The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge
This matter comes before the Court upon the application of Petitioner
Giovanni Pisciotta ("Petitioner") seeking a writ of habeas corpus,
pursuant to 28 U.S.C. § 2241, and injunctive and declaratory relief
releasing Petitioner from detention by the Department of Homeland
Security ("DHS") during the pendency of his removal proceedings.
Petitioner asserts that his detention violates his Fifth Amendment right
to due process and deprives him of the protection of the
Eighth Amendment prohibition against excessive bail. Further, Petitioner
argues that these rights continue to be violated as a result of his
ongoing detention. Specifically, Petitioner claims that his rights were
violated when: (1) on July 9, 2003, shortly after the June 20, 2003
reopening of his removal proceedings, the government revoked the terms of
its 1996 determination that Petitioner should be released on $12,000 bond
and instead detained him without setting bond; and (2) on July 14, 2003,
upon an order from an Immigration Judge ("D") releasing Petitioner on
$12,000 bond, the government stayed the order, pursuant to
8 C.F.R. § 1003.19(i)(2), pending its appeal to the Bureau of Immigration
FACTUAL AND PROCEDURAL HISTORY
Petitioner is a citizen of Italy and was admitted to the United States
as a legal permanent resident on May 27, 1967. See Exhibit A to
Declaration of Charles M. G. Parker dated November 14, 2003, ("Parker
Decl."). On August 1, 1986, Petitioner was convicted of third-degree
robbery and first-degree attempted robbery in the Supreme Court of the
State of New York. See Exhibits B and C to Parker Decl. Deportation
proceedings began on October 30, 1987. See Exhibit D to Parker Decl. At
this time, the Immigration and Naturalization Service ("INS") released
Petitioner on $5,000 bond. See Verified Complaint and Habeas Corpus
Petition dated October 23, 2003 ("Petition"), at ¶ 9. On December 20,
1989, while deportation proceedings were pending, Petitioner was
convicted of first-degree attempted rape in the Supreme Court of the
State of New York. See Exhibit E to Parker Decl.*fn1
Upon completing his sentence, Petitioner was released on $12,000 bond
in 1996 and
deportation proceedings resumed. On December 18, 2001, the IJ ordered the
removal of Petitioner in absentia. See Exhibit F to Parker Decl. In late
2002, Petitioner moved to Elizabeth, New Jersey. On May 30, 2003,
pursuant to the December 18, 2001 in absentia order, Petitioner was
arrested by the Bureau of Immigration and Customs Enforcement ("BICE")
and has since been detained in Hudson County, New Jersey. See Petition at
¶ 12; Respondent's Brief dated November 14, 2003 ("Resp. Br."), at 2-3.
On June 20, 2003, the D reopened Petitioner's removal proceedings,
ostensibly on the basis that the Notice to Appear on December 18, 2001
had been served on counsel who did not represent Petitioner. See Resp.
Br. at 3; Exhibit G to Parker Decl. In addition, the IJ transferred
Petitioner's removal proceedings to New Jersey and scheduled a hearing on
the merits of Petitioner's application for relief from removal for on or
about August 15, 2003.
On July 9, 2003, the District Director of New Jersey cancelled the
prior bond and determined that Petitioner should be detained without
bond. Petitioner challenged this decision, and upon review of BICE's
no-bond determination, the D ordered the release of Petitioner under
$12,000 bond on July 14, 2003. See Exhibit I to Parker Decl. On that same
day, BICE filed for an automatic stay of the IJ's order, pursuant to
8 C.F.R. § 1003.19(i)(2), in order to appeal the D's custody ruling. See
Exhibit J to Parker Decl. On or about July 22, 2003, BICE filed its
appeal of the D's bond determination. See Exhibit J to Parker Decl.
On October 8, 2003, the IF conducted a merits hearing on Petitioner's
application for a discretionary waiver of removal, pursuant to Immigration
and Nationality Act ("INA") § 212(c).*fn2
The IJ declined to grant such relief to Petitioner, see Exhibit K to
Parker Decl., and Petitioner has appealed this ruling, see Petition at
On or about October 14, 2003, Petitioner received a Notice from the
BIA, stating that it had received BICE's notice of appeal of the D's
redetermination of the terms of Petitioner's custody. It appears that a
delay in scheduling the briefing and argument in connection with this
appeal resulted when the BIA misplaced the government's appeal. See Resp.
Br. at 3.
On November 17, 2003, the parties were notified by the BIA that the
deadline for submission of briefs on the custody status of Petitioner had
been set for November 28, 2003. On November 24, 2003, upon the parties'
submissions, this Court heard argument on Petitioner's application for a
writ of habeas corpus.
On December 4, 2003, a single member of the BIA affirmed the IJ's
custody determination to release Petitioner on $12,000 bond. Pursuant to
the terms of 8 C.F.R. § 1003.19(i)(2), the decision was stayed for five
days. On December 11, 2003, DHS moved for reconsideration of the BIA's
ruling before a three-member panel and sought an emergency stay of the
BIA's decision pending the determination of its motion for
reconsideration. On December 12, 2003, the BIA granted an emergency stay
and stated it would "adjudicate the motion to reconsider expeditiously."
On January 2, 2004, the BIA granted DHS' motion for reconsideration and
remanded the custody determination to the D. See BIA Decision dated
January 2, 2004. In granting DHS' motion, the BIA indicated it had been
persuaded to affirm the D's initial bond determination of $12,000 because
DHS' predecessor agency had set bond in this amount in 1996 upon
Petitioner's release from state custody, and Petitioner had not been
involved in any "trouble with the law"
since his release. In its decision, the BIA stated that, on
reconsideration, the IJ and the parties should clarify the nature of
Petitioner's 1989 conviction for attempted rape in the first degree, and
that the IJ should consider specifically the fact that Petitioner is a
registered sex offender in New York. See id.