192 F.3d 390 (3rd Cir. 1999), 97-1419, Ngo v. Immigration & Naturalization Serv.

Docket Nº:97-1419
Citation:192 F.3d 390
Case Date:September 24, 1999
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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192 F.3d 390 (3rd Cir. 1999)

CHI THON NGO a/k/a DAVID LAM, Appellant



No. 97-1419

United States Court of Appeals, Third Circuit

September 24, 1999

        Argued June 23, 1999


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        Steven A. Morley, Esquire (ARGUED), Bagia & Morley, The Bourse, Suite 592, 111 S. Independence Mall East, Philadelphia, PA 19106, Attorney for Appellant

        Virginia R. Powel, Esquire, Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, David W. Ogden, Esquire, Acting Assistant Attorney General, Civil Division, David M. McConnell, Esquire, Assistant Director, Papu Sandhu, Esquire (ARGUED), Emily A. Radford, Esquire, Office of Immigration Litigation, Civil Division, Department of Justice, P.O. Box 878, Ben Franklin Station, Washington, D.C. 20044, Attorneys for Appellee

        Before: ROTH, WEIS and COWEN, Circuit Judges


        WEIS, Circuit Judge.

        The issue in this appeal is whether aliens who have committed serious crimes in this country may be detained in custody for prolonged periods when the country of origin refuses to allow the individual's return. We conclude that such detention is permitted by the relevant statutes, and is constitutional if the government provides individualized periodic review of the alien's eligibility for release on parole. Because petitioner did not receive the necessary rigorous review, we will grant a writ of habeas corpus subject to the right of the Immigration and Naturalization Service to promptly institute appropriate administrative action.

        Petitioner is a native of Vietnam who was paroled1 into the United States as a refugee in 1982. He was arrested in 1988 for possession of a firearm and in 1989 for attempted robbery. He was convicted in state court and received concurrent sentences of one year each for the firearm offense and an accompanying bail-jumping charge, and two to four years for the attempted robbery.

        In March 1995, petitioner was subjected to exclusion proceedings by the INS for lack of a valid immigrant visa, 8 U.S.C. S 1182(a)(7)(A)(i)(I) (1994); conviction of a crime involving moral turpitude, id. S 1182(a)(2)(A)(i)(I); and conviction of two or more crimes for which the aggregate sentences actually imposed were five years or more, id. S 1182(a)(2)(B). After a hearing before an immigration judge, petitioner was ordered excluded and deported. The order became final on July 6, 1995.

        After petitioner was paroled by state authorities, he was taken into custody by the INS and has been detained since that time. The record does not disclose exactly when petitioner came into INS custody, but it appears to have been around the middle of 1995. The detention was served in county jails in Pennsylvania until petitioner was transferred to the INS center in New Orleans, Louisiana, where he is presently confined. The INS has attempted to return petitioner to Vietnam, but that country has refused to accept him.

        Petitioner sought habeas corpus relief in December 1995, but his request was denied by the District Court, which cited the INS' "diligent effort[s]" to return him to Vietnam. No appeal was taken. Petitioner subsequently filed the present petition in November 1996, contending that because Vietnam will not take him back, he is

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subject to virtually indefinite detention in violation of due process.

        Petitioner also contended that he should be eligible for release on parole. His submissions to the District Court included letters from individuals attesting to his reformed character, and a statement that while incarcerated, he had obtained a GED, learned skills, and attended classes on behavior modification and theology. The District Court denied relief to petitioner without an evidentiary hearing.

        Petitioner had also applied to the Attorney General for release on parole. An Assistant District Director for Detention and Deportation denied the request in a 1996 letter, stating that petitioner represented a high risk of flight and a threat to the safety of the community based on his record of convictions and bail jumping. Some months later, another Assistant District Director, in an affidavit, echoed the previous letter. Since then, petitioner has been denied discretionary parole in at least three letters that essentially parrot the previous refusals.

        On appeal, we appointed counsel for petitioner, who previously had been unrepresented. In this Court, petitioner contends that confining him on an indefinite and possibly permanent basis is a denial of his substantive and procedural due process rights. Moreover, he asserts that denial of parole without a determination of his present dangerousness and risk of flight is arbitrary and capricious, particularly in the absence of detailed regulations governing review of such applications.

        The District Court had jurisdiction over the petition for habeas corpus under 28 U.S.C. S 2241. Sandoval v. Reno, 166 F.3d 225, 237-38 (3d Cir. 1999); see also DeSousa v. Reno, 190 F.3d 175, No. 99-1115, 1999 WL 643171, at *5 (3d Cir. Aug. 25, 1999). We have appellate jurisdiction under 28 U.S.C. S 1291, and review the dismissal of an application for habeas corpus de novo. Yang v. Maugans, 68 F.3d 1540, 1546 (3d Cir. 1995).


        Petitioner does not contend that the Attorney General lacks authority to remove him from the United States, but instead, disputes whether she may keep him in custody. The first issue before us is whether, after a final order of exclusion is issued, she has the statutory authority to detain aliens who have committed specific crimes. We conclude that the Attorney General does have such power under both the statute in force at the time of the petitioner's initial detention, and the version as amended in 1996.

        At the time petitioner was first detained, the Immigration and Naturalization Act required the Attorney General to "take into custody any alien convicted of an aggravated felony upon release of the alien" from incarceration, pending a determination that he was excludable. 8 U.S.C. S 1226(e)(1) (1994); see also 8 U.S.C. S 1182(d)(5)(A) (1994) (giving the Attorney General the right to return into custody a parolee who had been allowed into the country when, in her opinion, "the purposes of such parole shall .. . have been served"). Under that version of the Act, Congress required that an excluded alien be "immediately deported," unless the Attorney General concluded that, "in an individual case, . . . immediate deportation is not practicable or proper." 8 U.S.C. S 1227(a)(1) (1994).

        In cases where the country of origin would refuse or unduly delay the alien's return, the Attorney General could release the detainee from custody, but only where review established that he would not pose a danger to the safety of other persons or property. 8 U.S.C. SS 1226(e)(2), (3), 1253(g) (1994); see also Alvarez-Mendez v. Stock, 941 F.2d 956, 960-62 (9th Cir. 1991) (under section 1226(e), once alien is taken into custody, detention must continue even after a final order of exclusion is issued).

        Although the version of the Act applicable when petitioner was first detained does

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not expressly grant authority to detain excluded aliens, the overall structure of the statute's provisions makes it clear that Congress intended this result. In Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc), the Court of Appeals for the Ninth Circuit examined the interplay of the Immigration Act's various sections and stated that "it seems difficult not to conclude that the statutory scheme implicitly authorizes prolonged detention." Id. at 1446 (discussing 8 U.S.C. SS 1182(d)(5)(A), 1227(a)(1) (1994)). Nearly every Court of Appeals to reach the issue has agreed.2

        Even though the Immigration Act has never been a model of clarity, we agree with the courts that have construed its language and structure to permit the prolonged detention of excludable aggravated felons. To categorically "requir[e] that excludable aliens be released into American society when neither their countries of origin nor any third country will admit them," id. at 1448, will "ultimately result in our losing control over our borders." Jean v. Nelson, 727 F.2d 957, 975 (11th Cir. 1984) (en banc), aff'd , 472 U.S. 846 (1985); see also Guzman, 130 F.3d at 66 ("Congress intended to grant the Attorney General the authority to detain excludable aliens indefinitely . . . ."); Barrera- Echavarria, 44 F.3d at 1448 (in an area with "sensitive foreign policy implications," the Attorney General has the authority to detain excluded aliens).

        In 1996, after petitioner had been placed in detention, Congress made sweeping changes to the Immigration Act. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA").3 Under the IIRIRA, what was once implicit is now express -- the Immigration Act now specifically provides that the Attorney General shall detain an "inadmissible" alien for a 90-day period pending "removal" from the country,4 and

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may continue to detain him until deportation if he has been found guilty of designated crimes. 8 U.S.C. S 1231(a) (Supp. II 1996).

        Many provisions of the amended statute, however, do not apply to an alien "who is in exclusion . . . proceedings before [this subtitle's]...

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