Summary
holding that mandatory detention was unconstitutional but noting in dicta that § 1226(c) is ambiguous
Summary of this case from Beltran v. HolderOpinion
NO. 3-01-CV-1916-M
March 6, 2002
FINDINGS AND RECOMMENDATION OF TILE UNITED STATES MAGISTRATE JUDGE
Petitioner Dhonovan Paul Ramos Serrano has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The application has been referred to United States Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636 (b).
I.
Petitioner is a native and citizen of the Philippines. (Resp. App. at 26). He entered the United States in 1990 as a visitor and became a permanent resident alien on August 13, 1992 through the sponsorship of his step-father. ( Id. at 26, 30). Petitioner has resided in this country since his adjustment. ( Id. at 30).
On April 30, 1998, petitioner was sentenced to 46 months in federal prison for conspiracy to commit bank fraud and receiving stolen money. ( Id. at 1-2). The trial court also ordered petitioner to make restitution to the defrauded banks in the amount of $464,000. ( Id. at 4). Based on this conviction, the Immigration and Naturalization Service ("INS") initiated removal proceedings. ( Id. at 26). When petitioner was released from federal custody in December 2000, he was taken into state custody on theft charges. (Resp. Ans. at 3). At some point, petitioner was released by state authorities. He remained at-large for nearly six months until surrendering to immigration officials on June 8, 2001. (Hab. Pet. at 1; Resp. Ans. at 3). Thereafter, petitioner was ordered removed to the Phillippines and held without bond pending his removal. (Resp. App. at 43-45). This decision is currently under review by the Board of Immigration Appeals. Petitioner now challenges his continued detention in an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Section 237(a) of the Immigration and Nationality Act ("INA") provides, in relevant part:
Any alien . . . in and admitted to the United States shall, upon order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
II.
Petitioner argues that his detention is not authorized under section 236(c) of the Immigration and Nationality Act ("INA") because immigration officials did not take him into custody when he was released from prison as required by the statute. He further contends that the mandatory detention provisions of section 236(c) are unconstitutional as applied to permanent resident aliens by precluding the possibility of release on bail.
Respondent moves to dismiss this case for failure to exhaust administrative remedies. Alternatively, respondent maintains that petitioner is not entitled to habeas relief. The Court will address the exhaustion issue first.
A.
The federal habeas statute does not require a petitioner to exhaust administrative remedies. See Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001) (noting that section 2241 does not contain exhaustion provision). However, when exhaustion is mandated by some other statute, the requirement is jurisdictional. Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986); see also Goonsuwan v. Ashcroft, 252 F.3d 383, 387 (5th Cir. 2001) (failure to comply with statutory exhaustion requirement deprives court of jurisdiction to consider habeas petition).
The permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which were in effect at the time of petitioner's removal hearing, speak to exhaustion in only one provision:
A court may review a final order of removal only if —
(1) the alien has exhausted all administrative remedies available to the alien as of right, and
(2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order.8 U.S.C. § 1252 (d) (emphasis added). This provision has no application to the present case as petitioner does not seek review of a final order of removal. Instead, he challenges the validity of his continued detention pending the outcome of his appeal. Under these circumstances, exhaustion is not required. See Sebuma v. INS, 2001 WL 984884 at *2 (N.D. Tex. Aug. 14, 2001) (habeas petitioner not required to exhaust administrative remedies in order to seek review of bond decision). Cf Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000) (holding that petitioner must exhaust administrative remedies with respect to claim involving denial of adjustment of status, where request could be renewed before immigration judge upon commencement of removal proceedings).
B.
Petitioner challenges his continued detention under section 236(c) of the INA. This statute provides:
The Attorney General shall take into custody any alien who —
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.8 U.S.C. § 1226 (c)(1) (emphasis added). According to petitioner, the statute requires immigration officials to take an alien into custody immediately upon his release from incarceration for the offense made the basis of the removal proceeding. Since petitioner was not arrested by the INS until June 8, 2001 — nearly six months after his release from federal prison — he maintains that mandatory detention under section 236(c) is improper.
In support of this argument, petitioner cites a number of decisions from other jurisdictions that appear to limit the "when released" language of the statute to the particular point in time when the alien is released from incarceration. See, e.g. Alikhani v. Fasano, 70 F. Supp.2d 1124, 1130 (S.D. Cal. 1999); Grant v. Zemski, 54 F. Supp.2d 437, 443 (E.D. Pa. 1999); Aguilar v. Lewis, 50 F. Supp.2d 539, 544 (E.D. Va. 1999); Alwaday v. Beebe, 43 F. Supp.2d 1130, 1133 (D. Or. 1999); Velasquez v. Reno, 37 F. Supp.2d 663, 672 (D.N.J. 1999); Pastor-Camarena v. Smith, 977 F. Supp. 1415, 1417 (W.D. Wash. 1997). However, a closer reading of those cases reveals a significant factual distinction. All the authorities cited by petitioner involve challenges to the retroactive application of the mandatory detention provisions of the IIRIRA. In each case, the alien had been convicted and released from prison before the effective date of the legislation. Yet the INS sought to apply the newly enacted mandatory detention provisions retroactively. It was in this context that the courts were called upon to interpret the language of section 236(c) and its predecessor statute.
The predecessor statute to section 236(c) of the INA provided that:
The Attorney General shall take into custody any alien convicted of any criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1251(a)(2)(A)(ii) of this title for which both predicate offenses are covered by section 1251(a)(2)(A)(i) of this title, upon release of the alien from incarceration, shall deport the alien as expeditiously as possible. Notwithstanding paragraph (I) or subsections (c) and (d) of this section, the Attorney General shall not release such felon from custody.8 U.S.C. § 1252 (a)(2) (emphasis added). For a detailed history of the mandatory detention provisions of the INA, see Velasquez, 37 F. Supp.2d at 665-67.
Here, there is no retroactivity concern as petitioner was convicted and released from incarceration after the effective date of the IIRIRA. Moreover, petitioner was taken into INS custody just six months after his release from prison. This brief delay further distinguishes this case from the authorities cited by petitioner. See Grant, 54 F. Supp.2d at 443 (alien completed prison sentence six years before INS detention); Aguilar, 50 F. Supp.2d at 544 (four-year delay); Aiwaday, 43 F. Supp.2d at 1133 (six-year delay); Velasquez, 37 F. Supp.2d at 672 (13-year delay). See also Grodzki v. Reno, 950 F. Supp. 339, 342 (N.D. Ga. 1996) (language "upon release from incarceration" implies custody commences within reasonable time after release from incarceration).
The Court has found only two reported decisions which interpret the "when released" language of section 236(c) separately from a retroactivity analysis. Okeke v. Pasquarell, 80 F. Supp.2d 635 (W.D. Tex. 2000) and Saucedo-Tellez v. Perryman, 55 F. Supp.2d 882, 885 (N.D. Ill. 1999). Neither case is particularly instructive. Okeke suggests in dicta that the decision when to arrest a criminal alien is committed to the sound discretion of the INS and is not reviewable. Okeke, 80 F. Supp.2d at 639. The district court in Saucedo-Tellez found that section 236(c) was ambiguous and deferred to the INS's interpretation of the statute. Saucedo-Tellez, 55 F. Supp.2d at 885. The Court agrees that the phrase "when released" is ambiguous and, in the absence of clear Congressional intent or binding precedent, BIA decisions should be given deference. The most recent pronouncement on this subject is In re Rojas, 23 I. N. Dec. 117 (BIA 2001), which holds that "when released" specifies the time at which the duty to detain a criminal alien arises — not the time when the alien must be taken into custody. See also In re Noble, 211. N. Dec. 672 (BIA 1997). Petitioner offers no reason why the Court should not adopt this logical interpretation of the statute.
For these reasons, the Court concludes that petitioner's mandatory detention does not violate the express language of section 236(c). The Court must now decide whether the statute is unconstitutional.
C.
Petitioner correctly notes that a number of courts, including the Ninth and Third Circuits, have held that the mandatory detention of lawful permanent resident aliens without an individualized bail hearing violates due process. See Kim v. Ziglar, 276 F.3d 523, 539 (9th Cir. 2002); Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Small v. Reno, 127 F. Supp.2d 305, 319-22 (D. Conn. 2000); Son Vo v. Greene, 109 F. Supp.2d 1281, 1283 (D. Cob. 2000); Welch v. Reno, 101 F. Supp.2d 347, 355-56 (D. Md. 2000); Baidas v. Jennings, 123 F. Supp.2d 1052, 1061 (E.D. Mich 1999). The Seventh Circuit and a handful of district courts have rejected constitutional challenges to section 236(c) as applied to permanent resident aliens. See Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999) (upholding no-bail detention provisions of section 236(c) for all aliens); Badio v. United States, 172 F. Supp.2d 1200, 1206 (D. Minn. 2001); Marogi v. Jenifer, 126 F. Supp.2d 1056, 1062-66 (E.D. Mich. 2000); Avramenkov v. INS, 99 F. Supp.2d 210, 215-18 (D. Conn. 2000); Okeke, 80 F. Supp.2d at 638; Reyes v. Underdown, 73 F. Supp.2d 653, 658 (W.D. La. 1999); Galvez v. Lewis, 56 F. Supp.2d 637, 64548 (E.D. Va. 1999). The Fifth Circuit has not yet addressed the issue.
The most recent and well-reasoned opinion is the Ninth Circuit's decision in Kim. At issue in that case was the mandatory detention of Hyung Joon Kim, a permanent resident alien, pending his removal to Korea as an aggravated felon. The court noted that permanent resident aliens are the most favored category of aliens under U.S. immigration law and retain the right to reside permanently in this country until entry of a final order of removal. Kim, 276 F.3d at 528, citing 8 U.S.C. § 1 101 (a)(20). Although Congress has plenary power to expel, exclude and detain aliens, that power is "subject to important constitutional concerns." Id. at 529, quoting Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 2501, 150 L.Ed.2d 653 (2001). See also INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 2779, 77 L.Ed.2d 317 (1983) (Congress limited to means of implementing plenary power over aliens which do not "offend some other constitutional restrictions"). Relying on Zadvydas, the Ninth Circuit concluded that the mandatory detention of lawful permanent resident aliens required "special justification" and that none of the reasons proffered by the government for detaining Kim without a hearing were sufficient to overcome his liberty interest. Kim, 276 F.3d at 530. Consequently, the mandatory no-bail civil detention provisions of section 236(c) violate due process and are unconstitutional as applied to lawful permanent resident aliens. Id. at 538. Accord Patel, 275 F.3d at 314.
The government proffered five reasons to justify the mandatory detention of all criminal aliens: (1) minimizing the risk of flight; (2) protecting the public from potentially dangerous aliens; (3) making the removal of criminal aliens a top priority of immigration enforcement; (4) correcting the failure of prior laws which permitted release on bond; and (5) repairing damage to the immigration system. The court rejected the first two reasons as not supported by the evidence. Specifically, the statistical data presented by the government did not establish that aliens released on bond presented a risk of flight. Kim, 276 F.3d at 53 1-32 (noting that "skip rate" for detained aliens was less than 6%). Nor did the government show that, given the broad range of crimes qualifying as aggravated felonies, all mandatory detainees were a danger to the community. Id. at 534. The court concluded that the last three justifications "are so general that they amount to little more than saying that the "justification' of the statute is to make deportation a priority and to make things better." Id. at 530.
In reaching this conclusion, the Ninth Circuit specifically rejected the Seventh Circuit's analysis in Parra. As the court noted, Parra was decided before Zadvydas, which requires the government to provide a "special justification" for the civil detention of aliens. Kim, 276 F.3d at 537. Moreover, Kim pointed out two critical mistakes in Parra:
First, Parra analyzed the liberty interest of the detained alien based on the erroneous legal assumption that he or she had no right to remain in the United States once removal proceedings have begun. . . This is simply wrong. A lawful permanent resident alien such as Kim has a legal right to remain in the United States until a final removal order is entered against him. (citations omitted).
Second, Parra relies on the Inspector General's Report for the proposition that there is an 89% "skip rate" for aliens subject to a final removal order. . . This, too, is simply wrong. As discussed above, the skip rate for "detained aliens" was not 89% (which Parra rounds up to 90%). Rather, the skip rate for detained aliens was substantially less than 6%. As pointed out above, release on bail was included in the Report's definition of "detention," and the Report recommended "detention" thus defined as the "key to effective deportation." (citations omitted).Kim, 276 F.3d at 537.
In the absence of controlling authority from the Supreme Court or the Fifth Circuit, this Court elects to follow the lead of the Ninth and Third Circuits in holding that the mandatory detention provisions of section 236(c) are unconstitutional as applied to permanent resident aliens. As a lawful permanent resident, petitioner is entitled to an individualized determination and fair procedures guaranteed by the Due Process Clause of the Fifth Amendment before he is held without bail pending the entry of a final order of removal.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be conditionally granted. The writ should issue unless the INS gives petitioner an individualized bail hearing within 30 days after these findings are adopted by the district judge.
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— Any alien who is convicted of an aggravated felony at any time after admission is deportable.8 U.S.C. § 1227 (a)(2)(A)(iii). The term "aggravated felony" includes an offense that involves fraud or deceit in which the loss to the victim exceeds $10,000. See id. § 1101(a)(43)(M)(i).