Small v. Reno, Civ.A.3:00CV2155(JCH).

• Decision Date: 29 December 2000
• Docket Number: No. Civ.A.3:00CV2155(JCH).,Civ.A.3:00CV2155(JCH).
• Citation: 127 F.Supp.2d 305
• Parties: Brandon SMALL, Petitioner, v. Janet RENO, Attorney General, U.S. Immigration and Naturalization Service, Steven J. Farquharson, District Director, and Gary Cote, Officer in Charge, Respondents.
• Court: U.S. District Court — District of Connecticut

127 F.Supp.2d 305

Brandon SMALL, Petitioner, v. Janet RENO, Attorney General, U.S. Immigration and Naturalization Service, Steven J. Farquharson, District Director, and Gary Cote, Officer in Charge, Respondents.

No. Civ.A.3:00CV2155(JCH).

United States District Court, D. Connecticut.

December 29, 2000.

Michael J. Boyle, North Haven, CT, for petitioner.

James K. Filan, Jr., U.S. Attorney's Office, New Haven, CT, for defendants.

RULING ON PETITION FOR HABEAS CORPUS [DKT. NO. 1]

HALL, District Judge.

The petitioner, Brandon Small, is a lawful permanent resident alien who is currently being detained at the Hartford Community Correctional Center. After serving a five-year sentence for possession of cocaine with intent to sell, the Immigration and Naturalization Service ("INS") apprehended and detained the petitioner in August 2000 for removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). An Immigration Judge has found him removable, but another Immigration Judge further found that the petitioner is eligible for discretionary relief from deportation under former section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c). An individual hearing on the petitioner's section 212(c) request is pending.

The petitioner filed a Petition for Writ of Habeas Corpus in this court on November 7, 2000. The court issued an Order to Show Cause on November 14, 2000, and the court heard oral argument on December 6, 2000. The petitioner seeks a writ ordering the INS to provide the petitioner with a bond hearing before an Immigration Judge. For the reasons below, the Petition [Dkt. No. 1] is granted.

I. FACTS

The following facts are not in dispute. The petitioner came to the United States in 1979 at the age of 7. He currently enjoys the status of a lawful permanent resident alien. The petitioner has two children, ages six and seven, with his girl-friend, Silvia Mejil, who is a U.S. citizen. He lived with them in Waterbury, Connecticut, prior to his imprisonment on a state court conviction on August 28, 1995, for drug possession with intent to sell. The petitioner's parents and his two brothers also live in Waterbury and are all citizens or permanent resident aliens. The petitioner's grandmother is a U.S. citizen and lives in New York.

The petitioner completed drug rehabilitation and career counseling programs in state prison while serving his sentence of ten years imprisonment, suspended after five years. In August 2000, the petitioner was released into the custody of the INS pursuant to a Notice to Appear for removal proceedings served on the petitioner in prison on October 22, 1999. He remains detained without bond at the Hartford Community Correctional Center at the present time.

II. DISCUSSION

A. Jurisdiction

As the respondent concedes, there are no issues with regard to the court's jurisdiction over this petition under 28 U.S.C. § 2241. See Calcano-Martinez v. INS, 232 F.3d 328, 342 (2d Cir.2000); St. Cyr v. INS, 229 F.3d 406, 409-10 (2d Cir.2000); Henderson v. INS, 157 F.3d 106, 122 (2d Cir.1998).

B. The mandatory detention statute, INA § 236(c)

As part of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 2009-546, Congress enacted section 236(c) of the INA, a mandatory detention provision. This section provides, in pertinent part:

(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) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title.

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [d] to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

8 U.S.C. § 1226(c)(1). The Attorney General has discretion to release such an alien only when he or she is participating in the federal Witness Protection Program "and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." Id. § 1226(c)(2). There is no other release provision under section 236(c). However, once an order of removal becomes administratively final, if the alien is not removed within 90 days, the alien becomes eligible for release from custody under INA § 241. See 8 U.S.C. § 1231(a); 8 C.F.R. § 241.1 et seq.

For purposes of the present petition, it should suffice to observe that the Immigration Judge found that the petitioner had been mandatorily detained under section 1226(c)(1)(B), in accordance with 8 U.S.C. § 1227(a)(2)(A)(iii): "Any alien who is convicted of an aggravated felony at any time after admission is deportable." Under 8 U.S.C. § 1101(a)(43), "[t]he term `aggravated felony' means — ... (B) illicit trafficking in 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)."¹

Specifically, the Immigration Judge found on October 13, 1999, that the petitioner is "not a citizen or national of the United States," is "a native of Trinidad/Tobago and citizen of Trinidad/Tobago," was "admitted to the United States at New York, New York on or about October 6, 1979 as an Immigrant," and was "on September 16, 1995, convicted in Superior Court at Waterbury, Connecticut for the offense of `Possession of Narcotics with intent to Sell' in violation of Connecticut General Statutes, section 21a-277(a)." The Immigration Judge concluded that,

[o]n the basis of the foregoing, it is charged that you are subject to removal from the United States pursuant to ...: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at any time after admission, you have been convicted of an aggravated felony as defined in section 101(a)(43)(3) of the Act, that is, an offense relating to the illicit trafficking in a controlled substance, as described in section 102 of the Controlled Substance Act including a drug trafficking crime, as defined in section 924(c) of Title 18, United States Code.

On October 25, 2000, an Immigration Judge found that he had no jurisdiction to hear the petitioner's request for release on bond because the petitioner "has a final conviction for an offense within the scope of section 236(c)(1) of the [INA]," and "[t]herefore, the Court lacks jurisdiction to redetermine the [petitioner's] custody status. See 8 C.F.R. § 3.19(h)(2)(i)(D) (1999)." Section 3.19(h)(2)(i)(D) of Title 8 of the Code of Federal Regulations provides that "an immigration judge may not redetermine conditions of custody imposed by the Service with respect to the following classes of aliens: ... (D) Aliens in removal proceedings subject to section 236(c)(1) of the Act...." More specifically, the Immigration Judge noted that another Immigration Judge "determined that the [Immigration and Naturalization] Service had met its burden of proof of establishing by clear and convincing evidence that the [petitioner] is subject to removal because of a conviction for an aggravated felony."

There is no dispute in this case that the section 236(c) mandatory detention provision applies to the petitioner and that the petitioner is removable and will be removed unless he prevails on his request for a INA § 212(c) waiver of deportation. It is also undisputed that the petitioner is not under an administratively final order of removal, which would trigger the detention and release provisions of INA § 241.

C. INA § 212(c) waiver of deportation

"Under the law in effect prior to the enactment of the [Antiterrorism and Effective Death Penalty Act ("AEDPA") ], certain aliens otherwise determined to be deportable were entitled to apply to the Attorney General or her delegates, [including the Board of Immigration Appeals ("BIA") and Immigration Judges,] for a waiver of deportation under INA § 212(c), 8 U.S.C. § 1182(c) (1994)." St. Cyr, 229 F.3d at 410. Former INA § 212(c) provided:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to [provisions setting forth various grounds for exclusion] .... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least five years.

8 U.S.C. § 1182(c) (1994) (repealed by IIRIRA § 304(b), 110 Stat. at 3009-597, Sept. 30, 1996). As the Second Circuit explained in St. Cyr:

Discretionary relief from deportation, which has been available in our system in some form since at least 1917, see Francis [v. INS, 532 F.2d 268, 270 (2d Cir.1976) ], provides the Attorney General with a mechanism to consider the impact of immigration on an alien's family. Prior to 1996, INA § 212(c) gave power to the Attorney General to permit a worthy alien to stay in this country in order to avoid extraordinary hardship to the alien's family in the United States. See id. at 272. In a case where a convicted alien demonstrated that he or she had a lawful unrelinquished domicile in the United States for at least seven years and that his or her conviction was not for an "aggravated felony," for which he or she had served a term of imprisonment of five years or longer, the Attorney...