The opinion of the court was delivered by: RAYMOND DEARIE, District Judge.
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
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.
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 ...