The opinion of the court was delivered by: Lifland, District Judge
Petitioner, Troy Ford (Ford)*fn1 filed this pro se
petition for relief pursuant to 28 U.S.C. § 2241.
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.
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
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.
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
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 ...