204 F.3d 1045 (10th Cir. 2000), 98-1333, Ho v Green

Docket Nº:98-1333, 99-1256, 99-1182.
Citation:204 F.3d 1045
Party Name:DUY DAC HO, Petitioner-Appellee, v. JOSEPH GREENE, District Director, Immigration and Naturalization Service, Respondent-Appellant. LOI TAN NGUYEN, Petitioner-Appellee, v. JOSEPH GREENE, District Director, Immigration and Naturalization Service, Respondent-Appellant. AMERICAN IMMIGRATION LAWYERS ASSOCIATION, NATIONAL IMMIGRATION PROJECT OF THE NATI
Case Date:February 29, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1045

204 F.3d 1045 (10th Cir. 2000)

DUY DAC HO, Petitioner-Appellee,

v.

JOSEPH GREENE, District Director, Immigration and Naturalization Service, Respondent-Appellant.

LOI TAN NGUYEN, Petitioner-Appellee,

v.

JOSEPH GREENE, District Director, Immigration and Naturalization Service, Respondent-Appellant.

AMERICAN IMMIGRATION LAWYERS ASSOCIATION, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYER'S GUILD, JUSTICE INFORMATION CENTER, INC., HUMAN RIGHTS WATCH, HUMAN RIGHTS ADVOCATES, WORLD ORGANIZATION AGAINST TORTURE USA, JESUIT REFUGEE SERVICE, INTERNATIONAL HUMAN RIGHTS LAW GROUP, AND THE EXTRADITION AND HUMAN RIGHTS COMMITTEE OF THE AMERICAN

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BRANCH OF THE INTERNATIONAL LAW ASSOCIATION, UNIVERSITY OF COLORADO LEGAL AID & DEFENDER PROGRAM, Amici Curiae.

Nos. 98-1333, 99-1256, 99-1182.

United States Court of Appeals, Tenth Circuit

February 29, 2000

Appeals from the United States District Court for the District of Colorado. D.C. Nos. 98-D-861 and 98-D-1342

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[Copyrighted Material Omitted]

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Emily Anne Radford, Senior Litigation Counsel, Office of Immigration Litigation, (Allen W. Hausman, Senior Litigation Counsel; David M. McConnell, Assistant Director; and H. Bradford Glassman, Trial Attorney, Office of Immigration Litigation, with her on the briefs), Department of Justice, Washington, D.C., for Respondent-Appellant.

Judy Rabinovitz, ACLU Immigrants' Rights Project, New York, New York, (Jim Salvator, Lafayette, Colorado; Wanyong Austin, ACLU Immigrants' Rights Project, New York, New York; Mark Silverstein, ACLU Foundation of Colorado, Denver, Colorado; Kathryn Palamountain, ACLU Immigrants' Rights Project, San Francisco, California, with her on the briefs), for Petitioners-Appellees.

Ken Stern, Stern & Elkind, Denver, Colorado; Christine C. Bartlett, Justice Information Center, Denver, Colorado; and Norman Aaronson, Legal Aid & Defender Program, University of Colorado, Boulder, Colorado, filed an Amici Curiae Brief for American Immigration Lawyers Association, National Lawyer's Guild, Justice Information Center, and University of Colorado Legal Aid & Defender Program.

Sheldon Friedman, Isaacson, Rosenbaum, Woods & Levy, P.C., Denver, Colorado; Paul L. Hoffman, Bostwick & Hoffman, LLP, Santa Monica, California; and William J. Aceves, California Western School of Law, San Diego, California, filed an Amici Curiae Brief for Human Rights Watch, Human Rights Advocates, World Organization Against Torture USA, Jesuit Refugee Service, International Human Rights Law Group, and The Extradition and Human Rights Committee of the American Branch of the International Law Association.

Before BRORBY, BRISCOE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Petitioners-Appellees, Duy Dac Ho ("Ho") and Loi Tan Nguyen ("Nguyen") (collectively "Petitioners") were each convicted of aggravated felonies and ordered removed from the United States. Upon release from state prison, each Petitioner was taken into custody by the Immigration and Naturalization Service ("INS"). Because their country of origin, Vietnam, would not accept their return, Petitioners were detained in an INS detention facility. Petitioners each filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In their habeas petitions, Petitioners did not contest their deportability. Rather, both argued that the Attorney

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General1 lacks statutory authority to detain them indefinitely pending execution of the final removal order and that their continued detention violates the Constitution of the United States. The district court granted both petitions2 and ordered Petitioners released from INS custody on bond. The INS appealed and the cases were consolidated. This appeal presents the question of whether the Attorney General has the statutory authority to indefinitely detain a removable alien. Because this court determines such detention to be statutorily authorized, we also address whether such detention violates any substantive or procedural due process rights afforded removable aliens by the Fifth Amendment. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

I. FACTUAL BACKGROUND

A. No. 98-1333

Petitioner-Appellee Ho is a citizen and national of Vietnam. Ho lawfully entered the United States as a refugee in 1985. Ho has never applied for and, consequently, never obtained lawful permanent resident status. In 1988, Ho was sentenced to thirty-three months' imprisonment for aggravated robbery, assault, and burglary. In 1992, he was sentenced to an additional seventy-eight months' imprisonment for a second aggravated robbery committed in 1991. On June 24, 1996, following an exclusion hearing, Ho was ordered excluded from the United States. Ho did not appeal the order of exclusion. Ho was released from the custody of the Minnesota Department of Corrections to the INS for deportation and has been in INS custody since June 1996. The INS formally requested travel documents for Ho from the Vietnamese government on July 11, 1996. The Vietnamese government has not issued the requested travel documents. On January 22, 1998, the INS denied Ho's request for immigration parole, stating there were no "urgent humanitarian reasons" justifying parole and that Ho had failed to demonstrate that he would not be a public danger, or that he would not flee.

On April 16, 1998, Ho filed a petition with the United States District Court for the District of Colorado seeking a writ of habeas corpus. In his petition, Ho alleged that his continued detention by the INS was not authorized by statute and violated his constitutional due process rights. The district court, relying on this court's opinion in Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981), granted the writ and ordered Ho released on bond. The INS appealed.

B. No. 99-1182

Petitioner-Appellee Nguyen is a native and citizen of Vietnam. Nguyen entered the United States as a refugee in 1981 and obtained lawful permanent resident status in 1984. On January 5, 1993, Nguyen was convicted of aggravated robbery and vehicular eluding and sentenced to a thirteen-year term of imprisonment. The INS initiated deportation proceedings against Nguyen on January 10, 1994, and he was ordered deported on January 8, 1996. Nguyen appealed this decision but his appeal was dismissed on January 10, 1997 and his motion for reconsideration was denied on July 7, 1997. Nguyen was released from incarceration by the state of Colorado and paroled into the custody of

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the INS for deportation on August 12, 1997. The INS formally requested travel documents for Nguyen from the Vietnamese government on October 2, 1997. The Vietnamese government has not issued the requested travel documents.

On at least two occasions, Nguyen has requested to be released from INS custody. The INS has denied each of Nguyen's requests for release. In December, 1998, the INS's Acting District Director for the Denver District denied Nguyen's most recent request for release, concluding that Nguyen failed to show, by clear and convincing evidence, that he does not pose a safety or flight risk if released.

On June 22, 1998, Nguyen filed a petition with the United States District Court for the District of Colorado seeking a writ of habeas corpus and alleging that his continued detention was not authorized by statute and violated his Fifth Amendment substantive and procedural due process rights. The district court, relying on this court's opinion in Rodriguez-Fernandez, granted the writ and ordered Nguyen released on bond. See id. The INS brought this appeal.

II. DISCUSSION

A. Jurisdiction

Although neither Petitioners nor the INS challenge the jurisdiction of either the district court or this court, this court must address this predicate question before proceeding to the merits of these appeals. See Arizonans for Official English v. Arizona, 520 U.S. 43, 73 (1997).

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See Pub. L. No. 104-208, 110 Stat. 3009, 3009-546 (1996). IIRIRA made comprehensive changes to the Immigration and Nationality Act (INA). As a result of the enactment of IIRIRA, no fewer than three versions of the INA may govern the jurisdictional question before this court. Generally, the permanent provisions of IIRIRA apply only to removal proceedings commenced after April 1, 1997, IIRIRA's effective date. See IIRIRA § 309(a), Pub. L. No. 104-208, 110 Stat. 3009, 3009-625. Exclusion proceedings against Ho were commenced prior to IIRIRA's April 1, 1997 general effective date. Deportation proceedings against Nguyen were also commenced prior to April 1, 1997. Arguably, therefore, the permanent provisions of IIRIRA do not govern judicial review of the § 2241 habeas petitions filed by Ho and Nguyen. At least one Circuit Court of Appeals, however, has concluded that the effective-date provisions of IIRIRA are ambiguous and has held that the permanent provisions of IIRIRA govern judicial review of habeas corpus petitions filed by aliens against whom removal proceedings had commenced prior to April 1, 1997 but who had also received final removal orders before that date. See Zadvydas v. Underdown, 185 F.3d 279, 287 & 286 n.7 (5th Cir.1999). Because both Ho and Nguyen received final removal orders before April 1, 1997,3 the permanent provisions of IIRIRA thus may apply.

IIRIRA also contains transitional rules applicable to removal proceedings commenced before April 1, 1997, in which deportation orders became administratively final after October 30, 1996. See IIRIRA § 309(c)(4), Pub. L. No. 104-208, 110 Stat. 3009, 3009-626. Because Ho's removal order became final before October 30, 1996...

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