Caballero v. Caplinger

• Decision Date: 06 February 1996
• Docket Number: Civil A. No. 95-3129.
• Citation: 914 F. Supp. 1374
• Parties: Rolando CABALLERO v. John B.Z. CAPLINGER, Usins District Director.
• Court: U.S. District Court — Eastern District of Louisiana

914 F. Supp. 1374

Rolando CABALLERO v. John B.Z. CAPLINGER, Usins District Director.

Civil A. No. 95-3129.

United States District Court, E.D. Louisiana.

February 6, 1996.

Thomas Adams, New Orleans, LA, for plaintiff.

Matilda A. Baker, Ins, New Orleans, LA, Nancy A. Nurigessen, Asst. U.S. Atty., New Orleans, LA, for defendant.

ORDER AND REASONS

BERRIGAN, District Judge.

Rolando Caballero has petitioned the court for a writ of habeas corpus and a declaratory judgment concerning the constitutionality of his confinement. His request is GRANTED as set forth below.

I. BACKGROUND

Rolando Caballero is a Cuban citizen who illegally entered the United States in 1984. Seven years later, Caballero was convicted of federal cocaine distribution charges. The trial court sentenced him to a term of 120 months imprisonment, which was subsequently reduced to time served (25 months) on motion of the United States. Caballero completed his sentence in October 1993, at which time he was transferred to the custody of the Immigration and Naturalization Service (INS).

The INS commenced deportation proceedings against Caballero based on his illegal entry into the country, his conviction of a drug offense and the fact that the conviction was for an aggravated felony. 8 U.S.C. §§ 1251(a)(1)(B), 1251(a)(2)(B)(i), 1251(a)(2)(A)(iii). In November 1993, an Immigration Judge ordered that Caballero be deported to Cuba. The deportation order has since become final.

The INS has been unable to deport Caballero because Cuba refuses to accept him. Caballero has remained in INS custody since October 1993. The INS is detaining him pursuant to 8 U.S.C. § 1252(a)(2)(A), which states:

The Attorney General shall take into custody any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense).... The Attorney General shall not release such felon from custody.

The statute contains a bail provision for lawfully admitted aliens involved in deportation proceedings who can demonstrate that they are not a threat to the community and are likely to appear for any scheduled hearings.¹ The bail provision does not apply to aliens who entered the country unlawfully.² Caballero has filed for habeas corpus and declaratory relief, alleging that his indefinite confinement under the statute violates his rights to substantive due process, procedural due process and equal protection, as well as his Eighth Amendment protection against excessive bail.

II. DISCUSSION

The starting point for judicial review of immigration legislation is the Supreme Court's repeated admonition that:

`Over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens ... In the exercise of its broad power over immigration and naturalization, `Congress regularly makes rules that would be unacceptable if applied to citizens.'

Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (citations omitted). Nonetheless, aliens, both legal and illegal, are entitled to the constitutional protections of due process, equal protection and reasonable bail. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); See Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952).

The previous version of § 1252 mandated the detention of all aliens convicted of aggravated felonies pending deportation, regardless of whether they legally entered the country. The majority of district courts examining the statute concluded that it was unconstitutional. Fernandez-Santander v. Thornburgh, 751 F.Supp. 1007 (D.Me.1990), vacated and remanded without opinion, 930 F.2d 906 (1st Cir.1991); Kellman v. District Director, U.S. I.N.S., 750 F.Supp. 625 (S.D.N.Y.1990); Probert v. U.S. I.N.S., 750 F.Supp. 252 (E.D.Mich.1990), aff'd., 954 F.2d 1253 (6th Cir.1992); Paxton v. U.S. I.N.S., 745 F.Supp. 1261 (E.D.Mich.1990); Agunobi v. Thornburgh, 745 F.Supp. 533 (N.D.Ill. 1990); Leader v. Blackman, 744 F.Supp. 500 (S.D.N.Y.1990); contra Davis v. Weiss, 749 F.Supp. 47 (D.Conn.1990); Morrobel v. Thornburgh, 744 F.Supp. 725 (E.D.Va.1990). The courts found varying constitutional violations, including substantive due process, procedural due process and excessive bail. The successful challenges to the statute involved legally resident aliens who were being detained during the pendency of their deportation proceedings.

In 1990, Congress amended § 1252 to include a bail provision for lawfully admitted aliens. The matter currently before the court is apparently one of first impression, namely a constitutional challenge by an alien who entered the country illegally and who has been detained under the statute without benefit of a bond hearing.³

A. Due Process Challenge

Though rulings on the previous version of § 1252 are not directly on point, their analysis is applicable. The rulings generally begin with a discussion of the appropriate level of judicial scrutiny. Most of the courts which found the statute unconstitutional rejected the use of the deferential standard set forth in Fiallo, supra. Instead, the courts applied the due process analysis used by the Supreme Court in U.S. v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), in which the court rejected a constitutional challenge to the Bail Reform Act of 1984. E.g., Kellman, 750 F.Supp. at 627.

The Bail Reform Act authorized "sweeping changes" in the government's ability to detain arrestees prior to trial. Salerno, 481 U.S. at 742, 107 S.Ct. at 2098. In considering the Act's constitutionality, the court explained that a deprivation of life, liberty or property violates the right to substantive due process if the government's conduct "shocks the conscience" or "interferes with rights `implicit in the concept of ordered liberty.'" 481 U.S. at 746, 107 S.Ct. at 2101 (citations omitted). The court's first step was to determine whether the deprivation of a person's liberty absent a criminal conviction was impermissible pretrial punishment or legitimate, non-punitive regulation. Though the regulatory-punitive distinction is conclusory to a certain extent, a legitimate regulatory goal is generally present where a statute appears to be a "potential solution to a pressing societal problem." Id. at 747, 107 S.Ct. at 2101. If a court determines that the deprivation of liberty is for regulatory purposes, the court must then decide whether the regulatory means chosen by Congress are excessive in relation to the regulatory goal Congress sought to achieve. If a government action meets substantive due process standards, it can still be rejected as violative of procedural due process if it is not implemented in a fair manner. Id. at 746, 107 S.Ct. at 2101.

The parties argue that the court must choose either Fiallo or Salerno as the appropriate standard of review and imply that the choice will necessarily determine the outcome of Caballero's constitutional challenges. The court does not view the standards applied in Fiallo and Salerno as mutually exclusive. Applying the limited scope of review required by Fiallo, the court can still determine whether § 1252 meets the due process standards of Salerno. Moreover, limited review under Fiallo does not mean no review — Fiallo is not necessarily a graveyard for constitutional challenges. See Probert, 750 F.Supp. at 255.

As evidenced by the bail standard for lawfully admitted aliens, the purpose behind detaining aliens during deportation proceedings is to protect the community from aggravated felons and to prevent aliens from absconding before deportation can be accomplished. These are both legitimate governmental policy goals that can warrant a deprivation of liberty under the proper circumstances. Salerno, supra; Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

The next issue is whether the means chosen by Congress are excessive in relation to the policy goal sought to be achieved. In other words, is detaining all unlawfully admitted aliens convicted of aggravated felonies an overbroad means of protecting society and preventing flight pending deportation. A number of courts concluded that the previous version of § 1252 was unconstitutionally overbroad. Fernandez-Santander, 751 F.Supp. at 1011; Probert, 750 F.Supp. at 256; Paxton, 745 F.Supp. at 1265; Leader, 744 F.Supp. at 507-8. Those cases are factually distinguishable as involving legally admitted aliens in the midst of deportation proceedings, as opposed to an unlawfully admitted alien whose deportation order is final. The issue presented is whether the factual distinction is of legal significance. Does Caballero have less substantive due process rights than the other detainees? The Second Circuit Court of Appeals has ruled that illegal aliens have a substantive due process right to liberty during deportation proceedings, but that it is a narrow right whose impingement is subject only to limited judicial review. Doherty v. Thornburgh, 943 F.2d 204, 208 (2nd Cir.1991), cert. dismissed, 503 U.S. 901, 112 S.Ct. 1254, 117 L.Ed.2d 485 (1992). Discussing the rights of legally admitted aliens, the Supreme Court has stated, "Of course purpose to injure ... cannot be imputed generally to all aliens subject to deportation." Carlson v. Landon, 342 U.S. 524, 538, 72 S.Ct. 525, 533, 96 L.Ed. 547 (1952). Does it "shock the conscience" to detain illegally admitted aliens convicted of aggravated felonies based on the assumption that they are all dangerous or will abscond pending deportation?

The substantive due process analysis essentially subsumes the procedural due process analysis in this case. As noted above, a deprivation of liberty that is acceptable on substantive grounds must be implemented fairly in...