Avramenkov v. I.N.S., 3:00CV779 AHN.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation99 F.Supp.2d 210
Decision Date18 May 2000
Docket NumberNo. 3:00CV779 AHN.,3:00CV779 AHN.
99 F.Supp.2d 210
No. 3:00CV779 AHN.
United States District Court, D. Connecticut.
May 18, 2000.

Page 211

James McKeon, New Haven, CT, for plaintiff.

James K. Filan, Office of U.S. Attorney, New Haven, CT, for defendant.


NEVAS, District Judge.

The petitioner, Eduard Avramenkov ("Petitioner"), brings this complaint for declaratory relief alleging violations of the Fifth, Eighth and Fourteenth Amendments. The Petitioner requests the court to issue a writ of habeas corpus ordering his immediate release from the mandatory and indefinite detention by the Immigration and Naturalization Service ("Respondents"). He also seeks an injunction preventing the Respondents from transferring him from Connecticut to Louisiana.


On April 24, 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA") (effective date April 24, 1996). Later that year, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, 110 Stat. 3009 (1996) ("IIRIRA") (transitional rules effective date October 30, 1996 and permanent rules effective date April 1, 1997). As discussed below, these acts made significant changes in the Immigration and Naturalization Act, 8 U.S.C. §§ 1101-1537 ("INA"), which affect, inter alia, (1) the jurisdiction of federal courts to review immigration decisions and (2) the relief available to aliens involved in deportation proceedings.


The Petitioner, a native and citizen of the Ukraine, was admitted to the United States as a lawful permanent resident ("LPR") in 1995. Subsequently, he was convicted of second degree robbery on October 17, 1997, for criminal conduct that occurred on October 31, 1996. As a consequence, in November, 1999, the INS issued a notice to appear to the Petitioner. Thereafter, the Petitioner's request for bond was denied pursuant to § 236(c) of

Page 212

the INA, codified as 8 U.S.C. § 1226(c), which requires the INS to detain aliens who are convicted of an aggravated felony. He filed the current petition for a writ of habeas corpus on May 1, 2000.


The INA provides that any alien who has been convicted of one of several various offenses, including an aggravated felony or a controlled substance violation, is subject to deportation. See 8 U.S.C. §§ 1227(a)(2)(A)-(E) (West 1999). Prior to the 1996 amendments to the INA, an alien who faced deportation due to a criminal conviction could request discretionary relief from deportation pursuant to the Immigration and Naturalization Act, INA § 212(c), as amended by AEDPA. See 8 U.S.C.A. § 1182(c) (West 1995) (repealed). If the request was denied, an alien could seek review in the courts of appeals, see 8 U.S.C. § 1105(a) (West 1995) (repealed), or petition for a writ of habeas corpus pursuant to either the INA, see 8 U.S.C. § 1105a(a)(10) (West 1995) (repealed), or the general habeas statute, see 28 U.S.C. § 2241 (1999).

With the enactment of the AEDPA in April, 1996, discretionary relief from deportation was eliminated for persons who committed certain enumerated criminal offenses, including aggravated felonies, and crimes involving "moral turpitude" or controlled substances. See AEDPA § 440(d). When Congress passed the IIRIRA in September, 1996, § 212(c) discretionary relief from deportation was totally eliminated. In its place, Congress provided a new type of relief, which is designated as "cancellation of removal." See IIRIRA § 304(b); see also 8 U.S.C. § 1229(b).1 Cancellation of removal relief is not available to any alien who has been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3).

In addition, after these amendments, § 236(c) of the INA requires mandatory detention of certain aliens upon their release from incarceration. In pertinent part, the statute provides:

(c) Detention of Criminal Aliens.

(1) Custody. The Attorney General shall take into custody any alien who—

(b) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(iii) of this title when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

8 U.S.C. S 1226(c)(1)(B). The statute provides only limited circumstances when an alien subject to mandatory detention may be released.2 Because the Petitioner does not fall within the limited release provision of section 1226(c)(2), he is being detained without bond pursuant to § 236(c).

In this action, the Petitioner seeks an injunction preventing the Respondents

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from transferring him to Oakdale, Louisiana. He also submits that the court must grant the writ of habeas corpus because the mandatory detention provisions violate the Fifth, Eighth and Fourteenth Amendments.

I. Injunction To Prevent Transfer

The Respondents assert that the court lacks jurisdiction to prevent the INS from transferring the Petitioner to a federal detention facility in Oakdale, Louisiana. The court agrees.

Congress has squarely placed the responsibility of determining where aliens are to be detained within the sound discretion of the Attorney General. See 8 U.S.C. § 1231(g)(1). Specifically, the Attorney General is mandated to "arrange for appropriate places of detention for aliens detained pending removal." Id. The Attorney General's discretionary power to transfer aliens from one locale to another, as she deems appropriate, arises from this statutory language. See Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir.1999); Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir.1985) (interpreting former statute now codified as § 1231(g)); Sasso v. Milhollan, 735 F.Supp. 1045, 1048 (S.D.Fla. 1990) (accord); Ledesma-Valdes v. Sava, 604 F.Supp. 675 (S.D.N.Y.1985) (same).

Specifically, 8 U.S.C. § 1252(a)(2)(B)(ii) provides that no court has jurisdiction to review any decision or action the Attorney General makes "under this subchapter" except for "the granting of relief under section 1158(a)."3 The subchapter referred to is subchapter II of Chapter 12 of Title 8, which covers §§ 1151-1378, including § 1231. Thus, by enacting AEDPA and IIRIRA, Congress intended to insulate discretionary decisions of the Attorney General from judicial review. The same conclusion applies to the court's review of the Attorney General's discretionary decisions under the habeas statute, 28 U.S.C. § 2241.

The Second Circuit in Henderson v. INS, 157 F.3d 106 (2d Cir.1998), found that Congress intended IIRIRA to make "the law now ... much like it was prior to enactment of the INA," when deportation orders were "nonreviewable to the fullest extent possible under the Constitution." Id. at 119. On this view, if the Constitution has historically required habeas review of discretionary decisions by executive agencies, the court retains jurisdiction to review such claims under § 2241 now.4 If, however, review of discretionary decisions has not historically been guaranteed, Congress can, and did, with the passage of AEDPA and IIRIRA, remove such claims from review under § 2241.

It is well-established that the Constitution has not historically authorized judicial review of merely discretionary decisions made by executive agencies. See Goncalves v. Reno, 144 F.3d 110, 125 (1st Cir.1998) (explaining differences between decisions by the Attorney General that are interpretive which are subject to review and those that are discretionary which are not); Yang v. INS, 109 F.3d 1185, 1195 (7th Cir.1997) (collecting cases). As such, while federal courts retain the power to review constitutional challenges to the Attorney General's "interpretation" of the immigration laws, it does not include challenges to the discretionary decisions of the Attorney General. See Henderson, 157 F.3d at 120 nn. 10-12. Consequently, the

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court has no jurisdiction to review the Attorney General's decision to transfer an alien from one locale to another to commence removal proceedings. See Chavez v. INS, 55 F.Supp.2d 555, 557 (W.D.La. 1999) (explaining that discretionary decisions made by the Attorney General are nonreviewable under § 1252(a)(2)(B)(ii)).

Moreover, although 8 U.S.C. § 1252 is entitled "Judicial review of orders of removal," it is not limited to final orders of deportation. See Van Dinh v. Reno, 197 F.3d 427, 431-32 (10th Cir.1999). Specifically, the Tenth Circuit held that, because § 1252 was both complicated and prolific, it addresses a multitude of jurisdictional issues, including ones that are collateral to the review of a final order of deportation. See Brotherhood of R.R. v. Baltimore & O.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) (explaining that the heading of a statute cannot limit the plain meaning of its text). Accordingly, § 1252 is not limited in application only to final orders of removal.

In addition, even if the court had jurisdiction to prevent the Attorney General from transferring the Petitioner to Louisiana, he has failed to show that such a transfer would violate his rights.

Notably, no decisions have authorized injunctive relief barring the Attorney General from exercising her discretion to determine the place of detention of aliens in the absence of proof of actual interference with an existing attorney-client relationship or a showing that an alien's constitutional rights have been interfered with. See Gandarillas-Zambrana v. Bd. of Immigration App., 44 F.3d 1251, 1256 (4th Cir.1995); Committee of Central Am. Refugees v. INS, 795 F.2d 1434, 1437-38 (9th Cir.1986); Dai v. Caplinger, 1995 WL 241861 (E.D.La. Apr.25, 1995). In the instant action, the Petitioner has not met his burden of showing either.

It is well-established that "a transfer, standing alone, does not constitute a...

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