Opinion
Case No. 01-70559-DT
March 29, 2001
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Sekov Kira's (hereinafter "Petitioner") Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. The United States Immigration and Naturalization Service (hereinafter "INS") has responded and Petitioner has replied. The Court finds that the facts and legal arguments are adequately presented in the parties' briefs and the decisional process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. LR 7.1(e)(2), it is hereby ORDERED that the motions be resolved on the briefs submitted. For the reasons set forth below, Petitioner's Petition for a Writ of Habeas Corpus is DENIED.
II. BACKGROUND
A. Factual History
Petitioner is a citizen of the Ivory Coast who arrived in this country as a temporary visitor in August 1993 and was not to remain in the United States after February 12, 1994. Petitioner remained in this country after the prescribed date without the authorization of the INS and was consequently convicted of visa fraud, in violation of 18 U.S.C. § 1546, on June 20, 2000. After completion of his criminal sentence, the INS issued a Notice to Appear, which charged that Petitioner's criminal conviction caused him to be removable from the United States pursuant to 8 U.S.C. § 1227 (a)(2)(A)(i), 1227(a)(3)(B)(iii).
Section 1227(a)(2)(A)(i) prescribes removal for Conviction of crimes of "moral turpitude committed within five years after the date of admission." 8 U.S.C. § 1227 (a)(2)(A)(i)(I).
Section 1227(a)(3)(B)(iii) prescribes removal for conviction of "fraud or misuse of visas" in violation of 18 U.S.C. § 1546. See 8 U.S.C. § 1227 (a)(3)(B)(iii).
The INS subsequently detained Petitioner pending the outcome of his removal proceedings. The crux of the dispute in this case is the relevant authority under which the INS detained Petitioner. See discussion infra Part II.B. On December 19, 2000, after a full hearing, an immigration judge found Petitioner properly removable from the United States for the reasons charged in the Notice to Appear. Petitioner remains in custody of the INS at the Monroe County facility pending outcome of his appeal of that decision to the Board of Immigration Appeals (hereinafter "BIA").
B. Dispute
Petitioner filed this Habeas petition challenging the constitutionality of the detention statute under which he was allegedly detained. It is Petitioner's position that he was subject to mandatory detention pursuant to 8 U.S.C. § 1226 (c), which states in relevant part:
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who —
. . .
(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 sentence [sic] to a term of imprisonment of at least 1 year . . . .8 U.S.C. § 1226 (c)(1)(C) (emphasis added). As indicated by the highlighted language, the Attorney General has no discretion regarding the detention of an alien under this section. Petitioner maintains that this statute violates his right to due process under the Fifth Amendment of the United States Constitution.
The Government contends that Petitioner's bond was considered pursuant to 8 U.S.C. § 1226 (a), which states in relevant part:
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General —
(1) may continue to detain the arrested alien; and
(2) may release the alien on —
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole;
8 U.S.C. § 1226 (a). As the wording of the statute indicates, the decision whether to release an alien on bond under this section is purely discretionary and depends on consideration of such traditional factors as flight risk and danger to the community. The Government maintains that the immigration judge denied Petitioner's bail as a matter of discretion based on this statute because of Petitioner's risk of flight. Therefore, the Government alleges Petitioner's suit must be dismissed as he challenges the constitutionality of a statute that was not the basis of his detention. Petitioner replies that the warrant, the INS notice of detention pending appeal, and the immigration judge's decision upholding detention all fail to indicate whether Petitioner is being held under mandatory or discretionary detention. Petitioner then seems to concede that the immigration judge's oral decision on bond was discretionary but alleges that discretion was abused because it provides "no reasons for denial." Petitioner implies that the sparse record of his bond/custody hearing is constitutionally infirm because it would be difficult to review on appeal.
III. ANALYSIS
The Court finds that the record unequivocally indicates that Petitioner was detained under the discretion of the Attorney General pursuant to 8 U.S.C. § 1226 (a). Further, the Court finds that a plain reading of § 1226(e) precludes judicial review of the Attorney General's decision.
As an initial matter, § 1226(c) states that an alien " shall be taken into custody" if he falls within one of the four sub-categories listed in the section. Petitioner's conviction of visa fraud under 18 U.S.C. § 1546 does not trigger the mandatory detention provisions under any of the four categories listed in § 1226(c)(1)(A)-(D). Further, the Notice of Custody Determination received by Petitioner plainly states that "[he] may request a review" by an immigration judge of the INS decision to detain him pending his removal proceedings. In his order, the immigration judge to which Petitioner appealed stated that he had "considered the representations of the [INS] and [Petitioner]" in deciding that Petitioner should remain in custody. Finally, Petitioner states at numerous points in his reply brief that the immigration judge made an "oral decision" on the issue of Defendant's "bond" at "Petitioner's bond/custody hearing."
Section 1226(c)(1)(C) does prescribe mandatory detention for an alien deportable under § 1227(a)(2)(A)(i) due to having been sentenced to a term of imprisonment "of at least" one year stemming from a conviction of a crime of moral turpitude. However, since Petitioner was imprisoned for a term of only six months on his visa fraud conviction, this mandatory detention provision is inapplicable.
All of these facts in the record belie Defendant's assertion that he was unconstitutionally detained pursuant to the mandatory detention provisions of § 1226(c)(1)(A)-(B). If Petitioner was being detained pursuant to § 1226(c), the mandatory language in that section would mean that the INS would have "no choice but to detain [him] and [would be] precluded from releasing [him]" or consideration thereof. Mapp v. Reno, No. 99-2735, 2001 U.S. App. LEXIS 3354, at *19 (2d Cir. Feb. 23, 2001). However, as stated above, the INS extended Petitioner the option of appealing its decision to detain him to an immigration judge, which Petitioner promptly did. The immigration judge once again considered the merits of Petitioner's claim for bond and promptly denied that request. Petitioner admits to the foregoing facts in his reply. Therefore, the Court finds that the INS detained Petitioner as a matter of discretion pursuant to § 1226(a).
Finally, because § 1226(a) governs this case, this Court is precluded from reviewing the INS decision to detain Petitioner. Section § 1226(e) states:
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). A plain reading of § 1226(e) and recent authority in the Sixth Circuit indicate that § 1226(e) precludes this Court's review over the INS decision to detain Petitioner pending his appeal. See Rosales-Garcia v. Holland, 238 F.3d 704, *20 n. 13 (6th Cir. 2001) (explaining that the court's jurisdiction to review an INS decision to detain an alien was not limited only because the current version of § 1226(e) did not govern the case).
IV. CONCLUSION
Accordingly, for the reasons stated above, Petitioner's Petition for a Writ of Habeas Corpus is DENIED.
IT IS SO ORDERED.