Opinion
02 C 3731
January 15, 2003
OPINION
Michael Egere seeks habeas corpus. He is detained while waiting for the Board of Immigration Appeals to rule whether the order of deportation against him will be made final. His petition makes the usual attack on the constitutionality of 8 U.S.C. § 1226(c). He also seeks an injunction against its application.
This attack fails because Egere is the wrong man to make the claim. It is true that the deportation order arose from the fact that he was convicted of Possession of Cocaine with Intent to Deliver in an Indiana court. He was sentenced to a substantial term in prison. This distinguishes his case from those petitioners who, arguably, have a claim that probation or supervision following a conviction leaves them outside the ambit of the statute here mandating custody for one "convicted" of an "offense" within the meaning of the federal law. See, e.g. Bonsol v. Perryman, No. 02C6530, 2003 WL 41980 (N.D.Ill. Jan. 6, 2003), Gill v. Ashcroft, No. 01C9879, 2002 WL 1163729 (N.D.Ill. May 31, 2002) and Vang v. Ashcroft, 149 F. Supp.2d 1027 (N.D.Ill. 2001). In simple terms, Egere has no reasonable likelihood of success in challenging the deportation order because he characterizes his crime as "not particularly serious."
While the offense is not at the top of the list of heinous acts, it is still serious. An officer drove a van in a drug trafficking area of Indianapolis. Egere waved at her as she passed. When she stopped, Egere got into the van with her and, when asked, responded he could get crack for her. He directed her to a parking lot, took her money, left his own crack cocaine pipe as security and, eventually, procured two rocks of crack. Egere then suggested that she drive to a place where the two could smoke the crack and have sex. At that point the arrest was made and Egere gave a false name and denied having an address. See Opinion, Egere v. State, No. 49A02-9711-CR-736 (Ind.App. 1998).
Additionally, Egere loses because he entered this country on a student visa, and he has not been a student for over a decade and a half. He is neither a citizen nor a lawful permanent resident as, for example, were Bonsol and Gill. In proceedings before the INS he has conceded removability and will be deported on other grounds even in the unlikely event that he wins on the "offense" claim. This means that his case is governed by Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999), whose authority in this area is not diminished by Zadvydas v. Davis, 533 U.S. 678 (2001). See Yanez v. Holder, 149 F. Supp.2d 485 (N.D. Ill 2001).
This leaves him with his final claim that a return to Nigeria would contravene his human rights. But this matter must first be adjudicated within the administrative process. On the merits the immigration judge found against Egere. But a pending asylum is not one of the reasons that Parra held would justify a challenge to a denial of bond. Those reasons are claim of citizenship, denial of conviction, and aliens who have no country to which they can be removed. Egere can be removed to Nigeria. Whether he ought to be or not is not relevant to the question of whether he ought to be let out on bond while the Government makes the asylum decision.
In short, this is a man who sold crack cocaine — dangerous to the public — and failed to leave this country after his visa expired — indicating his unwillingness to comply with the conditions of bond. As to him the statute is constitutional, he has an adequate remedy at law, the harm to him is outweighed by the enforcement interests of the INS and the public interest would not be served by an injunction against the enforcement of the statute.
The writ of habeas corpus is DENIED. The motion for injunction is DENIED.