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Neziri v. Johnson

United States District Court, D. Massachusetts

May 5, 2016

GERONT NEZIRI, Plaintiff-Petitioner,
v.
JEH JOHNSON, et al., Defendants.

MEMORANDUM & ORDER

INDIRA TALWANI, UNITED STATES DISTRICT JUDGE.

I. Introduction

Petitioner Geront Neziri is an Albanian citizen who faces removal after using a false Italian identity and passport to enter the United States. He has been detained for over twenty-seven months during the pendency of his immigration proceedings.

Before the court is Neziri’s Petition for Writ of Habeas Corpus [#1] seeking release from custody and Defendants’ Motion for Summary Judgment [#18] on the habeas petition.[1] Because Neziri’s detention has become unreasonably prolonged, Neziri is entitled to habeas relief in the form of an individualized bond hearing before an Immigration Judge. The Petition for Writ of Habeas Corpus [#1] is ALLOWED IN PART and DENIED IN PART and Defendants’ Motion for Summary Judgment [#18] is DENIED.

II. Factual and Procedural Background

The parties do not dispute any material facts. Neziri, an Albanian citizen, entered the United States in January 2001. Mot. Summ. J. Ex. N 1 [#18-16] (Decision to Detain). Based on his false Italian passport, the United States admitted Neziri as a purported Italian citizen under the Visa Waiver Program, 8 U.S.C. § 1187, which allows entrants from eligible countries such as Italy to stay in the United States for ninety days, subject to a number of requirements. Id.

In 2011, Department of Homeland Security (“DHS”) issued Neziri a Notice to Appear. Mot. Summ. J. Ex. G [#18-9] (Notice to Appear dated December 6, 2011). Neziri subsequently cooperated with the Federal Bureau of Investigation in a criminal investigation, Opp’n Mot. Summ. J. Ex. D 2 [#21-4] (Department of Homeland Security’s Written Closing Argument, dated July 17, 2014), and DHS Immigration and Customs Enforcement (“ICE”) granted Neziri deferred action status, which allowed Neziri to remain in the United States and obtain employment authorization. Mot. Summ. J. Ex. I 1-2 [#18-11] (Notice of Deferred Action).

In December 2013, ICE revoked Neziri’s deferred action status following two arrests for operating a vehicle under the influence. Id. at 2. Neziri was issued a Notice of Intent to Issue a Final Administrative Removal Order as a Visa Waiver Program violator, Mot. Summ. J. Ex. F. 2 [#18-8] (Notice of Intent to Issue a Final Administrative Removal Order), and a final administrative removal order. Id. at 1 (Final Administrative Order). ICE also determined that Neziri was to be detained and he was taken into custody on January 16, 2014. Mot. Summ. J. Ex. K 3 [#18-13] (Record of Deportable/Inadmissible Alien); Ex. E [#18-7] (Notice to EOIR).

Since being detained, Neziri has challenged his removal and his immigration proceedings before Immigration Judges, the Board of Immigration Appeals (“BIA”), and the United States Court of Appeals for the First Circuit, where his Petition for Direct Review is pending and briefing is underway. Dkt., Neziri v. Lynch, No. 16-1101 (1st Cir. 2016).

Meanwhile, on September 3, 2015, Neziri commenced the instant action challenging his detention. Compl. [#1].[2]

On November 10, 2015, ICE decided as a matter of discretion to continue to detain Neziri, citing his recidivist criminal history and risk of flight. Mot. Summ. J. Ex. N (ICE Decision to Detain, dated November 10, 2015).

Neziri has been continually detained since January 16, 2014, a period of over twenty-seven months.

III. Discussion

8 U.S.C. § 1226(a) provides for the arrest and detention of an alien “pending a decision on whether the alien is to be removed from the United States.” The statute provides further that, except as provided for certain criminal aliens, the government may either continue to detain an ...


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