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In a stiff rebuke to the government, a federal judge in Philadelphia has ordered the immediate release of a Yugoslav native who has been jailed for more than a year, awaiting deportation, saying that the case was marked by “egregious” delays and that there was no reason to believe that the new government in Yugoslavia would ever agree to take him. Fadil Kacanic has been in the United States since 1978. After he pleaded guilty to federal fraud and conspiracy charges and finished serving a 33-month prison sentence, he was ordered deported in November 2001. But due to the recent political upheaval in Yugoslavia, the task of effectuating the removal of Kacanic was no simple matter. As Kacanic’s lawyer, Brian E. Appel of Bensalem, Pa.’s Groen Lamm Goldberg & Rubenstone, said in his habeas corpus brief, “Petitioner’s country of origin (Yugoslavia) is no longer in existence, and the various states operating from the Yugoslavian (Federal Republic) Embassy in Washington, D.C., have refused to honor his … original citizenship, in essence taking the position that Federal Republic of Yugoslavia is not a ‘successor state’ to the former Yugoslavia.” When Kacanic lived in the country, Appel said, it was known as the Socialist Federal Republic of Yugoslavia. Now the embassy in Washington is the home of the Federal Republic of Yugoslavia, which is made up of Serbia and Montenegro. In his 15-page opinion in Kacanic v. Elwood, Senior U.S. District Judge Clarence C. Newcomer said he found it “disturbing” that during the year that Kacanic had been awaiting removal, the U.S. Immigration and Naturalization Service had never asked why his travel papers had not issued. Newcomer said he rejected the government’s explanation that INS officials had never asked why papers had not been issued and had not acted more frequently in Kacanic’s case because they feared upsetting the Yugoslav Consulate. “This court does not doubt the INS’s expertise in dealing with foreign consulates, however, it simply can not condone this level of diligence when a man is sitting in jail without due process,” Newcomer wrote. Government lawyers also argued that since Yugoslavia had never formally denied the request for travel papers, the court should find that the removal of Kacanic is likely to occur in the “reasonably foreseeable future.” Newcomer disagreed, saying, “It simply does not follow from the fact that Yugoslavia has not said ‘no’ that they must be ready to say ‘yes’ within the foreseeable future.” Citing a recent decision by the U.S. Supreme Court, Newcomer found that once a deported alien has been detained for more than six months, the burden shifts to the government to show that removal will be effectuated within the foreseeable future. “That there remains some possibility of removal does not satisfy the government’s burden,” Newcomer wrote. The judge found that immigration laws allow the INS to detain aliens following a final order of deportation for at least 90 days and sometimes longer. Although the wording of the statutes don’t put any limit on the period of post-final-order detention, Newcomer found, the U.S. Supreme Court recently held in Zadvydas v. Davis that a “reasonableness limitation” must be read into the statute. The justices found that to allow a statute to authorize the attorney general to hold a person indefinitely without trial would raise a serious constitutional problem. Newcomer said the high court went on to set up a framework to use when determining whether post-final-order detention in excess of six months is permitted. Initially, the justices said, the burden is on the alien, who must provide “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” The burden then shifts to the government to “respond with evidence to rebut that showing.” Newcomer found that Kacanic satisfied his burden by pointing to the amount of time he had been jailed and the evidence of inaction by both the Yugoslav embassy and the INS. Although the Supreme Court set no maximum time limit for post-final-order detention, Newcomer found that the justices did hold that, as the period of detention grows, “what counts as the ‘reasonably foreseeable future’ conversely shrinks.” In Kacanic’s case, Newcomer said, “the period of detention is almost double what the [Supreme] Court considered presumptively reasonable. Accordingly, when deciding whether removal is likely in the reasonably foreseeable future the time remaining for the INS to effectuate the petitioner’s removal is relatively short.” Newcomer concluded that “there is no legitimate reason to believe that removal will occur in the reasonably foreseeable future” because Yugoslav officials had never said they are likely to issue travel papers. And the INS’ own actions, Newcomer said, “have shown that it believes that it is unlikely the petitioner will be removed in the near future.” In June, an INS official said that any grant of travel papers in Kacanic’s case “does not look likely soon,” that efforts to obtain travel documents had been “fruitless” and that the Yugoslav Embassy “does not know when permission may be issued.” Kacanic was also recently transferred from a federal facility in York, Pa., which is designed for short-term detainees, to the Bucks County Prison, which holds aliens who are going to be in custody for long periods. “This action is an implicit admission that the INS foresees the petitioner remaining in custody for the reasonably foreseeable future,” Newcomer wrote. As a result, Newcomer ordered that Kacanic be released from jail and placed on “supervised release” for three years — a condition that was imposed when he was sentenced in the Northern District of California. “This form of release will assure his availability if and when the INS receives travel papers for the petitioner,” Newcomer wrote. Appel said that under supervised release, Kacanic will be required to regularly report to a probation officer.

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