Galvez v. Lewis, Civ.A. 99-488-A.

• Decision Date: 07 July 1999
• Docket Number: No. Civ.A. 99-488-A.,Civ.A. 99-488-A.
• Citation: 56 F.Supp.2d 637
• Parties: Neris Alfredo GALVEZ, Petitioner, v. Warren A. LEWIS, District Director, Immigration and Naturalization Service, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

Page 637

56 F.Supp.2d 637

Neris Alfredo GALVEZ, Petitioner, v. Warren A. LEWIS, District Director, Immigration and Naturalization Service, Respondent.

No. Civ.A. 99-488-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 7, 1999.

Paul Haar, Washington, DC, for petitioner.

Dennis Michael Kennedy, United States Attorney's Office, Alice E. Loughran, Civil Division, Dept. of Justice, Alexandria, VA, for respondent.

AMENDED MEMORANDUM OPINION AND ORDER

LEE, District Judge.

THIS MATTER is before the Court on a Petition For Writ of Habeas Corpus. The issues presented are: (1) whether section 236(c) of the Immigration and Nationality Act ("INA") applies to Petitioner; and (2) if that section does apply to Petitioner, whether the statute is unconstitutional on its face as violative of procedural and substantive due process rights under the Fifth Amendment to the United States Constitution. For the reasons set forth below, the Court holds that it lacks jurisdiction to review an immigration judge's decision that INA § 236(c) does or does not apply to an alien like Petitioner who is being detained. On the constitutional question, the Court holds that the statute does not violate procedural and substantive due process under the Fifth Amendment. Thus, the petition for a writ of habeas corpus is denied.

I. Background

Petitioner, Neris Alfredo Galvez, is a thirty-one-year-old citizen of El Salvador. He entered the United States without inspection near San Diego, California on or about January 20, 1990. Petitioner is married and his wife, Alba Consuelo Lopez, is a United States citizen.

On July 20, 1994, Petitioner was convicted for possession of cocaine in the Circuit Court for Arlington County, Virginia and sentenced to six months, with all time suspended and two years of probation. Petitioner successfully completed his probation on May 24, 1996.

On January 28, 1999, the Immigration and Naturalization Service ("INS") arrested Petitioner at his home and issued him a Notice to Appear as a removable alien based on his July 1994 conviction. The INS placed Petitioner in detention in Virginia Beach, Virginia.

Petitioner filed a motion with the Immigration Court in Arlington for release from INS detention on bond. Initially, the immigration judge held that he was barred from considering the motion for release by virtue of section 303(b) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). On June 25, 1999, during the pendency of the habeas corpus proceedings before this Court, the immigration judge granted Petitioner's request for a change in his custody status and ordered Petitioner's release from custody upon posting a bond in the amount of $1500.00. That same day, the INS filed a Notice of INS Intent to Appeal Custody Redetermination. Pursuant to 8 C.F.R. § 3.19(i)(2), that notice of intent to appeal automatically stays the immigration judge's custody redetermination decision. While the petition for habeas corpus under the initial immigration judge's ruling denying bond appears to be moot now that the same immigration judge has granted bond to Petitioner, the questions of jurisdiction and constitutionality remain. Thus, the Court will examine both issues. The Court's decision on the habeas corpus petition does not vitiate or overturn the effect of the INS' notice of intent to appeal in creating an automatic stay on the immigration judge's custody redetermination.

Petitioner seeks a declaration that INA § 236(c), which requires detention of criminal aliens, does not apply to him. Alternatively, if the section does apply to him, he seeks a declaration that the section is unconstitutional on its face because it violates procedural and substantive due process rights under the Fifth Amendment of the United States Constitution.

II. Subject Matter Jurisdiction

Jurisdiction under the INA

The Respondent argues that this Court does not have jurisdiction to review the immigration judge's finding that INA § 236(c) applies to Petitioner. The Respondent concedes, however, that the Court has jurisdiction to decide the question of the constitutionality of the federal statute. The Petitioner argues that the Court does have jurisdiction to review the immigration judge's determination under INA § 236(c) because 8 U.S.C. § 1252(b)(9), the INA provision that limits judicial review to final orders of removal, does not apply to bond proceedings.

INA § 236(e), codified at 8 U.S.C. § 1226(e), precludes judicial review of the Attorney General's denial of bond to a detained alien. That provision states:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

8 U.S.C. § 1226(e) (emphasis added). Similarly, another provision of the INA divests this Court of jurisdiction over final orders of removal:

Except as provided in [section 1252] 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 act.

8 U.S.C. § 1252(g). The Supreme Court has recently interpreted this provision to mean that it does not preclude judicial review of all "decisions or actions that may be part of the deportation process." Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, ___, 119 S.Ct. 936, 943, 142 L.Ed.2d 940 (1999). Section 1252(g) applies to "three discrete actions that the Attorney General may take" including her decision or action to commence proceedings, adjudicate cases, or execute removal orders. Id. The Court held that 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." Id.

Petitioner argues that bond determinations should be considered separate and apart from a deportation or removal hearing or proceeding. 8 C.F.R. § 3.19(d) ("Consideration by the Immigration Judge of an application or request of a respondent regarding custody or bond under this section shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding."). Thus, Petitioner argues that section 1252(g), which relates generally to removal proceedings, does not apply.

Judicial review is limited to final orders of removal. 8 U.S.C. § 1252(b)(9). Petitioner asserts that bond determinations are not part of the removal proceeding. Yet, Petitioner contends that the Court does have jurisdiction to determine his request for an individualized bond hearing, which was, in effect, denied by the immigration judge when he stated that he was barred from considering the motion for release. Petitioner cannot have it both ways. If a bond determination is not a final order of removal and constitutes no part of the removal hearing or proceeding, as Petitioner contends, and judicial review is limited to final orders of removal, then there can be no judicial review of bond determinations.

Petitioner also argues that INA § 236(c), which governs the detention of criminal aliens, does not apply to him because it applies to aliens incarcerated at the time of the statute's enactment. Petitioner relies on the language of the statute which requires the Attorney General to take into custody any alien who is inadmissible or deportable under certain sections "when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense." INA § 236(c)(1), codified at 8 U.S.C. § 1226(c)(1). Petitioner claims it is arbitrary and capricious to apply this statute to him because he was taken into custody by the INS almost five years after he was released from criminal custody in 1994. Petitioner argues that INA § 236(c) does not apply to him because the statute applies to individuals released after October 10, 1998. Petitioner was released on April 4, 1994, the day after his arrest. Thus, Petitioner basically argues that the Transition Period Custody Rules (TPCR), enacted by IIRIRA § 303(b)(3) apply to him.

Essentially, Petitioner asks the Court to review the immigration judge's initial decision that INA § 236(c) applies and that Petitioner cannot be released pending the removal proceeding. Under INA § 236(e), the Court has no power to set aside or review the immigration judge's decision. Section 236(e) [8 U.S.C. § 1226(e)] of the INA provides:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. As the Seventh Circuit interpreted this provision in Parra v. Perryman, "The first sentence of § 1226(e) precludes judicial review of the Attorney General's decision to apply § 1226(c)(1) to [the petitioner]; the second sentence precludes review of the Attorney General's decision to deem [the petitioner] ineligible for release under § 1226(c)(2) (or any other source of authority to grant bail)." Parra v. Perryman, 172 F.3d 954, 956 (7th Cir.1999). Thus, section 236(e) plainly divests this Court of the authority to review discretionary decisions by the Attorney General under section 1226(a) and (b) regarding arrest, detention, release, bond, or parole. That same section 236(e) also divests the Court of authority to review the decision of an immigration judge under ...