IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRITZ GERALD FRENCH, :

:

Petitioner : CIVIL NO. 4:CV-04-1116

:

v. : (Judge Jones)

:

JOHN ASHCROFT, et al., :

:

Respondents :

MEMORANDUM AND ORDER

June 1, 2005

Fritz Gerald French (“French”), a detainee of the Bureau of Immigration and

Customs Enforcement (“ICE”), confined in the York County Prison, York,

Pennsylvania, filed the above-captioned Petition for Writ of Habeas Corpus pursuant

to 28 U.S.C. § 2241. He claims his continued detention violates his substantive and

procedural due process rights under the United States Constitution. Based on

Zadvydas v. Davis, 533 U.S. 678 (2001), the Court will refer the petition to the ICE

as a request for review under 8 C.F.R. § § 241.4 and 241.13. 

Background

French, a native and citizen of Haiti, was admitted into the United States at

New York, New York, on February 15, 1974, as an SA-1 immigrant. (Rec. Doc. 7,

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Ex. A, Notice to Appear). On January 6, 1997, he pled guilty in the United States

District Court for the Eastern District of Pennsylvania, to the offense of Possession

of Hardware and Software used for altering Telecommunications Instruments, in

violation of 18 U.S.C. § 1029(a)(6). (Rec. Doc. 7, Ex. B, Criminal Judgment). He

was sentenced to a four (4) month term of imprisonment, followed by 3 years of

supervised release. Id.

In a Notice to Appear dated April 28, 1997, Petitioner was charged with

removability pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony

as defined by 101(a)(43) of the Act. (Rec. Doc. 7, Ex. A, Notice to Appear). 

On March 23, 1999, the Immigration Judge ordered the removal proceedings

terminated, finding that Petitioner had not committed an aggravated felony. (Rec.

Doc. 7, Ex. C, Decision of Board of Immigration Appeals). The former Immigration

and Naturalization Service filed an appeal. On November 23, 1999, the Board of

Immigration Appeals (“BIA”) determined that Petitioner had been convicted of an

aggravated felony and ordered Petitioner removed from the United States. Id.

Petitioner then filed a motion to remand the proceedings to the Immigration Judge to

apply for asylum. Id. The BIA granted Petitioner's unopposed motion, ordered the

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record reopened, and remanded the proceedings back to the Immigration Judge. Id.

While on bond, Petitioner was convicted in the Superior Court of New Jersey

of Receiving Stolen Property in violation of N. J. Stat.. § 2C:20-7. (Rec. Doc. 7, Ex.

D, Additional Charges of Inadmissability/Deportability). 

On December 13, 2001, the Immigration Judge denied Petitioner's request for

a change in custody status, finding that Petitioner was subject to mandatory detention

under section 236(c)(1)(B) of the Immigration Act. (Rec. Doc. 7, Ex. E, Order).

Petitioner again filed for a request in custody status. On February 14, 2002 the

Immigration Judge granted Petitioner's request for change of custody and ordered

Petitioner released under $10,000 bond. (Rec. Doc. 7, Ex. F, Order). 

On January 18, 2004, Petitioner was arrested by the Philadelphia Police on

charges of aggravated assault. (Rec. Doc. 7, Ex. G, Custody Report). On February

2, 2004, ICE took Petitioner into custody. By Order dated August 9, 2004,

petitioner's application for asylum was denied and the Immigration Judge found

petitioner removable as charged. 

Petitioner filed the instant Petition for Writ of Habeas Corpus in which he

alleges that his prolonged detention in ICE custody while awaiting deportation, or

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release, violates his substantive and procedural due process rights under the United

States Constitution. Based on Zadvydas v. Davis, 533 U.S. 678 (2001), the Court

will refer the petition to the ICE as a request for review under 8 C.F.R. §§ 241.4 and

241.13. 

Discussion

Detention, release, and removal of aliens ordered removed is governed by the

provisions of 8 U.S.C. § 1231. Under § 1231(a), the Attorney General has 90 days to

remove an alien from the United States after his order of removal, during which time

detention is mandatory. Section 1231(a)(1)(B) provides:

The removal period begins to run on the latest of the following:

(i) The date the order of removal becomes administratively

final.

(ii) If the removal order is judicially reviewed and if the court

orders a stay of the removal of the alien, the date of the court’s

final order.

(iii) If the alien is detained or confined (except under an

immigration process), the date the alien is released from

detention or confinement. At the conclusion of the 90 day

period, the alien may be held in continued detention, or

may be released under continued supervision. 8 U.S.C. §§

1231(a)(3) and (6). 

The issue of whether § 1231(a)(6) authorizes the Attorney General to detain a

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removable alien indefinitely beyond the 90 day removal period or only for a period

reasonably necessary to effectuate the alien’s deportation has been resolved by the

Supreme Court in Zadvydas, 533 U.S. 678, 121 S.Ct. 2491 (2001). Reasoning that the

indefinite detention of aliens “would raise serious constitutional concerns,” the Court

concluded that the statute “limits an alien’s post-removal-period detention to a period

reasonably necessary to bring about the alien’s removal from the United States. It

does not permit indefinite detention.” Id. at 2498. The Court asserted that “once

removal is no longer reasonably foreseeable, continued detention is no longer

authorized by statute.” Id. at 2503. To establish uniformity in the federal courts, the

court recognized six (6) months as a “presumptively reasonable period of detention.”

Id. at 2505. The Court further directed that if the alien provides good reason to

believe that there is no significant likelihood of deportation in the reasonably

foreseeable future at the conclusion of the six (6) month period, the burden shifts to

the government to “respond with evidence sufficient to rebut that showing.” Id. The

Court stated that not every alien must be released after 6 months; but, rather, an alien

may still be detained beyond six (6) months “until it has been determined that there

is no significant likelihood of removal in the reasonably foreseeable future.” Id.

Following the Supreme Court’s decision in Zadvydas, regulations have been

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promulgated to meet the criteria established by the Supreme Court. See 8 C.F.R. §

241.4. Prior to the expiration of the 90 day removal period, the district director shall

conduct a custody review for an alien where the alien’s removal, while proper, cannot

be accomplished during the prescribed period. 8 C.F.R. § 241.4(k)(l)(I). When release

is denied pending removal, the district director may retain responsibility for custody

determinations for up to three months or refer the alien to the ICE Headquarters Postorder Detention Unit (HQPDU) for further custody review. 8 C.F.R. § 241.4(k)(l)(ii).

There is no indication in the record that Petitioner has had such a review or that his

case has been transferred to the HQPDU.

Thus, inasmuch as Petitioner herein challenges his continued detention by

filing a petition for writ of habeas corpus under section 2241, is beyond the 90 day

mandatory detention period, and there is no indication that he has had a custody

review by either the district director or the HQPDU, Respondents are instructed to

treat, as of this date, the petition as a request for release under 8 C.F.R. 241.13.

Section 241.13: establishes special review procedures for those aliens who are subject

to a final order of removal and are detained under the custody review procedures

provided at § 241.4 after the expiration of the removal period, where the alien has

provided good reason to believe there is no significant likelihood of removal to the

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country to which he...was ordered removed...in the reasonably foreseeable future. 8

C.F.R. § 241.13(a). The ICE shall respond to the request within 30 days. Having

referred the matter to the government for disposition under existing review

procedures, the petition for writ of habeas corpus is dismissed without prejudice.

IT IS HEREBY ORDERED THAT: 

1. Respondents are directed to treat, as of the date of this Order, the instant

Petition for Writ of Habeas Corpus as a request for release under 8

C.F.R. § 241.4 and 241.13. The ICE shall respond to the request within

30 days.

2. The Petition for Writ of Habeas Corpus (Rec. Doc.1) is DISMISSED

without prejudice.

3. The Clerk of Court is directed to CLOSE this case. 

s/ John E. Jones III 

John E. Jones III

United States District Judge

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