Hazahzas Appeal for Immediate Release

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

Radi HAZAHZA, et al.
Petitioners,

-against-

Michael CHERTOFF, et al.
Department of Homeland Security:
Respondents.

Civil Action No:
3-07-cv-0327-D (SAF) (PDS)
ECF

PETITIONERS’ PARTIAL OBJECTIONS TO THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Petitioners, by and through counsel, hereby submit the following reply and
objections to the Findings, Conclusions and Recommendation (hereinafter “FCR”)
of Magistrate Judge Paul D. Stickney.

At the outset, Petitioners do not object to Magistrate Judge Stickney’s
finding that Respondents’ assertion that Petitioners are a flight risk to be
“unsupported and conclusory…..” FCR at 4. Moreover, Petitioners do not object
to the conclusion that, in the event this Court rejects Petitioners’ argument that this
Court has jurisdiction prior to May 2, 2007 to order their release, that the matter be
held in abeyance until May 2, 2007. FCR. at 11.

ARGUMENT

I.

THIS COURT RETAINS JURISDICTION TO REVIEW AND
ORDER THE END TO UNCONSTITUTIONAL DETENTION
The governing statutory framework enshrines this Court’s authority to
review, and order Respondents to discontinue, the detention of Petitioners in
violation of the statute or the Constitution. Petitioners do not dispute the
conclusion that, as a general matter, 8 U.S.C. § 1252(a)(2)(B)(ii) strips this Court
of jurisdiction to review purely discretionary determinations of ICE. Nonetheless,
the REAL ID act also amended Section 1252 to provide that 8 U.S.C. §
1252(a)(2)(B) shall not “be construed as precluding review of constitutional claims
or questions of law raised upon a petition for review filed with an appropriate court
of appeals in accordance with this section.” As the Fifth Circuit explained the
jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B) “precludes review only of
discretionary decisions” of the agency. Mireles- Valdez v. Ashcroft, 349 F.3d 213,
216 (5th Cir. 2003) (emphasis in original) (finding that discretionary decisions of
the Board of Immigration Appeals are not reviewable, but the ability to review and
conduct statutory interpretation remains enact); Hadwani v. Gonzales, 445 F.3d
798, 799-801 (5th Cir. 2006) (finding the same, and noting the REAL ID
amendment ensuring Courts have jurisdiction over due process claims).

Additionally, that Petitioners are entitled to the protections of the Fifth and
Fourteenth Amendments is beyond dispute. “[I]t would appear that an excluded
alien in physical custody within the United States may not be ‘punished’ without
being accorded the substantive and procedural due process guarantees of the Fifth
Amendment. Surely Congress could not order the killing of Rodriguez-Fernandez
…”) Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981)
(citation omitted); see also Rosales-Garcia v. Holland, 322 F.3d 386, 410 (6th Cir.
2003) (“[i]f excludable aliens were not protected by even the substantive
component of constitutional due process … we do not see why the United States
Government could not torture or summarily execute them.”). Therefore, this Court
retains jurisdiction to review claims that detention of Petitioners is in violation of
the statute or Constitution.

II.

DETENTION IN THIS INSTANCE VIOLATES PETITIONERS’
RIGHT TO DUE PROCESS

The Government’s detention of Petitioners is predicated upon non-existent
custody reviews, violations of regulatory mandates, the application of an
unprecedented guilt-by-association legal standard, an absolute failure to search the
record, rubberstamp conclusions, and demonstrably false factual assertions. The
Government has created a legal vacuum where due process would have stood to protect against detention by arbitrary fiat of the Executive. This Court is
respectfully urged to exercise its statutory and Constitutional authority to check
this capricious imprisonment without tenable cause, and order Petitioners released
forthwith.

In explaining the historical foundations the Due Process Clause as it relates
to habeas corpus rights, Justice Scalia proclaimed that “[t]he very core of liberty
secured by our Anglo-Saxon system of separated powers has been freedom from
indefinite imprisonment at the will of the Executive.” Hamdi v. Rumsfeld, 542 U.S.
507, 552 (2004) (Scalia, J. dissenting). Justice Scalia further outlined that the “gist
of the Due Process Clause, as understood at the founding and since,” was the
requirement that the Executive follow the procedures “deemed necessary before
depriving a person of life, liberty, or property.” Id (emphasis added). Where such
procedures were not provided before confinement, habeas corpus has been the tool
of vindication. Id. Thus, the constitutional claim presented in the Petition for
Writ of Habeas Corpus in the case at bar is colorable and substantial, not “an abuse
of discretion argument [cloaked] in constitutional garb.’” Hadwani v. Gonzales,
445 F.3d at 801 (quoting Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.
2001)).

In construing procedural due process claims, courts must engage in a two
part inquiry: (1) whether there exists a liberty or property interest which has been
interfered with; and (2) whether the procedures attendant upon that deprivation
were constitutionally sufficient. See Kentucky Department of Corrections v.
Thompson, 490 U.S. 454, 460 (1989). In addition to procedural protections
“[s]ubstantive due process prevents the Government from engaging in conduct that
shocks the conscience or interferes with rights implicit in the concept of ordered
liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987)

A. Petitioners Have a Liberty Interest In Being Free From Arbitrary Detention

An immigrant who cannot be removed faces the same deprivation of liberty
as a person accused of a crime or facing involuntary servitude. At stake here,
therefore, is the Hazahzas freedom from bodily restraint based on an order of
removal that cannot be effectuated. See, e.g., Vitek v. Jones, 445 U.S. 480, 493
(1980) (liberty interest in remaining free from involuntary commitment to
hospital); Calhoun v. New York State Div. of Parole Officers, 999 F.2d 647, 653
(2d Cir. 1993) (liberty interest in release upon expiration of maximum term of
imprisonment); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (liberty interest in
discharge from continued confinement of insanity acquittal).

B. Petitioners Mirvat, Hisham, Suzan, and Ahmad Have Been Denied the Procedural Process Due Under the Constitution and Regulations

1. The Failure To Conduct a Custody Review of Petitioners Mirvat, Hisham, Suzan and Ahmad Violate the Constitution and Regulations

Petitioners Mirvat, Hisham, Suzan, and Ahmad have received zero of the
process due that would justify continued detention. In the immigration context
relating to detention of immigrants ordered removed, “[t]he process due even to
deportable and excludable aliens [under the Constitution] requires an opportunity
for an evaluation of the individual’s current threat to the community and his risk of
flight.” Ngo v. INS, 192 F.3d 390, 399 (3d Cir. 1999).

This right to an evaluation of threat to the community and flight risk is also
contained in the governing regulations. If removal cannot be accomplished during
the 90-day Removal period, the agency retains discretion to continue to detain
aliens (only during the removal period) it determines “to be a risk to the
community or unlikely to comply with the order of removal.” INA § 241(a)(6), 8
U.S.C. § 1231(a)(6).

The implementing regulations grant the agency’s discretionary power to the
ICE District Director. 8 C.F.R. § 241.4. According to the regulations, the District
Director or Director of the Detention an

d Removal Field Office “will conduct the
initial custody review… prior to the expiration of the removal period[]” to
determine flight risk and danger to the community. 8 C.F.R. § 241.4(h)(l) (emphasis added). To obtain release the alien must demonstrate “by clear and
convincing evidence that the release would not pose a danger to the community or
a significant flight risk.” Id.1

Here, to the best of counsel’s knowledge, ICE has not conducted a single
review of the detention of Petitioners Mirvat, Hisham, Suzan and Ahmad.
Although the Government served Petitioner Radi a Decision to Continue
Detention, no such Decision was served on the other Petitioners. Because ICE
has failed to do so, they are in violation of the laws and regulations governing
detention, and continued detention of Mirvat, Hisham, Suzan and Ahmad is
invalid.

The Supreme Court has ruled that before an agency can “extinguish the
entitlement of… otherwise eligible beneficiaries, it must comply, at a minimum,
with its own internal procedures.” Morton v. Ruiz, 415 U.S. 199, 235 (1974)
(emphasis added). The Court further explained that “[w]here the rights of
individuals are affected, it is incumbent upon agencies to follow their own
procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required.” Id. (citing Service v. Duties, 354 U.S.
363, 388 (1957); Vitarelli v. Seaton, 359 U.S. 535, 539-540 (1959) (emphasis
added)).

The courts will invalidate “adjudicatory actions by federal agencies which
violate[] their own regulations promulgated to give a party a procedural
safeguard.” Mendez v. Immigration & Naturalization Service, 563 F.2d 956, 959
(9th Cir. 1977) (quoting Bates v. Sponberg, 547 F.2d 325,330 (6th Cir. 1976)); see
also Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954) (reversing BIA decision for
violation of its own regulations); Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000)
(“[E]xecutive agencies must comply with the procedural requirements imposed by
statute… [and also] must respect their own procedural rules and regulations.”) U.S.
v. Heffher, 420 F.2d 809 (4th Cir. 1969) (The courts must overturn agency actions
which do not scrupulously follow the regulations and procedures promulgated by
the agency itself); Haitian Refugee Center v. Smith, 676 F.2d 1023 1041 (5th Cir.
1982) (“[I]t is clear…that agency deviation from its own regulations and
procedures may justify judicial relief….”); Nicholas v. INS, 590 F.2d 802, 809 (9th
Cir. 1979) (Service violated its own regulations regarding the processing of a non
citizen’s request for immigration records). Habeas review of a purely this type was
affirmed by the Supreme Court in St. Cyr v. INS:

Habeas courts also regularly answered questions of law that arose in
the context of discretionary relief. See, e.g., United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 98 L. Ed. 681, 74 S. Ct. 499
(1954); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S.
72, 77, 1 L. Ed. 2d 652, 77 S. Ct. 618 (1957). Traditionally, courts
recognized a distinction between eligibility for discretionary relief, on
the one hand, and the favorable exercise of discretion, on the other
hand. See Neuman, 113 HARV. L. REV., at 1991 (noting the ‘strong
tradition in habeas corpus law … that subjects the legally erroneous
failure to exercise discretion, unlike a substantively unwise exercise of
discretion, to inquiry on the writ’).

St. Cyr v. INS, 533 U.S. 289, 308 (2001) (emphasis added).

In this instance, ICE has violated the most basic of rights provided under the
regulations to Petitioners. The Government was required to review all Petitioners
on an individualized basis and provide Petitioners with notice, an opportunity to be
heard, and a written statement of its decision (containing the reasons for the
continued detention) – an unmistakable procedural protection. The Government
has followed not a single one of these requirements with respect to all Petitioners
but Radi. Therefore, because ICE has failed to follow the laws and regulations
governing detention, the agency’s continued detention of Petitioners Mirvat,
Hisham, Suzan, and Ahmad in violation of the Constitution and regulations is
unlawful, regardless of whether this is within the sixth month period of detention
that is presumptively reasonable. As such, ICE must release them forthwith.

2. Guilt-By-Association Is Not a Legal Standard Applicable Under U.S. Law

Even assuming, somehow, that Petitioners Mirvat, Hisham, Suzan, and
Ahmad were given a custody review (although they were not), the custody review
provided absolutely no basis to continue their detention. According to the
Decision to Continue Detention issued to Radi Hazahza, he was determined to be a
flight risk because he failed to appear for an appointment to “discuss his case,”
allegedly (but without any documentation) mailed to him in 2005. Even taking the
extreme leap of faith asked for by the Government that this form was mailed to
Petitioner Radi, there is absolutely no indication whatsoever that the same (or any
other) form was mailed to the other Petitioners. Because the Government has not
cited, nor is counsel aware of, any law or precedent that establishes guilt-byassociation
as a legal standard in the United States, the Government cannot use
Radi’s failure to appear for an unspecified meeting as the basis to conclude all
Petitioners are a flight risk.

The Third Circuit has found that “[s]o long as petitioner will receive
searching periodic reviews, the prospect of indefinite detention without hope for
parole will be eliminated. In these circumstances, due process will be satisfied.”
Ngo, 192 F.3d at 399 (emphasis added). However, the Court cautioned that due
process is not satisfied on simple “rubberstamp denials.” Id. Here, it is facially
apparent that ICE has simply rubberstamped a decision to detain Petitioner Radi onto a decision to detain the remainder of the Petitioners. There was no
independent or even relevant information provided in the Decision to Continue
Detention that related to the Petitioners other than Petitioner Radi. It is therefore
just as facially apparent that the detention of the remaining Petitioners is
unconstitutional and in violation of the regulatory requirements of an
individualized custody review.

C. The Detention of Petitioners Based Upon Unsubstantiated Assertions,
Demonstrably False Statements, and a Complete Failure to Search the
Record Violates the Substantive Due Process Rights of All Petitioners
(Including Petitioner Radi)

The Government’s detention of all Petitioners is predicated upon such
demonstrably false and unsubstantiated assertions, that it shocks the conscious and
cannot withstand even the most basic of Constitutional scrutiny.

First, the Decision to Continue Detention claims that Petitioner Radi has
been ordered removed to Israel. He was not. Petitioners were ordered removed to
Jordan or the Occupied Territories. This is more than just semantics: The
Decision to Continue Detention acts as a jail sentence of three months. It serves as
the criminal equivalent of the consummate umbrella of procedural and substantive
protections against wrongful imprisonment including probable cause to arrest, trial
by jury of one’s peers, right against self-incrimination, and prohibitions on cruel
and unusual punishment. Yet, in the immigration context, “the sole procedural protections available [for aliens] are found in administrative proceedings….”
Zadvydas v. Davis, 533 U.S. 678, 692 (2001). This places immense responsibility
in the hands of the agency that cannot be circumvented in the name of expediency.
Thus, the agency cannot rely on a fundamentally flawed instrument2 to imprison a
family for at least an additional three months.

Second, the Government attempts to support the heavy legal weight of
imprisonment on the factual equivalent of a single toothpick: That Petitioner Radi
(an
d by
implication, his entire family) is a flight risk because he failed to respond
to a form G-56 request to appear for an unspecified meeting to “discuss his case.”
Yet, the Government has failed to provide any proof that this form G-56 was mailed, failed to provide a certificate of service,3 and failed to even provide a
statement of procedures normally used in mailing forms and requests to aliens.
Even assuming that such a form has been mailed, the Government has failed to
provide an explanation of the reason the proper, form I-166, was not mailed, nor
provide an explanation of the nexus between Petitioners failure to report to
“discuss his case” two years ago and the unmeasured assertion that he is now
deemed a flight risk as a result.

Third, the Government has given no indication that it considered alternatives
to detention. Petitioners provided the Government with alternatives to detention
that would address any concerns of flight risk (assuming that risk of flight can even
be the basis of continued detention when removal is unforeseeable). As the
Zadvydas Court explained, “the choice … is not between imprisonment and the
alien ‘living at large.’ It is between imprisonment and supervision under release
conditions that may not be violated.” Zadvydas, 533 U.S. at 696. Here, Petitioners
have provided the Government with proof of sponsors, proof of employment, and
proof of a known residence. Petitioner Mirvat is married to a United States citizen.
Petitioner Suzan is engaged to a United States citizen. All petitioners have job offers. Petitioners were in the process of closing on the purchase of a home at the
time they were detained, and intend to complete this process if released. This
information was provided to ICE, yet nowhere in the Decision to Continue
Detention is there even an acknowledgement that ICE considered these
alternatives.

ICE’s failure to consider alternatives to detention is particularly egregious in
light of Congress’ intent to limit the discretion of the Government to detain beyond
the 90-day removal period to a finite few:

If the alien does not leave or is not removed within the removal
period, the alien, pending removal, shall be subject to supervision
under regulations prescribed by the Attorney General.

INA § 241(a), 8 U.S.C. § 1231(a) (emphasis added).

The word “may” customarily connotes discretion, see, e.g., Haig v. Agee,
453 U.S. 280, 294, n. 26 (1981), whereas the word “shall” is indicative of
Congress’ intent to limit discretion. Jama v. Immigration and Customs
Enforcement, 543 U.S. 335, 347 (2005). As Judge Stickney explained in the FCR,
the authority to continue to detain individuals beyond the 90-day Removal Period
is only for “limited circumstances.” FCR. at 4. Further, “[w]hen detention is
prolonged, special care must be exercised so that the confinement does not
continue beyond the time when the original justifications for custody are no longer
tenable,” Ngo, 192 F.3d at 399 (emphasis added). Here, the Government has not operated with any type of “special care.” It is clear from the Government’s
actions, it views the authority to detain beyond the 90-day removal order not as a
limited grant of authority, but as an unhindered power that cannot be reviewed or
checked. Such is not the case, and the Government was required, at the very least,
to provide adequate consideration of alternatives evidence. See e.g., Tian-Yong
Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004) (when a BIA decision denying relief
fails “to acknowledge, much less evaluate” evidence relevant to a petitioner’s
claim, such a failure constitutes a “fundamental error” of law); Qiu v. Ashcroft, 329
F.3d 140 (2d Cir. 2003); Fergiste v. INS, 138 F.3d 14, 18-19 (1st Cir. 1998)
(“[t]he failure to consider an applicant’s individual situation in the context of any
changed circumstance is a legal error which undermines the Board’s decision.”).
Simply put, the assertion that in this instance the Government has operated with
anything that approaches “special care” to implement “narrowly tailored” detention
is indefensible and offensive to the spirit and language of the Constitution. See
Schall v. Martin, 467 U.S. 253, 269 (1984) (for civil detention to survive
constitutional scrutiny, it must be for a legitimate regulatory purpose and narrowly
tailored so as not to be excessive in relation to its purpose.)

Finally, the Government has failed to indicate that removal is likely or
foreseeable, especially in light of its efforts to obtain travel documents from a country to which Petitioners were not ordered removed. Thus, the Government has
failed to provide a tenable justification for continued detention.

As noted above, for civil confinement to survive constitutional scrutiny, it
must be “narrowly tailored” so as not to be excessive in relation to its purpose.
Salerno, 481 U.S. at 746. Even if the detention serves a purpose, “it is still
necessary to determine whether the terms and conditions of confinement…are in
fact compatible with those purposes” Id.; see also Gisbert v. INS, 988 F.2d 1437,
1442, as amended, 997 F.2d 1122 (5th Cir. 1993) (determining that whether
incarceration of immigrants constitutes impermissible punishment turns[s] on
‘whether an alternative purpose to which [the detention] may rationally be
connected is assignable for it, and whether it appears excessive in relation to the
alternative purpose assigned’”) (citing Schall v. Martin, 467 U.S. 253, 269 (1984)).

The Government is seeking to detain Petitioners despite the fact that there is no
indication that removal is foreseeable (contrary to their unsupported insinuation in
the Decision to Continue Detention), and flight risk is a “weak or nonexistent
[justification] where removal seems a remote possibility at best.” Zadvydas, 533
U.S. at 691. Thus, without a justification for continued detention, detention is
unconstitutional in this instance, even if authorized by statute as a general matter.

III.

THE GOVERNMENT HAS FAILED TO
DEMONSTRATE STATUTORY
AUTHORIZATION FOR DETENTION OVER
TWO YEARS BEYOND THE FINAL ORDER OF
REMOVAL

The Government has failed to cite to a statute that authorizes the detention of
Petitioners years beyond the order of removal. The order of removal in this
instance became final on August 15, 2002, following an order of an Immigration
Judge denying Petitioners’ applications for asylum and related relief and ordering
Petitioners removed from the United States to either Jordan or the “Occupied
Territories,” as there was no appeal of that decision. Even assuming, arguendo,
that the order of removal became final on the decision of the Board when it
dismissed an appeal of a denial of a motion to reopen, that order was entered on
March 1, 2004, the date of the decision of the Board of Immigration Appeals. In
either case, it is well-beyond the 90-day Removal Period. Although Magistrate
Judge concluded that the Supreme Court intended the six-month period of
reasonable detention to commence at the time of detention, Petitioners respectfully
disagree. The burden is on the Government to demonstrate the statutory authority
for detention, and it has not pointed to any statute that would authorize detention
well-beyond the 90-day period post-order of removal.

INA § 241(a), 8 U.S.C. § 1231(a) defines the removal period in plain and
unmistakably clear language:

(1) Removal period

(A) In general

Except as otherwise provided in this section, when an alien is
ordered removed, the Attorney General shall remove the alien from
the United States within a period of 90 days (in this section referred to
as the “removal period”).

(B) Beginning of period

The removal period begins 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 a court
orders a stay o

f 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.

INA § 241(a), 8 U.S.C. § 1231(a).

Here, the removal period began on August 15, 2002 as that was the day that
the order of removal became final as that order was not judicially reviewed and
there has never been a stay of removal entered on behalf of Petitioners. INA §
241(a)(2), 8 U.S.C. § 1231(a)(2) provides that the Attorney General “shall detain
the alien” during this 90-day removal period. Thus, the Attorney General, or ICE,
should have detained Respondents from August 15, 2002 until November 13, 2002 (90-days) in order to effectuate removal. See Ulysse v. Department of Homeland
Sec., 291 F.Supp. 2d 1318 (M.D.Fla. 2003) (Under the Immigration and
Nationality Act (INA), aliens who are not serving criminal sentences and are
awaiting removal must be detained during 90-day removal period; therefore the
Department of Homeland Security (DHS) has a statutory duty to effect removal
within the 90-day period, if possible.).

That the Attorney General and/or ICE did not do so was an exercise of
prosecutorial discretion, and was not the fault of Petitioners. The Government did
not make any effort – and has not alleged – that it attempted to detain Petitioners
during this time or that Petitioners avoided any efforts of the Government or
otherwise absconded during this time.

The statute also offers plain and unambiguous language that if removal
cannot be accomplished during the 90-day following the order of removal, the
alien shall be subject to an order of supervision rather than detained:

(3) Supervision after 90-day period

If the alien does not leave or is not removed within the removal
period, the alien, pending removal, shall be subject to supervision
under regulations prescribed by the Attorney General. The regulations
shall include provisions requiring the alien–

(A) to appear before an immigration officer periodically for
identification;

(B) to submit, if necessary, to a medical and psychiatric examination
at the expense of the United States Government;

(C) to give information under oath about the alien’s nationality,
circumstances, habits, associations, and activities, and other
information the Attorney General considers appropriate; and

(D) to obey reasonable written restrictions on the alien’s conduct or
activities that the Attorney General prescribes for the alien.

INA § 241(a), 8 U.S.C. § 1231(a) (emphasis added).

The first and most basic principle governing statutory interpretation is that
the plain and unambiguous language of the statute controls. Where statutory
language is unambiguous, there is no need to consult extrinsic sources of
interpretation. See e.g.,; Horner v. Jeffrey, 823 F.2d 1521, 1530-32 (Fed. Cir.
1987) (“court cannot ignore and thus give implicit judicial approval to a statutory
interpretation that is contrary to the plain language of the statute.”);
Microcomputer Technology Institute v. Riley, 139 F.3d 1044, 1051 (5th Cir. 1998)
(same). Further, the Supreme Court has long held a judicial philosophy to interpret
deportation and detention statutes narrowly. Fong Haw Tan v. Phelan, 333 U.S. 6,
10 (1948). As the Court explained, “deportation is a drastic measure …” and “since
the stakes are considerable for the individual, we will not assume that Congress
meant to trench on his freedom beyond that which is required by the narrowest of
several possible meanings of the words used …” Id. Further, the rule of lenity
requires the construction of “any lingering ambiguities in deportation statutes in
favor of the alien.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); see also
INS v. Errico, 385 U.S. 214, 225 (1966) (“Even if there were some doubt as to the correct construction of the statute [INA § 241(f)], the doubt should be resolved in
favor of the alien.”); Rosario v. INS, 962 F.2d 220, 225 (2d Cir. 1992) (“in light of
the harshness of deportation, ambiguous deportation provisions should be
construed in favor of the alien”); Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975)
(“It is settled doctrine that deportation statutes must be construed in favor of the
alien.”); Vargas v. INS, 938 F.2d 358, 363 (2d Cir. 1991) (same).

Even assuming that the statute was somehow ambiguous as to when the 90-
Day Removal period commenced (although it is not), the Government’s assertion
that it can arbitrarily chose which 90-days to effect removal is contrary to the Due
Process Clause of the Constitution. See Demore v. Kim, 538 U.S. 510 (2003)
(“since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful
permanent resident alien such as respondent could be entitled to an individualized
determination as to his risk of flight and dangerousness if the continued detention
became unreasonable or unjustified.”) (Kennedy, J., concurring); Zadvydas, 533
U.S., at 684-686 (Kennedy, J., dissenting).

Finally, it is respectfully asserted that Magistrate Judge Stickney’s reliance
upon Vulaj v. Baker, 2006 WL 3253256 (E.D. Mich. Nov. 8, 2006), is misplaced.
There is no indication that the Petitioners argued, or the Court considered, the
arguments raised in this petition: That the Government has failed to identify a
statute permitting detention well-beyond the 90-day order of removal. As such, this Court is respectfully urged to find that, in accordance with Zadvydas, 533 U.S.
at 634-86, detention is presumptively unreasonable 6-months beyond the date the
order of removal became final (absent a showing of removal in the immediately
foreseeable future).

CONCLUSION

For these reasons, this Court is respectfully urged to grant this petition
for writ of habeas corpus, grant all relief sought in this petition, declare the
continued detention of Petitioners unlawful, unauthorized by statute, and in
violation of the Constitution of the United States, and order Respondents to release
Petitioner without further undue delay.

Joshua E. Bardavid
Theodore N. Cox
Sergio Aleman, Esq.
April 17, 2007

Footnotes not yet posted…–gm

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