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.
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
• 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 ...