The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
*fn1 The proper Respondent in an immigration habeas proceeding
is the Field Office Director of the United States Bureau of
Immigration and Customs Enforcement responsible for the area
where the alien is detained. See 28 U.S.C. § 2243; Rumsfeld v.
Padilla, 542 U.S. 426, 124 S. Ct. 2711, 2720 (2004). The pro se
Plaintiff errantly named the Bureau of Immigration and Customs
Enforcement organization as the Respondent. Since we hold pro se
litigants to less stringent standards, see Haines v. Kerner,
404 U.S. 519, 520-21 (1972), and the Respondent does not object, this
Court will correct the named Respondent in this case to Field
Office Director Thomas Decker.
Before the court is whether the United States Bureau of
Immigration and Customs Enforcement ("BICE") provided Petitioner
with due process in its review of his continued custody. Keithroy
Davis, a native and citizen of St. Kitts and Nevis, has been in
the custody of BICE since June 14, 2004. A removal decree against
Davis was stayed by judicial order on January 4, 2005. BICE
concedes that Davis is entitled to a custody review under this
Court's ruling in Haynes v. Dep't of Homeland Security, No.
3:CV-05-0339, 2005 WL 1606321 (M.D. Pa. July 8, 2005). BICE, however, erroneously asserts that the
proper review procedures are embodied by 8 C.F.R. § 241.4(h).
(Resp't Br. at 3-4.) These procedures are only appropriate for
initial custody determinations made within the removal period. As
this Court determined in Haynes, a removal decree stayed by
judicial order is not within the removal period. Instead,
8 C.F.R. § 241.4(i) provides the requisite due process review of
Petitioner's continued detention. This entitles Davis to a
personal interview before his conditional release may be denied.
BICE did not provide him with a personal interview in its review.
Consequently, Davis has been denied due process.
BICE moved for Petitioner's removal based on prior drug-related
convictions. Davis was ordered removed from the United States by
an Immigration Judge on October 8, 2004. (Dkt. Entry 23, Ex. 3 at
2.) Davis subsequently exhausted all administrative appeals of
this order. (Id.) Afterwards, he filed a Petition for Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2241,
challenging both the removal order and the validity of his
continuing detention. This Court granted a stay of deportation on
January 4, 2005.*fn2 In a July 28, 2005 Order, this Court
directed the parties to address the applicability of Haynes,
which held that a criminal alien whose removal has been stayed is
entitled to due process protection as a condition of continuing
incarceration. BICE responded by claiming that a records review conducted in
March of 2005 for purposes of determining whether Petitioner
should be released satisfied due process. BICE provided prior
notice to Davis that it would conduct a records review. (Dkt.
Entry 23, Ex. 2.) According to BICE, Petitioner did not submit
any documentation for the review. (Dkt. Entry 23, Ex. 3 at 6.)
Davis, however, contends that he submitted documentation to
Michael Fairless, one of the reviewing officers. (Dkt. Entry 24
at 2.) BICE reviewed Petitioner's records on March 2, 2005. (Dkt.
Entry 23, Ex. 3 at 1.) Michael Fairless and Kelly Mitra completed
a Post Order Custody Review Worksheet recommending Petitioner
remain in custody. (Dkt. Entry 23, Ex. 3 at 7.) The
recommendation was based on Petitioner's "long and sometime
violent criminal history" and that he "could pose a threat to the
community if released."*fn3 (Dkt. Entry 23, Ex. 3 at 7.) The
reviewing officers also considered Davis a flight risk. (Dkt.
Entry 23, Ex. 3 at 7.) The reviewing officers' recommendation was
accepted by the BICE Field Office Director. Petitioner was not
offered a personal interview. (Dkt. Entry 23, Ex. 3 at 3.)
BICE concedes that Davis is entitled to a custody review under
Haynes. (Resp't Br. at 3.) However, BICE mistakenly asserts
that Petitioner's custody review is governed by 8 C.F.R. § 241.4(h), not 8 C.F.R. § 241.4(i). (Id.) The government's
argument is premised on the fact that a BICE district director
conducted Petitioner's review. (Id.) According to BICE, all
custody reviews by district directors are governed by § 241.4(h).
(Id.) This is incorrect, as the Executive Associate
Commissioner may delegate authority to a district director to
conduct a § 241.4(i) review. See 8 C.F.R. § 241.4(c).
More significantly, the appropriate review procedure is not
determined by who conducts the review but by the detainee's due
process protections. The purpose of a § 241.4(h) review is to
determine whether an alien should remain in custody after BICE
has failed to deport the alien within the 90-day removal period.
Davis is not within the 90-day removal period, so § 241.4(h) is
not applicable. See Haynes, 2005 WL 1606321, at *3.
Furthermore, there are decreased due process concerns for a §
241.4(h) review, as it is usually takes place within 90-days
after a searching review of the alien's position by an
immigration judge or an Article III court.
8 C.F.R. § 1231(a)(1)(B). Accordingly, a § 241.4(h) review is less rigorous
than a § 241.4(i) review, as it does not require an unanimous
recommendation by a two-member review panel or a personal
interview. But when an alien is detained for a greater length of
time, a more rigorous review is necessary. See Ngo v. INS,
192 F.3d 390, 399 (3d Cir. 1999) (finding that procedures
requiring reviews every six months and an annual personal
interview satisfied due process). Davis has been in the custody
of BICE for a considerable period of time since the removal
order. He is entitled to a more rigorous custody review than
afforded under § 241.4(h).
The framework set forth in § 241.4(i) provides the appropriate
type of review for an alien in Petitioner's position. This Court
has made it clear that a personal interview is a "rudimentary
element of due process." Oyedeji v. Ashcroft,
332 F. Supp. 2d 747, 754 (M.D. Pa. 2004); see also Ngo, 192 F.3d at 398. In
Haynes, this Court determined that § 241.4(i) embodied the
procedures accepted by our Court of Appeals in Ngo as
satisfying due process. Haynes, 2005 WL 1606321, at *5. Under
this framework, a review panel must review the detainee's
records*fn4 and, if the detainee is not recommended for
release, the review panel must personally interview*fn5 the
detainee. § 241.4(i)(1)-(3). It is evident that Davis has not received the process this
Court has determined is needed to satisfy due process concerns.
In particular, he has not had an opportunity to appear before
reviewing officers to plead his case or respond to any
questions.*fn6 As in Haynes, BICE will be afforded an
opportunity to accord Petitioner the type of process set forth in
For the reasons set forth above, the petition for a writ of
habeas corpus will be granted conditionally. Respondent will be
afforded a period of sixty (60) days within which to provide
Petitioner the type of process set forth in 8 C.F.R. § 241.4(i)
which the due process clause demands when liberty is at stake. If
such process is not provided, Petitioner is to be
NOW, THIS 11th DAY OF OCTOBER, 2005, for the reasons set
forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. The Petition for a Writ of Habeas Corpus is GRANTED
2. Respondent shall undertake a review of Petitioner's custody
status in accordance with the provisions of 8 C.F.R. § 241.4(i)
within sixty ...