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Koljenovic v. Decker

October 27, 2006

SELJO KOLJENOVIC, PETITIONER
v.
THOMAS DECKER, ACTING FIELD OFFICE DIRECTOR OF THE OFFICE OF DETENTION AND REMOVAL OPERATIONS, RESPONDENT



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for disposition is the report and recommendation of United States Magistrate Judge Malachy E. Mannion that recommends granting in part and denying in part Seljo Koljenovic's (hereinafter "petitioner") petition for a writ of habeas corpus. Petitioner has filed objections to the report and recommendation, and the matter is ripe for disposition.

Background

In 1988 petitioner, at eight years of age, emigrated to the United States from Yugoslavia. (Doc. 6, Resp. Ex. A). On December 10, 2001 New York State convicted petitioner of attempted arson in the second degree.*fn1 (Id.). On the basis of this conviction, the Department of Justice Immigration and Naturalization Service (whose duties are now performed by the Department of Homeland Security Bureau of Immigration and Customs Enforcement (hereinafter "ICE")) placed petitioner in removal proceedings. (Doc. 6, Resp. Ex. D). On January 21, 2003, an Immigration Judge ordered petitioner removed to Yugoslavia. (Doc. 6, Resp. Ex. C).

The Board of Immigration Appeals affirmed the Immigration Judge's order on June 10, 2003. (Doc. 6, Ex. D).*fn2

Petitioner filed a petition for a writ of habeas corpus with the United States District Court of the Northen District of New York, which entered a stay of removal. (Doc. 6, Ex. E). The court lifted the stay on December 14, 2004. (Id.).

Upon his release from the criminal charges, on September 3, 2004, ICE took the petitioner into custody. He has been held in ICE custody ever since. As noted above, petitioner emigrated from Yugoslavia. The parties agree that subsequent to his leaving Yugoslavia, the country became the State Union of Serbia and Montenegro. After the petitioner filed the instant petition for a writ of habeas corpus, the country split into two separate countries, Serbia and Montenegro.

On June 1, 2005, the petitioner filed the instant petition for writ of habeas corpus contending that his continued detention is unconstitutional. Magistrate Judge Mannion issued a report and recommendation suggesting that the petition be granted in part and denied in part. The petitioner has filed objections to the report and recommendation. Jurisdiction

We have jurisdiction over this petition for a writ of habeas corpus under 28 U.S.C. § 2241. Chi Thon Ngo v. Immigration and Naturalization Service, 192 F.3d 390, 393 (3d Cir. 1999).

Standard of Review

In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the Discussion

The report and recommendation makes the following four (4) suggestions:

1) that the clerk of court substitute "Thomas Decker, Acting Field Office Director of the Office of Detention and Removal Operations," for "John Ashcroft, U.S. Attorney General" and the "Immigration & Naturalization Service."

2) that the petition be granted to the extent that the ICE has improperly suspended the petitioner's removal period and the ...


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