The opinion of the court was delivered by: Simandle, District Judge
Presently before the Court are the emergent applications of plaintiff, Robert North, for an order to show cause, temporary restraining order, and preliminary injunction enjoining the defendants, Kevin Rooney, Acting Commissioner of the Immigration and Naturalization Service, and the Immigration and Naturalization Service (INS) from taking him, upon his June 17, 2003 release from federal criminal custody, into Bureau of Citizenship and Immigration Services (BCIS) custody pursuant to a detainer lodged by INS on February 9, 1999. Also before the Court are plaintiff's motions for entry of default and for default judgment in the underlying action pending before the Court in which plaintiff seeks a declaration of United States citizenship. Defendants filed their responsive pleadings to these pending motions on June 12, 2003 and the Court heard oral argument on June 17, 2003. Plaintiff, currently confined at F.C.I. Fairton, appeared at the hearing pro se.
Having considered the arguments and papers submitted by both parties, and for the following reasons, this Court will grant plaintiff's motion for a temporary restraining order and will deny plaintiff's motion for entry of default and for a default judgment. Plaintiff will be released from federal custody on June 17, 2003 to serve the term of his supervised release upon his 1999 criminal conviction pending this Court's hearing on plaintiff's motion for a preliminary injunction on August 1, 2003. *fn1
The following findings of fact and conclusions of law are made pursuant to Fed. R. Civ. P. 65.
Plaintiff filed his Complaint on March 11, 2002 in the United States District Court for the District of Columbia seeking a declaration of United States citizenship pursuant to 8 U.S.C. § 1503(a) and 28 U.S.C. § 2201, seeking judicial review of the defendants' denial of his application for citizenship under 8 U.S.C. § 1452(a). At the time, plaintiff was incarcerated at F.C.I. Fairton, in Fairton, New Jersey, serving a term of imprisonment with respect to a 1999 federal conviction from the Eastern District of Virginia for possession of cocaine with intent to distribute and a parole violation. The federal defendants in the District of Columbia made a motion to dismiss the case for improper venue or to transfer the matter to the district in which plaintiff resides. The Honorable Emmet G. Sullivan, United States District Judge for the District of Columbia, denied defendants' motion to dismiss, and granted defendant's motion to transfer. On December 6, 2002, Judge Sullivan ordered the case transferred to the United States District Court for the District of New Jersey. The case was electronically transferred on April 21, 2003.
On May 6, 2003, plaintiff filed the present motions for preliminary injunction, for entry of default, and for entry of judgment by default. The federal defendants filed an affidavit with the Court on June 6, 2003 seeking an extension of time to respond to plaintiff's motion. AUSA Louis J. Bizzarri attested that the United States Attorney's Office for the District of Columbia never advised his office that the matter had been transferred to the District of New Jersey, that he did not receive the case file until May 27, 2003, and that the file which he did receive did not include physical copies of documents that were electronically filed in the District of Columbia. He also stated that he did not receive this Court's June 3, 2003 letter requesting the defendants to state their position on plaintiff's motions by June 6, 2003 until June 5, 2003. On June 6, 2003, this Court granted defendants' request for an extension and allowed defendants until June 12, 2003 to file responsive pleadings or opposition to plaintiff's pending motions. On June 12, 2003, defendants filed their opposition to plaintiff's motions for preliminary injunctive relief and for entry of default and default judgment.
Meanwhile, on June 11, 2003, plaintiff filed the present motion for a temporary restraining order, again seeking an order enjoining defendants from taking him into BCIS custody upon his release from prison on June 17, 2003. The Court scheduled an emergent hearing on the motion for a temporary restraining order to be held on June 17, 2003, the date when plaintiff was scheduled to be released from prison and delivered to BCIS custody pursuant to an INS detainer. Plaintiff appeared at the hearing pro se.
Plaintiff seeks judicial review of the INS's denial of his application for a certificate of citizenship pursuant to 8 U.S.C. § 1503(a). Plaintiff alleges that he should be granted a certificate of citizenship because he was born on July 10, 1952 in the Republic of Panama to a Panamanian citizen, his mother, and a United States citizen, his natural father, Vearon Allen Widner who was employed by the United States Government. Before 1950, plaintiff's father had resided in the State of Alabama until 28 years of age. (Complaint, ¶¶ 3-5).
Plaintiff says that he lived with his mother and father in Panama until 1957 when his parents separated. Then he went to live with his father in Havana, Cuba until July 28, 1958. By that time, his mother had met a United States Army Sergeant Thomas George North, who helped his mother obtain custody of plaintiff and his older brother, Bernardo Widner. Sgt. North and plaintiff's mother married on October 27, 1960 and on October 31, 1960, Sgt. North adopted plaintiff and his brother. In the legal proceedings to effect the adoption, plaintiff's natural father formally acknowledged his paternity and then gave his consent to the adoption of his two sons by Sgt. North. (Compl., ¶¶ 6-8).
Plaintiff says he first arrived in the United States at Port Charleston, South Carolina on July 28, 1962, at ten years of age. He entered the country "with an immigrant visa on two occasions due to the expediency of the military travel of his parents." (See May 21, 2001 Office of Administrative Appeals ("AAO"), INS, at Exhibit 5, pg. 2 to defendants' opposition). Plaintiff lived with his mother and adoptive father in Tucson, Arizona until October 18, 1964, when he returned to Panama. On September 9, 1966, he returned to the United States where he lived for more than seven continuous years between the ages of thirteen and twenty-one. (Compl., ¶ 9).
On November 6, 1984, plaintiff was convicted in the United States District Court for the District of Maryland on charges of cocaine distribution, possession with the intent to distribute and aiding and abetting, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). (See Judgment of Conviction, Ex. 1 to defendants' opposition). He was sentenced to twelve years in prison and three years on special parole. On July 11, 1989, while incarcerated, INS presented plaintiff with a notice of hearing to determine his deportability. In the proceeding, plaintiff asserted that he was a United States citizen and should not be deported. On November 27, 1989, the Supervisory Attorney General filed a motion to dismiss the deportation proceedings, stating that plaintiff had apparently acquired United States citizenship. The Immigration Judge granted the motion and the deportation proceedings were terminated. (Compl., ¶¶ 10-12).
In 1998, plaintiff was convicted on federal charges of cocaine possession with intent to distribute and running from parole in the United States District Court for the Eastern District of Virginia. He was sentenced on January 8, 1999 to 65 months in prison and five year supervised release. In 1999, INS instituted removal proceedings against plaintiff because of this federal drug conviction and lodged a detainer against him on February 9, 1999. The Immigration Judge ("IJ") administratively terminated the removal proceeding on November 1, 2000, (Def. Ex. 2), but the detainer remains lodged against plaintiff.
While incarcerated, on May 5, 2000, plaintiff filed an application for a Certificate of Citizenship, Form -600. The Acting District Director in Philadelphia denied the application under the Immigration of Nationality Act of 1952. Plaintiff appealed the decision, arguing that the Act does not apply to him because he was born before the Act became effective on December 24, 1952. The AAO affirmed the decision of the Acting District Director on May 21, 2001. (Compl., ¶ 12). *fn2
Plaintiff has been serving his term of imprisonment for the 1998 conviction at F.C.I. Fairton and is scheduled for release on June 17, 2003 to serve the five-year term of supervised release. However, the February 9, 1999 INS detainer remains lodged with the United States Bureau of Prisons ("BOP"), meaning that upon his release from the BOP on June 17, 2003, plaintiff, absent the present temporary restraining order, would be immediately placed into BCIS custody. Plaintiff claims that this denies him the right to a ...