Opinion
00 Civ. 4559 (LAK)
January 30, 2001
ORDER
Petitioner, a Jamaican national, is in INS custody pending Second Circuit review of a April 1998 order of the Board of Immigration Appeals ("BIA"), which upheld a deportation order issued by an Immigration Judge in 1997. He seeks a writ of habeas corpus, challenging the INS's retention of custody pending a decision by the Court of Appeals.
Petitioner's plight in some respects is a sympathetic one. On March 15, 1996, the INS served him with an order to show cause, charging him with being deportable from the United States who had remained here longer than permitted by his non-immigrant visa. The INS obtained custody of him by means of a detainer lodged with state authorities in August 1996. The order of deportation, as noted, was issued in 1997. Petitioner appealed to the BIA, which upheld the order on April 29, 1998. He then filed a petition for review with the Court of Appeals on June 1, 1998. But on September 14, 1998, the Court of Appeals granted the government's request to stay the petition pending a decision in Nguyen v. INS, No. 97-4257. Nguyen was dismissed as moot on December 4, 1998. But petitioner's petition for review of the BIA decision in his case was left in administrative limbo for more than two years, having been reinstated only earlier this month. Thus, petitioner has been in custody pending deportation for 53 months, a troublesome delay by any standard. Nevertheless, the fact that the circumstances are regrettable does not warrant petitioner's release.
The District Director of the INS, apparently at petitioner's instance, reviewed petitioner's custody on June 20, 2000 and determined that his detention should continue. He noted that petitioner had been convicted in 1993 of attempted robbery in the first degree, an aggravated felony rendering him ineligible for any type of relief from deportation. He adverted to "a number of conflicts [between petitioner and] the authorities responsible for [his] detention." He therefore concluded that "[t]he combination of this behavior, the conviction for a crime of a violent nature, and [petitioner's] fail[ure] to demonstrate that [he] would not pose a danger to the community" warranted his continued detention. Moreover, he concluded on the basis of petitioner's expressed fears of returning to Jamaica and other factors that petitioner would be a flight risk if released.
Detention decisions such as this are reviewable only for abuse of discretion. Oliva v. INS, No. 98 Civ. 6526 (JGK), 1999 WL 61818, at *5 (S.D.N.Y. Feb. 10, 1999); see Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982). There was no abuse in this case.
The petition is denied. The Clerk shall close the case.
SO ORDERED.