IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DUARTIE BLAMO DAVIES :

:

Petitioner, :

: 

 v. : 

 :

JOHN ASHCROFT, :

UNITED STATES ATTORNEY : CIVIL ACTION

GENERAL : NO. 2:02-04459

Respondent. : 

ORDER

AND NOW, this day of , 2003, 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 DISMISSED.

BY THE COURT:

STEWART DALZELL

Judge, United States District Court

Case 2:02-cv-04459-SD Document 16 Filed 02/27/2003 Page 1 of 18
 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DUARTIE BLAMO DAVIES :

:

Petitioner, :

: 

 v. : 

 :

JOHN ASHCROFT, :

UNITED STATES ATTORNEY : CIVIL ACTION

GENERAL : NO. 2:02-04459

Respondent. : 

GOVERNMENT’S RESPONSE TO

PETITION FOR WRIT OF HABEAS CORPUS

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

States Attorney for the Eastern District of Pennsylvania, and Sonya Fair Lawrence,

Assistant United States Attorney for the District, on behalf of respondent, John Ashcroft,

United States Attorney General, hereby files this response to Duartie Blamo Davies’ 

Petition for Writ of Habeas Corpus and moves the Court to dismiss the Petition. 

I. INTRODUCTION

This is a habeas petition brought under 28 U.S.C. § 2241 by Duartie Blamo

Davies, a native and citizen of Liberia. Mr. Davies raises only the issue of his continued

detention by the Immigration and Naturalization Service pending his removal to Liberia.

To the extent that Mr. Davies se eks review of the legality of his continued detention, this

Court has jurisdiction to review his claim. See INS v. St. Cyr , 533 U.S. 289, 121 S.Ct.

2271 (2001)(holding that neither the Antiterrorism and Effective Death Penalty Act of

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1996 nor the Illegal Immigration Reform Act of 1996 repealed the district court’s

jurisdiction to review habeas corpus petitions seeking review of constitutional claims and

claims relating to the legal application of the INA). For the reasons set forth below, the

Court must dismiss the habeas pe tition. 

II. FACTUAL BACKGROUND

Duartie Blamo Davies is a native and citizen of Liberia. Mr. Davies entered the

United States at New York, New York on or about December 31, 1987, pursuant to a

non-immigrant B-1 business visa. The visa authorized Mr. Davies to remain in the

United States for a temporary period not to exceed ninety days. Accordingly, Mr. Davies

was only permitted to remain in the United States until March 30, 1988. In violation of

the B-1 visa, Mr. Davies stayed in the United States more than eleven years beyond the

authorized ninety day period.

On or about February 3, 1999, the Immigration and Naturalization Service (“INS”)

served Mr. Davies with a Notice to Appear, Form I-862, charging him with removability

pursuant to Section 237(a)(1)(B) of the Immigration and Naturalization Act of 1952, as

amended (“INA”); 8 U.S.C. § 1227(a)(1)(B). INA Section 237 (a)(1)(B) renders

deportable any alien who remains in the United States for a time longe r than permitted. 

(Exhibit 1 - Notice to Appear in Removal Proceedings). 

An Immigration Judge conducted removal proceedings, which began on June 29,

1999 with a master calendar hearing. The INS took Mr. Davies into custody on or about

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September 28, 2000. After a series of continuances, the Immigration Judge conducted

Mr. Davies’ immigration hearing on the merits on January 21, 2001. 

During the Immigration Hearing, Mr. Davies conceded that he was deportable as

an alien overstay, but claimed eligibility for relief from removal in the forms of asylum,

withholding of removal, and Article III of the United Nations Convention Against Torture

and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“Convention

Against Torture”).

 After hearing Mr. Davies’ testimony, and reviewing the documentary evidence,

the Immigration Judge concluded that Mr. Davies was statutorily ineligible for asylum

and withholding of removal be cause of his role in the pe rsecution of Liberians prior to

leaving that country. (Exhibit 2 - Oral Decision of the Immigration Judge at p. 6). In

addition, the Immigration Judge concluded that Mr. Davies was ineligible for Convention

Against Torture Relie f because Mr. Davies failed to meet his burden of proving that “ it is

more likely than not” that he would be tortured if returned to Liberia. (Id. at p. 7). 

Accordingly, the Immigration Judge found M r. Davies removable as charged, denied his

applications for relief from removal, and orde red him removed from the United States to

Liberia. ( Id. at p. 9). 

Mr. Davies appealed the Immigration Judge’s decision to the Board of

Immigration Appeals ( “BIA”). On July 23, 2001, the BIA affirmed the Immigration

Judge’s decision and dismissed the appeal. In dismissing the appeal, the BIA thoroughly

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reviewed the record of proceedings and found that Mr. Davies assisted in the persecution

of others while in Liberia; therefore, he was statutorily ineligible for asylum and

withholding of removal. (Exhibit 3 - Decision and Order of the BIA, dated July 23, 2001,

at p. 1). In addition, the BIA de termined that Mr. Davies failed to show tha t it is more

likely than not that he would be tortured if returned to Liberia. (Id. at p. 2). 

In accordance with INA Section 242(b)(1); 8 U.S.C. § 1252(b)(2), which confers

jurisdiction upon the circuit courts to review administratively final orders of removal in

noncriminal cases, Mr. Davies filed a Petition for Review in the United States Court of

Appeals for the Third Circuit on or about August 20, 2001. At the same time, Mr. Davies

filed a Motion to Stay Deportation, which was granted by the Third Circuit on October

11, 2001. 

On or about October 26, 2001, the INS notified Mr. Davies and his legal

representative of an impending Administrative File Custody Review. An INS

Deportation Officer conducted the File Custody Review on January 9, 2002. ( Exhibit 4 -

File Custody Review of the INS).

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1 During the File Custody Review, the Deportation Officer

and representative from the Headquarters Post Order Detention

Unit relied upon Mr. Davies’ criminal history obtained from a

National Criminal Information Center “NCIC” report. The NCIC

report on Mr. Davies lists the following information:

Nature of

Crime

Date Jurisdiction Disposition

Possession of Stolen

Motor Vehicle

9/29/92 Providence, RI not reported

Violation of Banking

Laws

3/14/95 Newport, RI Guilty

Failure to Appear 3/2/95 Newport, RI referred to district

court

Rape, Recklessly

endangering,indecent

assault, false

imprisonment,

unlawful restraint,

simple assault,

indecent exposure,

aggravated assault

9/30/96 Philadelphia, PA Not guilty

Retail Theft 12/11/96 Philadelphia, PA Unreported

Retail Theft 12/8/97 Philadelphia, PA Guilty

Retail Theft 11/10/97 Philadelphia, PA Unreported

Retail Theft 01/04/02 East Norriton, PA Quashed

Violation Drugs/Dev

& Cosmetic Act

9/7/99 Bethlehem, PA Unreported

Violation Drugs/Dev

& Cosmetic Act

11/10/99 Allentown, PA Unreported

Violation Drugs/Dev

& Cosmetic Act

3/3/00 Norristown, PA Nolle Prossed

2 The actual NCIC report relied upon by the Deportation

Officer was unavailable at the time of this filing; thus, a copy

of a recent NCIC printout is attached as Exhibit 5.

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During the Custody Review, the Deportation Officer reviewed Mr. Davies’ criminal

history, which inc luded a rrests and dispositions spanning a ten year period. Id.

1

 (Exhibit

5 - NCIC Report of Mr. Davies printed February 19, 2003 2 ). In addition, the

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Deportation Officer noted “numerous [disciplinary] incidents” related to Mr. Davies’

failure to adhere to orders and actions involving “hoarding medications.” Id. Notably, the

file review revealed that Mr. Davies and his legal representative failed to submit

documentation evidencing the availability of a place for Mr. Davies to live in the United

States, close family ties in the United States, community ties or non-governmental

sponsors in the United States, and the existence of legitimate employment prospects in the

United States. (Exhibit 4). Mr. Davies also failed to provide the INS with information

relevant to his employment and educational history. Id. In fact, the only significant

documentation provided to the INS by Mr. Davies for use in the File Custody Review

consisted of a copy of his request for Stay of Removal, a motion seeking leave to file a

brief, and a briefing and scheduling order presumably issued by the Third Circuit. Id. 

In making a credibility determination, the Deportation Officer noted that Mr.

Davies has a “long history of retail theft and drug arrests and had previously failed to

appear at criminal proceedings.” Id. Based on the above-listed information, the

Deportation Officer concluded that Mr. Davies posed a flight risk and recommended that

the INS continue to detain him until such time as the Stay of Removal is lifted or his

removal proce edings are fina lly resolved. Id. The INS District Direc tor concurred with

the Deportation Officer’s recommendation and ordered Mr. Davies’ continued custody. 

Id. In addition, the District Director transferred custody determination authority to the

INS Headquarters Post Orde r Detention Unit in Washington, DC (“HQPDU”). 

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On March 11, 2002, the HQPDU also reviewed the administrative file and

supplemental submissions of Mr. Davies and determined that Mr. Davies posed a flight

risk. (Exhibit 6 - Headquarters Post Order Detention Unit Denial of Release from

Custody). Accordingly, the HQPDU ordered Mr. Davies’ continued detention. Id.

After the INS notified Mr. Davies of an impending Custody Review, but before

such a review took place, Mr. Davies filed a M otion for Release from INS custody with

the Court of Appeals on or about December 21, 2001. (Exhibit 7 - Docket Report Third

Circuit Civil Action No. 01-3265). The Government, on behalf of Re spondent Ashcroft,

filed a Motion to Dismiss the Petition for Release. Id. In the Motion to Dismiss, the

Government argued that the Third Circuit lacked subject matter jurisdiction to make a

custody determination. On April 2, 2002, the Court of Appeals dismissed the Motion for

Releas e for lack of jurisdiction. Id. 

During the pendency of the Petition for Review, Mr. Davies filed a Petition for

Habeas Corpus Relief on or about April 16, 2002 in the Middle District of Pennsylvania. 

After the INS transferred Mr. Davies from the York County Detention Center to the

Berks County Prison, the Petition for Habeas Corpus Relief wa s transferred to the Eastern

District of Pennsylvania on or about July 5, 2002. Mr. Davies then moved this Court for

Appointment of Counsel on or about August 2, 2002. The Court granted the Motion and

appointed counsel to represent Mr. Davies in the distric t court proceedings. 

On January 13, 2003, a three judge panel of the Third Circuit denied Mr. Davies’

Case 2:02-cv-04459-SD Document 16 Filed 02/27/2003 Page 8 of 18
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Petition for Review and affirmed the BIA’s entry of a final order of removal against Mr.

Davies. (Exhibit 7). Mr. Davies’ appointed counsel filed an Amended Petition for

Habeas Corpus Relief on or about January 15, 2003. The Government files the instant

response to the Petition. For the reasons that follow, the petition for habeas relief must be

denied.

III. LEGAL ARGUMENT

A. STANDARD OF REVIEW

This Court retains jurisdiction under 28 U.S.C. § 2241(c) to decide habeas

petitions filed by aliens subject to deportation. See INS v. St. Cyr , at 289, 121 S.Ct. at

2271. Following the Supreme Court’s holding in St.Cyr, the scope of review of Mr.

Davie s’ claim on habeas is limited to questions of law. See Sulaiman v. INS, 212

F.Supp.2d 413, 416 (E.D.Pa. 2002). Thus, the district court, on habeas review, cannot

substitute its judgment for that of the Attorney Gene ral. Rather, this Court must limit its

review of Mr. Davies’ claim raised in the instant habeas petition to a determination of

whether the Attorney General’s decision to continue Mr. Davies’ detention comports with

statutory regulations governing detention and constitutional protections afforded to aliens

subject to administratively final orders of deportation. Thus, to the extent Mr. Davies

now seeks judicial review of the Attorney General’s discretionary decision to continue his

detention, review of the discretionary decision of the Attorney General is unavailable on

habeas. See Sol v. INS, 274 F.3d 648, 651 ( 2d Cir. 2001).

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Finally, if this Court construes Mr. Davies’ petition to allege a colorable due

process claim, due process requires that Mr. Davies: (1) be entitled to factfinding; (2) be

allowed to make arguments on his own behalf; and (3) have the right to an individualized

 determination of his interests. See Chong v. District Director, 264 F.3d 378 , 387 ( 3d.

Cir. 2001)(citing Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). Essentially,

"[t]he fundamenta l requirement of due process is the opportunity to be heard 'at a

 meaningful time and in a meaningful manner.'” Id. (citations omitted). In the instant case,

the Attorney General lawfully exercised his discretion to continue Mr. Davies’ detention

after carefully reviewing Mr. Davies’ administrative record. Thus, Mr. Davies cannot

prevail on his habeas claim and the petition for habeas corpus relief must be dismissed.

B. MR. DAVIES IS NOT ENTITLED TO RELEASE DURING THE

STATUTORY REMOVAL PERIOD.

Detention of aliens under a final order of removal is governed by INA Section 241;

8 U.S.C. § 1231. Under INA Section 241, the Service has ninety days (the “removal

period”) to carry out an order of removal. 8 U.S.C. §1231(a)(1)(A). The removal period

starts at the latest of three points: the date the order becomes administratively final; the

date of any reviewing court’s final order; or the date the alien is released from criminal

confinement. See 8 U.S.C. § 1231(a)(1)(B)(i)-(iii). 

Mr. Davies’ order of removal is administratively final; the BIA issued its order

affirming the Immigration Judge’s entry of an order of removal on July 23, 2001. During

the pendency of Mr. Davies’ Petition for Review, however, the Third Circuit granted Mr.

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Davies’ request for a stay of removal on October 11, 2001. Therefore, Mr. Davies’

removal period has not accrued since the Third Circuit’s issuance of a stay of removal.

INA Section 241(a)(1)(C); 8 U.S.C. § 1231(a)(1)(C) extends the statutory removal

period beyond ninety days and permits the alien to remain detained during the extended

removal period whenever the alien acts to prevent his removal in any way. See INA

Section 241(a)((1)(C); 8 U.S.C. § 1231(a)(1)(C). In other words, the statutory removal

period is tolled while a stay of removal is in place. Accordingly, since Mr. Davies sought

and received a stay of removal, the statutory removal period in the instant case was tolled

and the clock did not run during the time in which the judicially ordered stay of removal

was in place. Id. Thus, prior to the Third Circuit’s denial of Mr. Davies’ Petition for

Review on January 13, 2003, Mr. Davies’ was still in the statutory removal period.

Detention is mandatory during the removal period. 8 U.S.C. § 1231(a)(2). Since

Mr. Davies is still in the statutory removal period, and detention is mandatory during the

removal period, the Attorney Gene ral is under no obligation to release Mr. Davies while

his stay of removal remains in effect. See Zadvydas v. Davis, 533 U.S. 678, 690, 121

S.Ct. 2491, 2499 ( 2001). 

C. THE ATTORNEY GENERAL’S DISCRETIONARY DECISION TO

CONTINUE MR. DAVIES’ CUSTODY IS NOT SUBJECT TO

REVIEW ON HABEAS. 

Assuming arguendo, that release from custody is possible during an extended

removal period, pursuant to 8 U.S.C. § 1231(a)(6), an alien may be detained at the

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discretion of the Attorney General. 8 U.S.C. § 1231(a)(6). It is well established that

“federal jurisdiction over Section 2241 petitions does not extend to review of

discretionary determinations by the [Attorney General].” 

Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001). Such discretionary decisions may only be

reviewed by the district court on habeas if the decision amounts to a statutory violation or

rises to the level of constitutional error. See INS v. St. Cyr, at 290, 121 S.Ct. at 2274. 

Since claims related to discretionary decisions of the Attorney General may not be

reviewed under Section 2241, this Court lacks jurisdiction to review Mr. Davies’

contention that the Attorney General erred in deciding to continue his detention. 

D. THE ATTORNEY GENERAL’S DECISION TO CONTINUE MR.

DAVIES’ DETENTION DOES NOT CONSTITUTE A DUE

PROCESS VIOLATION. 

If this Court determines, however, that Mr. Davies has raised a colorable claim of

illegality as the Attorney General’s decision to continue his detention, such a claim must

fail. It is well settled that aliens facing removal are entitled to due proc ess. See Chong v.

District Director, at 386. Due process requires that the alien receive s a fair opportunity to

be heard 'at a meaningful time and in a meaningful manner.' " Id. Therefore, the Attorney

General’s decision to continue Mr. Davies’ detention must be upheld unless Mr. Davies

was deprived of a meaningful opportunity to have the Attorney Gene ral conduc t a

meaningful and fair administrative file review. 

The regulations pertaining to INA Section 241 state that:

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The district director may continue in custody any alien

. . . removable under [8 U.S.C. §] 1227(a)(2) . . . or

who pre sents a significant risk of noncompliance with

the order of removal, beyond the removal period, as

necessary, until removal from the United States. If

such an alien demonstrates by clear and convincing

evidence that the release would not pose a danger to

the community or a significant flight risk, the district

director may, in the exercise of discretion, order the

alien released from custody on such conditions as the

district director may prescribe, including bond in an

amount sufficient to ensure the alien's appearance for

removal.

8 C.F.R. § 241.4(a). 

Accordingly, the regulations pertaining to INA Section 241 afford the district

director the discretion to continue an alien’s custody if the alien presents “a significant

risk of noncompliance with the order of removal.”8 C.F.R.§ 241.1(a). Under the

regulations, an alien can obtain release pending removal if he successfully demonstrates,

by clear and convincing evidence, that his release would not pose a danger to the

community or a significant flight risk. Id. Thus, release may be denied if the district

director finds that the alien is either a flight risk or a danger to the community. It is not

necessary to find that the alien meets both criteria.

During a file custody review conducted by the INS on January 9, 2002, an INS

Deportation Officer reviewed information available in Mr. Davie s’ administrative file. 

Although Mr. Davies and his legal representative at the time were given adequate notice

of an impending file review, they elected to produce only court-related documents. No

evidence of ties to the community, employment prospects, or proposed living

Case 2:02-cv-04459-SD Document 16 Filed 02/27/2003 Page 13 of 18
3 Notably, Mr. Davies’ 1995 failure to appear in proceedings in Rhode Island

apparently precipitated his relocation to Philadelphia in the same year. Although Mr. Davies

attempts to minimize the significance of his flight from justice in Rhode Island, evidence of past

disregard for legal proceedings is a significant indicator of the likelihood of future flight. 

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arrangements was presented to supplement the record with evidence supporting his

attempt to obtain release from detention. Consequently, given the informa tion available

to the INS at the time of the file custody review of January 2001, the District Director

determined that Mr. Davies posed a flight risk if rele ased from custody.

In determining that Mr. Davies posed a flight risk, the District Director relied upon

Mr. Davies’ criminal history, which included information related to arrests, convictions,

and a failure to appear in court proceedings in 1995. (Exhibit 7).3 The applicable

regulations governing release of aliens under an administratively final order of removal

clearly places the burden of proving that release is appropriate upon the alien. 8 C.F.R. §

241.1(a). Mr. Davies’ first attempt to clearly deny the accuracy of the criminal charges

set forth in his criminal record is set forth in his Amended Habeas Petition, which was

filed on January 15, 2003. In the Amended Petition, Mr. Davies now presents

information related to the basis upon which some of the charges against him were filed. 

In addition, he argues that the INS erred in finding that he possessed a “long history of

retail theft and drug arrests.” Such arguments, however, should have been made to the

INS during Mr. Davies’ file custody review. If, in fact, Mr. Davies believed that his

administrative file contained incorrect information, the appropriate time to refute such

information was before the INS conducted its file custody reviews.

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In the instant c ase, the Attorney General reviewed the information contained in

Mr. Davies’ administrative file and supplemental information provided by the alien. 

Based upon such information, the INS concluded that Mr. Davies posed a flight risk. At

the time of the file custody reviews conducted by the INS, Mr. Davies had not come

forward with evidence to support a conclusion that his criminal history is inaccurate or

that the INS failed to comply with its statutory mandates in relying upon his criminal

history information. 

The Attorney General conducted a review of the information available in Mr.

Davies’ administrative file and determined that: (a) Mr. Davies’ previous crimina l history

evidenced a disrega rd for the law; (b) Mr. Davies previously fled from a court’s

jurisdiction during the pendency of criminal charges; and (c) his administrative file lacked

evidence of the existence of community ties and opportunities for employment to support

a decision to release him from custody. Therefore, the Attorney General’s decision to

continue Mr. Davies detention comports with the statutory scheme governing the

discretionary decision to maintain custody of an alien. In addition, because the Attorney

General conducted a meaningful review of Mr. Davies file and afforded him an

opportunity to provide information relevant to such a review, the decision to continue Mr.

Davie s’ detention cannot form the basis for a grant of habeas corpus relief in this case. 

On habeas review, this Court must determine if the Attorney General complied

with relevant statutory regulations and constitutional protections. Since the Attorney

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General did comply with all relevant statutory regulations and afforded Mr. Davies every

constitutiona l protection to which he was due, a grant of habeas relie f here is

unwarranted.

Although Mr. Davies cannot obtain release from custody pursuant to the

arguments set forth in his Amended Petition for Habeas Relief, he is not precluded from

requesting another custody review from the Attorney General at any time. Since the INS

was not furnished with much of the evidence Mr. Davies contends supports his release

from custody, he may furnish such information to the Attorney General in an attempt to

obtain the relief he now seeks from the district court. It is important to note, however,

that the Third Circuit’s recent denial of Mr. Davies’ Petition for Review will no doubt

prompt the INS to secure travel documents for Mr. Davies’ return to Liberia. Once travel

documents are obtained, assuming the Stay of Removal is no longer in place, Mr. Davies

will likely be repatriated to Liberia and release from custody will no longer be an issue.

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IV. CONCLUSION

For the foregoing reasons, the government respectfully requests that the

Court dismiss Mr. Davies’ Petition for Habeas Corpus Relief.

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney

_________________________

VIRGINIA A. GIBSON

Assistant United States Attorney

Chief, Civil Division

Dated: February 28, 2003 ________________________

SONYA FAIR LAWRENCE

Assistant United States Attorney

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CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of February, 2003, I 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:

Stuart Patchen, Esq.

Dina Chavar, Esq.

Federal Court Division

Defender Association of Philadelphia

Suite 540 West - The Curtis Center

Independence Square West

Philadelphia, PA 19106

_________________________________

Sonya Fair Lawrence

Assistant United States Attorney

Suite 1250, 615 Chestnut Street

(215) 861 - 8921

(215) 861 - 8349 (telecopier)

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