Hall v. I.N.S.

• Decision Date: 25 March 2003
• Docket Number: No. 02-103S.,02-103S.
• Citation: 253 F.Supp.2d 244
• Parties: Errol L. HALL, Plaintiff, v. IMMIGRATION AND NATURALIZTION SERVICE (INS), Steven Farquharson, District Director, and Warden Cudworth, Aci, Cranston, Defendants.
• Court: U.S. District Court — District of Rhode Island

Page 244

253 F.Supp.2d 244

Errol L. HALL, Plaintiff, v. IMMIGRATION AND NATURALIZTION SERVICE (INS), Steven Farquharson, District Director, and Warden Cudworth, Aci, Cranston, Defendants.

No. 02-103S.

United States District Court, D. Rhode Island.

March 25, 2003.

David Alan Schechter, Esq., Providence, RI, for Plaintiff.

Robin E. Feder, Esq., Providence, RI, for defendants.

DECISION AND ORDER

Smith, District Judge.

I. Introduction

This case is before the Court on Petitioner Errol L. Hall's ("Hall") objection to a Report and Recommendation issued by Magistrate Judge David L. Martin. Hall, currently in the custody of the Immigration & Naturalization Service ("INS"),¹ filed an Emergency Motion for Immediate Release from Mandatory Detention or in the Alternative an Individualized Bond Hearing (the "Petition"). In that Petition, Hall claimed that his mandatory detention by the INS under § 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), violates the Due Process Clause of the Fifth Amendment to the United States Constitution. Magistrate Judge Martin correctly treated the Petition as one for habeas relief pursuant to 28 U.S.C. § 2241.

The INS filed a motion to dismiss Hall's Petition, and after a full hearing on the merits, Magistrate Judge Martin recommended the dismissal of Hall's Petition. For the reasons that follow, this Court adopts and incorporates the detailed facts and travel of the case as set forth by Magistrate Judge Martin in the Report and Recommendation. However, this Court declines to adopt Magistrate Judge Martin's Report and Recommendation insofar as it holds that § 236(c) of the INA does not violate Hall's right to due process afforded to him under the Fifth Amendment. Rather, this Court holds that Hall's right to due process under the Fifth Amendment has been violated by his mandatory detention under § 236(c) without an individualized pre-detention hearing.

II. Background²

Petitioner is fifty-one years of age and a native of Jamaica. He left Jamaica at a young age and lived in the United Kingdom for approximately fourteen years before coming to the United States in 1973. He was admitted to the United States on or about April 14, 1973, on a temporary tourist visa and remained here after the expiration of that visa in December 1973.

On April 15, 1983, after pleading guilty, Petitioner was convicted of armed robbery in the Commonwealth of Massachusetts and received a reformatory sentence of twenty years. He served approximately two years of that sentence in prison and state pre-release programs and the balance on parole. In or around November 1995, while on parole, Petitioner began working at an escort service answering phones. In 1997 he was charged with violating his parole but subsequently began cooperating with law enforcement authorities in a criminal investigation of the escort service. On November 5, 1997, Petitioner was convicted of two offenses: accessory before the fact and deriving support from prostitution.³ Petitioner was sentenced to two years on this conviction.

While Petitioner was serving this sentence, the INS issued a Notice to Appear charging him as being removable based upon the overstay of his 1973 visa and his 1983 conviction.⁴ Petitioner was taken into INS custody on May 5, 1999, upon completion of his two-year sentence.

On March 3, 1999, an immigration judge found that Petitioner was deportable (1) as an alien who overstayed his temporary period of admission since 1973; and (2) in light of his conviction for an aggravated felony (armed robbery) in 1983. See 8 U.S.C.A. §§ 1227(a)(1)(B) and (a)(2)(A)(iii) (1999).⁵ That decision was appealed to the Board of Immigration Appeals ("BIA"), where it was affirmed on August 20, 1999. See id. The First Circuit denied Petitioner's application for direct judicial review on January 9, 2001, without prejudice to filing a petition in the district court pursuant to 28 U.S.C. § 2241.⁶

Hall filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Massachusetts, which petition was transferred to this Court on February 21, 2001. On April 27, 2001, this Court (Torres, C.J.) dismissed that action after finding that neither the immigration judge nor the BIA had erred in denying Hall additional continuances to obtain a visa before determining Hall to be removable. Hall again appealed to the First Circuit. During the pendency of that appeal, the BIA reopened Petitioner's removal proceedings and remanded the matter to the immigration judge for further proceedings and a new decision, presumably on his application for waiver of removal.⁷ Consequently, the First Circuit on December 11, 2001, remanded the case to the district court with directions to dismiss the case as moot.⁸ This Court issued such a dismissal on February 27, 2002.

On the same date, Hall commenced the instant proceeding, seeking his immediate release from detention or, in the alternative, an individualized bail hearing to consider his conditional release pending completion of his re-opened removal proceedings. The Petition also includes claims seeking (1) the return of Petitioner's legal and personal documents, and (2) damages for physical and emotional abuse and injuries sustained as a result of his frequent transfers among prison institutions.⁹

Petitioner alleges that he has been in INS custody since May 5, 1999, and has been in custody continuously since that date. The record shows that while in INS custody, Petitioner has received two INS administrative custody determinations. Both determinations indicated that Petitioner should be detained in INS custody pending a final determination of his removal.

On March 6, 2002, the Court (Torres, C.J.) ordered the INS to file a response to the Petition by March 22, 2002. The INS filed a motion to enlarge the time for filing its response, which motion was granted. On May 21, 2002, Respondents filed their Motion to Dismiss and accompanying memorandum and exhibits. On July 1, 2002, Chief Judge Torres appointed counsel to represent Petitioner in the present proceeding. Petitioner's counsel filed a memorandum opposing the Motion To Dismiss on September 25, 2002, and on September 26, 2002, a hearing was held. Following the hearing, Judge Torres transferred the Petition to the docket of Judge William E. Smith. On November 15, 2002, Magistrate Judge Martin issued his Report and Recommendation recommending the dismissal of Hall's Petition. Hall objected to the Report and Recommendation, and on January 24, 2003, this Court held a hearing on the objection.

III. Analysis

A. Standard of Review

A motion for habeas relief may be referred to a magistrate judge for initial findings and recommendations. 28 U.S.C. § 636(b)(1)(B); D.R.I. Local R. 32. Determinations made by magistrate judges on dispositive pretrial motions and prisoner petitions are reviewed de novo by the district court. See Fed.R.Civ.P. 72(b). In making a de novo determination, the district court "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with further instructions." Id. In reviewing a magistrate judge's recommendations, the district court must actually review and weigh the evidence presented to the magistrate judge, and not merely rely on the magistrate judge's report and recommendation. See United States v. Raddatz, 447 U.S. 667, 675-76,100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

B. The Statutory Basis for Detention

The INS detained Hall pursuant to INA § 236(c), codified at 8 U.S.C. § 1226(c), a provision passed as part of the Illegal Immigration Reform and Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009. Section 236(c) requires the mandatory, pre-removal detention of criminal aliens. The provision directs, in pertinent part, that:

The Attorney General shall take into custody any alien who—

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(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,

(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. § 1226(c)(1). Therefore, under § 236(c), the Attorney General, by way of the INS, is required to detain "deportable" criminal aliens following the completion of their term of incarceration under prior sentences. The INS is required to detain such individuals until a decision on their removal from the United States is final. As long as the alien fits the definition contained in the statute, the INS only has discretion to release him or her if the individual or an immediate family member is participating in the Witness Protection Program and the alien can convince the INS that the release would pose no danger to the safety of other persons or property. 8 U.S.C. § 1226(c)(2). Mandatory detention in these cases applies to both lawfully and unlawfully admitted aliens with criminal convictions. During the period of detention, regardless of its duration, a detainee is not allowed a bail hearing. It is this lack of a bail hearing that provides the basis for Hall's Petition in this case.

C. The Constitutional Framework Regarding Limitations on Immigration Detention

1. General Principles of Due Process in Immigration Matters

Removal of aliens and legal permanent residents ("LPRs") is a power inherent in every sovereign...