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EDWARDS v. BLACKMAN

May 27, 1999

MICHAEL EDWARDS, PETITIONER,
v.
J. SCOTT BLACKMAN, INS DISTRICT DIRECTOR, RESPONDENT.



The opinion of the court was delivered by: McCLURE, District Judge.

MEMORANDUM

BACKGROUND:

On April 12, 1999, petitioner Michael Edwards commenced this action with the filing of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Edwards is a permanent resident alien whose deportation was ordered on January 14, 1999. On the same date, he was taken into custody by the Immigration and Naturalization Service (INS). At a hearing on February 2, 1999, an immigration judge denied release on bond during administrative review of the deportation order. The immigration judge determined that Edwards was subject to mandatory detention pursuant to § 236(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1226(c). Edwards seeks habeas relief as it relates only to his continued detention.

Before the court are the petition and a motion by Edwards for a temporary restraining order and stay of deportation, which we have construed as a motion for a preliminary injunction and stay of deportation. See Order of Court dated April 20, 1999.

DISCUSSION:

I. STATEMENT OF FACTS

According to the petition, Edwards is a 29-year-old citizen of Jamaica who has resided in the United States for approximately 19 years. He is married to a U.S. citizen and is the father of two children who are U.S. citizens.

On July 9, 1991, in Hudson County, New Jersey, Edwards entered a plea of guilty to charges of possession of a controlled dangerous substance (cocaine) and possession of a controlled dangerous substance (cocaine) within 1,000 feet of school property. He was sentenced to concurrent terms of five years' incarceration, with 18 months' parole ineligibility.*fn1

Based on the conviction, the INS issued an "Order to Show Cause and Notice of Hearing" charging that Edwards was deportable pursuant to INA § 241(a)(2)(A)(iii) (conviction of an aggravated felony) and (B)(i) (conviction of a controlled substance violation), 8 U.S.C. § 1251(a)(2)(A)(iii), (B)(i).*fn2 The deportation was not pursued during Edwards' incarceration, and he apparently was released by the State of New Jersey either on parole or at the expiration of his sentence. The release from criminal custody occurred apparently before October 9, 1998 (see Edwards' reply brief at 13).

At a bond hearing in 1998, Edwards was released on bond by an immigration judge. However, at the deportation hearing on January 14, 1999, an immigration judge determined that Edwards was not eligible for release on bond because the new provisions of the INA made detention mandatory for removable aliens convicted of offenses such as Edwards had been. The immigration judge denied relief based on Matter of Noble, Int. Dec. 3301, 1997 WL 61453 (BIA 1997), a determination Edwards appealed to the Board of Immigration Appeals.

II. RELEVANT STATUTORY PROVISIONS

The government argues that the court lacks jurisdiction to hear Edwards' petition. The statutory provisions supporting this argument read:

(c) Detention of ...


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