Opinion
No. 99 C 872
February 23, 2000
MEMORANDUM OPINION AND ORDER
Petitioners are three legal permanent residents of the United States against whom the Immigration and Naturalization Service ("INS") has instituted removal proceedings charging each with deportability as an aggravated felon. Petitioners are detained without possibility of bond subject to a new provision of the Immigration and Nationality Act ("INA"). They petition this court for habeas corpus relief, arguing that this mandatory detention provision violates their substantive and procedural due process rights under the Fifth Amendment of the U.S. Constitution. Attorney General Janet Reno and INS District Director Brian Perryman ("Respondents") move to dismiss the petition for lack of subject matter jurisdiction and, alternately, for failure to state a claim for relief. For the reasons discussed below, this court denies Respondents' motion to dismiss.
BACKGROUND
A. The Statute
At the time this case was filed, each of the Petitioners was being held in INS custody under the mandatory detention provision of the INA set forth in 8 U.S.C. § 1226(c). This custody provision is a recent addition to the INA as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter "IIRIRA"), Division C of Pub.L. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996).
During the two-year period from October 9, 1996 to October 8, 1998, custody determinations were governed by IIRIRA's Transition Period Custody Rules ("TPCR") which granted individualized bond determinations before an immigration judge ("IJ") for some aliens with criminal convictions. See IIRIRA'303(b)(3). When the TPCR expired, IIRIRA's mandatory detention provision, 8 U.S.C. § 1226(c)(1) became effective for all criminal aliens. The new provision, entitled "Detention of criminal Aliens" states that the Attorney General "shall take into custody any alien" who is removable as an aggravated felon under § 1227(a)(2)(A)(iii) (or a number of other sections). See 8 U.S.C. § 1226(c)(1)(B). An alien taken into custody under this provision may be released on bond but only as a witness protection measure. See 8 U.S.C. § 1226(c)(2).
Specifically, individuals who could prove legal entry in the United States and prove that they did not present a substantial risk of flight or threat to persons or property were eligible for bond. See IIRIRA § 303(b)(3)(B)(i).
IIRIRA changed the nomenclature of the "deportation" and "exclusion" proceedings under the INA to the unitary term "removal proceedings." See IIRIRA § 309(d)(2).
Petitioner Sin Vip Honarey Tiv was granted voluntary dismissal from the case and is awaiting a final order of deportation to Cambodia. (Pet. Response to Resp. Mot. to Dismiss, at 1 n. 1.)
None of the Petitioners is eligible for the witness protection program and therefore each is subject to detention without possibility of bond. Petitioners assert that the mandatory detention provision violates their Fifth Amendment due process rights because they are denied any possibility of being released on bond pending a final decision in their respective removal proceedings. (Am. Pet. ¶ 45.)
Petitioner Wedderburn also asserts that with respect to his detention, Respondents have violated the statute itself by applying Section 1226(c) retroactively in contravention of the mandate that Section 1226(c) apply only prospectively to aliens who were released from state custody and taken into INS custody after October 8, 1998. (Am. Pet. ¶ 42-43.) Mr. Wedderburn asserts that he is not subject to the mandatory detention provision because he was released into INS custody in May 1998.
1. Ee Si Vang
Vang, a twenty-two year old national of Thailand, was a year old in 1978 when he entered the United States as a lawful permanent resident. (Am. Pet. ¶¶ 9-10.) Vang was born in a refugee camp in Thailand where his Laotian parents fled in 1975. (Id. ¶ 9.) On December 29, 1998, Vang completed a forty-eight month period of incarceration in the Wisconsin Department of Corrections for armed burglary. (Id. ¶ 12.) The INS issued a Notice to Appear for removal proceedings on January 8, 1999, charging Vang with deportability as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii), and for violation of United States firearm laws under 8 U.S.C. § 1227(a)(2)(C). (Am. Pet. ¶¶ 12-13; Resp. Mot. to Dismiss, Ex. 1.)
Vang was originally sentenced on February 14, 1996 to a fifteen year term of imprisonment but that judgment was vacated. At retrial, Vang was again convicted and sentenced to forty-eight months with credit for time served. (Am. Pet. ¶ 11; Resp. Mot. to Dismiss, Ex. 1.)
On the same day as his release from incarceration, Vang was taken into INS custody and held without bond pursuant to 8 U.S.C. § 1226(c)(1). (Am. Pet. ¶ 13.) Vang nevertheless requested a bond determination from the IJ but the request was denied. (Id.) On February 16, 1999, the IJ denied Vang's application for relief from removal under 8 U.S.C. § 1231(b)(3) on the grounds that he believes his life or freedom would be in danger should he be returned to Laos. (Id. ¶ 14.) Vang is currently appealing that decision and remained in INS custody until November 18, 1999 when he was released under an order of supervision. (Resp. Status Report ¶ 1.)
2. Kevin Wedderburn
Wedderburn, a national of Jamaica, became a lawful permanent resident of the United States on October 9, 1987 at the age of eleven. (Am. Pet. ¶ 15; Resp. Mot. to Dismiss, Ex. 7.) Subsequently, Mr. Wedderburn's father became a U.S. citizen. (Am. Pet. ¶ 15.) In 1997, while Mr. Wedderburn was incarcerated for a 1995 aggravated criminal sexual assault conviction, the INS charged Wedderburn with removal as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). (Id. ¶ 18; Resp. Mot. to Dismiss, Ex. 4.) Wedderburn filed an application for a Certificate of Citizenship on grounds that he derived United States citizenship from his father who was naturalized when Wedderburn was under the age of eighteen. (Am. Pet. ¶ 18.) The INS denied Wedderburn's citizenship application. (Id. § 19.) Wedderburn was taken into INS custody upon the completion of his incarceration in May 1998. (Id. ¶ 20.) The INS commenced removal proceedings, during which Wedderburn argued that the Immigration Court had no jurisdiction over him because he was entitled to U.S. citizenship. (Id. ¶¶ 20-21.) The INS office affirmed the denial of Wedderburn's citizenship application (Id. ¶ 19), and on August 19, 1998, the IJ ordered him deported to Jamaica as an aggravated felon. (Id. ¶ 21.) The BIA affirmed that decision on April 19, 1999. (Resp. Status Report ¶ 2.)
Because Wedderburn was taken into custody prior to October 9, 1998 he was subject to the TPCR, pursuant to which he requested a bond determination. (Am. Pet. ¶ 23.) The IJ granted Wedderburn's request for bond, setting it at $50,000. (Id.) Wedderburn's subsequent request for a new bond determination was rejected. (Id. ¶ 23.) Unable to meet the bond amount, Wedderburn appealed the amount of bond as prohibitively high and argued that his detention violates the provisions of that statute because it does not apply to lawful permanent residents who were released from jail and taken into INS custody before the expiration of the TPCR on October 9, 1998. (Id. ¶ 23, 42.) On May 14, 1999 the BIA dismissed the bond appeal as moot, holding that the IJ had no jurisdiction to set bond. (Resp. Status Report ¶ 2.) Wedderburn filed a timely appeal of this decision on May 19, 1999; and the Seventh Circuit heard oral arguments on January 5, 2000. (Id.) Petitioner remains in INS custody. (Id.)
In dismissing the appeal, the BIA rejected Wedderburns' argument that Section 1226(c) would not apply to him because he was released into INS custody prior to the expiration of the TPCR. (Resp. Status Report ¶ 2, Group Ex. 1, May 14, 1999 BIA Order, at 3 n. 1.)
3. Juan Mireles
Mireles, a national of Mexico, entered the United States in 1978, and adjusted his status to that of a lawful permanent resident in 1990. (Am. Pet. ¶ 24; Resp. Mot. to Dismiss, Ex. 9.) On December 3, 1998, after serving a seven-month period of incarceration in the Wisconsin Department of Corrections following convictions for possession of a firearm and possession of a controlled substance, Mireles was transferred to INS custody and held without bond pursuant to 8 U.S.C. § 1226(c)(1). (Am. Pet. ¶¶ 26-27.)
Thereafter, the INS issued a Notice to Appear for removal proceedings, charging Mireles with deportability as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(i) and for violation of United States firearm laws under 8 U.S.C. § 1227(a)(2)(C). (Id. ¶¶ 26-27; Resp. Mot. to Dismiss, Ex. 9.) Mireles twice requested a bond determination before an IJ, both of which were denied. (Am. Pet. 6 27.) Mireles remained in INS custody during the pendency of his removal proceedings pursuant to 8 U.S.C. § 1226(c)(1)(B). (Id.)
On April 22, 1999, an IJ granted Mireles' application for Cancellation of Removal pursuant to 8 U.S.C. § 1229b(a), and released Mireles from INS custody on April 26, 1999. (Pet. Submission of Additional Evidence Regarding Juan Mireles ¶¶ 2-5). The IJ determined that Mireles had not been convicted of an "aggravated felony" as it is defined in the Act. (Resp. Status Report ¶ 3, Group Ex. 2, April 22, 1999 IJ Order, at 2.) The INS appealed this decision, and therefore Mireles is still under conditions of custody and must report to the INS each month. (Resp. Status Report ¶ 3; Pet. Submission of Additional Evidence Regarding Juan Mireles ¶¶ 5-6.)
This section allows relief from removal in the case of an alien who is deportable if the alien: (1) has been a legal permanent resident for not less than five years; (2) has resided in the United States continuously for seven years after having been admitted in any status; and (3) has not been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a).
C. The Motion to Dismiss
Respondents move to dismiss the petition for habeas corpus on grounds that (1) the provisions of the IIRIRA itself preclude this court's jurisdiction and (2) petitioners have failed to state a claim for relief because the Seventh Circuit has already held the mandatory detention provisions of the IIRIRA constitutional. Petitioners respond that the court has jurisdiction to challenge the mandatory detention provision itself, and that the Seventh Circuit has held the mandatory detention provision to be constitutional only as applied to aliens who have conceded deportability.
DISCUSSION
A. Subject Matter Jurisdiction
Because federal courts are courts of limited jurisdiction, Federal Rule of Civil Procedure (12)(b)(1) mandates that a court dismiss a case when the claim presented lies outside of that jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Federal court subject matter jurisdiction is authorized by statute and consequently can be limited by statute. Id. Respondents argue that Section 1226(e) of Title 8 precludes this court from exercising jurisdiction over this matter. Congress has limited judicial review of certain decisions to detain criminal aliens:
The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.8 U.S.C. § 1226(e). The Seventh Circuit has established that this provision only precludes review of decisions to apply the provision, and challenges to decisions to grant or deny bond. See Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999). For this reason, the Seventh Circuit concluded that the provision does not preclude constitutional challenges to the provision itself. See id. ("Section 1226(e) . . . deals with challenges to operational decisions, rather than to the legislation establishing the framework for those decisions."). Because Petitioners challenge the constitutionality of the provision, this court has subject matter jurisdiction to hear their claims.
Another provision of IIRIRA also contains jurisdiction limitations that are inapplicable here because Petitioners are not seeking review of actions or decisions to "commence proceedings, adjudicate cases, or execute removal orders." See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, ___, 119 S.Ct. 936, 943 (1999) (quoting 8 U.S.C. § 1252(g)).
B. Claim for Habeas Relief
The government also urges that the petition be dismissed for failure to state a claim for relief pursuant to FED. R. CIV. P. 12(b)(6). Such a motion requires the court to examine not whether the plaintiff will prevail on the merits, but instead whether the claimant has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In deciding a motion to dismiss, the court must assume as true all facts alleged in the complaint, construing the allegations in the light most favorable to the plaintiff. See Maple Lanes, Inc. v. Messer, 186 F.3d 823, 824-25 (7th Cir. 1999). Such motions should not be granted "unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." See id. at 825 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court may take judicial notice of matters of public record without converting a Rule 12(b)(6) motion to dismiss into a motion for summary judgment as long as the finding is not subject to reasonable dispute. See Henson v. CSC Credit Svcs., 29 F.3d 280, 284 (7th Cir. 1994). Matters of public record of which the court can take judicial notice include relevant decisions of other courts, particularly where those earlier proceedings have a direct relation to matters presently at issue. See Opoka v. INS, 94 F.3d 392, 394 (7th Cir. 1996).
Respondents have not argued that Mireles and Vang are no longer eligible for habeas relief because they are no longer in physical custody of the INS. Nevertheless, the court pauses here to note that the "in custody" language of the habeas statute does not require a petitioner to be physical custody. See Hensley v. Municipal Court, San Jose Milpitas Judicial Dist., Santa Clara County, Cal., 411 U.S. 345, 351 (1973). The custody requirement for habeas purposes is satisfied when the petitioner is still subject to severe and immediate restraints on his liberty that are not shared by the public in general. See Jones v. Cunningham, 371 U.S. 236, 240 (1963). This liberal interpretation of the habeas statute has been applied in the immigration context. See e.g. Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir. 1982) (petitioner released on bond after commencement of deportation proceedings "in custody" for habeas purposes). Vang is currently under a final order of removal, and has been released with "supervision." Although neither party provides the court with details of the conditions of Vang's supervision, the court concludes that because Vang's presence may be demanded at any time for removal, there is sufficient "immediacy of action and interference with freedom" to support a conclusion that he is "in custody." See Flores v. INS, 524 F.2d 627, 629 (9th Cir. 1975). Likewise, although released on his own recognizance, Mireles is required to report his address and employment status to the INS on a monthly basis. Absent any argument to the contrary from INS, the court will assume that these restraints, coupled with the fact that the INS is still charging him as removable, supports the conclusion that Mireles is also "in custody."
Respondents argue that Petitioners have failed to state a claim upon which relief can be granted because the Seventh Circuit decision of Parra v. Perryman has already determined that the mandatory incarceration provisions are constitutional. Indeed, in Parra, the Seventh Circuit held that the mandatory detention provision is constitutional as applied to an alien who has conceded deportability and is merely "pass[ing] time while waiting for the order to become final." See Parra, 172 F.3d at 956, 958. In arguing that Section 1226(c) is constitutional, Respondents rely on strong language in Parra stating that persons subject to detention under the mandatory detention provision had "forfeited any legal entitlement to remain in the United States and had little hope of clemency." Id. at 958. Respondents also cite language in which the Court of Appeals concluded that a criminal alien who is "postponing the inevitable" has no constitutional right to remain at large during the ensuing delay, and the United States has a substantial interest in maintaining the alien in detention in order to ensure that removal actually occurs. Id.
This strong language must be understood in its context, however. Notably, the petitioner in Parra did not contest deportation. Id. This fact was apparently determinative to the Seventh Circuit, which repeatedly emphasized that the reason Parra's claim lacked merit was because he had already conceded removal, and was merely "postponing the inevitable." See e.g., Parra, 172 F.3d at 958 ("Parra's legal right to remain in the United States has come to an end."). The court noted that under the procedural due process test articulated in Mathews v. Eldridge, 424 U.S. 319, 355 (1976), Parra's private interest in freedom from incarceration was minimal given that he was no longer entitled to live at liberty in the United States; that the probability of administrative error was non-existent when an alien concedes deportability; and that the public interest is great, given the high rate of pre-deportation flight. In light of these circumstances, the Seventh Circuit remanded the case for a denial of the petition. Id.
Other language, not cited by Respondents, demonstrates that the Seventh Circuit explicitly left the door open to claims made by people who had not yet conceded removal. As the Parra opinion stated,
it is easy to imagine cases — for example, claims by persons detained . . . who say they are citizens rather than aliens, who contend that they have not been convicted of one of the felonies that authorizes removal, or who are detained indefinitely because the nations of which they are citizens will not take them back — in which resort to the Great Writ may be appropriate. Today's case presents none of these possibilities, however, for Parra concedes that he is an alien removable because of his criminal conviction, and Mexico accepts returns of its citizens.Id. at 957.
While parts of the Parra opinion may suggest that the Seventh Circuit is inclined to find IIRIRA's mandatory detention provisions constitutional, Parra cannot be said to close the door to all habeas corpus claims challenging the constitutionality of the mandatory custody provision, at least not for the purposes of a 12(b)(6) motion. On the merits, Parra concludes that an alien who has conceded removability, and is simply waiting for the removal order to become final, has little constitutionally cognizable interest in being released on bond during the resulting delay. Parra does not appear to decide whether people who do contest removability and who have legitimate defenses to raise, may be mandatorily detained without violating their due process rights. None of the three Petitioners here has conceded deportation. Indeed, at least Wedderburn and Mireles are bringing the exact types of claims that Parra maintained might be appropriate for a petition for habeas corpus — e.g. Wedderburn disputes his citizenship status; Mireles disputes whether he was convicted for an aggravated felony. Vang's case is arguably less compelling than Wedderburn's or Mireles', yet he was recently released from INS custody. As stated earlier, neither party provided the court with information regarding the reasons for or conditions of Vang's release. Because the new custody provisions are mandatory and provide for release in extremely limited situations, or if, as in Mireles' case, removal is canceled, Vang's recent release raises at least an inference that he, too, has a colorable claim. For these reasons, this court cannot confidently conclude that Parra automatically precludes all petitions for habeas corpus that challenge the constitutionality of the mandatory detention provision. Therefore, this court cannot accept Respondents' assertion that the Parra decision bars this court from granting relief if appropriate.
CONCLUSION
For the foregoing reasons, this court denies Respondents' motion to dismiss the petition for writ of habeas corpus and orders Respondents to answer the petition. The court reserves the determination on the constitutional issues until after the filing of Respondents' answer and any additional appropriate briefing on the issues.