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CASTILLO-GRADIS v. TURNAGE

December 19, 1990

MANUEL CASTILLO-GRADIS, Plaintiff,
v.
JAMES TURNAGE, District Director, Immigration and Naturalization Service, Respondent



The opinion of the court was delivered by: KEEP

 JUDITH N. KEEP, UNITED STATES DISTRICT JUDGE

 FACTUAL BACKGROUND

 Petitioner is a citizen of Nicaragua who entered the United States without inspection sometime in 1980. He came to the attention of the Immigration and Naturalization Service (INS) through the California Department of Corrections while serving a sentence for sale of cocaine. On April 2, 1990, after completing his sentence for the cocaine conviction, he was transferred to INS custody. Following a hearing before an immigration judge on April 6, 1990, he was ordered deported from the United States. Castillo chose not to appeal this order. Petitioner was then transferred to the INS detention facility at El Centro, California to await the execution of his deportation. He remains at this facility.

 The processing of petitioner's deportation did not begin until approximately a month after the order of deportation was entered. On May 9, 1990, the INS office in San Diego requested authorization from INS Headquarters in Washington to execute the deportation order pursuant to the procedures of the Nicaraguan Review Program. Under this program, the Attorney General reviews all cases of Nicaraguans ordered deported to ensure that they do not qualify as refugees under the Refugee Act of 1980. Before a Nicaraguan is deported, the INS district holding the Nicaraguan must receive authorization from the Deputy Attorney General in Washington.

 While the Deputy Attorney General reviewed petitioner's case, the INS office in San Diego made other preparations for petitioner's departure. It was not until October 5, 1990, however, that the INS district director in San Diego received telephonic notification from the Deputy Attorney General in Washington that it should proceed with petitioner's deportation. On October 9, the INS district director made reservations for petitioner to return to Nicaragua by commercial airline on Wednesday, October 24, 1990.

 On October 10, 1990, the INS district director sent by facsimile to INS headquarters the details of petitioner's departure. Per an agreement with the Nicaraguan consulate, such information must be relayed to them 15 days prior to the actual date of departure.

 Petitioner filed the instant Petition for Writ of Habeas Corpus with this court on October 16, 1990. Because of the prima facie case made out by petitioner for relief, this court ordered an expedited briefing schedule and hearing on this matter.

 DISCUSSION

 This court has jurisdiction to review the terms of detention under which an alien is held following a deportation order pursuant to 8 U.S.C. § 1105a(a)(9) or 28 U.S.C. § 2241. See, e.g., Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1390 (10th Cir. 1981).

 Petitioner brings this writ of habeas corpus on the grounds that his current detention is in violation of 8 U.S.C. § 1252(c). This statutory provision reads in pertinent part:

 
When a final order of deportation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States. . . . If deportation has not been practicable, advisable or possible, or departure of the alien from the United States under the order of deportation has not been effected, within such six month period, the alien shall become subject to such further supervision and detention pending eventual deportation as is authorized in this section. *fn1"

 A deportation order was entered against petitioner on April 6, 1990. Petitioner waived his right to appeal at that time; thus the order became final as of April 6. See 8 C.F.R. § 3.37. On October 6, 1990, the six month period within which petitioner's deportation was to be effected by the Attorney General under 1252(c) expired. Consequently, petitioner contends that he should now be released from custody until his deportation is to be executed.

 The question presented by this case is whether and under what conditions the government may detain an alien beyond the six-month period allowed under 1252(c) ...


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