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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

                        NOT PRECEDENTIAL

                           No. 01-1074


                          CHARLES ZEMSKI

             Charles Zemski, Acting District Director
             Immigration and Naturalization Service,
         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                   (D.C. Civil No. 00-cv-04394)
             District Judge:  Hon. Bruce W. Kauffman
                    Argued September 20, 2001

            Before:  SLOVITER, NYGAARD and McKEE, Circuit Judges
                     (Filed: January 4, 2001)
Michael L. Levy
     United States Attorney
Linda Shafer Bocchino
     Assistant United States Attorney
Philadelphia, PA 19106-4476.Stuart E. Schiffer
     Acting Assistant Attorney General
David J. Kline
     Principal Deputy Director
                    Hugh G. Mullane     (ARGUED)
     Senior Litigation Counsel
Office of Immigration Litigation
Civil Division
United States Justice Department
Washington, D.C. 20044

     Attorneys for Appellant

               James J. Orlow (ARGUED)
Philadelphia, PA 19106

     Attorney for Appellee

Marvin E. Frankel
Jeffrey S. Trachtman
Jennifer L. Rochon
Kramer Levin Naftalis & Frankel LLP
New York, New York 10022

Nancy Morawetz
Washington Square Legal Services, Inc.
New York, New York 10012

     Attorneys for Amici Curiae,
     Citizens and Immigrants for Equal Justice and
     American Immigration Lawyers Association


SLOVITER, Circuit Judge.

     Sabrija Radoncic, a citizen and native of Serbia-Montenegro, entered the United
States without inspection in March 1991.  He resided in New York with his wife, also a
citizen and native of Serbia-Montenegro, and their two minor United States citizen
children.  In November 1993, Radoncic and his wife, who are Muslims, applied for
asylum on the basis of religious persecution.  In March 1996, the Immigration and
Naturalization Service ("INS") issued Orders to Show Cause charging Radoncic and his
wife with deportability for entering the country without inspection pursuant to former
Immigration and Naturalization Act ("INA") . 241(a)(1)(B), 8 U.S.C. . 1251(a)(1)(B). 
At a hearing before an immigration judge ("IJ") on July 24, 1996, Radoncic and his wife
conceded deportability as charged, but requested asylum, withholding of deportation, and
voluntary departure in the alternative.  Radoncic also sought withholding or deferral of
removal pursuant to Article 3 of the Convention Against Torture.  The INS set a hearing
date of September 25, 1997.
     On August 15, 1996, Radoncic was arrested by the United States Border Patrol in
Vermont and charged with smuggling other Muslims from Serbia-Montenegro into the
United States.  He was held in custody until August 29, 1996 when a $5000 bond was
posted and he was released from custody.  Radoncic remained free from custody
throughout the duration of the criminal trial.  On motion by the INS on August 25, 1997,
the IJ presiding over Radoncic's deportation proceedings adjourned the proceedings
pending the result of the criminal case inasmuch as that outcome would affect
Radoncic's eligibility for relief.  The hearing was reset for March 4, 1998.
     On January 25, 1999, Radoncic was convicted of smuggling aliens into the United
States in violation of 8 U.S.C. . 1324(a)(1)(A)(i) and of conspiracy to smuggle aliens
into the United States in violation of 18 U.S.C. . 371.  Radoncic was sentenced to
eighteen months in prison and he voluntarily surrendered to serve on February 23, 1999. 
In imposing the sentence the presiding judge, Judge William K. Sessions III of the
United States District Court for the District of Vermont, stated,
                    The Court finds this to be an extraordinary situation. 
          Whether or not profit was gained, the defendant did not
          become wealthy.  The major purpose was in service of his
          community in Yugoslavia and Astoria, NY.  Also, the Court
          finds that this defendant is not a dangerous person. 
          Therefore, the Court strenuously recommends that this
          defendant not be deported upon completion of his sentence
          and that this statement from the Court be sent to the
          Immigration Court.

App. at 15.
     At the March 4, 1998 hearing, the IJ noted that Radoncic had been convicted and
would be sentenced at a later date.  On this basis, the IJ found Radoncic ineligible for
asylum but potentially still eligible for withholding of deportation and set an individual
hearing date for April 20, 1998.  On April 20, 1998, Radoncic testified in support of his
applications for relief during part of a multi-day hearing in which testimony and evidence
was offered regarding his eligibility for relief.  He claimed that as a Muslim he was
subjected to repeated discrimination and threats by Serbian authorities, including a four-
month prison sentence for not responding to a draft notice, and feared future persecution
should he be forced to return.  On April 11, 2000, the IJ concluded that Radoncic was not
credible based on his submission of two fraudulent conviction documents which
purported to show that he had been convicted of hostile activity against Yugoslavia, as
well as inherent inconsistencies in his evidence.  The judge subsequently denied
Radoncic's application for relief from deportation and ordered that he be removed to
Serbia-Montenegro.  An appeal from that decision to the Board of Immigration Appeals
("BIA") was pending at the time of oral arguments.  Since that time, we have learned that
the BIA denied Radoncic's appeal and Radoncic has filed a motion for reconsideration
before the BIA as well as an appeal of the BIA's decision, currently pending before the
Court of Appeals for the Second Circuit.
     Upon Radoncic's release from federal incarceration in May 2000, the INS placed
him in detention in the general population of the York County Prison, and denied him
release from custody pursuant to INA . 236(c), 8 U.S.C. . 1226(c) (2001).  On August
28, 2000, Radoncic filed a petition for writ of habeas corpus in the United States District
Court for the Eastern District of Pennsylvania challenging the constitutionality of his
detention.  In his petition, Radoncic argued that detention without an individualized
hearing on risk of flight or danger to the community violates his Fifth Amendment Due
Process rights.  On November 8, 2000, the District Court granted his petition, finding
that due process required an individualized hearing on the necessity of detention, and
ordered Radoncic released from custody unless the government commenced an
individualized evaluation within thirty days to determine if detention was necessary. 
Radoncic v. Zemski, 131 F. Supp. 2d 814 (E.D.Pa. 2000).  Additionally, the District
Court ordered that if Radoncic demonstrated that he was not a threat to the community or
a flight risk, the government must immediately release him from custody on bond upon
reasonable conditions.  Id. at 818-19.  The government timely appealed.
     On November 29, 2000, Radoncic appeared before an IJ to request bond in light
of the District Court order.  The IJ set bond at $5000 which Radoncic posted.  Radoncic
is no longer in INS custody and awaits a decision from the Second Circuit on his appeal
from the deportation order.
     In Patel v. Zemski, No. 01-2398, 2001 U.S. App. LEXIS 26907, at *2 (3d Cir.
Dec. 19, 2001), a case argued on the same day as the one before us here, the issue
presented was whether an alien can be mandatorily detained pending a final
determination on removal without any opportunity for an individualized determination of
the alien's risk of flight or danger to the community.  After considering the arguments on
behalf of the alien and the INS, we held that "mandatory detention of aliens after they
have been found subject to removal but who have not yet been ordered removed because
they are pursuing their administrative remedies violates their due process rights unless
they have been afforded the opportunity for an individualized hearing at which they can
show that they do not pose a flight risk or danger to the community."  Id. at *40.
     Although the facts in Patel differ to some extent from those applicable to
Radoncic, the legal issue is the same.  It follows that, as the District Court held, Radoncic
was constitutionally entitled to an individualized assessment of the risk of flight and
danger to the community on a current basis.  The relevant facts with respect to Radoncic,
and their applicability to the factors that will determine whether he should be released or
detained, are matters that can be considered by the judge presiding over that
individualized assessment.
     Accordingly, we will affirm the decision of the District Court.


          Please file the foregoing opinion.

                                             /s/   Delores K. Sloviter                    
                           Circuit Judge.