Marogi v. Jenifer, 00-CV-74443-DT.

Decision Date15 December 2000
Docket NumberNo. 00-CV-74443-DT.,00-CV-74443-DT.
Citation126 F.Supp.2d 1056
PartiesDorid MAROGI, Petitioner v. Carol JENIFER, et al., Respondents
CourtU.S. District Court — Eastern District of Michigan

Mary D. Rigdon, Assist. U.S. Atty., Detroit, MI, for petitioner.

David K. Wenger, Detroit, MI, for respondents.


CLELAND, District Judge.


The facts are not in dispute. Dorid Marogi, a citizen of Iraq, was lawfully admitted into the United States as a refugee on July 13, 1982. Twice in little more than a year, Marogi was convicted by his plea of guilty to the felony of delivery and/or manufacture of marijuana: the first crime was committed in August 1998, for which he was sentenced in December of that year to 20 days in jail and 18 months probation. The second arose from an incident that occurred while he was on probation and only several months after his first sentencing: he was again apprehended in a marijuana delivery incident in July 1999, pleaded guilty, and was sentenced in January 2000 to 9 months in jail and 2 years of probation.1 Thus, commencing in August 2000, Marogi has been detained by the United States Immigration and Naturalization Service ("INS") pursuant to Title 8 of the United States Code, which imposes mandatory detention of criminal aliens convicted of certain crimes. 8 U.S.C. § 1226(c); INA § 236(c).

Because these convictions render Marogi deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) (convictions of aggravated felonies, including drug trafficking) and § 1227(a)(2)(B)(i) (convictions of any law relating to a controlled substance), the INS has detained him, pending the conclusion of his removal proceedings. At an administrative hearing on September 12, 2000, Marogi requested that bond be set in his case. Because Marogi came within the mandatory detention requirement of § 236(c), the immigration judge ruled that she did not have jurisdiction to determine whether he was a suitable bond candidate. Marogi then conceded that he was removable (id.) and filed an application for the withholding of removal under regulations promulgated pursuant to the Convention Against Torture ("CAT"). See 8 C.F.R. 208.16, 208.17.2 Withholding was denied by an immigration judge on October 31, 2000. On November 24, 2000, Marogi appealed that decision to the Bureau of Immigration Appeals ("BIA" or "Bureau").

In his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241(c), Marogi challenges the mandatory detention under INA § 236(c) as unconstitutional under the Eighth Amendment's prohibition against excessive bail and the Fifth Amendment's Due Process Clause.


Before reaching the substance of Marogi's petition for a writ of habeas corpus under 28 U.S.C. § 2241, the court must determine whether there is any impediment to the exercise of its jurisdiction over this matter. There are two potential challenges to the court's habeas jurisdiction. First, it must be determined whether habeas review is precluded by the INA. Second, it must be determined whether Marogi's failure to exhaust administrative remedies prohibits this court from addressing his constitutional claims. The court concludes that neither challenge precludes it from exercising jurisdiction over Marogi's petition.

A. Availability of Habeas Review

The overwhelming majority of courts addressing constitutional challenges to § 236(c) and related INA provisions have concluded that habeas review under 28 U.S.C. § 2241 is not precluded. See Martinez v. Greene, 28 F.Supp.2d 1275, 1279 (D.Colo.1998) (listing cases). Although the INS has not challenged the court's habeas jurisdiction in this case, two statutory provisions often have been invoked to support such a challenge in other cases.

First, INA § 242(g), codified at 8 U.S.C. § 1252(g), provides that "no 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 under this chapter." 8 U.S.C. § 1252(g). In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), however, the United States Supreme Court narrowly interpreted this provision as covering only the three specific situations listed: (1) decisions to commence proceedings, (2) decisions to adjudicate cases, and (3) decisions execute removal orders. Id. at 482-87, 119 S.Ct. 936. In this case, Marogi does not challenge the Attorney General's decision to commence proceedings against him, to adjudicate his case, or to execute his removal order. Rather, his claim challenges the constitutionality of the statute itself. Section 1252(g), therefore, does not foreclose § 2241 habeas review of his claims. Accord Parra v. Perryman, 172 F.3d 954 (7th Cir.1999); Ho v. Greene, 204 F.3d 1045, 1051 (10th Cir.2000); but see Richardson v. Reno 180 F.3d 1311 (11th Cir.1999) (holding that § 2241 jurisdiction was precluded by IIRIRA's3 permanent rules).

Second, INA § 236(e), codified at 8 U.S.C. § 1226(e), states as follows:

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 section also, however, should not be construed as precluding § 2241 habeas review in this case. Rather, like § 1252(g), § 1226(e) "deals with challenges to operational decisions, rather than to the legislation establishing the framework for those decisions." Parra, 172 F.3d at 957. Again, Marogi does not challenge the propriety of the Attorney General's having implemented the statute against him, but rather the constitutionality of the statute. Hence, the court finds that § 1226(e) does not preclude its exercise of § 2241 habeas jurisdiction.

This conclusion is supported, if not required, by the decision of the United States Court of Appeals for the Sixth Circuit in Pak v. Reno, 196 F.3d 666 (6th Cir.1999). In Pak, the court joined the majority of courts to hold that habeas corpus jurisdiction under § 2241 for criminal aliens whose petitions fall within the purview of the IIRIRA's transitional rules was not precluded. Although this case is governed by the permanent and not the transitional rules, the analysis of the Sixth Circuit is still applicable. Specifically, the Sixth Circuit held that "any repeal of the federal courts' historic habeas jurisdiction must be explicit and make express reference specifically to the statute granting jurisdiction." Pak, 196 F.3d at 672 (citing Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); Goncalves v. Reno, 144 F.3d 110, 121 (1st Cir.1998)). Further, the court noted its obligation to read statutes to avoid "serious constitutional problems, such as those we would face were IIRIRA read to take away habeas jurisdiction." Pak, 196 F.3d at 673.

Neither § 1252(g) nor § 1226(e) explicitly and expressly revokes the court's habeas jurisdiction. Therefore, to avoid the serious constitutional problems that otherwise would arise, the court finds that § 2241 habeas review is not precluded by these sections.

B. Failure to Exhaust

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. Immigration and Naturalization Service, 72 F.3d 288, 291 (2d Cir.1995) (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938)). The INS argues that this doctrine bars review of Marogi's habeas petition because either (1) he did not appeal the denial of bond and/or (2) the Bureau of Immigration Appeals has not yet ruled on his appeal of the bond and/or CAT decisions. Marogi counters that awaiting further administrative adjudication would be futile, because his claim that § 236(c) is unconstitutional cannot be addressed by the administrative tribunal. For the following reasons, the court adopts Marogi's position and excuses his failure to exhaust all available administrative remedies.

"Where Congress specifically mandates, exhaustion is required." McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1991). Where Congress has not clearly mandated, however, whether to require exhaustion is within the sound discretion of the court. See id. In this case, Congress has not mandated exhaustion of administrative remedies. Accordingly, it is within the court's discretion to determine whether exhaustion should be required. In making this determination, 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.

The United States Supreme Court has recognized at least three "broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion." Id. at 146, 112 S.Ct. 1081. One such set of circumstances is implicated in this case:

[A]n administrative remedy may be inadequate because of some doubt as to whether the agency was empowered to grant effective relief. For example, an agency, as a preliminary matter, may be unable to consider whether to grant relief because it lacks institutional competence to resolve the particular type of issue presented, such as the constitutionality of the statute.

Id. at 147-48, 112 S.Ct. 1081 (emphasis added) (internal citations omitted). In this case, Marogi directly challenges the constitutionality of INA § 236(c). The BIA has expressly stated that it lacks authority to...

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