Gashaj v. Garcia
| Decision Date | 16 December 2002 |
| Docket Number | No. EP-02-CA-0193-DB.,EP-02-CA-0193-DB. |
| Parties | Fran GASHAJ, Petitioner, v. Luis GARCIA, District Director, Immigration and Naturalization Service, et al., Respondents. |
| Court | U.S. District Court — Western District of Texas |
Jesus M. Hernandez, Attorney at Law, El Paso, TX, for Petitioner.
Guadalupe R. Gonzalez, Special Assistant United States Attorney, El Paso, TX, Andrew C. Maclachlan, Washington, DC, for Respondents.
On this day, the Court considered Petitioner Fran Gashaj's "Petition for a Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief," filed in the above-captioned cause on May 8, 2002; Respondents' "Motion to Dismiss and Return and Answer to Petition for a Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief," filed June 7, 2002; Petitioner's Response to Respondents' Motion to Dismiss, filed July 9, 2002; and Respondents' Reply to Petitioner's Response, filed July 26, 2002. After due consideration, the Court is of the opinion that Respondents' Motion to Dismiss should be denied and Petitioner's Writ Petition should be granted.
Petitioner Fran Gashaj ("Gashaj") is thirty-six (36) years of age and is a native of Albania. Gashaj was admitted to the United States as a lawful permanent resident on February 14, 1991. Gashaj is married to a United States legal resident alien and has four United States citizen children, all of whom presently reside in the State of Michigan.
On August 3, 2001, Gashaj pled guilty in the United States District Court for the Southern District of Texas to one count of transporting undocumented aliens within the United States for profit in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i). Gashaj was sentenced to a term of sixty-days imprisonment. On November 7, 2001, the Immigration and Naturalization Service ("INS") issued a Notice to Appear, charging Gashaj removable, pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1227(a)(2)(A)(iii),1 as an alien convicted of an aggravated felony.2
On November 13, 2001, an INS official determined that Gashaj would be held without bond pursuant to the mandatory detention provision in 8 U.S.C. § 1226(c). The INS took Gashaj into custody on November 14, 2001, where he currently remains. Gashaj made a written request to the INS to assign an Immigration Judge ("IJ") to reconsider his bond determination. An IJ denied his request. In December of 2001, Gashaj made a second request for bond determination. The INS denied it and responded that Gashaj's detention was mandatory until his case was adjudicated. Thus release on bond was unavailable because he was charged with removability as an aggravated felon.
Gashaj's removal proceedings commenced on March 14, 2002 before an IJ. The IJ found Gashaj removable as charged. Gashaj appealed the IJ's determination to the Board of Immigration Appeals. That appeal is still pending.
Gashaj filed the instant Petition for Writ of Habeas Corpus Complaint for Injunctive and Declaratory Relief on May 8, 2002. Since Gashaj is currently being detained under the mandatory detention provision in § 236(c) of the INA, he challenges the constitutionality of that section. Specifically, the Petition raises the issue of whether a lawful permanent resident alien should be at liberty pending his removal proceedings initiated on the basis of a serious criminal conviction or serious criminal behavior. Gashaj further argues that the denial of his right to be free from detention pending removal proceedings is in violation of the Fifth Amendment's procedural and substantive due process strictures, the Eighth Amendment, the Administrative Procedure Act, and the Equal Access to Justice Act.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") which amended the INA to include § 236(c). Section 236(c), provides, in relevant part, that:
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, 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.
8 U.S.C.A. § 1226(c)(1) (West 1999).
Under § 236(c), the Attorney General is thus required to take into custody aliens who have committed certain offenses without granting the alien a bail review hearing. Id. The alien must remain in custody until deportation proceedings are completed. Id. Once deportation proceedings become final, if the INS does not remove the alien within 90 days, he becomes eligible for release from custody. 8 U.S.C.A. § 1231(a)(3) (West 1999). However, pending completion of those proceedings, the Attorney General may only release the alien for witness protection purposes—an issue not implicated in Gashaj's case. 8 U.S.C.A. § 1226(c)(2) (West 1999).
Section 236(c) specifically pertains to "criminal aliens." This section and its mandatory detention provision applies to resident aliens who are convicted of aggravated felonies. An "aggravated felony" is broadly defined under 8 U.S.C. § 1101(a)(43) to include, among other things, crimes of violence, drug offenses, and offenses related to theft and fraud. The crime committed by Gashaj is also categorized as an aggravated felony and, thus, triggers the mandatory detention provision under § 236(c). 8 U.S.C.A. § 1101(a)(43)(N) (West 1999).
Whether the mandatory detention provision is unconstitutional as applied to permanent resident aliens is the issue currently before the Court. Gashaj argues that the mandatory detention provision is a violation of his substantive and procedural due process rights. First, the Due Process Clause of the Fifth Amendment provides that, "[n]o person shall ... be deprived of life, liberty, or property without due process of law." U.S. CONST. amend. V. In order to resolve this constitutional issue, the Court must systematically perform a two-step analysis as described by the Supreme Court in Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997).
In reviewing a legislative enactment, the Court must first determine "whether the claimed violation involves one of `those fundamental rights and liberties, which are, deeply rooted in this Nation's history and tradition,' and `implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.'" Id. (quoting Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977)). The second step depends on the outcome of the first step. Id. If the asserted interest is "fundamental," then the court must apply strict scrutiny to the legislative enactment. Id. at 762, 117 S.Ct. 2258. On the other hand, if the interest is not fundamental, the court should only apply a rational-basis standard of review. Id. at 767, 117 S.Ct. 2258.
Respondents argue that Gashaj is only entitled to diminished due process protections because he does not possess a fundamental liberty interest. As alluded to in their Brief, Respondents essentially contend that Gashaj has been stripped of his constitutional protections by having committed a criminal act. In doing so, they place great reliance on the Seventh Circuit's opinion in Parra v. Perryman, 172 F.3d 954 (7th Cir.1999). However, the Parra analysis has been rejected in a number of more recent cases, those of which are cited below.
This Court must first make a careful identification of the asserted liberty right. Here, the issue is whether an individual detained pending immigration proceedings is entitled to receive a bail hearing in which a judge determines the individual's flight risk and threat to the community. The Supreme Court has impliedly held that such an interest is fundamental. United States v. Salerno, 481 U.S. 739, 750, 107 S.Ct. 2095, 2103, 95 L.Ed.2d 697 (1987) (). In United States v. Salerno, the Supreme Court addressed the constitutionality of pretrial detention for arrestees under the Bail Reform Act of 1984, allowing for the detention of an arrestee without bail pending trial if the Government demonstrated by clear and convincing evidence after an adversary hearing that no release conditions would reasonably assure the safety of the community. 481 U.S. at 750, 107 S.Ct. 2095. The Court upheld the constitutionality of the statute after balancing the Government's interest in detention against "the individual's strong interest in liberty." Id. The Court concluded that the arrestee's liberty interest could not lawfully be infringed unless the process was narrowly tailored to serve a compelling state interest. Id. at 748, 107 S.Ct. 2095.
Despite the interest declared in Salerno, Respondents argue that Gashaj is not afforded this right because he has lost his lawful permanent resident status and is in detention pending removal. In support of their argument, Respondents rely on the Seventh Circuit decision in Parra v. Perryman. In Parra, the petitioner was convicted of aggravated criminal...
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