Diaz-Zaldierna v. Fasano, 99-CV-286 BTM (JAH).

• Decision Date: 16 March 1999
• Docket Number: No. 99-CV-286 BTM (JAH).,99-CV-286 BTM (JAH).
• Court: U.S. District Court — Southern District of California
• Parties: Martin DIAZ-ZALDIERNA, Petitioner, v. Adele FASANO, District Director San Diego District, United States Immigration and Naturalization Service, Respondent.

43 F.Supp.2d 1114

Martin DIAZ-ZALDIERNA, Petitioner, v. Adele FASANO, District Director San Diego District, United States Immigration and Naturalization Service, Respondent.

No. 99-CV-286 BTM (JAH).

United States District Court, S.D. California.

March 16, 1999.

Carolyn Chapman, Attorney at Law, Coronado, CA, for petitioner.

Charles G. LaBella, United States Attorney, Samuel W. Bettwy (argued), Special Assistant United States Attorney, San Diego, CA, for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

MOSKOWITZ, District Judge.

Petitioner, a deportable legal permanent resident alien, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Petitioner challenges the constitutionality of the Attorney General's lack of discretion, under 8 U.S.C. § 1226(c), to release him on bail pending the outcome of his removal proceedings (referred to interchangeably as "deportation" proceedings). Specifically, the issue is whether § 1326(c)'s mandatory-detention provision violates petitioner's right to due process of law under the Fifth Amendment to the United States Constitution by denying him an individualized determination of his suitability for release on bail. For the reasons set forth below, the Court holds that § 1226(c), at least as applied in this case, does not infringe on petitioner's due process rights. Accordingly, the petition is DENIED.

I. Background

Petitioner is a Mexican citizen and legal permanent resident of the United States. In 1997, petitioner was convicted in state court of violating California Health and Safety Code § 11350, which proscribes possession of certain controlled substances (in this case, 0.36 grams of cocaine base, or "crack" cocaine). On November 16, 1998, upon completing his 135-day jail sentence for this offense, petitioner was released on probation and transferred to the Attorney General's custody to face deportation.¹ The Attorney General sought deportation under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that an alien may be deported for violation of a state's controlled substance laws. There is no dispute that petitioner, based on his state-court conviction for possession of cocaine base, is presumptively deportable on this ground.

Because of the length of time that petitioner has been a lawful permanent resident (almost ten years), and because he has never been convicted of an aggravated felony,² petitioner is eligible to seek cancellation of removal. See 8 U.S.C. § 1229b(a). Petitioner has applied for this discretionary relief. A removal hearing, in which his application will be considered, is currently scheduled for March 26, 1999. The record reflects that, in the meantime, petitioner asked respondent to release him on bail or at least afford him a bail hearing to assess whether bail is appropriate. Petitioner's request was denied, apparently on the ground that the Attorney General, under 8 U.S.C. § 1226(c), has no discretion to release an alien, such as petitioner, who is facing possible deportation for a controlled substances offense.³ Petitioner has been in the Attorney General's continuous custody since his arrest on November 16, 1998.

In broad brush, the parties' contentions in this Court are as follows. Petitioner maintains that § 1226(c)'s mandatory-detention provision violates his Fifth Amendment right to due process of law. Petitioner submits that, before he may be detained indefinitely in deportation proceedings, he is entitled, at a minimum, to an individualized determination that he is either a flight risk or a danger to the community. Respondent replies that the petition should be denied because a deportable alien in the Attorney General's custody does not enjoy any federal constitutional right to bail or any individualized assessment of fitness for temporary release.

II. Subject Matter Jurisdiction

This case is adjudicated in the thick of significant new rulings construing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). After this matter was argued and fully briefed, the United States Supreme Court vacated the Ninth Circuit decision relied on by both parties here to establish this Court's jurisdiction to hear the petition. Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir.) (per curiam), amended, 159 F.3d 1217 (9th Cir.1998), vacated and remanded, ___ U.S. ___, 119 S.Ct. 1137, 143 L.Ed.2d 206 (1999) (No. 98-836). The Supreme Court remanded Magana-Pizano for "further consideration" in light of Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. ___ 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("American-Arab").

Subject matter jurisdiction, of course, is a threshold question in any dispute in federal court. While the point requires some explanation, the Court concludes that despite the recent (at least temporary) demise of Magana-Pizano, there is jurisdiction to hear the petition under 28 U.S.C. § 2241.

In Hose v. INS, 141 F.3d 932 (9th Cir. 1998), the Ninth Circuit addressed recent restrictions on judicial review of immigration matters that IIRIRA imposed in 8 U.S.C. § 1252. Specifically at issue was the scope of § 1252(g), which directs that

[e]xcept 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.

Hose gave this subsection a broad reading, holding that

[e]xcept as provided in [8 U.S.C. § 1252], federal courts are divested of all jurisdiction to hear any claim by any alien involving an immigration proceeding.... Section 1252 does not give the district court jurisdiction to hear Hose's habeas petition. Not having been granted jurisdiction under section 1252, that jurisdiction is removed just as the statute says it is.

Hose, 141 F.3d at 935. Emphasizing that the petitioner had failed to demonstrate how she lacked effective direct review of her claims, Hose further held that IIRIRA's stripping of judicial review, under the circumstances, did not violate the Suspension Clause. Id. at 936. See U.S. CONST. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). However, the Ninth Circuit expressly declined to voice any opinion on "whether the statute violates the Suspension Clause as to aliens who then have no avenue of judicial review." Hose, 141 F.3d at 936 n. 3.

Faced with this reserved question a short time later in Magana-Pizano, the Ninth Circuit held that IIRIRA, as construed by Hose, violated the Suspension Clause. Magana-Pizano, 152 F.3d at 1216-20. In light of this holding, the Ninth Circuit indicated that "the district court retains jurisdiction under 28 U.S.C. § 2241 when the petitioner has no other judicial remedy." Id. at 1216. As noted at the outset, the parties here rely on Magana-Pizano to establish this Court's habeas jurisdiction in this proceeding. After Magana-Pizano was decided, the panel opinion in Hose was vacated and rehearing en banc was granted. See Hose v. INS, 161 F.3d 1225 (9th Cir.1998). Thus Hose's broad reading of IIRIRA's jurisdictional repeal, on which Magana-Pizano was based, is no longer the law of this circuit.

Then came the Supreme Court's recent decision in American-Arab. The Court noted, but expressed no opinion, on the split in the circuits over whether IIRIRA repealed habeas jurisdiction under 28 U.S.C. § 2241. American-Arab, ___ U.S. at ___ & n. 7, 119 S.Ct. at 942 & n. 7. Instead the Court focused on matters of statutory interpretation. In sum, American-Arab took a much narrower view of 8 U.S.C. § 1252's jurisdictional limitations than the Ninth Circuit did in Hose. At issue again was the proper construction of § 1252(g). The Court observed that this subsection does not necessarily include all deportation-related matters, because it refers only to executive decisions to "commence proceedings," "adjudicate cases," or "execute removal orders." Id. at 943 ("It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings."). This is in pointed contrast to Hose's assumption that § 1252(g)'s jurisdictional repeal applies to any "immigration proceeding." Hose, 141 F.3d at 935. Against this backdrop, Magana-Pizano was vacated and remanded for further proceedings.

In this Court's view, Magana-Pizano was vacated not because habeas jurisdiction has in fact been repealed by IIRIRA, but rather more likely because the decision was predicated on the broad (and now, after American-Arab, incorrect) reading that Hose gave § 1252(g). The conclusion is inescapable that Magana-Pizano unnecessarily faced the constitutional issue of whether § 1252 violates the Suspension Clause. In any event, the Court concludes, for two reasons, that habeas jurisdiction lies in this case under 28 U.S.C. § 2241. First, petitioner's challenge to the constitutionality of his confinement does not implicate the three categories of unreviewable decisions specified in § 1252(g). The propriety of holding petitioner without any possibility of release on bail is distinct from a "decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." These executive decisions all involve, as American-Arab stressed, the exercise of the Attorney General's discretion, which Congress in IIRIRA sought to insulate from judicial review. American-Arab, ___ U.S. at ___, 119 S.Ct. at 945 ("Of course many provisions of IIRIRA are aimed at protecting the Executive's discretion from the courts—indeed, that can fairly be said to be the theme of the legislation.") (italics deleted) (citing several subsections of § 1252). In...