The opinion of the court was delivered by: Rambo, District Judge.
On February 16, 1999 Petitioner Sombat Map Kay filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The
parties have briefed the issues, the court has conducted oral
argument on the petition, and the petition is ripe for
Petitioner was born in Cambodia on March 3, 1974 and "escaped
from Cambodia" with his mother and three siblings in 1979.
Petitioner and his family then spent a number of years in the
refugee camps on the border of Thailand. On March 14, 1985
Petitioner and his family were legally admitted to the United
States as refugees and resettled in Manchester, New Hampshire. On
November 13, 1989 Petitioner adjusted his status to that of
lawful permanent resident, and this status was instated
retroactively to his date of admission, March 14, 1985.
At age fifteen, Petitioner moved out of his family residence to
Lowell, Massachusetts. Petitioner was arrested for armed robbery
when he was seventeen years old. On September 25, 1992 Petitioner
was convicted of three counts arising from a single incident:
armed assault, armed robbery, and breaking and entering. He was
sentenced to four to ten years on these charges. A portion of his
sentence was served at a minimum security prison. Petitioner has
stipulated to other criminal activity prior to his conviction
including: being involved in a gang; smoking marijuana and
drinking alcohol; carrying a gun and a knife; robbing or stealing
from people on less than ten occasions, possibly with a knife or
a gun; and hitting or pushing his girlfriend at least two or
three times. In 1992 a restraining order was issued against
Petitioner. In 1991 Petitioner was arrested and convicted for
intimidation of a witness.
On March 14, 1995 Petitioner was served with an order to show
cause by the Immigration and Naturalization Service ("INS"), and
an INS detainer was lodged against him. On September 9, 1996 an
immigration judge ordered Petitioner deported to Cambodia,
pursuant to the Immigration and Nationality Act ("INA") §
241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii),*fn2 for
commission of an aggravated felony. On September 13, 1996
Petitioner filed a notice of appeal with the Board of Immigration
Appeals ("BIA"); and on December 3, 1997 Petitioner was taken
into INS custody upon his release from state incarceration.
Petitioner has participated in anger management and narcotics
and alcoholics anonymous programs while in prison. Petitioner has
had two minor, non-violent, disciplinary problems while in prison
non-approved clothing and a banana in his cell.
On April 30, 1998 the BIA dismissed Petitioner's appeal. On
July 29, 1998 Petitioner was reviewed for supervised release by
the INS pursuant to the Criminal Alien Review Panel program. The
review panel found that Petitioner was not credible, that he
refused to accept responsibility for his actions, and that he had
the potential to be "very dangerous." The panel recommendation
was that they were unable to conclude that Petitioner, upon being
released from INS custody, would not pose a threat to the
community, and the district director concurred.
On September 17, 1999 the district director conducted a custody
review of Petitioner. The district director filed a preliminary
determination on that date recommending that Petitioner not be
released on parole as a result of "the severity of the
subject['s] past convictions and the lack of credibility of his
statements." (Resps.' Opp. to Pet.'s Br. Addressing Ngo, Ex. D at
7.) As of this date, no final determination has been filed. At
oral argument, INS counsel stated that another review of
Petitioner's detention would not likely be undertaken until a
final determination is made on the September 1999 custody review.
(Oral Arg. Transcript (hereinafter "N.T.") at 26.)
Petitioner has been in continuous custody since September 1992.
The INS has been unable to effect the deportation of Petitioner
to Cambodia. In fact, the INS has been unable to convince
Cambodia to accept deportees in general. The INS views Petitioner
as an alien whose immediate repatriation is impossible or
impracticable. As of March 11, 1999, the INS had not requested
travel documents for Petitioner from the Cambodian government,
and no contrary evidence has been produced to the court as of the
time of this memorandum and order.
Petitioner denies that he committed the crime for which he was
convicted. He has admitted that he sometimes has a problem with
his temper. He also admits that he does not like or trust the
police. However, he testified that the anger management course
taught him how to deal with anger and how to cope.
Petitioner filed the instant petition for writ of habeas corpus
on February 16, 1999. The parties filed briefing on the petition,
as well as supplemental briefing concerning court decisions
subsequent to their original briefing. On March 27, 2000 the
court conducted oral argument on the legal issues presented in
the instant petition.
The central issue in the case is whether the prolonged
detention of Petitioner, a legal resident alien subject to a
final order of deportation for committing a serious crime, may be
violative of due process when his country of origin refuses to
allow his return. This presents a different issue from that
encountered in the Third Circuit's recent decision in Ngo v.
Immigration and Naturalization Service, 192 F.3d 390 (3d Cir.
1999), where the petitioner was an excludable, not a deportable
Petitioner is being detained by the INS pursuant to statutory
authority. The current statutory framework allows the INS to
detain removable aliens, defined to encompass both excludable and
deportable aliens, beyond the 90 day "removal period." See
8 U.S.C. § 1231(a)(6), INA § 241(a)(6). An accompanying
regulation grants the district director, an INS employee, the
discretion to release an alien into the community pending removal
under certain circumstances:
The district director may continue in custody any alien . . .
removable under section 237(a)(1)(C), 237(a)(2), or 237(a)(4)
of the Act, or who presents a significant risk of noncompliance
with the order of removal beyond the removal period, as
necessary, until removal from the United States. If such an
alien demonstrates by clear and convincing evidence that the
release would not pose a danger to the community or a
significant flight risk, the district director may, in the
exercise of discretion, order the alien released from custody