Opinion
NO. 3-02-CV-2628-H
January 27, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Eligio Aguilar-Elizondo, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be conditionally granted.
I.
Petitioner, a citizen of Mexico, entered the United States as lawful permanent resident on April 17, 1972. (Resp. Ans., Exh. 1). On February 7, 1997, petitioner was sentenced to 108 months in prison after pleading guilty to a three-count federal indictment charging him with conspiracy and possession with intent to distribute cocaine. (Resp. Ans., Exh. 2). Based on this drug conviction, the Immigration and Naturalization Service ("INS") initiated removal proceedings. ( Id., Exh. 1). At a deportation hearing held on October 18, 2002, petitioner was ordered removed to Mexico and held without bond pending his removal. ( Id., Exh. 3). This decision is currently under review by the Board of Immigration Appeals ("BIA"). 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:
— 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 "illicit trafficking in a controlled substance (as defined in section 802 of Title 21) . . ." See id. § 1101(a)(43)(B).
II.
In his sole ground for relief, petitioner argues that his mandatory detention under section 236(c) of the Immigration and Nationality Act ("INA"), without an individualized determination of flight risk or dangerousness, violates the due process clause of the Fifth Amendment to the United States Constitution.
A.
Section 236(c) of the INA 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) (emphases added). Under this statute, the Attorney General is required to detain deportable criminal aliens following the completion of their prison sentence until a final order of removal is issued. While the INA does not specifically define "criminal alien," "it applies mainly to aliens convicted of `aggravated felonies' or [to designated offenses] involving moral turpitude." See S. Rep. No. 104-48, 104th Cong., 1st Sess. (1995) at 4. The drug offenses for which petitioner was convicted qualify as "aggravated felonies" under the statute. See 8 U.S.C. § 1101(a)(43)(B).
B.
Both the Supreme Court and the Fifth Circuit have recently agreed to consider the constitutional validity of the mandatory detention provisions of section 236(c) as applied to permanent resident aliens. See Demore v. Kim, No. 01-1491 (U.S., cert. granted, Jun. 28, 2002); Ramos-Serrano v. Estrada, No. 02-10746 (5th Cir., appeal dkt'd, Jun. 28, 2002). To date, neither court has spoken on the issue. However, a number of courts, including two judges in this district, have held that the mandatory detention of permanent resident aliens without an individualized bail hearing violates due process. Ramos-Serrano v. Estrada, 201 F. Supp.2d 714 (N.D. Tex. 2002) (Lynn, J.); Malik v. Ashcroft, No. 3-02-CV-1266-R (N.D. Tex. Jul. 18, 2002) (Buchmeyer, J.). See also Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002); Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002), cert. filed, 70 U.S.L.W. 3698 (May 3, 2002) (No. 01-1616); Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), cert. granted, 122 S.Ct. 2696 (2002); Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Lozano-Castaneda v. Garcia, ___ F. Supp.2d ___, 2002 WL 31939264 (W.D. Tex. Dec. 26, 2002); Small v. Reno, 127 F. Supp.2d 305 (D. Conn. 2000); Baidas v. Jennings, 123 F. Supp.2d 1052 (E.D. Mich 1999). The Seventh Circuit and a handful of district courts have rejected similar constitutional challenges to section 236(c). See Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999) (upholding no-bail detention provisions of section 236(c) for all aliens); Badio v. United States, 172 F. Supp.2d 1200 (D. Minn. 2001); Marogi v. Jenifer, 126 F. Supp.2d 1056 (E.D. Mich. 2000); Avramenkov v. INS, 99 F. Supp.2d 210 (D. Conn. 2000); Okeke v. Pasquarell, 80 F. Supp.2d 635 (W.D. Tex. 2000); Reyes v. Underdown, 73 F. Supp.2d 653 (W.D. La. 1999); Galvez v. Lewis, 56 F. Supp.2d 637 (E.D. Va. 1999).
The Supreme Court granted certiorari in Kim to decide whether the mandatory detention of lawful permanent residents under section 236(c) violates the due process clause of the Fifth Amendment. See Pet. Br., 2002 WL 31016560. The same issue is before the Fifth Circuit in Ramos-Serrano. Kim was argued to the Supreme Court on January 15, 2003. Ramos-Serrano is scheduled for oral argument on March 10, 2003.
The case currently pending before the Supreme Court is Kim. An immigration judge ordered Hyung Joon Kim, a permanent resident alien who had been convicted of an aggravated felony, automatically detained without bond pending his removal to South Korea. The district court held the mandatory detention provisions of section 236(c) unconstitutional and directed the INS to hold a bail hearing. On appeal, the Ninth Circuit 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. § 1101(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"); Patel, 275 F.3d at 307-08 (Congress' plenary power to create substantive immigration law "is subject to constitutional limitations, including due process constraints"). 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. As a result, the mandatory no-bail 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 531-32 (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.
A similar result was reached by this court in Ramos-Serrano. In that case, Dhonovan Paul Ramos-Serrano, a permanent resident alien, was ordered deported to the Phillippines as an aggravated felon. While this decision was under review by the BIA, Ramos-Serrano was held in INS custody pursuant to section 236(c). The magistrate judge recommended that the mandatory detention provisions of this statute be held unconstitutional because, "[a]s a 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." Ramos-Serrano v. Estrada, 2002 WL 485699 at *4 (N.D. Tex. Mar. 6, 2002) (Kaplan, M.J.). The district judge agreed, holding that the mandatory detention of permanent resident aliens without an individualized bail hearing violates due process. The court reasoned:
The broad sweep with which [section 236(c)] reaches disallows the elimination of those individuals who will not harm the public nor abscond prior to deportation, and it is unnecessarily broad if its purpose is to avoid diminishing public faith in the immigration system. . . . The absence of an individualized determination of flight risk and dangerousness to the community prevents this Court from identifying a narrow fit between Congress's end goals and the means utilized to accomplish them. Although the government has a compelling interest or "special justification" for ensuring that deportable permanent resident aliens appear for their deportation proceedings and do not constitute a danger to the community, those interests are not sufficient to justify mandatory detention of all permanent resident aliens pending finalization of the process to deport them. The constitutionally protected liberty interest of the petitioners outweighs the government's proffered justifications for the statutory scheme . . .Ramos-Serrano, 201 F. Supp.2d at 728.
Until this issue is finally resolved by the Supreme Court or the Fifth Circuit, the magistrate judge elects to follow the lead of the Third, Fourth, Ninth and Tenth Circuits, and his prior decision in Ramos-Serrano, in holding that the mandatory detention provisions of section 236(c) are unconstitutional as applied to permanent resident aliens. Due process requires that petitioner be afforded an individualized bail hearing before he is held in custody pending the entry of a final order of removal.
C.
Respondent asks the court to stay its decision until the Fifth Circuit rules in Ramos-Serrano and determines the constitutionality of section 236(c). According to respondent, the failure to grant such a stay "could permit the release of an aggravated felon into the community and allow him to abscond." (Resp. Ans. at 3). It has yet to be determined whether petitioner is a flight risk or a danger to the community. Indeed, petitioner has been denied the opportunity to litigate this issue before an immigration judge. Petitioner is a lawful permanent resident with a wife and four children, all of whom are United States citizens. (Pet. Br. at 2; Resp. Ans., Exh. 2). He has been held in INS custody without a bail hearing since completing his federal sentence on August 20, 2002. (Hab. Pet. at 3, ¶ 13). Each day that goes by exacerbates this constitutional violation. While the court expresses no opinion as to whether petitioner should or should not be released on bond, due process requires that he be given a prompt and fair hearing. An indefmite stay would frustrate petitioner's ability to exercise this important constitutional right. Accordingly, respondent's request for a stay should be denied.
Respondent points out that the Fifth Circuit stayed a district court order granting similar relief in Reyna-Montoya v. Trominski, No. 02-41323 (5th Cir. Sept. 27, 2002). However, this unpublished order has no precedential value "except under the doctrine of res judicata, collateral estoppel, or law of the case . . ." See 5TH CIR. R. 47.5.4. Nor did the Fifth Circuit articulate its reasons for granting a stay pending appeal. Under these circumstances, the court declines to stay its ruling in this case. Respondent should be required to petition the court of appeals for such relief.
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.Respondent's request for a stay should be denied.