Opinion
Civil Action No. 99-1938 (NHP).
July 7, 1999
Thomas E. Moseley, Esq., Newark, N.J., Attorneys for Plaintiff-Petitioner.
Colette R. Buchanan, Assistant U.S. Attorney, FAITH S. HOCHBERG, UNITED STATES ATTORNEY, Newark, N.J., Attorneys for Defendants.
LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on the petition by Jose Zargo for a writ of habeas corpus and the motion by the United States Government to dismiss said petition. This Court heard oral argument on July 2, 1999. For the reasons stated herein, petitioner Jose Zargo's petition is GRANTED IN PART AND DENIED IN PART and the motion by the United States Government to dismiss is DENIED. Accordingly, an Immigration Judge shall provide petitioner Jose Zargo with an individualized bond hearing on Friday, July 9, 1999 to determine whether, and under what conditions, Jose Zargo may be released from custody pending the conclusion of the removal proceedings.
The motion by American Civil Liberties Union Foundation Immigrant's Rights Project and the American Civil Liberties Union of New Jersey to appear as amici curiae was granted by this Court on June 29, 1999.
STATEMENT OF FACTS
Petitioner Jose Zargo ("Zargo") was born in Vagos Portugal on August 26, 1965. Zargo was admitted to the United States on August 5, 1978 as a lawful permanent resident. See Complaint, ¶ 8.
On March 3, 1999, Zargo returned to the United States after a brief trip abroad to visit his mother and father. See id., ¶ 12. When he came back to the United States, Zargo hoped to attend the funeral of a close family friend. Instead, Zargo was denied admission as a returning lawful permanent resident and was taken into custody by the Immigration and Naturalization Service ("INS") at Newark International Airport. See id. On that same day, the INS served Zargo with a Notice to Appear for Removal Proceedings. See Notice to Appear. The Notice charged that Zargo is subject to removal pursuant to: (1) § 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act as "an alien who has been convicted of . . . a violation . . . [of] any law . . . of a state . . . relating to a controlled substance" and (2) § 212(a)(2)(C) of the Immigration and Nationality Act as "an alien who the . . . immigration officer knows or has reason to believe is or has been an illicit trafficker in a controlled substance, or knows or has reason to believe is or has been a knowing assister, abettor, conspirator, or colluder in the illicit trafficking of a controlled substance." See id. To date, Zargo is being detained in the Hudson County Correctional Center without bond and without a hearing on bond.
Prior to the enactment of the IIRIRA, a lawful permanent resident who returned to the United States after a brief trip abroad was not considered to be making a new request for admission to this country and, accordingly, was not subject to the potential bars to admissibility under Section 212(a) of the Act, 8 U.S.C. § 1182(a) . See Rosenberg v. Fleuti , 374 U.S. 449, 462 (1963) (holding that "an innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been `intended' as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an `entry' into the country on his return."). A review of the legislative history indicates that the enactment of the IIRIRA presented a change in the definition of "admission." Accordingly, the INS now appears to take the position that a lawful permanent resident who has a conviction for a crime under 8 U.S.C. § 1182(a)(2) makes a new application for admission to the United States even upon return from a brief trip abroad. See § 101(a)(13) of the IIRIRA, as amended by § 301 of the IIRIRA; Matter of Collado , Int. Dec. 3333, 1998 WL 95929 (BIA 1998); 1 Gordon, Mailman Yale-Loehr, Immigration Law and Procedure § 10.05.
The reason for Zargo's detention was based upon the fact that Zargo had two prior convictions in the New Jersey Superior Court in Middlesex County for possession of a controlled dangerous substance, pursuant to N.J.S.A. § 2C:35-5(a)(1), in May 1990 and June 1995 for which he received non-custodial sentences. See Complaint, ¶ 12; see also Notice to Appear. The record reflects that Zargo was granted early termination of probation on January 13, 1998. See Complaint, ¶ 13.
Zargo contends that his detention results from a continuing misapplication of the mandatory detention provisions enacted by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, Title III-A, 110 Stat. 3009 and contained in the Immigration and Nationality Act ("INA") § 236(c) now codified at 8 U.S.C. § 1226(c) (West Supp. 1998). Essentially, Zargo argues that the mandatory detention provisions of IIRIRA simply do not apply to persons in his position who were released from criminal custody prior to the effective date of the mandatory detention provisions. Zargo further contends that 8 U.S.C. § 1226(c) is unconstitutional on its face as it violates his Fifth and Eighth Amendments rights.
In opposition, the Government argues that: (1) this Court lacks subject matter jurisdiction to entertain Zargo's petition; (2) petitioner is being lawfully detained pursuant to 8 U.S.C. § 1226(c); (3) 8 U.S.C. § 1226(c) does not violate the United States Constitution; and (4) petitioner is lawfully being detained pursuant to 8 U.S.C. § 1225.
DISCUSSION
On September 30, 1996, the President signed into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, Title III-A, 110 Stat. 3009 ("IIRIRA"). The IIRIRA contains the subject "mandatory detention" provision, Immigration and Nationality Act ("INA") § 236(c), which is now codified at 8 U.S.C. § 1226(c) (West 1999). A review of the relevant legislative history reveals that INA § 236(c) did not become effective until October 9, 1998, when the effective dates of the "Transition Period Custody Rules" ("TPCRs") expired. See Velasquez v. Reno, 37 F. Supp.2d 663 (D.N.J. 1999).
Although the President signed the IIRIRA into law on September 30, 1996, Judge Barry explained that:
Congress provided, however, that the Attorney General could request deferment of the implementation of the IIRIRA mandatory detention provision for up to two years if there was insufficient detention space and INS personnel. See IIRIRA § 303(b)(2). The Attorney General so notified Congress on October 9, 1996 and again in 1997 and, thus, implementation was deferred for two years. During the two-year deferment, the "Transition Period Custody Rules ("TPCRs"), IIRIRA § 303(b)(3), were to be implemented instead of AEDPA § 440(c) or INA § 236(c). See IIRIRA § 303(b)(2). The TPCRs provided for bond hearing for some aliens removable for having committed certain crimes and gave the Immigration Court discretion to set bond if a lawfully admitted alien did not present a danger to persons or property and was likely to appear at future removal proceedings. See IIRIRA § 303(b)(3).See Velasquez , 37 F. Supp.2d at 667 .
The relevant provision providing for the mandatory detention of criminal aliens provides:
(c) Detention of Criminal Aliens. (1) Custody. The Attorney General shall take into custody, any alien who —
(a) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title . . .
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.8 U.S.C. § 1226(c)(1) (West 1999).
The detention of a criminal alien is mandatory except in the circumstances as set forth herein:
(2) Release. The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.8 U.S.C. § 1226(c)(2) (West 1999).
I. Subject Matter Jurisdiction
This Court has subject matter jurisdiction over this case pursuant to the analysis set forth in Sandoval v.Reno, 166 F.3d 225, 238 (3d Cir. 1999) and Velasquez v. Reno, 37 F. Supp.2d 663, 668-70.
II. INA § 236(c)
Zargo contends that, under the effective date provisions set forth in § 303(b) of the IIRIRA governing the implementation of mandatory detentions, the mandatory detention provisions of INA § 236(c), 8 U.S.C. § 1226(c) should not retroactively be applied to him because he was "released" prior to October 9, 1998, the effective date of the mandatory provisions. More specifically, Zargo argues that, under the effective date provisions in Section 303(b) of the IIRIRA governing implementation of mandatory detention, two successive periods of transitional custody rules were authorized and mandatory detention was made applicable only to those individuals released from their custodial sentences after the expiration of the two transitional periods.
This provision of immigration law has not been codified.
The Government asserts that since Zargo was placed in removal proceedings after April 7, 1997, he is subject to the full scope of the IIRIRA's mandatory detention provisions.
Section 303(b)(2) of the IIRIRA explicitly provides that "[a]fter the end of such 1-year or 2-year [transition] periods, the provisions of such section 236(c) shall apply to individuals released after such periods." IIRIRA § 303(b)(2).
This Court is in agreement with the well-reasoned and recently articulated decision of Judge Barry in Velasquez. Both the plain language of the IIRIRA and the presumption against retroactivity make clear that mandatory detention under § 236(c) was simply not intended to apply to persons in Zargo's position. Here, Zargo was granted early termination of probation on January 13, 1998 in connection with his most recent conviction. See Complaint, ¶ 13. Accordingly, Zargo completed his criminal cases with no custodial sentence prior to September 30, 1996, which was the date IIRIRA was initially passed. Zargo also completed his criminal cases prior to October 9, 1998, the effective date of the mandatory provisions. Thus, Zargo should not be subject to mandatory detention under § 236(c) because he was "released" prior to the effective date of the statute.
At this point, this Court need not address the questions of whether the mandatory detention provisions of the IIRIRA are unconstitutional.