Dalis v. BRADY, INS., 90-C-2304.

• Decision Date: 04 June 1991
• Docket Number: No. 90-C-2304.,90-C-2304.
• Parties: Ibrahim Ahmed DALIS, Petitioner, v. Michael BRADY, INS, District Director, Respondent.
• Court: U.S. District Court — District of Colorado

766 F. Supp. 901

Ibrahim Ahmed DALIS, Petitioner, v. Michael BRADY, INS, District Director, Respondent.

No. 90-C-2304.

United States District Court, D. Colo.

June 4, 1991.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo., for petitioner.

George Gill, Asst. U.S. Atty., Denver, Colo., for respondent.

ORDER

CARRIGAN, District Judge.

Petitioner, Ibrahim Ahmed Dalis, who is currently incarcerated at the INS Detention Facility, commenced this action seeking a writ of habeas corpus. The case was assigned to Magistrate Judge Donald E. Abram who reviewed the matter and prepared a recommendation pursuant to Local Rule 605. The Magistrate Judge has recommended that the petition be granted. Copies of both the recommendation and the Local Rule were mailed to the petitioner and the respondent on May 15, 1991. In response to the Magistrate Judge's recommendation, the parties have stipulated that the petition be granted based on the reasoning set forth in the Magistrate Judge's recommendation.

I have reviewed the entire file, including the Magistrate Judge's recommendation and the parties' stipulation. The recommendation appears to be supported by the law and the facts, and I therefore adopt it as the order of this court.

Accordingly IT IS ORDERED that:

(1) the Magistrate Judge's recommendation is adopted as the order of this court;

(2) the petition for writ of habeas corpus is granted;

(3) pursuant to the parties' stipulation, the petitioner shall be released immediately;

(4) petitioner shall be subject to supervision as provided in 8 U.S.C. § 1252(d); and

(5) pursuant to the parties' stipulation, the stay of deportation shall remain in effect until further order of this court.

D.E. ABRAM, Chief United States Magistrate Judge.

Petitioner, Ibrahim Ahmed Dalis, currently incarcerated at the INS Detention Facility, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, an Arab citizen of Israel admitted as a nonimmigrant student, has asserted that he is being illegally detained in violation of his rights of due process, right to bail and rights of equal protection. He has named as Respondent the INS District Director. A hearing was held on April 10, 1991. At that hearing Respondent offered to release Petitioner on a $15,000 bond. Petitioner asserted that he could not afford the $15,000 bond. A Public Defender was appointed Petitioner and on April 24, 1991 a second hearing was held in which both sides presented their arguments concerning the release of Ibrahim Ahmed Dalis.

Pursuant to Rule 605 of the Local Rules of Practice of the United States District Court for the District of Colorado, this matter has been referred to Magistrate Judge Donald E. Abram. Magistrate Judge Abram has reviewed the Petition and the applicable law, and hereby recommends that the Petition be granted.

ASSERTIONS

In July of 1986, Petitioner was arrested by state authorities in Toledo, Ohio for criminal charges.¹ Bond was set at $10,000. Petitioner asserts, however, that when Petitioner attempted to meet bail he found that an "Immigration hold" had been placed on him. Petition, p. 7 ¶¶ 2-4. Petitioner asserts that no bond was ever set by the INS. Petition, p. 7 ¶ 6. Deportation proceedings commenced and Petitioner was found deportable and ordered deported in February of 1989. Petition, p. 8 ¶ 11.

I. Petitioner asserts that he has been held under a "warrantless arrest" and should therefore have been interviewed and been informed of his rights within 24 hours of his "Immigration hold." Petitioner asserts that the "Immigration hold" expired after 24 hours. Petitioner asserts that he should have been allowed to post bail and be released before the institution of deportation proceedings or released on personal recognizance, pending the outcome of the criminal proceedings. Petition, p. 7 ¶¶ 7-9.

II. Petitioner also asserts that the INS violated its own policy by instituting the deportation proceedings while Petitioner was still in confinement. Petitioner states that he is not an "aggrevated sic felon" and therefore this was improper policy. Petition, p. 8 ¶ 10.

III. Petitioner further asserts that he was released from confinement on June 25, 1990 and transported to Lucas County Jail in Toledo and held until June 28, 1990 to allow the INS to resume custody of Petitioner. Petitioner asserts that this was illegal confinement for over 48 hours. Petition, p. 8 ¶ 12.

IV. Petitioner was transported to WSI/INS Processing Center in Aurora, Colorado on June 28, 1990 to await deportation to Israel after a final administrative order of deportation. Petitioner asserts that no bond has been set for release from detention. Petitioner further asserts that he has been held illegally past the six month limitation. Petitioner now seeks his immediate release from detention and requests release on bond while this petition is being adjudicated. Petition, pp. 8-9, ¶¶ 13-15.

EXHAUSTION OF REMEDIES

Exhaustion of available and adequate administrative remedies is a prerequisite to all habeas corpus petitions in federal court. 28 U.S.C. § 2254(b). The procedure to exhaust administrative remedies of bond determinations starts with the Immigration Judge. The Immigration Judge has original jurisdiction to hear review of a bond request unless a final order of deportation has been rendered. 8 C.F.R. § 242.2(d) (1990). However, no appeal shall be allowed when the Service notifies the alien that it is ready to execute the order of deportation and takes him into custody for that purpose. 8 C.F.R. § 242.2(d) (1990). In this case, Petitioner has been taken into custody pending the execution of the final order of deportation. Because no appeal is available to Petitioner under these circumstances, Petitioner has effectively exhausted his administrative remedies. 8 C.F.R. § 242(d) (1990); 28 U.S.C. § 2254(b). This Court therefore has jurisdiction to review this Petition.

I. WARRANTLESS ARREST

Petitioner's first assertion was that he was held under an "Immigration hold." Petitioner asserts that an "Immigration Hold" is a warrantless arrest and that he should therefore have been interviewed and been informed of his rights within 24 hours of his "Immigration Hold." Petition, p. 7, ¶¶ 7-9. Petitioner cites to 8 C.F.R. § 287.3. Respondents argue, and this Court agrees, that Petitioner was not held on an "Immigration Hold," but on an "Immigration Detainer." See Administrative Record (A.R.) 000085. An Immigration Hold under 8 C.F.R. § 287.3 discusses illegal entries and the stopping of aliens suspected of being in the Country illegally. An "Immigration Detainer" is not a warrantless arrest and is found under a separate section of the Code, 8 C.F.R. § 242.2. The Immigration Detainer was properly administered in accordance with 8 C.F.R. § 242.2 with the appropriate form as required by that section. A.R. 000099. Because this Court finds that there was no warrantless arrest and the procedures for proper detention have been followed, Petitioner did not have a right to be interviewed and informed of his rights within 24 hours under 8 C.F.R. § 287.3 and this Court recommends that this ground of the Petition be dismissed.

II. "AGGRAVATED FELON"

Petitioner also asserts that the INS violated its own policy by instituting the deportation proceedings while Petitioner was still in confinement. Petitioner states that he is not an "aggrevated sic felon" and therefore this was improper policy. Under 8 U.S.C. § 1252(i), it states, "In the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of the conviction."

It is true, as Petitioner suggests, that conviction as an "aggravated felon" would implicate 8 U.S.C. § 1252(i). However, being an aggravated felon is not the only type of conviction which would implicate this section. While Petitioner was not charged as an "aggravated felon," Petitioner was found to be guilty as one who committed a "crime of moral turpitude" under 8 U.S.C. § 1251(a)(4). See, A.R. 000068 citing to the Statutes at Large, Immigration and Nationality Act, Pub.L. No. 414, § 241(a)(4), 66 Stat. 204 (1952). A "crime of moral turpitude" is subject to the expeditious nature of 8 U.S.C. § 1252(i). Because Petitioner was found guilty of a "crime of moral turpitude," it was proper for the Service to begin deportation proceedings while Petitioner was incarcerated. 8 U.S.C. §§ 1251(a)(4), 1252(i).

III. TEMPORARY DETENTION FOR OVER FORTY-EIGHT HOURS

Petitioner further asserts that he was released from confinement on June 25, 1990 and transported to Lucas County Jail in Toledo and held until June 28, 1990 to allow the INS to resume custody of Petitioner. Petitioner asserts that this was illegal confinement for over 48 hours. 8 C.F.R. § 242.2(a)(4). While it may be true that the Service held Petitioner past the allowed 48 hours, Petitioner has alleged no injury for the extra few hours of which he was held. Further, even if as Petitioner asserts, he was held for a brief time past the allowed 48 hours, this does not entitle Petitioner to the drastic remedy of habeas corpus. The federal habeas statute empowers the federal courts to dispose of the matter "as law and justice require." 28 U.S.C. § 2243; see also Kuhlmann v. Wilson, 477 U.S. 436, 447, 106 S.Ct. 2616, 2623, 91 L.Ed.2d 364 (1986). Kuhlmann states, "the Court has reaffirmed that `habeas corpus has traditionally been regarded as governed by equitable principles.' The Court uniformly has been guided by the proposition that the writ should be available to afford relief to those `persons whom society has grievously wronged' in light of modern concepts of justice." Id. at 447, 106 S.Ct. at 2623. Law and justice would not require such drastic relief as granting release from custody merely because the Petitioner, while awaiting transfer of...