Opinion
CIVIL ACTION NO. 04-1890
May 26, 2004
ORDER
AND NOW, this 26th day of May, 2004, upon consideration of Yuri Badim Arriola-Arenas's petition for a writ of habeas corpus brought under 28 U.S.C. § 2241 (docket entry # 1) and the Government's response thereto, and the Court finding that:
(a) Arriola-Arenas is a native of Guatemala and a lawful permanent resident of the United States;
(b) In the course of removal proceedings based on his convictions for robbery and offensive touching, Immigration Judge Walt Durling ruled on March 5, 2004 that Arriola-Arenas was eligible for both a waiver and cancellation of removal, see In re Arriola-Arenas, No. A36487736, mem. op. at 6 (E.O.I.R. Mar. 5, 2004) (Durling, I.J.);
(c) On March 9, 2004, the Bureau of Immigration and Customs Enforcement ("BICE") appealed this ruling to the Bureau of Immigration Appeals ("BIA"), and the BIA ordered Arriola-Arenas's detention without bond during the pendency of the appeal pursuant to 8 U.S.C. § 1226(c)(1) (B), which mandates the detention of an alien who is removable on the basis of an aggravated felony;
(d) Arriola-Arenas then filed the § 2241 petition now before us;
(e) The petition first contends that BICE's decision to appeal IJ Burling's decision violates the Double Jeopardy and Due Process Clauses of the Fifth Amendment;
(f) We lack jurisdiction even to consider this argument because Arriola-Arenas is not under a final order of removal and the proceedings before the BIA may well moot his constitutional challenge, Duvall v. Elwood, 336 F.3d 228, 232-233 (3d Cir. 2003);
(g) Arriola-Arenas next argues that his detention pending appeal violates the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment;
We have jurisdiction to consider the constitutionality of § 1226(c). Demore, 538 U.S. at 517.
(h) In Demore v. Kim, 538 U.S. 510, 531 (2003), the Supreme Court rejected the argument that the mandatory detention of a criminal alien during removal proceedings violates due process;
(i) Arriola-Arenas's Eighth Amendment argument also lacks merit;
(j) The Supreme Court has held that "when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, . . . the Eighth Amendment does not require release on bail",United States v. Salerno, 481 U.S. 739, 754-55 (1987);
(k) The safety of the community is one such "compelling interest",id. at 753, and thus the mandatory detention of criminal aliens during removal proceedings does not violate the Eighth Amendment, Marogi v. Jenifer, 126 F. Supp.2d 1056, 1061-62 (E.D. Mich. 2000); Avramenkov v. INS, 99 F. Supp.2d 210, 218 (D. Conn. 2000); Reyes v. Underdown, 73 F. Supp.2d 653, 658 (W.D. La. 1999);
In view of the fact that the aggravated felony that triggered Arriola-Arenas's mandatory detention was robbery, the need to protect public safety is not an abstract consideration here.
It is hereby ORDERED that:
1. The petition is DENIED; and
2. The Clerk of Court shall CLOSE this action statistically.