Opinion
No. C 01-1130 MMC
August 22, 2001
ORDER GRANTING APPLICATION FOR WRIT OF HABEAS CORPUS
Petitioner Tuan K. Luu, currently in the custody of the Immigration and Naturalization Service ("INS"), has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). Respondent filed a return and opposition, and petitioner filed a traverse. Having considered the papers submitted, the Court rules as follows.
BACKGROUND
Petitioner, a citizen of Vietnam, entered the United States as an immigrant on May 8, 1995. (See Fernandez Decl. Ex. A.) On February 14, 2001, the INS issued a Notice to Appear, alleging therein that petitioner is subject to removal from the United States pursuant to 8 U.S.C. § 1227 (a)(2)(A)(i) (providing person convicted of crime involving moral turpitude, within five years after admission, and for which sentence of one year or longer may be imposed, is removable), 8 U.S.C. § 1227 (a)(2)(A)(ii) (providing person convicted of two crimes involving moral turpitude, not arising out of single scheme of criminal misconduct, is removable), and 8 U.S.C. § 1227 (a)(2)(A)(iii) (providing person convicted of aggravated felony is removable). (See Application for Writ Ex. A.) The allegations are based on petitioner's prior convictions: (1) a 1995 conviction for violation of California Penal Code §§ 484/488 (petty theft); (2) a 1996 conviction for violation of § 484/488; and (3) a 1999 conviction for violation of California Penal Code § 261.5(c) (unlawful intercourse with minor more than 3 years younger than defendant). (See id.)
Upon serving the Notice to Appear, the INS placed petitioner in custody. On March 1, 2001, an immigration judge denied petitioner's request for bond on the ground that petitioner is statutorily ineligible in light of 8 U.S.C. § 1226 (c), which provides for mandatory detention of an alien convicted of an offense included in 8 U.S.C. § 1227 (a)(2)(A)(i), (ii) or (iii). (See id. Ex. B.)
DISCUSSION
8 U.S.C. § 1226 (c)(1) 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).
As noted, the INS contends petitioner is removable because he has been convicted of crimes that fall within §§ 1227(a)(2)(A)(i), (ii), and (iii). Such a person is subject to mandatory detention under §§ 1226(c)(1)(B) and (C). Petitioner argues that §§ 1226(c)(1)(B) and (C) are unconstitutional because, under the statutory scheme, he is deprived of liberty pending resolution of the removal proceedings without being provided an opportunity to establish that he should be released on bond.
As set forth in the parties' respective papers, a number of courts have addressed the constitutionality of the mandatory detention scheme set forth in § 1226(c), with varying results. The issue is currently before the Ninth Circuit. In resolving the issue in this particular case, the Court first considers whether the statute as applied to petitioner is unconstitutional. See Lezcano v. Reno, 2000 WL 1175564 (N.D. Cal. 2000) ("Most courts have focused on the constitutionality of the statute as applied to the facts and circumstances in the individual claim for relief.")
At least three district court opinions addressing the constitutionality of § 1226(c) are currently before the Ninth Circuit. (See Respondents' Opp. at 12:19-20.) The Ninth Circuit heard oral argument in one of those matters on February 12, 2001 (see ki.); to date no opinion has been rendered.
Having reviewed the cited cases, the Court finds the reasoning set forth in Danh v. DeMore, 59 F. Supp.2d 994 (N.D. Cal. 1999) particularly applicable to the facts and circumstances of the instant case. As explained in Danh, the Supreme Court has indicated that a statute imputing to all aliens a finding of non-eligibility for bond pending deportation proceedings could raise constitutional concerns. See id. at 1000 (citing Carlson v. Landon, 342 U.S. 524, 538 (1952)). As the court in Danh observed, that "is effectively what [§ 1226(c)] does." See id.
In Carlson, the Supreme Court found constitutional of § 23 of the Internal Security Act of 1950, which provides for the detention of aliens either with or without bail at the discretion of the Attorney General. ln so finding, the Court stated, "Of course purpose to injure could not be imputed generally to all aliens subject to deportation, so discretion was placed by the 1950 Act in the Attorney General to detain aliens without bail." See Carison, 342 U.S. at 538.
In Danh, in determining the constitutionality of § 1226(c), the court applied the "Salerno test," which "asks whether the governmental restriction is "excessive' in relation to its purpose." See id. at 1001 (quoting United States v. Salerno, 481 U.S. 739, 747 (1987)). While acknowledging the government's legitimate purposes in enacting § 1226(c), such as prevention of flight and protection of the community from dangerous criminals, the Danh court held mandatory detention under § 1226(c) was an "excessive" governmental restriction when applied to the petitioners therein, see 4, persons who had been convicted of fraudulently obtaining AFDC benefits, who were unlikely flight risks, had not been convicted of a violent crime or a crime with "attendant dangers, such as drug use, " see id and were "vigorously challeng[ing] their deportability." See id. at 1003. As the court observed in Danh, § 1226(c) "does not otherwise differentiate between low and high flight risk detainees or between detainees who are dangerous to society and those who are not." See id. at 1002.
Here, as in Danh, petitioner has not been convicted of a violent crime or a controlled substance offense. Cf. Diaz-Zaldierna v. Fasano, 43 F. Supp.2d 1114, 1120 (S. D. Cal. 1999) ("In light of the drug trade's cost to the community, it is 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.") Moreover, petitioner has not conceded removal, but rather is contesting removal by filing applications for asylum, withholding of removal, and relief under the Convention Against Torture. Cf. Parra v. Perryman, 172 F.3d 954, 956, 958 (7th Cir. 1999) (holding § 1226(c) constitutional as applied to alien found to be "ineligible for any relief from removal"). Although neither party addresses whether petitioner is or is not a flight risk, as in Danh petitioner does "not assert an absolute entitlement to be released pending deportation proceedings, but only the modest right to an individualized bond determination regarding whether release pending deportation is appropriate." See Danh, 59 F. Supp.2d at 1003.
Accordingly, the Court finds the application of § 1226(c) to petitioner deprives him of liberty without due process, and thus is unconstitutional as so applied.
Based on this finding, the Court will not address petitioner's argument that the is unconstitutional on its face.
CONCLUSION
For the reasons stated above, petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is hereby GRANTED. Respondent shall promptly provide petitioner with an individualized bond hearing before an immigration judge.IT IS SO ORDERED.