Habtegaber v. Jenifer
| Decision Date | 26 July 2002 |
| Docket Number | No. CIV. 02-40072.,CIV. 02-40072. |
| Citation | 213 F.Supp.2d 792 |
| Parties | Benyam HABTEGABER, Petitioner, v. Carol JENIFER, District Director of the Immigration and Naturalization Service, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Tamara A. French, Detroit, MI, for Benyam Habtegaber, petitioner.
Nancy A. Abraham, U.S. Attorney's Office, Flint, MI, for Carol Jenifer, District Director, Immigration and Naturalization Service, respondent.
Before the Court is Petitioner Benyam Habtegaber's petition for a writ of habeas corpus and complaint for declaratory and injunctive relief [docket entry 1]. Pursuant to Local Rule 7.1(e)(2), the Court has determined that a hearing would not aid significantly in the disposition of the petition. For the reasons set forth below, the Court shall conditionally grant the petition.
Petitioner, a citizen of Ethiopia, entered the United States on November 30, 1990 as a refugee. On August 26, 1992, Petitioner's status was adjusted to that of a lawful permanent resident. On April 22, 1997, following a conviction for "unlawful issuance of bank checks or drafts," Petitioner was sentenced to 365 days in jail with 359 days suspended in the King County District Court, Seattle, Washington. On December 10, 1998, Petitioner was sentenced to 30 days in jail and 24 months probation in 56th Circuit Court, Charlotte, Michigan, following a conviction for "no account check." On December 21, 1998, Petitioner was sentenced in the 54-B District Court, East Lansing, Michigan to 29 days in jail and 24 months probation following convictions on two counts of "check non-sufficient funds over $50 but less than $200."
Petitioner filed for naturalization on November 21, 1997, but withdrew his naturalization application on August 11, 2000. On January 28, 2002, the INS took Petitioner into custody, and charged him with being removable from the United States because of his prior convictions pursuant to two separate provisions of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii) (), and 8 U.S.C. § 1227(a)(2)(A)(ii) ().
Petitioner requested a custody determination, and on February 19, 2002, an immigration judge found, pursuant to 8 U.S.C. § 1226(c), that detention was mandatory until the conclusion of Petitioner's removal proceedings. Petitioner did not appeal the immigration judge's decision to the Board of Immigration Appeals ("BIA"). Petitioner filed a petition for a writ of habeas corpus in this Court under 28 U.S.C. § 2241 challenging the constitutionality of § 1226(c). Petitioner seeks a declaration that § 1226(c) is unconstitutional because it violates his due process rights under the Fifth Amendment, and a writ of habeas corpus granting him either immediate release from detention, or an immediate, individualized bond hearing before an impartial adjudicator.
Although Respondent does not challenge the Court's jurisdiction in this matter, the Court must conduct its own, independent review to determine if it has jurisdiction. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). A writ of habeas corpus may be issued when a prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). An alien in federal custody pending removal may challenge the constitutionality of his confinement pursuant to 28 U.S.C. § 2241. Marogi v. Jenifer, 126 F.Supp.2d 1056, 1058-59 (E.D.Mich.2000). Nevertheless, the Court examines two provisions of the INA that limit judicial review of certain actions taken by the Attorney General during the removal process. See id.
The first provision, 8 U.S.C. § 1252(g), deprives courts of 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." 8 U.S.C. § 1252(g). The Supreme Court has construed this preclusion clause to encompass only the three specific situations set forth in the statute. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-87, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). As Petitioner is not challenging any of the enumerated decisions or actions, § 1252(g) does not foreclose habeas review of his claims. See Shurney v. INS, 201 F.Supp.2d 783, 788 (N.D.Ohio 2001).
The second provision, 8 U.S.C. § 1226(e), provides that:
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). This provision, however, applies to "challenges to operational decisions, rather than to the legislation establishing the framework for those decisions." Marogi, 126 F.Supp.2d at 1059 (quotation omitted). As Petitioner is not seeking review of a decision made by the Attorney General, but is instead directly challenging the constitutionality of the statute, § 1226(e) does not foreclose habeas review. See Shurney, 201 F.Supp.2d at 788. Accordingly, the Court finds that these provisions of the INA do not deprive the Court of jurisdiction to review Petitioner's § 2241 habeas petition.
Petitioner admits that he has not exhausted all of his available administrative remedies, but contends that exhaustion is not required in this case because it would be futile. Although Respondent has not raised the issue, the Court addresses this issue because, under the doctrine of exhaustion of administrative remedies, "a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself." Howell v. INS, 72 F.3d 288, 291 (2d Cir.1995) (quotation omitted).
"Where Congress specifically mandates, exhaustion is required." McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Where, as in the case of § 1226(c), Congress has not clearly mandated exhaustion, whether to require exhaustion is within the sound discretion of the court. Id. at 144, 112 S.Ct. 1081. In such circumstances, the Court "must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion." Id. at 146, 112 S.Ct. 1081.
Under Supreme Court precedent, there are "at least three broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion." Id. Those circumstances include: "(1) where such a requirement would subject an individual to an unreasonable or indefinite time frame for administrative action; (2) where the administrative agency lacks the competence to resolve the particular issue presented, or (3) the exhaustion of administrative remedies would be futile because the administrative body is shown to be biased or has pre-determined the issue before it". Shurney, 201 F.Supp.2d at 789; see McCarthy, 503 U.S. at 146-48, 112 S.Ct. 1081.
The present case is a constitutional challenge to § 1226(c), which administrative fora are not empowered to address dispositively. See McCarthy, 503 U.S. at 147-48, 112 S.Ct. 1081; Marogi, 126 F.Supp.2d at 1060-61. "Indeed, the [BIA] has expressly found that it lacks authority to determine the constitutionality of the mandatory detention provisions of 8 U.S.C. § 1226(c)." Shurney, 201 F.Supp.2d at 789 (citing In re Joseph, Int.Dec. 3387 at 6 (BIA 1999)). Because the BIA lacks the ability to resolve the issue, it would be futile for Petitioner to pursue administrative remedies. See id.; Marogi, 126 F.Supp.2d at 1060. Thus, the Court shall address the merits of the petition without requiring administrative exhaustion.
B. ANALYSIS
Congress passed 8 U.S.C. § 1226(c) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009. Entitled "Detention of criminal aliens," § 1226(c) provides, in relevant part:
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who ...
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
8 U.S.C. § 1226(c)(1)(B).
Thus, if the immigration judge determines that § 1226(c) applies, detention is mandatory, as § 1226(c)(1) precludes bail during the pendency of removal proceedings for those individuals designated as "criminal aliens." See Kim v. Ziglar, 276 F.3d 523, 527 (9th Cir.2002).
Petitioner claims that before he may be detained indefinitely in removal proceedings, he his entitled, at least, to an individualized determination that he is a flight risk or a danger to the community. Petitioner contends, therefore, that § 1226(c)'s mandatory detention provision violates his substantive and procedural due process rights under the Fifth Amendment, and he brings both facial and as-applied challenges to § 1226(c).
Outside of the First Amendment context, a Court may uphold a facial challenge to a statute only if the challenging party can demonstrate that there is no constitutional application of the statute. Coleman v. DeWitt, 282 F.3d 908, 914 (6th Cir.2002); United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Petitioner has failed to carry this heavy burden. In Kim v. Ziglar, the Ninth Circuit declined to address whether § 1226(c) is unconstitutional on its face, noting that the statute also applies to ...
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Habtegaber v. Jenifer.
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