Ly v. Hansen

• Decision Date: 26 November 2003
• Docket Number: No. 01-3016.,01-3016.
• Parties: Hoang Minh LY, Petitioner-Appellee, v. Mark B. HANSEN, James Ziglar, and John Ashcroft, Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

351 F.3d 263

Hoang Minh LY, Petitioner-Appellee, v. Mark B. HANSEN, James Ziglar, and John Ashcroft, Respondents-Appellants.

No. 01-3016.

United States Court of Appeals, Sixth Circuit.

Argued: July 31, 2002.

Decided and Filed: November 26, 2003.

Petition for Rehearing Denied En Banc: March 30, 2004. Pursuant to Sixth Circuit Rule 206

ARGUED: Michelle E. Gorden (argued and briefed), Emily A. Radford (briefed), U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, D.C., for Appellants.

Judy Rabinovitz (argued), ACLU IMMIGRATION RIGHTS PROJECT, New York, New York, for Appellee.

ON BRIEF: Michelle E. Gorden (argued and briefed), Emily A. Radford (briefed), U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, D.C., Lisa H. Johnson (briefed), ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellants.

Richard T. Herman (briefed), RICHARD T. HERMAN & ASSOCIATES, Cleveland, Ohio, for Appellee.

Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and HAYNES, District Judge.^*

BOGGS, C.J., delivered the opinion of the court, in which RYAN, J., joined. HAYNES, D.J. (pp. 273-78), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS, Chief Judge.

Mark Hansen, district director of the Immigration and Naturalization Service (INS), appeals the grant of habeas corpus to Hoang Minh Ly, a deportable criminal alien. Ly, a citizen of Vietnam, challenged the constitutionality of § 236(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which requires the Attorney General to detain immigrants who have committed certain crimes, pending removal proceedings. 8 U.S.C. § 1226(c) (West 1999). Ly alleges that the section violates substantive and procedural due process under the Fifth Amendment because it does not allow criminal aliens individual bond hearings to determine their suitability for release pending removal proceedings. Because the Supreme Court, in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), determined that IIRIRA should be interpreted to avoid the constitutional questions raised by indefinite detention of aliens awaiting removal from the United States, we affirm the result below for reasons different than those relied on by the district court. Brown v. Tidwell, 169 F.3d 330, 332 (6th Cir.1999).

I

Hoang Minh Ly entered the United States as a refugee in 1986. In 1993, Ly was convicted of credit card fraud, and sentenced to four months in prison, with two years of supervised release. In 1998, Ly was involved in a check-kiting scheme, wherein he deposited counterfeit cashier's checks into a bank account, knowing that someone else would withdraw the money and split the proceeds. He was convicted of bank fraud. Ly has fully served his criminal sentences on both convictions.

The INS issued Ly a Notice to Appear on May 10, 1999. The INS took Ly into custody, under the mandatory detention provisions of IIRIRA § 236(c), on May 11, 1999. Overall, Ly was kept in detention for 500 days, before his release at the order of the district court. The INS asserted that Ly was subject to removal¹ from the United States because he was an alien convicted of two crimes involving moral turpitude, and he was an alien convicted of an aggravated felony. On August 5, 1999, Ly filed a habeas corpus petition in federal district court, challenging his detention. The INS supplemented the charges against Ly on August 13, 1999, with another charge that Ly was an alien convicted of an aggravated felony. At an August 19, 1999 hearing, Ly requested a continuance to permit his counsel additional time to review the supplemental charges. The hearing was rescheduled for September 21, 1999. At the September 21, 1999 hearing, the immigration judge found that Ly was removable. Ly then filed applications for relief from deportation on various grounds, including asylum, admission, withholding of removal, deferral of removal, and permanent resident status. On January 27, 2000, the INS issued a Notice of Decision denying Ly's application for permanent resident status. The immigration judge set a merits hearing for Ly's other applications for relief for March 16, 2000, but the hearing was continued to April 28, 2000. In September 2000, the magistrate judge recommended that habeas relief be granted. The district court adopted this recommendation, granting habeas relief unless a bond hearing was held. The INS timely appealed the district court's decision. One month later, on October 19, 2000, the immigration judge entered a written decision, ordering Ly's removal to Vietnam and denying his remaining applications for relief. On April 30, 2001, the Board of Immigration Appeals issued a final decision, and affirmed the immigration judge's order. Based on the final administrative removal order, the Government filed a motion with us to remand the case to district court.

The INS, in accordance with the district court's order, conducted a bond hearing. At that hearing, on November 21, 2000, the immigration judge determined that he did not have the statutory authority to release Ly from detention. Nevertheless, on November 24, 2000, the INS released Ly on his own recognizance and subject to specified conditions.

II

A. Substantive Due Process and Zadvydas

1. Standard of Review and Jurisdiction

We review the grant of habeas corpus, and the constitutional questions inherent in such a grant, de novo. Staley v. Jones, 239 F.3d 769, 775 (6th Cir.2001). We have jurisdiction to consider both substantive and procedural due process challenges to § 236(c), despite the jurisdictional limitations set out in IIRIRA. IIRIRA states: "[N]o 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...." 8 U.S.C. § 1252(g) (West 1999). In Pak v. Reno, 196 F.3d 666, 671-72 (6th Cir.1999), we held that this jurisdictional limitation did not extend to the habeas power of federal courts, in order to avoid the constitutional issue of whether or not such a limitation would violate the Suspension Clause of the Constitution, which states that the "privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." U.S. Const. Art. I § 9 cl. 2. The Supreme Court has also upheld the jurisdiction of courts to consider habeas claims arising out of immigration detention. See Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (courts have jurisdiction to hear habeas claims arising out of IIRIRA's post-removal detention provisions).

2. Zadvydas

The parties here ask whether Ly may be indefinitely incarcerated, under IIRIRA's mandatory pre-removal detention statute, § 236(c), pending his removal to Vietnam, given that such removal is not currently foreseeable due to the lack of a repatriation treaty between the United States and Vietnam. Section 236 of IIRIRA requires the attorney general to detain, among others, aliens convicted of either an aggravated felony or two crimes involving moral turpitude (such as fraud), pending removal proceedings. 8 U.S.C. § 1226(c). The INS asserts that because aliens detained under § 236 are prima facie deportable, they have no liberty interest and may be detained indefinitely, without a bond hearing, until an order of removal is entered. Ly contends that the constitution requires an immediate bond hearing for all criminal aliens awaiting removal.

While the appeal in the case was pending, the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), that indefinite detention of a removable criminal alien after a removal proceeding would violate a due process right to liberty under the Fifth Amendment. Id. at 682, 121 S.Ct. 2491. Zadvydas therefore construed IIRIRA as not requiring indefinite incarceration, by imposing a reasonable time limit (six months), supervised by the federal courts in habeas proceedings, on the amount of time that a deportable criminal alien may be detained after a determination as to removability has been made, unless the government asserts a "strong special justification" for the detention. Id. at 690, 121 S.Ct. 2491.

Zadvydas addressed the prospect of indefinite incarceration of deportable aliens created by the IIRIRA post-removal detention statute. The question remaining before us is whether the holding of Zadvydas extends to the mandatory pre-removal detention statute, § 236. Most aliens may be released on bond or paroled until their removal hearing. 8 U.S.C. § 1226(a) (West 1999). However, because certain types of criminal aliens pose extraordinarily high flight risks, Congress has ordered that aliens who have been convicted of an aggravated felony or two crimes involving moral turpitude (including fraud) must be detained pending removal proceedings, based on a prima facie determination of removability by the government. 8 U.S.C. § 1226(c). If an order of removal is not entered (or not entered promptly), the result is mandatory indefinite detention for criminal aliens, which is prohibited by Zadvydas.

3. Circuit Decisions

The question of indefinite detention under § 236 is one of first impression in this circuit. Our sister circuits have split on the issue. The Ninth and Tenth Circuits have adopted a bright-line approach, holding that § 236 is unconstitutional as applied to lawful permanent residents, no matter the length of actual detention. Hoang v. Comfort, 282 F.3d 1247 (10th Cir.2002), rev'd, ___ U.S. ___, 123 S.Ct. 1963, 155 L.Ed.2d 846 (2003); Kim v. Ziglar, 276 F.3d 523 (9th Cir.2002), rev'd, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). The Third Circuit has held that § 236 mandatory detention is unconstitutional if the detained alien seeks to avoid removal via administrative remedies. Patel v. Zemski, 275...