Opinion
3:03-CV-0861-N.
June 5, 2003.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for writ of habeas corpus filed by an alien pursuant to 28 U.S.C. § 2241.
Parties: Petitioner is presently confined at the Rolling Plains Detention Center in Haskell, Texas. Respondent is Anne Estrada, presently District Director, Bureau of Immigration and Customs Enforcement (BICE), formerly District Director of the Immigration and Naturalization Service (INS). The court has issued process in this case.
Procedural History: Petitioner, a native and citizen of Kenya, entered the United States in 1990 as an immigrant. (Respondent's Exh. 1). On May 13, 1998, he was convicted of Fifth Degree Assault against his wife in the Fourth Judicial District Court of Hennepin County, Minnesota. (Respondent's Exh. 2). His ninety-day sentence was stayed and Petitioner was placed on probation for two years. ( Id.). Thereafter on June 19, 2001, Petitioner pled guilty to Conspiracy to Commit Interstate Transportation of Stolen Property — i.e., trafficking in stolen tickets totaling $665,246 — in the United States District Court for the Eastern District of Texas. See United States v. Omari, 4:00cr31 (04) (E.D. Tex., Sherman Div.). (Respondent's Exh. 5). Punishment was assessed at six months imprisonment, restitution in the amount of $16,336.48, and a three-year term of supervised release. ( Id.).
As a result of the assault conviction, the INS began removal proceedings on October 24, 2001. (Respondent's Exh. 1). The INS later charged Petitioner with an additional basis of removability for the commission of an aggravated felony — i.e., the conspiracy conviction from the Eastern District of Texas. (Respondent's Exh. 7). It then decided, effective November 6, 2002, to detain Petitioner in its custody, revoking its previous decision to release him on his own recognizance. (Respondent's Exh. 8). Thereafter, on March 26, 2003, an immigration judge denied Petitioner's request for cancellation of removal and ordered him removed from the United States by virtue of his conspiracy conviction, which the immigration judge concluded was an aggravated felony. (Respondent's Exh. 9). An appeal is currently pending before the Board of Immigration Appeals (BIA). (Respondent's Motion to Dismiss at 3).
In the present action, filed on April 24, 2003, Petitioner alleges that his detention without a bond hearing, violates the Due Process Clause of the Fifth Amendment.
In response to the petition and this court's order to show cause, Respondent filed a motion to dismiss. Petitioner has not filed a response.
Findings and Conclusions: Section 236(c) of the INA, 8 U.S.C. § 1226(c)(1), mandates detention during removal proceedings of criminal aliens, including those convicted of an aggravated felony. The offense of Conspiracy to Commit Interstate Transportation of Stolen Property, for which Petitioner was convicted in the Eastern District of Texas, qualifies as an "aggravated felony" under the statute. See 8 U.S.C. § 1101(a)(43)(M)(i) (fraud or deceit in which the loss to the victim or victims exceeds $10,000 qualifies as an "aggravated felony"), and 8 U.S.C. § 1101(a)(43)(U) ("an attempt or conspiracy to commit an offense described in this paragraph" qualifies as an "aggravated felony").
In Demore v. Kim, ___ U.S. ___, 123 S.Ct. 1708 (Apr. 29, 2003), the Supreme Court held that the mandatory detention of permanent resident aliens without an individualized bail hearing does not violate the Due Process Clause. A majority of the Court concluded that mandatory "detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed." Demore, 123 S.Ct. at 1720. Thus, "[d]etention during removal proceedings is a constitutionally permissible part of that process." Id. at 1721-22.
Petitioner's due process claims challenging his mandatory detention pending the issuance of a final removal order by the BIA are foreclosed by Demore. Consequently, he is not entitled to habeas relief.
RECOMMENDATION:
For the foregoing reasons, it is recommended that Respondent's motion to dismiss be granted and that the § 2241 petition for writ of habeas corpus be dismissed.
A copy of this recommendation shall be transmitted to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Assn., 79 F.3d 1415 (5th Cir. 1996) (en banc) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.