Abreu v. US, Civ. A. No. 92-0273 P to 92-0275 P.
| Decision Date | 04 June 1992 |
| Docket Number | Civ. A. No. 92-0273 P to 92-0275 P. |
| Citation | 796 F. Supp. 50 |
| Parties | Ramon A. ABREU v. UNITED STATES of America. Maria Orfilia FERNANDEZ v. UNITED STATES of America. Claudia Luisa BELLO-RODRIGUEZ v. UNITED STATES of America. |
| Court | U.S. District Court — District of Rhode Island |
Ramon A. Abreu, pro se.
Edwin J. Gale, U.S. Atty.'s Office, Providence, R.I., for defendants in Nos. 92-0273 P & 92-0275 P.
Scott A. Lutes, Providence, R.I., for plaintiff in No. 92-0274 P.
Zechariah Chafee, U.S. Atty.'s Office, Providence, R.I., for defendant in No. 92-0274 P.
Claudia Luisa Bello-Rodriguez, pro se.
In three related cases, incarcerated aliens petitioned this Court for deportation hearings. The Court orders the Immigration and Naturalization Service ("INS") to carry out the mandate of 8 U.S.C. § 1252(i) and begin the deportation process as soon as possible for these plaintiffs.
Mr. Ramon Abreu is a citizen of the Dominican Republic. On July 5, 1990, he was convicted on several criminal counts involving cocaine possession and distribution and possession of a sawed-off shotgun. At the time of conviction, he resided in Woonsocket, Rhode Island. This Court sentenced Abreu to twenty-three years imprisonment and nine years supervised release. The Court also ordered deportation of the defendant in conformity with 18 U.S.C. § 3583(d)(3); INS has filed a deportation detainer against Abreu. He is serving his sentence in Fairton, New Jersey.
Ms. Maria Fernandez is a citizen of Colombia. She lived in Providence, Rhode Island until her conviction on cocaine charges on December 7, 1990. This Court sentenced her to five years imprisonment with five years supervised release. The Court also ordered her deported at the earliest possible time under 18 U.S.C. § 3583(d)(3). INS filed a deportation detainer against her on July 2, 1990. Fernandez is serving her sentence in Lexington, Kentucky.
Ms. Claudia Bello-Rodriguez is a citizen of the Dominican Republic, but she had been living in Providence, Rhode Island as a legal alien. On September 30, 1988, she was convicted on heroin charges. This Court sentenced her to nine years imprisonment with four years of supervised release; the Court additionally ordered that she be deported at the earliest possible date after her release from prison. She serves her sentence in Lexington, Kentucky.
All three plaintiff-inmates filed their motions pro se. Fernandez and Bello-Rodriguez labeled theirs as Motions to Issue Mandamus; Abreu wrote a letter to the INS and the Court requesting a prompt deportation hearing. The Court treated the copy of the letter as a mandamus motion. The Court construes pro se pleadings liberally. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980). The pleadings and motions of a pro se plaintiff are not held to the same strict standard as papers prepared by members of the bar. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir.1980). "Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972).
Section 701 of the Immigration Reform and Control Act of 1986 ("the Act") provides:
In the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General through the Immigration and Naturalization Service shall begin any deportation proceeding as expeditiously as possible after the date of conviction.
8 U.S.C. § 1252(i) (1988). Representative McKay introduced this section as a floor amendment with this explanation:
132 Cong.Rec. H9794 (October 9, 1986).
In Soler v. Scott, 942 F.2d 597 (9th Cir. 1991), the Ninth Circuit gave this section of the Act and this very issue a complete review.1
Congress enacted Section 701 to accomplish a single objective: to require the INS to abandon its practice of postponing prisoner deportation hearings until after the expiration of a prisoner's sentence. Rather than deporting aliens promptly upon the expiration of their prison sentence, the INS waited until a prisoner completed his or her sentence before even scheduling a hearing to determine whether the prisoner would be deported.
Soler v. Scott, 942 F.2d at 600.
The three cases before this Court are not as clearly pled as the Soler case. However, the brevity of the pleadings does not deny the plaintiffs relief to which they are entitled. Although not explicitly stated, all three motions are based on the INS policy of waiting beyond the expiration of the prison term before initiating deportation proceedings. Not one of the government's three response briefs refutes the charge that it is INS policy to postpone commencement of deportation proceedings until after the incarceration period has elapsed.
The United States produced several responses to the three motions, each of which has little value.2 First, the government argues that the Court should dismiss the motions for inappropriate venue under 28 U.S.C. § 1391(e). This is patently incorrect. Under the venue statute, a prisoner does not change residence to prison simply because she is incarcerated there. See Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir.1972); Holmes v. United States Bd. of Parole, 541 F.2d 1243, 1248-49 (7th Cir. 1976) (); Brimer v. Levi, 555 F.2d 656, 657-58 (8th Cir.1977) (). All three plaintiffs resided in Rhode Island prior to their involvement with the criminal justice system; venue is proper in this district.
Second, the government contends the Court should not intervene in Abreu's case while an appeal to the First Circuit is pending. The First Circuit affirmed the district court opinion on January 3, 1992; there is no longer any reason to avoid his motion.
Third, the government notes that there has been no violation of the Court's sentencing order of deportation under 18 U.S.C. § 3583(d)(3). As will be discussed in detail in the next section, these motions set forth a claim for mandamus, not for a perceived violation of the sentences.
Finally, the government contends that Fernandez and Bello-Rodriguez seek deportation, not merely a deportation hearing, and, because of this, the Court should dismiss their motions out of hand.
This final contention deserves some consideration. Plaintiffs Fernandez and Bello-Rodriguez ask to be deported "as soon as possible." Unquestionably, they would like to be deported prior to the completion of their respective sentences. This the Court cannot and would not order. See 8 U.S.C. § 1252(h). However, in order to be deported "as soon as possible," (i.e. after completing their sentences), the INS must hold deportation hearings sometime between conviction and the date of release. If, as alleged, it is INS policy to stall these proceedings until after the date of release, the Court has no qualms interpreting these motions as mandamus requests for deportation hearings.
There can be no doubt as to the mandatory language in the statute. "The Attorney General through the INS shall begin any deportation proceedings as expeditiously as possible after the date of the conviction." 8 U.S.C. § 1252(i) (emphasis added). Mandatory language indicates a congressional limitation on agency discretion. See United States v. Chavez, 627 F.2d 953, 954-44 (9th Cir.1980), cert. denied, 450 U.S. 924, 101 S.Ct. 1376, 67 L.Ed.2d 353 (1981); cf. National Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d 875, 885 (1st Cir.1973) (). The language "after the date of conviction" clearly signals that this date — not the date of release — is the focus of the section. See Soler, 942 F.2d at 601.
The phrase "as soon as possible" gives discretion to the INS in scheduling deportation proceedings. However, this discretion cannot be so sweeping as to effectively ignore the "date of conviction" language. INS' apparent interpretation of Section 701 is entitled to no deference. Courts "must reject administrative constructions which are contrary to clear congressional intent." Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2782 n. 9, 81 L.Ed.2d 694 (1984). "Congress plainly did not intend to adopt the very policy it was forbidding." Soler, 942 F.2d at 601.
The Court concludes, as did the Ninth Circuit in Soler, that the plaintiffs' motions state a cause of action under the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Mandamus is the appropriate method of compelling the INS to schedule deportation hearings consistent with Section 701 of the Act, 8 U.S.C. § 1252(i).
Congress passed the Mandamus and Venue Act, 28 U.S.C. § 1361, in 1962. The Act provides:
The district courts shall have...
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