Thelemaque v. Ashcroft, 3:04-CV-676(MRK).

• Decision Date: 28 March 2005
• Docket Number: No. 3:04-CV-1727(MRK).,No. 3:04-CV-676(MRK).,3:04-CV-676(MRK).,3:04-CV-1727(MRK).
• Citation: 363 F.Supp.2d 198
• Court: U.S. District Court — District of Connecticut
• Parties: Joseph THELEMAQUE, Petitioner, v. John ASHCROFT, et al., Respondents.

363 F.Supp.2d 198

Joseph THELEMAQUE, Petitioner, v. John ASHCROFT, et al., Respondents.

No. 3:04-CV-676(MRK).

No. 3:04-CV-1727(MRK).

United States District Court, D. Connecticut.

March 28, 2005.

COPYRIGHT MATERIAL OMITTED

Jonathan M. Levine, Silver, Golub & Teitell, Stamford, CT, for Petitioner.

Krishna R. Patel, U.S. Attorney's Office, New Haven, CT, for Respondents.

Joseph Thelemaque, Uncasville, CT, pro se.

MEMORANDUM OF DECISION

KRAVITZ, District Judge.

Joseph Thelemaque is detained by the United States Bureau of Immigration and Customs Enforcement ("BICE") at the Corrigan-Radgowski Correctional Center in Uncasville, Connecticut, pending removal to his native Haiti. Currently pending before this Court are two petitions by Mr. Thelemaque for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed under different docket numbers. Hearing no objection from the parties,¹ the Court hereby consolidates Mr. Thelemaque's two pending habeas petitions, Thelemaque v. Ashcroft et al., No. 3:04CV676(MRK) (lead case), and Thelemaque v. Department of Homeland Security, No. 3:04CV1727(MRK) (member case).²

Mr. Thelemaque's habeas petition in 3:04CV676(MRK) (lead) [doc. # 1] seeks to enjoin Respondents from removing him to Haiti, claiming that the Board of Immigration Appeals ("BIA") misapplied the legal standards for determining whether he was eligible for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT" or "Convention"),³ as implemented by the Foreign Affairs Reform and Restructuring Act ("FARRA"), Pub.L. No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231), and the Department of Justice's corresponding regulations at 8 C.F.R. §§ 208.16-208.18. In particular, Mr. Thelemaque contends that the BIA erred when it concluded that the possibility of Mr. Thelemaque's indefinite detention in the admittedly brutal conditions of Haiti's prisons did not constitute torture within the meaning of CAT, FARRA and the corresponding regulations. Mr. Thelemaque's habeas petition in 3:04CV1727(MRK) [doc. # 1] challenges the constitutionality of his continued detention for more than six months since denial of his BIA appeal and issuance of his final order of deportation, invoking the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

Haiti is a country plagued by great poverty and persistent political instability. It is one of the poorest countries in the world, with living conditions that are brutal and harsh for all but a handful of its citizens. The general populace is chronically under-or unemployed, ill-housed and malnourished.⁴ The country's infrastructure is dilapidated, its public health system is stressed to the breaking point and its educational system is almost nonexistent.⁵ Perhaps not surprisingly, the conditions of Haiti's prisons are even worse. "Substandard" does not even begin to capture the conditions of Haiti's jails. In a word, they are deplorable.

Yet, there is no evidence in the record of this case that Haitian authorities have intentionally sought to make Haiti's prisons miserable in order to cause severe pain and suffering to criminal returnees like Mr. Thelemaque, or that Mr. Thelemaque, in particular, is more than likely to be subject to beatings or illegal punishment. In short, Mr. Thelemaque has not shown that the horrid conditions in Haitian prisons are anything other than the regrettable, though ancillary, results of that nation's pervasive economic and social distress. While not in any way condoning the brutish conditions of Haiti's prisons, the Court concludes that the BIA did not err when it denied Mr. Thelemaque's application for relief from removal under CAT or FARRA. As a result, the Court DENIES Mr. Thelemaque's habeas petition in 3:04CV676(MRK) (lead) [doc. # 1]. In light of the Court's conclusion, unless Mr. Thelemaque chooses to pursue his claims to the Second Circuit, he will be immediately deported to Haiti, thus mooting his Zadvydas claim in habeas petition 3:04CV1727(MRK) (member) [doc. # 1]. The Court DENIES that petition as well.

I.

Mr. Thelemaque, a 44-year old native of Haiti, was admitted to the United States on or about November 27, 1974, as an immigrant. His mother and siblings are United States citizens, as is his thirteen year-old son. Mr. Thelemaque has no known relatives remaining in Haiti.

Mr. Thelemaque has a lengthy criminal record, though only two of his prior convictions are directly relevant here.⁶ On August 15, 1989, Mr. Thelemaque was convicted in the Connecticut Superior Court of robbery in the third degree, in violation of Conn. Gen.Stat. § 53a-136. On August 18, 1989, Mr. Thelemaque was also convicted in the Connecticut Superior Court of possession of narcotics in violation of Conn. Gen.Stat. § 21a-279(a). Based on these two convictions, in March 1999, the former Immigration and Naturalization Service ("INS") initiated proceedings to remove Mr. Thelemaque (who was at that time in INS custody, detained in Oakdale, Louisiana) from the United States as an individual convicted of an aggravated felony and a narcotics crime under Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), and INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), respectively. On June 7, 1999, an Immigration Judge sitting in Oakdale, Louisiana, ordered Mr. Thelemaque removed to Haiti. Mr. Thelemaque appealed that ruling to the BIA, which affirmed the Immigration Judge's decision on October 29, 1999.

On or around December 17, 1999, Mr. Thelemaque filed a habeas corpus petition in the District of Connecticut, Thlemaque v. Reno, et al., No. 3:99CV2461(JBA),⁷ challenging the BIA's affirmance of the Immigration Judge's removal order. Mr. Thelemaque's removal to Haiti was stayed on December 23, 1999, and on August 22, 2002, the District of Connecticut remanded his case to the BIA to have an Immigration Judge determine, in the first instance, whether Mr. Thelemaque was eligible for discretionary relief under INA § 212(c), 8 U.S.C. § 1182(c) (repealed Sept. 30, 1996). See generally INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that the repeal of § 212(c) could not be applied retroactively to deny § 212(c) relief to an alien who pled guilty to a crime prior to 1996).

In proceedings before an Immigration Judge on remand from the District of Connecticut, Mr. Thelemaque sought, among other things, relief from removal under CAT. Mr. Thelemaque's application under CAT alleged that in October 2002, the Haitian government enacted new procedures for the release of criminal returnees from the Haitian National Penitentiary. Id. at ¶ 11-12. According to Mr. Thelemaque, under the new procedures, a criminal returnee can be released from the National Penitentiary only if a close relative appears in person to demand the returnee's release in writing. Id. at ¶ 11. Furthermore, a "close relative" allegedly includes only a parent, grandparent, sibling, aunt or uncle. Id. Because Mr. Thelemaque does not have an eligible relative in Haiti capable of producing a demand for his release pursuant to the alleged new procedures, he asserts that he will be detained indefinitely in prison conditions that he asserts are so "brutal and life-threatening" that they constitute torture as defined by CAT, FARRA and regulations implementing FARRA. See Petition [3:04CV676(MRK) (lead) doc. # 1], at ¶ 8, 12.

On September 22, 2003, the Immigration Judge denied Mr. Thelemaque's application for relief under CAT. Mr. Thelemaque timely filed an appeal, and on March 31, 2004, the BIA affirmed the Immigration Judge's decision, holding that Mr. Thelemaque's claim for relief under CAT was unavailing because the atrocious prison conditions in Haiti, in and of themselves, do not constitute torture within the meaning of the Convention. See In re Thelemaque, attached to Respondents' Mem. of Law in Opp'n [3:04CV1727(MRK) (member) doc. # 6], at Ex. A, at 2-4.

II.

Before addressing the merits of Mr. Thelemaque's claims, the Court must first consider certain preliminary issues.

First, in their briefing to the Court, Respondents also argued that the Department of Homeland Security was not a proper respondent to the petition in 3:04CV1727(MRK) (member). See Respondents' Mem. of Law in Opp'n [3:04CV1727(MRK) (member) doc. # 6], at 7-10. However, by consolidating Mr. Thelemaque's habeas petitions, the Court has rendered any such argument moot, since Mr. Thelemaque's original habeas petition in 3:04CV676(MRK)(lead) [doc. # 1] named the United States Attorney General as a respondent, as well as Dennis Riordan, the Boston District Director of the United States Citizenship and Immigration Services (USCIS) and Ethan Enzer, Officer in Charge of the Hartford office of USCIS. Furthermore, the Court, on its own motion, hereby substitutes newly appointed Attorney General Alberto Gonzales for former Attorney General John Ashcroft, and adds Michael Chertoff, the newly appointed Secretary of the Department of Homeland Security, Bruce Chadbourne, District Director for the Boston BICE Detention and Removal Field Office, and George Sullivan, Interim Officer in Charge for Hartford BICE Detention and Removal Office as additional respondents. See Perez v. Loy, 356 F.Supp.2d 172, 173-74 n. 1 (D.Conn.2005) (ensuring that the two cabinet level officials who may be ultimately responsible for an alien during her detention were respondents).

The Court notes that the recent Supreme Court decision in Rumsfeld v. Padilla, ___ U.S. ___, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004), held that "in habeas challenges to present physical confinement — `core challenges' — the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote...