The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
At issue in this habeas proceeding is whether the Bureau of
Immigration and Customs Enforcement ("BICE") provided Petitioner
with due process in its review of his continued custody. Wilfred
Haynes, a native and citizen of Barbados, has been in the custody
of the BICE since January 28, 2004. A removal decree against
Haynes has been stayed by judicial order. This Court previously
determined that the due process clause of the Fifth Amendment
required that Haynes be afforded an opportunity to be heard on
the question of conditional release pending judicial review of
the removal decree. Haynes v. Dep't of Homeland Security, No.
3:CV-05-0339, 2005 WL 1606321, at *1 (M.D. Pa. July 8, 2005).
This Court also determined that the type of review procedures set
forth in 8 C.F.R. § 241.4(i), if applied in good faith, would
satisfy due process requirements. BICE was then afforded the
opportunity to consider Petitioner for conditional release.
Unfortunately, BICE failed to accord Petitioner the personal interview contemplated by 8 C.F.R. § 241.4(i). Absent an
opportunity to personally plead one's case for conditional
release or address a decision maker's concerns, an alien has not
been given the meaningful consideration that due process demands
when liberty is at stake. Because BICE has abridged the
requirements of the due process clause, a writ of habeas corpus
compelling the conditional release of Petitioner will issue.
BICE commenced deportation proceedings against Haynes on April
21, 1995. BICE moved for his removal based on 1984 convictions in
New York State for criminal possession of marijuana in the second
degree*fn1 and criminal possession of a weapon in the third
degree.*fn2 This removal proceeding was still pending when
Haynes was convicted of possession of a controlled substance in
the fifth degree in New York State on January 28, 2003. As a
result, Haynes served one year in prison in New York State. BICE
took custody of Haynes upon his release on January 28, 2004.
Afterwards, BICE filed an additional charge of deportability
based on this latest conviction.
An Immigration Judge ordered Haynes removed on May 12, 2004.
Haynes then exhausted his administrative remedies with the Board
of Immigration Appeals. Afterwards, he filed a Petition for Writ of Habeas Corpus with this Court
pursuant to 28 U.S.C. § 2241. (Haynes v. Dep't of Homeland
Security, No. 3:CV-04-2142 (M.D. Pa.).) This Court granted a
stay of deportation on September 28, 2004.*fn3
Afterwards, BICE conducted a records review to determine
whether Haynes should continue to be detained. This consisted
primarily of a routine completion of a worksheet. It was unclear
whether Haynes was given advance notice of the review. It was
clear, however, that he did not receive an opportunity to appear
before the decisionmakers to make a plea for release. The
reviewers recommended that Haynes remain in custody because his
"long and sometime violent criminal history."
In addressing Haynes's challenge to the validity of his
continuing detention, this Court determined that Haynes had a
"constitutional right to a meaningful individualized
determination of his status pending adjudication of the validity
of the removal order." Haynes v. Dep't of Homeland Security,
No. 3:CV-05-0339, 2005 WL 1606321, at *1 (M.D. Pa. July 8, 2005).
This Court further determined that the procedures set forth in
8 C.F.R. § 241.4(i) would satisfy the demands of due process.*fn4 Id. at *5. Under § 241.4(i),
an alien is entitled to a records review*fn5 by a review
panel, and also a personal interview*fn6 if the review panel
does not recommend release or the Headquarters Post Order
Detention Unit ("HQPDU") Director does not accept a review
panel's recommendation of release. BICE was afforded sixty days
from July 8, 2005, to provide proper process. The July 8th Order further provided
that if BICE failed to provide the type of process set forth in
8 C.F.R. § 241.4(i), Petitioner was to be released, subject to
pertinent conditions of supervision. BICE was directed to file a
status report by August 31, 2005.
BICE filed its report as required. (Dkt. Entry 10.) Also,
Plaintiff, contending that BICE had not provided the requisite
opportunity for a personal interview, moved for release. (Dkt.
On September 6, 2005, BICE filed a Notice of Appeal from the
July 8, 2005 Order. (Dkt. Entry 11.) On October 3, 2005,
Petitioner advised the Court that BICE had withdrawn its notice
of appeal on September 22, 2005, and requested that this Court
"expedite" its ruling on his motion for release from confinement.
(Dkt. Entry 15.)
As indicated in the Post Order Custody Review Worksheet
submitted as Exhibit "B" to BICE's August 31, 2005 Status Report,
BICE once again conducted only a records review to determine
whether Haynes should continue to be detained. (Resp't Status
Report, Ex. B at 3.) This time, however, the government clearly
did provide Petitioner with prior notice of the review and an
opportunity to submit records. (Resp't Status Report, Ex. A.) The
worksheet noted that Petitioner had a place to live in the United
States, prospective employment, vocational training, and evidence
of rehabilitation courses attended in prison not previously noted
on the previous custody review worksheet. (Resp't Status Report,
Ex. B. at 5.) Nonetheless, the reviewing officers recommended Petitioner
remain in custody. (Resp't Status Report, Ex. B at 6.) Review
officer Michael T. Fairless noted the subject's "long criminal
history" in his comments, but erased his previous comment of a
"sometime violent" criminal history.*fn7 (Resp't Status
Report, Ex. B at 6.) The second review officer, Kelly Mitra,
observed that Petitioner had a "long history of drug, burglary
and weapons violations" in a separate assessment. (Resp't Status
Report, Ex. B at 6.) The BICE Deciding Officer accepted the
recommendation of the reviewing officers. Petitioner was not
offered a personal interview. (Resp't Status Report, Ex. B at 3.)
This Court ordered BICE to provide Petitioner with the type of
meaningful review contemplated by 8 C.F.R. § 241.4(i). This
requires (1) a review panel to provide (2) a records review, and
if release is not recommended, (3) a personal interview.
8 C.F.R. § 241.4(i)(1)-(3).
A valid review panel consists of two-members. § 241.4(i)(1).
Any recommendation by the two-member review panel must be
unanimous. Id. In this case, the review consisted of two "Reviewing Officers," Michael T. Fairless and Kelly Mitra.
Officers Fairless and Mitra agreed that Haynes should remain in
custody. Thus, BICE adequately followed the provisions for a
Initially, a review panel "shall review the alien's records." §
241.4(i)(2). The review by BICE involved the completion of a Post
Order Custody Review Worksheet based on the Petitioner's records.
Petitioner received prior notice of this review. In addition,
BICE corrected information in Haynes's worksheet from his
previous worksheet, thus suggesting that it provided more than
just a cursory review of his records. As ...