Gonzalez v. Ashcroft, Civil Action No. 03-2290(JLL).
| Decision Date | 26 August 2003 |
| Docket Number | Civil Action No. 03-2290(JLL). |
| Citation | 278 F.Supp.2d 402 |
| Parties | Xiomara GONZALEZ, Petitioner, v. John ASHCROFT, et al., Respondents. |
| Court | U.S. District Court — District of New Jersey |
Regis Fernandez, Newark, NJ, for Petitioner.
Colette R. Buchanan, Asst. United States Attorney, Newark, NJ, for Respondents.
Petitioner Xiomara Gonzalez, an immigration deportee currently confined to the Hudson County Correctional Center in South Kearny, New Jersey, filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging her detention by the Immigration and Naturalization Service ("INS").1 Respondents John Ashcroft (Attorney General of the United States), Tom Ridge (Secretary of the Department of Homeland Security), Michael Garcia (Assistant Secretary of the Bureau of Immigration and Customs Enforcement), and Ralph Green (Warden, Hudson County Correctional Center), (hereinafter collectively referred to as "Respondents"), filed an Answer opposing the Petition. Counsel appeared before this Court for oral argument on June 18, 2003. For the reasons set forth in this Opinion, this Court finds that Petitioner's continued post-removal-period detention does not violate her Fifth Amendment right to due process of law, nor is it unauthorized by 8 U.S.C. § 1231(a)(6), as construed by Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). This Court also finds that Respondents failed to provide Petitioner with an individualized parole review in a manner required under terms of the Cuban Review Plan (hereinafter "the Plan"), 8 C.F.R. § 212.12. Accordingly, Respondents are ordered to provide Petitioner with said review within thirty (30) days. The review, shall be provided by the Cuban Review Panel (hereinafter "the Panel"). Furthermore, it is the Order of this Court that if Respondents fail to do so, the Court will, upon Petitioner's request setting forth said failure, grant Petitioner's writ of habeas corpus and order her release under appropriate conditions of supervision.
The essential facts are not in dispute. Petitioner is a native and citizen of Cuba. (Respondents' Answer and Opposition to the Habeas Corpus Petition, at p. 2.)2 On or about June 21, 1980, she arrived in the United States as part of the Mariel boat lift from Cuba to Florida. (Id.) She was granted discretionary parole into the United States pursuant to the former section 212(d)(5) of the Immigration and Nationality Act (), as amended, 8 U.S.C. § 1182(d)(5), on or about August 23, 1980. (Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus and Order to Show Cause, at p. 1;3 Respondents' Brief, at p. 2, Exh. 1.)
Petitioner has resided continuously in the United States since being paroled in 1980. (Petitioner's Brief, at p. 1.) Her mother is a lawful permanent resident, who resides in Newark, New Jersey. (Id.) Petitioner also has a daughter who is a United States citizen, who also resides in New Jersey. (Id.)
On or about March 13, 1987, Petitioner was convicted in the Circuit Court, Dade County, Florida of the offense of Carrying a Concealed Weapon in violation of Florida law. (Respondents' Brief, at p. 2, Exh. 2.) Petitioner received a sentence of three-hundred and sixty-four (364) days in jail. (Respondents' Brief, at pp. 2-3, Exh. 2.) She was also convicted of the offense of Trafficking in Cocaine. (Respondents' Brief, at p. 3, Exh. 3.) She was sentenced to one year of "community control," to run consecutively to the sentence for the weapons offense. (Id.)
On or about April 26, 1988, Petitioner filed an application for permanent resident status, pursuant to the Cuban Adjustment Act, Pub.L.No. 89-732, 80 Stat. 1161 (1966). (Respondents' Brief, at p. 3.) Her application was denied by the District Director for the INS in Miami, Florida. (Respondents' Brief, at p. 3, Exh. 4.) He determined that Petitioner was ineligible for adjustment of status based of her conviction for trafficking in cocaine. (Id.) On or about October 9, 1990, the Administrative Appeals Unit affirmed the denial of the application. (Respondents' Brief, at p. 3, Exh. 5.)
On or about May 5, 1995, Petitioner was convicted in the Superior Court of New Jersey, Ocean County, of Distribution/Possession with Intent to Distribute Cocaine in violation of New Jersey law. (Respondents' Brief, at p. 3, Exh. 6.) She was sentenced to twenty (20) years in prison with eight (8) years parole ineligibility. (Id.)
On August 8, 1995, the INS revoked her parole. (Respondents' Brief, at p. 3, Exh. 7.) On June 26, 2002, the INS initiated removal proceedings against Petitioner through the issuance of a Notice to Appear. (Respondents' Brief, at p. 3, Exh. 8.) The Notice indicated that Petitioner was subject to removal as a result of the 1987 drug trafficking conviction.4 (Id.)
On June 27, 2002, the Cuban Review Panel performed a Custody Review. (Respondents' Brief, at p. 3, Exh. 9.) The Panel made the decision to detain Petitioner. (Id.) On or about July 1, 2002, Petitioner was released from New Jersey State custody to the custody of the INS and detained. (Respondents' Brief, at p. 3.) On July 26, 2002, Immigration Judge Daniel A. Meisner entered a final order of removal. Petitioner did not appeal the order. (Id.) Petitioner has remained in INS custody at the Hudson County Correctional Center. (Petitioner's Brief, at p. 1.)
Petitioner explains that she has made several requests for an impartial parole hearing in an effort to secure release from detention. (Petitioner's Brief, at p. 2; Verified Habeas Corpus Petition, Exhs. B, F and G.) On June 26, 2002, she submitted a parole request packet to the Cuban Review Panel. (Petitioner's Brief, at p. 2; Verified Habeas Corpus Petition, Exh. B.) She failed to receive a response, therefore, on October 3, 2002, she submitted a written inquiry to the panel. (Petitioner's Brief, at p. 2; Verified Habeas Corpus Petition, Exh. F.) On October 21, 2002, Petitioner made another parole hearing request to the Panel. (Petitioner's Brief, at p. 2; Verified Habeas Corpus Petition, Exh. G.) To date, Petitioner has not been provided a custody review and remains detained at the Hudson County Correctional Center. (Petitioner's Brief, at p. 2.) Petitioner further explains that her physical condition is in a deteriorating state. (Petitioner's Reply Brief, at p. 7). At the time the petition was filed, Petitioner was scheduled to be transferred to Oakdale, Louisiana, for a review. (Respondents' Brief, at p. 4.) Respondents explain that after the filing of the petition, they agreed to Petitioner's request to halt her transfer to Louisiana. (Respondents' Brief, at p. 4.)
Petitioner seeks release on the grounds that her removal from the United States is not reasonably foreseeable, her post-removal confinement is not authorized by 8 U.S.C. § 1231(a)(6), as construed by Zadvydas, and it violates her Fifth Amendment right to due process of law. In the alternative, she seeks an individualized parole hearing by an immigration judge, for purposes of custody review.
Section 2241 of Title 28 of the United States Code provides, in relevant part:
The writ of habeas corpus shall not extend to a prisoner unless... He is in custody in violation of the Constitution or laws or treaties of the Unites States.
A district court has subject matter jurisdiction under 28 U.S.C. § 2241(c)(3) to grant a petition for a writ of habeas corpus where the petitioner is in custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). This Court has jurisdiction under § 2241 to consider Petitioner's statutory and constitutional challenge to his post-removal detention. Zadvydas, 533 U.S. at 688, 121 S.Ct. 2491.
Petitioner contends that her continued post-removal-period detention violates her Fifth Amendment right to due process of law. U.S. CONST. amend V. She argues that her detention is unconstitutional because it has exceeded six months, the presumptive reasonable period of post-removal-period detention set forth in Zadvydas. Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491. Respondents counter that the Zadvydas decision does not apply to Petitioner, as that decision only applies to lawful permanent residents and other aliens who have been admitted to the United States.5
In Zadvydas, the United States Supreme Court addressed the government's statutory authority under § 1231(a)(6) to detain indefinitely "aliens who were admitted to the United States but subsequently ordered removed." Zadvydas, 533 U.S. at 682, 121 S.Ct. 2491. Both petitioners in Zadvydas were admitted aliens. The first, immigrated to the United States from Germany with his parents at the age of eight. In 1994, he was ordered removed to Germany based on his lengthy criminal history. He remained in INS custody, as his removal was not effectuated because Germany, Lithuania and the Dominican Republic refused to accept him. The second alien, a native of Cambodia, was admitted to the United States as a resident alien at the age of seven. He was ordered removed based on a conviction for manslaughter. He remained in INS custody, as Cambodia refused to accept him. The Court held that "the statute ... limits an alien's post-removal-period detention to a period reasonable necessary to bring about that aliens's removal from the United States...." Id. at 689, 121 S.Ct. 2491. The Court recognized six months as constituting the presumptive reasonable period of detention under § 1231(a)(6), upon which to effectuate removal. Id. at 701, 121 S.Ct. 2491.
Petitioner concedes that she was never admitted to the United States. She is here as a result of having been granted discretionary parole pursuant 8 U.S.C. § 1182(d)(5),...
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