Opinion
NO. 3-03-CV-0860-H
May 23, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Quillens Edwin James Stevens, Jr., 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 summarily denied.
I.
Petitioner, a citizen Liberia, entered the United States as a lawful permanent resident on February 17, 1989. (Hab. Pet. at 1). On February 5, 2003, petitioner was convicted of assault on a family member and placed on deferred adjudication probation for four years. ( Id.). Based on that conviction, the Bureau of Immigration and Customs Enforcement ("BICE") arrested petitioner and initiated removal proceedings. Petitioner is currently being held in BICE custody without bond. ( Id.). By this action, petitioner challenges his continued detention without an individualized bond determination.
II.
In his sole ground for relief, petitioner argues that the mandatory detention of permanent resident aliens under section 236(c) of the Immigration and Nationality Act ("INA") 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 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 assault offense for which petitioner was convicted qualifies as an "aggravated felony" under the statute. See id. § 1101(a)(48)(F).
B.
Although a number of federal courts have held that the detention of permanent resident aliens without an individualized bail hearing violates due process, the Supreme Court has recently decided otherwise. In Demore v. Kim, ___ U.S. ___, 123 S.Ct. 1708, 71 U.S.L.W. 4315 (U.S. Apr. 29, 2003), a majority of the Court concluded that mandatory "detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed." Demore, 123 S.Ct. at 1720. Thus, "[d]etention during removal proceedings is a constitutionally permissible part of that process." Id. at 1721-22. Petitioner's challenge to section 236(c) on due process grounds is foreclosed by Kim. Consequently, he is not entitled to habeas relief.
See Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002); Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002); Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002); Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Lozano-Castaneda v. Garcia, 238 F. Supp.2d 853 (W.D. Tex. 2002); Ramos-Serrano v. Estrada, 201 F. Supp.2d 714 (N.D. Tex. 2002); Malik v. Ashcroft, No. 3-02-CV-1266-R (N.D. Tex. Jul. 18, 2002); Small v. Reno, 127 F. Supp.2d 305 (D. Conn. 2000); Baidas v. Jennings, 123 F. Supp.2d 1052 (E.D. Mich. 1999). But cf. Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999) (rejecting constitutional challenge to section 236(c)); 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).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be summarily denied.