Baidas v. Jennings, Civ.A. 00-CV-72003-DT.

Decision Date06 December 1999
Docket NumberNo. Civ.A. 00-CV-72003-DT.,Civ.A. 00-CV-72003-DT.
Citation123 F.Supp.2d 1052
PartiesAbed Mosa BAIDAS, Petitioner, v. Carol JENNINGS, and Immigration and Naturalization Service, an agency of the United States Government, Respondent.
CourtU.S. District Court — Eastern District of Michigan

Abed Mosa Baidas, Monroe, MI, plaintiff pro se.

Judith Levy, Assistant United States Attorney, Detroit, MI, for defendant.

OPINION AND ORDER DENYING MOTION TO DISMISS AND GRANTING PETITION FOR WRIT OF HABEAS CORPUS

COHN, District Judge.

I. Introduction

Petitioner, Abed Mosa Baidas ("petitioner"), presently confined at the Monroe County Jail in Monroe, Michigan, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 alleging that he is confined in violation of his constitutional rights. In his application, petitioner challenges his detention pursuant to the Immigration and Nationalization Act ("INA") § 236(c), 8 U.S.C. § 1226(c) which mandates his detention without bond. Petitioner contends that 1) § 1226(c) does not apply to him because removal proceedings were initiated against him before the effective date of the statute, October 9, 1998 and 2) § 1226(c) violates the due process and equal protection clauses of the Fifth Amendment.1 Petitioner seeks an order of this Court ordering his immediate release on personal recognizance pending review of his challenge to his current removal status.

Respondent contends that 1) this Court lacks jurisdiction to review petitioner's detention on the merits, except to determine his constitutional claims, 2) the petition should be dismissed because petitioner has failed to exhaust Bureau of Immigration ("BIA") administrative remedies, 3) mandatory detention of criminal aliens pursuant to INA § 236(c), 8 U.S.C. § 1236(c)(1) is constitutional, and 4) petitioner is not entitled to release from custody even if mandatory detention is unconstitutional, because he is a career criminal who would likely engage in serious and dangerous criminal activity if released.

II. Background

Petitioner is a Jordanian national who was lawfully admitted to the United States on January 4, 1979, as a non-immigrant student.2 He became a lawful permanent resident on June 7, 1982. According to petitioner, he is a construction management engineer, he has two United States citizen children and is responsible for their welfare and education, and he has substantial business and community ties in Michigan. On February 10, 1998, the Immigration and Naturalization Service ("INS") issued a Notice to Appear, alleging that petitioner was subject to removal from the United States pursuant to INA § 237(a)(2)(A)(ii) and 8 U.S.C. § 1227(a)(2)(A)(ii), because he had been convicted of two or more crimes of moral turpitude.3 Petitioner was released from INS custody on a $3,000 bond on February 24, 1998.

On August 31, 1998, while at large on bond from INS detention, petitioner was convicted of three new crimes.4 Petitioner was sentenced on October 31, 1998, to a minimum two year prison term for these crimes and placed in the custody of the Michigan Department of Corrections ("MDOC").

The INS scheduled an initial removal hearing on October 28, 1998, based on the February 10, 1998, notice to appear. Petitioner's attorney appeared for him, as he was in state custody at the time. On January 27, 1999, the INS lodged additional charges to support its initial charging document.

On January 11, 2000, when Petitioner was released from MDOC incarceration, he was taken into INS custody pursuant to the mandatory detention provisions of INA § 236(c)(1)(B), 8 U.S.C. § 1226(c)(1)(B). On January 20, 2000, an immigration judge held a hearing and sustained the charges that petitioner was a removable alien because he had committed two or more crimes of moral turpitude. The immigration judge did not sustain a charge that petitioner was an aggravated felon.

On March 28, 2000, the immigration court held a bond hearing and found that petitioner was subject to mandatory detention pursuant to INA § 236(c). Petitioner appealed his detention to the Bureau of Immigration Appeals ("BIA"), but withdrew his appeal before a decision was rendered. On May 23, 2000, the BIA returned petitioner's record to the immigration court without hearing or deciding his appeal.

Petitioner submitted a written application for relief from removal to the immigration judge on May 5, 2000. The judge set petitioner's case for trial on June 22, 2000. The trial began on June 22, 2000, but was not completed in its allotted time. Consequently, the case was continued until July 27, 2000. The parties have not informed this Court whether any subsequent immigration proceedings have transpired or are presently scheduled. Thus, it does not appear that a final order of removal has been entered. Petitioner remains in INS custody pursuant to the mandatory detention statute.

III. Jurisdiction

Respondent contends that this Court lacks jurisdiction to consider any of petitioners' claims except his challenge the constitutionality of mandatory custody language pursuant to § 236(c)(1). Respondent cites Parra v. Perryman, 172 F.3d 954, 957 (7th Cir.1999), which held that 8 U.S.C. § 1226(e) precludes review of decisions to apply the provision and challenges to decisions to grant or deny bond, but does not preclude constitutional challenges to the provision itself. In addition to challenging the statute's constitutionality, petitioner asserts that the statute does not apply to him because removal proceedings were initiated before the statute's effective date and that he is not a flight risk or a threat to the community's safety.

8 U.S.C. § 1226(e) provides that:

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 determination or release of any alien or the grant, revocation, or denial of bond or parole.

Petitioner argues that he is being detained pursuant to § 236(c)(1)'s mandatory provisions, as opposed to any of the discretionary provisions contained in § 236, and therefore, judicial review is not prohibited by § 236(e). These contending arguments boil down to whether to interpret § 236(e), 8 U.S.C. § 1226(e), as a narrow jurisdictional restriction or whether to interpret it as a more general jurisdictional restriction.

In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), the Supreme Court recently interpreted a similar jurisdictional stripping provision of the INA, 8 U.S.C. § 1252(g). That Section provides:

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.

Rather than holding that the provision was a general review-preclusion law, the Supreme Court interpreted the section narrowly, concluding that it covered only the three listed situations: decisions to commence proceedings, adjudicate cases, or execute removal orders. See American-Arab, 525 U.S. at 486, 119 S.Ct. at 945. Although the provision in American-Arab is not identical to the provision in this case, it is instructive in that it suggests that the Supreme Court would also interpret the jurisdictional language of § 236(e) narrowly.

Additionally, district courts that have interpreted § 236(e) have concluded that it does not bar district courts from retaining jurisdiction over petitioners of habeas corpus relief. In Velasquez v. Reno, for example, the court reasoned that absent a clear and express statement that habeas jurisdiction has been modified, which § 236(e) did not provide, it would be improper to find that its 28 U.S.C. § 2241 statutory grant of jurisdiction had been repealed. 37 F.Supp.2d 663, 667-69 (D.N.J.1999). Moreover, an Oregon district court also recently determined that despite the jurisdictional limiting language in § 236(e), the court still retained jurisdiction to evaluate the petitioner's habeas corpus petition on the merits. See Alwaday v. Beebe, 43 F.Supp.2d 1130, 1132 (D.Or.1999); see also Parra v. Perryman, 172 F.3d at 957 (finding jurisdiction when the petitioner contended that § 236(c) violated the Due Process Clause of the Fifth Amendment).

With these cases in mind, the Court now turns to the plain language of § 236 in determining whether the jurisdictional stripping language in § 236(e) applies only to discretionary decisions of the Attorney General. See American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) (stating that in cases of statutory construction, courts must consider the language employed by Congress, and absent any clearly expressed legislative intention to the contrary, the language must be regarded as conclusory). Such would be the case if some of the language in § 236 speaks to "discretionary" decisions while other phrases refer to "mandatory" requirements.

After reviewing § 236 as a whole, it is clear that the section differentiates between what the Attorney General is required to do, and what the Attorney General may opt to do. The language in some subsections provides that the Attorney General "may" take action, whereas the language in other subsections provides that the Attorney General "shall" take certain action. Compare 8 U.S.C. §§ 1226(a), (b), and (c)(2) with 8 U.S.C. §§ 1226(c)(1) and (d). In light of these differences, it makes sense that when Congress provided in § 236(e) that "[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review" it meant just that and nothing more.

Noting the current trend of other district courts that have ruled on...

To continue reading

Request your trial
4 cases
  • Hall v. I.N.S.
    • United States
    • U.S. District Court — District of Rhode Island
    • 25 March 2003
    ...(right characterized as "freedom from restraint without a detention or bond hearing during removal proceedings"); Baidas v. Jennings, 123 F.Supp.2d 1052, 1058 (E.D.Mich. 1999) (right characterized generally as "right to 13. On January 15, 2003, the United States Supreme Court heard argument......
  • Yanez v. Holder
    • United States
    • U.S. District Court — Northern District of Illinois
    • 5 July 2001
    ...v. INS, 993 F.2d 142, 144 (7th Cir.1993); Welch v. Reno, 101 F.Supp.2d 347, 351-52 (D.Md.2000) (Welch); Baidas v. Jennings, 123 F.Supp .2d 1052, 1057 (E.D.Mich.1999) (Baidas). Accordingly, petitioners are not required to exhaust the alleged available administrative remedies, and assertion o......
  • Al-Sadoon v. Lynch
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 17 February 2022
    ...(E.D. Mich. 2021) ; Danesh v. Jenifer , No. 00-CV-74409-DT, 2001 WL 558233, at *8 (E.D. Mich. Mar. 27, 2001) ; Baidas v. Jennings , 123 F. Supp. 2d 1052, 1061 (E.D. Mich. 1999) ; see also Garcia Diaz v. Acuff , 507 F. Supp. 3d 991, 995 (S.D. Ill. 2020), appeal dismissed sub nom. Diaz v. Acu......
  • Cardoso v. Reno, 3:00CV2163(JBA).
    • United States
    • U.S. District Court — District of Connecticut
    • 22 January 2001
    ...individualized bail hearings that carefully assess the petitioner's risk of flight and criminal recidivism. See Baidas v. Jennings, 123 F.Supp.2d 1052, 1061 (E.D.Mich.1999); see also Welch, 101 F.Supp.2d at The government offers no justification for requiring the blanket rule over individua......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT