Zadvydas v. Caplinger, Civil Action No. 96-0810.

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Writing for the CourtFallon
Citation986 F.Supp. 1011
PartiesKestutis ZADVYDAS, Plaintiff, v. John B.Z. CAPLINGER and Immigration and Naturalization Service, Defendants.
Docket NumberCivil Action No. 96-0810.
Decision Date30 October 1997
986 F.Supp. 1011
Kestutis ZADVYDAS, Plaintiff,
v.
John B.Z. CAPLINGER and Immigration and Naturalization Service, Defendants.
Civil Action No. 96-0810.
United States District Court, E.D. Louisiana.
October 30, 1997.

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Robert F. Barnard, Federal Public Defender, New Orleans, LA, for Kestutis Zadvydas.

Matilda Ann Baker, U.S. Immigration & Naturalization Service, New Orleans, LA, Kathryn Weekley Becnel, U.S. Atty.'s Office, New Orleans, LA, for John B.Z. Caplinger, Immigration and Naturalization Service.

ORDER AND REASONS

FALLON, District Judge.


Before this Court is petitioner Kestutis Zadvydas' objection to the report and recommendation of United States Magistrate Judge Louis Moore, Jr., which recommends that the petitioner's application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, be denied. For the reasons that follow, the petitioner's objection is sustained in part, in that the Court finds that the petitioner's detention pending deportation violates his right to substantive due process, and denied in part, in that it is denied in all other respects. The petition for writ of habeas corpus is GRANTED subject to the conditions hereinafter described.

I.
BACKGROUND:

The petitioner was born on November 21, 1948 in a displaced persons' camp in a region of Germany governed by the United States following World War II. His parents were from Lithuania but it is not clear whether either or both were ever citizens of that country.1 In 1956, at the age of 8, petitioner was admitted to the United States in connection with a program for the relocation of displaced persons.

On December 8, 1966 petitioner was convicted in the New York Supreme Court, Queens County, of attempted robbery, third degree. On February 7, 1974 he was convicted in New York Supreme Court, Kings County, for attempted burglary, third degree.

The Immigration and Naturalization Service (INS) issued an order to show cause on July 6, 1977 charging petitioner as deportable. On July 13, 1977 petitioner was granted release on his own recognizance and allowed to remain at large pending disposition of his deportation case.

In July 1982 the INS notified petitioner that his hearing before an immigration judge had been rescheduled to August 25, 1982. He failed to appear for his August hearing. He was not heard from for 10 years. INS sent registered letters to his last known address in an attempt to find him. Petitioner apparently moved and claims he never received the letters. During this decade he married, parented a child, was gainfully employed, filed income tax returns, and obtained an extension or reissuance of his immigration card (green card).

On August 17, 1992 petitioner was convicted in Circuit Court of Fairfax County, Virginia for a 1987 offense of possession of a controlled drug (Cocaine) with intent to distribute. Petitioner turned himself in to the police in Houston and was removed to Virginia where he faced the drug charges which

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led to his conviction. He was sentenced to serve 16 years with 6 years suspended. He served 2 years of his sentence and was released on parole in January 1994. He was immediately taken into custody by the INS and deportation proceedings were begun again. The INS detained the petitioner without bond based upon his aggravated felony conviction. A bond determination hearing was held and the Immigration Judge denied the petitioner's request for a change in status ordering that he remain in custody without bond. The Immigration Judge based this decision on the likelihood that the petitioner would fail to appear for future immigration hearings because of his prior history. The Board of Immigration Appeals (BIA) denied petitioner's appeal.

On March 29, 1994, petitioner's deportation hearing was held. He admitted all allegations and was found deportable. Seeking relief from deportation, the petitioner applied for a waiver under the Immigration and Nationality Act, which was denied on April 26, 1994. The petitioner was ordered deported from the United States to Germany.

In May of 1994, the INS Officer-in-Charge (OIC) in Oakdale, Louisiana began the petitioner's deportation which, as of today, has still not occurred. Although the petitioner immigrated from Germany and represented to the Immigration Judge he was a German citizen, the German government informed the INS that the petitioner is not a German citizen. Rather, he was born in a German holding camp; his parents were once residents of Lithuania. Lithuania has also denied the petitioner's citizenship. Thus, the petitioner is "stateless" and is being detained indefinitely since the INS is unable to find a country that will claim him.2

The petitioner has applied to this Court for habeas corpus relief on grounds that his indefinite detention pending deportation is unconstitutional. The petitioner asserts the following arguments: 1) that he never made a knowing waiver of his constitutional rights, including his right to counsel; 2) that his detention violates international law; 3) that his detention violates due process; 4) that his detention is in effect one for life and thus violates the Eighth Amendment's prohibition against cruel and unusual punishment.

After a thorough review of the record, Magistrate Judge Louis Moore recommended that the petitioner's request for habeas corpus relief be denied. Judge Moore found that the continued detention of the petitioner was statutorily authorized and that the Attorney General did not abuse her discretion in detaining the petitioner. Judge Moore based his finding on the petitioner's prior failure to appear for his initial deportation proceeding and his prior convictions. In addition, Judge Moore found that the petitioner participated knowingly in his proceeding and that his waiver of his right to counsel was voluntary. Lastly, Judge Moore found that neither International Law nor the Eighth Amendment were violated. Because the INS' efforts to deport the petitioner remained ongoing, Judge Moore reasoned that the petitioner was not being arbitrarily imprisoned for an indefinite amount of time.

The petitioner now moves this Court to reconsider Judge Moore's report and recommendation under 28 U.S.C. § 636(b)(1)(C). Petitioner asserts that Judge Moore erred in finding that petitioner's original hearing comported with due process and in finding that petitioner's detention was constitutional. The INS urges its original arguments but also asserts that, because of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Judge Moore as well as this Court has no jurisdiction to review any claims stemming from the petitioner's deportation order.

II.
JURISDICTION OF THE COURT

Before considering the merits of this cause, it is incumbent on the Court to first address the jurisdictional issue.

The Illegal Immigration and Reform and Immigrant and Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, signed into law by President Clinton

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on September 30, 1996, entirely redefined the scope and/or availability of judicial review of immigration orders and decisions. Section 306 of the IIRIRA rewrote 8 U.S.C. § 1252 (§ 242 of the Immigration and Nationality Act) and provides limits on judicial review of immigration matters. Section 242(g) of the Immigration and Nationality Act ("INA"), as amended by IIRIRA, provides as follows:

(g) EXCLUSIVE JURISDICTION. Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under [the Immigration and Nationality Act ("INA")].

See IIRIRA § 306. Most of the amendments to the INA made pursuant to the IIRIRA do not effect habeas corpus petitions filed prior to the effective date of April 1, 1997. Section 1252(g), however applies retroactively, "without limitation to claims arising from all past, pending or future exclusion, deportation or removal proceedings." Dorean Vayspitter v. United States General Attorney, 1997 WL 299372, *3 (E.D.La. June 3, 1997); IIRIRA section 306, as amended October 11, 1996 Pub.L. No. 104-302, 110 Stat. 3656, 3657.

Because of Section 1252(g), the Government contends that under the clear terms of § 242(g) of the INA, as amended by the IIRIRA, this Court lacks jurisdiction to entertain the petitioner's claims. In support of their contention, the government cites two recent decisions, Yang v. I.N.S., 109 F.3d 1185 (7th Cir.1997) and Safarian v. Reno, 968 F.Supp. 1101 (E.D.La. 1997). In Yang, the Seventh Circuit held that under § 242(g) the district courts are precluded from exercising jurisdiction over deportation-related matters pursuant to 28 U.S.C. § 2241 or any other provision of law. In so holding, the Yang court emphasized that, "Congress wanted to expedite the removal of criminal aliens from the United States by eliminating judicial review, not to delay removal by requiring aliens to start the review process in the district court rather than the court of appeals." Yang, 109 F.3d at 1195. Next, the government cites Safarian, supra, in which the United States District Court for the Eastern District of Louisiana held that, "the express provisions of the IIRIRA clearly remove jurisdiction under any statute, including a right to habeas corpus under § 2241." According to the Government, only by divesting the federal courts of the power to review agency decisions through the writ of habeas corpus will the "streamlined appeal and removal process" intended by Congress be achieved. H.Rep. No. 104-469(I), 104th Cong., 2d Sess. 359, 463 (1996) (reproduced at 1996 WL 168955).

In his supplemental memorandum on jurisdiction the petitioner argues...

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  • Martinez v. McAleenan, 19-cv-2627 (NSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 14, 2019
    ...within this country who face the risk of expulsion are entitled to the procedural safeguards of due process." Zadvydas v. Caplinger , 986 F. Supp. 1011 (E.D. La. 1997) (" Zadvydas I "). The Supreme Court has articulated that "once an alien gains admission to a country and begins to develop ......
  • Sabino v. Reno, No. CIV. A. H-97-3884.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 1, 1998
    ...that were pending before April 1, 1997. See, e.g., Gutierrez-Martinez v. Reno, 989 F.Supp. 1205 (N.D.Ga.1998); Zadvydas v. Caplinger, 986 F.Supp. 1011 (E.D.La.1997); United States ex rel. Morgan v. McElroy, 981 F.Supp. 873 (S.D.N.Y.1997); Ozoanya v. Reno, 979 F.Supp. 447 (W.D.La. 1997); Jur......
  • Zadvydas v Davis, 99-7791
    • United States
    • United States Supreme Court
    • June 28, 2001
    ...In October 1997, a Federal District Court granted that writ and ordered him released under supervision. Zadvydas v. Caplinger, 986 F. Supp. 1011, 1027-1028 (ED La.). In its view, the Government would never succeed in its efforts to remove Zadvydas from the United States, leading to his perm......
  • Hermanowski v. Farquharson, No. 97-220L.
    • United States
    • Rhode Island Supreme Court
    • March 1, 1999
    ...Federal courts have acknowledged that indefinite detention is not precluded by the immigration statutes. See Zadvydas v. Caplinger, 986 F.Supp. 1011, 1025 (E.D.La.1997); Tran v. Caplinger, 847 F.Supp. 469, 473-74 (W.D.La.1993). In fact, IIRIRA eliminated the six month limitation on detentio......
  • Request a trial to view additional results
15 cases
  • Martinez v. McAleenan, 19-cv-2627 (NSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 14, 2019
    ...within this country who face the risk of expulsion are entitled to the procedural safeguards of due process." Zadvydas v. Caplinger , 986 F. Supp. 1011 (E.D. La. 1997) (" Zadvydas I "). The Supreme Court has articulated that "once an alien gains admission to a country and begins to develop ......
  • Sabino v. Reno, No. CIV. A. H-97-3884.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 1, 1998
    ...that were pending before April 1, 1997. See, e.g., Gutierrez-Martinez v. Reno, 989 F.Supp. 1205 (N.D.Ga.1998); Zadvydas v. Caplinger, 986 F.Supp. 1011 (E.D.La.1997); United States ex rel. Morgan v. McElroy, 981 F.Supp. 873 (S.D.N.Y.1997); Ozoanya v. Reno, 979 F.Supp. 447 (W.D.La. 1997); Jur......
  • Zadvydas v Davis, 99-7791
    • United States
    • United States Supreme Court
    • June 28, 2001
    ...In October 1997, a Federal District Court granted that writ and ordered him released under supervision. Zadvydas v. Caplinger, 986 F. Supp. 1011, 1027-1028 (ED La.). In its view, the Government would never succeed in its efforts to remove Zadvydas from the United States, leading to his perm......
  • Hermanowski v. Farquharson, No. 97-220L.
    • United States
    • Rhode Island Supreme Court
    • March 1, 1999
    ...Federal courts have acknowledged that indefinite detention is not precluded by the immigration statutes. See Zadvydas v. Caplinger, 986 F.Supp. 1011, 1025 (E.D.La.1997); Tran v. Caplinger, 847 F.Supp. 469, 473-74 (W.D.La.1993). In fact, IIRIRA eliminated the six month limitation on detentio......
  • Request a trial to view additional results

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