Michel v. I.N.S.

• Decision Date: 03 November 2000
• Docket Number: No. 4:CV-99-1879.,4:CV-99-1879.
• Citation: 119 F.Supp.2d 485
• Parties: Jean Patrick MICHEL, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. District Court — Middle District of Pennsylvania

119 F.Supp.2d 485

Jean Patrick MICHEL, Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

No. 4:CV-99-1879.

United States District Court, M.D. Pennsylvania.

November 3, 2000.

Sandra L. Greene, York, PA, for petitioner.

Kate L. Mershimer, Assistant United States Attorney, Harrisburg, PA, for respondent.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND:

On October 22, 1999, petitioner Jean Patrick Michel, acting pro se, commenced this action by filing a document denominated "Motion for bond/relief under 28 U.S.C. [§] 2241." Michel is a native and citizen of Haiti who is currently a detainee of the Immigration and Naturalization Service (INS). He is subject to a final order of deportation issued December 3, 1997, but INS has not been able to effectuate the deportation, apparently due to slow action on the part of Haiti. Succinctly stated, Michel seeks release on bond pending his removal.

Before the court is the report and recommendation of U.S. Magistrate Judge Thomas M. Blewitt, which recommends that the petition be denied.

DISCUSSION:

I. STANDARD

A district court is required to review de novo those portions of a magistrate judge's report to which objections are made. Commonwealth of Penna. v. United States, 581 F.Supp. 1238, 1239 (M.D.Pa.1984); 28 U.S.C. § 636(b)(1). When no objections are filed to the report of a magistrate judge, a court has discretion to review that report as it deems appropriate. A magistrate judge's finding or ruling on a motion or issue properly becomes the holding of the court unless objections are filed. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). However, the district court may not grant a motion for summary judgment, Fed.R.Civ.P. 56, or a motion to dismiss under Fed.R.Civ.P. 12(b)(6) solely because the motion is unopposed; such motions are subject to review for merit. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174 (3d Cir.1990).

Michel has filed objections to the report and recommendation which we review de novo.

II. STATEMENT OF FACTS AND PROCEDURAL HISTORY

Michel is a native and citizen of Haiti who entered the United States on September 11, 1971, as a lawful permanent resident. In October, 1997, INS issued an order to show cause alleging that Michel had been convicted twice in 1994 of criminal possession of stolen property, and was therefore removable under 8 U.S.C. § 1227(a)(2)(A)(ii). An immigration judge found Michel removable, a decision upheld by the Board of Immigration Appeals (BIA) on October 27, 1998. However, the Court of Appeals for the Second Circuit issued a stay of removal during the pendency of an appeal to that court. The Second Circuit has since affirmed the final order of removal and lifted the stay. Michel v. I.N.S., 206 F.3d 253 (2d Cir.2000). See also 8 U.S.C. § 1229b(c)(6). The removal is based on Michel's two convictions for crimes of moral turpitude.

While the appeal was pending, Michel requested release on a $15,000.00 bond. The District Director in New York denied the request and notified Michel that he had the right to appeal to the BIA. No appeal from the denial was filed.

Originally, Michel was released on bail by an immigration officer. However, the immigration judge revoked bail, stating that Michel was ineligible. Michel has remained in custody while INS attempts to effect his deportation to Haiti. Although Haiti accepts deportees from the United States, the process is slow.

Given the above recitation, the issues before this court are limited. Michel is not one of those aliens subject to removal whose native country will not accept him, so that he is not likely to be subject to permanent detention. Also, there is no question regarding deportability, as any such question is answered by the Second Circuit's affirmance of the order of removal. Further, Michel may not petition for a waiver of deportation because he previously has received such a waiver. 206 F.3d at 257. The sole question is whether a resident alien who is subject to removal for committing crimes of moral turpitude has the right to be released on bond because his native country moves slowly to accept him. As recited by the magistrate judge, Michel has stated the issue as whether the failure to release him from custody on bond after the expiration of the 90-day removal period violated his right to due process. Report and Recommendation at 3 (quoting Petitioner's Amended Reply to Respondent's Brief at 1).

III. JURISDICTION

As a preliminary matter, we note that INS argued before the magistrate judge that the court lacked jurisdiction over the denial of bond pursuant to 8 U.S.C. § 1226(e). The undersigned judge so held in Jacques v. Reno, 73 F.Supp.2d 477 (M.D.Pa.1999). In Chi Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir.1999), our Court of Appeals held, though without analysis, that the district court had jurisdiction over a petition for a writ of habeas corpus under § 2241. Id. at 393 (citing Sandoval v. Reno, 166 F.3d 225, 237-238 (3d Cir.1999); DeSousa v. Reno, 190 F.3d 175, 182 (3d Cir.1999)).

The petitioner in Chi Thon Ngo was an excludable alien who was subjected to exclusion proceedings for lack of a valid immigrant visa and for conviction of crimes of moral turpitude and aggravated felonies. Id. at 392. He claimed to be eligible for release because his country of origin would not accept him. Id. at 393. The statutory provision on which we relied in Jacques, § 1226(e), also would apply to proceedings involving a petitioner like that in Chi Thon Ngo. It follows, then, that the Third Circuit necessarily has abrogated Jacques to the extent we found that our jurisdiction to entertain a petition for a writ of habeas corpus had been repealed by § 1226(e).¹

We turn, then, to the merits of the petition.

IV. RELEASE ON BOND

As noted, Michel claims to be entitled to release on bond or under an order of supervision because the 90-day period for removal has expired. The claim is asserted as arising under the Due Process Clause of the Fifth Amendment.

Once an alien is ordered "removed," INS² is afforded a 90-day period in which to effect removal. 8 U.S.C. § 1231(a)(1)(A). The alien is subject to detention during the removal period. Sec. 1231(a)(2). After expiration of the 90-day period, the alien may be released under specified conditions. § 1231(a)(3). While aliens such as Michel who are deportable under § 1227(a)(2)(A)(ii) must be detained pending a final order of removal, 8 U.S.C. § 1226(c)(1)(B), inadmissible aliens, aliens removable under 8 U.S.C. § 1227(a)(1)(C), (a)(2), or (a)(4), and aliens determined to be a risk to the community or unlikely to comply with the removal order may be detained after expiration of the 90-day period. § 1231(a)(6). See also 8 C.F.R. §§ 241.1 et seq. (regulations governing post-hearing detention and removal, including continued detention and conditions of release).

Michel argues, however, that this statutory language violates his right to substantive due process because it requires that he be kept in prolonged detention, i.e. deprives him of his fundamental right to liberty, without an adequate governmental interest justifying the intrusion. The basic disagreement between the parties is the extent to which Michel's asserted liberty interest is cognizable under the substantive component of the Due Process Clause.

This disagreement also is reflected in opinions by judges of this court on which the parties rely. In Sombat Map Kay v. Reno, 94 F.Supp.2d 546 (M.D.Pa.2000), Judge Rambo found that a deportable alien whose country of origin would not accept him was entitled to release on conditions. Judge Caldwell disagreed, finding that periodic review of an alien's continued detention satisfied the Due Process Clause. Cuesta Martinez v. I.N.S., 97 F.Supp.2d 647 (M.D.Pa.2000). We begin with some of the case law leading to those decisions, as well as opinions issued thereafter which put the decisions into context.

(A) Other Authority

In Chi Thon Ngo, the petitioner was a native of Viet Nam who was paroled into the United States in 1982. He was convicted in state court for firearm possession and for attempted robbery in unrelated events. He was ordered to be deported in 1995 because he lacked a valid visa, he committed a crime involving moral turpitude, and he committed two crimes for which the sentences imposed were greater than five years. Important in the analysis was the fact that the petitioner was paroled into the country, meaning that he had not been admitted formally and was considered to have the status of an applicant for admission, despite his lengthy residence in the United States. Id. at 392 and n. 1.

The petitioner claimed that Viet Nam's refusal to take him back meant that he was subject to virtually indefinite detention. Id. at 392-393. The Third Circuit first reviewed the applicable provisions of the Immigration and Nationality Act, both before and after amendment through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. Because both versions of the statutes granted INS the authority to detain or release on conditions, there was no need to determine which version applied. Id. at 394-395.

There are conflicting constitutional and policy considerations at issue in that Congress has attempted to insulate the national community from potentially dangerous criminal aliens, and aliens released from custody have a great potential to abscond, but those aliens have due process rights. Id. at 395. The problem was to find a way of satisfying these conflicting interests.

The Third Circuit first noted that the exclusion of aliens is a matter generally for the political branches and that, in many instances, the exercise of the power over...