Probert v. I.N.S.

• Decision Date: 29 January 1992
• Docket Number: No. 91-1055,91-1055
• Citation: 954 F.2d 1253
• Parties: Robert Alan PROBERT, Plaintiff-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE; Richard A. Thornburgh, Attorney General; Eugene P. McNary, Commissioner, Immigration and Naturalization Service; James H. Montgomery, District Director, Immigration and Naturalization Service, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1253

954 F.2d 1253

Robert Alan PROBERT, Plaintiff-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE; Richard A Thornburgh, Attorney General; Eugene P. McNary Commissioner, Immigration and Naturalization Service; James H. Montgomery, District Director, Immigration and Naturalization Service, Defendants-Appellants.

No. 91-1055.

United States Court of Appeals Sixth Circuit.

Argued Jan. 8, 1991.

Decided Jan. 29, 1992.

Seymour Glanzer, Edward N. Leavy, Roslyn A. Mazer (briefed), Washington, D.C., Marshal E. Hyman, Marshal E. Hyman & Associates, Birmingham, Mich., Harold S. Fried, Fried, Saperstein, De Vine & Kohn, Southfield, Mich., Mark J. Kriger (argued), Detroit, Mich., for plaintiff-appellee.

L. Michael Wicks, Asst. U.S. Atty., Detroit, Mich., David J. Kline, U.S. Dept. of Justice, Civ. Div., Washington, D.C., David V. Bernal (argued and briefed), Office of Immigration Litigation, Washington, D.C., for defendants-appellants.

Before MARTIN and NELSON, Circuit Judges, and JARVIS, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

The Immigration and Naturalization Service appeals the order of the district court permanently enjoining them from detaining Robert Probert while deportation hearings are pending. The Immigration and Naturalization Service argues the district court erred in finding 8 U.S.C. § 1252(a)(2) unconstitutional as a denial of substantive and procedural due process and the right to be free from cruel and unusual punishment.

Probert is a Canadian citizen and temporary Michigan resident who has been permitted to reside and work in this country since 1986 as a non-immigrant. Though potentially excludable from the United States because he suffers from a Class A medical condition, alcoholism, the Immigration and Naturalization Service granted Probert a waiver of that condition pursuant to 8 U.S.C. § 1182(d)(3)(B), allowing him to enter the country for the purpose of employment. ¹ Probert is a professional ice hockey player with the National Hockey League's Detroit Red Wings.

In July 1989, Probert pleaded guilty to a charge of importing cocaine for his personal use. The court sentenced him to three months imprisonment and three years of supervised release, with the first three months of release to be served in a community confinement facility. In November 1989, the sentencing judge issued a Judicial Recommendation Against Deportation requiring that the Immigration and Naturalization Service not use Probert's conviction as the basis for deportation. United States v. Probert, 737 F.Supp. 1010, 1011 (E.D.Mich.1989). Sentencing judges have conclusive authority to decide whether a particular conviction should be disregarded as a basis for deportation and their recommendations are binding on the Attorney General. Janvier v. United States, 793 F.2d 449, 452 (2d Cir.1986); Pacheco v. INS, 546 F.2d 448, 452 (1st Cir.1976), cert. denied, 430 U.S. 985, 97 S.Ct. 1683, 52 L.Ed.2d 380 (1977).

Shortly after his arrest in March 1989, Probert was suspended by the National Hockey League. Three weeks later, the Immigration and Naturalization Service brought deportation proceedings against Probert because, as a result of his suspension, Probert failed to meet the employment conditions of non-immigrant status. The Immigration and Naturalization Service also revoked Probert's waiver of a Class A medical condition. In February 1990, Probert completed his sentence. In March 1990, Probert was reinstated to the National Hockey League, and has since been in full compliance with terms of his visa and the conditions of his probation. Although the Immigration and Naturalization Service has given Probert permission to play hockey pending deportation hearings, it continues to rely on Probert's failure to comply with the employment terms of his visa, along with his alcoholism, as the basis for deportation. In May 1990, he completed his community-based substance abuse program. He has been at liberty since that time without incident. In June 1990, the Immigration and Naturalization Service notified Probert that it was going to conduct deportation hearings based on his alcoholism and unemployment. The Immigration and Naturalization Service also informed Probert that it intended to detain him pending deportation hearings, pursuant to 8 U.S.C. § 1252(a)(2), because of his felony drug conviction, which qualified him as an "aggravated felon" subject to mandatory detention.

Probert brought an action in district court, challenging this attempted detention, alleging that (1) the Judicial Recommendation Against Deportation prevented the Immigration and Naturalization Service from using his conviction as a basis for detention under § 1252(a)(2); (2) section 1252(a)(2) was unconstitutional under the Eighth Amendment because the section did not provide for bail or a bail hearing; and (3) detention under § 1252(a)(2) would violate his Fifth Amendment due process rights. The district court found that (1) the Judicial Recommendation Against Deportation did not prevent the Immigration and Naturalization Service from using his conviction as the grounds for detention because the Judicial Recommendation Against Deportation protected Probert from the Immigration and Naturalization Service's use of his conviction only in deportation proceedings; and (2) section 1252(a)(2) violated due process and the Eighth Amendment prohibition against cruel and unusual punishment. This appeal followed. Probert presently remains on supervised release pending the outcome of this appeal.

Upon review, we need not address the constitutionality of former § 1252(a)(2). We affirm the district court because we find that the Judicial Recommendation Against Deportation prevents the Immigration and Naturalization Service from detaining Probert based on his drug conviction. See Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir.1985) ("A decision below must be affirmed if correct for any reason ..."). At the time Probert brought his challenge in district court, Title 8 of U.S.C. § 1252(a)(2) read as follows:

(a) Arrest and custody; review of determination by court; aliens committing aggravated felonies; report to Congress committees

(2) The Attorney General shall take into custody any alien convicted of an aggravated felony upon completion of the alien's sentence for such conviction. Notwithstanding subsection (a) of this section, the Attorney General shall not release such felon from custody.

While this appeal was pending, Congress amended § 1252(a)(2). The current version reads as follows:

(B) The Attorney General may not release from custody any lawfully admitted alien who has been convicted of an aggravated felony either before or after a determination of deportability unless the alien demonstrates to the satisfaction of the Attorney General that such alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings. (amended language appears in italics)

H.R....