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finding that "since Petitioner's six-month presumptive detention period has not yet expired in this case, he has not stated a claim under Zadvydas"
Summary of this case from Al-Shewaily v. MukaseyOpinion
Civil Action No. 4:CV-05-0895.
October 4, 2005
REPORT AND RECOMMENDATION
I. Background.
On May 2, 2005, Petitioner, Vincenzo Morena, filed, through counsel, a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). The filing fee has been paid.
In the above-referenced § 2241 habeas case, the Petitioner is a Bureau of Immigration and Customs Enforcement ("BICE") detainee at Clinton County Prison seeking release from confinement and claims that his continued detention violates the Constitution. (Doc. 1). In his original Habeas Petition, Petitioner also raised an Eighth Amendment claim of denial of proper medical care for his heart condition. Upon preliminary review of the instant Petition, we found that Petitioner's Eighth Amendment claim should be dismissed without prejudice. (Doc. 5). The District Court agreed and on June 6, 2005 adopted our Report and Recommendation. (Doc. 7). An Amended Petition with Exhibits was filed on June 7, 2005. (Doc. 9). We directed Respondents to respond to the remaining illegal continued detention claim of Petitioner, and they filed their Response with Exhibits on July 12, 2005. (Doc. 26). Petitioner then filed a Reply Brief on August 22, 2005. (Doc. 28).
Other courts have also held that a claim of inadequate medical care is not properly brought in a habeas petition. See Copes v. McElroy, 2001 WL 830673 * 6 (S.D.N.Y.).
Petitioner is a native and citizen of Italy who entered the United States on or about October 19, 1973, as an immigrant and was granted status as a permanent lawful resident alien for over thirty (30) years ( i.e. since his initial entry to the United States). (Doc. 1, pp. 2-3 Ex. A Doc. 26, Ex. B). Petitioner has a United States citizen wife and one (1) child with her. Petitioner was not naturalized and did not obtain derivative United States citizenship. (Doc. 26, Ex. B).
On March 30, 2001, Petitioner was convicted in the United States District Court for the Eastern District of New York of racketeering, 18 U.S.C. § 1962(d), and was sentenced to 51 months imprisonment. (Doc. 1, p. 3, Ex. A, Doc. 9, p. 3 Doc. 26, Ex. C). On July 23, 2001 BICE issued a Notice to Appear charging that Petitioner was subject to removal from the United States based on his racketeering conviction. (Doc. 26, Ex. A). Petitioner states that he was found to be deportable under § 237(a)(2)(A)(iii) of the INA. A Removal Order was issued by an Immigration Judge ("IJ") on November 4, 2003, and Petitioner was ordered removed from the United States to Italy. (Doc. 26, Ex. D, p. 15). Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and on March 25, 2004 the BIA denied his appeal without opinion. (Doc. 9, p. 4). Petitioner claimed in part that he was not convicted of an aggravated felony under INA § 101 (a)(43) and that he was a national of the United States. (Doc. 28, p. 1 Doc. 26, Ex. E Ex. J).
Section 237(a)(2)(A)(iii) of the INA provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii).
In his Amended Habeas Petition, Petitioner claims that the BIA denied him his due process rights by issuing an Order without opinion. Doc. 9, ¶ 16. However, the Third Circuit has held that the BIA can affirm an IJ's decision without opinion. See Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003); Bienvenida v. Ashcroft, 98 Fed. Appx. 131 (3d Cir. 2004).
Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of New York on April 15, 2004, E.D.N.Y. Civil No. 04-1551, in which he challenged the decision of the IJ to remove him. Petitioner moved to amend his habeas petition to add a claim regarding the denial of medical care, a claim that his continued detention was unlawful, and a claim regarding the BIA's denial of his appeal of the Removal Order without an opinion. (Doc. 26, Ex. F). On April 11, 2005, the District Court in New York, in part, denied Petitioner's claims regarding his continued detention and denial of medical care without prejudice to file them in the Middle District of Pennsylvania, his place of confinement. (Doc. 1, pp. 4-5, Ex. E Doc. 26, Ex. F, Doc. #33). Petitioner's remaining stated claims, including his challenge to the Removal Order, is still pending in his habeas corpus petition with the New York District Court. (Doc. 26, Ex. F Doc. 28, p. 2). It is undisputed that Petitioner filed a Motion for a Stay of Removal on or about April 15, 2004 with the Eastern District of New York and that the Court issued a stay of removal on April 21, 2004, which is still in effect. (Doc. 26, Ex. J, and Ex. F, Doc. #2).
Thus, the Petitioner's challenge of the IJ's removal order and of the BIA's order affirming his removal remain with the Eastern District of New York, and Petitioner's habeas case is still pending with the Eastern District of New York. ( See Petitioner's Exhibit E to Doc. 1 Doc. 28, p. 2 Doc. 26, Ex. F). Petitioner then filed the instant Habeas Petition with the United States District Court for the Middle District of Pennsylvania on May 2, 2005, and sought this Court to issue another stay of his deportation. However, this Court denied as moot Petitioner's request for another stay of removal. (Doc. 7, p. 6, ¶ 2.).
The record indicates that Petitioner's request for a stay of removal he filed in the Eastern District of New York was granted on April 21, 2004 and is still in effect. (Doc. 1, Ex. H Doc. 26, Ex. J and Ex. F).
Petitioner states that he is challenging his continued detention by BICE, alleging that it violates Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001). Petitioner is subject to a final removal order as of March 2004. Petitioner states that he has been incarcerated under the custody of BICE for approximately 19 months and that his continued detention is unlawful. (Doc. 28, pp. 2-3). Petitioner also contends that he is no longer within the six-month presumptive deportation period as specified by Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001). Petitioner claims that, at a minimum, he should be afforded an individualized bond hearing while his challenge to his removal order in the Eastern District of New York is pending. ( Id., p. 7). See Patel v. Zemski, 275 F. 3d 299, 307 (3d Cir. 2001) (under Zadvydas, immigration detention implicates a fundamental liberty interest, and the INS is limited with respect to the detention of post-removal-order aliens "to a period reasonably necessary to bring about the alien's removal, generally no more than six months." Id. at 309 (citing Zadvydas, 121 S. Ct. at 2505)).
As stated, the Petitioner also challenged the prison's alleged failure to provide him with follow-up medical care for his heart condition. (Doc. 1, pp. 5-6). Petitioner's Eighth Amendment denial of medical care claim was dismissed without prejudice by the District Court from this habeas case. (Doc. 7).
Patel was overruled in part by Demore v. Kim, 538 U.S. 510 (2003).
As his first claim, Petitioner states that, despite being given a custody review by BICE in November 2004, the decision of BICE to continue his detention was arbitrary and an abuse of discretion, and he claims that he submitted sufficient evidence to support his release from custody. ( Id., p. 3 Doc. 1, p. 5, Ex. H Doc. 9, Ex. H). The November 2004 BICE custody decision notes that Petitioner has been granted a stay of removal by the Eastern District of New York and that his custody will be reconsidered if the stay is not lifted within one year or when the stay is lifted. (Doc. 1, Ex. H Doc. 26, Ex. J).
II. Claims of Habeas Petition.
In his Amended Habeas Petition, Petitioner states that he has been in BICE custody for about 15 months and in his Reply Brief, he indicates that his BICE detention is about 19 months. (Doc. 9, p. 5 Doc. 28, p. 2). Petitioner has remained in BICE custody to the present.
Petitioner contends that his continued detention by BICE violates Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001). As mentioned, this Court retains jurisdiction only over Petitioner's continued detention claim. (Doc. 7). Petitioner claims that he has been detained for longer than the six-month removal period, that his continued detention is contrary to Judge Vanaskie's decision in Oyedeji v. Ashcroft, 332 F. Supp. 2d 747 (M.D. Pa. 2004) and Haynes v. DHS, 2005 WL 1606321 (M.D. Pa.) (Provisions of 8 C.F.R. § 241.4 should be applied to aliens who have been in custody for over 6 months after a stay of removal has been issued), and that he should be given an individualized hearing regarding his continued detention and his risk of flight and danger to the community.
Petitioner is subject to a final removal order as of March 2004. (Doc. 9, Ex. C). Petitioner states that he has been in BICE custody now for about 19 months. ( Id., p. 5). Petitioner has remained in BICE custody to the present day. However, we agree with Respondents (Doc. 26, pp. 4-6) that Petitioner is still within the six-month presumptive deportation period as specified by Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001). See Patel v. Zemski, 275 F. 3d 299, 307 (3d Cir. 2001) (under Zadvydas, immigration detention implicates a fundamental liberty interest and that the INS is limited with respect to the detention of post-removal-order aliens "to a period reasonably necessary to bring about the alien's removal, generally no more than six months." Id. at 309 (citing Zadvydas, 121 S. Ct. at 2505). We also agree with Respondents that Oyedji is distinguishable from our case.
III. Discussion.
Insofar as Petitioner challenges his removal order and claims that his due process rights were violated when the BIA affirmed the IJ's decision without an opinion, it appears as though the Eastern District of New York District Court has considered transferring these claims contained in Petitioner's New York Habeas Petition to the Second Circuit Court of Appeals. (Doc. 26, Ex. F, Doc. # 35). In any event, our inquiry is limited to Petitioner's contention that his continued detention violates Zadvydas.
We note that the Real ID Act of 2005 provides that "a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act. . . ." Real ID Act § 106(a)(1) (adding INA § 242(a)(5)) (to be codified at 8 U.S.C. § 1252(a)(5)).
Petitioner asserts that under Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), as an alien in post final removal order detention, he is being unlawfully detained. (Doc. 9, p. 7, ¶ 28.). Petitioner claims that Respondents have violated his due process rights by failing to conduct a meaningful custody review pursuant to 8 C.F.R. § 241.4 and that they failed to make a proper assessment of his threat to the community and risk of flight. ( Id., p. 8). Plaintiff also claims that he is entitled to an individualized determination as to whether he is a risk of flight or a threat to the community. ( Id.). Petitioner indicates that his removal period commenced to run in March 2004 and ended in September 2004. (Doc. 28, p. 3).
Petitioner also asserts that as an alien subject to a final removal order, BICE cannot retain custody of him beyond six (6) months, once he has provided good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future, and that BICE must show a reasonable likelihood of his deportation. Petitioner then asserts that BICE had six months to determine if it is able to deport him in the reasonably foreseeable future and that his six-month presumptive removal period has expired. Petitioner also claims that, under the due process clause, he should not be detained since there is no likelihood that BICE can remove him in the reasonably foreseeable future. (Doc. 28, pp. 2-3).
Petitioner contends that his mandatory continued detention by BICE is unconstitutional. (Doc. 28, p. 4). Petitioner claims that the issuance of a stay of his removal is irrelevant to his claim of unlawful continued detention and that he is an alien in a post-removal case who is being detained beyond the six-month removal period. ( Id.). In their Response, the Respondents contend that the six-month presumptive removal period has not yet expired in Petitioner's case. (Doc. 26, pp. 4-6). Respondents also state that Petitioner is receiving regular, individualized, meaningful custody reviews and that his removal is reasonably foreseeable once the stay is lifted. We agree with Respondents.
As stated, in Petitioner's Habeas Corpus Petition, he alleges that his indefinite detention by the BICE at the Clinton County, Pennsylvania, Prison is a violation of his due process rights. Petitioner cites to Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001). (Doc. 28, p. 4). Under Zadvydas, as Petitioner recognizes ( Id.), an alien in post final removal order detention beyond six (6) months is entitled to a custody determination once he has provided good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future, and BICE must show a reasonable likelihood of his deportation. Petitioner also claims he has been denied a meaningful custody review, and his Petition seeks immediate supervised release. (Doc. 28, p. 7).
In response, Respondents correctly assert that the removal period has not yet expired in Petitioner's case. Petitioner has been in BICE custody for about 18 months, according to Respondents. (Doc. 26, p. 10). However, in April 2004, the District Court for the Eastern District of New York entered a stay of deportation during the pendency of his habeas petition filed in that Court. (Doc. 26, Ex. J and Ex. F). As indicated above, Petitioner also filed a request for a stay of removal with this Court, which was denied since the Eastern District of New York Court already entered a stay of deportation while Petitioner's habeas case is pending with that Court. Thus, according to Respondents, Petitioner's removal period has not yet expired. Therefore, Respondents claim that Petitioner has not been detained beyond the six-month detention period. (Doc. 26, pp. 4-6).
As stated, the Petitioner has been undisputedly held in BICE custody for about 18 months, i.e. March 2004 to September 2005, and his removal period began to run in March 2004 after the BIA affirmed the IJ's removal order. Petitioner was then granted a stay of removal on April 24, 2004 by the Eastern District of New York. (Doc. 26, Ex. F, Doc. # 2). Thus, Petitioner's removal period has not yet run for six months, since Petitioner was granted a stay of removal on April 24, 2004 ( i.e. but for the stay, Petitioner's six-month period would have expired in September 2004). Therefore, Respondents correctly assert that Petitioner's six-month removal period has not expired. ( Id., pp. 4-6).
As Petitioner claims (Doc. 28, p. 4), it is well-settled that once aliens have entered the United States, even illegally, they are entitled to due process protection against unlawful or arbitrary restraint by the government. See Patel v. Zemski, 275 F. 3d 299, 307 (3d Cir. 2001). The Patel Court also stated that under Zadvydas, immigration detention implicates a fundamental liberty interest and that BICE is limited with respect to the detention of post-removal-order aliens "to a period reasonably necessary to bring about the alien's removal, generally no more than six months." Id. at 309 (citing Zadvydas, 121 S. Ct. at 2505).
Once an alien is ordered removed by BICE, the Attorney General has ninety (90) days to effectuate the removal of the alien. This is called the removal period. 8 U.S.C. § 1231(a)(1)(A). Under the statute:
(B) The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.8 U.S.C. § 1231(a)(1)(B) (Emphasis added). See French v. Ashcroft, 2005 WL 1309062 at *2 (M.D. Pa.).
During the removal period, the Attorney General must detain the alien. 8 U.S.C. § 1231(a)(2). If the alien is not removed during the removal period, the Attorney General has two options — supervised release ( 8 U.S.C. §§ 1231(a)(3)) or, at times, continued detention ( 8 U.S.C. § 1231(a)(6)). Our Petitioner is still in the six-month removal period since the Eastern District of New York Court's stay of April 24, 2004 is still in effect.
In Zadvydas, 533 U.S. at 689, the Court held that "the statute [§ 241 (a)(6)], read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention." Id. at 689. "A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to depriv[e] any person . . . of liberty . . . without due process of law." Id. at 690, 121 S. Ct. at 2505; Patel, 275 F. 3d at 309.
As in Zadvydas, our Petitioner is an alien who is removable on the grounds of deportability (Doc. 26, Exhibit A) and, thus, the Court's holding in that case applies to Petitioner. See 8 U.S.C. § 1231 (a)(6) and §§ 1227 (a)(6) and 1227 (a)(2). The Respondents do not dispute this. Doc. 26, pp. 4-5.
According to Zadvydas, detention of a post-removal order alien is presumptively reasonable for six months. Zadvydas, 533 U.S. at 701. Following this six-month period, if the alien shows that there is no significant likelihood of his removal in the reasonable future, BICE must present evidence to rebut the alien's showing. Id.
Respondents argue that Petitioner's six-month removal period has not expired. (Doc. 26, pp. 4-6). Respondents assert since Petitioner's removal has been stayed during his court challenge to his removal order, this time during which BICE was enjoined from effecting Petitioner's removal is excluded from the six-month period pursuant to 8 U.S.C. § 1231(a)(1)(B). ( Id.). The running of Petitioner's removal period under 8 U.S.C. § 1231 (a)(1)(B)(ii) is not over. ( Id.). We agree with Respondents. See Atkinson v. INS, 2002 WL 1378206 at *2 (E.D. Pa.); Michel v. INS, 119 F.Supp. 2d 485, 498 (M.D. Pa. 2000); Copes v. McElroy, 2001 WL 830673, *6 (S.D.N.Y. 2001). See also Wang v. Ashcroft, 320 F.3d 130, 147 (3d Cir. 2003) ("where a court issues a stay pending its review of an administrative removal Order, the alien continues to be detained under [INA] § 236 until the court renders its decision."). We also find that, since Petitioner's removal period has not yet expired, the Attorney General may detain him under 8 U.S.C. § 1231(a)(6), and his detention does not violate the Constitution or the Supreme Court's decision in Zadvydas. Petitioner mistakenly believes that since he has been in BICE custody since March 2004 (about eighteen (18) months), his removal period has expired and he is entitled to be released by BICE. (Doc. 28, pp. 4-5). However, as discussed above, we find that Petitioner's removal period has not yet expired.
Even though Petitioner has been detained by BICE for about eighteen months ( i.e. March 2004 to the present), BICE has not yet had a six-month time period within which to effect his removal as contemplated in Zadvydas. We concur with Respondents (Doc. 26, p. 6) that since Petitioner's six-month presumptive detention period has not yet expired in this case, he has not stated a claim under Zadvydas. See Patel, supra, 275 F. 3d at 309 (holding that Zadvydas limits "post-removal-order detention to a period . . . generally no more than six months").
We also find that the Petitioner must exhaust his administrative remedies with respect to his claim that his continued detention by BICE is unlawful by submitting a request for release with the BICE under 8 C.F.R. § 241.13 after his six-month presumptively reasonable removal period expires. Based on the evidence in this case, Petitioner is still within the six-month removal period. Thus, we find that Petitioner will be able to submit a request for release with BICE and exhaust his administrative remedies under § 241.13 once his six-month removal period expires. See French, supra.
Subsequent to Zadvydas, the former INS enacted new regulations in which it established a custody review procedure. See 8 C.F.R. § 241.13. Section 241.13 "establishes special review procedures for those aliens who are subject to a final order of removal and are detained under the custody review procedures provided at § 241.4 after the expiration of the removal period, where the alien has provided good reason to believe there is no significant likelihood of removal to the country to which he or she was ordered removed . . . in the reasonably foreseeable future." 8 C.F.R. § 241.13(a). The regulations require the alien to provide good reason to believe there is no significant likelihood of removal to the country to which he was ordered removed in the reasonably future. 8 C.F.R. § 241.13(a). The alien must commence the custody review process by submitting a request, upon which BICE will conduct a review in order to determine whether there is no significant likelihood that the alien will be removed in the reasonably foreseeable future. 8 C.F.R. § 241.13(c). The alien can also present evidence to support his claim that he will not be removed in the reasonably foreseeable future. 8 C.F.R. § 241.13(d).
There is no indication that Petitioner has exhausted his administrative remedies in this case by submitting a request for custody review with the BICE pursuant to the procedures set forth in 8 C.F.R. § 241.13. In fact, Petitioner states in his amended habeas petition that he has not been given a custody review pursuant to 8 C.F.R. § 241.4. (Doc. 9, p. 8). In any event, since the Petitioner's removal period has not yet expired, he cannot file a request for release under § 241.13 at this time. The Petitioner can utilize this administrative remedy after his six-month period expires and present his claims that his removal is not reasonably foreseeable and that he is not a flight risk or a danger to the community. Then the administrative agency will be given an opportunity to rule on the matter. If Petitioner is unhappy with the results obtained after fully exhausting his administrative remedies, he can file a subsequent habeas petition regarding his continued detention by BICE.
We also agree with Respondents that this Court's decision in Oyedeji, supra, is distinguishable from our case. In Oyedeji, Judge Vanaskie stated that "The price for securing a stay of removal should not be continuing incarceration." He then ordered the alien released. 332 F. Supp. 2d at 753, 755. However, prior to this Order, the Court directed that Petitioner Oyedji be given regular custody reviews by BICE. (Doc. 26, pp. 9-10). When the Court directed the release of Petitioner Oyedji, it found that Petitioner did not receive custody reviews. ( Id., p. 10). We thus find Oyedji distinguishable from the present case, since our Petitioner is undisputedly receiving regular periodic custody reviews in which Petitioner is allowed to present evidence supporting his release from confinement and his evidence is being considered by BICE. In fact, Petitioner will receive another custody review in about one month, November 2005. (Doc. 26, Ex. J).
Other Courts, as noted by Respondents, have found that an alien who on his own causes his delay in removal by seeking and obtaining a stay of removal while he challenges his removal order have tolled the time period within which BICE can detain the alien. (Doc. 26, p. 7, n. 24). Further, Petitioner cites to the Supreme Court case of Demore v. Kim, 538 U.S. 510 (2003). This case deals with the detention of deportable criminal aliens while their removal proceedings were pending. Id. at 528. Demore dealt with detention of criminal aliens while their administrative removal proceedings were pending, unlike the detention of our Petitioner. Our Petitioner is not in detention pending a determination of his removability. Our Petitioner has been found to be removable.
Since Respondents have noted several cases, we shall not reiterate them herein. (Doc. 26, p. 7, n. 24).
We also agree with Respondents that the government retains an interest in detaining an alien after the issuance of a removal order but prior to the completion of the judicial process. As stated, the judicial process in Petitioner's case and his challenge to his removal order is still pending. The government, upon request of Petitioner, has been ordered by the District Court for the Eastern District of New York not to remove Petitioner during the pendency of his case. Petitioner argues on the one hand that BICE is continuing to detain him unlawfully in excess of the removal period and that his removal to Italy is not presently foreseeable (Doc. 28, pp. 2-3), yet on the other hand he has the benefit of a stay of removal while his challenge to the removal order is pending and during the stay BICE is prevented from taking any action to effectuate his removal. Further, as discussed below, we find that the Respondents' evidence shows that Petitioner is receiving meaningful custody reviews and that his removal to Italy is reasonably foreseeable once the stay is lifted. (Doc. 26, Ex. J). Petitioner has not offered any evidence to dispute the stated evidence of Respondents.
We further find that Petitioner could request the Eastern District of New York Court to lift his stay of removal, and he could then file a request for review with BICE pursuant to 8 C.F.R. § 241.4 and § 241.13. Moreover, as mentioned, we find that Respondents have presented evidence that a travel document for Petitioner and his removal to Italy will be easily obtained once the stay of removal is lifted. (Doc. 26, Ex. J). We do not find that Petitioner has controverted this evidence.
Additionally, as Respondents argue (Doc. 26, p. 9), Petitioner in Oyedeji was in BICE custody for five years and he was found removable due to a non-violent offense (petit larceny) he committed as a minor. Petitioner in Oyedeji was not receiving regular custody reviews, and he did not obtain a stay from the court which barred his removal. Oyedeji, supra, 332 F. Supp. 2d 749-751. Also, as Respondents indicate ( Id., pp. 9-10), this Court in Oyedeji initially conditionally granted Petitioner's habeas corpus petition and ordered BICE to conduct a custody review (POCR) of Petitioner pursuant to 8 C.F.R. § 241.4, and the Court subsequently found that its order was not followed by BICE. Id. at 751.
The undersigned was assigned the Oyedeji case, and we recommended that Petitioner's habeas petition be dismissed. However, the District Court did not adopt our Report and Recommendation and found that the running of Petitioner's removal period was not tolled and that the United States Attorney's Office's agreement not to remove Petitioner was not a stay, and that Petitioner was entitled to consideration for release from confinement pursuant to 8 C.F.R. § 241.4. 332 F.Supp. 2d at 751.
Additionally, as discussed below, we find that our Petitioner is receiving regular, meaningful, periodic custody reviews by BICE. Thus, our Petitioner's reliance on Oyedji is not persuasive. See Abimbola v. Ridge, 2005 WL 588769 *3, n. 6 (D. Conn.). Also, as in Abimbola, our Petitioner was not merely convicted of minor shoplifting offenses, as was Petitioner Oyedji; rather, our Petitioner was convicted of racketeering and was found to be an aggravated felon.
In Haynes, this Court conditionally granted the habeas corpus petition and again found that the alien should be given a post-removal custody review under § 241.4 when Petitioner Haynes had been in custody more than six (6) months after a stay of removal was issued. Haynes, supra. at *6. The Haynes Court then stated that otherwise, an alien who poses no threat to the community or flight risk could be detrained indefinitely during his non-frivolous litigation of his removal order. In our case, unlike Petitioner Oyedeji, who was a non-violent offender, and unlike the Haynes case requiring a custody review to see if the alien poses any threat to the community and is a flight risk, Petitioner Morena undisputedly has had a custody review in November 2004, and it was determined that notwithstanding his evidence that he had a sponsor, a place to reside and employment offers if he was released, he had a violent criminal conviction and that he may pose a threat to society. (Doc. 26, Ex. I J). It was also indicated in Petitioner's November 2004 custody review decision that if his stay was not lifted within one year, he will be given a Post-Order Custody Review (POCR) and served with a Notice to Alien of File Custody Review. Further, it was indicated that if Petitioner's stay is lifted and BICE does not effectuate his removal in 90 days thereafter, a new POCR will be conducted. (Doc. 26, Ex. J). Thus, if Petitioner's stay is not lifted by November 2005 (about one month from now), he will have a POCR scheduled and he will be provided with a Notice of File Custody Review. ( Id.). Petitioner will then be given the opportunity to show that his removal is not reasonably foreseeable and that he is not a threat to the community or a flight risk. He will again be able to submit any documentation that he wishes to be reviewed to support his release. (Doc. 26, Ex. I).
As discussed, we find that Petitioner has been provided with and will continue to be provided with meaningful custody reviews on a regular basis and that he will be scheduled for a POCR in about one month from now, at which time he can again present any evidence that he has to support his release.
IV. Recommendation.
Based on the foregoing, we respectfully recommend that Petitioner's Habeas Petition which challenges his continued detention be denied.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 4, 2005.Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within ten (10) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.