IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DUARTE BLAMO DAVIES : CIVIL ACTION

:

 v. :

:

JOHN ASHCROFT, ATTORNEY GENERAL : NO. 02-4459

ORDER

AND NOW, this 3rd day of March, 2003, upon

consideration of the Amended Habeas Petition Pursuant to 28

U.S.C. § 2241 of Duarte Blamo Davies, and the Government's

response thereto, and the Court finding that:

(a) On January 29, 2001, after a hearing, an

Immigration Judge (IJ) denied Davies's application for asylum,

withholding of removal, and Convention Against Torture relief,

and ordered Davies to be removed;

(b) The Board of Immigration Appeals (BIA), to which

Davies appealed, rendered the order of removal final on July 23,

2001 when it affirmed the decision of the IJ;

(c) On August 20, 2001, Davies filed a Petition for

Review with the Court of Appeals for the Third Circuit

challenging the final order of removal;

(d) On October 11, 2001, the Court of Appeals granted

Davies a stay of removal pending outcome of the Petition For

Review;

(e) We recently learned that on January 13, 2003, the

Court of Appeals decided the Petition For Review, and affirmed

the order of removal in all respects, see Davies v. Attorney

General, No. 01-3265, 2003 U.S. App. LEXIS 2286 (3d Cir. Jan. 13,

2003) (affirming without published opinion);

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(f) Since about September 28, 2000, Davies has been in

the physical custody of the Immigration and Naturalization

Service (INS);

(g) The INS notified Davies on October 26, 2001 that

his custody status was to receive review, and that he could

submit any documentation he wished the INS to consider in support

of his release, if he did so by November 26, 2001, see Am. Habeas

Petition, Ex. 2;

(h) The notice also informed Davies of the criteria

the INS uses in making the custody determination, id.;

(i) In February of 2002, the INS conducted a custody

review, and determined that Davies should remain in continued INS

detention;

(j) Also in that custody review, District Director

Kenneth Elwood transferred Davies to the INS Headquarters Post

Detention Unit ("HQPDU") in Washington, D.C.;

(k) The HQPDU, on March 11, 2002, rendered its own

custody determination, and also decided that Davies should remain

within the custody of the INS;

(l) The gravamen of the INS's decision was that:

The detainee has a history of violating the

laws of the United States. Duartie Blamo

Davies has failed to appear for a scheduled

hearing and failed to submit any documents

for employment or his living arrangements. 

These violations and omissions make him a

flight risk if released from detention. The

subject is a final order of removal, only a

stay of removal granted by the middle

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1 We are aware only of a stay of removal that our Court

of Appeals issued. But whether the Court of Appeals or the

District Court for the Middle District of Pennsylvania (or both)

issued a stay of removal is of no moment. The legal effect is

the same.

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district of PA1 prevents the Service from

removing him from the United States. 

Due to his lengthy criminal record and his

history of failing to appear for his criminal

proceedings, I recommend that Duartie Blamo

Davies remain in Service custody....

Id., Ex. 3 ("Decision by District Director to Continue Detention

Upon Expiration of Removal Period," at 5) (Feb. 15, 2002);

(m) In his petition for habeas corpus, Davies seeks an

Order from this Court releasing him from INS custody;

(n) Davies eloquently argues that he is not a flight

risk or a danger to his community, and that INS decision

overstates both his criminal history and his record of failing to

appear at court proceedings, and overlooks the substantial ties

that he has developed to his community, his church, and his job;

(o) Our review, however, is circumscribed;

(p) Now that the Petition For Review has been decided,

and determined adversely to the petitioner, the 90 day removal

period specified under 8 U.S.C. § 1231 has begun running, see 8

U.S.C. § 1231(a)(1)(B)(ii) ("The removal period begins on the

latest of the following: ...If the removal order is judicially

reviewed and if a court orders a stay of the removal of the

alien, the date of the court's final order.");

(q) During this 90 day removal period, which in this

case runs from January 13, 2003 until April 13, 2003, the INS is 

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vested with plenary authority to hold the individual in

detention, see 8 U.S.C. § 1231(a)(2) ("During the removal period,

the Attorney General shall detain the alien.");

(r) Detention in this period is thus permitted, if not

mandated, by statute;

(s) Detention for this fixed period of time pending

removal does not violate the Due Process Clause, compare Zadvydas

v. Davis, 533 U.S. 678 (2001) (holding that indefinite detention

of alien, after the 90 day removal period, and where not

reasonably necessary to secure the alien's removal, violates the

Due Process Clause);

(t) At the end of the 90 day period, assuming that

Davies is not deported before then, the INS must pursuant to

regulation conduct an individualized custody review, and Davies

may then by all means present to the INS the documentation for

why he does not pose a risk of flight or danger to the community

that he has presented to us, see 8 C.F.R. § 241.4(k)(1);

(u) If Davies then demonstrates to the INS's

satisfaction that he does not pose a risk of flight or of danger

to the community, the INS shall release him subject to

appropriate conditions of supervision, 8 U.S.C. §§ 1231(a)(6),

(a)(3); and

(v) We also note that, assuming that petitioner's

attacks on the February and March 2002 custody reviews have not

been mooted by the Court of Appeals' denial of his Petition For

Review, and the resulting triggering of the removal period, those

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2The INS must conduct individualized review into the

justification for physical detention under the Due Process

Clause. See Ngo v. INS, 192 F.3d 390 (3d Cir. 1999) (excludable

aliens awaiting final determination on removal); Patel v. Zemski,

275 F.3d 299 (3d Cir. 2001) (lawful permanent residents awaiting

final determination on removal); Zadvydas v. Davis, 533 U.S. 678

(2001) (lawful permanent residents subject to final order of

removal and awaiting deportation).

3 See Chong v. District Director of INS, 264 F.3d 378,

386 (3d Cir. 2001) (discussing procedural due process).

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

Sulaiman v. Attorney General, 212 F. Supp. 2d 413, 416 (E.D. Pa.

2002).

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claims lack merit because (1) petitioner was afforded an

individualized custody determination,2 (2) was given a meaningful

opportunity to be heard with respect to the custody

determination,3 and (3) we are without jurisdiction on habeas

corpus to review bare errors of fact4;

It is hereby ORDERED that:

1. The Amended Habeas Petition Pursuant to 28 U.S.C.

§ 2241 is DISMISSED;

2. There is no basis on which to issue a certificate

of appealability under 28 U.S.C. § 2253; and

3. The Clerk of Court shall CLOSE this case

statistically.

BY THE COURT:

______________________

Stewart Dalzell, J.

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