Hermanowski v. Farquharson
| Citation | 39 F.Supp.2d 148 |
| Decision Date | 01 March 1999 |
| Docket Number | No. 97-220L.,97-220L. |
| Parties | Matthew HERMANOWSKI, Petitioner, v. Steven J. FARQUHARSON, in his official capacity as District Director, Providence Office Immigration and Naturalization Service; Janet Reno, in her capacity as Director of the Department of Justice of the United States of America; and any other persons having the Petitioner in custody, Respondents. |
| Court | United States State Supreme Court of Rhode Island |
Louis B. Abilheira, Warren, RI, Scott C. Baer, Swansea, MA, Judy Rabinovitz, ACLU, Immigrants' Rights Project, New York City, for petitioner.
Anthony C. DiGioia, U.S. Attorney's Office, Providence, RI, Karen Ann Hunold, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for respondents.
Petitioner Matthew Hermanowski, formerly a legal resident alien, has been ordered to be deported from the United States by Respondent, Immigration and Naturalization Service ("INS"). The INS has been unable to execute Hermanowski's deportation order due to diplomatic difficulties with Hermanowski's native Poland. While these two governments have debated his fate, Hermanowski has now been held in federal custody for twenty-eight months under an order of detention pending deportation. Accordingly, he seeks from this Court a Writ of Habeas Corpus pursuant to Article I, Section 9 of the United States Constitution and 28 U.S.C. § 2241. Hermanowski's Amended Petition alleges that the federal government is detaining him in violation of the due process rights guaranteed to him under the United States Constitution and demands that he be released from federal detention. Respondents moved to dismiss, claiming both a lack of jurisdiction in this Court to entertain the petition and a failure to exhaust administrative remedies by the petitioner. This matter was initially referred to United States Magistrate Judge Jacob Hagopian who issued a Report and Recommendation advising that the motion to dismiss be denied and that Hermanowski's Amended Petition be granted. Respondents' Objections to the Report and Recommendation are now before the Court. For the reasons set forth below, the Report and Recommendation is adopted with modifications. Respondents' motion to dismiss is denied and the Amended Petition for a Writ of Habeas Corpus will be granted with conditions.
In 1973, when he was 15 years old, Hermanowski left his native Poland and established a new life for himself here in the United States as a legal permanent resident alien. His mother and five siblings are also permanent residents of this country. He married a citizen of the United States and had two children here. Hermanowski returned his adoptive country's favor by embarking upon a career as a petty criminal. Hermanowski's encounters with the criminal justice system are numerous. His resume includes convictions for assault with intent to rob, purse snatching, possession of marijuana with the intent to distribute, possession of cocaine with the intent to distribute, and manufacture or delivery of cocaine.
Due to Hermanowski's prolific, if minor league, criminal history, the INS sought and obtained in 1992 a ruling by an Immigration Judge ordering Hermanowski deported to Poland. The Board of Immigration Appeals in 1994 denied Hermanowski's challenge to the Immigration Judge's decision and Hermanowski failed to exercise his right to further appeals in the federal courts. While these proceedings were ongoing, Hermanowski was serving a sentence in state prison. On September 14, 1996, Hermanowski, having completed his state sentence, was taken into custody by the INS under the authority of an immigration detainer filed by the agency. Since that date, Hermanowski has been held in INS custody at the Adult Correctional Institutions in Cranston, Rhode Island (the state prison where he served his time for state criminal convictions) awaiting deportation.
Within days of taking custody of Hermanowski, the INS began its quest to obtain the travel documents necessary to deport Hermanowski to his native land. According to an INS staff officer familiar with Hermanowski's case, the Providence District Office of the INS requested the documents from the Polish Consulate in New York City on September 16, 1996. After a second call made by the INS in November, the Polish government responded on December 19, 1996. Counselor Marcin Knapp of Poland wrote to the Providence District Office and explained that Poland refused to issue travel documents to Hermanowski and that the government of Poland did not consent to his deportation. This is the only official statement ever issued by the Polish government with regard to Hermanowski's travel status and deportation.
Following this official rebuff, the Providence Office of the INS sought the assistance of higher federal authorities. Local INS officers turned to the agency's Washington, D.C. headquarters on December 24, 1996 for help. In February 1997, INS officials in Washington twice requested a review of the travel document request by the Polish consular staff. These entreaties were initially ignored. An INS staff officer finally met with the Second Secretary and the Consul General at the Polish Embassy on March 3, 1997 for the purpose of reviewing the request. The Polish authorities gave no indication at that meeting that their position on the request had changed.
The federal government redoubled its efforts. On May 30, 1997, an INS staff officer in Washington enlisted the aid of the State Department's Desk Officer for Poland in pressing the Polish government through diplomatic channels for the travel documents. The State Department's intervention resulted in a conference on August 14, 1997 between the First Secretary of the Polish Embassy and United States officials during which a number of outstanding requests were discussed, including the Hermanowski case. The First Secretary later informed the State Department that she had discussed the outstanding cases with the Polish Ambassador to the United States and that she was awaiting further instructions from the Polish government in Warsaw. Despite this high-level attention to Hermanowski's status, Poland has never indicated that it was willing to alter its initial decision.
In addition to these diplomatic efforts in Washington, the United States government pursued the matter through its Embassy in Warsaw. According to an INS staff officer, the Consul General of the United States Embassy in Warsaw has been able in the past to secure travel documents for Polish citizens even after the Polish government initially denied the United States' requests for those documents. However, in Hermanowski's case, the Polish government has not issued any official statement that contradicts its refusal of December 1996 to issue travel documents.
While the diplomats conferenced, Hermanowski hoped to be released on bail from detention in the state prison. On December 4, 1996, Hermanowski requested of the INS District Director, Charles Cobb, that he be released on bond until the INS secured the necessary travel documents from the Polish government. Cobb denied the request on December 12, 1996, concluding that Hermanowski had failed to carry the burden imposed upon detainees seeking release on bond under the provisions of former 8 U.S.C. § 1252(a)(2)(B) (1995) (repealed). Although federal law permitted Hermanowski to appeal the District Director's denial of bail to the Board of Immigration Appeals, see 8 C.F.R. § 3.1(b)(7), he did not avail himself of this opportunity.
Hermanowski responded to this denial of bail by filing, pro se, a Petition for a Writ of Habeas Corpus in this Court. After engaging counsel, Hermanowski filed an Amended Petition in which he alleges that in detaining him pending deportation the federal government violates both the procedural and substantive aspects of the right to due process guaranteed by the Fifth Amendment to the United States Constitution. The Amended Petition and respondents' motion to dismiss were referred to United States Magistrate Judge Jacob Hagopian. The Magistrate Judge, without having held a hearing on the matter, issued a Report and Recommendation on June 1, 1998 recommending that the motion to dismiss be denied, that the Amended Petition for a Writ of Habeas Corpus be granted, and that Hermanowski be released from further detention pending the deportation process.
The Magistrate Judge explained that the authority of the INS to detain an alien pending execution of a deportation order is subject to limits imposed by the United States Constitution. In this case, the Magistrate Judge concluded that the INS violated Hermanowski's Fifth Amendment right to substantive due process by restricting his liberty in a manner that "shocks the conscience." The Magistrate Judge reasoned that detention pending deportation may pass constitutional muster if it serves a legitimate governmental purpose. In the context of the typical deportation proceeding of a convicted felon, the Magistrate Judge acknowledged that detention serves two important objectives: facilitating actual deportation when the time is right and preventing further criminal activity pending removal of the alien from American shores. However, the Magistrate Judge concluded that the continued detention of Hermanowski was no longer rationally related to a legitimate governmental purpose. Based on the totality of the circumstances, the Magistrate Judge found that deportation of Hermanowski to Poland "in the foreseeable future is, at best, improbable." Magistrate Judge Hagopian accordingly recommended that the motion to dismiss be denied and that the Amended Petition for a Writ of Habeas Corpus be granted, releasing Hermanowski from continued detention by federal authorities. The Report and Recommendation did not address Hermanowski's procedural due process claim.
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