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April 8, 2004.

JOHN D. ASHCROFT, et. al, Respondents

The opinion of the court was delivered by: YVETTE KANE, District Judge


Petitioner Farouk Abdel-Muhti, a detainee of the Bureau of Immigration and Customs Enforcement ("ICE"), is subject to a final order of removal dated September 25, 1995, to deport him to either Jordan or Israel. (Doc. No. 8, Ex. 1). He filed this habeas corpus petition, brought pursuant to 28 U.S.C. § 2241, in the District Court for the District of New Jersey on November 6, 2002. On June 3, 2003, after Petitioner was moved to the York County Prison, his case was transferred to this Court. An Amended Verified Petition was filed on September 11, 2003. (Doc. No. 8). A hearing on the petition was conducted on March 30, 2004.*fn1 Petitioner alleges, inter alia, that his continued detention while awaiting removal, now approaching two years, is in violation of § 241(a)(6) of the Immigration and Nationality Act, as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). For the reasons explained below, this Court must agree. Accordingly, his release will be ordered under conditions of supervision set forth in 8 U.S.C. § 1231(a)(3) and implementing regulations.

I. Background

  Petitioner represents, and ICE has produced no evidence to refute the claim, that he is a Palestinian who was born in 1947 in the West Bank in Ramallah. At the time, the West Bank was part of "Mandate Palestine," ruled by Britain. Of course, since that time, the area has been governed by the Hashemite Kingdom of Jordan from 1948 to 1988, and is now classified as a "territory under foreign military occupation." (Doc. No. 8, Ex. C; Aff. No. 6 of Cobban).

  The first record of Petitioner's entry into the United States is on November 18, 1963, when, at the age of sixteen, Petitioner entered the United States as a visitor for pleasure under the name of George Muhti Nasser. (Doc. No. 12, Ex. A). On April 21, 1964, approximately five months after his arrival, he was deported to Honduras after overstaying his visa. Less than a year later, on March 31, 1965, he re-entered the United States under the name of Jorge Alberto Muhti-Nasser and represented to immigration officials that he was a United States citizen born in Puerto Rico. The following month, he informed immigration officials that he was from Honduras. On October 5, 1965, he was convicted of illegal re-entry and, within a month, he "self-deport[ed] to Peru." (Doc. No. 17, Ex. C at 1). During this time, he also gave officials various conflicting dates of birth. (See, e.g., Doc. No. 1, Part 17, Ex. 2, April 3, 1964 Aff. (birth date of June 25, 1944); Ex. 8, record of sworn statement (birth date of June 17, 1944)).

  In September 1971, Petitioner illegally re-entered the United States without inspection and was placed in deportation proceedings. On November 5, 1975, he reported to immigration officials for the first time that he was Palestinian. He was immediately granted the discretionary relief of voluntary departure with an alternate order of deportation. (Doc. No. 8, Ex. D). He failed to depart as agreed and therefore, the order became a final order of removal. He was released under an order of supervision, with a bond, pending removal. In July 1982, he failed to report as ordered. (Doc. No. 8, Ex. E at 3 (notation)). Petitioner's April 26, 2002 Detention

  Approximately eleven years later, immigration officials became aware of Petitioner's whereabouts following his May 7, 1993, arrest for 1st degree forcible rape, forcible sexual assault, assault with intent to cause physical injury, menacing in the 2nd degree and criminal possession of a weapon in the 4th degree. On June 29, 1993, he pled guilty to one count of attempted assault.*fn2 His immigration case was reopened on the INS's unopposed motion, and Petitioner was released on a $15,000.00 bond pending a hearing. (Doc. No. 8, Ex. E). Petitioner failed to appear for a September 25, 1995 hearing. He had been ordered removed to Palestine in 1975 (Doc. No. 8, Ex. D), and then following the motion to re-open (Doc. No. 8, Ex. E), he was subsequently ordered removed to either Jordan or Israel in absentia under the name Faruk Mahmoud Abdel-Muhti. (Doc. No. 8 at 16; Doc. No. 1, Part 17, Ex. 43). Petitioner filed a motion to re-open on October 5, 1995, providing evidence of an emergency stay in the hospital that prevented him from appearing at the hearing. (Doc. No. 8, Ex. G, Aff. of Farouk Abdel-Muhti). The motion was opposed by the Government and eventually denied. (Doc. No. 1, Part 22, Suppl. Ex. 47). However, it was not until April 26, 2002 that Petitioner was taken into custody on the September 25, 1995 removal order. He has been in continuous detention since that date. During the more recent proceedings, Petitioner has given his date of birth as August 9, 1947 (Doc. No. 1, Part 2, verified habeas petition); July 17, 1944 (Doc. No. 10, Ex. G, attach, to motion to re-open); and September 1947 (Doc. No. 1, Part 17, Ex. 39, oral representation to IJ in 1994). November 25, 2002 Custody Review

  While in custody, Petitioner filed a Request for Custody Review with the Headquarters Post-order Detention Unit ("HQPDU"), which was denied in a November 25, 2002, "Decision to Continue Detention." The HQPDU Director/Designated Representative who reviewed Petitioner's request stated as follows:
The Service has requested a travel document from the Embassy of Jordan and the Embassy of Honduras. The Embassy of Jordan has refused to issue a travel document. The Embassy of Honduras has advised the INS that they are still conducting an investigation in Honduras to verify your information. However, it should be noted that you have not provided sufficient evidence to prove you [sic] nationality and identity. In fact, you have given conflicting information during three sworn statements. On March 31, 1965, you stated that you were a U.S. citizen born in Puerto Rico. On April 1, 1965, you stated that you were Honduran. On November 5, 1975, you stated that you were Palestinian born in Israel. Other information available to the INS shows that you may have been born in Cuba.*fn3 You have also used at least ten different aliases. It would not be proper for the INS to release a person whose identity can not [sic] be verified. You are required to provide sufficient evidence to prove your identity and nationality. You must also attempt to get a travel document on your own behalf. You must contact your Embassy and provide them with enough evidence to secure a travel document.
(Doc. No. 17, Ex. B at 2). Thereafter, Petitioner's counsel continued their efforts to secure travel documents from any country to which Petitioner had a connection. A legal assistant, MacDonald Scott, met with Ahmad Ibrahim, a man who knew Petitioner in Palestine and in New York; had further conversations with the Honduran Consulate; contacted the Palestinian Liberation Organization ("PLO") Mission in Washington, DC; contacted the Egyptian consulate for possible entry into Palestinian lands through that country; interviewed INS officials regarding a chartered flight to Palestine via Egypt and the statistics of successful Palestinian deportations; and contacted Monica Tarazi, an expert in the area, about the possibility of Israel accepting Palestinian deportees. (Doc. No. 10, Exs. C & D, Aff. & Suppl. Aff. of Scott).

  November 25, 2003 Custody Review

  On June 9, 2003, Petitioner filed another Request for Custody Review, citing the lack of success in obtaining travel documents from the Jordanian and Egyptian Governments as well as the refusal of the Palestinian National Authority to issue documents. (Doc. No. 17, Ex. A). A Post Order Custody Review was conducted on November 25, 2003. (Doc. No. 17, Ex. F at 5). Petitioner was not present at the review and the Reviewing Officer did not interview Petitioner at any time prior to making his recommendation to continue detention. However, in filling out the "Post Order Custody Review Worksheet," under the subsection addressing "Travel Documents Status/History," the Reviewing Officer listed the "aliens [sic] attempts to get travel documents and status (to include any actions alien has taken to prevent removal . . .)" as follows:

  With respect to attempts to repatriate Petitioner to Jordan, the Reviewing officer documented the following actions:

On May 20, 2002, a travel document request was forwarded to the Consulate General of Jordan. The presentation contained a copy of a birth certificate provided Mr. Abdel-Muhti. On June 14, 2002, the Consulate General of Jordan denied the travel document issuance.
On June 2002, a travel document request was sent the Embassy of Jordan. On October 8, 2002, the Hashemite Kingdom of Jordan refused to issue a travel document stating that identity could not be established.
Id. at 5. The Reviewing Officer documented the following attempts that were made to obtain travel documents from Palestine:
On March 6, 2003, Bret Bradford at BICE HQ advises that Headquarters is attempting to procure a travel document from the Palestine Mission in Washington, D.C.
On May 30, 2003, Bret Bradford at BICE HQ advised that travel document still pending.
On September 30, 2003, I contacted BICE Headquarters inquiring about the status of a travel document from the Palestine Mission in Washington, D.C. Bret Bradford advised that Abdel-Muhti's history of providing fraudulent information concerning his nationality is hindering BICE efforts in obtaining a travel document.
Id. The Officer also cited the following with respect to attempts made to return Petitioner to Honduras:
On September 6, 2002, a travel document request was forwarded to the Consulate General of Honduras. The presentation contained a copy of a birth certificate and number of Honduran Passport.
On October 11, 2002, Ms. Maximo at the Consulate General of Honduras advised Officer Peralta that subject's birth certificate and nationality must be verified in Honduras.
On January 2003, the consular authorities in the Consulate General of Honduras advised that they are awaiting verification from Honduras regarding Citizenship.
On July 21, 2003, Ms. Maximo advised Officer Gill that she had not heard anything from her counterparts in Honduras and the travel document request is still pending.
On August 4, 2003, I forwarded a travel document request to the Embassy of Honduras.
On November 24, 2003, Tammy Cyr at BICE Headquarters advised that she contacted the Honduran Embassy regarding the Naturalization records to see if Abdel-Muhti naturalized in Honduras. She requested specific information regarding the birth certificate that he provided to ascertain its validity.
Id. The Reviewing Officer further found that "[o]n January 16, 2003, in an effort to secure information that could assist in the procurement of a travel document, Form I-229 is served on Mr. Abdel-Muhti. He is advised [sic] his responsibilities in the travel document process. Advised that he must assist and provide necessary data and reveal his true and valid identity. Subject refused to sign and acknowledge receipt of form." Id. The Reviewing Officer concluded that "Mr. Abdel-Muhti has not established his compliance with the obligation to effect his removal and to cooperate in the process of obtaining necessary travel documents. It is the recommendation of this officer that he remain in the custody of BICE pending his genuine cooperation and subsequent issuance of travel documents." Id. at 7. On the same date that the review was conducted, November 25, 2003, the "Deciding Official's Custody Determination" was to continue Mr. Abdel-Muhti's detention. Id.

  February 3, 2004 Notice of Failure to Comply

  Until this Court issued an Order on January 21, 2004 directing the Government to supplement the record and explain the rationale behind the continued detention of Petitioner, no further proceedings were conducted before the ICE. (See Doc. No. 16). Then, on February 3, 2004, the ICE issued a Notice of Failure to Comply pursuant to 8 C.F.R. § 241.4(g) for Petitioner's alleged refusal to cooperate and acting to prevent removal. (Doc. No. 17, Ex. G). It was concluded therein that:
An investigation of your identity by the Government of Honduras revealed that your purported birth certificate is fraudulent. To date, you have provided no additional evidence of your identity, nor have you demonstrated any good faith efforts to obtain the required documentation. . . . As you have failed to make efforts to provide or obtain the required evidence of identity, you have failed to comply with your obligation and are acting to prevent your removal from the United States.
(Doc. No. 17, ...

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