Tran v. Gonzales, CIV.A.04-2202.

• Decision Date: 22 January 2006
• Docket Number: No. CIV.A.04-2202.,CIV.A.04-2202.
• Citation: 411 F.Supp.2d 658
• Parties: Ha TRAN v. Alberto R. GONZALES, et al.
• Court: U.S. District Court — Western District of Louisiana

411 F.Supp.2d 658

Ha TRAN v. Alberto R. GONZALES, et al.

No. CIV.A.04-2202.

United States District Court, W.D. Louisiana. Lafayette-Opelousas Division.

January 22, 2006.

Herbert T. Nesom, Nesom & Vega, Oakdale, LA, for Ha Tran.

Karen J. King, U.S. Attorneys Office, Lafayette, LA, for Alberto R. Gonzales, James W. Ziglar, Craig Robinson, U.S. Bureau of Immigration & Customs Enforcement and U.S. Dept. of Homeland Security.

JUDGMENT

MELANCON, District Judge.

Before the Court is the Report and Recommendation of United States Magistrate Judge C. Michael Hill related to Ha Tran's petition for habeas corpus [Rec. Doc. 1], recommending that Tran's petition for habeas corpus relief be granted and Tran be released from federal detention under an order of supervision on conditions that the government believes are appropriate under the circumstances [Rec. Doc. 18]. The government filed objections to the Report and Recommendation and Tran filed a reply thereto. [Rec. Doc. 22; 25].

The government asserts that the Magistrate Judge's recommendation provides for the immediate release of a dangerous alien into the United States¹, and because the law entitles the United States to continue the detention of such an individual, the recommendation should be rejected by the Court. In particular, the government contends that the Magistrate Judge's Report and Recommendation invalidates 8 C.F.R. §§ 1241.14, a federal regulation promulgated to define the "special circumstances" warranting continued detention, and is inconsistent with Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) and Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), and therefore, the Court should enter an order denying Tran's release from custody of the United States Immigration and Customs Enforcement.

In his recommendation, the Magistrate Judge cited 8 U.S.C. § 1231(a)(6) as authorizing that "[a]n alien ordered removed who is inadmissible ..., removable ... or who has been determined by the [Secretary] to be a risk to the community may be detained beyond the 90-day removal period." Thus, the Magistrate Judge correctly concluded that the issue before the Court is whether § 1231(a)(6) allows the continued and potentially indefinite detention of an alien based on a determination by the government that the alien's mental illness makes him "a risk to the community." The Magistrate Judge determined that the statute does not allow such detention. In making his recommendation, the Magistrate Judge considered the Supreme Court's ruling in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) and the recent Supreme Court decision in Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005).

The government objects to the Magistrate Judge's consideration of Zadvydas and Clark in that neither case concerned continued detention of the third category of aliens, "one who is a risk to the community," which the government contends applies in this matter. While recognizing that Zadvydas involved a "removable" alien and Clark involved an "inadmissible" alien, the Magistrate Judge concluded that the Supreme Court in Clark "unequivocally held that the operative language of § 1231(a)(6), `may be detained beyond the removal period,' applies without differentiation to all three categories of aliens that are its subject.' Clark, 125 S.Ct. at 722-723 (emphasis added)." R. 18, p. 8. In drawing this conclusion, the Magistrate Judge stated that the Supreme Court further noted in Clark that "it is not a plausible construction of § 1231(a)(6) to imply a time limit as to one class but not to another. The text does not admit of this possibility." Id. at 723. In light of the Supreme Court's directives in Clark, the Magistrate Judge correctly reasoned that, "under the clear language and reasoning of Clark, the statute and the presumptively reasonable six month period set forth in Zadvydas must apply equally and uniformly to all three categories of aliens covered under the statute." R. 18, p. 9.

Based on the Magistrate Judge Hill's thorough analysis as set out in his well reasoned and well written Report and Recommendation, and after an independent review of the record, including the fact that the immigration judge ruled in Tran's favor after psychological evaluations and a merits hearing pursuant to 8 C.F.R. § 241.14(i), after specifically considering the written objections filed by the United States, and concurring with the Magistrate Judge's findings under the applicable law, which the Magistrate Judge properly ascertained with little assistance from the United States,

IT IS ORDERED that Ha Tran's petition for writ of habeas corpus is GRANTED. Accordingly, Tran shall be released from federal detention under an order of supervision on conditions that the government believes are appropriate under the circumstances.

REPORT AND RECOMMENDATION

HILL, United States Magistrate Judge.

Before the court is Ha Tran's petition for habeas corpus filed on October 22, 2004 pursuant to 28 U.S.C. § 2241. Petitioner is in the custody of the Department of Homeland Security/Bureau of Immigration Customs Enforcement (BICE) and is presently detained at the St. Martin Parish Prison in St. Martinville, Louisiana. The respondents, United States Attorney John Ashcroft¹, BICE Commissioner James W. Ziglar, BICE Louisiana Field Officer Craig Robinson, and the Department of Homeland Security/Bureau of Immigration Customs Enforcement, have filed a sealed Response [rec. doc. 11], to which petitioner has filed a Reply. [rec. doc. 16].

This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court.

STATEMENT OF THE CASE

In the instant petition, Tran claims that his continued and indefinite detention under 8 U.S.C. § 1231(a)(6) violates the principles set forth by the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Thus, Tran requests this court to order the respondents to release him under an order of supervision. Petitioner additionally contends that 8 C.F.R. § 241.14 is unconstitutional.²

Petitioner is a native and citizen of Vietnam who entered the United States as a refugee on August 12, 1975. On September 20, 1978, Tran's status was adjusted to that of lawful permanent resident.

On October 24, 1984, Tran was convicted of an assault and a firearms possession charge in Dorchester, Massachusetts. As a result, he was confined for two years at the Bridgewater State Hospital for "mental health treatment." Thereafter, Tran was committed to a half-way house. Upon his release from that institution, Tran killed his wife. On May 22, 1989, Tran was convicted of manslaughter for which he was sentenced to serve 18-20 years imprisonment.

As a result of his criminal conviction for manslaughter, an aggravated felony, on February 2, 1998 Tran was ordered removed to either France or Vietnam. The order of removal is administratively final.³ However, to date, Tran has not been removed to either France or Vietnam.

The government does not dispute that Tran has been held beyond the 90 day removal period set forth in § 1231(a)(1) and beyond the presumptively reasonable six month period for removal set by the United States Supreme Court in Zadvydas. Similarly, the government does not dispute that Tran's removal is not reasonably foreseeable at this time. Rather, in order to justify Tran's continued indefinite detention, the government relies on an alleged exception to the Zadvydas ruling which the government contends allows for the indefinite detention of aliens, allegedly like Tran, who, as a result of a mental condition or illness, pose a special danger to the community.

At the government's insistence, and pursuant to 8 C.F.R. § 241.14(f)⁴, Tran was evaluated by various physicians, psychologists and psychiatrists in an attempt to prove that, if released, Tran's mental condition would likely cause him to engage in future acts of violence and that no conditions of release could reasonably be expected to insure the safety of the public.

Thereafter, an immigration judge found reasonable cause to continue to detain petitioner pending a merits hearing on the government's finding that Tran's release would pose a special danger to the public (see § 241.14(h)⁵). On July 22, 2003, Tran was brought before an immigration judge for a "merits hearing" pursuant to 8 C.F.R. § 241.14(i)⁶. At the conclusion of the merits hearing, the immigration judge ruled in petitioner's favor, finding that the government had failed to demonstrate that petitioner's mental condition made him a special danger to the public. Accordingly, the immigration judge dismissed the continued detention review proceedings, implicitly recommending petitioner's release from custody.

On the government's appeal, however, by decision dated May 21, 2004, the Board of Immigration Appeals ("BIA") vacated the immigration judge's ruling. In so doing, the BIA found clear and convincing evidence that Tran previously committed one or more violent crimes, that due to his mental condition he was likely to engage in acts of violence in the future and that the safety of the public could not reasonably be insured by placing conditions on Tran's release. Thus, petitioner remains in BICE custody, being held in the "St. Martinville [sic] Parish Prison Medical Facility." [rec. doc. 11, Ex. A].⁷

LAW AND ANALYSIS

This case requires this court to consider whether 8 U.S.C. § 1231(a)(6), as construed by the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), authorizes the continued and potentially indefinite detention of an alien based on a determination by the government that the alien's mental illness makes him specially dangerous to the community. More specifically, this case requires this court to...