Mapp v. Reno

• Decision Date: 01 August 2000
• Docket Number: Docket No. 99-2735
• Parties: (2nd Cir. 2001) COLIN MAPP, Petitioner-Appellee, v. JANET RENO, as Attorney General of the United States; DORIS MEISSNER, as Commissioner of the Immigration and Naturalization Service; EDWARD McELROY, as New York District Director of the Immigration and Naturalization Service; LYNNE UNDERDOWN, New Orleans District Director of the Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE, Respondents-Appellants
• Court: U.S. Court of Appeals — Second Circuit

Page 221

241 F.3d 221 (2nd Cir. 2001)

COLIN MAPP, Petitioner-Appellee, v. JANET RENO, as Attorney General of the United States; DORIS MEISSNER, as Commissioner of the Immigration and Naturalization Service; EDWARD McELROY, as New York District Director of the Immigration and Naturalization Service; LYNNE UNDERDOWN, New Orleans District Director of the Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE, Respondents-Appellants.

Docket No. 99-2735

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 6, 2000

Decided: February 23, 2001

Colin Mapp, a lawful permanent resident of the United States, filed a petition for a writ of habeas corpus challenging an order of removal issued by the Immigration and Naturalization Service ("INS"). Mapp alleged that the INS's refusal to consider his eligibility for a waiver of deportation under former 8 U.S.C. § 1182 was unlawful. While his habeas petition was pending before the district court, Mapp requested that he be released from custody on bond. The district court (Sifton, J.) determined that the federal district courts have inherent power to release alien habeas petitioners on bail and concluded that Mapp was entitled to release.

Vacated and remanded.

MICHAEL P. DiRAIMONDO, Diraimondo & Masi, LLP, New York, NY.

SCOTT DUNN, Assistant United States Attorney, for Loretta E. Lynch, United States Attorney for the Eastern District of New York (Deborah B. Zwany, Varuni Nelson, Assistant United States Attorneys Patrick Shen, Special Assistant United States Attorney, on the brief).

Before: MESKILL, CALABRESI, and SOTOMAYOR, Circuit Judges.

CALABRESI, Circuit Judge:

In this case, we are called upon to determine whether the federal courts have inherent authority to grant bail to habeas petitioners who are being detained by the Immigration and Naturalization Service. The INS argues that the "plenary power" enjoyed by Congress and the executive branch over immigration requires the utmost deference to the Attorney General's decisions with respect to detention of aliens. Consequently, while the federal courts have inherent power to release on bail a habeas petitioner who challenges his detention after a criminal conviction, in the government's view, judicial power to do the same with respect to habeas petitioners challenging detention by the INS is sharply constrained.

We hold that the federal courts have the same inherent authority to admit habeas petitioners to bail in the immigration context as they do in criminal habeas cases. We note that this authority may well be subject to appropriate limits imposed by Congress. But, because we find that Congress has not, to date, curtailed this feature of federal judicial power, we affirm the judgment of the district court that it was empowered to consider petitioner's request for bail. Nevertheless, we vacate the district court's decision to release this particular petitioner because that court did not consider all of the standards that must be met with respect to bail determinations during habeas proceedings.

I

Petitioner Colin Mapp is a native of Trinidad and Tobago. He entered the United States as a lawful permanent resident in 1970 at the age of eight. On April 8, 1987, Mapp was convicted in the Supreme Court of New York (Queens County) of criminal possession of stolen property in the first degree, a class D felony under New York law. On July 7, 1988, Mapp was convicted of attempted possession of stolen property in the third degree, a class E felony under New York law. Both convictions were pursuant to guilty pleas.

On March 4, 1997, almost nine years after Mapp's second conviction, the INS issued an Order to Show Cause; it claimed that Mapp, as an alien convicted of two crimes involving moral turpitude, see former 8 U.S.C. § 1251(a)(2)(A) (ii)), was deportable under § 241(a)(2)(A)(ii) of the Immigration and Nationality Act.¹ Mapp conceded that he was subject to deportation under this statute, but contended that he was eligible for a waiver pursuant to INA § 212(c) (a "§212(c) waiver"). Under this provision, resident aliens who have accrued seven years of lawful permanent residence in the United States may apply for (but are not guaranteed) a waiver of deportation. See 8 U.S.C. §1182(c) (1994) (repealed by Illegal Immigration Reform and Immigrant Responsibility Act, ("IIRIRA"), § 304(b), Pub.L. No. 104 208, 110 Stat. at 3009 597 (1996)).

On October 21, 1997, an Immigration Judge deemed Mapp to be statutorily ineligible for § 212(c) relief and ordered him deported to Trinidad. The Board of Immigration Appeals ("BIA") affirmed. The BIA explained that, in its view, Mapp was ineligible for a § 212(c) waiver due to the enactment of § 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). That provision states that "[§ 212(c)] shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in [INA] section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)." Antiterrorism and Effective Death Penalty Act, § 440(d), Pub. L. No. 104-132, 110 Stat. 1214, 1277 (1996). Both of Mapp's offenses fell into this excluded category.

The BIA conceded that, under this court's precedents, see Henderson v. INS, 157 F.3d 106, 130 (2d Cir. 1998), cert. denied Reno v. Navas, 526 U.S. 1004 (1999), these restrictions on §212(c) waivers do not apply to deportation proceedings commenced before the AEDPA's effective date. Because the proceeding against Mapp was started after that date, however, the BIA determined that §440(d) was applicable to him, and, as a result, deemed him ineligible for a §212(c) waiver.

Mapp filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York challenging this interpretation of §440(d) of the AEDPA. Mapp contended that because he committed the crimes that rendered him deportable before the effective date of that statute, application of §440(d) to him would have a retroactive effect "contrary to the intent of Congress." He asked that the district court deem him eligible for a §212(c) waiver and direct the INS to conduct a hearing on the merits of his waiver claim.

While his habeas proceeding was before the district court, Mapp requested that the INS release him from custody on bond pending disposition of his petition. The INS denied this request, stating first that, because "a final order of removal [has been issued], he is not eligible for a bond," and second, that "Mr. Mapp would not be eligible for a bond, even if he did not have a final order of removal, pursuant to Title 8, USC, Section 1226(c)," which provides for mandatory detention of criminal aliens such as Mapp.

Having been deemed ineligible for bail by the INS, Mapp sought relief from the district court, which held initially that "[f]ederal case law is clear that release on bail may be ordered pending disposition of a petition for habeas corpus," and then proceeded to assess whether Mapp was fit for bail. The court explained that Mapp had a substantial likelihood of success on the merits of his habeas petition,² and that his situation was "extraordinary when compared to typical habeas proceedings." Finally, the district court found that Mapp was neither a serious flight risk, nor a threat to the community. As a result, the court ordered Mapp released from custody on bond.

This appeal followed.

II

A. Inherent Authority to Grant Bail

We review de novo the district court's conclusion that the federal courts have inherent authority to release habeas petitioners on bail. See generally United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) ("Whether the district court applied correct principles of law is a matter of law that we may view de novo.").

The question of whether the federal courts have inherent power to grant bail in any case where they may properly assert jurisdiction (whether it be criminal or involving alien deportation) is by no means a novel one. In fact, it has divided the federal courts for over a century. As one federal court explained:

On the question of inherent power to grant bail in such cases, the courts have divided themselves into two groups. The following cases support the contention that the power to admit to bail is incident to the power to hear and determine the case: United States v. Evans, 6 Cir., 1880, 2 F. 147; In re Gannon, D.C. Pa. 1928, 27 F.2d 362; In re Chow Goo Pooi, 9 Cir., 25 F. 77; In re Ah Kee, 9 Cir., 1884, 21 F. 701; In re Ah Tai, D.C. Mass., 125 F. 795; In re Chin Wah, D.C. Or., 1910, 182 F. 256; United States v. Yee Yet, D.C.N.J. 1911, 192 F. 577; Whitfield v. Hanges, 8 Cir., 222 F. 745; Ewing v. United States, 6 Cir., 1917, 240 F. 241. The following cases support the view that there is no such inherent power in the federal courts and that they cannot admit a person to bail unless such power is expressly conferred by statute: In re Carrier, D.C. Colo. 1893, 57 F. 578; Case of Chinese Wife, C.C. Cal. 1884, 21 F. 808; Chin Wah v. Colwell, 9 Cir., 1911, 187 F. 592; United States v. Curran, 2 Cir., 1924, 297 F. 946, 36 A.L.R. 877; United States v. Pizzarusso, D.C., 28 F.Supp. 158; In re Hanoff, D.C. Cal. 1941, 39 F.Supp. 169; Ex parte Perkov, D.C. Cal. 1942, 45 F.Supp. 864; United States v. Longo, D.C. Conn. 1942, 46 F.Supp. 169; Bongiovanni v. Ward, D.C. Mass. 1943, 50 F.Supp. 3.

Principe v. Ault, 62 F.Supp. 279, 281 (D.Ohio 1945). In addressing this question, therefore, we are not required to break new ground so much as to revisit a place where we have been before and to take stock of how the landscape has changed over the years.

This court first addressed the question of inherent power in United States ex rel. Carapa v. Curran, 297 F. 946 (2d Cir. 1924). In that case, we stated that the passage of a federal statute was...