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Richard Charles Tavares v. Thomas Decker

March 26, 2013

RICHARD CHARLES TAVARES,
PETITIONER,
v.
THOMAS DECKER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge

(Judge Jones)

: : (Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

This case involves a habeas corpus petition filed by an immigration detainee and convicted drug trafficker, Richard Tavares. Tavares, a native and citizen of Jamaica, was admitted to the United States on or about September 13, 1992, as a Lawful Permanent Resident. (Doc. 9, Exs.) In 2006, Tavares was convicted of possession of marijuana with the intent to distribute in Philadelphia, Pennsylvania. (Id.) In Tavares' removal proceedings, the Immigration Judge found that this offense involved the distribution of some 266 grams of marijuana. (Id.)

Following this conviction, on January 31, 2012, the United States Immigration and Customs Enforcement (ICE), commenced administrative removal proceedings against Tavares who was believed to be subject to removal from the United States. (Id., Ex. B, Notice to Appear.) As part of these proceedings, immigration officials placed Tavares on notice that his removal was sought under "[S]section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of a violation or (conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana." (Id.) Tavares was served with the Notice on February 15, 2012. (Id.)

On March 2, 2012, additional charges were lodged against Tavares "pursuant to the following provision(s) of law: "[S]section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of an aggravated felony at defined in section 101(a)(43)(B) of the Act." (Id., Ex. C, Additional Charges of Inadmissibility/Deportability)

On June 14, 2012, an Immigration Judge ordered Tavares removed to Jamaica, (Id., Ex. D, Order of the Immigration Judge), finding that "the Government met its burden of proof by clear and convincing evidence." (Id., Ex. E, Oral Decision of the Immigration Judge.) Tavares challenged this ruling, but on October 12, 2012, the Board of Immigration Appeals affirmed the Immigration Judge's decision and dismissed Tavares's appeal of the order of removal. (Id., Ex. F, Decision of the Board of Immigration Appeals.) With the entry of this ruling Tavares' removal order became administratively final.

Tavares remains in immigration custody pending removal. As part of this custody, on December 26, 2012, Tavares's custody status was reviewed and it was determined that he would not be released from ICE custody. (Id., Ex. G, Decision to Continue Detention.) During this review, it was noted that travel documents were expected to be issued in the foreseeable future by the Jamaican Consulate. (Id.) Additionally, his criminal history indicated that he "could be a danger to the community." (Id. Ex. H, Criminal Complaint and Court Summary.) Tavares was informed that if he was not released or removed by April 12, 2013, that Headquarters Case Management Unit in Washington DC would make the final determination concerning his custody. (Id.)

C. Tavares' Habeas Petition

Displeased by the fact of this continuing detention, Tavares filed this pro se petition for a writ of habeas corpus on January 4, 2013. (Doc. 1.) This petition broadly challenges on statutory and constitutional grounds the ability of immigration officials to continue to hold Tavares while he completes the litigation of this removal case. The Government has filed a response to this petition (Doc. 9.), and Tavares has filed a traverse in support of his petition, (Doc. 10.). Thus, this matter is now ripe for resolution.

Because the period of detention experienced by Tavares during his removal proceedings is expressly required by statute and does not offend constitutional due process principles, we recommend that the court deny Tavares' petition at this time without prejudice to renewal of this claim, if warranted, at an appropriate future time.

II. Discussion

A. Introduction

In this petition, a convicted drug trafficker seeks to challenge his detention by immigration officials as excessive and unreasonable. It appears that the petitioner believes that this case solely involves post-removal detention under the mandatory detention provisions of 8 U.S.C. § 1226(c)(1)(B); and that his continued detention offends constitutional due process considerations.

We view this petition in a fashion that is more legally complex, subtle and nuanced. First, in our view the petitioner errs when he suggests that this case is simply about excessive post-removal detention. Quite the contrary, this case involved both pre- and post-removal periods of detention, although the petitioner's pre-removal detention came to a close in October 2012, with the entry of an administratively final removal order in this case. Thus, the petitioner simply does not appear to be subject to pre-removal detention at this time.

Rather, with the entry of a final order of removal against the petitioner, we believe that this case implicates two different, but important, sets of statutory safeguards and constitutional protections. First, we must determine whether the duration of petitioner's initial detention pending the entry of a final removal order offended due process in a way that now colors the legitimacy of his current post-removal detention. In addition, now that a final removal order has been entered in this case, we must also assess whether the continued detention of petitioner following the entry of this removal order violates a different, and more stringent, set of statutory and constitutional constraints.

B. Tavares' Detention Pending Entry of A Removal Order Was

Compelled By Statute and Did Not Violate Due Process

At the outset, we will examine the period of pre-removal detention experienced by the petitioner, carefully scrutinizing that period of detention to ensure both that it was legally appropriate, and that it was not so ...


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