Martinez v. Greene
| Decision Date | 14 December 1998 |
| Docket Number | No. Civ.A. 98-B-2363.,No. Civ.A. 98-B-2347.,No. Civ.A. 98-B-2348.,No. Civ.A. 98-B-2257.,Civ.A. 98-B-2257.,Civ.A. 98-B-2347.,Civ.A. 98-B-2348.,Civ.A. 98-B-2363. |
| Citation | 28 F.Supp.2d 1275 |
| Parties | Miguel MARTINEZ, Petitioner, Hugo Arceo-Trevizo, Petitioner, Antonia Gallardo-Palomares, Petitioner, Martin Romero, Petitioner, v. Joseph R. GREENE, District Director, United States Immigration and Naturalization Service, Denver, Colorado, Respondent. |
| Court | U.S. District Court — District of Colorado |
Jim Salvator, Jim Salvator, Lafayette, CO, Judy Rabinovitz, American Civil Liberties Union Foundation, New York City, for petitioner.
Michael Hegarty, United States Attorney's Office Civil Division, Denver, CO, H. Bradford Glasman, Office of Immigration Litigation Civil Division, U.S. Department of Justice, Washington, D.C., for respondent.
In these related cases, Miguel Martinez (Martinez), Hugo Arceo-Trevizo (Arceo-Trevizo), Antonio Gallardo-Palomares (Gallardo-Palomares), and Martin Romero (Romero) (collectively, Petitioners) petition for writs of habeas corpus pursuant to 28 USC § 2241 and seek preliminary injunctions declaring that 8 USC § 1226(c); Immigration and Nationality Act (INA) § 236(c) is unconstitutional on its face. Petitioners allege that § 236(c) violates their right to due process of law provided the by Fifth Amendment of the United States Constitution by removing discretion from the United States Attorney General to provide aliens being held in deportation proceedings an individualized bond hearing. Also pending are the Fed.R.Civ.P. 12(b)(1) motions to dismiss for lack of subject matter jurisdiction filed by Respondent, Joseph R. Greene, District Director, United States Immigration and Naturalization Service (INS) and a motion to hold in abeyance petitioner Romero's motion for preliminary injunction. At the hearing, the parties agreed to advance the preliminary hearing to a trial on the merits for a permanent injunction, pursuant to Fed.R.Civ.P. 65(a)(2). Based on the motions, briefs, and counsels' argument, and for the reasons set forth below, I deny the INS' motions. I grant Petitioners' motion for a permanent injunction and declare 8 USC § 1226(c); Immigration and Nationality Act § 236(c)(1) to be unconstitutional on its face.
A. Petitioners
Martinez, a 21 year old Mexican national, became a lawful permanent resident of the United States on September 10, 1990. Martinez, who has lived in the United States since infancy, is married to a United States citizen and is the father of a United States citizen son. His three brothers are United States citizens and his mother is a lawful permanent resident of the United States. It is alleged that Martinez has felony convictions for motor vehicle theft, criminal trespass, and menacing. After his menacing conviction on September 28, 1998, Martinez was sentenced to confinement for three years. The sentence was suspended, however, on condition that he be deported to Mexico and not reenter the United States illegally.
The INS issued a Notice to Appear for removal proceedings on October 2, 1998, charging Martinez with deportability under: 1) INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (1997), as an alien convicted of an aggravated felony; 2) INA § 23 7(a)(2)(A)(ii), as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct; and 3) INA § 237(a)(2)(E)(i), as an alien convicted of a crime of domestic violence, stalking, or child abuse. On the same date, the INS ordered the petitioner detained without bond pursuant to INA § 236(c)(1), 8 U.S.C. § 1226(c)(1) (1997). Martinez requested a bond determination from the Immigration Judge which was denied on October 15, 1998.
Arceo-Trevizo, a 21 year old Mexican national, became a lawful permanent resident of the United States on January 4, 1990. The INS alleges he has convictions for drug possession with intent to distribute and carrying a concealed weapon. The INS issued a Notice to Appear for removal proceedings on September 11, 1998, charging Arceo-Trevizo with deportability under INA § 23 7(a)(2)(A)(iii), as an alien convicted of an aggravated felony, based on his drug trafficking offense. On September 22, 1998, the INS set bond at $20,000 under the transitional rules then in effect. Thereafter, Arceo-Trevizo requested a bond re-determination from the immigration judge. On October 8, 1998, however, the transitional rules under which he received a bond setting expired, activating the permanent custody rules at issue here.
Gallardo-Palomares is an unmarried, 41 year old Mexican national who gained lawful permanent resident status on April 28, 1986. It is alleged Gallardo-Palomares sustained convictions for felony menacing and third-degree assault in April 1998. The INS issued a Notice to Appear for removal proceedings on September 29, 1998, charging Gallardo-Palomares with deportability under INA § 237(a)(2)(A)(iii), as an alien convicted of an aggravated felony, based on these convictions. On September 30, 1998, the INS ordered him detained without bond. Gallardo-Palomares requested a bond re-determination from the immigration judge. In the interim, however, the transitional detention rules expired, activating the permanent custody rules in dispute here.
Romero, a Mexican national and lawful permanent resident of the United States, allegedly was convicted of a misdemeanor firearms violation in 1994. He is being detained without bond pending proceedings to deport him for violation of INA § 237(a)(2)(C). He has applied for relief from removal and according to the INS, it will not likely oppose relief. For strategic reasons, Romero opposes the INS' motion to hold his case in abeyance.
Because it is Romero's right to determine the statutory provisions under which he challenges the INS' proceedings, I will deny Respondent's motion to hold in abeyance Romero's case.
As a threshold issue, the INS argues that recent amendments to the INA preclude this Court from exercising jurisdiction over these petitions. I disagree.
The INA, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), states: "[e]xcept as provided in this section and notwithstanding any other provision of law, 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 Act." IIRIRA § 306(a) (codified at 8 U.S.C. § 1252(g)). Because the INA, as amended, does not mention habeas relief for constitutional violations, many courts have addressed the question whether federal district courts retain statutory jurisdiction under 28 § 2241, or constitutional jurisdiction under the Suspension Clause, to review alleged constitutional violations. See U.S. CONST. art. I, § 9, cl. 2 (). A substantial majority of courts conclude that federal district courts retain jurisdiction under § 2241 and the Suspension Clause, despite the expansive language of 8 U.S.C. § 1252(g), when the habeas petitioner alleges substantial constitutional violations. Macias v. INS, Civil Action No. 98-B-1736, November 27, 1998 and cases cited therein. The Tenth Circuit Court of Appeals has not yet addressed this question. See Fernandez v. I.N.S., 113 F.3d 1151, 1154 n. 3 (10th Cir.1997) (); accord Williams v. I.N.S., 114 F.3d 82, 84 (5th Cir.1997) (). I join the majority and hold that federal district courts retain jurisdiction under § 2241 to address substantial constitutional claims even after the AEDPA and the IIRIRA became effective. See Macias.
The Immigration and Nationality Act of 1952, 8 USC § 1251, § 241(INA) was a major recodification and revision of all previous immigration laws. Although no aggravated felony provisions were incorporated into the INA, the INA contained provisions regulating criminal aliens. Under the INA, an alien was subject to deportation if convicted of a "crime involving moral turpitude" and if the crime was committed within five years after entry into the United States. Id. at § 241(a)(4)(A). An alien convicted of violating drug or firearm laws was also deportable. Id. at subsections (a)(4) and (11).
The INA provided that:
[p]ending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on condition of parole.
8 USC § 156, INA § 223.
In 1988, in response to concerns about increased criminal violations by aliens, Congress passed an omnibus drug enforcement bill known as the Anti-Drug Abuse Act of 1988 (ADAA) including provisions relating to criminal aliens. Pursuant to the ADAA, all of the criminal alien provisions were deemed to be amendments to the INA. ADAA, § 7341. Under these provisions, a new category of...
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