Opinion
CIVIL ACTION NO. 03-6762
February 27, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241(c)(3), by a petitioner currently incarcerated at York County Prison in York, Pennsylvania. For the reasons which follow, it is recommended that the petition, as filed, be denied without prejudice. It is further recommended that the petitioner forthwith be afforded a bail hearing before the appropriate immigration officer.
I. PROCEDURAE HISTORY
Petitioner is a citizen and national of Jamaica who became a lawful, permanent resident of the United States on February 18, 1976. On February 26, 2001, following a trial in the Philadelphia Court of Common Pleas, petitioner was convicted of possession of a controlled substance, possession of a controlled substance with the intent to deliver and/or manufacture, and possession of drug paraphernalia.
On June 4, 2003, removal proceedings under the Immigration and Nationality Act (INA) commenced when petitioner was served with a Notice to Appear as a result of her aggravated felony conviction. Under the INA, an aggravated felony is classified as an offense which is related to the illicit trafficking of controlled substances, including drug trafficking crimes. INA § 101(a)(43)(B). Petitioner was charged with a second count of removability under the INA because she was convicted of violating laws relating to controlled substances.
A defendant may not be charged with removability where he has been convicted of possession of thirty or less grams of marijuana for personal use on a single occasion.
On September 8, 2003, the Honorable Walter Durling, IJ, held a Master Calendar hearing, after which he found petitioner not guilty of an aggravated felony under Gerbier v. Holmes, 280 F.3d 297 (3rd Cir. 2002). As a result, petitioner was entitled to file for cancellation of removal. Petitioner did so, and her application was granted by Judge Durling on November 24, 2003. That same day, the government stayed the Judge's order by filing an Intent to Appeal Custody Redetermination, and subsequently appealed the decision on the merits.
On December 3, 2003, the government filed Form EOIR-43 to automatically stay any order of release from custody. Thus, Judge Durling's order releasing petitioner from custody on December 24, 2003 was stayed. Petitioner remains in custody, pending a removal hearing before the Board of Immigration Appeals (BIA). All parties were required to submit briefs to the BIA by February 6, 2004.
Petitioner filed the instant petition for Writ of Habeas Corpus on December 16, 2003, challenging the constitutionality of 8 C.F.R. § 1003.19(i)(2). Respondent retorts that petitioner's continued detention pursuant to the above regulation both comports with due process and is consistent with Supreme Court precedent.
II. DISCUSSION OF MERITS
We find that 8 C.F.R. § 1003.19(i)(2) does not deny petitioner her Fifth Amendment due process rights. In Demore v. Kim, 123 So. Ct. 1708, 1712 (2003), the Court held that, "Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that [such] persons — be detained for the brief period necessary for their removal proceedings." As such, this court must deny petitioner the relief requested.
However, petitioner's detention in this case is not mandated by the applicable law, and it is of concern that no judicial officer has ever reviewed her detention status pending the government's appeal. Section 1226(c) only requires detention during removal proceedings for a limited class of deportable aliens, including those convicted of an aggravated felony. Id. at 1714. Here, the presiding Immigration Judge determined that petitioner's crime was not an aggravated felony. Thus, petitioner does not fall within the above limited class.
As such, petitioner should receive a bail hearing, subsequent to which she may be released to await a hearing on the government's appeal to the BIA. 8 C.F.R. § 1003.19(2)(ii) states, "Nothing in this paragraph shall be construed as prohibiting an alien from seeking a redetermination of custody conditions by the Service in accordance with part 1235 or 1236 of this chapter." Thus, on the court's own motion, the relief requested in the habeas petition is expanded. Petitioner is to be afforded a bail hearing before the appropriate immigration official within ten days from the date of this court's order.
Therefore, I make the following recommendation:
RECOMMENDATION
AND NOW, this ______ day of February, 2004, IT IS RESPECTFUELY RECOMMENDED that the Petition for Writ of Habeas Corpus, as filed, be DENIED WITHOUT PREJUDICE. It is also RECOMMENDED that petitioner be afforded a bail hearing before the appropriate immigration official within ten days and that the government notify the court of the occurrence of such hearing.