Tam v. I.N.S.
| Decision Date | 11 August 1998 |
| Docket Number | No. Civ. S-98-183 FCD GGH P.,Civ. S-98-183 FCD GGH P. |
| Citation | 14 F.Supp.2d 1184 |
| Parties | Truong Thanh TAM, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Quin Denvir, Fed. Defender, Daniel J. Broderick, Asst. Fed. Defender, Richard A. Cohen, Sacramento, CA, for Petitioner.
Paul L. Seave, U.S. Atty., Glyndell E. Williams, Special Asst. U.S. Atty., Sacramento, CA, H. Bradford Glassman, Office of Immigration Affairs, Washington, DC, for Respondent.
Respondent Immigration and Naturalization Service (the "INS" or "government") seeks review of an order releasing Petitioner Truong Thanh Tam ("Truong" or "petitioner") from INS custody pending a ruling on Truong's petition for a writ of habeas corpus. The order releasing Truong on conditions was entered by United States Magistrate Judge Gregory G. Hollows on May 26, 1998, and stayed pending this court's ruling on the government's Motion for Reconsideration.
The court deems the Order of May 26, 1998, to be the magistrate judge's finding and recommendations concerning petitioner's application for release pending resolution of his petition for habeas corpus.1 For the reasons set forth below, the court adopts the magistrate judge's findings and recommendations and grants petitioner's conditional release pending resolution of his petition for habeas corpus. The government's motion for reconsideration is denied as moot, and the government's request for a stay pending appeal of this Order is denied.
Petitioner is a native and citizen of Vietnam. He arrived in the United States as a refugee on November 11, 1975. While residing in Anchorage, Alaska, he obtained lawful permanent resident status on May 23, 1978. On June 25, 1990, INS placed petitioner in deportation proceedings on the basis of two separate convictions in 1982 and 1983. On December 3, 1990, an immigration judge conducted a deportation hearing in Anchorage and ordered petitioner deported to Vietnam. Petitioner waived his right to appeal, but he was not deported.
On May 6, 1995, the Anchorage INS office assumed custody of petitioner from Alaska local authorities after petitioner had completed his sentence for forgery in the second degree and theft in the second degree.2 He was detained while INS sought necessary travel documents needed to effect his deportation to Vietnam.
Petitioner was transferred to the INS long-term detention facility in Seattle, and on February 7, 1996, the Seattle office advised petitioner's attorney that petitioner would not be released from detention due to his extensive criminal history. Petitioner continues his incarceration in Sacramento, California.
For several years, INS has sought to repatriate petitioner to Vietnam. The government of Vietnam has never responded to INS's requests and there appears little likelihood Vietnam will repatriate petitioner.
Petitioner has been in INS custody awaiting repatriation for more than three years.
On October 3, 1997, petitioner filed a handwritten petition for writ of habeas corpus alleging that his continued detention violated due process. Petitioner's case was transferred from the District Court for the Western District of Washington to this court on January 29, 1998. The matter was referred to the magistrate judge pursuant to general order and local rule. On March 9, 1998, the government filed a motion to dismiss the petition which the magistrate judge denied by Order filed April 21, 1998. At that time, the magistrate judge scheduled a hearing to address the matter of petitioner's continued detention by the INS.
A hearing concerning petitioner's detention was held before the magistrate judge on May 7, 1998. At the hearing, the magistrate judge allowed the government ten days in which to file further briefing concerning the court's authority to release petitioner. On May 26, 1998, the magistrate judge ordered petitioner's conditional release on May 29, 1998, unless the government moved for reconsideration of the release order before the district judge. By its own terms, the Order of May 26, 1998, was stayed upon filing of the government's motion for reconsideration.
On July 10, 1998, the court held a hearing on the government's motion for reconsideration. The hearing was continued to allow the INS to consider a proposed stipulated conditional release of petitioner. On July 13, the INS rejected the proposed stipulation, but offered to conduct an expedited review of petitioner's file and, on or before July 17, 1998, issue a written decision regarding petitioner's release. The matter was continued to July 20, 1998, to allow the INS district director to conduct an expedited review and issue a written decision. On July 17, the INS' district director issued a decision refusing to release petitioner.
On July 20, 1998, the court, without objection from petitioner's counsel, ordered petitioner to undergo a psychological evaluation for the purpose of determining whether he suffered from a mental illness that would render him a danger to the community.
1. Jurisdiction
Section 2241 of Title 28 of the United States Code establishes the court's authority to grant writs of habeas corpus.3 Habeas relief is appropriate when a person "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C., 110 Stat. 3009-546 (enacted 9/30/96), amended the Immigration and Nationality Act ("INA") to restrict federal courts' power of judicial review over "any cause or claim by or on behalf of any alien arising from the decision or action of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." 8 U.S.C. § 1252(g). Section 1252(g), however, does not prevent this court from exercising jurisdiction over petitioner's application for habeas corpus to the extent petitioner raises constitutional due process claims. See Walters v. Reno, 145 F.3d 1032 (9th Cir.1998) (); Felker v. Turpin, 518 U.S. 651, 660, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (). Petitioner's habeas claim is a collateral constitutional due process challenge to his prolonged and indefinite detention and thus, not proscribed by the IIRIRA.
The government notes that, prior to 1996, section 106(a)(10) of the "INA" provided that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. § 1105a(1)(10) (1995) (emphasis added). This provision has been repealed, but not replaced with another provision specifically addressing custody. The amended version of 106(a)(10) provides that "[a]ny final order of deportation against an alien who is deportable by reason of having committed [an aggravated felony or firearms offense] shall not be subject to review by any court." 8 U.S.C. § 1105a(a)(10) (emphasis added). The government acknowledges that petitioner's custody is not addressed in the deportation order. Nevertheless, the government interprets the amended provision as an indication that Congress intended to remove all district court authority to review custody decisions under habeas corpus.4 A strict textual reading, however, does not support the government's interpretation. In amending the statute, Congress specifically addressed final orders of deportation but did not reference review of custody determinations. The INA itself does not contain a specific provision divesting this court of habeas jurisdiction in custody cases. Without a provision expressly repealing habeas jurisdiction in this context, the court must find that Congress did not intend to repeal habeas jurisdiction when custody is at issue.5
Section 1252(a)(2)(C) restricts federal courts' power to review final orders of removal against certain criminal aliens.6 8 U.S.C. § 1252(a)(2)(C); Valderrama-Fonseca v. INS, 116 F.3d 853, 855 (9th Cir.1997). Petitioner does not challenge the final order of removal, and resolution of his habeas petition does not require this court to review it. Moreover, § 1252(a)(2)(C) only applies to orders of deportation entered after September 30, 1996. Valderrama-Fonseca, 116 F.3d at 855 n. 1. Thus, § 1252(a)(2)(C) does not deprive this court of jurisdiction to hear petitioner's application for habeas relief.
Section 1226(c) requires the Attorney General to take into custody any alien who is deportable by reason of having committed an "aggravated felony" and gives her discretion to release such an alien under certain circumstances. 8 U.S.C. § 1226(c). Section 1226(e) bars judicial review of the Attorney General's exercise of discretion under § 1226, but applies only to "actions taken" after September 30, 1996. IIRIRA, Pub.L. No. 104-208, Div. C, § 321(c) (1996); Valderrama-Fonseca, 116 F.3d at 856. Thus, § 1226(e) proscribes this court's jurisdiction only if "actions" were taken after September 30, 1996, that would trigger § 1226(c). Valderrama-Fonseca, 116 F.3d at 855-56.
Congress did not define "actions taken," but in Valderrama-Fonseca, the Ninth Circuit interpreted "actions taken" to "encompass things done by an agency to an alien." Id. at 856. The Ninth Circuit declined to decide whether "actions taken" refers to steps taken by an alien, such as petitioning for review of a Board of Immigration Appeals' decision. Id.; see also Choeum v. INS, 129 F.3d 29, 37 (1st Cir.1...
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