Cardoso v. Reno, 3:00CV2163(JBA).

• Decision Date: 22 January 2001
• Docket Number: No. 3:00CV2163(JBA).,3:00CV2163(JBA).
• Citation: 127 F.Supp.2d 106
• Parties: Angela Maria Teixeira CARDOSO, Petitioner v. Janet RENO, Attorney General, U.S. Immigration and Naturalization Service, Steven Farquharson, District Director, and Gary Cote, Officer in Charge, Respondents.
• Court: U.S. District Court — District of Connecticut

127 F.Supp.2d 106

Angela Maria Teixeira CARDOSO, Petitioner v. Janet RENO, Attorney General, U.S. Immigration and Naturalization Service, Steven Farquharson, District Director, and Gary Cote, Officer in Charge, Respondents.

No. 3:00CV2163(JBA).

United States District Court, D. Connecticut.

January 22, 2001.

Michael J. Boyle, North Haven, CT, for Petitioner.

James K. Filan, Jr., U.S. Attorney's Office, New Haven, CT, for Respondents.

MEMORANDUM OF DECISION

ARTERTON, District Judge.

Petitioner Angela Cardoso ("Cardoso") seeks a writ of habeas corpus ordering the Immigration and Naturalization Service to conduct a bail hearing, alleging that her continued detention pending a final order of deportation pursuant to 8 U.S.C. § 1226(c) (INA § 236(c)) is violative of her Fifth Amendment rights to substantive and procedural due process. This case requires the Court to assess the constitutionality of a section of the immigration laws mandating detention of deportable aliens, even lawful permanent residents like Ms. Cardoso, pending a final order of deportation, without assessment of that alien's flight risk or potential for endangering the community. Numerous courts across the country have considered constitutional challenges to this mandatory detention provision, and have split on both the final issue of the statute's constitutional validity as well as the method of analysis. For the reasons that follow, this Court finds § 236(c) unconstitutional as applied to petitioner, and grants the petition.

I. Factual Background

In brief, petitioner is a native of Cape Verde who left that country along with her family when it was granted independence from Portugal, and immigrated to this country at the age of 9. She has lived in Waterbury, Connecticut, since that time, and has two minor U.S. citizen sons, ages 7 and 13. Her mother and three siblings are U.S. citizens, and her grandmother and stepfather are permanent residents. Ms. Cardoso was addicted to drugs, and in 1996, 1997, and 1998 had multiple convictions for larceny in the sixth degree (Conn. Gen.Stat. § 53a-125b), as well as convictions for issuing a bad check, failure to appear, breach of the peace, and escape (when she walked away from a community/home-based drug-rehabilitation program). See Pet. Ex. B (list of convictions). According to petitioner's brief she has come to terms with her drug problem through a treatment program she completed while incarcerated, and has completed progressive levels of drug rehabilitation as well as a number of educational and social readjustment programs, including achieving her GED and completing a nurses' aide training program. She was taken into INS custody upon completion of her state sentence on Sept. 28, 2000, and has been detained by the INS at the York Correctional Institute in Niantic, Connecticut, since that time. The Board of Immigration Appeals (BIA) found her eligible for cancellation of removal under INA § 240A after the conviction on which "aggravated felon" status was based, was vacated by the state court, and a hearing on this discretionary relief, which could permit her to remain here as a permanent legal resident, is scheduled for January 24, 2000.

II. Statutory Provisions at Issue

Cancellation of Removal, INA § 240A(a), 8 U.S.C. § 1129b(a), replaces what was known as "Section 212(c) relief" under the previous immigration laws, and grants the Attorney General discretion to permit long-term permanent resident aliens with less serious criminal convictions to retain their permanent residence. Factors considered by the Immigration Judge (IJ) in deciding a § 240A application include the petitioner's family ties, length of residence and employment in the U.S., evidence of rehabilitation and criminal record, and other evidence of bad character or immigration violations. Under the immigration laws extant before 1996, a bond hearing was allowed to determine whether a deportable alien should be detained pending a final deportation order, including the completion of any proceedings related to discretionary relief. Congress then passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-298, which significantly altered the landscape of the immigration laws by making more offenses deportable offenses, and streamlining the process for deportation. Section 236(c) of the IIRIRA provides that:

(1) 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)(ii) [multiple crimes of moral turpitude], (A)(iii) ["Aggravated felony"], (B) ["Controlled substances"], (C) ["Certain firearm offenses"], or (D) ["espionage-related crimes"] of this title, ...

(2) Release — The Attorney General may release an alien described in paragraph (1) only if the [alien has been admitted into the Witness Protection Program], ... and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.

8 U.S.C. § 1226(c) (emphasis added).

It is undisputed that Ms. Cardoso does not fall into the limited exception for participants in the Witness Protection Program, and therefore she has been held in custody since September 28, 2000 under the authority of § 236(c). As characterized by the INS, the mandatory detention provision applies an irrebuttable presumption that deportable aliens are either dangers to the community or flight risks, and the presumption is eminently reasonable as applied to the petitioner. Resp. Mem. in Opp. at 21. Petitioner asserts that her continued detention solely on the basis of this statutory presumption infringes her fundamental liberty right, and as a consequence, jeopardizes her chances of success at her § 240A hearing, as she is unable to adequately demonstrate the accuracy of her claim of rehabilitation without release into the community.

III. Analysis

"It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores, 507 U.S. 292, 307, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). "[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Petitioner claims that the mandatory detention provision violates both the substantive and procedural components of the Fifth Amendment's Due Process clause, the procedural due process requirement of which prohibits the government from depriving an individual of life, liberty or property in an unfair manner, see Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and the substantive due process component of which precludes the government from engaging in conduct that "shocks the conscience," see Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), or interferes with rights "implicit in the concept of ordered liberty," see Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Substantive due process protects an alien from governmental infringement upon certain "fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).

A. Substantive Due Process

Petitioner argues that a fundamental liberty interest is implicated by this statute, and that accordingly the Court should apply a strict scrutiny analysis, and require the infringement on a fundamental interest to be narrowly tailored to serve a compelling governmental interest. Pet. Mem. at 10. More particularly, the petitioner urges this Court to utilize the "excessiveness" test of United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), which is predicated upon the fundamental nature of the right to liberty. 481 U.S. at 750, 107 S.Ct. 2095. In support of her contention, petitioner relies on Doherty v. Thornburgh, 943 F.2d 204 (2d Cir. 1991), in which the Second Circuit held that aliens who have entered this country, even illegally, possess a substantive due process right to liberty during deportation proceedings. "We think that aliens do have a substantive due process right to be free from arbitrary confinement pending deportation proceedings." Id., 943 F.2d at 208-09. The Doherty court emphasized, however, that "this is a narrow right and that judicial review of alleged interference with the right by the federal government is limited." Id. at 208. Further, the Supreme Court has admonished federal courts that a due process analysis must always "begin with a careful description of the asserted right, for the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field." Flores, 507 U.S. at 302, 113 S.Ct. 1439 (internal citations omitted). The Court must therefore determine whether the right asserted here—a deportable alien's right to not be detained without opportunity to demonstrate that she is neither a danger to the community nor a risk to abscond pending a hearing on discretionary relief, in rebuttal of the presumption in the statute to the contrary—is a fundamental liberty interest, in order to determine the appropriate standard of scrutiny.

A number of district courts examining the constitutionality of § 236(c) have applied the strict scrutiny and/or the Salerno test, either explicitly or implicitly concluding that the liberty interest at issue here is fundamental. See, e.g., Zgombic v. Farquharson, 89 F.Supp.2d 220, 234 (D.Conn. 2000) (applying compelling interests test because the right to freedom from bodily restraint is "the simplest example of [a fundamental] right"); Danh v. Demore, 59 F.Supp.2d 994, 1000 (N.D.Cal.1999) quotin...