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finding that § 1226(c) implicates a fundamental liberty interest and violates both substantive and procedural due process
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Case Number: 00-CV-74409-DT
March 27, 2001
MEMORANDUM OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS
I. BACKGROUND
Petitioner Sadeh Mohammad-Fakher Danesh, an Iranian national, is a permanent resident of the United States. He has lived in the United States since August 20, 1976 with his wife and two minor daughters, who are all United States citizens, in Utica, Michigan.
On March 15, 2000, Petitioner was convicted of four counts of Attempted Criminal Sexual Conduct, Fourth Degree, in violation of M.C.L.A. §§ 750.520(e) and 750.92, before the Macomb County Circuit Court. Petitioner was sentenced to two (2) years of probation and six (6) months work release. The charges were related to several instances of sexual molestation of his niece, who was under the age of 13. Petitioner has completed the work release portion of his sentence.
In September 2000, Petitioner was taken into custody by the Immigration and Naturalization Service ("INS") and has remained in custody at the Calhoun Count Jail during these proceedings. The INS alleges Petitioner is removable because he has been convicted of an aggravated felony in violation of the Immigration and Nationality Act ("INA"), § 237(a)(2)(A)(iii) and has committed two or more crimes involving moral turpitude in violation of § 237(a)(2)(A)(ii) of the Act. On September 14, 2000, the Immigration Judge ("IJ") held a bond hearing finding that Petitioner was ineligible for bond pursuant to § 236(c) of the INA, 8 U.S.C. § 1226 (c) pending the removal proceedings.
Petitioner filed the instant writ of habeas corpus pursuant to 28 U.S.C. § 2241 on October 3, 2000 seeking immediate release from detention, or, in the alternative, an individualized bond hearing before an impartial adjudicator. Petitioner claims that he is in grave danger of losing his freedom and being denied his employment as an engineer because his employer cannot hold the position for Petitioner much longer. Respondents have filed a response in opposition to Petitioner's writ of habeas corpus, along with a Motion to Dismiss the Petition arguing that Petitioner has failed to exhaust his available administrative remedies.
II. ANALYSIS A. Jurisdiction
Before ruling on the merits of the instant Petition, this Court must first decide whether changes to various provisions of the immigration laws by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (1996) (the "IIRIRA"), deprive this Court of subject matter jurisdiction over the habeas corpus petition filed pursuant to 28 U.S.C. § 2241. This Court holds that the AEDPA and IIRIRA do not preclude this Court from exercising jurisdiction over the instant petition.
Section 1252(a)(1) provides, in pertinent part:
Judicial review of a final order of removal . . . is governed only by chapter 158 of Title 28, except as provided in subsection (b) of this section and except that the court may not order the taking of additional evidence under section 2347(c) of Title 28.8 U.S.C. § 1252 (a)(l).
Section 1252(b)(9) states as follows:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.8 U.S.C. § 1252 (b)(9).
Neither section 1252(b)(9) nor section 1252(a)(1) expressly references habeas corpus relief. It is axiomatic that "[r]epeals by implication are not favored," particularly in the context of jurisdictional statutes. Felker v. Turpin, 518 U.S. 651, 660 (1996) (citing Ex Parte Yerger, 8 Wall. 85, 105 (1869)). In Felker, the Supreme Court declined to interpret a statute as repealing a federal court's power to hear habeas corpus petitions under 28 U.S.C. § 2241 because the statute lacked clear and affirmative language eliminating such review. Id. at 661; see also Jean-Baptiste v. Reno, 144 F.3d 212, 219 (2d Cir. 1998) (holding that "in the absence of language affirmatively and clearly eliminating habeas review, we presume Congress did not aim to bar federal courts' habeas jurisdiction pursuant to § 2241") (citingFelker, 518 U.S. at 661, Yerger, 8 Wall. at 105). Therefore, in order to find that this Court has been divested of its jurisdiction over aliens' habeas corpus petitions, this Court would have to conclude that this divestiture is implied . To so hold would be to ignore the Supreme Court's clear mandate that repeals by implication are disfavored.
The Ninth Circuit Court of Appeals has held that § § 1252(b)(9) and (a)(l) do not divest district courts of jurisdiction over habeas corpus cases. Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000). This Court finds the Ninth Circuit Court of Appeals' reasoning persuasive:
. . . W]e must recognize that [ 8 U.S.C. § 1252 (b)(9)] does not mention the federal habeas statute, and therefore cannot constitute a repeal of it, in whole or in part. While it is true that the Supreme Court has offered some, limited, guidance on the subject of § 1252(b)(9) in its brief discussion of that provision in [Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)], that case does not require a conclusion contrary to the rule set forth in Felker. . . . The Court suggested that § 1252(b)(9) is a "general jurisdictional limitation" and stated that it "channels judicial review" of immigration actions and decisions, acting as a "zipper clause." Id. at 483, 119 S.Ct. 936.
These statements do not require, or even suggest that § 1252(b)(9) modifies or amends the general federal habeas statute. Instead, they suggest, and we so hold, that § 1252(b)(9) speaks to a different issue altogether — the need to consolidate (or "zip") petitions for review into one action in the court of appeals. The provision itself is titled "consolidation of questions for judicial review," and is properly termed a "zipper clause." However, what it "zips" are requests for review of various kinds of agency action which are heard by means of petitions for "judicial review." It does not affect petitions for habeas corpus. As the first lines of subsection (b) state, that subsection, including (b)(9), applies only "with respect to review of an order of removal under subsection (a)(1)." 8 U.S.C. § 1252 (b) (emphasis added). Review under subsection (a)(l) occurs only under "chapter 158 of Title 28," which is the Administrative Procedure Act. While the APA governs petitions for review of certain agency actions, . . . it does not govern habeas proceedings; habeas proceedings are brought under, and subject to, 28 U.S.C. § 2241, not under the Administrative Procedure Act. It follows that § 1252(b)(9) does not apply to actions brought in habeas corpus, and certainly does not serve to repeal in whole or in part the general habeas statute.Id. at 1139-40.
This Court holds that neither § 1252(a)(l) nor § 1252(b)(9) repealed the district courts' jurisdiction to review habeas petitions filed by aliens pursuant to 28 U.S.C. § 2241.
B. Failure to Exhaust Administrative Remedies
Respondents argue that the Petition should be dismissed because Petitioner has failed to exhaust his available administrative remedies under the pertinent regulations and the Act. 8 C.F.R. § 3.19 and 236.1, 8 U.S.C. § 1236 (c). Petitioner may make a written or oral request for bond to the INS district director. 8 C.F.R. § 3.19 (a), (b) and 236.1(c)(10) (1999). An individual in custody under section 236(c) may also seek a redetermination from the immigration judge in order to dispute Petitioner's inclusion within a category of aliens covered by the detention requirement of section 236(c). Id. at §§ 3.19 (h)(2)(i)(D), (h)(2)(ii) and 236.1(d)(I). An alien may appeal any adverse decision by an immigration judge regarding inclusion within 236 (c) to the Board of Immigration Appeals ("BIA"). Id. at 236(d)(3). Petitioner did not pursue these remedies but instead filed the instant suit. Petitioner argues that it would take too long to go through the administrative remedies, and, because he is challenging the constitutionality of section 236(c), he is not required to exhaust the available administrative remedies.
The exhaustion of administrative remedies doctrine provides that, "a party may not seek federal judicial review of an adverse administraitve determination until the party has first sought all possible relief within the agency itself." Howell v. Immigration and Naturalization Service, 72 F.3d 288, 291 (2d Cir. 1995) (citing Myers v. Bethlehem Shipbulding Corp., 303 U.S. 41, 50-51 (1938)). "Where Congress specifically mandates, exhaustion is required." McCarthy v. Madigan, 503 U.S. 140, 144 (1992). If Congress has not so clearly mandated exhaustion, the requirement to exhaust remedies is within the sound discretion of the court. Id. To make this determination, a court "must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion." Id. at 146. Congress has not mandated exhaustion under the Act, therefore, it is within the Court's sound discretion to determine whether exhaustion should be required.
The Supreme Court has recognized "broad sets of circumstances in which the interests of an individual weigh heavily against requiring administrative exhaustion." Id. at 146. One circumstance is where, "an agency, as a preliminary matter, may be unable to consider whether to grant relief because it lacks institutional competence to resolve the particular type of issue presented, such as the constitutionality of the statute." Id. at 147-48. Petitioner claims in his habeas petition that § 236(c) of the INA is unconstitutional. The BIA has stated that it lacks authority to adjudicate this issue. In re Joseph, Int. Dec. 3387 at 6 (BIA 1999)("We note that it is not within the purview of this Board to pass upon the constitutionality of the mandatory detention provision in section 236(b)(1)."); see also Liu v. Waters, 55 F.3d 421, 425 (9th Cir. 1995)("[T]he BIA lacks jurisdiction to decide questions of the constitutionality of governing statutes or regulations.")
Respondents claim that there have been cases where the matters have been remanded to the INS/BIA on constitutionality issues. However, those cases have simply distinguished between "procedural errors, constitutional or otherwise, that are correctable by the administrative tribunal from those that lie outside the BIA's ken." Liu, 55 F.3d at 426. In Liu, the Ninth Circuit required exhaustion of remedies for the petitioner's ineffective assistance of counsel claim holding that although "the BIA lacked jurisdiction to decide questions of constitutionality of the immigration laws," the agency did "have the authority to reopen cases to fix administratively correctable procedural errors, even when these errors are failures to follow due process." Id. The Ninth Circuit remanded the matter to the BIA because it believed the BIA had the authority to remedy Petitioner's ineffective assistance of counsel claim but the Ninth Circuit did not remand the matter for the issue of whether the Act was constitutional. In Yeung v. Immigration and Naturalization Service, 76 F.3d 337 (11th Cir. 1995), the Eleventh Circuit remanded the matter to the BIA on the equal protection claim because it held that the BIA had applied the same statute differently to similarly situated individuals. Id. at 340. The Eleventh Circuit did not remand the matter for the determination of whether the Act itself was constitutional. Unlike Liu and Yeung, the issue before the Court does not involve any procedural issues which the INS may be able to correct but the issue is the constitutionality of § 236(c).
Respondents further argue that there is a two-fold purpose for exhaustion of administrative remedies: to protect an administrative agency's authority and to promote judicial efficiency. McCarthy, 503 U.S. at 156. An agency's authority should be protected "when the action under review involves exercise of the agency's discretionary power or when the agency proceedings in question allow the agency to apply its special expertise." Id. In this case, Petitioner challenges the constitutionality of § 236(c) and not the agency's authority to implement its discretionary power.
Exhaustion promotes judicial efficiency by producing a useful record for subsequent judicial consideration and the agency has the opportunity to correct its own errors which may moot any issue for judicial consideration. Id. Here, the administrative record is not necessary to the determination of whether § 236(c) is constitutional. The agency has previously stated it has no authority to make such a determination, therefore, it cannot correct any error on the constitutionality issue.
Based on the above, the Court concludes that because Petitioner is seeking a determination of the constitutionality of§ 236(c), exhaustion of administrative remedies is not required. The Court addresses the merits of Petitioner's claims below.
C. Due Process Challenge 1. Standard
Section 236(c) of the INA, 8 U.S.C. § 1226 (c), provides that, "[t]he Attorney General shall take into custody any alien who . . . is deportable by reason of having committed any offense covered in section . . . 1227(a)(2)(A)(iii) [aggravated felony] . . ." 8 U.S.C. § 1226 (c)(10)(B). Petitioner contends that § 236(c) of the INA, 8 U.S.C. § 1226 (c), violates his Fifth Amendment right to due process. Petitioner argues that he is entitled to an individualized hearing to determine whether he is eligible for bond pending removal proceedings. In response, Respondents claim that § 1226 is constitutional.
To obtain a writ of habeas corpus under 28 U.S.C. § 2241, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c)(3). A federal statute is presumed constitutional unless shown otherwise. United States v. Salerno, 481 U.S. 739, 745 (1987). "A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Id. It is well-settled that aliens present in the United States, even those determined to be removable, are entitled to the safeguards of the Due Process Clause. Plyler v. Doe, 457 U.S. 202, 210 (1982).
Respondents argue that the standard of review to be applied in the Court's determination of whether the statute is unconstitutional is the more deferential standard of whether the statute "rationally advanc[es] some legitimate governmental purpose." Reno v. Flores, 507 U.S. 292, 306 (1993). The Flores case involved the constitutionality of the release procedures as it applies to juvenile aliens. The Supreme Court held that the right sought by the juvenile aliens was not fundamental because a juvenile is "always in some form of custody." Id. at 302-03 (citingSchall v. Martin, 467 U.S. 253, 265 (1984)). The Supreme Court distinguished the Flores case from cases where deprivations of "fundamental" liberty interests, such as being free from physical restraint in a barred cell. Flores, 507 U.S. at 302. The Supreme Court noted that the Fifth Amendment's guarantee of due process of law forbids the government from infringing certain fundamental liberty interests, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Id. (citing Salerno, 481 U.S. at 746). Any detention pending deportation or now called under the Act, removal proceedings, is more analogized to incarceration pending trial or other disposition of a criminal charge. Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981).
Respondents cite to the only circuit case which has interpreted the current mandatory detention provision of Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999). In that case, the petitioner, facing removal proceedings under § 1226(c), like Petitioner in this case, argued that the statute was unconstitutional because it violated his due process rights. The Seventh Circuit noted that the liberty interest involved in that case "is not liberty in the abstract, but liberty in the United States by someone no longer entitled to remain in this country but eligible to live at liberty in his native land; the probability of error is zero when the alien concedes all elements that require removal (as Parra has done); and the public interest is substantial given the high flight rate of those released on bail." Id. at 958.
First, the Parra case is distinguishable in that the Seventh Circuit found it significant that the petitioner had conceded all the elements required for removal. In this case, Petitioner has not expressly conceded that he has met the elements required for removal. Secondly, this Court does not agree with the Seventh Circuit's conclusion that the liberty at issue was not entitled to protection because that individual was no longer entitled to remain in the country. As noted by the Supreme Court in Flores, the fundamental liberty interest at issue, no matter the process involved, is the freedom from physical restraint, such as being in a barred cell, not because an individual is no longer entitled to remain in the country, without the process having been completed. Flores, 507 U.S. at 302. This Court concludes that based on the Supreme Court's analysis in Flores and Salerno, the higher standard in Salerno is applicable. Petitioner, an adult, has a fundamental liberty interest in being free from physical restraint, unless the Government can show a compelling state interest in infringing on Petitioner's fundamental liberty interest.
2. Substantive Due Process
Substantive due process "prevents the government from engaging in conduct that `shocks the conscience,' or interferes with rights `implicit in the concept of ordered liberty.'" Salerno, 481 U.S. at 746. The Court finds persuasive the analysis in Martinez v. Greene, 28 F. Supp.2d 1275 (D. Colo. 1998) on this issue:
In the context of immigration statutes and regulations, whether the infringement is narrowly tailored to serve a compelling governmental interest is determined by evaluating whether the infringement on liberty: 1) is impermissible punishment or permissible regulation; and 2) is excessive in relation to the regulatory goal Congress sought to achieve. . . . If the interference with liberty satisfies these inquiries and, therefore, does not violate substantive due process, procedural due process requires that the restriction be implemented fairly.Martinez, 28 F. Supp.2d at 1282 (citations omitted) (citing Salerno, 481 U.S. at 747 (standard applicable in criminal cases) and Mathews v. Eldridge, 424 U.S. 319 (1976)). Removal and deportation proceedings are regulatory in nature and not punishment. Martinez, 28 F. Supp.2d at 1282 (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); Carlson v. Landon, 342 U.S. 524, 537 (1952)). The mandatory detention requirement under § 1226(c) is to prevent criminal aliens in deportation proceedings from absconding or committing further criminal acts and such concerns are legitimate regulatory goals. Martinez, 28 F. Supp.2d at 1282. The government meets the first question of the analysis.
As to whether the mandatory detention is excessive in relation to the permissible regulatory goals, this Court finds that it is excessive because the individual is not entitled to a prompt detention hearing and the statute removes all discretion from the Attorney General on whether bond may be allowed in a certain case. In Salerno, as it relates to criminal matters, the Supreme Court concluded that the pretrial detention procedures under the Bail Reform Act were not excessive noting that the arrestee was entitled to a prompt detention hearing. Salerno, 481 U.S. at 747. Under § 1226(c), there is no hearing regarding bond. The mandatory detention provision under § 1226(c) is not narrowly tailored to meet the valid legislative goals because it is excessive in relation to the regulatory goal Congress sought to achieve. Salerno, 481 U.S. at 747. Giving the Attorney General discretion regarding bond and allowing a hearing on the matter would not defeat Congress' regulatory goal to limit absconding or committing further criminal acts on the part of the individual subject to the Act. The Court finds that based on the above discussion, the mandatory detention provision under § 1226(c) violates substantive due process and is unconstitutional. 3. Procedural Due Process
Contrast § 23 6(c) to § 241(a)(2) of the Act. Under § 241(a)(2), once a final and enforceable order of removal has been entered, the Attorney General is given the authority to consider discretionary release from custody if the alien has not been removed from the country within 90 days. It is curious that the Attorney General is given some discretion to release an individual after an alien has been ordered to be removed but the Attorney General does not have such discretion while the proceedings are pending and before an alien is ordered removed.
Prior to the current statute, the Act contained a mandatory detention provision, 8 U.S.C. § 1252 (a)(2) which two courts in this district found unconstitutional. Paxton v. INS, 745 F. Supp. 1261, 1265 (E.D. Mich. 1990) (the district court followed Salerno in finding that § 1252(a)(2) was unconstitutional) and Probert v. INS, 750 F. Supp. 252, 256 (E.D. Mich. 1990) (finding that § 1252(a)(2) violates substantive and procedural due process because "[but is shocking to the conscience and interferes with the rights implicit in the concept of ordered liberty.")). The Probert case was appealed to the Sixth Circuit but prior to rendering its decision on the mandatory detention provision, Congress amended the provision allowing for a bond hearing and giving the Attorney General the discretion to determine whether the alien convicted of an aggravated felony awaiting deportability proceedings is a threat to the community and that the alien is likely to appear at any scheduled hearings. See Probert v. INS, 954 F.2d 1253, 1255 (6th Cir. 1992).
Two courts in this district have rendered opinions on the current statute at issue. Baidas v. Jenifer, 123 F. Supp.2d 1052, 1058-59 (E.D. Mich. Dec. 6, 2000) (J. Cohn) (petitioner is entitled to an individual evaluation regarding continued detention pending removal proceedings), but see Marogi v. Jenifer, 2000 WL 1922273, * 8 (E.D. Mich. Dec. 15, 2000) (J. Cleland) (following Parra and finding that the scope of judicial inquiry into immigration legislation is limited, therefore the government's interest in preventing both a continuation of crime and flight of arrestees outweighed the petitioner's diminished liberty interest)).
Other district courts have ruled that § 1226(c) is unconstitutional. See e.g. Danh v. Denmore, 59 F. Supp.2d 994, 1001-05 (N.D. Cal. 1999) (mandatory detention provisions violate the petitioner's due process rights); Van Eeton v. Beebe, 49 F. Supp.2d 1186, 1190 (D. Or. 1999)(same); Bouyard v. Holmes, 74 F. Supp.2d 471, 473-76 (E.D. Pa. 1999)(same); Son Vo v. Greene, 109 F. Supp.2d 1281 1282-83 (D. Colo. 2000) (same); but see, Okeke v. Pasguarell, 80 F. Supp.2d 635, 638 (W.D. Tex. 2000) (holding that § 1226(c) is constitutional, followingParra).
Procedural due process requires an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965). There are generally three factors to be weighed in determining whether the process at issue is constitutional: 1) the private interest affected by the official actions; 2) the risk of an erroneous deprivation of the interest, and the value, if any, of additional or substitute procedural safeguards; and 3) the government's interest, including the fiscal and administrative burdens the additional or substitute procedural requirements would impose. Mathews, 424 U.S. at 335.
The private interest at issue is the right to be free from an indefinite and possible long-term detention pending the determination of whether an individual should be removed. Martinez, 28 F. Supp.2d at 1283. As noted above, there is a fundamental right to be free from physical restraint as noted in Flores and Salerno.
The risk is great of an erroneous deprivation of the private interest at issue because the statute provides no individualized hearing to determine if bond is warranted in a certain case. Martinez, 28 F. Supp.2d at 1283. The statute does not provide for time limitations within which a removal proceeding should take place. An individual could be detained indefinitely pending removal procedures.
Section 1 226(c)(2) provides for release, after an individualized hearing to determine flight and safety risk, only when the Attorney General determines that an individual should enter the witness protection program. This section involves those individuals who are potential witnesses for the Government and does not apply to all individuals in a removal proceeding.
Regarding the government's interest, including the fiscal and administrative burdens, such a burden is minimal given that prior to the enaction of the current Act, bond hearings were routinely held. The incorporation of traditional bail considerations of flight risk and danger would impose minimal administrative and fiscal burdens. Id. The administrative scheme is already in place — there is an INS IJ involved in the process and other personnel to support the individual bond hearing. Any additional burdens associated with providing an individual bond hearing are minimal and do not outweigh the risk of depriving an individual of his/her liberty without due process. Id. (citing, Mathews, 424 U.S. at 335). Weighing the factors, the Court finds that § 1226(c) deprives an individual of procedural due process and is unconstitutional.
D. Eighth Amendment Challenge
Petitioner claims in his Petition that § 1226(c) violates the Eighth Amendment's prohibition against excessive bail. Petitioner does not brief this issue in his memorandum. Although there is no right to bail, a statute that mandatorily denies bond violates the Eighth Amendment because such a statute achieves the same result. Paxton v. INS, 745 F. Supp. 1261, 1265 (E.D. Mich. 1990).
E. Transfer Outside the Eastern District of Michigan
Petitioner alleges in his Petition that transferring Petitioner outside the Eastern District of Michigan violates both the Fifth and Eighth Amendments of the Constitution. Petitioner does not brief this issue in his memorandum. A condition of confinement case is a constitutional attack on general conditions, practices, rules or restrictions of pretrial confinement which are analyzed under the Fourteenth Amendment's guarantee of due process of law, as opposed to the Eighth Amendment's prohibition of cruel and unusual punishment, which only applies to sentenced inmates. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Within the context of INS detainees, courts should look to the jurisprudence establishing the constitutional rights of pretrial detainees. See Ortega v. Rowe, 796 F.2d 765, 767 (5th Cir. 1986). "Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline to maintain institutional security."Martucci v. Johnson, 944 F.2d 291 (6th Cir. 1991) (citing Bell, 441 U.S. at 547. "[T]he `essential objective of pretrial confinement is to insure the detainee's presence at trial'" Bell 441 U.S. at 535. The federal Constitution does not confer upon prisoners a "liberty interest" in any particular form of confinement. Martucci, 944 F.2d at 294.
Here, Petitioner has not identified any particular constitutional right or liberty interest to be placed in a specific institution pending removal proceedings. The INS is accorded deference in the adoption and execution of policies and practices regarding placement of pretrial or, in this case, pre-removal detainees. Petitioner has not shown that any future INS decision of placing Petitioner in a facility outside the Eastern District of Michigan pending removal procedures is not related to a legitimate and non-punitive governmental objective. Petitioner has no constitutional right to be placed in a particular institution pending removal proceedings.
III. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Respondents' Motion to Dismiss the Petition (Docket No. 5, filed November 7, 2000) is DENIED IN PART and GRANTED IN PART. Count III only is DISMISSED.
IT IS FURTHER ORDERED that the Petition for a Writ of Habeas Corpus, based on the Court's analysis on Counts I (Eighth Amendment claim) and II (Due Process claims), is CONDITIONALLY GRANTED. Petitioner is to be RELEASED from custody unless the government (INS) begins a review process, including holding an individualized bond hearing within thirty (30) days, to determine whether Petitioner may be released on bond without undue risk of flight and/or danger to the community, pending a final adjudication of removability.
IT IS FURTHER ORDERED that Petitioner's Motion to Expedite Hearing (Docket No. 8, filed December 18, 2000) is GRANTED.