Opinion
C.A. No. 01-043 ML
August 7, 2001
Report and Recommendation
On February 5, 2001, Sylvanus Emmanuel Williams, Sr., filed a petition with this Court for a writ of habeas corpus, pursuant to Article I, Section 9 of the United States Constitution and 28 U.S.C. § 2241 challenging his continued detention pending deportation to the Bahamas. The petitioner is being detained by the respondent, the Immigration and Naturalization Service ("INS"), at the Adult Correctional Institution, in Cranston, Rhode Island. At the time of this writing, petitioner has been held in custody for 20 months.
The INS has objected to the petition, and has moved to dismiss on the basis that the petitioner has failed to exhaust his administrative remedies and that the instant petition fails to state claim upon which relief can be granted. Recognizing that the petitioner's continued detention maybe running afoul of the substantive component of the Fifth Amendment's due process clause, this Court directed the parties to brief and argue that issue.
This matter has been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, I recommend that the govermnent's motion to dismiss be denied, and that the petitioner's writ of habeas corpus be granted.
Background
The factual background of this case is quite simple. Sylvanus Emmanuel Williams, Sr., entered this country as a non-immigrant visitor for pleasure on July 6, 1987. A native of Nassau, Bahamas, petitioner married a United States citizen and his immigration status was adjusted to that of a conditional permanent resident. Petitioner and his wife resided in the Boston, Massachusetts area with their four children. Williams worked as a chef for the past twenty years to support his family.
On February 23, 1999, the petitioner was convicted in the Massachusetts state courts of one offense: family abuse/assault and battery, in violation of Chapter 209A of the Massachusetts General Laws. For this offense, the petitioner was sentenced to a term of imprisonment of one year. Although sentenced to one year imprisonment, petitioner only actually served ten months.
Following his conviction of this one crime, the INS, on April 5, 1999, began deportation proceedings against the petitioner. The INS alleged that the petitioner was removable pursuant to the Immigration and Nationality Act (INA) Section 237(a)(1)(D), for failing to comply with the conditions of his conditional residence status and pursuant to INA section 237(a)(2)(A)(iii) for having been convicted of an aggravated felony. On July 13, 1999, an immigration judge found that the petitioner was removable and ordered that he be deported to the Bahamas. On December 7, 1999, Williams appealed the immigration judge's decision to the Board of Immigration Appeals (BIA). That appeal remains pending to the date of this writing.
An alien granted conditional permanent residence as a spouse of a United States citizen or permanent resident must file a petition to remove the conditions of residence (Form 1-751) within the 90 day period immediately preceding the second anniversary of the date on which he or she obtained permanent residence. 8 C.F.R. § 216.4(a)(1)(1991). Apparently, the petitioner did not comply with this directive.
INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) defines an "aggravated felony" as a crime where violence occurs and there is a term of imprisonment of at least one year.
On December 7, 1999, following the expiration of his sentence of his criminal conviction, the INS took the petitioner into custody. Petitioner has remained in custody, under INS detention, to the date of this writing.
The place of petitioner's detention has not remained constant. The petitioner avers within the 20 months that he has been in INS detention, he has been bounced between six different detention facilities.
Petitioner, now having been detained for over 20 months, has filed the instant writ of habeas corpus pursuant to Article I, Section 9, Clause 2, of the United States Constitution and 28 U.S.C. § 2241, challenging his continued detention on Constitutional grounds.
Discussion
A. Jurisdiction
Title 28, Section 2241, of the United States Code authorizes the federal courts to entertain petitions for habeas corpus by any person who is "in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2241(c)(3). Moreover, the Suspension Clause in the U.S. Constitution also provides independent authority for this Court to entertain habeas petitions. The Suspension Clause provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. CONST. art. I, § 9, c1. 2. Thus, even if independent statutory authority did not exist, this court would have jurisdiction to entertain habeas petitions which raise core constitutional and jurisdictional issues. See Kolster v. INS, 101 F.3d 785, 790-91 (1st Cir. 1996); Morisath v. Smith, 98 F. Supp. 1333, 1338 (W.D. Wash. 1997).
B. Exhaustion is Not Required.
The government contends that the instant petition should be dismissed since Williams has failed to pursue all of his administrative remedies. This argument is without merit. Williams' failure to exhaust administrative remedies does not hamper this Court's ability to exercise jurisdiction over his petition. Fernandes v. INS, 79 F. Supp.2d 44, 46 (D.R.I. 1999). "Where Congress specifically mandates, exhaustion is required. But where Congress has not clearly required exhaustion, sound judicial discretion governs." McCarthy v. Madigan, 503 U.S. 140, 144, 1125 .Ct. 1081 (1992) (citations omitted). Although the Congress has substantially rewritten much of the immigration statutes, it has not created an exhaustion requirement for judicial review of custody claims.Fernandes, 79 F. Supp.2d at 46 (citing Hermanowski v. Farquharson, 39 F. Supp.2d 148, 152 (D.R.I. 1999)). Therefore exhaustion of administrative remedies is not a prerequisite to this Court's invocation of jurisdiction over this habeas petition.
Moreover, at stake in this proceeding is a constitutional determination regarding the validity of Williams' detention. Because Williams' substantive due process rights under the Fifth Amendment does not implicate the adequacies of the procedures afforded him by the INS in applying the provisions of the INA, "'he was not statutorily required to exhaust his administrative remedies prior to seeking judicial relief for the violation of his due process rights.'" Hermanowski, 39 F. Supp.2d at 152 (quoting Wang v. Reno, 81 F.3d 808, 814 (9th Cir. 1996)).
C. The Statutory Basis for Detention.
The government has held Williams in custody now for 20 months, pursuant to INA section 236(c)(1). 8 U.S.C. § 1226(c)(1). That section provides that the Attorney General shall take into custody any alien who has committed an aggravated felony. Id. Aliens taken into custody pursuant to § 236(c)(1) may obtain release only if(1) "the Attorney General decides pursuant to 3521 of Title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation" and (2) "the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or property and is likely to appear for any scheduled proceeding." INA § 236(c)(2), 8 U.S.C. § 1226(c)(2). Section 236 provides for no other bases for the release of aliens who are held pursuant to § 236(c)(1).
There is no dispute that Williams, who committed one crime of domestic assault, is subject to detention under § 236(c)(1). In fact, Williams is not challenging his inclusion in this category. Thus Williams' detention is statutorily proper. However, whether Williams' continued detention can survive constitutional scrutiny is an entirely different matter.
D. Constitutional Limitations on Immigration Detention
Removal of aliens is a power inherent in every sovereign and is largely exercisable by the political branches of government. Hermanowski, 39 F. Supp at 155. As a political prerogative that lies near the core of national sovereignty, it is "largely immune from judicial control." Id. (quoting Shaughnessy v. United States, 345 U.S. 206, 210, 73 S.Ct. 625 (1953)). The majoritarian components of our national government share plenary authority to regulate the admission of aliens to this country.Id. (citing Gisbert v. United States, 988 F.2d 1437, 1440 (5th Cir. 1993)).
However, the power of the government to detain aliens pending deportation is not without limits. Restrictions on physical liberty must not offend the Fifth Amendment's guarantee that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V. Thus, the question before the Court is whether the government's detention of Williams, now for 20 months while his appeal with the BIA has languished, runs afoul of this basic constitutional principle.
The due process clause contained in the Fifth Amendment has two components: procedural and substantive. Procedural due process focuses on the fairness of the procedures used by the government when it acts to deprive a person of life, liberty, or property. See Mathews v. Eldridge, 424 U.S. 319, 332-335, 96 S.Ct. 893 (1976). Substantive due process guards against governmental interference with those rights implicit in the concept of ordered liberty, Palko v. Connecticut, 302 U.S. 319, 324-325, 58 S.Ct.149 (1937) and prohibits the government from engaging in conduct which "shocks the conscience." Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205 (1952). When substantive due process rights are properly invoked, they guard against certain governmental intrusions into the private sphere regardless of the fairness of the process employed by the government. See Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061 (1992).
"Freedom from imprisonment — from governmental custody, detention, or other forms of physical restraint — lies at the heart of the liberty" that the due process clause protects. Zadvydas v. Davis, ___ U.S. ___, 121 S.Ct. 2491, 2498 (2001). Government detention violates the clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 1780 (1987), or, in certain special and narrow non-punitive circumstances. Zadvydas, 121 S.Ct. at 2498.
The proceedings at issue here are civil, not criminal, and thus non-punitive in purpose and effect. Id. Detention pending deportation is merely an administrative incident to the civil deportation process.Hermanowski, 39 F. Supp.2d at 158. However, such a detention can violate the substantive due process rights contained in the Fifth Amendment when, based upon the particular set of factual circumstances, the detention is excessive in relation to the governmental purpose behind the detention. Id.
E. Williams' Substantive Due Process Rights Are Being Violated and He Should be Released From Detention.
The government, in an attempt to persuade this Court to grant its motion to dismiss, relies heavily on the Seventh Circuit Case of Parra v. Perryman. 172 F.3d 954 (7th Cir. 1999). There, the Seventh Circuit considered a constitutional challenge to Section 236(c) of the INA. The Seventh Circuit found Section 236(c) constitutional. Although I question the wisdom of the Seventh Circuit's decision in Parra it is nonetheless inapplicable here. Williams is not bringing a constitutional challenge to Section 236 of the NA. Rather, Williams' petition raises a different question: Whether, under the facts and circumstances of this particular case, Williams' substantive due process rights are being violated.
(Although not noted by the government, the Court draws the reader's attention to the following cases which have found Section 236(c) of the NA unconstitutional: Baidas v. Jennings 123 F. Supp.2d 1052 (E.D.Mich. 1999); Son Vo v. Green, 109 F. Supp.2d 1281 (D.Co. 2000); Bouavad v. Holmes, 74 F. Supp.2d 471 (E.D.Pa. 1999); United States v. Zemski, 121 F. Supp.2d 814 (E.D.Pa. 2000); Cardosa v. Reno, 127 F. Supp.2d 106 (D.Ct. 2001); Danesh v. Jenifer, 2001 WL 558233 (E.D.Mich. 2001); Koita v. Rena, 113 F. Supp.2d 737 (M.D.Pa. 2000); Chukwuezi v. Reno, 2000 WL 1372883 (M.D.Pa. 2000); Danh v. Demore, 59 F. Supp.2d 994 (N.D. Ca. 1999)).
Detention can violate substantive due process, based upon a finding that the detention under a particular set of circumstances is excessive in relation to the government purposes behind the restriction in that particular context. Id. To determine whether Williams' substantive due process rights are being violated in this case, I will consider the length of detention, the potential length of detention in the future, the likelihood of deportation, the likelihood that release will frustrate petitioner's actual deportation, and the danger to the community posed by the petitioner if released. See id. at 159. After considering these factors, the I will then weigh the government's objectives in continuing to detain Williams.
The federal government has held Williams in detention now for some twenty months. This is twice the amount of time he actually spent in jail for his criminal conviction of domestic assault. For a man who has already paid his debt to society, twenty months in a state prison is not a trivial inconvenience. "In the real world beyond legal euphemisms, prison life, whether imposed for punitive or regulatory purposes, is a harsh existence." Id. at 159. This detention strikes at the core of the liberty interest protected by the due process clause. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780 (1992).
The government contends that the petitioner's appeal to the BIA is not "likely" to be resolved in the petitioner's favor and that "Williams has almost no realistic expectation that he can avoid removal." Respondent's Supplemental Memorandum at 25. Moreover, the government contends that the petitioner's native land, the Bahamas, regularly accepts a return of its citizens. The Court does not know whether the government's assertions are an educated guess or a leap of faith.
Be that as it may, the government has not explained why the petitioner's appeal to the BIA has been languishing for the past 20 months while the petitioner has been sitting in jail. Nor has the government indicated when, if ever, the BIA will rule on Williams' appeal. If the BLA never issues a ruling, or delays ruling for an additional few months, deportation will not occur, and the petitioner will remain in INS detention.
The petitioner poses no danger to the community if released. The petitioner has been convicted of one crime, a domestic assault, for which he was sentenced to one year in jail, but actually served only ten months. While the Court does not wish to make light of the crime that he committed, it was, nonetheless, an assault. Petitioner did not rob, murder, maim or traffic in illicit narcotics. He committed an assault. No one can seriously contend that this one conviction demonstrates a danger to the community.
Considering that less drastic measures are available instead of imprisonment, i.e. home confinement, deportation will not be frustrated by releasing him from prison and placing restrictions, on his movements.
The government has advanced the following justifications for the continued detention of Williams: (1) to protect the community from the risks and dangers posed by permitting an alien to return to society (2) to facilitate the expeditious removal of the alien; and (3) to ensure the alien's presence at removal proceedings and to prevent the alien from absconding. While I accept these contentions as legitimate governmental objectives, I reject their application in the case.
First, Mr. Williams is not a danger to the community. Williams is, at best, a minor league offender. Second, Williams has strong ties to the community; he has a wife, four dependent children, and prior to his incarceration, has been gainfully employed for twenty years. Lastly, the government's objective of expeditiously removing Williams from this country is preposterous. The BIA has allowed his appeal to languish for the past 20 months, with no explanation. Moreover, the government has offered no time table on when his appeal will be resolved or when Williams will be deported.
In light of the fact that Williams has been incarcerated for 20 months awaiting deportation, that the BIA has allowed his appeal to languish for 20 months, that the government has not offered any time table on when deportation will be accomplished, and that Williams poses no risk or danger to the community, I find that the continued detention of Williams is unreasonable, excessive, and "shocks the conscience" in violation of the substantive component of the Fifth Amendment's dueprocess clause. Accordingly, I recommend that the government's motion to dismiss the petition be denied, and the writ of habeas corpus be granted, with conditions as the District Court sees appropriate, to vindicate the petitioner's Fifth Amendment substantive due process rights.
Conclusion
For the reasons stated above, I recommend that the government's motion to dismiss be denied, and that Williams' writ of habeas corpus be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (ber curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).