Full opinion text
ORDER RICHARD J. ARCARA, Chief Judge. This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1). On December 15, 2008, petitioner filed a petition for a writ of habeas corpus. On March 25, 2009, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that petitioner’s petition be granted and that a writ of habeas corpus issue directing his release from custody subject to appropriate conditions of supervision of DHS/ICE. On the same day, Magistrate Judge Bianchini issued a separate order requiring petitioner’s immediate release on bail pending the outcome of the habeas proceedings. This Court denied a motion by the government for an emergency stay of Magistrate Judge Bianchini’s order of immediate release. Petitioner was released from DHS/ ICE custody on or around April 2, 2009. Respondents filed objections to the Report and Recommendation on April 15, 2009 and petitioner filed a response thereto. Oral argument on the objections was held on May 22, 2009. Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation. Additionally, the Court notes that petitioner has been released for approximately eight weeks as of the date of this Order. Over the past eight weeks, according to representations from petitioner’s counsel, petitioner has maintained contact with his state parole officers and lived at home with his family without incident. To date, petitioner’s conduct since his release further justifies the findings that Magistrate Judge Bianchini made in his Report and Recommendation. Accordingly, for the reasons set forth in Magistrate Judge Bianchini’s Report and Recommendation, petitioner’s petition is granted. A writ of habeas corpus shall issue directing his continued release from custody subject to appropriate conditions of supervision of DHS/ICE. The Clerk of Court shall take all steps necessary to close the case. SO ORDERED. REPORT AND RECOMMENDATION VICTOR E. BIANCHINI, United States Magistrate Judge. I. Introduction Represented by counsel, petitioner Giuseppe D’Alessandro (hereinafter, “D’Alessandro” or “petitioner”), an alien under a final order of removal, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention in respondents’ custody (hereinafter, “respondents”, “DHS/ICE”, or “the Government”). This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1). For the reasons that follow, I recommend that D’Alessandro’s petition be granted and that a writ of habeas corpus issue directing his release from custody subject to appropriate conditions of supervision by DHS/ICE. II. Factual Background and Procedural History On July 25, 1978, petitioner entered the U.S. under a B-2 visa. On June 22, 1981, his immigration status adjusted at Philadelphia, PA, to a Legal Permanent Resident under INA § 245. Petitioner is married with one son; his wife and son are U.S. citizens and live in Queens, New York. On August 14, 1989, D’Alessandro was arrested on charges of Kidnaping 1st (with intent to collect ransom; class A-l); Attempted Robbery 1st (class C); Coercion 1st (class D); Non-Auto Grand Larceny 2nd (class D); and Assault 2nd (intent to cause bodily injury). This was his first and only contact with the criminal justice system. D’Alessandro remained free on bond during the pendency of his criminal proceedings. Apparently with the advice and consent of his trial counsel, D’Alessandro rejected a plea offer involving probation only and no jail time, and elected to proceed to trial. On June 25, 1991, a guilty verdict was entered in New York State Supreme Court, County of New York, following a jury trial. Upon D’Alessandro’s motion to set aside the verdict under New York Criminal Procedure Law (“C.P.L.”) § 330.30, the trial court granted a new trial, holding that the cumulative effect of the prosecutor’s misconduct was overwhelmingly prejudicial. The District Attorney appealed. On December 22, 1993, the Appellate Division, First Department, reversed the trial court and reinstated the jury’s verdict. People v. D’Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001 (App. Div. 1st Dept.1992). The First Department held that the prosecutor “on occasion did exceed the bounds of legitimate fair comment as when, for example, she suggested that a witness might be exposing himself to danger by testifying, appealed to the jurors’ generalized fear of crime, and their sympathies, and vouched for the credibility of the People’s witnesses.” Id. (citations omitted). However, the summation “was within the range of acceptability, and it cannot be reasonably found that she tried to depict defendant as a mobster who merited punishment for his general character and intimidation of witnesses rather than for the specific crimes with which he was charged.” Id. Because the First Department found the proof of guilt “overwhelming,” any misconduct was “harmless error” and petitioner’s right to a fair trial “was not abridged as a matter of law.” Id. Accordingly, “the trial court was not warranted in granting the motion to vacate the conviction under C.P.L. § 330.30.” Id. Throughout this time, D’Alessandro was released on bond. On April 20, 1993, petitioner appeared voluntarily for sentencing, knowing that he was to be sentenced to a minimum of fifteen (15) years in prison. After stating his dismay at having to sentence D’Alessandro to jail time, the trial court imposed concurrent terms of imprisonment, the longest of which was 15 years to life on the Kidnaping 1st conviction. This was the mandatory minimum under the Penal Law. On May 10, 1993, petitioner entered NYSDOCS and serves his term at Arthur-kill Correctional Facility on Staten Island. During his incarceration, he maintained an “exemplary” record, as attested to by the District Attorney, John Irwin, who on dated June 26, 2007, wrote a letter of support together with the prosecuting deputy, regarding D’Alessandro’s first, successful parole application. (Docket No. 7-2). On August 22, 1996, the First Department affirmed D’Alessandro’s conviction on direct appeal, finding that the evidence was “overwhelming,” rendering the any prosecutorial misconduct harmless error; the jury’s determination as to fact and credibility were supported by the record; the claim regarding the propriety of the kidnaping jury instructions was un preserved; and the “available record indicates that defendant received the effective assistance of counsel, trial counsel having made appropriate pre-trial, trial and post-trial motions and applications, vigorously cross-examined the People’s witness and presented witnesses in support of the defense position that there had been no abduction or restraint of the complainant, and interposed numerous objections to summation comments by the prosecutor. Trial counsel’s failure to object to the jury charge on kidnaping in the first degree, which in any event does not constitute reversible error in the circumstances, does not render trial counsel’s representation less than meaningful.” People v. D’Alessandro, 230 A.D.2d 656, 656-57, 646 N.Y.S.2d 792 (App.Div. 1st Dept.1996). On February 19, 1998, DHS issued a notice to appear based upon his New York state convictions, which are considered “aggravated felony” convictions rendering petitioner removable under INA § 237(a) (2) (A) (iii). On or about October 26,1998, or November 17, 1998, an Immigration Judge (“IJ”) in Fishkill, New York, ordered petitioner deported. The IJ found petitioner ineligible for a waiver of his inadmissibility under former section 212(c) of INA, 8 U.S.C. § 1182(c), because he was in removal proceedings. On March 30, 1999, the Bureau of Immigration Appeals (“BIA”) affirmed the IJ’s decision ordering deportation. On October 15, 2007, ICE informed DHS that they had valid travel document for petitioner, and when New York State Department of Correctional Services (“NYSDOCS”) set a release date, they would take him into DHS custody and arrange for his departure from the U.S. On November 19, 2007, after serving 14/é years of 15 — to—life sentence, petitioner was released on parole after his first parole appearance. He was immediately placed in custody of U.S. immigration. On November 27, 2007, the BIA denied D’Alessandro’s motion to reopen immigration proceedings based upon petitioner’s claim that he was eligible for relief under former § 212(c) of the INA in light of the Supreme Court’s decision in INS v. St Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). On November 27, 2007, D’Alessandro filed petition for review of BIA’s denial of motion to reopen in the United States Court of Appeals for the Second Circuit. He also moved for a formal stay order from Circuit. On February 19, 2008, DHS denied D’Alessandro release after the 90-day custody review on the basis that his removal was “reasonably foreseeable.” Charles Mule, Acting Field Office Director, issued the Decision to Continue Detention, stating that D’Alessandro had “failed to demonstrate that there is no significant like hood [sic] of your repatriation in the foreseeable future, pending the 2nd Circuit issues [sic] a decision on your case.” (Docket No. 4-3). This decision was “made based on a review of your file and consideration of information you submitted to ICE’s reviewing officials.” Id. No specific mention was made of D’Alessandro’s criminal history, flight risk, danger to the community, or other release considerations set forth in 8 C.F.R. § 241.4 in this letter. On October 20, 2008, petitioner’s attorney requested a custody review by DHS. (Docket No. 4-3). In an undated letter, received by petitioner’s counsel on November 10, 2008, Martin Herron of DHS denied the request for release “[u]pon the totality of information involved in this case” and stated “[t]here is no appeal to this decision.” (Docket No. 4-3). On November 26, 2008, the New York Court of Appeals, in an unusual move, agreed to review D’Alessandro’s conviction by mandamus. The Court of Appeals certified that “questions of law requiring review pursuant to C.P.L. § 460.20 were involved in the order of the First Department’s Appellate Division dated 8/19/2008, denying defendant’s motion for reargument of the denial of his writ of error coram nobis entered 5/11/2000 (People v. D’Alessandro, 272 A.D.2d 1002, 2000 WL 1110871 (App.Div. 1st Dept.2000)).” See People v. D’Alessandro, 11 N.Y.3d 854, 872 N.Y.S.2d 77, 900 N.E.2d 560 (N.Y. Nov. 26, 2008). On December 15, 2008, through counsel, D’Alessandro filed the instant 28 U.S.C. § 2241 petition for habeas corpus relief in this Court. On January 28, 2009, the Second Circuit granted petitioner’s motion for extension of time until February 18, 2009, to file his reply brief on the petition for reopening; however, no decision was rendered on the stay request. There is no official indication on the Second Circuit’s docket at this time as to when oral argument will be held or a final decision rendered. Respondents’ attorney indicated at the hearing held before me on March 20, 2009, that oral argument has been proposed for sometime in April 2009, before the Second Circuit. On February 10, 2009, petitioner’s counsel submitted a letter providing an update of D’Alessandro’s circumstances and requesting another custody review from DHS. On February 11, 2009, Martin Herron (“Herron”), Field Office Director with DHS, issued a letter decision to continue D’Alessandro’s custody based upon a “review of your file and/or your personal interview and consideration of any information you submitted to ICE’s reviewing officials.” (Docket No. 4-3). After reviewing the underlying conviction and immigration proceedings, Herron stated, “Your criminal history includes convictions for kidnapping [sic] with intent to collect ransom, attempted robbery-lst, Assault with intent to cause bodily injury, attempted grand larceny-2nd and coercion. These convictions are considered severe in nature making you a threat to the community and a flight risk. Because of this history of disregard for the laws and order of the United States and its officials, you will not be released at this time. Please be advised that medical staff is available 24/7 to address any health issues that you may have during your detention. Once you have exhausted your appeals, Immigration and Customs Enforcement will continue to pursue the issuance of a travel document to facilitate your removal from the United States to Italy. [ICE] will conduct another review of your case in accordance with current regulations. It is in your best interest to maintain proper behavior while awaiting this review.” (Docket No. 4-3). That is the entirety of the custody decision. On March 10, 2009, petitioner’s counsel moved for expedited hearing and oral argument based upon allegations of petitioner’s deteriorating health. On March 20, 2009, an expedited hearing and oral argument were held before the undersigned. As of the hearing, D’Alessandro has been in DHS/ICE custody since November 27, 2007, meaning that his detention has lasted sixteen (16) months, ten (10) months longer than the presumptively reasonable six-month period identified by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). At the hearing, respondents called one witness, Dr. Brenda Bradley, the Clinical Medical Director of the Federal Detention Facility in Batavia, New York (“the Batavia FDF”), since March 1998. Dr. Bradley testified that the FDF’s medical unit is “fully operational, 24/7” and has a staff of two physician assistants, two nurse practitioners, and a pharmacy. The only physician is Dr. Bradley. She is responsible for 666 beds at the FDF (two-thirds are reserved for DHS, and one-third for the United States Marshal’s Service), which has an daily average population of 580 inmates. Dr. Bradley also is responsible for “other” medical facilities operated by DHS. She testified that the average length of stay at the Batavia FDF is “about 49 days” and confirmed that the average length of stay is less than six months. Dr. Bradley indicated that she first examined D’Alessandro, and reviewed his medical records, on March 11, 2009. To avoid repetition, and for ease of reference, I recount the sum and substance of Dr. Bradley’s testimony regarding D’Alessandro’s medical problems below, in the portion of the Report and Recommendation to which it is directly relevant. Due to the urgency of this matter, I believe it is appropriate to issue the within Report and Recommendation without waiting for an official transcript to be prepared. I have relied upon my extensive notes and those taken by my staff at the hearing. To the extent that they vary from the transcript, this Court defers to the transcript. For the reasons that follow, I strongly recommend finding that DHS’s review of D’Alessandro’s custody has been grossly defective in constitutional terms, and that its decisions to continue detention have neither been in accordance either with Due Process requirements as interpreted by Zadvydas v. Davis nor in compliance with DHS’s own regulations. Furthermore, I recommend finding that DHS’s conclusion that D’Alessandro is a flight risk or a danger to the community is patently unreasonable in light of the evidence in the record. Indeed, it is contradicted by the record. Finally, I recommend concluding that D’Alessandro has demonstrated that his detention is illegal under Zadvydas in that he has shown “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” 533 U.S. at 701, 121 S.Ct. 2491, and that respondents have not rebutted that showing. Accordingly, I recommend that the petition be granted unconditionally, and D’Alessandro released immediately pursuant to reasonable conditions of supervision and bond, as determined by DHS, subject to review and oversight by the District Court. III. Discussion A. Jurisdiction I note at the outset that “the primary federal habeas corpus statute, 28 U.S.C. § 2241, confers jurisdiction upon the federal courts to hear these cases.” Zadvydas v. Davis, 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing 28 U.S.C. § 2241(c)(3) (authorizing any person to claim in federal court that he or she is being held “in custody in violation of the Constitution or laws ... of the United States”)). The Supreme Court in Zadvydas noted that various pre-IIRIRA statutory changes “left habeas untouched as the basic method for obtaining review of continued custody after a deportation order had become final.” Id. (citation omitted). And, while the more recent Congressional enactments limit the circumstances in which judicial review of deportation decisions is available, none applies to “deprive an alien of the right to rely on 28 U.S.C. § 2241 to challenge detention that is without statutory authority.” Id. Thus, Zadvydas concluded, “[28 U.S.C.] § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.” 533 U.S. at 688,121 S.Ct. 2491. B. The Post-Removal-Period Detention Statute: Title 8 U.S.C. § 1231(a)(6) “The post-removal-period detention statute is one of a related set of statutes and regulations that govern detention during and after removal proceedings.” Zadvy das v. Davis, 533 U.S. at 683, 121 S.Ct. 2491. During the pendency of their removal proceedings, “most aliens may be released on bond or paroled.” Id. (citing 66 Stat. 204, as added and amended, 110 Stat. 3009-585, 8 U.S.C. §§ 1226(a)(2), (c) (1994 ed., Supp. V)). However, “[a]fter entry of a final removal order and during the 90-day removal period, ... aliens must be held in custody.” Id. (quoting 8 U.S.C. § 1231(a)(2)). After the 90-day removal period has ended, “the Government ‘may’ continue to detain an alien who still remains here or release that alien under supervision.” Id. (quoting 8 U.S.C. § 1231(a)(6)). As D’Alessandro points out, “[t]he Government states that [he] is properly held pursuant to 8 U.S.C. § 1231.” Petitioner’s Reply Memorandum of Law (“Pet’r Reply”) at 4 (Docket No. 8). This position was reiterated by the Government at the expedited hearing and oral argument held in this matter on March 20, 2009. The Government here does not contest that the 90-day removal period has come and gone, as evidenced by its pleadings and statements at the hearing, as well as by its attempt, albeit deficient, to provide the post-removal-period custody reviews required by the Immigration and Naturalization Service (INS) regulations. C. Zadvydas and the Constitutionality of Civil Detention The post-removal-period detention statute at issue in Zadvydas, Title 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V), “applies to certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien ‘who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.’ ” Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491 (quoting 8 U.S.C. § 1231(a)(6)). The statute provides further that “an alien who falls into one of these categories ‘may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.’ ” Id. (quoting 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V)). See also Respondent’s Memorandum of Law (“Resp’t Mem.”) at 4-5 (Docket No. 5). As was the case in Zadvydas, “[t]he proceedings at issue here are civil, not criminal, and [this Court] assume[s] that they are nonpunitive in purpose and effect.” Id. In Zadvydas, the Supreme Court proceeded from the assumption that, as here, the detention was not for punitive purposes. Respondents do not, and cannot attempt to argue here that the instant matter is criminal or that the detention may be for the purpose of continuing to exact punitive or retributive measures against D’Alessandro. In considering the constitutionality of D’Alessandro’s detention in this case it bears noting the Supreme Court’s introductory comments from the seminal case of Zadvydas, 533 U.S. 678, 121 S.Ct. 2491, regarding the limited tolerance our nation’s Constitution has for civil detention: A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment’s Due Process Clause forbids the Government to ‘depriv[e]’ any “person ... of ... liberty ... without due process of law.” Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that Clause protects. See Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), or, in certain special and “narrow” non-punitive “circumstances,” Foucha, [504 U.S.] at 80, 112 S.Ct. 1780, where a “special justification, such as harm-threatening mental illness, outweighs the ‘individual’s constitutionally protected interest in avoiding physical restraint.’ ” Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 (stating that “[t]here [wa]s no sufficiently strong special justification here for indefinite civil detention — at least as administered under th[e] statute”) (emphasis supplied). Turning to the two rationales proffered by the Government for the civil detention of the aliens in Zadvydas, the Supreme Court found them not to be a “sufficiently strong special justification here for indefinite civil detention — at least as administered under this statute.” 533 U.S. at 691, 121 S.Ct. 2491. The first regulatory goal of INA § 241(a) is to “ensur[e] the appearance of aliens at future immigration proceedings” and the second, to “[p]revent[] danger to the community.” Id. (quotation to record omitted). However, the Supreme Court stated, “by definition the first justification — preventing flight — is weak or nonexistent where removal seems a remote possibility at best.” Id. “[W]here detention’s goal is no longer practically attainable, detention no longer ‘bear[s][a] reasonable relation to the purpose for which the individual [was] committed.’ ” Id. (quoting Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972)). In D’Alessandro’s case, one reasonably could say that whether his removal is “practically attainable” subject to significant dispute, given the unique posture of the two legal proceedings he is pursuing with regard to the criminal conviction that forms the basis for his removal order, and the petition to reopen his BIA proceedings. In other words, as discussed below, this Court believes that his detention has ceased to “bear a reasonable relation to the purpose for which [he][was] committed.” Id. (quotation omitted) (alterations added). Turning to the second statutory justification discussed in Zadvydas, and the only one which DHS has offered in its decisions to continue D’Alessandro’s custody, “protecting the community” “does not necessarily diminish in force over time.” Id. at 691, 121 S.Ct. 2491. However, and this is of crucial importance for D’Alessandro, the Supreme Court has “upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections.” Id. (emphasis supplied) (comparing Kansas v. Hendricks, 521 U.S. 346, 368, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (upholding scheme that imposes detention upon “a small segment of particularly dangerous individuals” and provides “strict procedural safeguards”), United States v. Salerno, 481 U.S. 739, 747, 750-752, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (in upholding pretrial detention, stressing “stringent time limitations,” the fact that detention is reserved for the “most serious of crimes,” the requirement of proof of dangerousness by clear and convincing evidence, and the presence of judicial safeguards) with Foucha v. Louisiana, 504 U.S. at 81-83, 112 S.Ct. 1780 (striking down insanity-related detention system that placed burden on detainee to prove nondangerousness)). Furthermore, where the “preventive detention is of potentially indefinite duration,” the Supreme Court has “also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger.” Id. (emphasis supplied) (citing Hendricks, 521 U.S. at 358, 368, 117 S.Ct. 2072). The Supreme Court held in Zadvydas that neither securing appearance of the alien or preventing danger to the community are “sufficiently [and] specially strong” justifications — whether taken singly or together — to permit indefinite civil detention under INA § 241(a), 8 U.S.C. § 1231(a). Id. at 690-91, 121 S.Ct. 2491. Moreover, the record demonstrates that D’Alessandro is neither a danger to the community nor a flight risk, and he has never missed an appearance in his state court criminal proceedings or in his immigration proceedings. Thus, the regulatory justifications offered by the Government in Zadvydas, and which the Supreme Court found to be not sufficiently compelling to warrant prolonged civil detention, are not implicated in D’Alessandro’s case. The Government in Zadvydas “argue[d] that the statute means what it literally says” in that “[i]t sets no ‘limit on the length of time beyond the removal period that an alien who falls within one of the Section 1231(a)(6) categories may be detained.’ ” Id. (quotation to record omitted). Thus, respondents in the instant case argue, “ ‘whether to continue to detain such an alien and, if so, in what circumstances and for how long’ is up to the Attorney General, not up to the courts.” Id. (quotation to record omitted). In other words, the Government in Zadvydas argued, indefinite detention was permitted by the statute. See id. The Supreme Court explicitly disagreed. Id.; accord, e.g., Ly v. Hansen, 351 F.3d 263, 269 (6th Cir.2003) (“While it is true that a removable alien has no right to be in the country, it does not mean that he has no right to be at liberty. Zadvydas established that deportable aliens, even those who had already been ordered removed, possess a substantive Fifth Amendment liberty interest, and that the interest was violated by indefinite detention.”) Given its above-discussed precedents concerning civil detention, the Supreme Court found that such an interpretation exposed fatal constitutional flaws in the statute. The Supreme Court further found no “clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed,” “whether protecting the community from dangerous aliens is a primary or (as we believe) secondary statutory purpose.” 533 U.S. at 697, 121 S.Ct. 2491. The Supreme Court in Zadvydas determined to rescue INA § 241(a) from nullification on constitutional grounds by rejecting the Government’s “potentially indefinite is okay” argument, and “reading] an implicit limitation into the [8 U.S.C. § 1231(a)(6) ],” so as to circumscribe “an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” Id. Here, respondents, while acknowledging Zadvydas’ holding that the statute “does not permit indefinite detention,” id., they seek a reading of the statute that would give it the same effect. D. The Effect of Petitioner’s Other Pending Legal Challenges on the Legality of His Continued Detention One of respondents’ main arguments is that D’Alessandro’s continued detention is in accordance with the law since “his own actions are the cause of the delay in his release.” Resp’t Mem. at 10; see also id. at 10-13 (Docket No. 5). Respondent points to the fact that D’Alessandro has filed a petition for review of the BIA’s denial of his motion to reopen as well as an application for a stay of removal, both of which remain pending at this time. Id. at 11 (citing Declaration of Christopher Jacobs (“Jacobs Deck”), ¶¶ 14-15 (Docket No. 2); see also Exhibits to Respondent’s Answer and Return (“Resp’ Ex.”) (Docket No. 4-3) at pp. 25^10). Respondents argue that “D’Alessandro’s filing of that petition for review along with a motion for stay interrupted the removal process,” and “[d]ue to a forbearance policy that is based on an agreement between DHS and the Second Circuit Court of Appeals, DHS was prevented from executing D’Alessandro’s removal order on January 2, 2008, as planed.” Resp’t Mem. at 11 (Docket No. 5). Respondents further argue that “[b]e-cause D’Alessandro’s removal has been delayed and effectively stayed by his own actions, he should not be heard to complain about his continued detention.” Id. at 12 (Docket No. 5) (citing Archibald v. I.N.S., No. CIV.A. 02-0722, 2002 WL 1434391 (E.D.Pa. July 1, 2002) (“Here, Archibald’s detention is a direct result of his seeking relief from deportation. “The sole reason that [Archibald] continues to be in the custody of the INS is the fact that he has asked for, and been granted a stay of deportation.” ”)) (quoting Evangelista v. Ashcroft, 204 F.Supp.2d 405, 409 (E.D.N.Y. 2002) (“The sole reason that Petitioner continues to be in the custody of the INS is the fact that he has asked for, and been granted a stay of deportation.”)); Lawrence v. Gonzales, 446 F.3d 221, 227 (1st Cir.2006) (“Lawrence’s continued detention here occurred pursuant to his own procuring of stays incident to his legal challenges to the removal order; it is beyond dispute that this period of time was necessary to bring about Lawrence’s removal, which— now that the current litigation is resolved — is presumably imminent. A remand on the issue of the length of detention, which has not been requested, would be wholly fruitless.”); Marcelus v. I.N.S., Civ. A. No. 01-2587, 2002 WL 80301, at *1 (E.D.Pa. Jan.16, 2002) (“Petitioner cannot secure release from detention which has been prolonged beyond the ninety-day removal period or presumptively reasonable six month period because of a judicial stay entered at his request to block his removal pending resolution of a habeas petition.”); Copes v. McElroy, No. 98 CIV. 2589(JGK), 2001 WL 830673, at *6 & n. 12 (S.D.N.Y. July 23, 2001) (“In this case, the INS has not effected the petitioner’s deportation because her deportation has been stayed pending the resolution of her habeas petition challenging her order of deportation. Thus, although the petitioner has been detained for some time, the INS has not yet had a six month period of time to effect her removal as contemplated in Zadvydas and for the parties to demonstrate whether there is a significant likelihood of the petitioner’s removal in the reasonably foreseeable future [because her deportation has been subject to stays by the Court of Appeals for the Second Circuit.] Accordingly, the petitioner’s request for release in light of the Supreme Court’s decision in Zadvydas is denied at this time.”). As an initial matter, I note that the district court cases cited by respondents in their Memorandum of Law, and referred to in the preceding paragraph, differ from D’Alessandro’s case in that there were formal judicial stays in place, ordered by the relevant Circuit Court of Appeals, and detention was pursuant to 8 U.S.C. § 1226. Pet’r Reply at 7 (Docket No. 8) (citing Resp’t Mem. at 12-13 (Docket No. 5). With regard to the Third Circuit case cited by respondents, Lawrence, there also were court-ordered stays in place. As petitioner points out, Lawrence “opined on a situation where a stay squarely within § 1231 (a)(1)(B)(ii) existed.” Pet’r Reply at 7 (Docket No. 8). Here, the parties agree that there is no formal, court-ordered stay in place, and respondents do not claim that detention is under INA § 236, 8 U.S.C. § 1226. For instance, respondents state that “[i]f there were an actual court-ordered stay of removal, D’Alessandro’s detention would be pursuant to INA § 236, 8 U.S.C. § 1226, and the start of the removal period would be deferred pursuant to INA § 241(a)(l)(B)(2), 8 U.S.C. § 1231(a)(l)(B)(2)).” Resp’t Mem. at 11 n. 3 (Docket No. 5). Furthermore, the cases cited by respondents at pages 12-13 of their Memorandum of Law did not engage in any analysis of the issue. Regardless of any deficiency in the analysis, the outcome of these cases effectively was that the petitioner was penalized for pursuing avenues of relief to which he or she was legally entitled, and thus continued detention was the petitioner’s own fault. I do not find these cases factually apposite; nor are they binding precedent this Court. Rather, the Court finds persuasive the reasoning of two cases cited by petitioners, Ly v. Hansen, 351 F.3d 263, 272 (6th Cir.2003), and Oyedeji v. Ashcroft, 332 F.Supp.2d 747 (M.D.Pa. 2004). Pet’r Reply at 8 (Docket No. 8). As noted above, there is no formal judicial stay in place. But, even if the Second Circuit ultimately were to enter a formal stay, respondents should not be able to rely on this fact to keep him indefinitely detained. In Oyedeji, a case from the Middle District of Pennsylvania, the BIA affirmed the Immigration Judge’s ruling against petitioner Oyedeji on January 20, 2000, and on February 22, 2000, Oyedeji, represented by counsel, filed a petition for review with the United States Court of Appeals for the Second Circuit, and requested a stay of removal pending a decision on the petition for review. No formal action was taken on the request for a stay of removal for approximately four (4) years. The district court in Oyedeji noted that according to .respondents, the Second Circuit and the United States Attorney’s Office had an agreement which “provides that when an alien files a Petition for Review and a request for a stay of removal in the Second Circuit, the Court of Appeals contacts the United States Attorney’s Office to obtain an agreement that [DHS/ICE] will not remove the alien from the United States until the Second Circuit renders a decision on the Motion for Stay of Removal.” 332 F.Supp.2d at 750 (citation to docket omitted). The Government in Oyedeji observed that “the Second Circuit, the United States Attorney’s Office and [DHS/ICE] view the forbearance policy as a binding stay of removal.” Id. (citation to docket omitted). Respondents in Oyedeji maintained that, “in light of this effective stay of removal, the 90-day removal period set forth in 8 U.S.C. § 1231 has been suspended.” Id. In July of 2000, a “post-order custody review” of Oyedeji’s status was undertaken by DHS/ICE. As has been the case with D’Alessandro, “[n]o interview of Oyedeji occurred in connection with this custody review,” and “[i]nstead, only a file review was undertaken.” 332 F.Supp.2d at 750. In Oyedeji, DHS/ICE determined that detention should be continued because “Oyedeji had failed to provide any documentation of employment prospects should he be released, that he had previously failed to appear for court-ordered proceedings, and that he had not refrained from criminal activity after his initial release from DHS/ ICE custody.” Id. (citation to record omitted). Oyedeji’s detention status was again considered by DHS/ICE in August of 2001. By letter dated August 9, 2001, DHS/ICE informed Oyedeji that he would not be released. Similarly to the situation in D’Alessandro’s case, the release-denial letter further informed Oyedeji that it had been determined that his repatriation was feasible upon completion of legal proceedings. (Respondents here note that the Italian consulate has already issued travel documents for D’Alessandro once, but they have expired.). Petitioner Oyedeji was informed that if he believed that his removal was not possible in the reasonably foreseeable future, he could submit evidence in support of a request for reconsideration; however, it did not appear that Oyedeji sought reconsideration of this determination. According to the district court, DHS/ ICE did not review Oyedeji’s detention status in 2002. On November 12, 2002, Oyedeji, represented by counsel, commenced a habeas corpus proceeding to challenge his continuing detention. The habeas petition, citing, inter alia, Patel v. Zemski, 275 F.3d 299 (3d Cir.2001), overruled in part by Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), contended that the mandatory detention provision of 8 U.S.C. § 1226(c) was unconstitutional. In answering the habeas corpus petition, the Government asserted that Oyedeji was not being detained pursuant to the mandatory detention provisions of 8 U.S.C. § 1226(c), but was instead being detained pursuant to 8 U.S.C. § 1231. Respondents further asserted that Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653, was inapplicable because the period of time during which removal was to be effected had not run as a consequence of the stay of removal that respondents considered to be in effect. Oyedeji, 332 F.Supp.2d at 751. The magistrate judge in Oyedeji agreed with respondents and recommended that relief be denied because (1) the effective stay of removal precluded the running of the 90-day removal period, thereby rendering Zadvydas inapplicable; and (2) the file reviews of Oyedeji’s detention status satisfied due process, since that Oyedeji “had the opportunity to show that his removal was not possible in the reasonably foreseeable future and that he is taking positive measures to facilitate his removal.” Id. (citation to record omitted). Oyedeji objected to the Report and Recommendation, arguing that, because no stay of removal had been entered, the period of time within which removal should have occurred had expired and the continuing detention of Oyedeji was unreasonable. The district court subsequently (1) agreed with Oyedeji’s contention that the agreement between the Second Circuit and the United States Attorney’s Office did not suspend the running of the removal period, and (2) further found that Oyedeji was entitled to consideration for release from confinement in accordance with regulations promulgated at 8 C.F.R. § 241.4, explaining that “[a]n alien who has filed a petition for review of an order of removal but who has not received a stay of deportation is subject to the provisions of 8 U.S.C. § 1231. Detention beyond the removal period may be maintained only upon compliance with applicable process. In the case of criminal aliens, such as Petitioner, that process is specified in 8 C.F.R. § 241.4. It is evident that Petitioner has not received such process.” Id. (citation to record omitted). Accordingly, the district court in Oyedeji granted the petition for writ of habeas corpus conditionally, with respondent afforded a period of sixty (60) days within which to provide the post-removal custody process set forth in 8 C.F.R. § 241.4, then to file a status report thereafter. On January 26, 2004, a DHS/ICE District Director issued a “Decision to Continue Detention Upon Expiration of Removal Period” with regard to Oyedeji. Significantly, as is the case with D’Alessandro, consideration for release was limited to a review of the file, including information Oyedeji had submitted, and no personal interview of him was conducted. Oyedeji, 332 F.Supp.2d at 752. As the district court observed, the decision to continue detention was based upon Oyedeji’s prior record, including the fact that three bench warrants had been issued for his failure to appear at criminal proceedings. It was also based upon “a stay of removal,” despite the district court’s holding that there was no effective stay of removal at that time. Finally, the decision noted that Oyedeji had failed to submit “sufficient evidence to show that you have rehabilitated while you have been incarcerated, and you have not provided sufficient evidence to show that you would not present a flight risk if you were released.” Id. (quotation omitted). After telephonic status conference with counsel, the district court re-opened the case and directed the filing of memoranda of law addressing the merits of the decision to continue Oyedeji’s detention. Id. Initially, the district court in Oyedeji observed that “[prolonged detention raises substantial questions of constitutional dimensions.” Id. (citing Jabir v. Ashcroft, No. Civ. A. 03-2480, 2004 WL 60318, at *6 (E.D.La. Jan.8, 2004)). “ ‘[D]eportable aliens, even those who [have] already been ordered removed, possess a substantive Fifth Amendment liberty interest....” Id. (quoting Ly v. Hansen, 351 F.3d at 269). Accordingly, the district court in Oyedeji stated, “aliens under an order of removal are entitled to an opportunity to be heard on the question of prolonged detention, and they may be kept locked up only if incarceration is justified.” Id. (citing Ngo v. INS, 192 F.3d 390, 397 (3d Cir.1999) (“[C]ase law holds there is no constitutional impediment to the indefinite detention of an alien with a criminal record under a final order of exclusion, deportation, or removal, if (1) there is a possibility of his eventual departure; (2) there are adequate and reasonable provisions for the grant of parole; and (3) detention is necessary to prevent a risk of flight or a threat to the community.”) (emphasis added by district court in Oyedeji)). The district court summarized respondents’ position to be that petitioner was not entitled to consideration for release under the provisions of § 241.4 while there remained a stay of removal, and that he “is presumed repatriatable for at least 180 days and until he proves otherwise, during this period he is presumed to hold the keys to his cell,” and “[a]s such, he lacks standing to complain of his continued detention.” Id. (quotation to record omitted). Respondents make essentially this same argument in D’Alessandro’s case. Thus, as the district court in Oyedeji explained, the premise of respondents’ argument “appears to be that Zadvydas is limited to those aliens for whom no stay of removal is in place and the presumptive period for removal has expired.” Oyedeji, 332 F.Supp.2d at 753. That reading of Zadvydas is too narrow; rather, Zadvydas “recognized the constitutional implications of prolonged detention for those subject to a valid order of removal.” Id. According to the district court in Oyedeji, “[prolonged incarceration for an alien whose potentially meritorious challenge to removal is part of a congested docket is indistinguishable from lengthy incarceration because the alien’s native country refuses to issue travel documents,” which was the situation in facing the aliens in Zadvydas. Id. Furthermore, I note that the REAL ID Act now compels an alien to challenge his underlying removal proceedings in the circuit courts of appeals. Thus, an alien may no longer consolidate his federal appeals in one proceeding before the district court, and is subject to the dockets, schedules, and delays of two separate courts in two separate actions. I wholly agree with the district court’s conclusion in Oyedeji that, “[t]he price for securing a stay of removal should not be continuing incarceration,” and that an alien “should not be effectively punished for pursuing applicable legal remedies.” Id. (citing Ly, 351 F.3d at 272). The Oyedeji court pointed out that in sustaining the authority of Congress to mandate detention of criminal aliens during administrative removal proceedings, the Supreme Court “stressed that such detention would be only ‘for the brief period necessary for their removal proceedings.’ ” Id. (quoting Demore v. Kim, 538 U.S. at 513, 123 S.Ct. 1708; and id. at 532, 123 5.Ct. 1708 (Kennedy, J., concurring) (recognizing that a lawful permanent resident “could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified”)). I agree that the “fact that the alien has procured a stay of removal does not undermine the bedrock principle that there must be a ‘special justification’ outweighing the alien’s constitutionally-protected interest in liberty, as well as “adequate procedural protections” to continue incarceration while the alien litigates his claims.” Oyedeji, 332 F.Supp.2d at 754 (quoting Zadvy das, 533 U.S. at 690, 691, 121 S.Ct. 2491); see also id. (quoting Ly v. Hansen, 351 F.3d at 272 (“An alien who would not normally be subject to indefinite detention cannot be so detained merely because he seeks to explore avenues of relief that the law makes available to him.”)). I note that Ly was a case involving detention under INA § 236, 8 U.S.C. § 1226; however, it cannot be seriously argued that the foregoing reasoning, and “constitutional requirement of reasonability”, is not applicable during both the pre-final-removal-order and post-final-removal phases of alien’s immigration proceedings. Thus, I reject respondents’ argument that D’Alessandro’s applications seeking a stay and petitioning for review justify his continued detention simply because they have a practical effect on his actual removal. As petitioner points out, “[i]n requesting a stay of removal, D’Alessandro only sought to prevent his removal from the country while he challenged his underlying conviction and the BIA’s denial of his motion to reopen removal proceedings. D’Alessandro’s stay application was not a request to remain incarcerated .... ” Pet’r Reply at 8-9 (Docket No. 8). Respondents cite no convincing authority that an application for a stay “act[s] as a temporary waiver of constitutional due process protections [so as to] ... permit [the Government] to forego the statutory and regulatory procedures for justifying continued detention.” Id. at 9 (Docket No. 8). I cannot dismiss petitioner’s assertion that respondents’ position veers perilously close “to nothing less than punishment for utilizing the courts[,]” Pet’r Reply at 9 (Docket No. 8). Furthermore, the only cases cited by respondents where a stay was not judicially ordered, but the detainee’s conduct in seeking judicial review was said to have contributed to the delay so as to make the delay not unconstitutional were decided over a decade before Zadvydas’ landmark decision. See Doherty v. Thornburgh, 943 F.2d 204 (2d Cir.1991); Dor v. District Director, INS, 891 F.2d 997 (2d Cir.1989) (cited in Resp’t Mem. at 12 (Docket No. 5)). As petitioner points out, “Zadvydas was a seminal decision that altered the [legal] landscape” regarding aliens under post-final-orders of removal. Pet’r Reply at 7 (Docket No. 8). Respondents’ attorney did not dispute this at oral argument. Any doubt that Zadvydas marked a watershed in immigration law is dispelled by the wave of changes to the INA regulations that followed. For instance, petitioner has submitted a report published by DHS noting that ‘“[t]he June 2001 U.S. Supreme Court decision reversed the former Immigration and Naturalization Service’s (INS) practice of indefinitely detaining aliens who were difficult to remove but represented a threat to the community or would likely abscond if released’ ” and “placed limits on the federal government’s authority to detain aliens .... ” Pet’r Reply at 7 n. 8 (Docket No. 8) (quoting Petitioner’s Exhibit (“Pet’r Ex.”) H at 3, 5 (Docket No. 7-9)). Therefore, the Court recommends finding that the pre-Zadvydas cases cited by respondents do not carry the day here in justifying his continued detention on the basis that he is exercising rights of review to which he is legally entitled. D’Alessandro should not be banished to a constitutional “no-man’s-land” for this reason. Finally, I recommend rejecting any attempt by respondents to rely upon 8 U.S.C. § 1231(a)(1)(C) to justify his continued detention by contending that he is “acting to prevent removal” by challenging the underlying criminal conviction and the BIA’s denial of his motion to reopen. The provision contained in 8 U.S.C. § 1231(a)(1)(C) “extend[s]” the “removal period” beyond its presumptive 90-day limit if “the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal.” 8 U.S.C. § 1231(a)(1)(C). It seems fairly plain to this Court that the section contemplates acts of obstruction by the detainee that constitute willful refusal to cooperate with immigration authorities, not efforts to seek legally available judicial remedies. Other federal courts have come to a similar conclusion. See, e.g., Prieto-Romero v. Clark, 534 F.3d 1053, 1061 (9th Cir.2008) (“Moreover, we are highly skeptical about the government’s suggestion that an alien’s attempt to seek judicial relief from deportation constitutes ‘conspiring] or acting] to prevent [his] removal.’ ”) (quoting 8 U.S.C. § 1231(a)(1)(C)). As examples of such behavior, the Ninth Circuit pointed to an alien willfully refusing to cooperate with the government in processing his deportation papers. Id. (citing Lema v. INS, 341 F.3d 853, 856 (9th Cir.2003) (alien refused to “cooperate fully and honestly with officials to secure travel documents”); Pelich v. INS, 329 F.3d 1057, 1059 (9th Cir.2003) (alien refused to fill out passport application)). However, “[s]uch acts of obstruction [we]re clearly of a different nature than an alien’s attempt to make use of legally available judicial review and remedies.” Id. Accord, e.g., Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 428 (M.D.Pa. 2004). E. DHS/ICE’s Failure to Comply With Their Own Regulations and Failure Provide Legally-Required Procedures Violate Petitioner’s Right to Procedural Due Process As petitioner points out, three sections of immigration regulations relating to the removal of aliens are applicable here: 8 C.F.R. § 241.4; 8 C.F.R. § 241.13; and 8 C.F.R. § 241.14. See Pet’r Reply at 10 (Docket No. 8). These regulations were either amended, or promulgated in the first instance, as a result of Zadvydas. Pet’r Reply at 10 (Docket No. 8) (citing Resp’t Mem. at 7 (Docket No. 5)). I turn first to petitioner’s claim that the Government actually failed to provide certain statutorily-mandated procedures to D’Alessandro. See Pet’r Reply at 10-16 (Docket No. 8). Under 8 C.F.R. § 241.4, DHS/ICE has authority to release any detainee if determines that “his ... release will not pose a danger to the community or to the safety of other persons or to property or a significant risk of flight pending such alien’s removal from the United States.” 8 C.F.R. § 241.4(d)(1). Where, as here, a detainee is detained beyond the 90-day removal period, “the Deputy Executive Associate Commissioner for Detention and Removal, the Director of the Detention and Removal Field Office or the district director may continue an alien in custody beyond the removal period described in section 241(a)(1) of the Act [8 U.S.C. § 1231(a) ] pursuant to the procedures described in this section [8 C.F.R. § 241.4].” 8 C.F.R. § 241.4(a). After the 90-day removal period elapses, and if the detainee has not been removed within the next three (3) months, there must be a review and custody determination by the Executive Associate Commissioner (“EAS”), acting through the Headquarters Post-order Detention Unit (“HQPDU”). Pet’r Reply at 12 (Docket No. 8) (citing 8 C.F.R. § 241.4(c)(2) (“For any alien the district director refers for further review after the removal period, or any alien who has not been released or removed by the expiration of the three-month period after the review, all further custody determinations will be made by the Executive Associate Commissioner, acting through the HQPDU.”)). This 180-day review by the EAS must comply occur in accordance with the follow procedures: Determinations by the Executive Associate Commissioner. “Determinations by the Executive Associate Commissioner to release or retain custody of aliens shall be developed in accordance with the following procedures,” 8 C.F.R. § 241.4(i): (1) Review panels. The HQPDU Director shall designate a panel or panels to make recommendations to the Executive Associate Commissioner. A Review Panel shall, except as otherwise provided, consist of two persons. Members of a Review Panel shall be selected from the professional staff of the Service. All recommendations by the two-member Review Panel shall be unanimous. If the vote of the two-member Review Panel is split, it shall adjourn its deliberations concerning that particular detainee until a third Review Panel member is added. The third member of any Review Panel shall be the Director of the HQPDU or his or her designee. A recommendation by a three-member Review Panel shall be by majority vote. (2) Records review. Initially, and at the beginning of each subsequent review, the HQPDU Director or a Review Panel shall review the alien’s records. Upon completion of this records review, the HQPDU Director or the Review Panel may issue a written recommendation that the alien be released and reasons therefore. (3) Personal interview. (i) If the HQPDU Director does not accept a panel’s recommendation to grant release after a records review, or if the alien is not recommended for release, a Review Panel shall personally interview the detainee. The scheduling of such interviews shall be at the discretion of the HQPDU Director. The HQPDU Director will provide a translator if he or she determines that such assistance is appropriate. (ii) The alien may be accompanied during the interview by a person of his or her choice, subject to reasonable security concerns at the institution’s and panel’s discretion, who is able to attend at the time of the scheduled interview. Such assistance shall be at no expense to the Government. The alien may submit to the Review Panel any information, in English, that he or she believes presents a basis for his or her release. (4) Alien’s participation. Every alien shall respond to questions or provide other information when requested to do so by Service officials for the purpose of carrying out the provisions of this section. (5) Panel recommendation. Following completion of the interview and its deliberations, the Review Panel shall issue a written recommendation that the alien be released or remain in custody pending removal or further review. This written recommendation shall include a brief statement of the factors that the Review Panel deems material to its recommendation. (6)Determination. The Executive Associate Commissioner shall consider the recommendation and appropriate custody review materials and issue a custody determination, in the exercise of discretion under the standards of this section. The Executive Associate Commissioner’s review will include but is not limited to consideration of the factors described in paragraph (f) of this section. Before making any decision to release a detainee, the Executive Associate Commissioner must be able to reach the conclusions set forth in paragraph (e) of this section. The Executive Associate Commissioner is not bound by the panel’s recommendation. 8 C.F.R. § 241.4(9(1X6). A copy of the 180-day determination must be written, and must set forth the reasons for the EAS’s decision. 8 C.F.R. § 241.4(d). If release is determined to be appropriate, the Government may impose various conditions to guarantee the detainee’s future appearance and prevent risk to the community. See 8 C.F.R. § 241.4(j) (“The district director, Director of the Detention and Removal Field Office, or Executive Associate Commissioner shall impose such conditions or special conditions on release as the Service considers appropriate in an individual case or cases, including but not limited to the conditions of release noted in 8 CFR 212.5(c) and § 241.5. An alien released under this section must abide by the release conditions specified by the Service in relation to his or her release or sponsorship.”). Petitioner asserts, and respondents do not dispute, that D’Alessandro has never received the required 180-day review under 8 C.F.R. § 241.4(c)(2). Pet’r Reply at 12-13 (Docket No. 8) (“Here, the undisputed and dispositive facts are: no 180 day review occurred whatsoever, no review or determination occurred ever by the Executive Associate Commissioner or his designee, no required review panel existed, and no personal interview took place.”). I agree with petitioner that “the Government in recounting the reviews afforded by DHS does not claim that the 180 day review occurred or was not required.” Pet’r Reply at 13 (Docket No. 8). As petitioner points out, this is the “critical six-month review” (90-day removal period plus three months), “included specifically due to the constitutional requirements of Zadvydas,” which held that detention is presumptively reasonable only for a period of six months following a final order of removal. Pet’r Reply at 13 (Docket No. 8); see Ly v. Hansen, 351 F.3d at 276 (“The Supreme Court [in Zadvydas ] set a presumptive standard of 90 days and an outside limit of six months detention for aliens who have been ordered removed absent a showing of a ‘strong special justification’ for detention.”) (citing Zadvydas, 533 U.S. at 690, 701,121 S.Ct. 2491). At the March 20th oral argument, I asked respondents’ attorney whether she agreed that DHS/ICE is required to follow its own procedures. She agreed. However, respondents’ attorney had no meaningful answer as to why the 180 — day review had not occurred, and offered no justification or response to petitioner’s attorney’s arguments that DHS/ICE has not followed its own regulations. Petitioner has submitted an internal report of a DHS audit titled, “ICE’s Compliance With Detention Limits for Aliens With a Final Order of Removal From the United States” (“the DHS report”), indicating serious problems in ICE’s compliance with the review procedures and time-lines mandated by the immigration regulations. See generally DHS Report at 7-19 (Docket No. 7-9). As petitioner points out, in the fifteen (15) months of his incarceration, D’Alessandro has received only two (2) detention decisions, both of which were titled “Decision to Continue Detention.” The first was the 90-day review in February 2008 (Pet’r Ex. B, Docket No. 7-3). On February 19, 2008, Charles Mule, Acting Field Office Director, issued the Decision to Continue Detention, stating that D’Alessandro had “failed to demonstrate that there is no significant like hood [sic] of your repatriation in the foreseeable future, pending the 2nd Circuit issues [sic] a decision on your ease.” Decision to Continue Detention dated 2/19/08 (Pet’r Ex. B, Docket No. 7-3); see also Docket No. 4-3. This decision was “made based on a review of your file and consideration of information you submitted to ICE’s reviewing officials.” Id. (Docket No. 7-3, Docket No. 4-3). According to 8 C.F.R. § 241.4(c)(2), the 180-day review should have occurred sometime in May 2008, which was three months after the 90-day period. Pet’r Reply at 13 (Docket No. 8) (citing 8 C.F.R. § 241.4(c)(2)). However, no review occurred at that time. In fact, it appears that DHS/ICE did not look at D’Alessandro’s detention status until petitioner’s counsel sent a lengthy and comprehensive letter on October 20, 2008, detailing the unique circumstances of D’Alessandro’s case. Counsel noted the length of his detention and its indefinite nature, his compelling family circumstances, the lac