Opinion
No C-OO-2831 VRW
January 18, 2001
ORDER
Petitioner, presently in the custody of the Immigration and Naturalization Service (INS) pursuant to INA section 236(c), 8 U.S.C. § 1226 (c), seeks a writ of habeas corpus. For the reasons that follow, petitioner's application is DENIED.
I
Born in a refugee camp in Thailand to Laotian parents in either 1981 or sometime earlier, petitioner entered the United States as an immigrant in 1991. On February 23, 1995, petitioner was convicted in the Shasta County Superior Court of California of shooting at an inhabited dwelling, street terrorism and conspiracy to commit a crime. It is unclear how old petitioner was at the time he committed the crimes. The state court determined that petitioner was 16 at the time but petitioner claims he was only 13.
Petitioner's claim finds support in numerous INS documents created well prior to the conviction.
On June 14, 1998, petitioner received a notice to appear. The notice alleged that petitioner was removable under INA section 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii), and INA section 237(a)(2)(C), 8 U.S.C. § 1227 (a)(2)(C), for having been convicted of an aggravated felony and a firearms crime. INS took petitioner into custody on March 2, 2000, and continues to hold him without bond pursuant to INA section 236(c)(1), 8 U.S.C.S 1226(c), which mandates detention of aliens deportable because of an aggravated felony conviction or a firearms conviction.
On March 16, 2000, before the Immigration Judge (IJ), petitioner made a motion to terminate the removal proceedings against him. That motion was briefed but not decided as the IJ granted a number of petitioner's continuance requests so petitioner could seek review of his conviction in state court. Despite the mandatory detention required by INA section 236(c), on July 26, 2000, the IJ granted petitioner bond. This decision was based on the IJ's belief that petitioner was eligible to vacate his conviction via state habeas and that petitioner did not pose a danger to the community and was not a flight risk. Respondent Br (Doc #11), Exh 4, Bond Redetermination Memo at 3. The INS appealed the decision to grant bond and stayed petitioner's release under 8 C.F.R. § 3.19 (h)(1)(ii), 3.19(h)(2). Petitioner's state habeas claim was denied and on November 21, 2000, the IJ denied petitioner's motion to terminate the removal proceedings. The IJ also "determined that the allegations against [petitioner] as alleged in the NTA and Form I-261 were sustained by clear and convincing evidence and ordered [petitioner] removed from the United States to Thailand, or in the alternative, Laos." Respondent Br (Doc #11), Exh 4, Bond Redetermination Memo at 3-4. Petitioner reserved his right to appeal the removal decision and must have noticed an appeal to the Board of Immigration Appeals (BIA) on or before December 21, 2000. Id at 4.
The 28 U.S.C. § 2241 habeas petition before the court was filed on August 8, 2000, after bond was granted by the IJ and stayed by the INS but before the IJ ordered petitioner removed. The petition alleged that petitioner was being held in violation of the laws of the United States because his juvenile conviction does not constitute a "conviction" for purposes of INA section 237(a)(2)(A)(iii) (C) and INA section 236(c) (mandatory detention). The petition also argued that the detention was unconstitutional in that it violated the Eighth Amendment's Cruel and Unusual Punishment Clause and the Fifth Amendment's Due Process Clause (substantive due process). The petition does not challenge the IJ's removal order entered after the filing of the petition. The traverse filed after the IJ's removal order reiterates that the petition only challenges petitioner's detention. Appearing to abandon the constitutional claims, the traverse focuses solely on petitioner's statutory argument.
II
The court must first determine whether it has jurisdiction to hear this case. Respondent argues that jurisdiction in the district court is lacking because petitioner can challenge the IJ's determination that he is deportable in the court of appeals. Petitioner, failing to address this argument squarely, asserts that in the Ninth Circuit, the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub L No 104-208, 110 Stat 3009 (Sept 30, 1996), as amended by Act of Oct 11, 1996, Pub L No 104-302, 100 Stat 3656, has not repealed section 2241 in any respect. Neither party distinguishes between petitioner's statutory and constitutional claims.
The court considers first whether it has jurisdiction over petitioner's statutory claim that his juvenile conviction does not count as a conviction under INA sections 236 and 237. Under the scheme erected by IIRIRA, the direct review of final removal orders is vested in the courts of appeals. 8 U.S.C. § 1252 (b)(2). But for aliens who have committed a firearms offense or an aggravated felony, appellate court review is foreclosed by section 1252(a)(2)(C). The Ninth Circuit, however, has carved out an exception from this preclusion of jurisdiction which allows the court of appeals to take jurisdiction "to determine whether a petitioner `is an alien [removable] by reason of having been convicted of one of the enumerated offenses.'" Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir 2000) (quoting Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir 1999)). This allows the court of appeals to take jurisdiction to determine whether § 1252(a)(2)(C) applies and bars jurisdiction. Under this exception, if petitioner appeals the IJ's order of removal and the BIA determines that petitioner's juvenile conviction counts for purposes of INA section 237(a)(2)(A)(iii) (C), petitioner will be able to seek review of this determination by the court of appeals. See Sarean Ye v. INS, 214 F.3d 1128 (9th Cir 2000) (deciding whether vehicle burglary was an "aggravated felony" for purposes of INA section 237(a)(2)(A)(iii)); Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir 2000) (deciding whether rape involving an intoxicated victim was an "aggravated felony").
Rather than wait for the BIA to rule on the IJ's removal order, petitioner seeks a writ of habeas corpus from this court. It is clear under Ninth Circuit precedent that section 2241 habeas jurisdiction in the district court remains intact despite the various jurisdictional limitations of IIRIRA because IIRIRA failed explicitly to revoke section 2241 habeas jurisdiction as required by Felker v. Turpin, 518 U.S. 651 (1996). Flores-Miramontes, 212 F.3d *** at 1136. While Flores found that IIRIRA had not limited habeas, the court itself limited habeas jurisdiction in cases in which direct review to the court of appeals is available. The Flores-Miramontes court stated:
To determine whether the district court or the court of appeals has jurisdiction over a claim such as the one at issue here, we must first ask whether or not § 1252(a) bars the filing of a petition for review. If it does, then the claim cannot be asserted in this court, although habeas corpus remains available in the district court. If, however, the bar does not apply and a petition for review is the appropriate procedure for resolving the issue, the petition must be heard in the court of appeal.Flores-Miramontes, 212 F.3d at 1143. Under this rule, petitioner would be unable to bring a claim challenging his removal order in the district court since review in the court of appeals is available. TheFlores-Miramontes court did not indicate the basis of this limitation on habeas.
As noted above, however, petitioner has not challenged his removal order but has instead challenged his detention. In general, challenges to detention may be brought in district court by way of section 2241. See, e g, Ma v. Reno, 208 F.3d 815, 819 n3 (9th Cir 2000); Nguyen v. Fasano, 84 F. Supp.2d 1099, 1106 (SD Cal 2000). But in this case, the distinction between review of a final order of removal and review of the legality of detention is blurred. The outcome of either challenge turns on whether petitioner's juvenile conviction counts as an aggravated felony or firearms offense "conviction" for purposes of the immigration laws. Under the current Ninth Circuit interpretation of IIRIRA, this is a decision that the court of appeals should make. See Sarean Ye v. INS, 214 F.3d 1128 (9th Cir 2000); Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir 2000).
While a decision regarding the legality of petitioner's removal should be made by the BIA and then reviewed by the Ninth Circuit, petitioner has not yet obtained review by the BIA. This court has jurisdiction to decide whether petitioner's detention is legal, but that decision would also necessarily decide the validity of the IJ's removal order. A decision by this court on the merits of petitioner's juvenile conviction argument would strip the BIA of its role in determining the meaning of the INA. It would also replace the court of appeals as the preferred body to consider removal order reviews.
These concerns implicate the exhaustion doctrine. If exhaustion were required, petitioner would be required to raise his juvenile conviction argument before the BIA prior to having a federal court rule on it. Section 2241 does not by its terms require exhaustion. When exhaustion is not required by statute, it is a matter of judicial discretion whether it will be imposed. McCarthy v. Madigan, 503 U.S. 140, 144 (1992). "In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion." Id at 146. Those countervailing interests are "protecting administrative agency authority and promoting judicial efficiency." Id at 145. In the case at bar, the precise question petitioner seeks a ruling on, whether the juvenile conviction counts, can be addressed by the BIA in an appeal from the IJ's order of removal. The BIA decision can then be reviewed by the Ninth Circuit. Not requiring exhaustion in this case would not only trample upon the toes of the BIA but it would also be an uninvited intrusion into the realm set aside by Congress for the exercise of jurisdiction by the courts of appeals. Thus, the institutional interests favoring requiring exhaustion are strong.
Furthermore, petitioner's interest in adjudication of the issue by this court before the BIA can rule is not particularly high. Petitioner does not fall into one of the "broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion." Id at 146. Asserting this claim before the BIA will not "occasion undue prejudice" and there is no question that the agency involved can grant the relief requested by petitioner. Id at 147. Additionally, there is no allegation that the BIA will be biased in any way against plaintiff's claim. of course, there is the very real interest of the petitioner in having his claim adjudicated as quickly as possible. But, on the whole, in these circumstances, the court has determined that petitioner's application is barred by the exhaustion doctrine. This outcome comports with the appellate scheme enacted by Congress in AEDPA and IIRIRA. Every challenge to a removal order can be framed as a challenge to the petitioner's detention. That cannot be enough to allow a petitioner to bypass the system in place for consideration of those claims.
A district court in the Middle District of Pennsylvania came to the same conclusion. It held that an IJ's determination that petitioner committed an aggravated felony should not be reviewed on habeas while review of the IJ's decision is pending before the BIA. Chukwuezi v. Reno, 2000 WL 1372883 *1 n3. The Chukwuezi court said: "Chukwuezi's habeas petition also challenged the Immigration Judge's determination that Chukwuezi's offense of conviction is an aggravated felony. Because that matter is still before the Board of Immigration Appeals, consideration of that issue in this case is premature." Id.
The conclusion this court reaches here comports with the outcomes in two other cases that have addressed the question whether a petitioner can challenge in habeas an INS determination that section 236(c)'s mandatory detention provision applies. The Seventh Circuit held that INA section 236(e) foreclosed jurisdiction over these types of claims. Parra v. Perryman, 172 F.3d 954, 957 (7th Cir 1999). A judge in the Northern District of California asserted without explanation that the district court lacked jurisdiction to review an IJ's determination that a conviction amounted to an aggravated felony. Dahn v. Demore, 59 F. Supp. 2d994, 997 n4 (ND Cal 1999). The reasoning of Perra seems unlikely to be accepted by the Ninth Circuit because INA section 236(e) makes no explicit mention of section 2241 habeas jurisdiction as required byFelker. The court is unable to ascertain the reasoning in Dahn. Nonetheless, the outcome in both of these cases is consistent with the approach herein.
It is a separate matter whether the court has jurisdiction to rule on the constitutionality of INA section 236(c) or the application of that section to petitioner. Numerous courts have found jurisdiction in this situation. See, e g, Perra, 172 F.3d at 957; Dahn, 59 F. Supp. 2d at 998; Lezcano v. Reno, 2000 WL 1175564 at *2 (ND Cal 2000); Alikhani v. Fasano, 70 F. Supp.2d 1124, 1126-30 (SD Cal 1999); Rivera v. Demore, 1999 WL 521177 *l-3 (ND Cal 1999); Szeto v. Reno, 2000 WL 630869 * *2 (ND Cal 2000). It is clear that the exhaustion doctrine does not prohibit jurisdiction over these claims since the BIA cannot hear claims that INA section 236(c) is unconstitutional. Rivera, 1999 WL 521177 at *2 (citingMatter of C —, 20 I N Dec 529, 532, 1992 WL 200361 (BIA May 29, 1992)). Thus, the court finds that it has jurisdiction to hear petitioner's constitutional challenges.
But having found jurisdiction, the court concludes that petitioner has raised only a limited set of constitutional claims. Petitioner states his Eighth Amendment challenge as follows: "Petitioner invokes his right also to be free of unfair restraint on his liberty under the Eighth Amendment — which is violated by his continued custody following the Immigration Judge's order of his release on his own recognizance." Pet Br (Doc *2) at 15. Petitioner's substantive due process claim also appears to turn on detention after a determination that bond was appropriate. The petition reads:
A substantive due process violation as the result of detention during removal proceedings of an individual who the Immigration court has determined is eligible for release and not subject to mandatory detention, is invoked where elimination of bond infringes upon Petitioner's constitutional liberty interest under the Eighth Amendment in remaining free pending deportation proceedings against him.
Id at 15-16.
Both of these claims challenge petitioner's detention after the IJ determined that bond was appropriate. But subsequent to the filing of the petition, the IJ revoked his bend determination. Respondent Br (Doc #11), Exh 4, Bond Redetermination Memo at 4. Thus, petitioner is no longer being detained in spite of an order granting him release upon the payment of a bond. Perhaps in recognition of the changed circumstances, petitioner makes no mention of his constitutional challenges in his traverse. Similarly, respondent has not focused on the constitutional challenges petitioner initially raised. In light of these facts, the court will refrain from considering petitioner's constitutional challenges related to the initial bond determination.
Petitioner also raised a substantive due process claim challenging his detention on the basis of a crime he committed while he was allegedly only 13 years old. The petition reads: "Petitioner's continued detention on the basis of a juvenile delinquent offense at the age of thirteen `shocks the conscience' and is violative of his constitutional rights to substantive due process." Pet Br (Doc #2) at 15. In support of this claim, petitioner cites Tam v. INS, 14 F. Supp.2d 1184 (ED Cal 1998). ButTam does not support the notion that detention based on a juvenile conviction so "shocks the conscience" as to violate due process. Tam held instead that extended detention with no end in sight due to the unwillingness of the alien's home country to accept the alien violates due process. Id at 1192. The case at bar, of course, does not involve such an extended detention. The IJ has only recently ordered petitioner removed. While it may be the case that Laos will not accept petitioner, there is no indication that Thailand will not accept him. Thus, Tam is inapplicable and this claim must be rejected at this point.
The discussion above does not imply that petitioner lacks any colorable constitutional claims. Actually, quite the contrary is true. A number of courts have held that INA section 236(c), because it denies the possibility of bail and release altogether, violates substantive due process, procedural due process or both. See, e g, Szeto v. Reno, 2000 WL 630869 (ND Cal 2000); Danh v. Demore, 59 F. Supp.2d 994 (ND Cal 1999);Chukwuezi v. Reno, 2000 WL 1372883 (MD Penn 2000); Van Eeton v. Beebe, 49 F. Supp.2d 1186 (D Ore 1999); Martinez v. Greene, 28 F. Supp.2d 1275 (D Colo 1998); but see, e g, Parra v. Perryman, 172 F.3d 954 (7th Cir 1999); Lezcano v. Reno, 2000 WL 1175564 (ND Cal 2000); Alikhani v. Fasano, 70 F. Supp.2d 1124 (SD Cal 1999); Diaz-Zaldierna v. Fasano, 43 F. Supp.2d 1114 (SD Cal 1999); Sierra-Tapia v. Reno, 1999 WL 803898 (SD Cal 1999).
But since none of these cases has been cited by either party and none of the arguments were raised before the court, the court declines to entertain at this time an attack on the constitutionality of INA section 236(c) based on the lack of bail procedures. Petitioner is free to raise these arguments, should he care to, in a successive petition.
Petitioner's statutory claim is barred due to petitioner's failure to exhaust his administrative remedies. The constitutional claims raised by petitioner are rejected, though the court does not reach the ultimate constitutionality of INA section 236(c). For these reasons, petitioner's application for a writ of habeas corpus (Doc #1) is DENIED.
IT IS SO ORDERED.