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April 18, 2000


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 disposition.

I. Background*fn1

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 involving 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.

II. Discussion

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 alien.*fn3

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 on ...

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