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De Souza v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 PUNISHMENTS SHALL NOT BE INFLICTED.

POINT VI: ARBITRARY AND CAPRICIOUS DECISION OF THE CLASSIFICATION COMMITTEE VIOLATES THE FIFTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND ARTICLE I ¶ 1 OF THE NEW JERSEY CONSTITUTION.

POINT VII: THE ACTIONS OF THE NEW JERSEY DEPARTMENT OF CORRECTIONS IS A DIRECT VIOLATION [SIC] HUMAN TRAFFICKING LAW.

It is well-settled that prisoners do not enjoy a constitutionally-protected right to a less restrictive custody status unless a change in status imposes "'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed. 2d 418, 430 (1995)). Otherwise, "[t]he Supreme Court [of the United States] has generally declined to recognize a liberty interest warranting due-process protection where the prisoner's status was subject to change by authorities without proof of misconduct." Jenkins v. Fauver, 108 N.J. 239, 248 (1987). "The Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed." Sandin, supra, 515 U.S. at 480, 115 S.Ct. at 2298, 132 L.Ed. 2d at 427 (internal quotations omitted). "Classification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the Department of Corrections." Smith, supra, 346 N.J. Super. at 30.

The DOC's discretion in imposing a custody status is guided by its regulations. Those regulations declare that "[a] reduction in custody status is a privilege and not a right." N.J.A.C. 10A:9-4.2. In exercising its discretion to impose a custody status, the ICC may base its determination on "[a]ny reason which, in the opinion of the Administrator and the I.C.C., relates to the best interests of the inmate or the safe, orderly operation of the correctional facility or the safety of the community or public at large." N.J.A.C. 10A:9-4.5(a)(9).

The regulations also contain specific provisions addressing the custody status of inmates subject to detainers. Pursuant to N.J.A.C. 10A:9-4.6(n), reduced custody status is not available to an inmate subject to a detainer, unless one of three exceptions is met. The regulation provides:

Inmates with detainers from jurisdictions other than New Jersey shall not be eligible to be considered for reduced custody status unless the following provisions apply:

1. The detainers for adjudicated offenses are for concurrent sentences which do not exceed the maximum of the term currently being served; or

2. An inmate has applied under the Interstate Agreement on Detainers (I.A.D.) for disposition of the detainer and the inmate is not brought to trial within 180 calendar days from the date of the prosecuting authority's receipt of Form II and no court-ordered continuances were granted; or

3. A prosecutor has applied under the Interstate Agreement on Detainers (I.A.D.) for disposition of the detainer and the inmate is not brought to trial within 120 calendar days from the date of the inmate's arrival at the receiving state and no court ordered continuances were granted. [N.J.A.C. 10A:9-4.6(n) (emphasis added).]

Subsection (v) of the same regulation provides that "[f]oreign born inmates, excluding U.S. territories and possessions, shall be eligible to be considered for reduced custody status provided the U.S. Immigration and Customs Enforcement (ICE) has not responded to referrals within 120 calendar days." N.J.A.C. 10A:9-4.6(v).

In the present case, the DOC clearly acted consistently with its regulations in imposing medium custody status on De Souza. ICE responded to the DOC's referral within the required 120 days and then lodged a detainer against De Souza.

De Souza has not submitted any evidence that the detainer was removed or that any of the exceptions set forth in N.J.A.C. 10A:9-4.6(n) apply. We are bound to affirm an administrative decision of the DOC unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record. Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). We find no reason to reverse the DOC's determination that De Souza is ineligible for reduced custody status pursuant to N.J.A.C. 10A:9-4.6(n) and -4.6(v).

De Souza's arguments alleging violations of his constitutional rights and the New Jersey Human Trafficking Law, N.J.S.A. 2C:13-8, are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We note only that De Souza was not denied reduced custody status based solely on his national origin; he was denied reduced custody status because ICE issued a detainer against him based on its evaluation of De Souza's immigration status. The Attorney General recently reported that "ICE's New Jersey field office issued detainers in less than fifteen percent of the total cases referred by New Jersey law enforcement from October 2007 through September 2008." Fajardo-Santos, supra, 199 N.J. at 532. There is simply no basis in the record for us to conclude that De Souza has been discriminated against because of his national origin or for any reason other than the presumably legitimate reason related to his immigration status.

Affirmed.


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