MEDIA

March 11, 2005

Habeas Corpus Writ Denied to Alien Detained After Removal Order

Published in: New York Law Journal | volume 231

In the U.S. District Court for the Eastern District of New York. Judge David G. Trager declined to grant a writ of habeas corpus to an alien detained for years after an order of removal. Judge Arthur D. Spatt dismissed as moot a § 2255 challenge to the expired sentence of a deported alien. Judge Nina Gershon dismissed Racketeer Influenced and Corrupt Organizations Act (RICO) claims for failure adequately to allege mail and wire fraud or a pattern of RICO activity. And Magistrate Judge Joan M. Azrack denied the government’s motion to bar production of plaintiff’s post-accident statements until after his deposition.

INS: Habeas

In Guang v. Immigration and Naturalization Service, 02 CV 5916 (EDNY, Feb. 28, 2005), Judge Trager denied a habeas petition by a removable alien whose own actions had resulted in his detention by the Immigration and Naturalization Service (INS) for some five years.

In July 1999, petitioner attempted to enter the United States illegally with an altered Chinese passport. He was kept in a detention facility in Jamaica, N.Y., until his release on parole in August 1999, pending consideration of his asylum claim. Several months later his parole was revoked for failure to report his change of address to the INS.

In April 2000 an immigration judge denied petitioner’s request for asylum, withholding of removal and relief under the Convention Against Torture. Through early 2005 petitioner energetically traversed the channels of administrative and judicial review, but with no success. His removal was stayed during this entire period.

Judge Trager construed the instant petition as a request for release from INS custody. Petitioner based his argument on Zadyvas v. Davis, 533 US 678 (2001), which held that, under the Immigration and Nationality Act, detention of removable aliens is presumptively reasonable for six months after the issuance of a final order of removal. Beyond the six-month period, detention is improper if the petitioner shows the lack of a significant likelihood of removal in the reasonably foreseeable future. 533 US at 701. That ruling has been extended to inadmissible aliens.

Judge Trager rejected petitioner’s argument that any set of circumstances in which removal does not occur within the six-month period should amount to per se proof that removal is not "reasonably foreseeable" under Zadyvas. In Zadyvas, petitioners were held indefinitely because of the government’s inability to return them to their home countries. As Judge Trager observed, this case is quite different:

petitioner’s own actions–not the government’s inability to deport him–have resulted in his continued detention during the past five years, during which time he has filed motions and/or appeals with the administrative courts, [U.S. Court of Appeals for] the Second Circuit, and district court, with corresponding requests for stays of removal.

Nor, Judge Trager added, does there appear to be any barrier to removal now that the Second Circuit has dismissed petitioner’s last outstanding appeal.

§ 2255: Mootness

In United States v. Erdil, 00 CV 6643 (EDNY, Jan. 11, 2005), Judge Spatt dismissed a § 2255 petition where (a) the expiration of petitioner’s sentence followed by his deportation rendered the matter moot; and (b) in any event, petitioner could not show "bad faith" by the government in failing to give him a 5K1.1 cooperation letter.

In 1999 petitioner pleaded guilty to charges of fraud and money laundering and entered into a cooperation agreement with the government, which later determined that his cooperation did not rise to the level of "substantial assistance" warranting a downward departure under the U.S. Sentencing Commission Guidelines.

Petitioner was sentenced to 57 months’ imprisonment, to be followed by five years of supervised release, plus restitution of about $425,000.

At issue here was petitioner’s challenge to the government’s position on his cooperation. But as Judge Spatt held, that claim was moot because petitioner had been released from prison and deported to Turkey in December 2002, and was under "inactive supervised release.’

Petitioner, the court noted, was challenging only his sentence, not his conviction. Accordingly, the petition could not affect his admissibility for re-entry to the United States. There were thus no collateral consequences at stake to meet the case or controversy requirement.

Nor did the record show bad faith by the government in declining to move for a downward departure. While petitioner did "provide some help" to the prosecution, Judge Spatt stated, "it consisted of information already known and failed to assist the prosecutors with regard to any other person.’

The government also made the novel argument that petitioner was not entitled to use the judicial process because his total nonpayment of restitution was "equitably analogous" to the conduct of a fugitive. In Judge Spatt’s view, however, the true fugitive is a "far cry" from the deported alien who fails to pay restitution.

RICO Pattern

In Kadouri v. Fox, 09 CV 1725 (EDNY, Jan. 24, 2005), Judge Gershon dismissed plaintiffs’ RICO claims for not sufficiently pleading wire and mail fraud or a pattern of racketeering activity arising from the use of their home for production of marijuana.

According to the complaint, in September 2000 plaintiffs leased their house in Fresh Meadows, N.Y., to defendant David Fox. Defendant Expert Realty and its principals, defendants Hasida and Ferenc Molnar, found Fox as a tenant and agreed to manage the property during plaintiffs’ planned two-year absence in Israel. Fox sublet the property to defendant John Doe (an unidentified individual), who used the property for growing, processing and selling marijuana, causing substantial damage to the property. Plaintiffs alleged that the Molnars and Expert Realty did not adequately monitor the premises, concealed the deteriorating situation and induced plaintiffs to remain in Israel.

As Judge Gershon found, the RICO claims alleging mail and wire fraud against Hasida Molnar and Expert Realty did not include facts sufficient to create a strong inference of fraudulent intent. The complaint alleged that Ms. Hasida had told plaintiffs that she knew Mr. Fox, he owned his own construction company and he was a suitable tenant, and that H. Molnar failed to provide plaintiffs with a full account of events. But without any claim that Ms. Hasida was aware of illegal activity, these allegations were not sufficient. Similarly, the mail fraud allegations based on Expert Realty’s receipt of plaintiffs’ mail in their absence, including bills showing excessive water consumption, did not show fraud because defendants communicated this information to plaintiffs.

Plaintiffs also did not allege sufficient continuity to amount to a pattern of RICO activity. As the court explained, a closed-ended pattern of racketeering must extend over a substantial period of time–in the Second Circuit, a minimum of two years. Here, the alleged facts did not add up to a closed-end continuity: there were only two victims, whose interests were conjoined; the victims were harmed by the same scheme; there was neither a great variety nor a great number of acts of wire and mail fraud; and there was only one participant in the alleged mail and wire fraud. Finally, the racketeering activity took place over only a two-year period, the bare minimum.

Nor did plaintiff allege an open-ended pattern of racketeering activity, which must threaten to continue into the future. As Judge Gershon noted, the contract to manage the property was for a fixed two-year period, and the court could draw no inference that a threat would continue beyond that time. In addition, the alleged predicate acts were limited to one highly particularized situation in which only plaintiffs were defrauded.

Concerning David Fox and "John Doe" (the subtenant), Judge Gershon found, apart from deficiencies in alleging continuity, that plaintiffs had not made an attempt to set forth the requirements of an enterprise and failed to include any specific allegations regarding the ongoing activities of the enterprise. Indeed, the complaint failed to specify what activities Mr. Fox engaged in to further the enterprise. Although plaintiffs asserted one act of racketeering–the conversion of plaintiffs’ property into a marijuana growing facility–two acts are necessary to demonstrate a pattern of racketeering activity. Finally, the complaint did not sufficiently allege that illegal racketeering activities were the proximate cause of plaintiffs’ injuries:

While plaintiffs were injured by the conversion of their house for illegal purposes, the actual "racketeering activity" was the production, packaging and distribution of marijuana, not the conversion. Plaintiffs have failed to demonstrate that they were the targets, competitors, or intended victims of the inherently illegal racketeering activity, the dealing in marijuana. Slip op. 11-12.

Judge Gershon denied leave to replead as a futile exercise.

Plaintiff’s Statement

In Rofail v. United States, 04 CV 2502 (EDNY, Feb. 1, 2005), a personal injury case brought under the Jones Act, Magistrate Judge Azrack denied the government’s motion for a protective order barring disclosure of plaintiff’s statement and other statements taken at the time of plaintiff’s accident until after plaintiff’s deposition.

Plaintiff was injured on the USNS Denebola. Ship personnel took statements from plaintiff and other crew members and prepared an accident report. Defendant sought a protective order barring disclosure of these materials until after plaintiff’s deposition.

As Magistrate Judge Azrack noted, because a party is generally unrepresented when giving a statement, the rules "require parties in possession of statements to turn them over before trial so that the party making them can explain discrepancies which may exist between the original statement and the party’s contention at trial." Under Rule 26(c), however, a court may order a party to be deposed before the statement is produced on motion by the party in possession of the statement.

Cases interpreting Rule 26(c) require good cause before a court may issue a protective order staying production of materials. Although courts sometimes grant stays, Magistrate Judge Azrack concluded that such stays should be limited and open discovery should be the norm. Given a party’s absolute right to his or her own statement, mere conclusory statements by a defendant that a party might tailor its testimony to the statement does not establish good cause. Magistrate Judge Azrack, therefore, followed the clear wording of Rule 26(b)(3), which entitles a party to its statement without exception. Additionally, because the government did not establish good cause, Magistrate Judge Azrack did not balance the countervailing interests.

The court also denied defendant’s motion concerning the other investigative materials for failure to show good cause. Defendant’s contention that plaintiff might tailor his testimony based on those materials was especially "farfetched" because they involved information about which plaintiff would have no first-hand knowledge.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the March 11, 2005, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]