Duong v. I.N.S., 99CV1965-J (RBB).
| Decision Date | 17 March 2000 |
| Docket Number | No. 99CV1965-J (RBB).,99CV1965-J (RBB). |
| Parties | Loc DUONG, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE., Defendant. |
| Court | U.S. District Court — Southern District of California |
Loc Duong, El Centro, CA, Pro se.
U.S. Attorney, U.S. Attorneys Office, Civil Division, San Diego, CA, for Immigration and Naturalization Service, respondent.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
On September 14, 1999, Petitioner Loc Duong, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondents oppose. The Court finds that: 1) the Immigration Reform and Immigrant Responsibility Act (IIRIRA) does not divest the Court of jurisdiction over habeas corpus petitions; 2) Petitioner does not need to exhaust his administrative remedies in order for the Court to review the petition; 3) Petitioner's substantive due process rights are violated by his indefinite incarceration; 4) procedures used to determine whether Petitioner should be released pending deportation violate procedural due process Accordingly, the court GRANTS Petitioner's application for writ of habeas corpus.
Petitioner, Loc Duong, is a native and citizen of Vietnam under final order of removal. The Immigration and Naturalization Service (INS) is detaining him without bond pending his removal to Vietnam.
Petitioner was born in Vietnam on October 3, 1973 and was legally admitted to the United States as a refugee on August 27, 1982. (Pet.'s Traverse 3). On May 17, 1993, Petitioner pled guilty in California state court to conspiracy to commit robbery and vehicle theft. The court sentenced him to three years in prison, and Petitioner served twenty-two months of his sentence before he was released. Petitioner has violated parole twice since his release. (Pet's Traverse 4). On December 16, 1998, the immigration judge ordered Petitioner removed from the United States to Vietnam, and Petitioner waived his appeal of the decision, making the removal order final. (Resp't's Return 2). INS has detained Petitioner without bond since this order. (Pet's Traverse 5).
The INS District Director conducted a custody review on February 16, 1999 and determined the Petitioner should continue to be detained in the custody of the INS. (Resp't's Return 2). In a second custody review, the District Director again found that Petitioner should remain in custody, despite the supervisory officer's recommendation that Petitioner be released. (Pet's Traverse 5).
On August 16, 1999, Petitioner filed an appeal of the District Director's decision. The INS has not responded to this appeal (Pet's Traverse 5-6). Since Petitioner's detention, the INS has been unable to obtain Vietnamese travel documents for Petitioner. (Resp't's Return 2-3).
On September 14, 1999, Petitioner filed this writ of habeas corpus arguing that he is being indefinitely detained because travel documents cannot be obtained and that this indefinite detention violates his substantive and procedural due process rights. Respondent counters by arguing that the Court does not have subject matter jurisdiction over this matter. Additionally, they argue that Vietnam will repatriate Petitioner soon and he will be deported and that Petitioner, as a deportable alien, does not have a fundamental liberty interest protected by the United States' Constitution.
The Court has authority to grant writs of habeas corpus under Section 2241 of Title 28 of the United States Code. Habeas relief can be granted where a person "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).
Respondents contend that the 1996 amendment to the Immigration and Nationality Act denies the Court subject matter jurisdiction over this petition. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act to restrict federal power of judicial review over "any cause or claim by or on behalf of any alien arising from the decision or action of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." 8 U.S.C. § 1252(g). However, this does not prevent the Court from exercising jurisdiction over the Petitioner's constitutional claims.
Section 1252(g) is not a general bar on jurisdiction over all claims related to deportation. In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 the Supreme Court held that Section 1252(g) should be read narrowly, so as to apply only to "three discrete actions" taken by the Attorney General; , § 1252(g) applies to the Attorney General's decision to "commence proceedings, adjudicate cases, or execute removal orders." Id. at 943.
Here, Petitioner is not challenging the Attorney General's decision to "commence proceedings, adjudicate cases" or to "execute removal orders." Instead, Petitioner is challenging his indefinite detention on constitutional principles. Since Petitioner's claim "constitute[s] `general collateral challenges to unconstitutional practices and policies used by the agency,'" jurisdiction is not precluded by 1252(g). Walters v. Reno, 145 F.3d at 1032, 1052 (9th Cir.1998), cert. denied, 526 U.S. 1003, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999) .
Respondents also challenge subject matter jurisdiction under 8 U.S.C. § 1252(b) and 1252(b)(9). Section 1252(b) divests the court of jurisdiction over a "review of an order of removal." "The clear language of Section 1252(b)(1) demonstrates that it applies to final orders of removal, stating that petitions `must be filed not later than 30 days after the date of the final order of removal.'" Nguyen, 84 F.Supp.2d 1099 (S.D.Cal.2000") (quoting 8 U.S.C. § 1252(b)(1)). Here, Petitioner is challenging his detention, not his final order of removal; therefore, § 1252(b) does not prohibit the Court from taking jurisdiction over his claim.
Section 1252(b)(9), on the other hand, regulates jurisdiction where no other provisions apply and has been referred to as the "unmistakable zipper clause" Reno v. American-Arab Anti-Discrimination Committee, 119 S.Ct. 936, 943 (1999). Respondents contend that section 1252(b)(9) also deprives the court of jurisdiction. Section 1252(b)(9) states that:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. 8 U.S.C. § 1252(b)(9).
In Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court held that section 1252(b)(9) is not so broad as to be applied to all deportation claims. In fact, other courts in the Southern District of California have applied Reno to facts similar to those here and found that "[e]ven with its broad scope, § 1252(b)(9) applies only to final orders of removal and is not intended to cover all challenges by an alien to all aspects of the treatment he or she receives during the deportation process." Nguyen, 84 F.Supp.2d 1099 (S.D.Cal.2000).
Moreover, the majority of the recent cases dealing with this issue have consistently held that district courts have subject matter jurisdiction over deportable aliens' petitions for writs of habeas corpus. Zadvydas v. Underdown, 185 F.3d 279 (5th Cir.1999), petition for cert. filed (U.S. Jan. 11, 2000)(No. 99-77-91); Ho v. Greene, 204 F.3d 1045, 2000 WL 228755 (10th Cir. 2000); Phan v. Reno, 56 F.Supp.2d 1149 (W.D.Wash.1999); Nguyen, 84 F.Supp.2d 1099 (S.D.Cal.2000). The Court adopts the reasoning of these cases in finding subject matter jurisdiction.
Respondents additionally contend that the Court should deny jurisdiction because Petitioner has not exhausted his administrative remedies since he failed to appeal his custody review to the Board of Immigration Appeals (BIA). Exhaustion of administrative remedies is only necessary in order for the Court to review the petition if either the statute specifically requires exhaustion or it is called for by the administrative scheme. See McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Here, although Petitioner can request a custody review from the INS District Director, see C.F.R. § 236.1(d)(2), or appeal to the BIA, see 8 C.F.R. §§ 3.3(a), 236.1(d)(3)(iii), there is no specific statutory language requiring exhaustion of administrative remedies.
"Where a statute does not explicitly require administrative exhaustion, the decision of whether to require exhaustion is left to judicial discretion." Nguyen, 84 F.Supp.2d 1099 (S.D.Cal.2000). If reviewing the petition would interrupt the administrative review process and if Petitioner could seek relief through these means, the Court would decline jurisdiction in this case. However, Petitioner is requesting that the Court review whether his continued detention is consistent with the Fifth Amendment, and there is no administrative proceeding that would address this issue. In light of these circumstances, the Court will not require that Petitioner exhaust his administrative remedies.
The Due Process Clause of the Fifth Amendment ensures that no person be deprived of life, liberty or property without due process of law. U.S. CONST. amend. V. Petitioner contends that both his right to substantive due process and his right to procedural...
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