Probert v. USINS, 90-CV-73119-DT.

• Decision Date: 31 October 1990
• Docket Number: No. 90-CV-73119-DT.,90-CV-73119-DT.
• Citation: 750 F. Supp. 252
• Parties: Robert PROBERT, Plaintiff, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; Richard A. Thornburgh, Attorney General; Eugene P. McNary, Commissioner, Immigration and Naturalization Service, and James H. Montgomery, District Director, Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — Western District of Michigan

750 F. Supp. 252

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

No. 90-CV-73119-DT.

United States District Court, E.D. Michigan, S.D.

October 31, 1990.

Marshal E. Hyman, Birmingham, Mich., Harold S. Fried, Southfield, Mich., for plaintiff.

L. Michael Wicks, Asst. U.S. Atty., Detroit, Mich., for defendants.

OPINION

GILMORE, District Judge.

This matter is before the Court upon Plaintiff's Complaint seeking declaratory judgment and preliminary and permanent injunctions against Defendants from enforcing 8 U.S.C. § 1252 in detaining Plaintiff.

Plaintiff was sentenced by Judge Duggan of this Court on October 17, 1989 to a term of three months, with a special recommendation that he be incarcerated in an institution with a substance abuse program. He was also given three years supervised release, with the special condition that, for the first three months of supervised release, he should reside in a community confinement facility selected by the Court. Other conditions were placed upon the supervised release. Subsequently, Judge Duggan entered a Judicial Recommendation Against Deportation under the authority of 8 U.S.C. § 1251(b)(2). Judge Duggan's recommendation provided in pertinent part:

For the reasons set forth above,

This Court does hereby RECOMMEND to the Attorney General, pursuant to 8 U.S.C. § 1251(b)(2), that the conviction for which the defendant was sentenced by this Court not be used as the basis for any deportation proceeding.

On February 5, 1990, Plaintiff was released from the Federal Medical Center, and began a 90 day community-based substance abuse program. He completed this on May 14, 1990, and presently remains on supervised release. That supervised release will terminate some time in 1993.

On August 17, 1990, a request was made by Plaintiff for a grant of advanced parole, pursuant to 8 U.S.C. § 1182(d)(5)(a). This was denied on October 10 by the Director of Refugee and Parole. In addition, on October 18, 1990, James Montgomery, District Director of Immigration, sent a letter to the Plaintiff stating that, because of Plaintiff's classification as an aggravated felon,¹ he was required to report on Tuesday, October 23, 1990, to be detained until he departed the United States. The Immigration and Naturalization Service (INS) previously had held a hearing and ordered Plaintiff deported based on his alcoholism; that matter presently is on appeal in the INS.

The statute pursuant to which the INS now threatens to detain Plaintiff is 8 U.S.C. § 1252(a)(2), which excepts aggravated felons from the bail hearing usually provided aliens under 8 U.S.C. § 1252(a)(1). These Statutes provide:

§ 1252. Apprehension and deportation of aliens

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

(a)(1) Pending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody. Except as provided in paragraph (2), any such alien taken into custody may, in the discretion of the Attorney General and pending such final determination of deportability, (A) be continued in custody; or (B) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (C) be released on conditional parole. But such bond or parole, whether heretofore or hereafter authorized, may be revoked at any time by the Attorney General, in his discretion, and the alien may be returned to custody under the warrant which initiated the proceedings against him and detained until final determination of his deportability. Any court of competent jurisdiction shall have authority to review or revise any determination of the Attorney General concerning detention, release on bond, or parole pending final decision of deportability upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability.

(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.

I

The first issue the Court must determine in deciding whether injunctive and declaratory relief are justified is whether Plaintiff has completed his sentence. 8 U.S.C. § 1252(a)(2) provides that the alien shall not be taken into custody until completion of his sentence. Plaintiff argues that the term of supervised release that he is presently serving is part of his sentence, and, therefore, the Statute cannot be invoked.

Sentence is not defined in the Immigration and Naturalization Act, but the Board of Immigration Appeals (BIA) considered the issue exhaustively in In re Brian Clifford Eden, Int. Dec. 3137 (B.I.A. June 14, 1990). That case analyzed the split in circuits as to whether probation was a sentence, considered the general usage of the term, and examined the legislative history of the Anti-Drug Abuse Act of 1988. The BIA determined that "sentence" referred to the period of actual confinement that had been ordered by the court and did not include probation.

The Supreme Court has said that, if Congress has not defined a term in a statute, then this Court must look to the administering agency for permissible constructions of the statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). In light of Chevron's mandate, this Court finds the BIA's construction permissible. Judge Cook of this Court, in Paxton v. INS, 745 F.Supp. 1261 (E.D.Mich.1990), stated that he would adopt the definition of the BIA. Moreover, the determination of the Board is consistent with Sixth Circuit cases, which have held that, for other purposes, probation is not a sentence. Sims v. United States, 607 F.2d 757 (6th Cir.1979); United States v. Fried, 436 F.2d 784, 787 (6th Cir.1971). In Sims, the Court said, citing Fried:

When the Court suspends the imposition of sentence and places the defendant on probation, it is authorized, upon revocation of probation, to impose any sentence within the limits of statutory authority. Merely placing a defendant on probation is not a sentence under 18 U.S.C. § 3651.

Id. at 759.

Finally, it is clear that supervised release under the Federal Sentencing Guidelines is the same as probation.² Based on the above analysis, the Court holds that, for purposes of 8 U.S.C. § 1252(a)(2), Plaintiff's supervised release is not a sentence. Therefore, the Court concludes that Plaintiff has completed his sentence.

II

The second matter the Court must determine is whether detention violates Judge Duggan's Judicial Recommendation Against Deportation. Plaintiff argues that the Judicial Recommendation Against Deportation sanitized Plaintiff's conviction, and that his conviction cannot now be used to support the aggravated felony requirement of the Statute, particularly when the detention is in aid of a deportation proceeding.

The INS, on the other hand, argues that the Judicial Recommendation Against Deportation has nothing to do with the INS's present effort to detain Plaintiff. It argues that the only purpose of a Judicial Recommendation Against Deportation is to prevent the use of the conviction in deportation proceedings. It is not now violated, it claims, because INS seeks deportation based on Plaintiff's aggravated alcoholism.

The Court in this instance agrees with the reasoning of the INS. The language of the Statute on its face concerns only detention, and the conviction is being used to support detention under the terms of the Statute, not to support deportation. It would be judicial overreaching to find that the Judicial Recommendation Against Deportation protected Plaintiff from INS's use of his conviction in detention proceedings.

III

Having disposed of these two issues, the Court comes to the key issue before the Court, namely the constitutionality of the Statute under substantive and procedural due process and under the Eighth Amendment.

In reviewing Plaintiff's substantive and procedural due process claims and Eighth Amendment claims, the Court recognizes that there is a highly deferential standard of review under Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). There, the Court said:

At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909); accord, Kleindienst v. Mandel, 408 U.S. 753, 766 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). Our cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206, 210 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953); see, e.g., Harisiades v. Shaughnessy, 342 U.S. 580 72 S.Ct. 512, 96 L.Ed. 586 (1952); Lem Moon Sing v. United States, 158 U.S. 538 15 S.Ct. 967, 39 L.Ed. 1082 (1895); Fong Yue Ting v. United States, 149 U.S. 698 13 S.Ct. 1016, 37 L.Ed. 905 (1893); The Chinese Exclusion Case, 130 U.S. 581 9 S.Ct. 623, 32 L.Ed. 1068 (1889).

Id. 430 U.S. at 792,...