Opinion
No. C 00-4628 CRB
August 21, 2001
ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS
This petition for a writ of habeas corpus presents the question of whether section 236(c) of the Immigration and Nationalization Act ("INA"), 8 U.S.C. § 1226(c), which provides for the mandatory detention of certain aliens pending completion of removal proceedings, is unconstitutional on its face or, in the alternative, as applied to the petitioner. Having carefully considered the papers filed by the parties, the petition is hereby GRANTED.
BACKGROUND
The petitioner is a lawful permanent resident of the United States and a native and citizen of Honduras. She has lived in the United States for nine years. Her husband is a citizen of the United States, and she has one child, born in the United States in 1997.
In March 2000, the petitioner was convicted of the offense of making available a place for manufacturing, storing or distributing methamphetamine, a violation of 21 U.S.C. § 856(a)(2). She was sentenced to five months imprisonment followed by three years supervised release. After the petitioner completed her five-month prison sentence on December 10, 2000, the Immigration and Nationalization Service ("INS") detained her and placed her in removal proceedings. Based on her March 2000 conviction, the INS charged the petitioner with being removable under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), as a person convicted of an aggravated felony as defined by section 101(a)(43)(C) of the INA, 8 U.S.C. § 1101(a)(43).
On January 9, 2001, the Immigration Judge ordered the petitioner removed. On February 7, 2001, she filed an appeal of the order. She has been detained since December without an individualized bond hearing. She filed the present petition on December 11, 2000.
DISCUSSION
Section 236(c)(1) of the INA provides in relevant part that the Attorney General "shall take into custody any alien" who is deportable as an aggravated felon. 8 U.S.C. § 1226(c)(1)(B). The Attorney General has no authority to release such a detainee unless he or she is a witness or is cooperating with a criminal investigation. See 8 U.S.C. § 1226(c)(2). The petitioner challenges her mandatory detention without opportunity for an individualized bond hearing. In particular, she contends that section 236(c) is unconstitutional on its face or, in the alternative, as applied to her. She requests a writ compelling the INS to provide her with a hearing before an Immigration Judge to determine whether her release on bond would pose a flight risk or a danger to society.
"A federal statute is presumed constitutional unless shown otherwise." Danh v. Demore, 59 F. Supp.2d 994, 997 (N.D.Cal. 1999). "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." United States v. Salerno, 481 U.S. 739, 745 (1987). In an "as applied" challenge, however, the challenger "need only show that the statute, as applied to him, is invalid." Danh, 59 F. Supp.2d at 998. This Court will address whether section 236(c) is unconstitutional on its face and, in the alternative, whether it is unconstitutional as applied to petitioner.
I. THE COURT'S JURISDICTION
A writ of habeas corpus may be issued when a prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The respondent does not contest this Court's jurisdiction under section 2241 to decide the constitutionality of section 236(c). See Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999).
II. THE PETITIONER'S FACIAL CHALLENGE
The petitioner claims that she has been denied due process of law in violation of the Fifth Amendment because she has not had, and by statute cannot have, a bail hearing to determine whether she is a suitable candidate for release pending her removal proceedings. She argues that this mandatory detention under section 236(c) violates criminal aliens' rights to both substantive and procedural due process.
A. The Statutory History
In 1988, Congress amended the criminal alien provisions of the INA in the Anti-Drug Abuse Act ("ADAA"), making aliens convicted of aggravated felonies deportable under INA section 101(a). See Hyung Joon Kim v. Schiltgen, 1999 U.S. Dist. LEXIS 12511, at *6 (N.D.Cal.) (Illston, J.). The ADAA required the Attorney General to take into custody any aggravated felon upon completion of his or her sentence and barred the Attorney General from releasing the alien. See id. (citing INA section 242(a)(2)). "The ADAA's mandatory detention of aggravated felons was immediately challenged as violative of due process, and was declared unconstitutional by the majority of courts which considered it." Id. Congress responded by amending the INA in 1990 and 1991 "`to permit release of those aggravated felons who were lawfully admitted to the United States, and who could demonstrate that they were not a threat to the community and were likely to appear for their hearings.'" 11. at *6-7 (quoting Martinez v. Greene, 28 F. Supp.2d 1275, 1279-80 (D.Colo. 1998)).
Then in April 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. AEDPA subjected aggravated felons and other non-citizens with criminal convictions to mandatory detention with no eligibility to apply for bond. See AEDPA § 440(c), INA § 242(a)(2). Five months after AEDPA, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 1570. IIRIRA broadened the definition of an aggravated felony to include new crimes and replaced AEDPA's mandatory detention provision for criminal aliens with section 236(c). See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *7-8.
B. Substantive Due Process
1. The Applicability of the Due Process Clause to Aliens
"The Fifth Amendment's Due Process Clause forbids the Government to `depriv[e]' any `person . . . of . . . liberty . . . without due process of law.'" Zadvydas v. Davis, 121 S.Ct. 2491, 2498 (2001). "Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that Clause protects." Id. Government detention violates due process unless the detention is ordered in a criminal proceeding with adequate procedural protections or in certain special and narrow non-punitive circumstances where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint. See id. at 2498-99. The Due Process Clause "applies to all `persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Id. at 2500.
2. The Standard for Determining Whether Section 236(c) Violates Substantive Due Process
In evaluating whether section 236(c) violates aliens' substantive due process rights, the petitioner argues this Court should adopt the standard of review delineated in United States v. Salerno, 481 U.S. 739, 747 (1987). The Salerno standard involves a two step analysis. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *11. First, the court determines whether the statute at issue is "impermissible punishment or permissible regulation." Id. (quoting Salerno, 481 U.S. at 747). If it qualifies as a permissible regulation, the court then examines whether the statute is an excessive means of achieving the permissible goal. See id. If it is excessive, then the statute violates substantive due process rights. See id.
Citing Congress's plenary authority to legislate in the area of immigration, the respondent argues that the Court must defer to Congress's judgment and find section 236(c) unconstitutional only if it is unreasonable. See Reno v. Flores, 507 U.S. 292 (1993); Shaughnessy v. United States ex. rel. Mezei, 345 U.S. 206 (1953); Carlson v. Landon, 342 U.S. 524 (1952).
Courts must defer to Congress's authority when reviewing substantive immigration policy but may impose heightened scrutiny in reviewing the rules that implement or enforce that policy. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *13; see also Zadvydas, 121 S.Ct. at 2501. In Zadvydas, the Supreme Court responded to the government's argument that Congress has "plenary power" to create immigration law, thus requiring the judicial branch to defer to executive and legislative branch decision-making in that area, by stating that Congress's power "is subject to important constitutional limitations." 121 S.Ct. at 2501; see INS v. Chadha, 462 U.S. 919, 941-942 (1983) (holding that Congress must choose "a constitutionally permissive means of implementing" that power). In Chadha, the Court, while reviewing a challenge to the constitutionality of a section of the INA, stated:
The plenary authority of Congress over aliens under Art. I, § 8, cl. 4 is not open to question, but what is challenged here is whether congress has chosen a constitutionally permissible means of implementing that power . . . Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, so long as the exercise of that authority does not offend some other constitutional restriction.
Chadha, 462 U.S. at 940-41 (emphasis added) (internal citations omitted). "Courts therefore may examine the procedural means by which Congress reaches its substantive immigration ends under a stricter standard than pure deference." Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *14.
Although the Supreme Court has not directly addressed the statute at issue here, this Court and other courts have held that section 236(c) is a procedural statute, rather than one embodying substantive immigration policy, and therefore must be analyzed under the Salerno standard. In Hon Man Szeto v. Reno, 2000 WL. 630869 (N.D.Cal.) (Breyer, J.), this Court determined that the petitioner's section 236(c) challenge "[did] not involve Congress's decision over who to admit or expel, but rather how its decision to expel someone is implemented . . . Thus the deferential standard normally accorded Congress's immigration decisions [did] not apply." 2000 WL 630869, at *5. In reaching that result, this Court rejected the argument that the "rational basis" standard of review of Flores or Carlson should be applied to section 236(c). See id. at *5-6. Other courts have also held that section 236(c) is a procedural statute, thus triggering Salerno review. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *14; Martinez, 28 F. Supp.2d at 1281; Danh, 59 F. Supp.2d at 999.
The respondent also cites Mezei, 345 U.S. 206 (1953), in asserting Congress's plenary power over immigration matters. In Mezei, a once lawfully admitted alien left the United States, returned after a trip abroad, was refused admission, and was indefinitely detained on Ellis Island because the government could not find another country to accept him. 345 U.S. at 207-09. The Court, recognizing the power to expel or exclude aliens "as a fundamental sovereign attribute exercised by the government's political departments, largely immune from judicial control," held that Mezei's detention did not violate the Constitution. Id. at 210-211, 215-16. However, in Zadvydas, the Supreme Court noted that because Mezei's extended departure from the United States required him to seek entry into the country, "he was treated for constitutional purposes `as if stopped at the border' . . . [a]nd that made all the difference." 121 S.Ct. at 2500-01 (quoting Mezei, 345 U.S. at 213, 215).
3. The Application of the Salerno Standard
In applying the Salerno test, this Court must first determine whether the infringement on liberty at issue is "impermissible punishment or permissible regulation." Salerno, 481 U.S. at 747. The Supreme Court has held that deportation is regulatory, not punitive. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); see also Carlson, 342 U.S. at 537. In addition, when Congress enacted IIRIRA, which amended the INA to include section 236(c), it wished to prevent criminal aliens from absconding during their removal proceedings, to protect the public from potentially dangerous criminal aliens, and to restore public confidence in the immigration system. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *20; S. Rep. No. 48, 104th Cong., 1st Sess. (1995), 1995 WL 170285 (Leg. Hist.), at 1-6, 9, 18-23. Because these goals are within Congress's plenary' power over immigration policy, section 236(c) qualities as permissible regulation. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *20.
In applying the second prong of the Salerno test, this Court must determine whether the infringement on liberty is "excessive in relation to the regulatory goal Congress sought to achieve." Salerno, 481 U.S. at 747. Ultimately, a review of Congress's goals, the rate of abscondence by criminal aliens awaiting deportation, and the lack of discretion afforded to the Attorney General reveals that section 236(c) is excessive in relation to Congress's regulatory aims and that the statute is therefore unconstitutional on its face.
Prior to AEDPA in 1996, the Attorney General had discretion to release criminal aliens from custody pending deportation hearings, even aliens convicted of aggravated felonies. In enacting the amendments in AEDPA and IIRIRA, Congress determined that detention during removal proceedings was necessary to remedy the failure of prior bond procedures, to facilitate quick removal of criminal aliens, to protect the community from potentially dangerous aliens, and to ensure aliens' presence at removal proceedings and prevent efforts to avoid removal by absconding. See Parra, 172 F.3d. at 958.
In light of those goals, some courts have regarded section 236(c) as not excessive. For instance, in Parra, the Seventh Circuit observed that according to a report released by the U.S. Department of Justice Inspector General, the abscondence rate of criminal aliens awaiting deportation was ninety percent. See 172 F.3d at 956 (citing 62 Fed. Reg. 10,312, 10,323, 1997 WL 93131). As a result, the court concluded that the statute was reasonable. See id. at 958; see also Lezcano v. Reno, 2000 WL 1175564, at *7 (N.D. Cal.) (concluding that section 236(c) was constitutional as applied to the petitioner).
However, the Parra court applied a purely deferential standard of review for its substantive due process analysis. See 172 F.3d at 956. Moreover, congressional records indicate a much lower abscondence rate. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *25 n. 6. The Inspector General report cited in the Federal Register in Parra only notes that "when aliens are released from custody, nearly 90 percent abscond and are not removed from the United States." 62 Fed. Reg. at 10323. It is not specific to criminal aliens. By contrast, one Senate Report noted that "over 20 percent of non-detained criminal aliens do not appear for their deportation proceedings. As of 1992, the INS reported to Congress that some 10,875 aliens convicted of aggravated felonies had failed to report for deportation proceedings." S. Rep. No. 104-48 (1995), 1995 WL 170285 (Leg. Hist.) at 23; see id. at 23 n. 56 (noting that as many as twenty to thirty percent of cases in some parts of the country are tried "in absentia"). While one study in New York revealed that nearly ninety percent of criminal and non-criminal aliens in a given year failed to surrender, see id. at 24, the nationwide figure in the congressional record specific to criminal aliens — the twenty percent rate cited by the INS — is the most significant figure for the purpose of deciding whether section 236(c) is narrowly tailored to meet Congress's goals or is instead excessive. In light of an abscondence rate closer to twenty percent, mandatory detention for all criminal aliens pending deportation is excessive. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 1211, at *21. The Supreme Court's recent opinion in Zadvydas reinforces that conclusion. See 121 S.Ct. at 2499 (noting that although protecting the community is a justification which does not diminish over time, the Court has previously "upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections").
Significantly, even though only approximately twenty percent of criminal aliens abscond, the Attorney General has no discretion to release even the least dangerous and least likely to flee. That absence of discretion markedly distinguishes section 236(c) from other substantive due process cases. For instance, in Salerno, the Supreme Court held that the Bail Reform Act's pretrial detention measures were constitutional, and not excessive, in part because "[t]he arrestee [was] entitled to a prompt detention hearing" and the Attorney General had discretion to grant bail. 481 U.S. at 747. Similarly, in Carlson, the Attorney General had discretion to release Communist aliens on bail pending their deportation. See Carlson, 342 U.S. at 524. The Supreme Court upheld the Attorney General's decision as falling within his discretion, but noted that the existence of that discretion was crucial. See id. at 538.
Section 236(c) does not give the Attorney General any such discretion. Instead, no matter how little risk of danger to the community or flight an alien poses, the Attorney General cannot release her. Requiring the mandatory detention of every criminal alien even where only approximately twenty percent flee is excessive in relation to Congress's goals. Rather than requiring the Attorney General to detain all criminal aliens pending deportation, Congress could permit the Attorney General to hold individualized bail hearings to determine whether an alien is likely to fall within the twenty percent who flee as opposed to the nearly eighty percent who do not. As Judge Illston noted in Hyung Joon Kim:
To obtain its goals regarding a relatively small minority of criminal aliens, section 236(c) applies to every criminal alien an irrebuttable presumption that they pose a flight risk and/or a danger to the community. In Carlson, the Supreme Court stated that such blanket presumptions, with no safeguards to protect due process rights, are impermissible. In that case, the Supreme Court affirmed the detention of Communist aliens, but specifically cited the Attorney General's discretion to grant bond as a factor in its decision. The Court stated, "of course purpose to injure could not be imputed generally to all aliens subject to deportation." Carlson, 342 U.S. at 538 (emphasis added). Yet this is precisely what [section] 236(c) does. While the government's goals are valid, [section] 236(c) simply paints with too broad a brush. That twenty percent of criminal aliens do not return for deportation cannot justify mandatory detention without a bail hearing for the remaining eighty percent. As the Martinez court stated, "Due process demands more." Martinez, 28 F. Supp.2d at 1283.
1999 U.S. Dist. LEXIS 12511, at *21-22. Similarly, the Martinez court observed that "mandatory detention for all persons covered by [section] 236(c) is not narrowly tailored to met [sic] the valid legislative goals." 28 F. Supp.2d at 1282.
Thus, this Court finds that section 236(c) fails the second prong of the Salerno test as an excessive infringement of criminal aliens' rights to substantive due process and is therefore unconstitutional on its face. In contrast to Salerno and Carlson, the Attorney General has no discretion under section 236(c) to grant bail or even a bail hearing, as the statute requires mandatory detention. Without that discretion, an intent to flee and a danger to society is imputed generally to all aliens subject to deportation, even though only approximately twenty percent of criminal aliens subject to deportation orders fail to surrender. See Hyung Joon Kim 1999 U.S. Dist. LEXIS 12511, at *22-23. Individualized bail hearings would accomplish Congress's goals by permitting the INS to detain individuals where necessary while at the same time providing constitutional procedural protections and avoiding blanket presumptions. Accordingly, because section 236(c) violates criminal aliens' substantive due process rights, the petitioner's petition is hereby GRANTED. The respondent is hereby ORDERED to provide her with an individualized hearing with respect to whether she should be released on bond.
C. The Petitioner's Procedural Due process Claim
The petitioner also argues that section 236(c)(1) violates criminal aliens' rights to procedural due process. Although this Court has found that section 236(c) violates substantive due process, it will consider the procedural due process challenge as well.
Procedural due process requires that "[a] restriction [on liberty] be implemented fairly." Salerno, 481 U.S. at 746. To determine whether a given procedure, statute, or governmental conduct violates a person's right to due process, courts apply the three-step analysis from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The court must evaluate: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of the private interest and the effect of any additional safeguards on that risk; and (3) the government's interest in maintaining the current procedures. See id.
Resident legal aliens are entitled to procedural due process protection under Mathews. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *27. Many courts have applied Mathews when reviewing both section 236(c) and its predecessor, ADAA § 7343(a). See id.; see also Van Eeton v. Beebe, 49 F. Supp.2d 1186, 1190 (D.Or. 1999); Martinez, 28 F. Supp.2d at 1282; Leader v. Blackman, 744 F. Supp. 509, 508 (S.D.N.Y. 1990).
The respondent asserts that even under Mathews, a criminal alien has no legal interest in being at large in the United States pending a determination of his removability, while the respondent has a significant interest in ensuring his presence for immigration proceedings and potential removal from the country. As a result, the respondent contends, the procedures provided under section 236(c) are constitutionally adequate.
Hyung Joon Kim and Martinez recognized that the private interests at stake in a section 236(c) challenge are the right to be free of indefinite and possible long-term detention pending a deportability determination and the right to a hearing regarding one's suitability for release, not the absolute right to remain at large pending a deportability determination. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *28; Martinez, 28 F. Supp.2d at 1283. The recent Zadvydas decision, which was not yet rendered at the time when various courts were upholding the constitutionality of section 236(c), emphasizes the weight of this interest in holding that aliens have the right to be free of indefinite detention. See Zadvydas, 121 S.Ct. 2495. The private interest at stake here is "fundamental to any democratic society: the right to freedom from arbitrary detention." Danh, 59 F. Supp.2d at 1004.
In addition, the risk of erroneous deprivation of that interest is substantial, since under section 236(c) no procedures exist to determine whether the given individual merits release on bond. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *28. Additional safeguards are readily available, such as the bond hearing procedures which were in place during the transitional period under IIRIRA § 303(b)(3). See id.
Finally, the burden on the government in changing its procedures is minimal. Since criminal aliens already must come before an Immigration Judge for a determination of whether section 236(c) applies to them, the government could simply conduct bond hearings at that same time. See id. at *29.
While the respondent's interest in preventing alien abscondence and protecting the public is strong, it is insufficient to overrule the stronger private interest, reiterated in Zadvydas, and the high risk of erroneous deprivation of that private interest. Accordingly, the Court finds that section 236(c) violates criminal aliens' rights to procedural due process as well.
III. THE PETITIONER'S AS APPLIED CHALLENGE
The petitioner asserts that even if this Court finds section 236(c) constitutional on its face, the statute is still unconstitutional as applied to her. She argues that it is excessive because she has not been able to demonstrate at a bail hearing that she poses no danger to the community and is not a flight risk.
A. Substantive Due Process
Because the Court has already found that preventing criminal aliens from absconding during their removal proceedings, protecting the public from potentially dangerous criminal aliens, and restoring public confidence in the immigration system qualify as permissible regulation, it is only necessary to determine whether or not section 236(c) is excessive as applied to the petitioner in achieving these goals. See Hyung Joon Kim, 1999 U.S. Dist. LEXIS 12511, at *20. In other words, the issue is whether or not the petitioner, because she falls within section 236(c), can be presumed to be dangerous or a flight risk. If so, then denying her a bail hearing is not excessive, and therefore not a violation of her substantive rights.
Though the Hyung Joon Kim and Martinez courts found section 236(c) to be unconstitutional on its face, other courts, including this Court, have also addressed whether section 236(c) is unconstitutional as applied to individual petitioners, thereby making individual determinations on whether or not the government can presume certain aliens to be of danger or flight risk. In Hon Man Szeto, this Court found section 236(c) unconstitutional as applied to a petitioner because his recent one-year sentence on a conviction for petty theft with two twenty-year-old robbery and burglary prior convictions made section 236(c) applicable to him, even though his prior convictions had been waived. See 2000 WL 630869, at *6-7. In doing so, the Court discussed Diaz-Zaldierna v. Fasano, 43 F. Supp.2d 1114 (S.D. Cal. 1999), and Galvez v. Lewis, 56 F. Supp.2d 637 (E.D.Va. 1999), two cases in which courts applied the heightened standard of review and found section 236(c) constitutional as applied to each respective petitioner.
In both Galvez and Diaz-Zaldierna, the courts found "it [was] not excessive for Congress to find that aliens convicted of controlled substances offenses can be presumed to be dangerous such that their release on bail, pending the outcome of their removal proceedings, is not warranted." Galvez, 56 F. Supp.2d at 647 (quoting Diaz-Zaldierna, 43 F. Supp.2d at 1119). Galvez had been convicted of cocaine possession and Diaz-Zaldierna had been convicted of crack cocaine possession.
However, in Danh, the court found that section 236(c) was unconstitutional as applied to two petitioners who pled no contest to one count of fraudulent obtainment of AFDC benefits. 59 F. Supp.2d at 996. The petitioners in that case had been residing in the country for more than ten years, and had children who were native-born United States citizens. See Danh, 59 F. Supp.2d at 996. "[T]hese ties ma[de] petitioners extremely unlikely flight risks. Furthermore, petitioners were not convicted of a violent crime or an offense with attendant dangers, such as drug use. To the Court's knowledge, petitioners [had] not — until recently — had any trouble with the law . . . There [was] no evidence that petitioners' release would pose a threat to public safety." Id. at 1001.
In addition, in Van Eeton, the court concluded that due process required an individualized bond hearing for a petitioner who had at different times pleaded guilty to possession of cocaine, delivering marijuana, and being a felon in possession of a firearm, and who had pleaded no contest to attempted second degree assault. The court stated that "[d]enying individualized bond hearings `imputes a purpose to injure society to all detained aliens with aggravated felony convictions, regardless of the circumstances of the individual case.'" Id. at 1190 (quoting St. John v. McElroy, 917 F. Supp. 243, 246 (S.D.N.Y. 1996)).
Presented with a case in which petitioner has been convicted of a drug offense, this Court disagrees that her conviction warrants a flat presumption that she poses a danger to the community or is a flight risk. Though this Court distinguished the petitioner in Hon Man Szeto from the petitioner in Diaz-Zaldierna in part based on the lack of a drug offense, it did not address "whether [it] agree[d] with Diaz-Zaldierna." 2000 WL 630869, at *6.
In addition, unlike the petitioners in Galvez, Diaz-Zaldierna, and even Van Eeton (in which the court granted the habeas petition), who were convicted of drug possession, the petitioner in the instant case was convicted of making available a place for manufacturing, storing or distributing methamphetamine, for which she served only five months. Like the petitioners in Danh, she was not convicted of a violent crime or drug use. To the Court's knowledge, she has not, until recently, had any trouble with the law and there is no evidence that her release would pose a threat to public safety. Moreover, the petitioner is an unlikely flight risk. She has been living legally in the United States for nine years. In addition, she is a mother of a four-year-old child born in the United States, and she is married to a United States citizen.
Because she is an unlikely flight risk and does not appear to be a threat to the community, it is excessive to deny her a bail hearing. She has been detained without a hearing since December (in part because she has appealed the Immigration Judge's removal order). Therefore, this mandatory detention violates her fundamental right to liberty under the Salerno standard, and section 236(c) is unconstitutional as applied to her.
B. Procedural Due Process
For the reasons stated above in determining that section 236(c) is a violation of procedural due process on its face, the Court also finds that section 236(c) as applied violates this petitioner's procedural due process rights.
CONCLUSION
For the foregoing reasons, this Court finds that section 236(c) violates criminal aliens' rights to substantive and procedural due process. There are no circumstances under which section 236(c) could be valid. It is therefore unconstitutional on its face. In the alternative, this Court finds that section 236(c) is unconstitutional as applied to the petitioner. The petitioner's petition for a writ of habeas corpus is therefore GRANTED. It is FURTHER ORDERED that:
(1) the Immigration Judge hold an individualized hearing within five business days of the date of this Order to determine whether the petitioner's release on bond would pose a flight risk or a danger to society; and
(2) the petitioner is awarded costs, but her request for attorney's fees is DENIED.
IT IS SO ORDERED.