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January 9, 2004.

JOHN ASHCROFT, Attorney General of the United States, et al., Respondents

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 Page 2 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 Appeals ("BIA").


  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 Page 3 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 Page 4 The IJ declined to grant such relief to Petitioner, see Exhibit K to Parker Decl., and Petitioner has appealed this ruling, see Petition at ¶ 17.

  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" Page 5 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.


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