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De Souza v. New Jersey Dep't of Corrections

June 21, 2010

TREVOR DE SOUZA, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the Department of Corrections.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2009

Before Judges R. B. Coleman and Graves.

Trevor De Souza appeals from a final decision of the New Jersey Department of Corrections (DOC) placing him in medium custody at the prison facility in which he is incarcerated. The DOC denied De Souza reduced custody status because he is subject to an active detainer issued by the United States Department of Homeland Security's Bureau of Immigration and Customs Enforcement (ICE). We affirm.

De Souza, a native of Guyana, has been living in the United States since 1981. Although De Souza's brief alleges that he has been a "legal permanent resident" of the United States since 1981, the record on appeal contains no proof of his immigration status. On April 30, 2004, De Souza was sentenced to a term of incarceration not to exceed fifteen years for theft by deception and uttering worthless checks. On June 10, 2004, the DOC referred De Souza's file to ICE. ICE responded to the DOC that it was investigating De Souza on June 30, 2004. On October 13, 2004, ICE issued an immigration detainer*fn1 against De Souza.

In June 2007, Northern State Prison received a faxed letter purporting to be from the Department of Homeland Security, instructing it to "withdraw any letters of interest or Department of Homeland Security Detainers lodged against [De Souza]." In an email dated June 11, 2007, ICE indicated that the faxed letter was probably a forgery and that, according to its records, De Souza "has a final order of removal on file and the detainer should remain active."

De Souza was transferred to Riverfront State Prison on June 26, 2008. On July 14, 2008, the DOC's Institutional Classification Committee (ICC) classified De Souza as a medium security prisoner because of the active ICE detainer in his file. De Souza appealed the decision to the acting prison administrator. On August 11, 2008, the acting administrator affirmed the determination of the ICC. De Souza then filed the present appeal.

On appeal, De Souza makes the following arguments:

POINT I: APPELLANT MEETS THE CRITERIA FOR REDUCED CUSTODY STATUS IN THE DEPARTMENT OF CORRECTIONS.

POINT II: ALL PRISONERS OF THE NEW JERSEY DEPARTMENT OF CORRECTIONS IS [SIC] CONSIDERED DETAINED WHETHER A PRISONER IS IN MEDIUM, MINIMUM, WORK RELEASE OR HALFWAY HOUSE STATUS.

POINT III: A LEGAL IMMIGRANT, WHO HAS BEEN PROPERLY RECEIVED INTO THE UNITED STATES AND INSPECTED BY AN IMMIGRATION OFFICER, IS ENTITLED TO ALL OF THE RIGHTS AND PRIVILEGES AS A UNITED STATES CITIZEN.

POINT IV: THE DEPARTMENT OF CORRECTIONS UNWRITTEN POLICY DOES NOT PROVIDE THE SUFFICIENT PROCEDURAL PROTECTION OF THE PRISONER'S LIBERTY INTEREST TO COMPLY WITH THE FOURTEENTH AMENDMENT'S DUE PROCESS REQUIREMENTS.

POINT V: EXCESSIVE BAIL SHALL NOT BE REQUIRED, EXCESSIVE FINES SHALL NOT BE IMPOSED, AND CRUEL AND UNUSUAL ...


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