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FORD v. QUARANTILLO

April 27, 2001

TROY FORD, PETITIONER,
v.
ANDREA QUARANTILLO, DISTRICT DIRECTOR, INS.



The opinion of the court was delivered by: Lifland, District Judge

MEMORANDUM AND ORDER

Petitioner, Troy Ford (Ford)*fn1 filed this pro se petition for relief pursuant to 28 U.S.C. § 2241.

BACKGROUND

Ford, who is a native citizen of Guyana, entered the United States on a non-immigrant visa in 1992 and stayed beyond the six month period allowed under the visa. On December 16, 1997, Ford pled guilty to a violation of N.J.S.A. 2C:20-2(D) (theft from spouse). On April 17, 1998, he was sentenced to a four year term of imprisonment. On April 16, 1998 Ford pled guilty to a violation of N.J.S.A. 2C-35-7, possession of cocaine with intent to distribute, within 1000 feet of a school. He was sentenced on April 17, 1998 to a four year term of imprisonment.

A Notice to Appear ("NTA") in Removal Proceedings was issued by the INS on May 14, 1999.*fn2 On August 13, 1999 Immigration Judge Daniel A. Meisner ordered that Ford be removed to Guyana. Ford never appealed that decision.

Ford came into INS custody from the New Jersey Department of Corrections on January 26, 2000. On April 5, 2000, the INS sent a presentation for a travel document to the Guyana Consulate in Washington D.C. Guyana has not yet issued the travel documents.

DISCUSSION

Ford claims that the INS is violating his due process rights by continuing to detain him. He does not claim that he has the right to remain in the United States, but requests relief from the extended detention.

The law dealing with the detention of deportable aliens is found in 8 U.S.C. § 1231 which is supplemented by various subsections of 8 C.F.R. § 241. Under § 1231 when deportation of an alien is ordered and that alien has been convicted of aggravated felonies, controlled substance offenses, firearms offenses or other serious crimes, the Attorney General is to keep the alien in custody if the incarceration for the crime has ended and the alien cannot be immediately removed.*fn3 See § 1231. However, the Attorney General cannot hold the alien for more than ninety days. § 1231(a). There are supervised release procedures so an alien can be released and monitored. See §§ 1231(a)(3).

Under certain circumstances, aliens may be detained beyond the ninety day period. § 1231(a)(6). Extended detention is permissible only when it is likely that an alien will avoid removal by fleeing if released, and/or the alien's release poses a serious threat to the community's safety. See § 1231(a); see also 8 C.F.R. § 241.4. Aliens are persons for purposes of the Fifth Amendment and extended detentions violate the Constitution unless (1) the INS conducts a review to determine that detention is necessary to prevent a risk of flight or threat to the community, (2) there are adequate and reasonable provisions for a grant of parole, and (3) there is a possibility of eventual departure. Chi Thin Ngo v. INS, 192 F.3d 390, 391 (3d Cir. 1999) (holding that continued detention of alien whose country of origin had refused to allow his return violated alien's due process rights where the INS' basis for the extended detention was the criminal convictions and no actual inquiry was made whether his threat to community and risk of flight warranted continuation of custody). Due process cannot be satisfied by "rubber stamp" denials of release. Due process requires an evaluation of the individual's current threat to the community and risk of flight. Id. at 398.

The Interim Procedures promulgated by the INS require individualized analysis of the alien's eligibility for parole, present danger to society and willingness to comply with the removal order. Under the Interim Procedures, reviews must be conducted periodically and detainees must be adequately informed about their right to appear, present information and have representation at these review procedures.*fn4 When the INS abides by these Interim Procedures due process is satisfied. Id. at 399. When an alien's country of origin has refused to allow his return, the INS must employ the Interim Procedures (or regulations that are at least as favorable to the alien) in evaluating whether continued detention is justified. Id. at 398, 399.

An alien may also be detained beyond the ninety day time period if the alien conspired or acted to prevent his/her removal, thereby increasing the amount of time it takes to remove the alien. § 1231(a)(1)(C).

In this case, the INS argues that: 1) Ford's continued detention is lawful, and 2) Ford caused the continued detention because prior to telling the INS that he is from Guyana, Ford stated that Jamaica was his native country. (See Respondent's Answer pp. 4-7).

The INS has not presented this Court with any evidence showing that it abided by the Interim Procedures. The record does not contain any documentation which demonstrates that the INS conducted review procedures before determining that Ford should remain detained. As far as the record indicates these procedures ...


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