Shurney v. I.N.S.

• Decision Date: 09 November 2001
• Docket Number: No. 1:01CV1906.,1:01CV1906.
• Citation: 201 F.Supp.2d 783
• Parties: Abdul SHURNEY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, et al., Respondents.
• Court: U.S. District Court — Northern District of Ohio

201 F.Supp.2d 783

Abdul SHURNEY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, et al., Respondents.

No. 1:01CV1906.

United States District Court, N.D. Ohio, Eastern Division.

November 9, 2001.

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Scott E. Bratton, Law Office of Margaret W. Wong, Cleveland, OH, for petitioner.

Michael Anne Johnson, Office of U.S. Atty., Cleveland, OH, for respondents.

MEMORANDUM & ORDER

O'MALLEY, District Judge.

The Petitioner, Abdul Shurney, a noncitizen, has been a legal permanent resident of the United States for the last twenty-three years. The Immigration and Naturalization Service ("INS") has instituted removal proceedings against Shurney, contending that he has been convicted of two controlled substances offenses and is therefore an aggravated felon within the meaning of the immigration laws. Shurney is being detained without the opportunity for bond during the pendency of his removal proceedings.

Shurney filed a petition for a writ of habeas corpus, pursuant to 22 U.S.C. § 2241, arguing that his mandatory detention without the possibility of bond violates his substantive and procedural due process rights. Respondents: the INS; John Ashcroft, Attorney General of the United States; Mark Hansen, District Director of the INS; and Kevin Rooney, Acting Commissioner of the INS (collectively, the "Government"), moved to dismiss the petition for failure to state a claim for relief. For the reasons discussed below, the Court finds that Shurney's as-applied procedural due process challenge is well-taken. Therefore, Respondent's Motion to Dismiss is DENIED and Petitioner's Emergency Petition for Writ of Habeas Corpus is GRANTED.

I. Facts and Procedural Background

Abdul Shurney, a native and citizen of the Republic of South Africa, came to the United States as an immigrant in 1978 when he was three years old. He has resided in the United States since that date and is a legal permanent resident. In addition to residing in this country for twenty-three years, he has also married while living here.

On April 16, 2001, Shurney pleaded guilty in the Cuyahoga County Court of Common Pleas to attempted possession of less than five grams of crack cocaine, a fourth-degree felony, and received a two-year term of probation. Less than three months later, on July 5, 2001 the Immigration and Naturalization Service ("INS") issued a Notice to Appear, charging that Shurney was subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a controlled substance violation, as defined in 21 U.S.C. § 802. Having only one conviction for drug possession made Shurney eligible under 8 U.S.C. § 1229b(a) to petition the Attorney General to cancel his removal proceedings.

On September 19, 2001, at a hearing before an Immigration Judge on his petition for cancellation, Shurney admitted that, in addition to the 2001 conviction, he also had a minor misdemeanor conviction in 1995 for possession of marijuana. The Immigration Judge found that Shurney had been convicted of two drug offenses, rendering him an aggravated felon under 8 U.S.C. § 1101(a)(43)(B), making him ineligible for cancellation of removal and subject to automatic deportation.

The determination that Shurney was an aggravated felon within the meaning of the Immigration and Nationality Act involves multiple steps. Section 1101(a)(43)(B) of Title 8 defines aggravated felonies to include "illicit trafficking of a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." Section 924(c)(2) of Title 18 defines drug trafficking crimes to include "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)." Felony offenses under the Controlled Substances Act include drug-related offenses punishable by imprisonment for more than one year under any federal law. 21 U.S.C. § 802(44). While a first-time conviction for simple possession (or attempted possession) is only a misdemeanor, a violation after a prior conviction for "any drug, narcotic, or chemical, offense chargeable under the law of any State" raises the maximum prison time to two years and makes the violation a felony. 21 U.S.C. § 844(a).

Thus, Shurney allegedly qualifies as an aggravated felon because his 2001 attempted drug possession conviction, though originally punishable as simple possession under § 844(a) of the Controlled Substances Act, would have been enhanced to a felony conviction by virtue of his prior minor misdemeanor drug possession conviction. Because Shurney was classified as an aggravated felon, the Immigration Judge found he was not eligible for cancellation of his removal under § 1229b(a) and ordered his removal from the United States to South Africa.

Until Shurney's removal order becomes final,¹ the government contends that 8 U.S.C. § 1226(c) prevents the Attorney General from releasing him; they claim that Shurney is not entitled to a hearing to determine if he could be released on bond during the pendency of this process. On August 6, 2001, Shurney filed a petition for a writ of habeas corpus, seeking a declaration that 8 U.S.C. § 1226(c) is unconstitutional and an order requiring the INS to conduct a bond hearing. Specifically, Shurney raises both facial and as-applied challenges, alleging violations of his substantive and procedural due process rights.

II. Jurisdiction of the Court

As an initial matter, this Court must determine if it has jurisdiction over Shurney's petition. Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Although both parties assert jurisdiction exists, the Court must conduct its own, independent review. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). A writ of habeas corpus maybe issued when a prisoner is "in custody in violation of the Constitution or law or treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2245(a). First, the Court must determine whether habeas review is precluded by the Immigration and Nationality Act ("INA"). Second, the Court must determine whether petitioner has exhausted his administrative remedies, and, if he has not, whether that failure prohibits the Court from addressing his constitutional claims.

A. Habeas Review Not Precluded by the INA

Shurney does not seek review of the Attorney General's decision to commence proceedings against him, to adjudicate his case, or to execute his removal order. Instead, he seeks review of the constitutionality of the statute which dictates his detention during the INS proceedings and prohibits any request for a bond. Two specific statutory provisions within the INA are relevant to this analysis. See Marogi v. Jenifer, 126 F.Supp.2d 1056, 1058-59 (E.D.Mich.2000).

Section 1252(g) of Title 8 deprives courts of 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." The Supreme Court has construed this preclusion clause narrowly to encompass only the three specific situations listed. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-87, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). As Shurney is not challenging any of the enumerated decisions or actions, § 1252(g) does not foreclose habeas review of his claims.

Section 1226(e) of Title 8 prevents judicial review of discretionary decisions by the Attorney General under the INA.

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

8 U.S.C. § 1226(e). Like the previous statutory provision, this section only constrains judicial review of operational decisions by the Attorney General, rather than the statutory construct under which the Attorney General operates. Parra v. Perryman, 172 F.3d 954, 957 (7th Cir.1999). As Shurney is not seeking review of any decisions made by the Attorney General and is, instead, directly challenging the constitutionality of 8 U.S.C. § 1226(c) itself, § 1226(e) does not foreclose habeas review.

Thus, the Court finds that neither 8 U.S.C. § 1252(g) nor 8 U.S.C. § 1226(e) prevent habeas review. Indeed, the overwhelming majority of courts have reached this same conclusion. See, e.g., Parra v. Perryman, 172 F.3d 954 (7th Cir.1999); Marogi v. Jenifer, 126 F.Supp.2d 1056 (E.D.Mich.2000); Zgombic v. Farquharson, 89 F.Supp.2d 220 (D.Conn.2000); Reyes v. Underdown, 73 F.Supp.2d 653 (W.D.La.1999); Galvez v. Lewis, 56 F.Supp.2d 637 (E.D.Va.1999); Danh v. Demore, 59 F.Supp.2d 994 (N.D.Cal.1999); Martinez v. Greene, 28 F.Supp.2d 1275 (D.Colo.1998).

B. Administrative Exhaustion Not Required for Habeas Review

Generally, exhaustion of all available administrative remedies is required before administrative determinations may be subject to federal judicial review. McCarthy v. Madigan, 503 U.S. 140, 144-45, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). When Congress fails to specifically mandate that exhaustion is required before a party may seek federal judicial review, the need for exhaustion in any given case is left to the sound discretion of the Court. Id. at 144, 112 S.Ct. 1081. In such circumstances, the Court "must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion." Id. Under the INA, exhaustion of administrative remedies is only required for appeals of final orders of removal. 8 U.S.C. § 1252(d)(1). Since Shurney is challenging the constitutionality of the statute, and not a final order of...