Reyes v. Underdown, 99-CV-1318.

• Decision Date: 03 November 1999
• Docket Number: No. 99-CV-1318.,99-CV-1318.
• Citation: 73 F.Supp.2d 653
• Parties: Mauricio REYES v. Lynn UNDERDOWN, et al.
• Court: U.S. District Court — Western District of Louisiana

Page 653

73 F.Supp.2d 653

Mauricio REYES v. Lynn UNDERDOWN, et al.

No. 99-CV-1318.

United States District Court, W.D. Louisiana, Lake Charles Division.

November 3, 1999.

Linda Osberg-Braun, Hackley Bernstein et al., Miami, FL, for plaintiff.

Katherine W. Vincent, U.S. Atty's Office, Lafayette, LA, for defendants.

JUDGMENT

EDWIN F. HUNTER, Jr., District Judge.

For the reasons stated in the Report and Recommendation of the Magistrate Judge previously filed herein and after an independent review of the record, and a de novo determination of the issues, and consideration of the objections filed herein, and having determined that the findings are correct under applicable law; it is

ORDERED that the petition for writ of habeas corpus be DENIED AND DISMISSED WITH PREJUDICE.

REPORT AND RECOMMENDATION

WILSON, United States Magistrate Judge.

Currently before the court is an "Application for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief" filed pursuant to 28 U.S.C. § 2241 on behalf of petitioner, Mauricio Reyes. By this application, Petitioner complains that he is being unlawfully detained under the mandatory detention provision of § 236(c) of the Immigration and Nationality Act (INA)¹, and he seeks to have this court order the INS to grant Petitioner an individualized bond hearing in order to review Petitioner's custody status. This matter has been referred to the undersigned magistrate judge in accordance with 28 U.S.C. § 636(b)(1)(B).

FACTS

Petitioner is a native and citizen of Colombia who entered the United States on May 8, 1969 at the age of two as an immigrant. See Government Exhibit 1.

On April 11, 1995, Petitioner pled guilty to two counts of Conspiracy to Possess with Intent to Distribute controlled substances in violation of 21 U.S.C. § 846, heroin and cocaine.² On November 22, 1995, Petitioner was sentenced to a term of 48 months imprisonment for each count, with the sentences to run concurrently.

On December 24, 1995, Petitioner married Renee LaFrance who is a United States citizen and who resides in West Palm Beach, Florida. See Petitioner's Exhibit 1. On January 10, 1996, Petitioner surrendered to the Bureau of Prisons to begin the service of his criminal sentence. See Government Exhibit 2.

On April 8, 1999, the INS issued a Notice to Appear charging Petitioner with being removable under INA § 237(a)(2)(A)(iii)³ for having been convicted of an aggravated felony. See Petitioner's Exhibit 3; Government Exhibit 1. Petitioner appeared before an immigration judge on June 21, 1999 for a removal hearing. Petitioner was represented by counsel at this hearing. He admitted all of the factual allegations contained in the Notice to Appear and conceded removability. See Administrative Record, Doc. 11, Order of Immigration Judge, p. 2. Petitioner then requested relief from deportation under INA § 212(c)⁴ in light of the fact that his criminal convictions took place before the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).⁵ The Immigration Judge denied his request because § 212(c) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)⁶ and ordered Petitioner removed from the United States to Colombia. Petitioner reserved appeal, and his appeal is now pending before the Board of Immigration Appeals (BIA).

Petitioner was released from the custody of the Bureau of Prisons on June 28, 1999, and at that time he was taken into INS custody. See Government Exhibit 5. Petitioner remains in INS custody pursuant to INA § 236(c).⁷ This provision, as amended by AEDPA and IIRIRA, requires that the Attorney General take into custody any alien who is charged with being deportable by reason of having committed certain offenses while the determination of whether an alien is to be removed from the United States is pending. Among the enumerated offenses in INA § 236(c) are the crimes committed by Petitioner. This statute provides no opportunity for an individualized bond hearing. Petitioner challenges his detention by the INS as unconstitutional. He claims that it is a violation of his due process rights to be denied an individualized bond hearing. It is this constitutional challenge which Petitioner seeks to have this court address.

In his petition, Petitioner seeks the following relief: (1) an order directing the INS to conduct a prompt individualized custody hearing for Petitioner; (2) a declaration that 8 U.S.C. § 1226(c) is unconstitutional; (3) reasonable costs and attorney fees; and (4) any other relief deemed proper by the court.

LAW AND ANALYSIS

Petitioner's main argument is that INA § 236(c) is unconstitutional on its face in that it violates the Fifth Amendment's guarantee of due process and offends the Eight Amendment's guarantee against excessive bail. Accordingly, this court is called upon to determine whether the mandatory detention provision in INA § 236(c) is constitutional.⁸

I. Jurisdiction

Before reaching the merits of the petition, this court must first address jurisdictional concerns.

Petitioner argues that this court has jurisdiction to review constitutional claims under the federal statutes and under the United States Constitution unaided by statute. It appears as if Petitioner concedes that the statutory framework of the INA does not provide for judicial review of the Attorney General's decision to detain an alien under the provisions of INA § 236(c) pending a determination of removal. See 8 U.S.C. § 1226(e). Petitioner argues instead that this court has statutory jurisdiction under 28 U.S.C. § 2241 to review the constitutionality of his detention. The respondent does not seem to contest the jurisdiction of this court to hear Petitioner's challenge to the constitutionality of the statute under which he is detained. Nevertheless, this court shall examine its own jurisdiction to consider this matter before proceeding to the merits. Zadvydas v. Underdown, 185 F.3d 279, 285 (5th Cir.1999).

Congress has clearly indicated that it desires minimal judicial intrusion into deportation decisions. Judicial review of certain immigration matters is expressly limited by § 242(g) of the INA⁹ which provides as follows:

Exclusive Jurisdiction

Except as provided in [§ 242 of the INA] and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

Recent jurisprudence indicates that while INA § 242(g) supersedes the jurisdiction of federal courts under 28 U.S.C. § 2241 to hear challenges to certain types of decision made during immigration proceedings, § 242(g) is not a general review-preclusion law. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 943-45, 142 L.Ed.2d 940 (1999); Parra v. Perryman, 172 F.3d 954, 957 (7th Cir.1999); Zadvydas, 185 F.3d at 285. INA § 242(g) limits review of a narrow class of discretionary executive decisions, i.e. decisions to "commence proceedings, adjudicate cases, and execute removal orders." Zadvydas, supra. This provision does not remove the jurisdiction of federal courts to hear a § 2241 habeas petition which challenges the constitutionality of a statute authorizing the detention of aliens. Zadvydas, supra; Parra, 172 F.3d at 957. "This is because the detention, while intimately related to efforts to deport, is not itself a decision to `execute removal orders' and thus does not implicate section 1252(g) under Reno." Zadvydas, 185 F.3d at 285; Parra, 172 F.3d at 957; Galvez v. Lewis, 56 F.Supp.2d 637 (E.D.Va.1999).

In light of the recent jurisprudence discussing the jurisdiction of federal courts to review constitutional challenges to statutes which authorize the detention of aliens, this court has jurisdiction to review Petitioner's challenge to the constitutionality of the statute under which he is detained.¹⁰

II. Constitutionality of INA § 236(c)

Petitioner argues that the mandatory detention provision of INA § 236(c) which denies certain criminal aliens individualized bond hearings pending the conclusion of their removal proceedings violates his constitutional rights under the Fifth and Eighth Amendments to the United States Constitution. The court will consider each of these challenges below.

A. Fifth Amendment

Petitioner claims that the statute under which he is detained violates his right to substantive and procedural due process under the Fifth Amendment.

1. Substantive Due Process

Substantive due process protects individual liberty against "certain government actions regardless of the fairness of the procedures used to implement them." Collins v. Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992), quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). This prevents the government from engaging in conduct that "shocks the conscience" or interferes with rights implicit in the concept of ordered liberty. United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987).

Substantive due process prevents the government from infringing on a fundamental liberty interest "unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993); Collins v. Harker, 112 S.Ct. at 1068. Where fundamental liberty interests are not involved, the governmental action is judged by the unexacting "standard of rationally advancing some legitimate government purpose." Reno v. Flores, 113 S.Ct. at 1449. Thus, it is important that the liberty interest at issue be carefully described at the outset of a substantive due process analysis. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Reno v. Flores, 113...