43 F.Supp.2d 1130 (D.Or. 1999), CV 98-1581, Alwaday v. Beebe

Docket NºCV 98-1581-PA.
Citation43 F.Supp.2d 1130
Party NameYahya ALWADAY, Petitioner, v. David V. BEEBE, in his capacity as District Director, United States Immigration and Naturalization Service, Portland, Oregon or Any Person Having Custody of the Said Petitioner in Custody, District Director, Respondents.
Case DateJanuary 29, 1999
CourtUnited States District Courts, 9th Circuit, United States District Court (Oregon)

Page 1130

43 F.Supp.2d 1130 (D.Or. 1999)

Yahya ALWADAY, Petitioner,

v.

David V. BEEBE, in his capacity as District Director, United States Immigration and Naturalization Service, Portland, Oregon or Any Person Having Custody of the Said Petitioner in Custody, District Director, Respondents.

No. CV 98-1581-PA.

United States District Court, D. Oregon.

Jan. 29, 1999

Page 1131

Naveed D. Shomloo, Shomloo & Shomloo, L.L.C., Attorneys at Law, Portland, OR, for petitioner.

Kristine Olson, United States Attorney, Craig J. Casey, Assistant, U.S. Attorney, Portland, OR, Michelle E. Gorden, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for respondents.

OPINION

PANNER, District Judge.

Petitioner Yahya Alwaday (aka Al-Waday), a citizen of Yemen, brings this petition for writ of habeas corpus under 28 U.S.C. § 2241 against respondent David V. Beebe, District Director, U.S. Immigration and Naturalization Service (INS). 1 Petitioner claims that respondent is illegally detaining him without bond pending removal proceedings.

Petitioner moves for an order releasing him on personal recognizance or on conditional release supervised by this court's Pretrial Services. I grant the petition in part and order respondent to hold a hearing within 30 days from the date of this order to determine petitioner's eligibility for release on bond.

BACKGROUND

Petitioner was born in Yemen. He is thirty-six years old. 2 He entered the United States in April 1987, on a visa valid until October 1987.

In May 1990, petitioner was arrested in Alexandria, Virginia, for assaulting a woman in an apparent act of domestic violence. On June 11, 1990, petitioner pleaded guilty in a Virginia state court to assault and battery. He received a one-year suspended sentence and two years' probation.

On July 2, 1990, the INS arrested petitioner. The INS released petitioner the next day on a $2,500 cash bond.

In April 1991, an INS judge issued an in absentia order of deportation against petitioner. In July 1991, the INS issued a warrant of deportation for petitioner. In December 1991, the bond was forfeited.

In April 1994, petitioner married a United States citizen. Petitioner and his wife live in the Portland area. In 1997, petitioner applied for adjustment of status because of his marriage to a United States citizen.

On November 6, 1998, petitioner was arrested by INS agents based on the 1991 absentia order of deportation. The INS lodged additional charges of deportability against petitioner, alleging that petitioner's conviction was for an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii).

In December 1998, the immigration judge in Virginia who had issued the 1991 absentia order of deportation rescinded the order, finding that petitioner had not been given proper notice and that petitioner's absence was excused. The immigration judge changed the venue of the deportation proceedings from Arlington, Virginia, to Portland.

On December 16, 1998, an immigration judge in Portland, Judge Michael Bennett, ordered that petitioner be held without bond pending deportation proceedings because petitioner had an aggravated felony conviction. Petitioner appealed Judge Bennett's decision to the Board of Immigration Appeals (BIA). By letter dated January 6, 1999, however, petitioner withdrew his appeal.

Page 1132

DISCUSSION

Petitioner contends that detention without the possibility of bond violates his statutory and constitutional rights.

I. Jurisdiction

A. Habeas Jurisdiction

Respondent contends that this court has no jurisdiction to review an alien's challenge to detention without bond. Respondent cites § 236(e) of the Immigration and Nationality Act (INA), which provides,

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). Respondent also cites INA § 242(g):

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g).

Respondent concedes, however, that his argument is contrary to Ninth Circuit law. See Magana-Pizano v. INS, 152 F.3d 1213, 1220-21 (9th Cir.) (as applied, 8 U.S.C. § 1252(g) violates Suspension Clause, U.S. Const., art. I, § 9, cl. 2, which forbids Congress from completely foreclosing judicial review of executive detention), amended by 159 F.3d 1217 (9th Cir.), petitions for cert. filed, 67 U.S.L.W. 3364 (U.S. Nov. 18, 1998) & 67 U.S.L.W. 3410 (U.S. Dec. 21, 1998). This court has jurisdiction to grant habeas relief if petitioner is " 'in custody in violation of the Constitution or laws or treaties of the United States.' " Id. at 1222 (quoting 28 U.S.C. § 2241(c)(3)).

B. Exhaustion of Remedies

Respondent argues that this court lacks jurisdiction because petitioner filed an administrative appeal with the BIA while pursuing his habeas petition in this court. Petitioner has abandoned his appeal to the BIA, so the finality of the detention order is not an issue. See 8 C.F.R. § 236.1(d) (allowing, but not requiring, intra-agency appeals of INS custody determinations); Young v. Reno, 114 F.3d 879, 882 (9th Cir.1997) ("because the regulations do not explicitly require a petitioner to appeal to the BIA prior to seeking judicial review, such intra-agency review is optional").

Respondent has not cited any statute requiring that aliens exhaust administrative remedies before challenging detention in court. See Tam v. INS, 14 F.Supp.2d 1184, 1189 (E.D.Cal.1998) ("Congress has not specifically mandated exhaustion before judicial review of custody determinations."). In the absence of a statute,...

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36 practice notes
  • 374 F.Supp.2d 551 (E.D.Mich. 2005), 05-70826, Parlak v. Baker
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Michigan
    • May 20, 2005
    ...§ 236(c) when they were released from custody before this date. Velasquez v. Reno, 37 F.Supp.2d 663 (D.N.J.1999); Alwaday v. Beebe, 43 F.Supp.2d 1130 (D.Or.1999). However, the Court will accept for purposes of the instant petition that Congress intended for mandatory custody the circumstanc......
  • 50 F.Supp.2d 539 (E.D.Va. 1999), Civ. A. 99-662, Aguilar v. Lewis
    • United States
    • Federal Cases United States District Courts 4th Circuit Eastern District of Virginia
    • June 11, 1999
    ...236(c) of the INA retroactively to Petitioner, and therefore an appeal to the BIA would be futile for Petitioner. See Alwaday v. Beebe, 43 F.Supp.2d 1130, 1132 (D.Or.1999) (finding that exhaustion would be futile because the BIA had already determined that the Transition Period Custody Rule......
  • 266 F.3d 93 (2nd Cir. 2001), 00-2531, Kuhali v Reno
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • September 27, 2001
    ...point in litigation when it wishes to do so. E.g., Garcia- Guzman v. Reno, 65 F.Supp.2d 1077, 1083 (N.D. Cal. 1999); Alwaday v. Beebe, 43 F.Supp.2d 1130, 1132 (D. Or. Having failed to raise the issue of procedural default before the district court or us, the government has forfeited or waiv......
  • Thomas v. Hogan, 103108 PAMDC, 1:08-CV-0417
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • October 31, 2008
    ...date of the provision. See Alve-Curras v. Fasano, No. 98-CV-2295, 1999 WL 33454934 (S.D. Cal. Feb. 22, 1999); Alwaday v. Beebe , 43 F.Supp.2d 1130 (D. Or. 1999). "Both Alves-Curras and Alwaday held that based upon the plain language of the statute, as well as IIRIRA § 303(b)(2) which s......
  • Request a trial to view additional results
36 cases
  • 374 F.Supp.2d 551 (E.D.Mich. 2005), 05-70826, Parlak v. Baker
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Michigan
    • May 20, 2005
    ...§ 236(c) when they were released from custody before this date. Velasquez v. Reno, 37 F.Supp.2d 663 (D.N.J.1999); Alwaday v. Beebe, 43 F.Supp.2d 1130 (D.Or.1999). However, the Court will accept for purposes of the instant petition that Congress intended for mandatory custody the circumstanc......
  • 50 F.Supp.2d 539 (E.D.Va. 1999), Civ. A. 99-662, Aguilar v. Lewis
    • United States
    • Federal Cases United States District Courts 4th Circuit Eastern District of Virginia
    • June 11, 1999
    ...236(c) of the INA retroactively to Petitioner, and therefore an appeal to the BIA would be futile for Petitioner. See Alwaday v. Beebe, 43 F.Supp.2d 1130, 1132 (D.Or.1999) (finding that exhaustion would be futile because the BIA had already determined that the Transition Period Custody Rule......
  • 266 F.3d 93 (2nd Cir. 2001), 00-2531, Kuhali v Reno
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • September 27, 2001
    ...point in litigation when it wishes to do so. E.g., Garcia- Guzman v. Reno, 65 F.Supp.2d 1077, 1083 (N.D. Cal. 1999); Alwaday v. Beebe, 43 F.Supp.2d 1130, 1132 (D. Or. Having failed to raise the issue of procedural default before the district court or us, the government has forfeited or waiv......
  • Thomas v. Hogan, 103108 PAMDC, 1:08-CV-0417
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • October 31, 2008
    ...date of the provision. See Alve-Curras v. Fasano, No. 98-CV-2295, 1999 WL 33454934 (S.D. Cal. Feb. 22, 1999); Alwaday v. Beebe , 43 F.Supp.2d 1130 (D. Or. 1999). "Both Alves-Curras and Alwaday held that based upon the plain language of the statute, as well as IIRIRA § 303(b)(2) which s......
  • Request a trial to view additional results

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