The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Represented by counsel, petitioner Giuseppe D'Alessandro (hereinafter, "D'Alessandro" or "petitioner"), an alien under a final order of removal, sought a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention in the custody of respondents (hereinafter, "respondents", "DHS/ICE",*fn1 or "the Government"). The matter was referred me pursuant to 28 U.S.C. § 636(b)(1).
Following an evidentiary hearing and oral argument, I recommended that D'Alessandro's petition be granted and that a writ of habeas corpus issue directing his release from custody subject to appropriate conditions of supervision by DHS/ICE. I stated in conclusion as follows:
I recommend finding that DHS/ICE's review of D'Alessandro's custody has been grossly defective in constitutional terms, and that its decisions to continue detention have neither been in accordance either with Due Process requirements as interpreted by Zadvydas v. Davis nor in compliance with DHS/ICE's own regulations. Furthermore, I recommend finding that DHS/ICE's conclusion that D'Alessandro is a flight risk or a danger to the community is patently unreasonable in light of the evidence in the record. Indeed, it is contradicted by the record. Finally, I recommend concluding that D'Alessandro has demonstrated that his detention is illegal under Zadvydas in that he has shown "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," 533 U.S. at 701, 121 S.Ct. 2491, and that respondents have not rebutted that showing. Accordingly, I recommend that the petition be granted unconditionally, and D'Alessandro released immediately pursuant to reasonable conditions of supervision and bond, as determined by DHS, subject to review and oversight by the District Court.
I contemporaneously issued a Decision and Order admitting D'Alessandro to bail. The Government sought an emergency stay of the proceedings, and oral argument was held before former Chief Judge Arcara on April 1, 2009. Judge Arcara upheld the Bail Order, and D'Alessandro was released under supervision of DHS/ICE. On June 1, 2009, former Chief Judge Arcara entered a Decision and Order adopting the proposed findings in the Report and Recommendation and noting that petitioner had been released as of approximately eight weeks as of the date of the Order, maintaining contact with his state parole officers and living at home with his family without incident. Former Chief Judge Arcara commented that petitioner's conduct since his release "further justifie[d] the findings that Magistrate Judge Bianchini made in his Report and Recommendation."
Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, petitioner, through his attorneys, now has filed a motion (Docket No. 39) seeking reimbursement for fees and costs incurred in connection with the present habeas corpus action in which he successfully challenged the legality of his detention by respondents. The Government has opposed the motion.
To facilitate discussion of some of the issues presented by petitioner's EAJA application, I will briefly summarize the law relating to petitioner's detention and its intersection with the facts of the present case. Generally speaking, DHS/ICE may detain a deportable alien while removal proceedings are pending. Demore v. Kim , 538 U.S. 510, 531 (2003). After a removal order becomes final, DHS/ICE must detain the alien until he is removed, for up to ninety days (the "removal period"). 8 U.S.C. § 1231(a)(2); see also Zadvydas v. Davis , 533 U.S. 678, 682 (2001). In Zadvydas v. Davis , the Supreme Court rejected as unconstitutional the Government's argument that the Attorney General has discretion to detain indefinitely an alien subject to a final Removal Order. 533 U.S. at 689, 692 ("The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any [procedural] protection is obvious"). In Zadvydas v. Davis , to save the statute from unconstitutionality, the Supreme Court read into it a "reasonableness" requirement. The Supreme Court instead read a temporal limitation into INA § 241(a)(6), Title 8 U.S.C. § 1231(a)(6), holding that, although detention beyond the 90-day removal period was permitted by statute, "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Zadvydas v. Davis , 533 U.S. at 699 (citation omitted). Thus, an immigrant's continued detention violates the Constitution "if removal is not reasonably foreseeable." Zadvydas , 533 U.S. at 699-700. In such circumstances, the district court "should hold continued detention unreasonable and no longer authorized by statute." Id. at 699-700.
The Zadvydas court contemplated that the determination of whether removal was "reasonably foreseeable" would be made in consideration of an immigrant's Petition for Habeas relief under Title 28 U.S.C. § 2241. See Zadvydas v. Davis , 533 U.S. at 699 (citing Title 28 U.S.C. § 2241(c)(3) for the Courts' authority to determine whether detention is "in violation of the Constitution or laws or treaties of the United States").*fn2 For consistency's sake, the Supreme Court decreed that it was "presumptively reasonable" for the INS to detain an alien for six (6) months following a final Removal Order-i.e., for the initial 90-day removal period, plus another 90 days. Id. at 701 "After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. Thus, the Court found that the statute permits DHS/ICE to detain an alien beyond the removal period only as long as reasonably necessary to bring about his removal and that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized." Id. at 689, 699. The Court further stated that detention beyond six months after the issuance of a final removal order is presumed unconstitutional but that the government can rebut the presumption by establishing that removal is reasonably foreseeable. Id. at 701.
II. FACTS AND PROCEDURAL BACKGROUND
On July 25, 1978, petitioner entered the U.S. under a B-2 visa. On June 22, 1981, his immigration status adjusted at Philadelphia, PA, to a Legal Permanent Resident under INA §245. Petitioner is married with one son; his wife and son are U.S. citizens and live in Queens, New York. On August 14, 1989, D'Alessandro was arrested on charges of Kidnaping 1 st (with intent to collect ransom; class A-1); Attempted Robbery 1 st (class C); Coercion 1 st (class D); Non-Auto Grand Larceny 2 nd (class D); and Assault 2 nd (intent to cause bodily injury). This was his first and only contact with the criminal justice system.*fn3 D'Alessandro remained free on bond during the pendency of his criminal proceedings.
Apparently with the advice and consent of his trial counsel, D'Alessandro rejected a plea offer involving probation only and no jail time, and elected to proceed to trial. On June 25, 1991, a guilty verdict was entered in New York State Supreme Court, County of New York, following a jury trial. Upon D'Alessandro's motion to set aside the verdict under New York Criminal Procedure Law ("C.P.L.") § 330.30, the trial court granted a new trial, holding that the cumulative effect of the prosecutor's misconduct was overwhelmingly prejudicial. The District Attorney appealed. On December 22, 1993, the Appellate Division, First Department, reversed the trial court and reinstated the jury's verdict. People v. D'Alessandro , 184 A.D.2d 114 (App. Div. 1 st Dept. 1992). The First Department held that the prosecutor "on occasion did exceed the bounds of legitimate fair comment as when, for example, she suggested that a witness might be exposing himself to danger by testifying, appealed to the jurors' generalized fear of crime, and their sympathies, and vouched for the credibility of the People's witnesses." Id. (citations omitted). However, the appellate court held that the summation "was within the range of acceptability, and it cannot be reasonably found that she tried to depict defendant as a mobster who merited punishment for his general character and intimidation of witnesses rather than for the specific crimes with which he was charge." Id. Because the First Department found the proof of guilt "overwhelming," any misconduct was "harmless error" and petitioner's right to a fair trial "was not abridged as a matter of law." Id. Accordingly, "the trial court was not warranted in granting the motion to vacate the conviction under C.P.L. § 330.30." Id.
Throughout this time, D'Alessandro was released on bond. On April 20, 1993, petitioner appeared voluntarily for sentencing, knowing that he was to be sentenced to a minimum of fifteen (15) years in prison. After stating his dismay at having to sentence D'Alessandro to jail time, the trial court imposed concurrent terms of imprisonment, the longest of which was 15 years to life on the Kidnaping 1 st conviction. This was the mandatory minimum sentence under the Penal Law.
On May 10, 1993, petitioner entered NYSDOCS and serves his term at Arthurkill Correctional Facility on Staten Island. During his incarceration, he maintained an "exemplary" record, as attested to by the District Attorney, John Irwin, who on dated June 26, 2007, wrote a letter of support together with the prosecuting deputy, regarding D'Alessandro's first, successful parole application. (Docket No. 7-2).
On August 22, 1996, the First Department affirmed D'Alessandro's conviction on direct appeal, finding that the evidence was "overwhelming," rendering the any prosecutorial misconduct harmless error; the jury's determination as to fact and credibility were supported by the record; the claim regarding the propriety of the kidnaping jury instructions was un preserved; and the "available record indicates that defendant received the effective assistance of counsel, trial counsel having made appropriate pre-trial, trial and post-trial motions and applications, vigorously cross-examined the People's witness and presented witnesses in support of the defense position that there had been no abduction or restraint of the complainant, and interposed numerous objections to summation comments by the prosecutor. Trial counsel's failure to object to the jury charge on kidnaping in the first degree, which in any event does not constitute reversible error in the circumstances, does not render trial counsel's representation less than meaningful." People v. D'Alessandro , 230 A.D.2d 656, 656-57 (App. Div. 1 st Dept. 1996).
On February 19, 1998, DHS issued a notice to appear based upon his New York state convictions, which are considered "aggravated felony" convictions rendering petitioner removable under INA § 237(a)(2)(A)(iii).
On or about October 26,1998, or November 17, 1998, an Immigration Judge ("IJ") in Fishkill, New York, ordered petitioner deported, finding that he was ineligible to have his inadmissibility waived under former section 212(c) of INA, 8 U.S.C. § 1182(c), because he was in removal proceedings.
On March 30, 1999, the Bureau of Immigration Appeals ("BIA") affirmed the IJ's decision ordering deportation.
On October 15, 2007, ICE informed DHS that they had valid travel document for petitioner, and when New York State Department of Correctional Services ("NYSDOCS") set a release date, they would take him into DHS custody and arrange for his departure from the U.S.
On November 19, 2007, after serving 14 1/2 years of 15-to-life sentence, petitioner was released on parole after his first parole appearance. He was immediately placed in custody of U.S. immigration.
On November 27, 2007, the BIA denied D'Alessandro's motion to reopen immigration proceedings based upon petitioner's claim that he was eligible for relief under former § 212(c) of the INA in light of the Supreme Court's decision in St. Cyr v. INS , 533 U.S. 289 (2001).*fn4
On November 27, 2007, D'Alessandro filed petition for review of BIA's denial of motion to reopen in the United States Court of Appeals for the Second Circuit. He also moved for a formal stay order from Circuit.
On February 19, 2008, DHS denied D'Alessandro release after the 90-day custody review on the basis that his removal was "reasonably foreseeable." Charles Mule, Acting Field Office Director, issued the Decision to Continue Detention, stating that D'Alessandro had "failed to demonstrate that there is no significant like hood [sic] of your repatriation in the foreseeable future, pending the 2 nd Circuit issues [sic] a decision on your case." (Docket No. 4-3). This decision was "made based on a review of your file and consideration of information you submitted to ICE's reviewing officials." Id. The letter-decision made no specific mention of any of the release conditions forth in 8 C.F.R. § 241.4, such as D'Alessandro's criminal history, flight risk, danger to the community.
On October 20, 2008, petitioner's attorney requested a custody review by DHS. (Docket No. 4-3). In an undated letter, received by petitioner's counsel on November 10, 2008, Martin Herron of DHS denied the request for release "[u]pon the totality of information involved in this case" and stated "[t]here is no appeal to this decision." (Docket No. 4-3).
On November 26, 2008, the New York Court of Appeals, in an unusual move, agreed to review D'Alessandro's conviction by mandamus. The Court of Appeals certified that "questions of law requiring review pursuant to C.P.L. § 460.20 were involved in the order of the First Department's Appellate Division dated 8/19/2008, denying defendant's motion for reargument of the denial of his writ of error coram nobis entered 5/11/2000 ( People v. D'Alessandro , 272 A.D.2d 1002 (App. Div. 1 st Dept. 2000)." See People v. D'Alessandro , 11 N.Y.3d 854 (N.Y. Nov. 26, 2008).*fn5
On December 15, 2008, through counsel, D'Alessandro filed the instant 28 U.S.C. § 2241 petition for habeas corpus relief in this Court.
On January 28, 2009, the Second Circuit granted petitioner's motion for extension of time until February 18, 2009, to file his reply brief on the petition for reopening; however, no decision was rendered on the stay request. There is no official indication on the Second Circuit's docket at this time as to when oral argument will be held or a final decision rendered. Respondents' attorney indicated at the hearing held before me on March 20, 2009, that oral argument has been proposed for sometime in April 2009, before the Second Circuit.
On February 10, 2009, petitioner's counsel submitted a letter providing an update of D'Alessandro's circumstances and requesting another custody review from DHS. On February 11, 2009, Martin Herron ("Herron"), Field Office Director with DHS, issued a letter decision to continue D'Alessandro's custody based upon a "review of your file and/or your personal interview and consideration of any information you submitted to ICE's reviewing officials." (Docket No. 4-3). After reviewing the underlying conviction and immigration proceedings, Herron stated, "Your criminal history includes convictions for kidnapping [sic] with intent to collect ransom, attempted robbery-1st, Assault with intent to cause bodily injury, attempted grand larceny-2nd and coercion. These convictions are considered severe in nature making you a threat to the community and a flight risk. Because of this history of disregard for the laws and order of the United States and its officials, you will not be released at this time. Please be advised that medical staff is available 24/7 to address any health issues that you may have during your detention. Once you have exhausted your appeals, Immigration and Customs Enforcement will continue to pursue the issuance of a travel document to facilitate your removal from the United States to Italy. [ICE] will conduct another review of your case in accordance with current regulations. It is in your best interest to maintain proper behavior while awaiting this review." (Docket No. 4-3). That is the entirety of the custody decision.
On March 10, 2009, petitioner's counsel moved for expedited hearing and oral argument based upon allegations of petitioner's deteriorating health.
On March 20, 2009, an expedited hearing and oral argument were held before the undersigned. As the time of the hearing, D'Alessandro had been in DHS/ICE custody since November 27, 2007, meaning that his detention had lasted sixteen (16) months, ten (10) months longer than the presumptively reasonable six-month period identified by the Supreme Court in Zadvydas v. Davis , 533 U.S. 678 (2001).
At the hearing, respondents called one witness, Dr. Brenda Bradley, the Clinical Medical Director of the Federal Detention Facility in Batavia, New York ("the Batavia FDF"), since March 1998. Dr. Bradley testified that the FDF's medical unit is "fully operational, 24/7" and has a staff of two physician assistants, two nurse practitioners, and a pharmacy. The only physician is Dr. Bradley. She is responsible for 666 beds at the FDF (two-thirds are reserved for DHS, and one-third for the United States Marshal's Service), which has an daily average population of 580 inmates. Dr. Bradley testified that she is also is responsible for "other" medical facilities operated by DHS. She testified that the average length of stay at the Batavia FDF is "about 49 days" and confirmed that the average length of stay is less than six months. Dr. Bradley indicated that she first examined D'Alessandro, and reviewed his medical records, on March 11, 2009. ...