Montero v. Cobb

• Decision Date: 28 August 1996
• Docket Number: Civil Action No.: 96-11449-WGY.
• Citation: 937 F. Supp. 88
• Parties: Juan Radhames Pena MONTERO, Petitioner, v. Charles T. COBB, in his official capacity as District Director, Boston Office Immigration and Naturalization Service; Janet Reno, in her capacity as Director of the Department of Justice of the United States of America; and any other persons having the Petitioner in custody, Respondents.
• Court: U.S. District Court — District of Massachusetts

937 F. Supp. 88

Juan Radhames Pena MONTERO, Petitioner, v. Charles T. COBB, in his official capacity as District Director, Boston Office Immigration and Naturalization Service; Janet Reno, in her capacity as Director of the Department of Justice of the United States of America; and any other persons having the Petitioner in custody, Respondents.

Civil Action No.: 96-11449-WGY.

United States District Court, D. Massachusetts.

August 28, 1996.

Lenore Glaser, Stern, Shapiro, Weissberg & Garin, Boston, MA, for Juan Radhames Pena Montero.

Frank Crowley, Immigration & Naturalization Special Assistant U.S. Attorney, Boston, MA, Pauline Terrelonge, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Charles T. Cobb.

Pauline Terrelonge, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Janet Reno.

MEMORANDUM OF DECISION

YOUNG, District Judge.

I. Introduction

Petitioner Juan Radhames Pena Montero ("Montero") has filed this habeas corpus action against Charles T. Cobb, District Director of the Boston Office of the Immigration and Naturalization Service (the "Service"); Janet Reno, Attorney General of the United States; and any other persons having Montero in custody (collectively, the "Respondents"). Montero is an alien currently detained without bond pursuant to the decision of an immigration judge. He here seeks his immediate release on bond, stating that he "is not seeking a full-blown hearing on the merits of his claim, but merely and sic opportunity to establish his suitability for release on bond." Memorandum of Law in Support of the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 ("Petitioner's Memorandum") (Doc. No. 3) at 11. Respondents move to dismiss this action for lack of subject matter jurisdiction, contending that Montero has failed to exhaust his administrative remedies by first appealing his bond determination to the Board of Immigration Appeals (the "Board"), a course that they now say is closed to him because he waited too long. In the alternative, Respondents argue that Montero's detention is lawful pursuant to 8 U.S.C. § 1252(b)(2) sic, as amended by § 440(c) of the Antiterrorism and Effective Death Penalty Act of 1996 (the "Antiterrorism Act"), Pub.L. 104-32 (April 24, 1996).¹

II. Statement of Facts

On June 9, 1978, the Service first initiated deportation proceedings against Montero, a citizen of the Dominican Republic who had been in the United States since overstaying a visa issued him in 1972. Six months later, Montero adjusted his status to that of lawfully admitted permanent resident based upon his marriage to a United States citizen. Montero remained in the United States until January 20, 1984, when he was deported following a 1981 conviction in the Massachusetts Superior Court sitting in and for the County of Suffolk for possession of cocaine with intent to distribute in violation of Mass. Gen.L. ch. 94C, § 31. Although the record is not clear on this point, it appears that Montero was incarcerated for a period of time in Massachusetts and was then deported following the termination of his incarceration.

In March, 1986, Montero illegally reentered the United States. He was detained by the Service on April 18, 1996 and taken into custody. At the time of his arrest by the Service, Montero was not incarcerated or otherwise in the custody of any state or federal government, his earlier state conviction having run its course. During the April 1996 detention proceedings, a Service employee determined that Montero should be detained by the Service and denied a request for bail. On May 1, 1996, Montero appeared before Immigration Judge Billino D'Ambrosio for a bond redetermination pursuant to 8 C.F.R. § 242.2(d). With the assistance of counsel, Montero conceded that he was a deportable alien under 8 U.S.C. § 1251(a)(2)(B)(i) alien convicted of violating laws relating to a controlled substance and told Judge D'Ambrosio that he would apply for relief from deportation pursuant to 8 U.S.C. § 1254(a)(2).² On May 8, 1996, Judge D'Ambrosio denied Montero's request that he be released on bail conditions, writing that

Respondent is ineligible for redetermination of custody status. Respondent convicted on June 25, 1981 for the offense of possession of cocaine with intent to distribute. This Conviction places respondent within section 242(a)(2)(B)(i) of the Immigration and Nationalization Act³ for eligibility under Sec. 242(a)(2) of the Act.

Petitioner's Memorandum, Ex. 2 (Order dated May 8, 1996).

Meanwhile, on April 24, 1996, President Clinton signed the Antiterrorism Act into law. Two weeks later, Judge Keeton of this District issued a preliminary decision which reviewed the bail provisions of the Antiterrorism Act, finding certain provisions of the Antiterrorism Act unconstitutional. See DeMelo v. Cobb, 936 F.Supp. 30, 33 (D.Mass. 1996) (matter taken under advisement, full opinion issued June 19, 1996). After a subsequent hearing requested by Judge D'Ambrosio in order to address these recent developments, that immigration judge again denied Montero's request for bail conditions on June 14, 1996. As reason for his decision, Judge D'Ambrosio stated that he lacked jurisdiction to consider Montero's custody status under the Antiterrorism Act "since the respondent has been convicted of a controlled substance violation." Petitioner's Memorandum, Ex. 6 (Order dated June 14, 1996).

Montero's attorney has filed an affidavit stating that she filed an appeal of the June 14, 1996 denial of bond by sending the appeal to the Immigration Court in Boston. On June 29, 1996, the Immigration Court directed Montero to file his appeal directly with the Board, pursuant to new filing rules effective July 1, 1996. The appeal was docketed with the Board on July 2, 1996. Subsequent telephone conversations between Montero's attorney and the Board indicate that it will take at least three months, possibly longer, to obtain a hearing on a bond appeal in a pre-deportation detention such as Montero's. Montero's attorney has also been told that, even if the Service stipulated to an expedited hearing, it would take not less than three months to hear the appeal. Affidavit of Lenore Glaser, Esq. at 1-2.

III. Analysis

A. Exhaustion Requirement

Respondents contend that this Court ought dismiss Montero's petition because he has failed to exhaust his administrative remedies by appealing his bond redetermination to the Board. In their pleadings, Respondents repeatedly assert that Montero "failed to appeal the May 8, 1996 bond denial administratively," state that they "believe that no timely appeal of the May 9, 1996, or June 14, 1996, decisions of the Immigration Judge was filed with the Board," and declare that "Montero had the opportunity to obtain administrative relief, and did not elect to pursue such relief." Respondent's Answer and Memorandum in Opposition to Petition for Habeas Corpus Relief, and in the Alternative, Memorandum Supporting Motion to Dismiss ("Respondents' Memorandum") at 3; Respondent's Supplemental Memorandum in Opposition to Petition for Habeas Corpus Relief, and in the Alternative, Memorandum Supporting Motion to Dismiss ("Respondents' Supplemental Memorandum") at 3.

The Respondents appear to be in error both factually and as matter of law. Factually, as stated in Attorney Glaser's affidavit, upon receiving Judge D'Ambrosio's second and final denial of bail conditions on June 14, 1996, she filed two timely appeals, first with the Immigration Court in Boston, then directly with the Board. Thus, the matter is on appeal with the Board, but will not be heard for another three months. Montero has turned to this court not for a determination of the merits of his deportability, but for an order releasing him on bond pending a final order of deportation.

Montero's status — as an alien appealing a final order of deportation or as an alien challenging pre-deportation detention — is important. As matter of law, there is no federal statute — and none has been cited by Respondents — that imposes an exhaustion requirement on pre-deportation detainees. See Moskalev v. District Director, Immigration and Naturalization Serv., Civ.A. No. 95-11218-RGS, slip op. at 6, 1996 WL 622475, at *3 (D.Mass. January 24, 1996) (Alexander, Ch. M.J.) ("The statutory scheme of the immigration act does not require exhaustion for suits challenging predeportation detention") (citations omitted). The exhaustion requirement at issue here is codified at 8 U.S.C. § 1105a, which concerns judicial review of orders of deportation and exclusion. Section 1105a(c) contains the exhaustion requirement for aliens who wish to challenge deportation orders, imposing an exhaustion requirement on all petitioners who are subject to "an order of deportation or exclusion." 8 U.S.C. § 1105a(c). The language of section 1105a(c) parallels wording used in sections 1105a(a) and 1105a(b), which concern the reviewability in federal court of "final orders of deportation" and "final orders of exclusion" made by the Board. 8 U.S.C. §§ 1105a(a) and (c).

Montero is not subject to a final order of deportation as the term is used in section 1105a: he has been denied bond to be free pending an order of deportation based on his status as a previously convicted alien. The distinction is significant. As the Seventh Circuit noted in Gornicka v. I.N.S., 681 F.2d 501, 505 (7th Cir.1982), "it is clear that bond hearings are separate and apart from deportation hearings," and "a bond determination is not a final order of deportation ... and does not effect the deportation proceeding." Id.; see also Dalis v. Brady, 766 F.Supp. 901, 905 (D.Colo.1991) (same).

In a case interpreting 8 U.S.C. § 1252(a), the statute at issue here, the District of Kansas held that "the decision of the Attorney General to detain or release an individual pending deportation procedures does not amount to a...