AT ATRIAL TEAM OF THE
SUPREME COURT OF THE STATE
OF NEW YORK HELO IN AND

FOR BRONX COUNTY AT THE
BRONX COUNTY COURTHO.
ON THE DAY OF. é

PRESENT:

HONORABLE __ hKeboet Secuxud

AGAINST SUPERIOR COURT v
INFORMATI
DOCKET #,
DEFENDANT:

Oia. Un elles THe MARVIN © Tey

IT APPEARS TO THE SATISFACTION OF THE COUAT
FROM THE PROCEEDINGS HELD, THAT THE WAIVER OF INDICTMENT EXECUTED
BY THE DEFENDANT COMPLIES. WITH THE PROVISIONS OF §§195.10

and 195.20 OF THE CRIMINAL, PROCEDURE LAW AND THAT THE WAIVER

WAS KNOWINGLY AND INTELLIGENTLY EXECUTED BY THE DEFENDANT
IN THE PRESENCE OF COUNSEL.

DATE OF SENTENCE:

ROBERT T. JOHNSON
Dist,

DISTRICT ATTO) NEY

Ate

ear 3// ol eta

BOAO,NB,#1

COURT Copy


Immigration proceedings
___In absentia order
Failure to depart after ordered deported or removed

—~ Other (Specify)

___f. Nature of criminal and/or immigration violations demonstrates
___Deceitful character
—_Lack of respect for authority

~__Other (Specify)
g. Already under supervision of state or federal authority
___Probation

__ Parole
____Other (Specify)

\

<A. Apparent eligibility for relief from removal
— Cancellation of removal or suspension of deportation
___Adjusiment of status
= Withholding of Removal, or Convention against Torture
fone
~__ Other (Specify)

4, Additional Commenis

a
~- redid Se mW“ AX NS a pane oF
Lab ol maha as ET sen XS tacbses
a Te g

VA grok

Uv

Accordingly, based on the above noted factors, the Court finds that the Respondent presents a
threat to the community or a significant flight risk and should be detained in the custody of the

Immigration and Naturalization Service without bond.

A dccordingty, based on the above noted factors, the Court finds that the Respondent presents a

tisk of flight and that a bond in the amount of £7. 5, 00 is necessary to ensure the

Respondents presence at further immigration proceedings.

Z lo Barz

Immigration Judy Date



8. Because petitioner will be released if he posts $15,000 bond pursuant to the

Immigration Judge’s March 28, 2002 custody order, he cannot state a constitutional claim for

illegal detention and his Petition should be dismissed with prejudice.

Dated: July 31, 2002

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney
tr , ,
Yeo, "8 Dice fitn yt en

JAMES G, SHEEHAN
Assistant United States Attorney
Chief, Civil Division

wire n Te, Bean

SUSAN R. BECKER
Assistant United States Attorney

4.


U.S. Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals
ie Gfighe Clerk
of OF JUSTICE Seat Mar.

DEPART
ZR JUNE ben hee oer

ah.

PaO BAP,
OTTEY, MARVIN OLIVER INS LIT./York Ce. Prison/YOR

1287 COUNTY WELFARE RD, #1763 3400 Concord Road

LEESPORT, PA 19533-0000 York, PA 17402

Name: OTTEY, MARVIN OLIVER A41-652-025

Type of Proceeding: Removal Date of this notice: 05/30/2002
Type of Appeat: Case Appeal Filed by: Alien

FILING RECEIPT FOR APPEAL _

The Board of Immigration Appeals acknowledges receipt of your appeal and fee or fee
waiver request (where applicable) on 05/30/2002 in the above-referenced case.

PLEASE NOTE:

(n all future. correspondence or filings with the Board, please list the name and alien registration
number ("A" number) of the case (as indicated above), as well as all of the names and “A” numbers
for each family member who is included in this appeal.

If you have any questions about how to’file something at the Board, you should review the Board's
Practice Manual and Questions and Answers at www.usdoj.goweoir.

Proof of service on the opposing party at the address above is required for ALL submissions to the
Board of Immigration Appeals -- including correspondence, forms, briefs, motions, and other
documents. If you are the Respondent or Applicant, the “Opposing Party" is the District Counsel
for the INS at the address shown above. Your certificate of service must clearly identify the
document sent to the opposing party, the opposing party's name and address, and the date it was

POOCTORL



O O

UNITED STATES GEPARTHENT GE IS TICE
EXECUTIVE GFFICE FOR LOMTGRATIGN REVIEW

THMIGRATION COURT
VaRE, 0A

FUE: Adak O52-020

TH THE HATTER GF se

QTTEY, MARVIN GLIVER

RESFONGENT

TM REMOVAL PROCEEGINGS

Po. Di GROER GF THE ITHRIGRATION SUaGE
WITH RESPECT Ta CUSTaaY

kaqcest having bean made far
respondent pursuant ta & CFR

change in the custady status ov
f4.idch, and fai consideratiait
having bean given ta the representations af tha Immigratizac
Waturalization Sevvice and the respondent, it is hereby

aud

ORGEREG that the request far a change in custady statas be
denied.

- Gene

‘Od that the vequaat Ge granted and that raspandent bes

——— relea

a

14. —
__ ra@ieased from custady under band af 12 farce)

do trom custody an Mis aon racegnizance

GTHER

Csey ef this decisicn has been served an the raseaudant and the
Service.

eS ui. 9. ee
APPEAL? waived oe ced | :

YORK -- YORK COUNTY PRISON

Cater

WALTER A, TUR ENG
Tomigration Judge

Z ZF 2.



e *. “TLS. Department ofpsfce : no

Executive Office for Tnimigration Review Ll

a

co SUE ie ation Appeals ,

Office o,
200 4pR a, ft
5201 101 tescoure Sk lite 1300
> a w Hate 1, ra Nr vo 22041
Ueki -PHi fi Sy

OTTEY, MARVIN OLIVER ; INS LIT.Aork Co. Prison/YOR
BCP, 1287:COUNTY WELFARE ROAD 3400 Concord Road
LEESPORT, PA 19533-0000 York, PA 17402
Name: OTTEY, MARVIN OLIVER A41-652-025

Type of Proceeding: Removal

Date of this notice::04/05/2002

“The Boa id Appeals “acknowiaiges receipt: of your: Jrappeal and fee: or fee
waiver request {where applicable).on-04/05/2002 in the above-referenced case.

ne

PLEASE NOTE:

In all future correspondence or filings with the Board, please list the name and alien registration

number ("A" number) of the case (as indicated above), as well as: all of the names and "A" numbers

for each family member who is inclide
oe

If you have any “questions ‘about Advi tofilé Som ;
Practice Manual and Questions and Answers at www.usdoj. govieo!

including correspondence, fortvis}riefs, rations, and other

documents. © If you. are the Respondent or Applicant, the "Opposing Party” is the District Counsel
for thé INS at the address shown above. Your certificate of setvice must clearly identify the «;

document sent to the opposing party, the opposing party's name and address, and the date it was
PRSCTORL


2. Factors indicating dangerousness
__¥ a. Criminal conviction
i. Referenced in Order to Show Cause or Notice to Appear
a. Sentence. lye
b. Time served & ‘mon tas

c. Comments Dandy 2!
+ tanvichens 4 $93 14, + fat [al eS
, mn oe

" )
vi. Other (Specify)

___b. Nature of offense indicates propensity for violence
___¢. Restraining order
___d. Other (Specify)

3. Pactorgpclevan to risk of flight from further proceedings:

J _a. Fanpity ties to United States citizens WA
¥ Father _- Mother___ Spouse 3 Children _V Siblings Grandparents
___Aunts, Uncles, Cousins ___ Other (Specify)
Comments: ye 3 4, Ss

____b. Family ties to Legal Permanent Residents
___Father___ Mother Spouse Children Siblings__ Grandparents
___ Aunts, Uncles, Cousins __ Other (Specify)
Comments:

___c. Employment history
Occupation (primary), (secondary)
Current employer.
Approximate length of time with current employer
Previous employer.

___d. Past immigration violations
~___Came into the United States without inspection or admission
___ Visa overstay
___Previously excluded, deported, or removed
___ Other (Specify)

___e. Prior record at criminal or immigration proceedings
_._ Criminal proceedings

____Bench warrant(s) issued

___ Contempt citations

___ Probation or parole violations

___ Other (Specify)



441-652-025

sent to them. Any submission filed with the Board without a certificate of service on. the opposing
party will be rejected.

2 PROC TORL


CRIMINAL COURT OF THE CITY OF NEW YOR!

conte Oe 2 aT
THE PEOPLE OF THE STATE OF NEW YORK 2O01BX000413...

v.

COUNTY OF THE BRONX
WILLIAM CHARLTON M/26

Defendant

DET BRYAN KIDNEY of CBI, Shield 5286 says that on or about January 3, 2e¢

at approximately 10:25 A.M. at in front of 685 E.228TH STREET, County of
the Bronx, State of New York,

THE DEFENDANT COMMITTED THE OFFENSES OF: .

1 CF) P.L. 226.16¢1) Criminal Possession of a Controlled
Substance 3g

2 (F) P.L. 220.39(1) Criminal Sale of a Controlled
Substance 39

3 (FP) PLL. 220.44(2) Criminal Sale of a Controlled
Substance In or Near School Grounds

4 (M) P.-L. 220.03 Criminal Possession of a Controlled
Substance 7¢.

5 (V) P.L. 221.05 Unlawful Possession of Marihuana

IN THAT THE DEFENDANT DID: knowingly and unlawfully Possess a narcotic dm
with intent to sell it; knowingly and unlawfully sell a narcotic drug;
knowingly and unlawfully sell a controlled substance in violation o:
any one ofsubdiviaions one through eight of P.L. 226.39 of Penal Law
chapter 226.00 wherethat sale took Place upon school grounda; knowingly ar
unlawfully possess a controlled substance and kriowingly and unlawfully
Possess marihuana. "
THE GROUNDS FOR THE DEPONENT’S BELIEF ARE AS FOLLOWS:

Deponent ia informed by Undercover Police Officer, that at the above
time and place, informant engaged in a brief drug related conversation wit
defendant. Deponent ia further inforined by informant that informant then
handed defendant a sum of United. States Currency, pre-recorded buy money i
exchange for which defendant handed informant two (2) blue baga containing

Deponent states, that he is informed by Undercover Police Officer
known to deponent, that based upon informants training and experience,

lot 2



- Notice to.Respondent .. 0 2. > -
rarning: Any statement you make may be used against you in remo ! proceedings.-i: pre
i1.Alien Registration: This copy of the Notice.to;Appear served upon you js evidence of yoursalien: iexigwation vile yous are under ae
‘removal proceedings. You are required to carry it with you at afl times. as
: Representation: If you so choose, you may be represented in this proceeding, at no expenge todhe Government, by.an-attomney or. .-
other individual authorized and qualified to represent persons before the Executive Office for Immigration.Review, pursuant to 8 CFR
3.16. Unless you so request, no hearing will be scheduled earlier than ten days from the date. of this notice, to allow.you sufficient :
time to secure counsel. A list of qualified attorneys and organizations whe may be available to. > represent you at no cast willbe 1 >
provided with this Notice. ba bp thes
Conduct of the hearing: At the time of your hearing, you should bring with you any affidavits onéther ‘documents: which you desire
to have considered in connection with your case. If any document is in a foreign language, you must bring the original and a certified.
Engtish translation of the document. If you wish to have the testimony of any witnesses considered; you should arrange to have such
witnesses present at the hearing.
Atyour hearing you will be given the opportunity to admit or deny any or all of the allegations jit the: Notice to. ‘Appear and that. you
are inadmissible or deportable on the charges contained in the Notice to Appear. You will.haveian opportunity to:présent evidence.on.:.
your own behalf, to examine any evidence presented by the Government, to object, on proper legal.grathds, to thereceiptiof evidence:
and to cross éxamine any witnesses presented by the Government. At the conclusion of youxhearing; you: ‘have a ra right to-appealan --i
adverse decision by the immigration judge. ~ ” cfverse davision by ins ing wont,
” ¥ou will’bé advised-by the immigration judge’before whom you appear, of ‘any-relief from removal far which: youmniay" appear eli
including the privilege of departing voluntarily. You will be givena Teasonable opportunity. siimake anyetch application toxthe:.
immigration judge.
Failure to appear: . You are required to provide the IN
notify the Immigration Court immediately by ush
the course of this-proceeding. You will be provi
you do not submit Form EOIR- 33 and do not othérwi pro de anaddress at which yousmay' reveached iduting, proogedingss4 then theo
Government shall not be required to provide you-with Written notice of your liearing, .If you fail to: atténd! the: hearing.at.the time and
place designated on this notice, or any date and.time later directed -by- ‘the immigyfation. Court; airemovalibrder: may b be made-by the:
+immigration judge in your absence, ‘and-you-may be-arrested and-detained' by the INS. Tes th y

t Hearing © te
Twaive my right tohavéa loiday period prior:to-appearing,

* To expedite a determination in’
before an immigration judge.

‘Signature of Respondent)
Before:

Date:

‘Gignature and Title of INS Officer)

Certificate of Service

This Notice to Appear was served on the respondent by me on 2 (@] 2 o 2 ,, in the following manner and in
ate)

compliance with section 239(a}(1)(F) of the Act:

@ in person (C1 by certified mail, return receipt requested (1) by regular maii
(1) Attached is a credible fear worksheet.
(A Attached is a list of organizations and attorneys which provide free legal services.

(1) The alien was provided oral notice in language of the time and place of his or her
the

hearing and of consequen to appear as provided in section 240(b}(7) of the Act.
4 De. Cha peg
(Signature of Respondent if Persdnglly Served) (Signature and Title of Officer)

7 Form 1-862 (Rev. 3-22-99)



. 2) O

TMMEGRATION CaUuRt
3400 CaNCoRG RGAG., SUITE 2
YORK, PA {7402
In the Matter of
Case No.1 A41~692-925
OTTEY, MARVIN OLIVER

Respondent TM RENQVAL PROCEEGINGS

few pr GROER GF THE CHMIGRATION JUDGE
This is a summary of the avai decieion entered oa . nea 1 toe
ti

This memorandum is a9 lealy fer the convenience of the par If the
@raceddings shauld be ageaalad or reapened, the aral decision will become
the afficial opinion in the case,
c The vespandent yas ardeped remaved fram the United Gtates to
or in the alternative to
€ 7 Respondent's a tion ter voluntary departure was denied and
reseandent was ordered remaved ta
aiternative to .
C 2 Respondent's application far voluntary departure was granted until
aean posting a bond in the amount af &
with an alternate order of removal to
CF Respandent's application for aavium was ¢ Jaranted ¢ )denied
€ Jwithdraun,
C J Respondent's application for withholding of removal was ¢ Igranted
€ ddenied < dwithdraun,
C J Respandent's application for canceilation of removal under section
24GACa) was { tgranted ( ddenied < withdrawn.
C F Respondent's application for cancellation of removal was ¢ ) granted
under sectian 24GA(b) <1) € ) granted ander section 2400(bd (2)
CD denied ¢ > withdrawn. If granted, it was erdered that the
respondent be issued all aperapriate documents necessary ta give
effect to this order,
C 2 Respandent's application for a waiver under section
( dgeanted { denied ¢ Yuithdrawn ar ¢ rather.
C 1 Respondent's application for adjuatmant af status under section
af the INA was ( jaranted € Ydenied ( jwithdraun. Te granted, it
was ardared that respandent ba issued all aporceriate ducuments necessary
ta give effect to this erder,
Respandent’s status was rescinded under section 246,
Respondent is admitted ta the United States as a —— untib
As a canditian of admission, respandent is te east aS band.
Respondent knowingly filed a frivolous asylam avelication after erager
notice, ~
CF Respandent was advised of the Limitation on discretionary relief for
failure te appear as ordered in the Immigration Judge's aral decision,
£ 2 Proceedings were terminated,
C 2 other: x
Gate,
Avedai: Uaived/Régeryad Appeal Bue By: Cyber
Magi 206 2_ Coa
} WALTER A, GURLING Og
immigration Judge

at the IMA was

oie!
ieee

Sei


desire oral argument before the Board of Immigration Appeals.

file a separate written brief or statement in addition to the “Reasons(s) for
Ly will not Appeal” written above or accompanying this form.

x te Tamiggation * PNg{uralization Service

Sighalddé of Person Appealing te
{or attorney or representative)

8. 9.
Mailing Address of Applicant(s\/Respondent(s) Mailing Address of Attorney or Representative
la tvin © fk, Jeffrey Bubier, INS Assistant District Counsel
; famey, (Name)
Berke Gow E Loser 3400 Concord Road
G lim Gucet Address)
‘Hf ) G4, € Leb York County Prison
? (Apartment or Room Number) (Suite or Room Number)
le sart fA lis 33 York, PA 17402
i (City, Statc, Zip Code) (City, State, Zip Codey

CERTIFICATE OF SERVICE
(Must Be Completed)

10.

I Jeffcey T. Bubicr, Assistant District Counsel

mailed or delivered a copy of this notice of appez

on Wor “ee to Metein offer,

ate) (OppSsing Party)
t ferks Cenk Misr, p24? Got lib hea Rout leant Cp. [IIL
c we (Addres’f Opposing Party) - 7

x bh [CN
Sidnithte of Person Appealing
(or attorney or representative)





CERTIFICATE OF SERVICE

x
Thereby certify that on the day of July, 2002, | caused a true and correct copy of the
foregoing Government’s Response to Petition for Habeas Corpus to be served by first-class mail,

postage prepaid, upon the following:

Marvin Oliver Ottey

Pro se petitioner

Berks County Prison

1287 County Welfare Road, No. 1763
Leesport, PA 19533-0000

Susan R. Becker



~~ soo (

\

which .ncludes training in the recognition of controlled substance, and.

packaging, the aforementioned substance is alleged and ‘believed to be
CRACK/COCAINE,

Deponent further states that deponent observed defendant to have on

person one (1) plastic bag containing a dried green leafy substance in t
seid bag was in defendant's hand.

Deponent estates, that based upon deponent’s training and experience,
which includes training in the recognition of controlled substance and
Rarijuana, a dried, green leafy substance with « distinctive odor, and

their packaging, the aforementioned substances are alleged and believed -
be MARIJUANA,

FALSE STATEMENTS MADE HEREIN ARE PUNISHABLE
AS A CLASS A MISDEMEANOR PURSUANT TO P.L. 210.4!

"01/03/2001
DATE

STBRATORE'S, :

2of 2



©

: U.S. Department of Justice

Immigration and Naturalization Service Continuation Page for Form _1-862_
Alien’s Name File Number Date
OTTEY, Marvin Oliver A4l1 652 025 04/10/01
ALLEGATIONS:

1. You are not a citizen or national of the United States;
You are a native of Jamaica and a citizen of Jamaica;

-You were admitted to the United States at New York, New York on or about June 8, 1988 as
Lawful Permanent Resident; a

4.You were convicted of the crime of Attempted Criminal Sale of a Controlled Substance in.-the

State of New York, County:of the Bronx-under indictment 00245-2001:

| i Rany :timenafter admission, you have beeh- convicted :of-an- aggtavat
“ 101(}(43)(B) aiid (U) ofthe Acti = * Freee eA ett

ot

AARC aed le ays

‘+. Seotion 237 (@)Q)(B)Q) of. the Immigration. and Nationality Act (Act);-as amended; in that, at ainy

“controlled substance (as defined in Section 102 of the Controliéd Substances! Act [21. U.S.C: 802]),
other than a single offense involving possession for one's own use of 30 grams.orless of marijuana.

AKA’s:, OTTEY, Marvin Oliver; OTTEY, Tego; CHARLTON, William: coe

Third Degree, ‘to: wit: ‘Crack/Cocaine, in: violation of Section ,110/220.39- of: the ‘New ‘York: State}.
Penal Law pursuant to.a judgment:entered on or about March 07, 2001 by: the Supreme Courtidf the}:

stn 4 Séetion!2374a)Q) CA) Gi). of thieziimigraticn and Nationality Act ‘(AGH iuns Anitendadi din that iad :
4 5 felonyxasidefined:in' Section}:

vo) -nttinae. after-admissiony:yow ‘haves been-convicted “of. a.siolation: of¢er: a-Jconspiraay.: orcattemptto}
_} > -Miolate)sany.ldwzor. regulation: of a Staté); thé! Waited. States;| or metoreigm country relating: to al?

Signature Title

Jemnes fF (Porte Acting Deputy Assistant District Director for Investigations, NY NY



UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT Reb _ A ~ E
YORK, PENNSYLVANIA ( f ae

OTTEY, MARVIN OLIVER
1287 COUNTY WELFARE RD, #1763
LEESPORT PA 19533

IN THE MATTER OF FILE A 41-652-025 DATE: Jun 27, 2002
OTTEY, MARVIN OLIVER

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD oF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK

P.O. BOX 8530

FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c} (6) '

8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT

a 3400 CONCORD ROAD., SUITE 2
a ~ YORK, PA 17402
Lorne: Banik fad)

COURT CLERK
IMMIGRATION COURT FF
CC: DISTRICT COUNSEL, C/O YORK PRISON
3400 CONCORD ROAD
YORK, PA, 17402

o

RYS


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARVIN OLIVER OTTEY

Petitioner,

v. : CIVIL ACTION

IMMIGRATION AND NO. 02-4378
NATURALIZATION SERVICE :

Respondent.

ORDER
AND NOW, this day of , 2002, upon consideration of

the Government’s response to Petitioner’s Writ of Habeas Corpus, and any response thereto, it is
hereby ORDERED that the petition is DENIED, based upon petitioner’s eligibility for release
from custody on $15,000 bond pursuant to the March 28, 2002 Order issued by Immigration

Judge Walter Durling.

BY THE COURT:

LEGROME D. DAVIS
Judge, United States District Court


SUPREME COURT OF THE STATE NEW.” 7RK
( 2YTO,

SENTENCE & . .
COMMITMENT County LX TNDICTYENT NUMOERVEAR
‘The People of the Slate of New York 1 yf /2 /
oe on 2 7 (206
Mhatns (flee 3 won" Ala he te to
DEFENDANT H
+ Court - _
“Ww ben a2t7l¢[ 4 zo] Gi Reporte tos Veer. — -
BEX 008. NYSIO NUMBER YY .
The defendant having been 11 fe the Judgment of the Court that the defendant be and
heraby is sentenced to 7
Convicted of the erime(s) of: : an Indeterminate term of rb term of
O adjudicated a Youthlul Oftender: imprisonment which shat! have a: impetzcnment of:

minimum term (yrs) maximum term (yrs) (epecty days,

Apes? OED) vid

OD over
asa O_ second fatony offender O second violent felony offender
Gi persistent felony offender O persistent viotent tetany offendar
O Juvenile Offender -- date crima commitied
andior

O Pay afine of ‘or serve a term of days

and that this sentence shall run concurrent with

consecutive to.

The detendant ls hereby committed to the custody of the New York City Department of Correction to be
delivered to, an Inatitutton designated by the Commissioner of Correctional Services in the

CO New York State Department of Correctional Services until released according to law.

0 New York State Division for Youth to be housed in a secure faclilty until released according to taw.

of tp be delivered to
Hen ‘York City Correctional! Institution for MenfWomen until released according to law.

Tha defandant shail:

Pay a aurcharge of s2OW- Or serves termof___ days _-ffom inmate funds

“TS. Pay aCrime Victim Assistance Fee of sf a Inmate funds.

REMARKS: ~ EK - SIE ACEO on

<n ep.
(if,

NOTE: C_Arivestigation and Pre-sentence report attached.

A true extract from the minutes.

Wel 5__ ee fe 38a

‘CLERK OF COURT SONATAS THLE

COURT COPY






lan rae
“ ES

Attachment to Notice of Ai (Service Bond A\

The Immigration and Naturalization Service (Service) appeals from the
Immigration Judge’s decision setting bond in the respondent's case. The decision is in
error because the respondent is subject to mandatory detention under section 236(c) of
the Immigration and Nationality Act (Act), 8 U.S.C. § 1226). See 8 CFR. §
3.19(h)(2Xi)(D) (2001); Matter of Adeniji, Interim Decision 3417 (BIA 1999) (section
236(c) of the Act applies to aliens released from criminal custody after the expiration of
the Transition Period Custody Rules (TPCR) ). Therefore, the Immigration Judge lacked
jurisdiction to redetermine the District Director's custody decision. In the altemative, the
Immigration Judge erred in redetermining bond, because the respondent failed to
demonstrate that he is not a flight risk or danger to the community.

In setting bond for the respondent, the Immigration Judge relied on the recent
ruling of the United States Court of Appeals for the Third Circuit in Patel v. Zemski, 215
F.3d 299 (3 Cir. 2001) (holding that that section 236(c) of the Act improperly deprived
the subject alien of his constitutional due process rights). Contrary to the Immigration
Judge’s decision, however, Patel is not controlling.

As a primary matter, the regulations require an Immigration Judge to follow the
precedent decisions of the Board of Immigration Appeals (Board). 8 C.F.R. § 3.1(g)
(2001). In Matter of Joseph, Interim Decision 3398 (BIA 1999), the Board held, infer
alia, that aliens, including lawful permanent residents, may be properly included in a
mandatory detention category under section 236 of the Act. Thus, until the Board
affirmatively decides to follow Patel, supra, and limit Matter of Joseph, supra, an
Immigration Judge is bound to apply section 236(c) of the Act.

In this regard, we note that in Matter of Mangabat, 14 J&N Dec. 75, 78 (BIA
1972), aff'd sub nom. Cabuco-Flores v. INS, 477 F.2d. 108 (9th Cir.), cert. denied, 414
USS. 841 (1973), the Board declined to follow a published decision of the Ninth Circuit,
reasoning, in part, that the Solicitor General's challenge to the Ninth Circuit's view in
petitioning for certiorari in a separate matter negated any notion of administrative
acquiescence. See also Matter of G-, 9 I&N Dec: 159, 164 (BIA 1960; AG 1961)
(certifying case to Attorney General in light of Solicitor General's brief). At this time, the
Service asks the Board to hold these cases in abeyance, such that the status quo be
maintained as contemplated by Mangabat.


. O O

U.S. Department of Justice
* Immigration and Naturalization Service ° Notice to Appear

ean EE EEEEEEEEEEEEEEEEERNRARREEEEEERRRREEAneNnEnEmMammeeemeneement

In removal proceedings under section 240 of the Immigration and Nationality Act.

File No. AAI 652 025
In the Matter of:
Respondent: OTTEY, Marvin Oliver currently residing at:
Metropolitan Detention Center, 125 White Strect,
New York City, New York 10013
(umber, street, city, state and zip code) (Area code and phone number)

(J 2. You are an arriving alien.
(J 2. You are an alien present in the United:States who has not been admitted or paroled. a
(K}:3. You have been admitted to the United States, but are deportable for the reasons stated below.t:3¥<

The Service alleges that you: ' fren

+ SEE-ATTAGHED'L831 FOR ALLEGATIONS filies Teka

.; On thevbasis of the-forgoing, it is charged that-youw.are subjectto:removal from-the United:States-putsuant.to the following .: :
provision(s) of law: ey

” SEE: ATTACHED L:83£GOR. RROVISION(S)OF LAW
() This notice is being issued after an asylum officer has found that the respondent has demonstrated a credible fear of persecution
or torture.
5) Section 235(b\(1) order was vacated pursuant to: [} 8 CFR 208.30(f{2) [1] 8 CFR 235.3(bX5\iv)
YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at:
TO BE CALENDARED AND NOTICE PROVIDED BY THE OFFICE OF THE IMMIGRATION JUDGE

(Complete Address of tmmigrafion Court, Including Room Number, if any)
on - TOBECALENDAREDANDNOTICE = gt_—S TOBECALENDARED ANDNOTICE tg show why you should not be removed from the

VIDED BY OFFICE x,
Feo MIGKATION RIDGE PROVIDED BY THEOFFICE OFTHE 1 nited States based on the charge(s) set forth above.
Dae) Gime)

Béting Deputy stistant District Direcigh for Investigations, NY NY
(Signature and Titte offofuing Officer)
New York, New York

Date: 04/10/01 (City and State)

See reverse for important information
Form 1-862 (Rev. 3-22-99)


UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
YORK, PENNSYLVANIA

IN THE MATTER OF ___Marvig)_(livec_oTTey
At 4i- 652-029

DATE OF REDETERMINATION 3/23/02
DECISION $15,000 font "|

On Behalf of Respondent On Behalf of Service

Fre Se

BOND REDETERMINATION MEMORANDUM

In a recent decision by the United States Court of Appeals for the Third Circuit in Patel v.
Zemski, 275 F.3d 299 (3TM Cir.), the court found that the mandatory custody rules set forth in
section 236(c) of the Immgration and Naturalization Act were unconstitutional to the extent that
aliens, and particularly lawful permanent residents, are not permitted to establish that they are not
a flight risk or danger to the community. That is, even those aliens with a criminal record are
entitled to a substantive bond hearing. Thus, ail Board decisions relating to the mandatory
custody provisions of section 236(c) have been effectively overruled by the Third Circuit.

Ihave duly considered the standard of review as set forth in Matter of Andrade, 19 IKN
Dec. 488 (BIA 1987). In so doing, I have taken particular note of the Third Circuit’s observation
in Patel that “government detention violates substantive due process unless it is ordered
in...special and narrow non-punitive circumstances...where a special justification. ..outweighs the
individual's constitutionally protected interest in avoiding physical restraint,” citiag Zadvydas v.
Davis, 121 S.Ct. 2491 at 2499 (2001).

1. General Information.
Nativity, Jamaica
Citizenship da mata
Age AT

Lawful permanent resident? Yes synice 19k C fe val
Other lawful entry?



6527025



6. On May 1, 2002, Immigration Judge Durling ordered petitioner removed to his
native country of Jamaica. (See Exhibit 6). On May 30, 2002, Ottey appealed this decision to
the Board of Immigration Appeals. (See Exhibit 7).?

7 On June 27, 2002, Ottey filed this petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 challenging his ongoing detention by the Service as unconstitutional under the

Third Circuit’s decision in Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001). In Patel, the Third

Circuit found that mandatory detention for a criminal alien detained pursuant to Section 236(c) of
the Act [8 U.S.C. § 1226(c)J, without an opportunity for an individual determination about
custody, was unconstitutional. However, that is not the case here. Ottey is not being subjected to
mandatory custody without an individualized review. Rather, Ottey received an individualized

teview of his custody from the Immigration Judge, who ordered him released upon payment of a

$15,000 bond.*

2 We note that if the Board affirms the Immigration Judge’s ruling,
then Ottey’s order of removal will become administratively final.
In that case, the March 28, 2002 bond decision will no longer be
valid. Rather, at that point, Ottey would be an alien with a final
order of removal and his detention would be controlled by 8 U.S.C.
§ 1231 and the Supreme Court’s decision in Zadvydas v. Davis,
121 S.Ct. 2472 (2001). Under the statute, the Service would have
90 days from the date Ottey’s order became final (the “removal
period”) to carry out his removal to Jamaica. 8 U.S.C. §
1231(a){1)(A) and (B)(1). Under Zadvydas, the Service could
continue to detain Ottey for up to six months if necessary to carry
out his removal. 121 S.Ct. at 2505.

2 Tt is true that as a policy matter, the Service has been taking the
position on appeals of custody decisions to the Board of
Immigration Appeals, that the Board is not obligated to follow the
Patel ruling. (Exhibit 4). However, the Service’s posture on appeal
does not change the validity of the existing bond decision.

-3-


“STATE OF NEW YC ¢
: SUPREME CouRT: BRONX COUNTY

THE PEOPLE OF THE STATE OF NEW YORK

AGAINST SUPERIOR COURT INFORMATION

4
DOCKET TAY ERO Y/ S
DEFENDANT:

THE DEPENDANT STATES THAT

HE HAS READ SUPERIOR couRT INFORMATION AND FURTHER
STATES THAT:

UNDER THE CONSTITUTION OF THE STATE OF NEW
YORK, HE HAS THE RIGHT TO BE PROSECUTED BY INDICTMENT FILED
BY GRAND JuRY;

THE DEFENDANT WAIVES SUCH RIGHT AND CONSENTS
TO BE PROSECUTED py SUPERIOR COURT INFORMATION FILED BY THE
DISTRICT ATTORNEY AND THAT Copy BEING PART OF THIS WAIVER;

THE SUPERIOR COURT INFORMATION FILED SHALL
CHARGE THE FOLLOWING CHARGES:

ee SRIMINAL SALE OF A CONTROLLED SUBSTANCE IN
THE THING DEGREE; fp NIWAL ROSSESSION_OF 2 contRontee-sunetaner-
di-THE~TH2RD-BEGREE

THE SUPERIOR CouRT INFORMATION FILED WILL HAVE
THE SAME FORCE AND EFFECT AS AN INDICTMENT FILED BY GRAND
JURY.

DEFENDANT DEFENSE RNEY
THE DISTRICT ATTORNEY OF THE COUNTY OF THE BRONX CONSENTS

TO THE WAIVER OF INDICTMENT.

BXDAO, NB, #2

4



ae C -

FIRST COUNT

THE DISTRICT ATTORNEY OF THE COUNTY OF THE
BRONX BY THIS INFORMATION, ACCUSES THE DEFENDANT OF THE CRIME
ol NAL SALE OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE,
COMMITTED AS FOLLOWS:
THE DEFENDANT, ( 4, ACTING ALONE ( —) ACTING
'N CONCERT WITH ANOTHER, ( — ) ACTING IN CONCERT WITH OTHERS,
ONOR ABOUT = 7G Spare wv, Bea;
@ AT APPROXIMATELY joas AMY THE VICINITY OF
62> &a2gnk opine COUNTY OF THE BRONX, ID KNOWINGLY AND
UNLAWFULLASELI ‘wgeone DRUG, THAT BEING, \CARK. COCA PEO A
PERSON WHOSE NAME IS KNOWN TO THE GRAND JUR
SECOND COUNT:
THE DISTRICT ATTORNEY OF THE COUNTY OF THE
BRONX BY THIS INFORMATION, ACCUSES THE DEFENDANT OF THE CRIME
OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE THIRD

IN CONCERT WITH ANOTHER, ( A N 1H OTHERS,
ON OR ABOUT IN THE VICINITY OF
AT APPROXIMATELY

IN THE COUNTY OF THE BRONX, DID KNOWINGLY AND UNLAWFULLY
POSSESS A NARCOTIC DRUG, THAT BEING, -

WITH INTENT TO SELL fT.

07 OU app iss

»
DEFENDANT O DEFENSE APTORNEY

BDAO,NB, #4

court copy


3 On April 10, 2001, the Service issued a Notice to Appear, advising Ottey that he
was subject to removal from the United States based on his drug trafficking conviction and
because he had been canvicted of an aggravated felony as defined by the Immigration and
Nationality Act (“the Act), 8 U.S.C. § 1227(a)(2)(B)(i) and (a)(2)(A) (ii). (See Exhibit 1).

4 In or about March, 2002, upon completion of his prison sentence in New York,
the Service took Ottey into custody during the pendency of his removal proceedings pursuant to
Section 236(c) of the Act [8 U.S.C. § 1226(c)]. On March 28, 2002, Immigration Judge Walter
Durling issued a custody decision allowing Ottey to be released upon payment of a $15,000
bond. The basis for the Immigration Judge’s decision is contained in the Bond Redetermination
Memorandum, which relates to the March 28, 2002 bond decision, but was written subsequently
on June 25, 2002. (See Order of the Immigration Judge With Respect to Custody and Bond
Redetermination Memorandum, both attached at Exhibit 3).

5. The Service appealed Immigration Judge Durling’s bond decision to the Board of
Immigration Appeals on April 5, 2002. This appeal is still pending before the Board. However,
the appeal does not affect the validity of the Immigration Judge’s bond decision, which remains
in effect during the appeal. To date, Ottey apparently has not posted the $15,000 bond and
therefore continues to be detained. However, District Counsel for the Service in Philadelphia has
confirmed that Ottey will be released upon payment of the bond.’

2 It is unclear why Ottey remains detained in light of the Immigration

Judge’s valid bond decision. 1f Ottey has the ability to pay the
$15,000, but has not done so because he (incorrectly) believed the
Service’s appeal stayed the bond decision, then the record is now
clear that the bond decision is still valid. If, however, Ottey
remains detained because he does not have the ability to pay the

$15,000 bond, then he has no remedy in this habeas petition
because his custody clearly is not a constitutional violation.

-2-




IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARVIN OLIVER OTTEY
Petitioner,
v. CIVIL ACTION
IMMIGRATION AND NO, 02-4378

NATURALIZATION SERVICE
Respondent

GOVERNMENT’S RESPONSE TO
PETITION FOR WRIT OF HABEAS CORPUS

The United States of America, by its altorneys, Patrick L. Meehan, United States

Attorney for the Bastern District of Pennsylvania, and Susan R Becker, Assistant United States
Attorney for the District, on behalf of respondent, the Immigration and Naturalization Service
(“the Service”), hereby files this response to Marvin Oliver Ottey’s Petition for Writ of Habeas
Corpus and moves the Court to dismiss the Petition. In support of its response, the Service states
as follows

1 Petitioner Marvin Oliver Ottcy is a native and citizen of Jamaica. He entered the
United States as a lawful permanent resident on or about June 8, 1988. (See Exhibit 1, p.2,
Notice to Appear).

2. On March 7, 2001, Ottey was convicted in Bronx County, New York, of
attempted criminal sale of a controlled substance in the third degree (crack/cocaine). Ottey was

sentenced to one year in prison for this crime. (See Exhibit 1, p.2; Exhibit 2, conviction records).




‘@) mm

US. Department of Justice OMB # 1105-0065
Executive Office for Immigration Review Notice of Appeal to the Board of Immigrati
Board of Immigration Appeals Appeals of Decision of Immigration Judge
L List Name(s) and “A” Number(s) of all Applicant(s)/Respondent(s):
: A Ye GSX% O8F
[Mé SVEN fey
SINS B
RAEN CE PO Art t
2. ApplicantRespondent is currently DETAINED | NOT DETAINED.

3. Appeal from the Immigration Judge’s decision dated Zt SIPEL a.

This is a bond appeal by the Immigration and Naturalization Service (the “Service”).

See continuation page attached hereto for basis of appeal.

SIAR EAA IE ATI TR AAA EAE EEE, EXEMPT #9 so GOSS EEE

(Attach more sheets if necessary)

{Form continues on back)
Form EOIR - 26
Revised Anrit 1996,


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‘SUPERIOR CcouRT INPORHATION
SUPREHNE COURT OFTHE STATE OF NEW YORE

COUNTY oF BRONX

PEOPLE OF THE STATE OF NEW YORK

AGAINST SUPERIOR CouRT

oes | BE:
Liiam Cher

CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE

ROBERT T. JOHNSON
DISTRICT ATTORNEY

BDAO,NB, #3 COURT copy