Waffi v. Loiselle, 1:07cv742 (LMB/BRP).

• Decision Date: 19 December 2007
• Docket Number: No. 1:07cv742 (LMB/BRP).,1:07cv742 (LMB/BRP).
• Citation: 527 F.Supp.2d 480
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Mustafa WAFFI, Petitioner, v. Mary LOISELLE, et al., Respondents.

527 F.Supp.2d 480

Mustafa WAFFI, Petitioner, v. Mary LOISELLE, et al., Respondents.

No. 1:07cv742 (LMB/BRP).

United States District Court, E.D. Virginia, Alexandria Division.

December 19, 2007.

Thomas Harry Tousley, Elliot & Mayock, Washington, DC, for Petitioner.

Dennis Carl Barghaan, Jr., United States Attorney's Office, Alexandria, VA, for Respondents.

MEMORANDUM OPINION

LEONIE M. BRINKEMA, District Judge.

Mustafa Waffi, a native of Afghanistan currently detained by the Bureau of Immigration and Customs Enforcement ("BICE") and housed at the Hampton Roads Regional Jail, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. On September 17, 2007, respondents filed their opposition to the petition. On September 27, 2007, petitioner filed his traverse. For the reasons stated below, the petition will be granted in part.

I.

Petitioner, an Afghani national born in Kabul, Afghanistan, was admitted to the United States as a lawful permanent resident on September 20, 2001. Pet., ¶ 7; Pet. Ex. 2 at 1. Since immigrating to the United States, petitioner has resided with his family in Springfield, Virginia. Pet., ¶¶ 7, 14. On August 1, 2005, petitioner engaged in oral sex acts with a minor. See Pet., ¶ 15; Pet. Ex. 5 at 1; Resp. Exs. 6, 13. On March 15, 2006, petitioner pled guilty in the Circuit Court of Fairfax County, Virginia to the felony offense of taking indecent liberties with a child, in violation of section 18.2-370 of the Code of Virginia. Pet., ¶ 15; Pet. Exs. 5-6; Resp. Ex. 1. On June 12, 2006, the Fairfax Circuit Court sentenced petitioner to a term of imprisonment of two years but suspended the sentence and imposed two years of supervised probation. Pet., ¶ 16; Pet. Ex. 5; Resp. Ex. 2. On July 17, 2006, the BICE detained petitioner. Pet., ¶ 17; Pet. Ex. 7. On July 18, 2006, the BICE issued a Notice to Appear, charging that petitioner was subject to removal from the United States pursuant to section 237(a)(2)(A)(i) of the Immigration and. Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(i), as an alien convicted of a crime involving moral turpitude, committed within five years after admission to the United States, for which a sentence of one year or longer may be imposed. Pet., ¶ 18; Resp. Ex. 3. The BICE also charged that petitioner's conviction rendered him removable from the United States under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony, as defined in section 101(a)(43)(A) of the INA, 8 U.S.C. § 1101(a)(43). Pet., ¶ 18; Resp. Ex. 3.

During removal proceedings before an immigration judge ("IJ"), petitioner requested to be released on bond in a motion filed August 4, 2006. Resp. Ex. 4. On August 16, 2006, the IJ found that petitioner did not qualify to be released on bond because of his conviction for an aggravated felony. Resp. Ex. 5 at 11; Pet. Ex. 2 at 2. Petitioner also applied for withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and under Article 3 of the Convention Against Torture ("CAT"), see 8 C.F.R. § 1208.16(c). Pet. Ex. 2 at 2. Between September, 2006 and February, 2007, petitioner requested and was granted four continuances of the hearing on the merits of his requests for withholding of removal. Resp. Exs. 7-13. In the meantime, on November 3, 2006, the IJ issued an interim order in which he found that petitioner's conviction was not a particularly serious crime under Yousefi v. U.S. Immigration & Naturalization Serv., 260 F.3d 318 (4th Cir.2001) and that, as a result, petitioner was eligible to apply for withholding of removal under both the INA and the CAT. Pet., ¶ 19; Resp. Ex. 14; see Pet. Ex. 2 at 2. On March 9, 2007, the IJ denied petitioner's Motion to Dismiss the aggravated felony ground of removability and found petitioner subject to removal on both grounds charged by the BICE in the Notice to Appear. Pet., ¶ 20; Resp. Ex. 15; see Pet. Ex. 2 at 2. By written opinion dated May 18, 2007, the IJ found that petitioner was removable as charged but granted petitioner withholding from removal to Afghanistan under the INA and the CAT. Pet., ¶ 21; Pet. Ex. 2 at 15; Resp. Ex. 16. Petitioner appealed to the Board of Immigration Appeals ("BIA"), challenging the IJ's ruling that he was subject to removal as the result of his conviction of an aggravated felony. Pet., ¶ 22; Resp. Ex. 18. The BICE appealed to the BIA, challenging the IJ's rulings that petitioner was eligible for withholding of removal and that he met his burden of proof for withholding of removal under the INA and the CAT. Pet., ¶ 22; Pet. Ex. 8; Resp. Ex. 17. Both appeals are currently pending before the BIA.

On July 30, 2007, petitioner filed the instant petition for a writ of habeas corpus, raising three claims. In claim 1, petitioner argues that he is not subject to the so-called "mandatory detention" provision at section 236(c)(1) of the INA, 8 U.S.C. § 1226(c)(1), because the plain language of the statute applies only to those aliens who have been detained by the BICE immediately after their release from a period of incarceration. In claim 2, petitioner asserts that the due process clause of the Fifth Amendment requires this Court to interpret 236(c)(1) of the INA as authorizing "no-bond detention" only for a reasonable time and when removal is reasonably foreseeable in order to avoid violating his substantive due process rights. In claim 3, petitioner asserts that the due process clause of the Fifth Amendment requires this Court to interpret section 236(c)(1) of the INA as authorizing "no-bond detention" only for a reasonable time and when removal is reasonably foreseeable in order to avoid violating his procedural due process rights.

Respondents counter that the "gravamen" of the instant petition is that the IJ erred in applying the INA's "mandatory detention provision" at section 236(c), 8 U.S.C. § 1226(c), to deny petitioner release on bond. According to respondents, section 236(e) of the INA, 8 U.S.C. § 1226(e), prohibits this Court from exercising jurisdiction under 28 U.S.C. § 2241 to review the IJ's application of section 236(c) to deny bond to petitioner. Moreover, respondents argue that even if this Court could exercise jurisdiction over petitioner's claims, petitioner's interpretation of section 236(c) would render as superfluous other portions of section 236(c), would lead to absurd results, and is contrary to the construction given that section by the BIA. Finally, respondents contend that petitioner's pre-removal detention is constitutionally permissible.

II.

Re-drafted in 1996, section 236 of the INA governs the Attorney General's authority to detain an alien during the pendency of removal proceedings. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), enacted at Division C of the Omnibus Consolidated Appropriations Act of 1997, Pub.L. No. 104-208, § 303(a), 110 Stat. 3009-585-86 (Sept. 30, 1996) (codified at 8 U.S.C. § 1226). Section 236(c) provides that the Attorney General is required to take into custody any alien who is deportable by reason of having been convicted of an aggravated felony or a crime involving moral turpitude, committed (in the case of an alien admitted for lawful permanent residence) within ten years of the date of admission to the United States "when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation...." 8 U.S.C. § 1226(c)(l)(B)-(C) (emphasis added). Pursuant to section 236(e), "[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review" and "[n]o 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).

III.

Analysis of the jurisdictional question begins properly with the understanding that implied repeals of the habeas jurisdiction of federal courts are disfavored. Ex parte Yerger, 75 U.S. (8 Wall.) 85, 102, 105, 19 L.Ed. 332(1868). In Felker v. Turpin, the Supreme Court applied Yerger and held that a portion of Title I of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b)(3)(E), which prevents the Supreme Court from reviewing, by appeal or writ of certiorari, an order from the court of appeals denying a state habeas petitioner leave to file a second or successive habeas petition, did not prevent it from exercising jurisdiction over original habeas petitions. 518 U.S. 651, 660-61, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). In determining that § 2244(b)(3)(E) did not deprive it of original habeas jurisdiction, the Supreme Court noted that Title I of the AEDPA lacked any reference to its authority to entertain, as an original matter, petitions for a writ of habeas corpus. Id. at 661, 116 S.Ct. 2333 ("Although § 2244(b)(3)(E) precludes [the Supreme Court] from reviewing, by appeal or petition for certiorari, a judgment on an application for leave to file a second habeas petition in district court, it makes no mention of [the Supreme Court's] authority to hear habeas petitions filed as original matters in [the Supreme] Court."). Accordingly, the Court declined, as it did so in Yerger with respect to a predecessor to 28 U.S.C. § 2241, to effect a repeal "by implication" of its jurisdiction under 28 U.S.C. § 2241. Id.

In Immigration & Naturalization Serv. v. St. Cyr, the Supreme Court reaffirmed the role that a writ of habeas corpus has played in the review of the legality of executive detention. 533 U.S. 289, 305, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citing Felker, 518 U.S. at 663, 116 S.Ct. 2333; Swain v. Pressley, 430 U.S. 372, 380 n. 13, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977); id. at 385-86, 97 S.Ct. 1224 (Burger, C.J., concurring)). In considering a jurisdictional challenge based on provisions of...