ted April 27, lgy2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK MARIO CUOMO as Governor of the State of New York, THOMAS A. COUGHLIN, as Commissioner of the New York State Department of Correctional Services, and RAUL RUSSI, as Chairman of the New York State Division of Parole, Plaintiffs, COMPLAINT ~against- civil Action No. WILLIAM BARR, as Attorney General of the United States, EUGENE P. MCNARY, as Commissioner of the Immigration and Naturalization Service, STANLEY MCKINLEY , as Director of the INS Eastern Regional Office, WILLIAM SLATTERY, as INS District Director of the New York District, JACK INGRAM, as INS District Director of the Buffalo District. Defendants. 1. This is an action for declaratory, injunctive ané mandamus relief challenging certain illegal policies, practices and procedures of the Attorney General of the United States (the "Attorney General") and the Immigration and Naturalization Service ("INS"). Such policies, practices and procedures unlawfully interfere with the operation of the Immigration Act of 1990 ("the Act"), 8 U.S.C. §§ 1101, 1252. The Act was, in substantial part, designed to effect the expeditious apprehension, custodial detention and deportation of aliens who have been convicted of aggravated felonies by requiring defendants to take thes into federal custody upon their release from State prisons regardless (norof whether such release is on parole or into a supervised release program. 8 U.S.C. §1252(a) (2) (A). 2. The Act also precludes the Attorney General from releasing from federal custody aliens convicted of aggravated federal) felonies if they have not been lawfully admitted into the United States. 8 U.S.C. §1252(a) (2) (B)+ 3. ‘The Attorney General and INS have routinely failed to comply with these statutory obligations. As a result, large See - | numbers of aliens who have been convicted of aggravated felonies and who have been released on parole or supervised release are — =a—a—«“eVe.) properly subject to federal custody but remain under State supervision. Furthermore, on the occasions when the INS has taken custedy of illegal aliens convicted of aggravated felonies, 2 ty ‘ i often Geturns “buch aliens to state custedy or supervi Consequently, there are a number of illegal aliens in the State of ion. New York who should be, but have not been, retained in federal custody. 4. The Act also requires the Attorney General to make available, on a_24~hour basis, to State and local authorities the investigative resources of the INS to determine the alien status of individuals arrested for aggravated felonies. 8 U.S.C. § 1252(a)(3) (A) (i-iii). 5. The Attorney General and the INS have failed to comply with this statutory obligation as well. As a result, the plaintifgs have custody of large numbers o( foreign-born) inmates who have been convicted of aggravated felonies and cannot ascertain 0028whether they are legal aliens, illegal aliens, naturalized citizens or have some other status. For example, as of the week beginning 29 March 15, 1992/ 33% all foreign-born inmates (or 2408 out of 25% 3 Une one 7,359) were in "not yet known" alien status. ) ye 0 ny 6. AS a result of the failure of the Attorney General and the INS to comply with their statutory obligations, the plaintiffs cannot identify all aliens under their supervision, cannot ensure a timely transfer of all such inmates to federal custody, cannot ensure the appropriate retention of illegal aliens in federal custody and thus cannot reduce the overcrowding in the ee eee State prison system, reduce the burden on the State parole system re ee and reduce the potential risk of further harm to the community. 7. Accordingly, plaintiffs seek a judgment, inter alia, declaring the INS’ policies, practices and procedures to be Se unlawful, enjoining the INS from continuing these unlawful policies, practices and procedures, and directing the INS and the Attorney General to take custody of aliens, and retain custody of illegal aliens, convicted of aggravated felonies under New York State law upon their release from state custody on parole or tate law upon their release from state custody 01 supervised release by plaintiffs and to devise and implement a 24- hour information system as required by 8 U.S.C. § 1252. Declaratory, injunctive and mandamus relief are appropriate because J ¢ plaintiffs are threatened h, have suffered and are suffering, i wv irreparable harm and have no adequate remedy at law. r ee Aci cdi i la 0029IURISDICTION AND VENUE 8. This Court has jurisdiction over all claims asserted in this action under 28 U.S.c. § 1331 because the matters in controversy arise under the laws of the United States. 9. This court has jurisdiction over all claims asserted in this action under 28 U.S.C. § 1361 because the action is one in the nature of mandamus and seeks to compel officers of the United States to perform duties owed to the plaintiffs under the Immigration and Nationality Act. 10. This court has jurisdiction over all claims asserte in this action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 because the actions of the defendants are arbitrary, se ——— capricious and contrary to federal law. li. Venue is proper in this district under 28 U.S.C § 1391(e). PARTIES The Plaintiffs 12. Plaintig€ MARIO CUOMO is the Governor of the State of New York and is responsible for the supervision of the Executive Department agencies of the State of New York, including, the New York State Department of Correctional Services and the New York tate Division of Parole. 13. Plaintiff THOMAS A. COUGHLIN is the Commissioner of the New York State Department of Correctional Services ("DOCS") and is responsible for administering the State prison system within the 0030State of New York including, inter alia, all "work release" programs. He is also responsible for ensuring that there is compliance with the provisions of the New York Correction law as well as any court orders issued against the Department. He is currently responsible for the supervision of pee 300 Stee in sixty-eight facilities of various types throughout the State of New York. In the administration of the state prison syste= plaintiff Coughlin is also responsible for compliance with applicable federal laws and regulations and coordination of certain programs with federal authorities. 14. Plaintife RAUL RUSSI is the Chairman of the New Yo state Division of Parole and the New York State Board of Parole anc as such is responsible for administering the parole system within the State of New York, including the supervision of over 48,000 parolees throughout the state of New York. In the administration of the state parole system plaintiff Russi is also responsible for compliance with applicable federal laws and regulations and coordination of certain programs with federal authorities. 15. Defendant WILLIAM BARR is the Attorney General of the United states, and is charged by federal statute wi responsibility for taking into federal custody all aliens and a retaining in federal custody all illegal aliens convicted t 1 eS aggravated felonies upon their release from state prison on parole S as aa or supervised release. nn3i S20016. Defendant EUGENE P. MCNARY is the Commissioner of the Immigration and Naturalization Service ("INS") and is responsible for administering the Immigration and Nationality Act throughout the United states. 17. Defendant STANLEY MCKINLEY is the Director of the Eastern Regional Office of INS and is responsible for the administration of the Immigration and Nationality act within INS' Eastern Region, which includes New York. 18. Defendants WILLIAM SLATTERY and JACK INGRAM are the District Directors of the New York and Buffalo Districts of INS respectively, and are responsible for the administration within state of New York of the Immigration and Nationality Act. 18. Defendants BARR, MCNARY, MCKINLEY, SLAT INGRAM are collectively referred to herein as the "defendants". I. STATUTORY AND REGULATORY PRAMBWORK A. The Immigration and Nationality Act, As Amended in 1990 2) (“Taking custody of ti1eqal_aliens ednvicted of aggravated felonies F release. —————— 20. On December 3, 1990 President Bush signed into law the “Immigration Act of 1990 (the "Act"), Pub.L.No. 101-649. The Act, inter alia, significantly amended the Immigration and Nationality Act. 8 U.S.C. § 1101, et seg. Upon signing the Act in 1990, the President declared that it was intended to support his Administration's war on violent crime by “provid(ing] for the expeditious deportation of aliens who by their violent criminal ee 6 0032acts, forfeit their right to remain in this country. These offenders . jeopardize the safety and well-being of every American resident." Statement by President George Bush upon signing S. 358, reprinted in 1990 U.S.C.C.A.N. 6801-1, 6801-2. — | 21. Before the Act, the Attorney General was requi: A to "take into custody any alien convicted of an aggravated felony upon the completion of the alien's sentence for such conviction". comptetion of the atien’ 8 U.S.C. § 1252(a)(2) (1989). By virtue of the Act, the Attorney General is now mandated to "take into custody any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, oF probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense)." 8 U.S.C. §1252(a) (2), Pub-L.No. 101-649, Sec. 504. 22. The language in 8 U.S.C. § 1252(a)(2)(A) is clear. Although Congress required the Attorney General to promulgate regulations in order to implement other provisions of the Act, did not require that regulations be promulgated in connection wi the defendants! obligation to "tak: aliens into custody "upen their release" on parole or supervised release. 23. The Act also broadened the definition of "aggravated felony" to include “murder,... any illicit trafficking in any controlled substance,... any offense described in section 1956 of title 18, United states code (relating to laundering of moneter instruments),... any crime of violence ... for which the term of imprisonment imposed is at least 5 years, or any attempt or 0033 habconspiracy to commit such an act... whether in violation of Federal or State law." g U.S.C. §1101(a) (43), Pub. L. No. 101-649, Sect. 501. 24. A “crime of violence" is defined in 18 U.S.C. § 16 as "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 25. The sentencing structure utilized by the State of New York for felonies involving commitments to Docs is an indeterminate one that calls for a minimum and maximum term cle 70 incarceration for each sentence. New York Penal Law, Art (McK inney 1987). Since the definition of "aggravated felony" the Act includes any “crime of violence" for which the term impose¢ is at least five years (regardless of any suspension of such imprisonment), any felony in New York that otherwise has the elements of a “crime of violence" is also an “aggravated felony" if the sentence imposed has a maximum term of five years cr greater. 26. Inaddition, since all controlled substance offenses in New York involve substances which are also defined as controlled substances in 21 U.S.C. §812, any New York controlled substance offense involving trafficking is an “aggravated felony". 003427. Felonies under New York Law which constitute “aggravated felonies" under the Act are listed in Exhibit A hereto. 2) Defendants statutory Duty to Retain Custody of T]leqal Aliens. 28. The Act precludes the Attorney General fron releasing illegal aliens convicted of aggravated felonies from federal custody. 8 U.S.C. § 1252(a) (2) (A). 3) Defendants! statutory Obligation to Implement An Information System. 29. The Act requires the Attorney General to devise and ement a system to make available, daily (on a 24-hour basis), to federal, state, and local authorities the investigative resources of the INS to assist in the determination of whether individuals arrested for aggravated felonies are aliens. @ U.S.C. § 1252(a) (3) (A) (i). 30. Instead of making its resources available to the states, the INS has maintained regulations which place an unlawful burden upon the states to compile an information file for each inmate before they are taken into federal custody to assist the INS in determining alienage. 8 C.F.R. § 242.2(a) (2). 31. The Act required the defendants to file a report with Congress by December 1, 1991 describing the efforts of the INS to, inter alia, identify and detain aliens convicted of crimes the United states. It further required the INS to include in that report a "Criminal Alien Census" stating the number of illegal _. 0035aliens in the United States who have been convicted of aggravated felonies. Immigration Act of 1990, reprinted in 1990 U.S.C.C.A.N. 5051. on information and belief, the INS has not filed such 2 report. B. New York Correction Law Provisions Applicable to Supervised Release 32. In order to promote rehabilitation of inmates, the New York Correction Law (™ .C.L.") provides that certain inmates sentenced to indeterminate terms of imprisonment may be released to serve a portion of their sentences in supervised programs. Such programs in New York include the furlough program, the work release program and the residential treatment facility program and constitute "supervised release" under the Act. 33. The work release program is "a program under whi eligible inmates may be granted the privilege of leaving the premises of an institution for a period not exceeding fourteen hours in any day for the purpose of on-the-job training or employment, or for any matter necessary to the furtherance of any such purpose." N.¥.C.L. § 851(3)- The furlough program is "2 program under which eligible inmates may be granted the privilege of leaving the premises of an institution for a period not exceeding seven days for the purpose of seeking employnent, maintaining family ties, solving family problems, seeking post~ release housing, attending a short term educational or vocational training course, or for any matter necessary to the furtherance of such purposes." N.¥.C.L. §651(4). Inmates who participate in the 10 6036 ttwork release program simultaneously participate in the furlough program which enables them to reside at’ approved residences throughout the weekends. During the wees, such inmates leave the institution during the day to engage in employment, job searches or related purposes and return to the institution at night to sleep. All inmates, participating in these release programs are assigned to parole officers for supervision. N.¥.C.L. §852(5)- 34. An inmate is eligible for work release if he or she is "a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years." N.¥.C.L. § 8£1(2) (McKinney supp. 1992). 35. The residential treatment facility program, more commonly referred to as the day reporting program, is governed by N.¥.C. § 73. Inmates participating in a day reporting progra= are permitted much greater liberty of movement than inmates participating in a work release program. Day reporting inmates are only required to report to a correctional facility during certain prescribed pericds of time while residing at approved residences throughout the entire week. Inmates may participate in the d reporting program if they have successfully participated in the work release program and are within six months of their parole eligibility date: or, they have successfully completed no less than six months of intensive alcohol and substance abuse treatment services in an alcohol and substance abuse treatment correctional annex as set forth in N.Y.C.L. § 2(8) and as amended by Chapter 55 aof the Laws of 1992. All inmates participating in this program are assigned to parole officers for supervision. N.¥.C.L. § 73. New York Executive Law Provisions Applicable to Parole Release and supervision 36. Inmates may be paroled at any time after the completion of the minimum period of imprisonment specified in their sentences, or earlier where they have successfully completed 2 sheck incarceration progran. Penal Law § 70.40(1)(a), N.¥. Executive Law ("Executive Law") § 259-i(2)(a). The Parole Board may set the conditions of release. Executive Law § 259-c(1). a case where a warrant is on file as a detainer against the inmate, and the Parole Board grants parole, the Parole Board denominates the release decision as a release to “warrant or program” Pursuant to this practice, before such an inmate is released the community, the warrant issuing authority is notified of the inmate's availability and scheduled date of release so it can take custody of the inmate. Unless the warrant issuing authority, such as the INS here, vacates the warrant, when an alien convicted of an aggravated felony is released on parole to warrant or progran, plaintiffs expect the alien to be taken into federal custo 37. Inmates who are eligible for parole release consideration may be conditionally paroled for deportation only. Executive Law § 259-i(2)(d)(i). The Parole Board may ect such a release, where it receives assurances from the INS that (A) an order of deportation will be executed or that proceedings wi 12 0038promptly be commenced, and (B) that the inmate, if granted parole, will not be released by the INS, unless for deportation, without providing the Parole Board a reasonable opportunity to retake the parolee. Id. II. ZACTUAL BACKGROUND 38. At the beginning’of the week of March 15, 1992, there were 58,963 inmates i state custody. Docs is required by the New York Criminal Procedure Law ("CPL") and various Federal and State court orders to take custody of prisoners being held in various local jails around the state within prescribed periods of time after their processing for transfer to state custedy has been completed. These tine pericds range from 48 hours in New York Ci to 14 days in other localities. see CPL § 430.20 and orders in: enjani al. v. Koehler,et al., 75 CIV. 3073, (SDNY, 1981); Albro, et al. v. Co. of Onondaga, 85 CIV. 1925, (NDNY, 1987); Co. a of Nassau v. Cuomo, 69 N¥2d 737 (1987); Dooley v. Coughlin, 72 NY: 984 (1988); Co. of Monroe, et al. v. Cuomo et_al., Index No. 6480- 87, (N.¥. App. Div. 4th Dept. 1987); Higeins v. N¥Spocs, Index No. Heg5969 (N.Y. Sup. Ct., Erie Co. 1987); Samtacroce v. Coughlin, Index No. 14108/87 (N.¥. Sup.Ct., Nassau Co. 1987); Jackson, et 21 v. DOCS, et al, Index No. 13072/88 (N.¥. Sup. Ct., Westchester Co. 1988); Ayers, et al. v. State, et al., 72 N¥2d 346 (1988). 39. Since a significant percentage of these inmates in State custody are believed to be aliens convicted of aggravated felonies, many of whom are in this country illegally, the policies, 13 0039practices and procedures of the INS which unlawfully delay the identification, the a7ceptance into and the retention of such aliens in federal custody unreasonably interfere with the ability of Commissioner Coughlin to carry out his statutory and court ordered duties. 40. For example, about 8% (or 4,931) of the inmates i pocs custody at the beginning of the week of March 15, 1992, were known to be aliens. 41. In addition, about 4% (or 2,408) of the inmates in pocs custody at the beginning of that week were suspected of beir aliens. Docs is awaiting INS confirmation of their status. 42. At least 1,604 of the total number of alien inmates in Docs custody at the beginning of the week of March 15, 1992, were known to be illegal aliens. In addition, an unknown nunber the 2,408 suspected aliens are illegal aliens. 43. O€ the 7,339 inmates in the custedy of Docs at the beginning of the week of March 15, 1992, who were known to be, oF suspected of being, aliens 83% (or 6,096) had been convicted of aggravated felonies. 44. In addition, 2,731 alien inmates who have been convicted of aggravated felonies are currently eligible to te placed on supervised release. 45. Since April, 1985, DOCS' inmate population has grown 67% while the number of foreign-born inmates has increased 172%. 46. In order to accommodate this ever growing alien inmate population, and because of INS' failure to regularly teke 14 ANANall aliens convicted of aggravated feloriies into Federal custody upon their release on parole or supervised release, the State of New York is forced to subsidize the Federal government by bearin: the cost of housing these aliens. At an average cost of $27,000 per inmate per year, the fiscal impact on the State of New York for housing alien inmates is approximately $191,000,000 per year in operational costs (e.g. food, clothing, medical care, building maintenance, heat). In addition, the State has to bear the burden of paying the debt service (approximately $64 million per year) cn bonds sold to fund the building of new prison cells needed to accommodate these inmates. Further, because of the lack sufficient general confinement space, as of the beginning of the week of March 15, 1992, approximately 2,200 inmates were double- bunked. 47. The defendants’ policies, practices, and procedures which unlawfully delay the identification, the acceptance and retention of aliens convicted of aggravated felonies and who are in this country illegally, also interfere with the ability ef Chairman Russi to carry out his statutory responsibilities. 48. For example, New York law provides that certain inmates can be conditionally paroled for deportation o! Executive Law § 259(i)(2)(d). As of the beginning of the week of A March 15, 1992, 132 illegal alien inmates who had been convic’ of aggravated felonies, had served their minimum sentences, were eligible for parole were still being held by DOCS. ‘These inmates had either been denied release, or had been granted 15 onalconditional parole for deportation only, based on the Parole Board's determination that they. pose threats to the community if released to community supervision. Inmates in conditional parole for deportation only status must be released to INS custody. The failure of the INS to take custody of all inmates granted conditional parole for deportation frustrates the intent of New York law to permit release to federal custody for deportation, and the Parole Board's ability to effect the implementation of that law. 49. In addition to the approximately 48,000 parolees currently under the supervision of the Division of Parole, at least 2,731 aliens convicted of aggravated felonies will become eligible to be released on parole to program or warrant within the next two years. At least 700 of these aliens, and possibly all of them, ar: illegal aliens. 50. I£ the INS fails to accept custody of these inmates upon their release, Plaintiff Russi will incur costs of from $1,033,400 to $4,356,200 per year to’ pay from 18 to 72 parole officers to supervise the aliens as well as related supervisory ané support staff and Non-Personal Services costs (travel, equipment, etc.). III. DE: St 30 COMPLY WITH TEE _Ac' 51. The INS does not regularly take custody of all aliens convicted of aggravated felonies who have been released > plaintiffs on parole. Instead, the INS has an irregular and 16arbitrary practice with regard to taking custody of alien inmates who have been convicted of aggravated felonies upon their release on parole. Moreover, the INS does not take custody of any alien inmates convicted of aggravated felonies whom DocS has placed on supervised release. 52. By the plain language of the Act, when plaintit release aliens who have been convicted of aggravated felonies on parole or into other supervised release programs, the defendants are required to take custody of then. 53. The Act does not permit the INS to delay custody of these inmates, as they have been doing in New York, until the inmates have served their minimum sentences or until they have been on parole for sometime or until deportation proceedings are well underway. 54. The INS has recently acknowledged its responsibility to take custody of illegal alien inmates convicted of aggravated felonies who have been released on conditional parole for deportation only by taking into custody some of those inmates. However, the INS has failed to establish a procedure to take custody of such all such aliens. The INS continues to refuse to take custody of such aliens who have been placed into supervised released status or to take, on a consistent basis, those released on parole to warrant or program. 55. Ina letter dated and mailed on February 24, 1992 ("the demand letter"), attached hereto as Exhibit A (from wi S plaintiffs have redacted, for prison security purposes, ell WwW 0043 :identifying information about the inmates), plaintiffs coughli and Russi advised defendants McKinley and Attorney General Barr that on specified dates and at specified locations, they would release on parole or supervised release 16 illegal aliens who had been convicted of aggravated felonies. The letter requested the federal officials to take the illegal aliens into their custody at the aforesaid places and times. * 56. The demand letter stated that some of the illegal aliens scheduled for release were to be released into a supervised release program known in New York as the "work release program", some of them were to be released on parole to program or warrant and some were being readied for release into federal custody cn conditional parole for deportation only. 57. The demand letter further advised that plaintifts would provide the defendants, on a routine basis, with the names and parole or supervised release dates of other illegal aliens who have been convicted of aggravated felonies. Plaintiffs Coughlin and Russi requested the federal officials to take these inmates as well into federal custedy upon their release. The demand letter requested a prompt reply. 58. On or about February 26, 1992 Commissioner Coughlin received a reply from defendant McKinley, attached hereto as Exhibit B, stating that he was forwarding the demand letter to the person who had operational responsibility for this matter, Gilbert H. Kleinknecht, Associate Commissioner, Enforcement, Immigration 18 oo44and Naturalization Service in Washington, D.C. and that McKinley would be in touch "shortly". . 59. In a telephone conversation on March 30, 1992, DOCS Superintendent Brian Fischer asked J. Scott Blackman, Deputy District Director, N.¥.C. District of the INS, U.S. Department of Justice, whether the INS intended take custody of the inmates listed in the demand letter who had been transferred into supervised release status and were scheduled to be released into INS custody the next day. A letter attached hereto as Exhibit ¢ and the list (previously provided as part of Exhibit A) of these inmates, were sent to the Justice Department that same day. On March 31, 1992 Mr. Fischer sent another letter to Mr. Blackman, attached hereto as Exhibit D, requesting a response by the close of business that day regarding whether INS would take custody the three inmates listed in the demand letter on supervise release. In a letter dated April 2, 1992, attached hereto es Exhibit E, Mr. Blackman said that he was unable to provide = "formal" response regarding the demand to accept custody of these three individuals. 60. Neither the Attorney General nor the INS took all of the illegal aliens listed in the demand letter into custody et the places and times specified n the letter. Nor have the defendants given plaintiffs any indication that they intend to ¢o so with regard to these aliens or any other aliens whom plaintit‘s are planning to release on parole or supervised release. 1s 004561. In addition to failing to take custody of all alien inmates convicted of aggravated felonies who have been released on parole or supervised release, INS has failed to retain custody of many illegal aliens convicted of aggravated felonies once they have taken the inmates into federal custody. Even where the INS has most recently taken custody of the illegal aliens convicted of aggravated felonies who were placed on conditional parole for deportation only and whose names appeared in the demand letter, they have not retained custody of all of them. Moreover, whenever, in the past, the INS has taken custody of illegal aliens convicte¢ of aggravated felonies who were placed on conditional parole for deportation only, within weeks after taking them into custody, & INS has returned a substantial percentage of them to DOCS and has simultaneously re-lodged its warrant against then. These illega? aliens remain in state custody because they continue to present = threat to the community. 62. The Act does not permit the IN to release from its custody illegal aliens convicted of aggravated felonies unless it has determined that they are not deportable. Consequently, defendants may not return the aliens to state custody until such determination has been made. on information and belief, the majority of the illegal aliens whom the INS has returned to DOCS are still subject to deportation. 63. In addition, the defendants have failed to dev. and implement an information system to assist the plainti fs in identifying aliens who have been convicted of aggravated felonies. 20 oc4664. Indeed, on or about March 2, 1992, the Counsel for Docs received a telephone call from the INS inquiring about the number of foreign born inmates currently in the New York prison system. On or about March 24, 1992, the INS called Docs requesting the number of illegal aliens in the New York prison system. STATEMENT OF CLAIMS First Claim for Relie: 65. Plaintiffs repeat and reallege paragraphs 1 throuch 64. 66. The defendants have violated the Act, 8 U.S.C. § 1252(a)(2)(A), by failing to take into federal custedy many aliens who have been convicted of aggravated felonies and who are on conditional parole for deportation only. Second Claim for Relief 67. Plaintiffs repeat and reallege paragraphs 1 through 64. 68. The defendants have violated the Act, 8 U.S.c. § 1252(a)(2)(A), by failing to take into custody aliens convicted of aggravated felonies and released on parole or supervised release. Third Claim for Relief 69. Plaintiffs repeat and reallege paragraphs 1 through 64. . 21 004770. The defendants have violated the Act, 8 U.S.C. §1252(a)(2)(A), by failing to take into custody all the illegal aliens listed in the demand letter. Fourth Claim for Relief Ji. Plaintiffs repeat and reallege paragraphs 1 through 64. , 72. Defendants have violated the Act, 8 U.S.C. § 1252(a)(2)(A), by failing to retain in federal custedy illegal aliens who have been convicted of aggravated felonies and who are on parole. 22 op 48fth Claim for Relie! 73. Plaintiffs repeat and reallege paragraphs 1 through 64. 74. Defendants have violated the Act, 8 U.S.C. § 1252(a)(3)(A), by failing to implement a system to assist plaintiffs in identifying aliens convicted of aggravated felonies. Sixth Claim for Relief 75. Plaintiffs repeat and reallege paragraphs 1 throus’ 64. 76. Defendants' failure to take aliens and to retain illegal aliens who have been convicted of aggravated felonies upen their release on parole or supervised release is ar: capricious, an abuse of discretion not in accordance with law, an in violation of the Administrative Procedure Act, 5 U.S.C. 5706 and (2)(A) and (Cc). Seventh Claim for Relief 77. Plaintiffs repeat and reallege paragraphs 1 through 64. 78. Defendants’ failure to implement an information system to assist plaintiffs in identifying aliens convicted of aggravated felonies is arbi' rary, capricious, an abuse of discretion not in accordance with law, and in violation of the Administrative Procedure Act, 5 U.S.C. §706(1) and (2) (A) and (C)- 23 0049LI: ST WHEREFORE, the Plaintiffs request this Court to? (1) Assume jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1361 and the Administrative Procedure Act, 5 U.S.C. § 701-706. (2) Enter a judgment pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure declaring that: (a) defendants have violated 8 U.S.C. § 1252(a) (2) (A) by failing to take into custody all illegal aliens convicted o7 aggravated felonies on conditional parole for deportation only. (b) defendants have violated 8 U.S.C. § 1252(a) (2) (A) bY failing to take into custody illegal aliens convicted of aggravated felonies who have been placed on parole or supervised release. (c) defendants have violated 8 U.S.C. §1252(a) (3) (A) by failing to implement a system to assist plaintiffs in determining which foreign-born inmates convicted of aggravated felonies are aliens. (@) defendants have violated 8 U.S.C. § 1252(a)(2) bY failing to take into custody upon their release on parole or supervised release all aliens who have been convicted of the state crimes set forth in Exhibit A. (e) defendants have violated 8 U.S.C. § 1252(a) (2) (A) by failing to retain custody of illegal aliens who have been convicted of aggravated felonies and who are on parole. 24 £050(3) Issue a permanent injunction and order of mandamus on behalf of plaintiffs pursuant to 28 U.S.C. §§ 1361 and 2202 and Rule 65 of the Federal Rules of Civil Procedure: (a) enjoining defendants from failing and refusing to take into custody all aliens who have been convicted of aggravated felonies on conditional parole for deportation only. (b) enjoining defendants from failing and refusing to take into custody all aliens who have been convicted of aggravated felonies and who have been placed on parole or supervised release status. (c) directing defendants to take into custody all of the illegal aliens who have been identified in Exh. it a. (4) enjoining defendants' policies, practices and procedures by which defendants continue to fail or refuse to take into their custody aliens convicted of aggravated felonies in New York upon their release on parole or supervised release. (e) directing defendants to take inte custody all aliens who have been convicted of aggravated felonies upon their release on parole or supervised release upon notice from DOCS that such aliens will be released at specified locations and tines. (£) enjoining defendants from returning illegal aliens who have been convicted of aggravated felonies to the custody of DOCS or to the Division of Parole until a final determination has been made that they are not deportable. (g) directing defendants to retain continuous custody of illegal aliens convicted of aggravated felonies who have been 25 0051taken into federal custody pursuant to 8 U.S.C. § 1252(a) (2) (A) until a final determination has been made that they are not deportable. (h) enjoining defendants! policies, practices, procedures and regulations by which defendants have failed or refused to establish and implement a system to assist New York in determining which inmates in its custody have been convicted of aggravated felonies are aliens. (i) directing the defendants to devise and implement 2 system which would make available to the plaintiffs on a 24-hour basis investigative resources of the INS to assist the plaintiffs in determining which inmates in their custody are aliens convicted of an aggravated felony. 26 0052(4) Grant plaintiffs such other and further relief as to this Court may seem just and proper. Dated: New York, New York AprilZ7"; 1992 ROBERT ABRAMS ATTORNEY GENERAL OF THE STATE OF NEW YORK 120 Broadway New York, New York 10271 Attorney for Plaintiffs Cuone, Coughlin and Russi By: Que linn a 27 @ith T. Kramer (505532) Assistant Attorney General Litigation Bureau Section Chief of Affirmative Litigation (212) 416-8603