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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.


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 as follows:
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 ...

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