajigah could benefit, it was his view that a Travel
Document ought not to be issued to Mr. Rajigah.
Alston Decl. ¶ 8.
Petitioner has submitted documentation to the Court confirming
the "eye disease" referred to in the Guyanese Embassy letter. As
a letter dated November 26, 2001 from Dr. Martin J. Fox,
petitioner's treating physician from 1990 to 1999, states,
Mr. Rajigah suffered extensive/severe trauma to his
left eye in June, 1990 that required surgical and
medical ophthalmic care. He sustained a ruptured
globe with uveal prolapse which in lay terms means
that parts of the internal contents of the left eye
were outside of the eye requiring surgical
intervention and repair. Subsequently, he required an
intraocular lens implant and thereafter subsequent
YAG laser treatment to improve the vision. . . .
Having suffered such severe injury, he should have
regular and scheduled ophthalmic follow up, as there
is a heightened risk of uveitis (inflammation of the
eye) which causes severe pain, photophobia (light
sensitivity) and decreased vision. . . . Yet another
risk is retinal detachment, which could manifest as
seeing floaters, flashes of light and decreased
vision. If not corrected immediately, it would cause
permanent loss of vision.
(Letter from Dr. Martin Fox, Petitioner's Brief, Exhibit C.)
Dr. Fox reported that after reviewing petitioner's medical
records and speaking with petitioner, he determined that
petitioner was "currently experiencing floaters, light
sensitivity and decreased vision, which was tested approximately
two weeks ago at 20/100." Id. Such symptoms represented a
"significant decrease in vision" from Dr. Fox's last examination
of petitioner. Id. Dr. Fox concluded that based upon petitioner's
history and his current complaints and symptoms, "Mr. Rajigah
requires immediate medical attention by a trained ophthalmologist
and/or retinal specialist. Failure to do so may cause permanent
loss of vision." Id.
The Government contends that petitioner's eye condition does
not require special treatment and should be treatable in Guyana.
As it states in its brief, "On March 28, 2003, BICE was informed
that, on April 25, 2002, an ophthalmologist evaluated Petitioner,
prescribed eyeglasses for a mild refractive error, and concluded
that he did not require any special treatment and that he should
be able to be seen by a regular ophthalmologist as needed in
Guyana." See Government's Brief at 6, citing Alston Decl.
¶ 9(b); medical report dated May 3, 2002 from Dr. Eugene A.
Migliacciio. The Government's subsequent submission of April 21,
2003, however, concedes that the earlier statement that
petitioner was examined by an ophthalmologist was incorrect. As
the Government acknowledges, "Regarding the medical exam,
contrary to the letter dated May 3, 2002, from Dr. Eugene A.
Migliaccio (Attachment J annexed to Respondents' Return),
Petitioner was examined by an optometrist and not an
ophthalmologist." See Government's Letter, dated April 21, 2003.
On April 9, 2003, petitioner filed the instant habeas petition.
On April 15, 2003, BICE officials met with the Guyanese
Ambassador regarding petitioner. Alston Decl. ¶ 12. The
Guyanese Ambassador advised that his government would not issue a
travel document for petitioner because of the pending petition,
and that his Minister of Home Affairs counseled against granting
travel documents to petitioner due to his eye condition. Id.
The Government asserts that in response to what the Guyanese
Ambassador advised at this meeting, "[a] démarche will be
filed with the government of Guyana as
[268 F. Supp.2d 163]
early as April 16, 2003, threatening sanctions under
8 U.S.C. § 1253(d) (Supp. V 1999) if it does not issue a travel
document to Petitioner forthwith."*fn1 See Government's Brief at 7,
citing Alston Decl. ¶ 13. As part of the démarche, the
Government plans to include medical reports which the Government
maintains conclusively demonstrate that petitioner does not
require special treatment and that his eyes should be treatable
in Guyana. The Government argues that since the Guyanese
government reversed its position against issuing travel documents
in a prior instance in 2001 in which sanctions were imposed by
the US, "BICE believes that the Guyanese government will issue
travel documents for Petitioner shortly after the filing of the
démarche." Government's Brief at 7, citing Alston Decl.
¶ 14. The Government has yet to file any documentation
regarding the démarche with the Court.
I. Legal Framework
When a final order of removal has been entered against an
alien, the Government typically secures the alien's removal
during the subsequent 90-day period, referred to as the "removal
period." See 8 U.S.C. § 1231(a)(1)(A)-(B). During the removal
period, the alien is normally held in custody. Id. The Attorney
General may continue to detain an alien beyond the removal period
if the alien was ordered removable due to certain violations of
criminal law, or is determined to be a "risk to the community or
unlikely to comply with the order of removal."
8 U.S.C. § 1231(a)(6). Moreover, the removal period may be extended
beyond 90 days if the alien "fails or refuses to make timely
application in good faith for travel or other documents necessary
to the alien's departure or conspires or acts to prevent the
alien's removal subject to an order of removal."
8 U.S.C. § 1231(a)(1)(C).
The Supreme Court clarified the constitutional limits of
post-removal period detention under § 1231(a)(1)(6) in
Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653
(2001). Rejecting the argument that the Attorney General could
detain aliens falling within the § 1231(a)(1)(6) category
indefinitely, it held that if postremoval order detention is
required, such detention may only be for a period that is
"reasonably necessary to bring about the alien's removal from the
United States." Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491. As the
Court stated, the habeas court "should measure reasonableness
primarily in terms of the statute's basic purpose, namely
assuring the alien's presence at the moment of removal." Id. at
699, 121 S.Ct. 2491. Thus, if the habeas court found that removal
was not reasonably foreseeable, it "should hold continued
detention unreasonable and no longer authorized by statute." Id.
at 699-700, 121 S.Ct. 2491.
For the sake of uniformity, the Court recognized a 6-month
period as a presumptively reasonable time period for
accomplishing removal. Id. at 701, 121 S.Ct. 2491. After the
six-month period, however, "once the alien provides good reason
to believe that there is no significant likelihood of removal,
the Government must respond with evidence sufficient to rebut
that showing." Id. The Court acknowledged that the 6-month
presumption was not a bright-line rule, requiring all aliens not
removed within 6 months to be released. As it stated, "[t]o the
[268 F. Supp.2d 164]
alien may be held in confinement until it has been determined
that there is no significant likelihood of removal in the
reasonably foreseeable future." Id.
After Zadvydas, the Attorney General established regulations to
govern whether there is a significant likelihood that an alien
will be removed in the reasonably foreseeable future. See
8 C.F.R. § 241.13. As the regulations state, detention of an
alien may continue while the INS' Headquarters Post-order
Detention Unit ("HQPDU") determines whether or not a significant
likelihood of removal exists. § 241.13(b)(2). This
determination may be triggered by a written request submitted by
the alien to the HQPDU "asserting the basis for the alien's
belief that there is no significant likelihood that the alien
will be removed in the reasonably foreseeable future. . . ."
§ 241.13(d)(1). The HQPDU then has 10 business days after the
receipt of the request to "respond in writing to the alien, with
a copy to counsel of record, by regular mail, acknowledging
receipt of the request for a review under this section and
explaining the procedures that will be used to evaluate the
request." § 241.13(e)(1). The HQPDU must then assess the
alien's efforts to comply with the removal process as well as a
host of other factors, and issue a written decision to the alien
with a copy to counsel of record. §§ 241.13(e)(2), (f), (g).
II. Jurisdiction / Exhaustion of Admin istrative Remedies
Petitioner contends that he is being detained in contravention
of the Supreme Court's holding in Zadvydas. Respondents counter
that his detention remains presumptively valid, and that the
instant petition should dismissed.
At the outset, respondents suggest that petitioner has failed
to exhaust all of his administrative remedies under § 241.13,
and that such failure alone provides grounds for dismissal of his
petition. Petitioner disputes whether the doctrine of
administrative exhaustion is strictly applied to cases
challenging custody determinations, but argues that nevertheless
he has exhausted his administrative claims.
This Court makes no findings regarding whether exhaustion of
the administrative procedures outlined in § 241.13 is a
necessary prerequisite to federal judicial review. Instead, it
concludes that even if § 241.13 is jurisdictional, petitioner
has exhausted his administrative remedies pursuant to
§ 241.13. Indeed, on March 31, 2003, petitioner's counsel,
Rita Dave, filed a written request explicitly invoking
§ 241.13, citing the Guyanese Embassy's letter of March 26,
2003, as the reason it was unlikely that petitioner would be
removed in the reasonably foreseeable future. See Dave Letter,
dated March 31, 2001, Petitioner's Brief, Attachment. Faced with
such a request, under § 241.13(e)(1), the HQPDU had 10
business days after it received the request to respond in writing
to petitioner and Ms. Dave, acknowledging receipt of the request
and explaining the procedures that would be used to evaluate it.
As of April 24, 2003, however, the HQPDU had made no such written
response. There are no further provisions in the regulations for
a petitioner to pursue once the HQPDU has failed to respond to
its written request. Accordingly, the Court deems the
petitioner's administrative remedies exhausted.
III. The Merits
A. Status of Petitioner's Ongoing Detention
Turning to the merits of petitioner's claim, petitioner asserts
that he has been in INS detention awaiting removal since April
13, 2001, the date that the BIA affirmed
[268 F. Supp.2d 165]
the IJ's final order of removal. Thus, he argues, the post-order
removal period exceeds two years, well over the six-month
"presumptively reasonable" period prescribed by Zadvydas.
Moreover, petitioner points out that he has never been adjudged
to be a flight risk or a danger to the community. Respondents
assert that because they have not had "one unencumbered month" of
post-order custody in which to remove petitioner, petitioner's
present detention remains presumptively valid.*fn2
Section 1231 states that if an alien acts to frustrate the INS'
ability to remove him, the removal period is tolled during the
period of the alien's actions. 8 U.S.C. § 1231(a)(1)(C);
Powell v. Ashcroft, 194 F. Supp.2d 209, 210 (E.D.N.Y. 2002). The
limited case law on what constitutes a "frustration of removal"
has not interpreted this phrase expansively: courts have only
tolled the removal period in cases where the alien has sought and
received a stay of removal through judicial action (see Akinwale
v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002)), or where the
alien has demonstrated some sort of bad faith failure to
cooperate, such as providing the INS with false or inconsistent
information regarding his identity or country of origin (see
Powell, supra; Ncube v. INS, No. 98 Civ. 0282, 1998 WL 842349 at
*16 (S.D.N.Y. Dec.2, 1998)), or refusing to complete travel
arrangements or name a country for deportation (Riley v. Greene,
149 F. Supp.2d 1256, 1262 (D.Colo. 2001); Sango-Dema v. District
Director, 122 F. Supp.2d 213, 221 (D.Mass. 2000); Cf. Ford v.
Quarantillo, 142 F. Supp.2d 585, 588 (D.N.J. 2001) (ordering
release of alien detained for 14 months, even though he
misrepresented his country of origin)). Indeed, as Seretse-Khama
has held, a petitioner's truthful statement (such as expressing
that he did not wish to return to his country of origin) which is
later adopted by the country of origin as a reason for not
wanting to repatriate that alien, is not an example of refusal to
cooperate under § 1231(a)(1)(C), and cannot be used as a
grounds for extending post-removal detention. Seretse-Khama v.
Ashcroft, 215 F. Supp.2d 37, 50-53 (D.D.C. 2002).
In the instant case, petitioner has not acted in bad faith.
There is no evidence of his failure to cooperate-all we have is
petitioner's request for a stay of removal, which he obtained
from this Court on April 26, 2001. However, prior to receiving
this stay, petitioner had been in custody post-final removal
order since April 13, 2001, thirteen days prior. Furthermore,
between the date petitioner's judicial stay was lifted on October
21, 2002 (when petitioner withdrew his Second Circuit appeal) and
April 9, 2003, the date he filed the instant habeas petition,
five months and nineteen days elapsed. Putting
[268 F. Supp.2d 166]
together those five months and nineteen days with the thirteen
days in April 2001, there have been more than six unencumbered
months that the INS has had to effectuate petitioner's removal.
Even if the Court considers November 8, 2002, the date the INS
denied petitioner's application for deferred action, as the
proper starting date for counting purposes (even though there was
nothing to stop the INS from removing petitioner even while it
was considering his application), there were five full
unencumbered months in which the INS could have effectuated
removal before petitioner filed the instant application.*fn3
Respondents attempt to argue that during this period,
petitioner was "frustrating his removal" because his counsel had
advised the Guyanese Ambassador that he intended to file another
court action, and the Guyanese government had a policy of not
issuing travel documents to its nationals who file court actions.
Respondents cite no case law, however, to support its argument
that such truthful communication to an embassy falls within the
purview of § 1231(a)(1)(C). Indeed, such a circumstance seems
akin to the situation in Seretse-Khara, in which a truthful
communication by petitioner which led an embassy to deny travel
documents was deemed not to be an effort not to frustrate removal
under § 1231(a)(1)(C). Respondent has made no demonstration
that petitioner has in any way acted in bad faith-he has simply
availed himself of judicial process and communicated to the
Guyanese embassy his plans to do so. Accordingly, the Court finds
that the INS has had over six unencumbered months in which to
attempt to effectuate petitioner's removal.
B. No Significant Likelihood of Removal in the Reasonably
Furthermore, petitioner has satisfied his burden of
"provid[ing] good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future."
Zadvydas at 701, 121 S.Ct. 2491. Indeed, he has submitted a
letter from the Guyanese Ambassador, stating that the embassy
will not issue travel documents to him both because of his
pending judicial proceedings and because of his inability to
receive adequate medical treatment for his eye disease in Guyana.
Moreover, petitioner has also presented medical reports from his
eye doctor, confirming his eye disease and his need for
"immediate medical attention by a trained ophthalmologist and/or
retinal specialist" as well as "regular and scheduled ophthalmic
followup." (Letter from Dr. Martin Fox, Petitioner's Brief, Ex.
C.) Such evidence is sufficient to satisfy petitioner's Zadvydas
burden: it demonstrates that Guyana is unlikely to take
petitioner back so long as it lacks the medical capability to
treat his eye disease. Hence, plaintiff has shown that there is a
significant likelihood that he will not be removed in the
reasonably foreseeable future.
C. Government's Rebuttal Evidence
Once petitioner has made such a showing, "the Government must
respond with evidence sufficient to rebut that showing." Zadvydas
at 701, 121 S.Ct. 2491. In the instant case, however, the
Government's rebuttal evidence that petitioner is likely to be
removed shortly is speculative at best. Indeed, the Government
[268 F. Supp.2d 167]
four arguments to rebut petitioner's showing: 1) that Guyana
regularly issues travel documents to its nationals, 2) that
Guyana actually issued a travel document to petitioner in
November 2001, 3) that BICE will be filing a démarche with
the government of Guyana threatening sanctions if it does not
issue travel documents to petitioner, and that Guyana has
responded to prior threats of sanctions by issuing travel
documents forthwith, and 4) that with the démarche, the
Government will include medical reports that conclusively
demonstrate that petitioner's eye condition does not require
special treatment, thus rendering him able to be treated in
Such arguments, however, do not provide any conclusive evidence
that petitioner will be removed in the near future. Evidence of
what the Guyanese government has done in the past with respect to
petitioner and with respect to other nationals sheds little light
on how the Guyanese government will respond to the current
situation. Indeed, the fact that the Guyanese government
regularly issues travel documents and issued travel documents to
petitioner in the past merely indicates that its general protocol
is to issue travel documents, and that it must have a specific
reason why it will not issue travel documents to petitioner at
this time. Furthermore, the Government has offered no evidence
that the proposed démarche has actually been filed, and
the Court finds it difficult to infer from a prior circumstance
of threatened sanctions against Guyana, which may or may not have
been akin to the situation at hand, that travel document. will
necessarily issue as soon as it is filed.
Lastly, the Government provides no reliable evidence to rebut
the medical reports provided by petitioner's ophthalmologist, Dr.
Fox. In fact, in attempting to rebut Dr. Fox's report, the
Government incorrectly advised the Court that an ophthalmologist
found petitioner not to have any serious eye problems, when in
fact, he was only seen by an optometrist, an individual who does
not have a medical degree. Moreover, the Public Health
certification, which relied upon the optometrist's report in
reaching its conclusion that petitioner does not require any
special treatment (but which also mistakenly refers to the report
as an "ophthalmologist's report"), similarly was not performed by
a medical doctor, but rather by a "Dr. P.H.," presumably an
individual with a doctorate in public health. Thus, none of the
Government's rebuttal evidence is based upon an evaluation by a
medical doctor, much less an ophthalmologist specializing in eye
disease. Hence, the Government has provided no competent medical
evidence to rebut the conclusion of petitioner's ophthalmologist,
who found petitioner in need of immediate ophthalmic care and
regular ophthalmic followup.
Thus in sum, the Court finds that the Government has failed to
rebut petitioner's showing that there is no significant
likelihood that he will be removed in the reasonably foreseeable
future. For the foregoing reasons, petitioner's writ of habeas
corpus was granted on April 24, 2003.
On April 9, 2003, petitioner Marlon Rajigah filed the
above-captioned petition for a writ of habeas corpus under
28 U.S.C. § 2241 to enjoin his continued unlawful detention by
Respondents. The petition is hereby granted. A Memorandum of
Decision will issue shortly.
Respondents are ordered to release petitioner immediately and
to impose appropriate
[268 F. Supp.2d 168]
conditions for petitioner's release in an order of supervision.