Patel v. Zemski

• Decision Date: 19 December 2001
• Docket Number: No. 01-2398,01-2398
• Citation: 275 F.3d 299
• Parties: (3rd Cir. 2001) VINODBHAI BHOLIDAS PATEL, APPELLANT v. CHARLES ZEMSKI, DISTRICT DIRECTOR, PHILADELPHIA DISTRICT, IMMIGRATION AND NATURALIZATION SERVICE, MARY ANN WYRSCH, ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION; UNITED STATES ATTORNEY GENERAL
• Court: U.S. Court of Appeals — Third Circuit

Page 299

275 F.3d 299 (3rd Cir. 2001)

VINODBHAI BHOLIDAS PATEL, APPELLANT v. CHARLES ZEMSKI, DISTRICT DIRECTOR, PHILADELPHIA DISTRICT, IMMIGRATION AND NATURALIZATION SERVICE, MARY ANN WYRSCH, ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION; UNITED STATES ATTORNEY GENERAL

No. 01-2398

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued September 20, 2001

December 19, 2001

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 01-cv-00405) District Judge: Hon. Ronald L. Buckwalter

[Copyrighted Material Omitted] Michelle S. Walker, Philip J. Katauskas, Pepper Hamilton Llp, Philadelphia, PA 19l03, Judy Rabinovitz (Argued), American Civil Liberties Union, Immigrants' Rights Project, New York, N.Y. 10004-2400, Liliana M. Garces, Aclu Immigrants' Rights Project, Oakland, CA 94612, and Robert D. Kolken, Eric W. Schultz, Sacks & Kolken, Buffalo, N.Y. 14202-2993, for Appellant.

Michael L. Levy, United States Attorney, James G. Sheehan, Assistant United States Attorney Chief, Civil Division, Stephen J. Britt (Argued), Assistant United States Attorney, Office of United States Attorney, Philadelphia, PA 19l06, for Appellee.

Jennifer Rochon, Kramer, Levin, Naftalis & Frankel, New York, N.Y. 10022, for Amicus-Appellant, The American Immigration Lawyers Association, Citizens and Immigrants for Equal Justice.

Before: Sloviter, Nygaard and McKEE, Circuit Judges

OPINION OF THE COURT

Sloviter, Circuit Judge.

The issue before us is a limited one. The appellant does not challenge the power of the Immigration and Naturalization Service ("INS") to detain him. Indeed, appellant, a lawful permanent resident, concedes that the INS has legitimate grounds for detaining some individuals pending removal. The only issue is whether appellant, and aliens in his position, can be mandatorily detained pending a final determination on removal without any opportunity for an individualized determination of the alien's risk of flight or danger to the community. Ironically, such a determination is provided for lawful permanent residents charged as alien terrorists, an accusation that has never been leveled against appellant.

I. INTRODUCTION

Appellant Vinodbhai Bholidas Patel filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania in which he challenged the constitutionality of his detention during the pendency of his deportation proceedings, detention mandated by the Immigration and Nationality Act ("INA") S 236(c), 8 U.S.C. S 1226(c) (2001).¹ The petition is directed to Charles W. Zemski, District Director for the Philadelphia District of the Immigration and Naturalization Service, Mary Ann Wyrsch, Acting Commissioner for the Immigration and Naturalization Service, and John Ashcroft, United States Attorney General, and claims that S 236(c) violates the alien's substantive and procedural due process rights under the Fifth Amendment of the Constitution. The District Court denied the petition and Patel appeals. Citizens and Immigrants for Equal Justice and the American Immigration Lawyers Association ("Amici") filed an amicus brief in support of Appellant.

This court has jurisdiction under 28 U.S.C. S 1291 since Patel seeks review of the District Court's final order in a habeas corpus proceeding under 28 U.S.C. S 2241. Section 236(e), which restricts judicial review of INS decisions made under this section, does not restrict judicial review of its constitutionality. Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (concluding that the restriction in S 236(e) "deals with challenges to operational decisions, rather than to the legislation establishing the framework for those decisions.").

We review de novo the District Court's legal conclusions regarding the constitutionality of the statute at issue. Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001); DeSousa v. Reno, 190 F.3d 175, 180 (3d Cir. 1999).

II. FACTUAL AND PROCEDURAL BACKGROUND

A.

Patel is a 55-year old native and citizen of India. He has lived in the United States since 1984 and has been a lawful permanent resident since 1990. Prior to his detention, Patel resided in St. Louis, Missouri where he has several business interests, including Dunkin' Donuts franchises, bagel shops, and hotels. Patel's wife and four children reside in the United States, along with several members of his extended family. In 1996, the INS approved Patel's application for naturalization. Prior to scheduling the administration of the oath of allegiance, the INS revoked its approval of Patel's naturalization request because of Patel's conviction of the crime that serves as the basis for his current removal proceedings.

On January 10, 2000, Patel was convicted upon a plea of guilty in the United States District Court for the Eastern District of Missouri of the offense of harboring an undocumented alien in violation of INA S 274(a)(1)(A)(iii), 8 U.S.C. S 1324(a)(1)(A)(iii) (2001). Patel's conviction was based on his employment of the alien, and apparently his provision of a place for the alien to live. The undocumented alien had entered the United States several years prior to his employment by Patel. Patel had no involvement with the alien's entry into the country. The court sentenced Patel to five months of home probation and five months in prison at the Allenwood Federal Prison in Pennsylvania. App. at 4, 14.² Although persons who are confined to a penal institution for 180 days or more cannot establish good moral character, a prerequisite to naturalization, INAS 101(f)(7), 8 U.S.C. S 1101(f)(7), Patel has not lost his eligibility for naturalization because his jail sentence was less than 180 days.

B.

On September 18, 2000, while Patel was serving his sentence, the INS issued a Notice to Appear directed to Patel charging that his conviction constituted an "aggravated felony" within the meaning of INA S 101(a)(43)(N), 8 U.S.C. S 1101(a)(43)(N) (2001) and rendered him subject to removal under INA S 237(a)(2)(A)(iii), 8 U.S.C. S 1227(a)(2)(A)(iii) (2001). After Patel completed serving his sentence in January 2001, the INS took him into custody and placed him in detention in the Snyder County Prison in Selinsgrove, Pennsylvania. He remains there to the present day.

On January 3, 2001, Patel exercised his right to request a bond hearing before an immigration judge ("IJ") to re-evaluate his custody status. The hearing was held on January 11, 2001. However, the statute provides that if the IJ finds that S 236(c) is applicable, the IJ is precluded from considering any factors for release. Thus Patel was heard only on his argument that the crime of which he was convicted, harboring an alien, does not "relate to alien smuggling" and does not constitute an aggravated felony mandating detention under S 236(c). On January 12, 2000, the presiding IJ rejected Patel's argument. In so holding, the IJ followed the precedent of the Board of Immigration Appeals ("BIA") that a conviction for harboring aliens constitutes an aggravated felony. App. at 29-31. Consequently, the IJ found Patel subject to mandatory detention under S 236(c), precluding an individualized determination into the necessity of detention. App. at 29-31. Patel appealed this decision to the BIA and on May 15, 2001, the BIA affirmed the decision upholding mandatory detention. App. at 32-33.

On April 3, 2001, after a hearing on the merits of removal, an IJ in York, Pennsylvania issued an oral decision ordering Patel removed from the United States. App. at 34. Patel timely filed a Notice of Appeal of this decision with the BIA and the order of removal has been stayed.³

Patel filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania contesting his detention under S 236(c). Patel v. Zemski, No. CIV. A. 01-405, 2001 WL 503431 (E.D. Pa. May 11, 2001). The District Court denied Patel's petition and Patel timely appealed.

III. DISCUSSION

A.

The current immigration laws reflect part of a growing effort by Congress to expedite the removal of criminal aliens. See S. Rep. No. 104-249, at 2 (1996) (describing goal of "expediting the removal of excludable and deportable aliens, especially criminal aliens"). Prior to 1988, all individuals subject to deportation were entitled to a bond hearing. See Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976) (discussing the law as it existed at that time, INAS 242(a), 8 U.S.C. S 1252(a) (1977)). Since that time, Congress has drafted several amendments to the immigration laws, gradually limiting the availability of discretionary relief for aggravated felons subject to deportation and increasing the categories of aggravated felonies,⁴ culminating in the passage on September 30, 1996 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). Section 236(c), codified at 8 U.S.C. S 1226(c), was added to the INA by the 1996 amendments, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and IIRIRA. It provides:

(c) Detention of criminal aliens

(1) Custody

The Attorney General shall take into custody any alien who--

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) [moral turpitude and controlled substance-related offenses with maximum penalties of at least one year] of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) [multiple criminal convictions for crimes of moral turpitude], (A)(iii) [aggravated felonies], (B) [controlled substances], (C) [certain firearm offenses], or (D) [miscellaneous crimes] of this title,

(C) is deportable under section 1227(a)(2)(A)(i) [moral turpitude] of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at...