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October 8, 2002


The opinion of the court was delivered by: Anita B. Brody, Judge.


On July 15, 2002, Oyenike Alaka ("Alaka") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging her continued detention by the Immigration and Naturalization Service ("INS") pending removal proceedings. I will grant the petition.

• Procedural History

Petitioner, Oyenike Alaka ("Alaka"), a native of Nigeria, is a thirty-eight year-old lawful permanent resident of the United States. She first entered this country without inspection in November 1984.*fn1 She became a temporary resident on November 28, 1988.*fn2 She was granted amnesty and became a permanent resident on December 1, 1990. From the time of her initial entry into the United States in 1984, until she became a lawful permanent resident in 1990, Alaka did not leave the United States. Subsequent to becoming a lawful permanent resident in 1990, Alaka has left the United States nine times.*fn3

On June 5, 1992, Alaka pled guilty and was convicted in the United States District Court for the District of Minnesota of aiding and abetting bank fraud under 18 U.S.C. § 1344. She was sentenced to eight months in prison, followed by three months of supervised release, and ordered to pay restitution in the amount of $4,716.68.

On August 8, 2001, Alaka returned to the United States after spending eight months in Nigeria. She applied for admission into the country as a returning lawful permanent resident. INS officials apprehended and detained Alaka at John F. Kennedy Airport when they discovered that she had an outstanding federal warrant for a probation violation relating to her 1992 criminal conviction.*fn4 Alaka was transferred to a detention facility in York, Pennsylvania where she has remained for almost fourteen months. Although the charged probation violation was later dismissed, the INS continued to detain Alaka because of her criminal history, asserting that her criminal conviction made her removable from the United States.*fn5

On November 19, 2001, the INS issued a Notice to Appear,*fn6 advising Alaka that she was an "arriving alien" pursuant to section 212(a)(2)(A)(i)(I) of the Immigration and Naturalization Act ("INA"), codified at 8 U.S.C. § 1182(a)(2)(A)(i)(I), based on her 1992 bank fraud conviction.*fn7 The Notice to Appear also charged that her conviction constituted a crime of moral turpitude within the meaning of INA § 101(a)(13)(C), codified at 8 U.S.C. § 1101(a)(13)(C) (2001),*fn8 and rendered her ineligible for admission into and subject to removal from the United States under INA § 235(b), codified at 8 U.S.C. § 1225(b).*fn9

On January 22, 2002, Alaka petitioned the Immigration Court requesting an independent bond hearing for release from detention pending the outcome of her INS case.*fn10 Alaka's petition was assigned to Immigration Judge Durling ("Judge Durling"), who held a hearing on the matter. He found that Alaka was not a flight risk nor a danger to the community. On March 12, 2002, Judge Durling issued a written opinion granting Alaka's petition and ordering her released on $2500 custody bond.*fn11

On March 13, 2002, the INS appealed the decision of Judge Durling to the Board of Immigration Appeals ("the Board"), contesting Immigration Judge Durling's authority to issue such a bond decision.*fn12 The INS's appeal was coupled with a Motion to Stay the effect of the Immigration Judge's order. Pursuant to the automatic stay provision of 8 C.F.R. § 3.19(2), Judge Durling's order was automatically stayed pending the outcome of the INS appeal.*fn13 On March 14, 2002, the Board granted the INS's motion to stay the Immigration Judge's bond decision.

On July 8, 2002, Alaka was before Judge Durling for another hearing to determine the effect of her foreign convictions. He held that, as a result of her foreign convictions, Alaka had constructively abandoned her status as a permanent resident. Although this interlocutory determination was made, Alaka maintains her status as a lawful permanent resident until a final decision is reached in her immigration proceedings.*fn14

On or about July 15, 2002, Alaka filed this petition for habeas corpus. On July 28, 2002, the Board of Immigration Appeals vacated Judge Durling's March 12, 2002 order that released Alaka on $2500 bond.*fn15 Finally, on August 8, 2002, a hearing was held before Immigration Judge Durling to address Alaka's withholding of removal and Convention Against Torture claims.*fn16

• Procedure under the Immigration and Naturalization Act

As any foreign traveler can attest, passengers arriving into the United States through an international airport terminal must pass through a United States Immigration Service checkpoint before entering the country. All incoming passengers are separated into two lines*fn17: one line for citizens, nationals*fn18 and lawful permanent residents,*fn19 the second line for arriving aliens.*fn20

In the first line, ordinarily, citizens, nationals and lawful permanent residents, whose credentials are in order, merely show their passports and are immediately admitted into the country without further ado. If the trip was short and the permanent resident has not committed certain proscribed acts, a lawful permanent resident alien does not have to demonstrate he or ...

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