Kamara v. Farquharson, Civ. A. No. CA-97-12026-PBS.

• Citation: 2 F.Supp.2d 81
• Decision Date: 23 March 1998
• Docket Number: Civ. A. No. CA-97-12026-PBS.
• Parties: Ahmed KAMARA, Petitioner, v. Steven J. FARQUHARSON District Director of The United States Immigration & Naturalization Service, Respondent.
• Court: U.S. District Court — District of Massachusetts

2 F.Supp.2d 81

Ahmed KAMARA, Petitioner, v. Steven J. FARQUHARSON District Director of The United States Immigration & Naturalization Service, Respondent.

Civ. A. No. CA-97-12026-PBS.

United States District Court, D. Massachusetts.

March 23, 1998.

Stephen A. Lagana, Lagana & Associated, Boston, MA, for Ahmed Kamara.

Frank Crowley, Immigration & Naturalization, Special Asst. U.S. Atty., Boston, MA, for Steve Farquharson.

Carolyn M. Kirby, Hillsborough County Attorney's Office, Manchester, NH, for James Howell, Michael Mathon.

MEMORANDUM AND ORDER

SARIS, District Judge.

Petitioner Ahmed Kamara has filed a petition for writ of habeas corpus claiming that his continued detention by the Attorney General constitutes an abuse of discretion because he suffers from a serious medical condition, hepatitis. Kamara, who is now subject to a final order of deportation, is effectively challenging the decision by an immigration judge ("IJ") of the United States Immigration & Naturalization Service ("INS") who denied his request for bond.

Respondent moves to dismiss this action for the Court's lack of subject-matter jurisdiction over detention decisions pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. § 1252(g), and in the alternative, for Kamara's failure to exhaust administrative remedies by not appealing the decision of the IJ to the Board of Immigration Appeal ("BIA").

After hearing, the motion to dismiss is ALLOWED on the ground that Kamara, against whom four temporary restraining orders by four different women have been issued, has not demonstrated that the IJ abused her decision in denying his release on bond.

Factual Background

Ahmed Kamara is a native and citizen of Mauritania who entered the United States on July 11, 1994 as a nonimmigrant visitor, and remained here beyond the expiration of his visitor's visa. On January 30, 1996, deportation proceedings were commenced against Kamara based upon an order to show cause charging him with remaining in the United States for a period longer than permitted in violation of section 241(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(1)(B) (1996).¹ At hearing before an IJ on November 11, 1996, deportability was established and Kamara applied for voluntary departure, pursuant to section 244(e) of the INA, 8 U.S.C. § 1254(e)(1) (1996).² Kamara was taken into INS custody on December 5, 1996 on a $150,000 bond condition. Evidentiary hearings were held on December 4 and 18, 1996, at the close of which the IJ denied Kamara's application for voluntary departure and ordered him deported to Mauritania. She based this decision upon a finding that Kamara lacked the good moral character to be granted such relief, in light of evidence that four restraining orders concerning four different women had been issued against him, as well as evidence of Kamara's involvement in various fraudulent and injurious financial schemes.³ Having heard from Kamara and a host of victim witnesses for the government, the IJ concluded that Kamara "is a dangerous man"— in her opinion, "a sociopath"—who "has used his intelligence to live at the expense of others" and whose "credibility is hopelessly impaired." Accordingly, she ordered that Kamara continue to be held without bond pending appeal to the BIA.

Kamara's request for a bond redetermination had already been denied by the IJ. Rather than reduce the $150,000 bond condition set when Kamara was first taken into custody, she instead ordered that Kamara be held without bond. This order, dated December 11, 1996, informed Kamara that he had reserved the right to appeal the no-bond determination to the BIA until January 10, 1997. See 8 C.F.R. § 242.2(d). Kamara did not exercise this right.

On January 21, 1997, Kamara filed a late appeal from the December 18, 1996 order denying his application for voluntary departure. Because the filing of a Notice of Appeal is required within 30 calendar days of the IJ's oral decision, see 8 C.F.R. § 3.38(b), that appeal was due on or before January 17, 1997.

In April of 1997, Kamara was diagnosed with chronic hepatitis by INS medical doctors. Since that time, he has made numerous requests to be transferred from the Hillsborough County House of Corrections, Manchester, NH ("Hillsborough"), a high-end security correctional facility, to Service Processing Center, Boston, MA ("SPC Boston"), in order to receive better medical treatment for his condition and because he fears for his safety at Hillsborough. In his most recent pro se court submission of February 17, 1998, Kamara states that his complaints of oral bleeding and other symptoms of his illness have been met with threats by the "security department" and inaction by the "medical department" at Hillsborough.

In April and October of 1997, Kamara was seen by Dr. Mark J. Silversmith of the Center for Gastrointestinal Medicine, Inc. In a letter dated April 10, 1997, Dr. Silversmith stated his opinion that Kamara was likely suffering from chronic hepatitis but recommended that "before even contemplating Interferon therapy, with its attendant side effects ... it would be wise to try and document six months of surface antigen positive blood." The letter documents that Kamara wanted the treatment to begin immediately and that he refused treatments recommended by Dr. Silversmith to relieve some of his abdominal discomfort in the short-run. In a second letter dated October 9, 1997, Dr. Silversmith stated that lab work confirmed Kamara's status as a chronic carrier of hepatitis C. He recommended that a 16 week-long course of interferon Intron-A therapy be initiated pending the results of some further lab work, and that "[i]f [Kamara] will get better and appropriate therapy in Boston, then he should be transferred there."

On July 1, 1997, District Director Farquharson received a transmittal from the Mauritanian Embassy, dated April 29, 1997, requesting Kamara's release from custody on the basis that "Mr. Kamara is very sick and needs to be out for medical reasons." Farquharson denied the request in a written decision dated July 7, 1997, stating that "[d]ue to doctor, client confidentiality, this Service has no way of verifying any sickness claim without the consent of Mr. Kamara. ... Therefore, any sickness claimed by Mr. Kamara is currently considered unfounded." Farquharson further justified Kamara's continued detention, stating that "Mr. Kamara has been charged with serious crimes against people, for which he presently has a restraining order issued against him .... [which] clearly demonstrate[s] that he is a threat to the community." Finally, he noted that "Mr. Kamara has the choice at any time of maintaining this appeal or withdrawing it and being immediately removed to his native homeland."

On October 27, 1997 the BIA denied Kamara's appeal of the December 18, 1996 order as untimely, thereby subjecting him to a final order of deportation. See 8 C.F.R. § 243.1. On November 25, 1997, Kamara filed a motion to reopen alleging ineffective assistance of counsel, which he claims resulted in the untimely filing. On November 26, 1997, Kamara filed a petition for review with the First Circuit Court of Appeals, at which time the First Circuit ordered the previous order of deportation stayed pending adjudication of the motion to reopen.

At hearing before this Court on January 14, 1998, the government acknowledged that Kamara's interferon treatment did not get underway until November of 1997. The government also represented to the Court, however, that Kamara's treatment has been ongoing since that time, and that he is currently receiving adequate medical treatment for his condition. Because the record contained no account, apart from the two Silversmith letters, of Kamara's treatment at Hillsborough, the Court requested that the government produce documentation in support of its position. On January 20, 1998, a bare-bones affidavit of Alan M. Stein, the Medical Director at Hillsborough, was faxed to the Court. In it Stein concludes, having "familiarized [himself] with the medical particulars of the case," that Kamara's medical needs are being met at Hillsborough and that relocation to Boston is unnecessary; he provides no detail whatsoever as to the basis for his medical opinion.

DISCUSSION

Kamara asks the Court to find that the decision to deny him bond and to continue his detention despite his medical condition constitutes an abuse of discretion, and to vacate the decision and order his release on bond. See Pet. ¶ 15. In the alternative, as was made clear in the January 14, 1998 hearing, Kamara seeks a transfer from Hillsborough to SPC Boston. Both requests for relief are grounded primarily in Kamara's claims that he has not received adequate medical care from the time he was diagnosed with chronic hepatitis in April of 1997. Kamara has also filed a motion for reconsideration of respondent's motion to quash subpoenas, likewise grounded in his claim of poor medical treatment; he seeks to depose correctional officers he believes would attest to his experiences at Hillsborough. Kamara does not seek review from this Court of his final order of deportation or otherwise challenge that he was lawfully taken into INS custody in December of 1996.

A. Jurisdiction

Kamara asserts several bases of this Court's jurisdiction to review the no-bond decision, namely 28 U.S.C. § 1361, 5 U.S.C. §§ 701 et seq., and 28 U.S.C. § 2241.⁴ The government argues that the Court lacks subject-matter jurisdiction over review of such discretionary decisions pursuant to the Illegal Immigration Reform And Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, 1277.

Section 306(a) of IIRIRA amends section 242(g) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(g), to provide:

EXCLUSIVE JURISDICTION.—Except as provided in this section and notwithstanding any other provision of...