Kellman v. District Director, USINS, 90 Civ. 4620 (RWS).

• Decision Date: 06 November 1990
• Docket Number: No. 90 Civ. 4620 (RWS).,90 Civ. 4620 (RWS).
• Citation: 750 F. Supp. 625
• Parties: Terry Winfield KELLMAN, Petitioner, v. The DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, United States Department of Justice, New York, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

750 F. Supp. 625

Terry Winfield KELLMAN, Petitioner, v. The DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, United States Department of Justice, New York, New York, Respondent.

No. 90 Civ. 4620 (RWS).

United States District Court, S.D. New York.

November 6, 1990.

Terry Winfield Kellman, pro se.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (Timothy MacFall, Sp. Asst. U.S. Atty., of counsel), for respondent.

OPINION

SWEET, District Judge.

Terry Winfield Kellman ("Kellman") has petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Kellman is currently being held under detention by the Immigration and Naturalization Service ("INS") while awaiting the outcome of deportation hearings. He has challenged the constitutionality of Section 242(a)(2) of the Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. § 1252(a)(2),¹ under which he has been denied the opportunity for a bail hearing. For the following reasons, the statute is held to be unconstitutional and the writ will issue unless the required hearing is held.

THE FACTS

Kellman, a native of Barbados, West Indies, was admitted to the United States as a permanent resident alien in 1980. For the past ten years, Kellman has lived and worked in New York City. In January, 1989, Kellman pled guilty in New York State Supreme Court to one count of attempted criminal sale of a controlled substance in the third degree in violation of §§ 110.00 et seq. and 220.39 of the New York Penal Law. Following his plea, Kellman was sentenced to a prison term of one to three years.

Kellman was paroled from state custody in March of this year, at which time he was arrested by the INS and held for deportation pursuant to sections 241(a)(4)(B) and 241(a)(11) of the Act.² The INS claimed that Kellman's state criminal conviction satisfied the "aggravated felony" requirement of § 241(a)(4)(B). Initially, Kellman was detained without bond, and although a bond redetermination hearing was later held, the Immigration Judge who presided over that hearing denied Kellman's petition for release based solely on § 242(a)(2) and its requirement that "the Attorney General shall not release from custody" any aggravated felon awaiting deportation.

Kellman's original petition for habeas corpus relief under 28 U.S.C. § 2241 challenged only the INS's determination that he was an "aggravated felon" within the meaning of the INA. While Kellman conceded that his state conviction could form a basis for deportation under § 241(a)(11), he argued that he should not have been detained without bail under § 242(a)(2) while awaiting the deportation decision. After the government had responded to this argument, Kellman, through a letter to the court, raised the question of the constitutionality of § 242(a)(2). The government was directed to respond to this new claim, and the issue was fully submitted on October 5, 1990.

DISCUSSION

Aggravated Felony

Kellman challenges the INS determination that he is an aggravated felon, because he was convicted of violating a state narcotics law rather than the Controlled Substance Act. However, Kellman does not assert that he could not have been prosecuted under federal law for his behavior. The state statute which he was convicted of attempting to violate, New York Penal Law § 220.39 is substantially similar to 21 U.S.C. § 841(a)(1), which makes it a federal crime to "knowingly or intentionally ... distribute, or dispense, or possess with intent to ... distribute, or dispense a controlled substance." Although Kellman was not in fact convicted of violating the Controlled Substance Act, his conduct was "punishable under" that statute, and thus constituted a drug trafficking crime qualifying him as an aggravated felon under the INA. See Leader v. Blackman, 744 F.Supp. 500, 504 (S.D.N.Y.1989) (attempted violation of same New York law constituted aggravated felony under INA); In re Barret, No. A37-213-802 (Board of Immigration Appeals Nov. 7, 1989) (same result under comparable Maryland narcotics law).

Constitutionality of § 242(a)(2)

Recently, a number of courts have addressed the issue of whether § 242(a)(2)'s denial of bail to aggravated felons awaiting deportation offends the Constitution. In Davis v. Weiss, 749 F.Supp. 47 (D.Conn.1990), Morrobel v. Thornburgh, 744 F.Supp. 725 (E.D.Va. 1990) and Eden v. Thornburgh, No. 90-1473-CIV-KEHOE (S.D.Fla. July 23, 1990) the statute was held to be a valid exercise of Congress' broad power to regulate the admission and exclusion of aliens. However, in five other decisions, Joe v. INS, No. 90-12313-Z-20, 1990 WL 167457 (D.Mass. Oct. 26, 1990); Paxton v. INS, 745 F.Supp. 1261 (E.D.Mich.1990); Aguno- bi v. Thornburgh, 745 F.Supp. 533 (N.D.Ill. 1990); Leader v. Blackman, supra, 744 F.Supp. 500 (S.D.N.Y.1990) and Chao Yang v. INS, 3-90-CV-300 (D.Minn. June 27, 1990), § 242(a)(2) was found to violate the procedural and substantive due process rights of alien detainees. On balance, the analysis of the latter cases seems more persuasive, and where relevant, the reasoning of Leader is hereby adopted.

In Davis, Morrobel, and Eden, § 242(a)(2) was found to be constitutional based on the courts' use of a relaxed standard of review derived from an admittedly long line of Supreme Court cases involving challenges to immigration statutes. Primary among these is Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), in which the Court reaffirmed the principle that "congressional determinations in immigration matters are subject only to limited judicial review." Id. at 795-96 n. 6, 97 S.Ct. at 1479-80 n. 6. However, Fiallo recognized "a limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens." Id. at 793 n. 5, 97 S.Ct. at 1478 n. 5. Moreover, the Fiallo Court relied heavily on Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954), in which Justice Frankfurter specifically stated

Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process.

347 U.S. at 531, 74 S.Ct. at 743 (quoted in Fiallo, 430 U.S. at 792-93 n. 4, 97 S.Ct. at 1478 n. 4) (emphasis added).

Thus while it is appropriate to accord a significant degree of deference to Congress' decision to deport immigrants in Kellman's position, the same deference is not mandated when examining the way in which that deportation is accomplished. See Paxton, 745 F.Supp. at 1265.

The appropriate standard for a determination as to whether or not the statute violates Kellman's rights under the Due Process clause of the Fifth Amendment is set forth in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), which analyzed the constitutionality of the pretrial detention provision of the Bail Reform Act of 1984. While the Salerno Court upheld the statute under both substantive and procedural due process challenges, its decision was based on the provisions which required a "prompt detention hearing" and the fact that any detention would be of limited length due to the strictures of the Speedy Trial Act. Salerno, 481 U.S. at 747, 107 S.Ct. at 2101.

Section 242(a)(2) has no such built-in limitations or guarantees. Although § 242A of the INA, 8 U.S.C. § 1252a, specifies expedited procedures for deportation of aliens convicted of committing aggravated felonies, there is no mandate that the proceedings be completed within any specific period of time.³ See Paxton, 745 F.Supp. at 1264; Leader, 744 F.Supp. at 508. Moreover, it does not appear from the record in this case that the INS made any effort to comply with § 242A, insofar as the deportation proceedings against Kellman were not initiated until after his release from state custody in March, 1990. Under the Salerno standard, therefore, § 242(a)(2) must be held to violate Kellman's substantive due process rights.

Moreover, in both Paxton and Leader, § 242(a)(2) was held to violate procedural due process, based on the Supreme Court's warning that a "purpose to injure society could not be imputed generally to all aliens subject to deportation." Carlson v. Landon, 342 U.S. 524, 538, 72 S.Ct. 525, 533, 96 L.Ed. 547 (1952).

We believe that § 242(a)(2)'s mandate is precisely the type of impermissible imputation of a threat to society that Carlson did not countenance. Section 242(a)(2) does not permit any type of hearing to question whether bail should be permitted, but instead, makes a general rule applicable to all aliens convicted of one of three types of crimes. The fact that the statute is limited to these specific crimes as in Salerno does not cure this defect since no case-by-case determination of suitability for release on bail is permitted by the statute.

Leader, 744 F.Supp. at 508; see also Paxton, 745 F.Supp. at 1264. The requirements of procedural due process spelled out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) require an individual bail determination where, as here, "a bail hearing would not pose significant fiscal or administrative burdens on the government and would greatly minimize the risk of erroneous deprivation of a liberty interest." Leader, 744 F.Supp. at 508 (citing Mathews, 424 U.S. at 335, 96 S.Ct. at 903); see also Paxton, 745 F.Supp. at 1264.

On the procedural due process issue, the government asserts that Kellman has been afforded an adequate opportunity to contest his classification as an aggravated felon. This does not answer the question of whether he has had a sufficient opportunity to challenge his detention pending the outcome of the substantive contest. The weakness of the government's position is emphasized by its claim that "there is no deprivation of procedural due process...