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September 27, 2000


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


I. Introduction.

This pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 was filed by Jibril Koita, Gladwin Wilson, Maher Omari, Saleh Sherif, Celio De La Cruz, and Anh Le. When the case began, they were all aliens who were being detained by the Immigration and Naturalization Service (INS) while the INS pursued administrative steps to remove them from the United States.

This case is not an attempt to litigate the merits of the removal proceedings at the agency level. Instead, it contests mandatory detention under 8 U.S.C. § 1226(c), INA § 236(c), without opportunity for release under supervision during completion of those proceedings. The petition asserts that mandatory detention violates the Fifth Amendment right to substantive and procedural due process.*fn1

The claims of four of the petitioners have been mooted. The orders of removal for three of them, Gladwin Wilson, Saleh Sherif and Anh Le, have become final and their administrative appeals to the Board of Immigration Appeals (BIA) have been denied. They are thus no longer subject to mandatory detention under section 1226(c), INA § 236(c), although they are being detained under 8 U.S.C. § 1231, INA § 241, while they await removal. The fourth, Celio De La Cruz, has already been removed to the Dominican Republic.

However, Jibril Koita and Maher Omari are still in administrative proceedings and the petition remains viable for them. After review of the case law, we conclude that these petitioners are entitled to habeas relief, but instead of granting the writ unconditionally, we will first give the INS an opportunity to review their cases individually to determine if they should be released on bond.

II. Background.

A. Jibril Koita.

Petitioner, Jibril Koita, a citizen of Gambia, entered the United States in 1989 on a visitor's visa. In January 1995, he was convicted in New York of possession of stolen property in the fifth degree. In June 1995, he applied for and was granted status as a permanent resident alien. In February 1999, he was sentenced in the United States District Court for the District of Delaware to six months for conspiracy to commit bank fraud.

In June 1999, the INS sent Koita a notice to appear, informing him that under 8 U.S.C. § 1182(a)(6)(C)(i), INA § 212(a)(6)(C)(i), the agency intended to remove him for fraudulently failing to reveal on his application for permanent-resident-alien status several arrests in New York in 1994 and 1995 that made him inadmissible under 8 U.S.C. § 1227(a)(1)(A), INA § 237(a)(1)(A). In August 1999, he was notified of an additional ground for removal — that his criminal convictions set forth above were crimes of moral turpitude subjecting him to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), INA § 237(a)(2)(A)(ii). Koita remains in mandatory detention while the INS proceeds against him. He has a hearing scheduled for October 2, 2000, before an immigration judge.

B. Maher Omari.

Petitioner, Maher Omari, is a citizen of Jordan who entered the United States on a student visa in 1989. In October 1998, he pled guilty in federal court to conspiracy to defraud the government and was sentenced to twenty months incarceration. On May 10, 1999, a final order of removal was entered against him on the basis that his crime was an aggravated felony as defined in 8 U.S.C. § 1101(a)(43), INA § 101(a)(43), and that it required his removal under 8 U.S.C. § 1227(a)(2)(A)(iii), INA § 237(a)(2)(A)(iii).

Petitioner requested relief from removal on two grounds; first, that he would be persecuted as a member of a particular social group if he is returned to Jordan; second, that he would be tortured if he is returned. His case was referred to an asylum officer. In July 1999, the asylum officer decided that Omari had a reasonable fear of persecution and referred his case to an immigration judge.

The immigration judge held a hearing and considered Omari's claim of persecution if he is returned to Jordan. The judge also considered his claim of torture under the United Nations Convention Against Torture. On October 8, 1999, under 8 U.S.C. § 1231(b)(3), INA § 241(b)(3), the immigration judge granted Omari withholding of removal on ...

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