Fernandez-Santander v. Thornburgh, Civ. No. 90-0243-P.

• Decision Date: 09 November 1990
• Docket Number: Civ. No. 90-0243-P.
• Citation: 751 F. Supp. 1007
• Parties: Nabor A. FERNANDEZ-SANTANDER, Petitioner, v. Richard THORNBURGH, et al., Respondents.
• Court: U.S. District Court — District of Maine

751 F. Supp. 1007

Nabor A. FERNANDEZ-SANTANDER, Petitioner, v. Richard THORNBURGH, et al., Respondents.

Civ. No. 90-0243-P.

United States District Court, D. Maine.

November 9, 1990.

Peter L. Darvin, Pine Tree Legal Assistance, Portland, Me., for petitioner.

Jonathan R. Chapman, Asst. U.S. Atty., Portland, Me., for respondents.

MEMORANDUM OF DECISION ON PETITIONER'S MOTION FOR WRIT OF HABEAS CORPUS

GENE CARTER, Chief Judge.

Petitioner, an alien, is a lawful permanent resident of the United States. In June 1990 he pled guilty in state court to a charge of trafficking cocaine, a class B felony under Maine law. He was sentenced to a term in jail and a period of probation. While in jail Petitioner was served with an Order to Show Cause charging him with being deportable under the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(B), as a result of his conviction of an aggravated felony, a drug trafficking crime, as defined by 8 U.S.C. § 1101(a)(43).

Section 1252a(c) provides that an alien convicted of an aggravated felony "shall be conclusively presumed to be deportable from the United States." If the Attorney General is not able to complete deportation before the alien has been released from incarceration on the felony charge, see 8 U.S.C. § 1252a(d), section 1251(a)(2) requires the Attorney General "to take into custody any alien convicted of an aggravated felony upon the completion of the alien's sentence" and not release such felon from custody. Petitioner has applied to the immigration judge for discretionary relief from deportation under 8 U.S.C. § 1182(c). The Immigration and Naturalization Service is holding Petitioner without bond pursuant to section 1252(a)(2) until resolution of his deportation case. Petitioner sought a bond determination hearing. The hearing was held on August 31, 1990, and bond was denied on the statutory grounds that Petitioner is an aggravated felon. He did not appeal the decision of the immigration judge.

Petitioner seeks a writ of habeas corpus, alleging that section 1252(a)(2) does not apply to him and that it violates his due process rights and is, therefore, unconstitutional. He seeks a bond hearing at which he may present evidence showing his entitlement to bond.

Applicability of the Statute

Petitioner argues that the section 1252(a)(2), barring release on bond for aggravated felons, does not apply to him because he has not committed an aggravated felony. Under the statute "the term `aggravated felony' means ... any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, ... or any attempt or conspiracy to commit any such act committed within the United States." A drug trafficking crime is defined in section 924(c)(2) as "any felony punishable under the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App. § 1901 et seq.)." Petitioner argues his state conviction is not an aggravated felony because section 924(c)(2) does not mention state crimes. He asserts that if Congress had intended to include state crimes within the definition it would have done so expressly.

Prior to 1988 section 924(c)(2) defined a drug trafficking crime as "any felony violation of Federal law involving the distribution, manufacture, or importation of any controlled substance." Congress amended section 924(c)(2) in 1988 to refer to crimes "punishable under" the Controlled Substances Act and two other federal statutes. It is plain that prior to 1988 a violation of federal law was required to meet the definition of drug trafficking crime. Petitioner asserts that despite the change in statutory language a violation of federal law is still required. The Court cannot agree.

The Supreme Court addressed a similar issue under the RICO statute and interpreted the term "punishable under" a given law to mean that one could be convicted under the law rather than that one had been convicted. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 488, 105 S.Ct. 3275, 3280-81, 87 L.Ed.2d 346 (1985). If Congress had intended to require convictions under federal law, it could have expressly said just that. Also, the Court notes that both the aggravated felony legislation and the drug trafficking crime definition are parts of the Anti-Drug Abuse Act of 1988, by which Congress intended to broaden and intensify its fight against drugs. In this context, it seems unlikely that in choosing which aliens are deportable for undesirable conduct, Congress sought to differentiate between aliens convicted of similar drug-related offenses on the basis of the jurisdiction of the prosecution. In Leader v. Blackman, 744 F.Supp. 500 (S.D.N.Y.1990), relying on the well-reasoned and thorough, but unpublished, opinion by the Board of Immigration Appeals in Matter of Barrett, Interim Decision # 3131 (March 2, 1990), the court addressed precisely the same issue raised here, concluding: "We are convinced that Congress intended the statute to apply to both federal and state convictions." This Court agrees, finding that state crimes can be included within the definition of drug trafficking crime set forth in 18 U.S.C. § 924(c)(2) and incorporated into the Immigration and Nationality Act at 8 U.S.C. § 1101(a)(43).

An examination of the elements of 17-A M.R.S.A. § 1103, the statute under which Petitioner was convicted, shows that it proscribes the distribution of controlled substances, which are in turn defined to include cocaine. That conduct would plainly be punishable under federal law, 21 U.S.C. § 841, if prosecution had been undertaken by federal authorities. Thus, section 1252(a)(2) applies to Petitioner.

Constitutionality of the Statute

Petitioner also asserts that the provisions of 8 U.S.C. § 1252(a)(2) violate his rights to both substantive and procedural due process guaranteed by the Fifth Amendment of the United States Constitution. Specifically, he asserts that he has been denied his fundamental right to liberty because the statute requires the Attorney General to keep an alien convicted of an aggravated felony in custody after completion of the alien's sentence on such conviction without providing an opportunity to apply for bail.¹ The Government argues that given the very limited scope of judicial inquiry into immigration law, such detention passes constitutional muster because there is a "facially legitimate and bona fide reason" for the statute's enactment. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477-78, 52 L.Ed.2d 50 (1977). The constitutionality of section 1252(a)(2) has been the subject of debate in the United States District Courts, most of it in unpublished opinions. But see Leader, 744 F.Supp. 500; Morrobel v. Thornburgh, 744 F.Supp. 725 (E.D.Va.1990). A slight majority of these cases have found section 1252(a)(2) unconstitutional.

The Supreme Court has made clear that due process is afforded resident aliens within the jurisdiction of the United States. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976). It is clear, too, that Congress has broad power over immigration that is plenary and political in nature. Flores v. Meese, 913 F.2d 1315 (9th Cir.1990). In Flores, the court expressed the recent view of a number of courts that the exercise of that power will be subject only to the very limited review described in Fiallo, even when the challenged legislation impinges upon the due process rights of an alien who is being detained during the deportation process. This Court is satisfied that the Flores formulation sweeps too broadly and agrees with the dissenting judge in that case that

in effect the majority is moving from the uncontroverted propositions that the political branches have plenary authority over deciding whom to admit into the country and that such political decisions are largely immune from judicial review, to the unsupportable conclusion that how it treats those whom it detains while the deportation process is underway is likewise beyond judicial review. This is an unwarranted leap.... The courts' deference to the `plenary power' of Congress is limited essentially to Congress's decision regarding who is excludable; it does not extend to their treatment during the deportation process.

Flores, 913 F.2d at 1339 (Fletcher, J. dissenting).

Plainly, the statute prohibiting release on bond for aggravated felons is not a statute deciding who is excludable. Basically, the statute, which is part of the Anti-Drug Abuse Act of 1988, deals with how persons who are considered categorically dangerous and who are awaiting deportation shall be treated. In United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the Supreme Court recently conducted a due process analysis of the Bail Reform Act, which, in providing for pretrial detention of persons arrested for certain crimes, is analogous in certain important respects to section 1252(a)(2). The Court, therefore, finds the type of due process inquiry conducted by the Court in Salerno to be appropriate in this case. See Leader, 744 F.Supp. 500 (adopting Salerno analysis for due process challenge to section 1252(a)(2)).

Citing Carlson v. Landon, 342 U.S. 524, 537-542, 72 S.Ct. 525, 532-35, 96 L.Ed. 547 (1952), the government argues, however, that detention is necessarily a part of the deportation process, and therefore, statutes relating to detention of aliens should be accorded the same type of deference as other immigration statutes. In Carlson the Supreme Court found that compelling governmental interests outside the context of war can justify detention of dangerous persons. United States v. Salerno, 481 U.S. 739, 748, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987). Despite its conclusion that detention is part of the deportation process, the Court did not apply the deferential standard which respondents seek. In Carlson the Supreme Court upheld the Attorney General's exercise of discretion in...