Alli v. Decker

• Decision Date: 10 August 2009
• Docket Number: No. 4:09-CV-0698.,4:09-CV-0698.
• Citation: 644 F.Supp.2d 535
• Parties: Alexander ALLI and Elliot Grenade, Petitioners, v. Thomas DECKER, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

644 F.Supp.2d 535

Alexander ALLI and Elliot Grenade, Petitioners, v. Thomas DECKER, et al., Respondents.

No. 4:09-CV-0698.

United States District Court, M.D. Pennsylvania.

August 10, 2009.

COPYRIGHT MATERIAL OMITTED

Farrin R. Anello, Judy Rabinovitz, Michael Tan, American Civil Liberties Union Foundation, New York, NY, Stanley J. Ellenberg, Law Offices of Stanley J. Ellenberg, PC, Philadelphia, PA, Frederick Alcaro, Kathleen A. Mullen, Thomas B. Schmidt, III, Pepper Hamilton LLP, Valerie Burch, ACLU of Pennsylvania, Harrisburg, PA, Witold J. Walczak, American Civil Liberties Union of PA, Pittsburgh, PA, for Petitioners.

Dennis Pfannenschmidt, Stephen Cerutti, U.S. Attorney's Office, Harrisburg, PA, Geoffrey Forney, Gjon Juncaj, Theodore W. Atkinson, UD-DOJ, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondents.

MEMORANDUM AND ORDER

JOHN E. JONES III, District Judge.

This matter is before the Court in what the respondents correctly note is a rather unique procedural posture. Before the Court are the Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory Relief (Doc. 9) of petitioners Alexander Alli and Elliot Grenade as well as the petitioners' Motion for a Preliminary Injunction (Doc. 27) and Motion for Class Certification (Doc. 17). By this Memorandum and Order, the Court does not finally resolve the petitioners' claims, but sets forth its initial legal holdings and establishes a framework for additional proceedings.

I. BACKGROUND

The petitioners are lawful permanent residents charged by the Bureau of Immigration and Customs Enforcement with being deportable from the United States as a result of certain criminal convictions. In their combination habeas petition and civil complaint, the petitioners challenge their detention during the pendency of removal proceedings pursuant to the mandatory detention provisions of Section 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c). As of the date of the filing of their amended petition, Alli and Grenade had been detained for approximately 9 months and 20 months respectively.¹ The petitioners seek a declaration that the failure to provide them with a hearing at which the government must justify their continued detention violates the INA and the Due Process Clause of the Fifth Amendment. The petitioners also seek an order directing the government to conduct such hearings and have moved for a preliminary injunction directing the government to conduct their hearings within 14 days.

In addition to their individual claims, the petitioners propose to represent a class of all lawful permanent residents in Pennsylvania, or alternatively in this judicial district, who are or will be subject to detention for 6 months or more under § 1226(c) without an individualized hearing at which the government must justify detention. As classwide relief, the petitioners seek a declaration that the failure to provide all class members who are or will be detained under § 1226(c) for 6 months or more with individualized detention hearings violates the INA and due process.

II. DISCUSSION²

A. Petitioners' Individual Claims

The detention of an alien pending a decision on whether he is to be removed from the United States is governed by § 236 of the INA, codified at 8 U.S.C. § 1226. Under § 1226(a), the Attorney General (now the Secretary of Homeland Security)³ is granted discretion to detain the alien or release the alien on bond and with conditions. Under § 1226(c), however, the Attorney General "shall take into custody any alien who ... is deportable by reason of having committed" certain aggravated offenses. 8 U.S.C. § 1226(c)(1)(B) (emphasis added). Because of their prior offenses falling within the scope of the that section, the petitioners in this case have been mandatorily detained pursuant to § 1226(c).

In considering the petitioners' challenge to their detention, we must start from the Supreme Court's holding in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), that mandatory detention during removal proceedings under § 1226(c), without an individualized bond hearing, does not violate due process. In that case, the Court held that "Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings." Id. at 513, 123 S.Ct. 1708; see also id. at 526, 123 S.Ct. 1708 (noting the "longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings"). The Court found that the petitioner's six-month detention under § 1226(c) did not violate due process.

In doing so, the Court distinguished its prior decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), wherein the Court considered a due process challenge to detention of aliens under 8 U.S.C. § 1231, which governs detention following a final order of removal. Under § 1231(a)(6), when an alien who has been ordered removed is not in fact removed during the 90-day statutory "removal period," that alien "may be detained beyond the removal period" in the discretion of the Attorney General. In order to avoid "serious constitutional concerns" raised by the indefinite detention possible under the statute, the Zadvydas court construed § 1231 to authorize continued detention of an alien following the 90-day removal period for only such time as is reasonably necessary to secure the alien's removal. 533 U.S. at 699, 121 S.Ct. 2491. Based on the views of Congress, and for the sake of uniform administration in federal courts, the Zadvydas court held that an alien's detention for more than six months after the issuance of a final order of removal is presumptively unreasonable and that after this six-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing and demonstrate that detention remains reasonable. Id. at 701, 121 S.Ct. 2491.

In Demore, the court distinguished Zadvydas on two grounds. First, in Zadvydas, the aliens challenging their detention were ones for whom removal was no longer practically attainable, and, therefore, continued detention did not serve the purpose of § 1231, which is prevent aliens from fleeing prior to their removal. By contrast, the Court found that detention pursuant to § 1226(c) "necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed." Id. at 527-28, 123 S.Ct. 1708. Second, while the period of detention at issue in Zadvydas was "indefinite" and "potentially permanent," 533 U.S. at 690-691, 121 S.Ct. 2491, the Court found that the detention at issue in Demore was of a much shorter duration. 538 U.S. at 528, 123 S.Ct. 1708. The Demore court noted that "in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days," and that "[i]n the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter." Id. at 529, 123 S.Ct. 1708; see also id. at 530, 123 S.Ct. 1708 (stating "[i]n sum, the detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal").

In this case, the respondents stress the holding of Demore, that mandatory detention under § 1226(c) is constitutional, and that, in contrast to the indefinite and potentially permanent detention at issue in Zadvydas, detention under § 1226(c) has a definite end point at the conclusion of the removal proceedings. The petitioners concede that brief detention under § 1226(c) is constitutional, but maintain that "prolonged" detention, which they argue presumptively begins at six months, raises serious constitutional concerns. The petitioners argue that to avoid constitutional problems, § 1226(c) must be interpreted to permit mandatory detention only for a brief period of time—six months—and that detention after this is permitted only after a bond hearing is held under § 1226(a).

In this case, the Court concurs with the growing consensus within this district and, indeed it appears throughout the federal courts, that prolonged detention of aliens under § 1226(c) raises serious constitutional concerns. See, e.g., Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir.2005); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir.2003); Prince v. Mukasey, 593 F.Supp.2d 727, 734 (M.D.Pa.2008). Although mandatory detention under § 1226(c) serves the statutory purpose of guaranteeing an alien's presence at removal proceedings, prolonged detention contravenes the intent of Congress that such proceedings proceed expeditiously. Ly, 351 F.3d at 269; see also Patel v. Zemski, 275 F.3d 299, 304 (3d Cir.2001), overruled on other grounds by Demore, 538 U.S. at 516, 123 S.Ct. 1708 (noting "[t]he current immigration laws reflect part of a growing effort by Congress to expedite the removal of criminal aliens"). Moreover, although detention under § 1226(c) is not indefinite in that there will, at some point, be an end to removal proceedings, the holding of Demore that mandatory detention is constitutional cannot be divorced from the Supreme Court's observation that such detention is of a relatively short duration. 538 U.S. at 528-29, 123 S.Ct. 1708. The Demore court...