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For the past year and a half, Jose Torres should have been walking either the streets of Connecticut or the roads of the Dominican Republic. Instead, he is sitting in a jail cell in the Enfield Correctional Center, waiting for government agencies to hash out who has responsibility for him. Torres’ situation is an example of the battle many immigrants in the state are facing against the federal government. Torres was ordered deported by federal immigration officials because of a narcotics conviction that landed him in state prison. The state Parole Board voted to release Torres 18 months ago, on the condition that he be handed over to the U.S. Bureau of Immigration and Customs Enforcement (BICE) for deportation. But BICE has refused to take custody of Torres, asserting that it has no responsibility to assume custody until the end of his actual sentence, in August of 2005. And Torres is not alone in his predicament. “The problem is the immigration detainer … technically the [government] is stating [people like Torres] still have time to serve,” said Jennifer Rodriguez, an immigration law associate with the Law Offices of Michael Boyle, in North Haven, Conn. “But Immigration doesn’t do anything about it. It’s like banging your head against the wall. Many people, for months, and months, and months are just stuck in jail waiting for the INS to come pick them up. And the state of Connecticut is having to foot the bill.” But a federal judge is forcing the issue by asking several defendants, including two state agencies, to show cause why Torres cannot be released from jail pending his deportation. In a ruling issued late last month, U.S. District Judge Janet Bond Arterton allowed Torres’ request to amend his habeas petition, to add the state Department of Correction, the Board of Parole and a warden as defendants along with BICE. Arterton also wants a lawyer appointed for Torres, who has been acting pro se, and for state defendants to respond by Sept. 3. Douglas Morabito, an Assistant U.S. Attorney, argues that BICE has no obligation to remove Torres prior to his release from state custody under the Immigration and Nationality Act. Morabito also contends that Torres’ status of being “voted to parole” does not confer an “absolute right to be released from state custody.” Torres claims that under the U.S. Supreme Court’s 2001 ruling in Zadvydas v. Davis, and by “virtue of his vote to parole,” he had done his time. He argues that being held for 18 months past his due date, without being paroled or deported, constitutes a due process violation. In Zadvydas, the Court ruled that detaining aliens indefinitely under federal post-removal-period detention statutes violated aliens’ procedural due process rights, and that the statutes implied a presumptively reasonable detention period. Although Zadvydas dealt with aliens who could not be deported because no country would accept them, the Court ruled the detention provision could be broadly applied to aliens ordered removed for many reasons. The government claims that Torres cannot be released because he has not satisfied a parole condition that, because of his pending deportation, he must be formally released to immigration officials. So far, though, the Immigration and Naturalization Service has refused to process the paperwork to take custody of Torres. Arterton said no explanation is given on how a parolee satisfies the condition of being paroled to the immigration agency other than “by agreeing to be taken into custody and removed if the INS chooses to do so.” A Board of Parole spokesman declined comment. Comments from the DOC could not be obtained by press time. Arterton said Torres’ petition raises the question of whether being voted to parole constitutes a release from confinement under the Immigration and Nationality Act — and triggering corresponding time-sensitive safeguards under Zadvydas — or whether Torres is not considered released from state custody until his final release date. “Further, it appears that Torres’ only potentially unsatisfied condition of parole is that he is ‘paroled to [his] immigration detainer,’” Arterton wrote. “This ‘condition’ does not specify whether Torres would otherwise remain incarcerated had there been no INS detainer or whether Torres would otherwise be released on parole had there been no INS detainer.” Arterton called the government’s arguments “insufficient and problematic,” in that it appeared to represent that parole for aliens with INS detainers is not actually parole, while also acknowledging that if Torres is not taken into custody by the INS he would be released into a full parole program.

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