DeMelo v. Cobb, Civil Action No. 96-10903-REK.

• Decision Date: 19 June 1996
• Docket Number: Civil Action No. 96-10903-REK.
• Citation: 936 F. Supp. 30
• Parties: Jose DeMELO, Petitioner, v. Charles T. COBB, et al., Respondents.
• Court: U.S. District Court — District of Massachusetts

936 F. Supp. 30

Jose DeMELO, Petitioner, v. Charles T. COBB, et al., Respondents.

Civil Action No. 96-10903-REK.

United States District Court, D. Massachusetts.

June 19, 1996.

Randy Olen, Warwick, RI, for Petitioner Jose DeMelo.

Kristen A. Giuffreda, David M. McConnell, United States Department of Justice, Civil Rights Division, Special Litigation Section, Washington, DC, Frank Crowley, Immigration & Naturalization, Special Assistant U.S. Attorney, Boston, MA, for Charles T. Cobb.

Opinion

KEETON, District Judge.

In his Petition for Writ of Habeas Corpus filed May 3, 1996, Petitioner Jose DeMelo ("DeMelo") seeks to have this court order him released from the custody of the Immigration and Naturalization Service ("INS") pending the resolution of deportation proceedings. Now before the court is Respondents' Motion to Dismiss (Docket No. 3, filed May 7, 1996). For the reasons explained below, the motion to dismiss will be denied.

I.

Two hearings on this Petition were held before this court. At the first hearing, on May 7, 1996, Respondents raised the argument that the motion to dismiss must be allowed as a result of recently enacted legislation, the Antiterrorism and Effective Death Penalty Act of 1996 (the "Act" or "Antiterrorism Act"). Respondents argue that the Act applies to DeMelo and precludes the INS from releasing him.

After the hearing of May 7, Respondents filed a Supplemental Memorandum in Support of Motion to Dismiss (Docket No. 8, filed May 8, 1996), in which Respondents more fully developed their argument regarding the Act and its alleged effect on this case.

In a Memorandum and Order dated May 10, 1996, the court announced its provisional conclusion that the Antiterrorism Act does not apply to this case. As a result of that provisional conclusion and other determinations, the court ordered the INS to release DeMelo from custody temporarily, on May 10th.

The court did not, however, in its May 10, 1996 memorandum, finally decide Respondents' motion to dismiss. Instead, the court allowed the parties a further opportunity to brief and argue their respective contentions. A second hearing was scheduled for May 24, 1996.

Before the second hearing, Respondents filed a Second Supplemental Memorandum in Support of Motion to Dismiss (Docket No. 10, filed May 20, 1996). Petitioner filed a reply (Docket No. 11, filed May 23, 1996). At the hearing of May 24, 1996, both parties presented arguments to the court. The court took the motion to dismiss under advisement and extended DeMelo's temporary release pending further order of this court.

II.

In reaching the conclusion that Respondent's motion to dismiss should be denied, the court has determined that the Antiterrorism Act does not apply to this case. The reasoning behind this determination is grounded more in statutory interpretation than in constitutional law. Constitutional principles, however, guide the court's interpretation of the Act, primarily because accepting Respondent's proposed interpretation of the Antiterrorism Act would present substantial issues of constitutionality.

First, the application of the Act to DeMelo in this case would involve troubling elements of retroactivity. DeMelo is a long-term, resident alien who continues to maintain a residence in the United States. He had fully served, before the effective date of the Act, every sentence imposed on account of any conviction for a felony. Thus, application of a putative prohibition against any exercise of discretion by the Attorney General to allow DeMelo's release on bond, pending a hearing regarding deportation, raises serious due process issues. Moreover, even if a statutory mandate for retroactivity in some respects might be constitutionality permissible, issues remain as to whether the particular form and extent of retroactivity incident to Respondent's proposed interpretation of the Act could survive under the applicable standard of judicial scrutiny.

Second, Respondent's assertion that a resident alien has no legally protectible interest sufficient to support any claim of deprivation of either substantive or procedural due process runs afoul of precedent. The Supreme Court and the Court of Appeals for the First Circuit have repeatedly held that once an alien is lawfully admitted to the United States, that alien is protected by the Constitution.

It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law.

Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 477, 97 L.Ed. 576 (1953). More recently, the Court has reinforced this holding.

This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. Our recent decisions confirm that view. As we explained in Johnson v. Eisentrager, 339 U.S. 763, 770 70 S.Ct. 936, 939-40, 94 L.Ed. 1255 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation.

Landon v. Plasencia, 459 U.S. 21, 32-33, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) (citations omitted). The First Circuit, also, has observed that "Lawful permanent resident aliens ... enjoy, of course, the full protection of the United States Constitution." Campos v. INS, 961 F.2d 309, 316 (1st Cir.1992).

Respondents' argument that deportation proceedings are civil, not criminal, is misplaced. At issue before the court in this Petition is the detention of DeMelo pending his deportation, not the deportation itself. The Supreme Court has determined that the act of deporting an alien is civil rather than criminal. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952). The Supreme Court has not held, however, that the detention of an alien is a purely civil matter, much less that the nature of a deportation proceeding precludes constitutional protection against detention without due process.

I need not, however, reach the constitutional issues raised by Respondent's proposed interpretation of the Act. Following settled precedent, I conclude that I should not decide on constitutional grounds the matter now before the court if the need to address constitutional issues is mooted by an appropriate interpretation of the Act that is contrary to Respondent's contention. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) ("Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.")

In addressing issues of statutory interpretation, when the statutory text and context support not just one reasonable interpretation but two or more contrasting interpretations, at least one of which reasonable interpretations is contrary to that proposed by the governmental entity whose official action is challenged, a court at the least may weigh, as one among all the relevant matters considered, the improbability that Congress and the Chief Executive, in enacting and approving a statute, were manifesting an intent to disregard a constitutionally protected interest. "Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it." DeBartolo, 485 U.S. at 575, 108 S.Ct. at 1397-98.

It is true that this case can be distinguished from both DeBartolo and Plasencia. DeBartolo did not involve aliens, immigration, or due process; the constitutional issues before the Court in that case involved First Amendment rights of citizens. Plasencia, as well, involved a factually different situation from this case; the primary issue before the Court in Plasencia was whether a resident alien is entitled to a deportation hearing rather than an exclusion hearing upon return to the United States.

These factual distinctions, however, are not material to the central points stated by the Court with respect to a court's sensitivity to potential constitutional constraints when determining what manifestations of intent a court can glean from the text of a statute.

Indeed, the facts of record in the case now before this court provide even more compelling support for finding an interest sufficient to invoke due process than did the record facts in Plasencia. The Petitioner in Plasencia was an alien who had lived in the United States as a legal resident for approximately five years before her trip to Mexico and her subsequent attempt to re-enter the United States. The Court held that she was entitled to at least some due process protection even though her case arose in the context of an exclusion hearing on her attempt to re-enter the country rather than a deportation hearing.

In the present case, the undisputed facts are that Petitioner DeMelo has been a permanent legal resident of the United State for almost thirty years. Moreover, DeMelo is facing deportation, not exclusion. As the Court noted...