Yanez v. Holder
| Decision Date | 05 July 2001 |
| Docket Number | No. 01 C 0467.,01 C 0467. |
| Citation | 149 F.Supp.2d 485 |
| Parties | Ismael YANEZ, Sengchanh Phengphonsavanh, Bernardo Garza-Garza, Sokha Ponn, and Gustavo Reyes-Ramirez, Petitioners, v. Eric HOLDER, Interim Attorney General of the United States, and Brian Perryman, District Director, Immigrations and Naturalization Service, Chicago, Illinois, Respondents. |
| Court | U.S. District Court — Northern District of Illinois |
Lisa J. Palumbo, Ruth Margaret Edwards, Chicago, IL, for petitioners.
Sheila McNulty Entenman, Chicago, IL, for respondents.
Petitioners filed a Petition for Habeas Corpus, alleging that Section 236(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1226(c), violates the Fifth Amendment of the United States Constitution. Petitioners request that this Court order bond hearings while the petitioners' removal proceedings are pending.
Ismael Yanez (Yanez) is a native and citizen of Mexico and a lawful permanent resident of the United States. In January 1998, Yanez was convicted of the possession of a controlled substance and sentenced to one-year probation. In May 1999, Yanez was convicted of possession of a controlled substance and sentenced to eighteen months' probation and ninety days' incarceration.
In March 2000, the Immigration and Naturalization Service (INS) issued Yanez a Notice to Appear for removal proceedings, alleging that Yanez was removable from the United States as an "aggravated felon" under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for his controlled substance convictions. The INS alleged that Yanez's two possession of a controlled substance convictions amount to a "drug trafficking crime" under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). The INS also charged Yanez under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), for having been convicted of an offense involving a controlled substance.
Upon completion of his sentence, Yanez was transferred into INS custody. At a March 2000 hearing at the Immigration Court in Chicago, Yanez did not dispute the second ground for removal but denied the aggravated felony charge alleged by the INS. He argued that his two convictions did not amount to "drug trafficking" under the INA and that, because he is not an "aggravated felon", he is eligible for discretionary relief from deportation. The Immigration Judge rejected Yanez's arguments and found that his second conviction for possession of a controlled substance rendered him deportable for a "drug trafficking offense." The Judge found that Yanez was not eligible for any relief from removal and ordered him deported from the United States.
Yanez appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA). The appeal is currently pending, and Yanez remains in INS custody. Yanez argues that if he is successful in his appeal and is found not to be an "aggravated felon", he is eligible for discretionary relief from deportation pursuant to 8 U.S.C. § 1229b(a).
Sengchanh Phengphonsavanh (Phengphonsavanh) is a lawful permanent resident of the United States. In March 1999, Phengphonsavanh was convicted of driving or operating a motor vehicle without the owner's consent and was sentenced to one year's incarceration. Subsequently, the INS issued a Notice to Appear for removal proceedings to Phengphonsavanh, charging him as removable for having committed an "aggravated felony" under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and INA 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G). After serving his sentence, Phengphonsavanh was taken into INS custody.
In June 2000, Phengphonsavanh appeared before an Immigration Judge who ordered him deported as an "aggravated felon". Phengphonsavanh appealed the Immigration Judge's decision to the BIA. Following the June hearing, the Immigration Judge also found that Phengphonsavanh was eligible for bond under INA § 236(c) but denied his request for bond. Phengphonsavanh appealed the denial of his bond to the BIA.
In December 2000, the BIA dismissed Phengphonsavanh's bond appeal, holding that the mandatory detention provision of INA § 236(c) precluded Phengphonsavanh's release on bond. Phengphonsavanh's appeal on the merits of his removal remains pending before the BIA, and Phengphonsavanh remains in INS custody. Phengphonsavanh argues that if he is found not to be an "aggravated felon", the INS has no jurisdiction over him, and the proceedings should be terminated.
Bernardo Garza-Garza (Garza) is a lawful permanent resident of the United States. In 1995 and 1998, Garza was convicted of two separate offenses of unlawful use of a weapon. In June 2000, both offenses were vacated nunc pro tunc, and Garza was convicted of Class A misdemeanor of unlawful use of a weapon. For these offenses, Garza was sentenced to one year of probation.
In June 1999, Garza pled guilty to possession of a stolen motor vehicle and was sentenced to three years' incarceration. In lieu of incarceration, Garza was recommended for impact incarceration. However, because the INS issued a detainer against Garza after his conviction, it was determined that he was not eligible for impact incarceration; and he, thereafter, served one year in the Illinois Department of Corrections.
After completing his sentence, Garza was taken into INS custody and detained without bond. The INS issued Garza a notice stating that he was ineligible for release on bond pursuant to INA § 236(c).
Garza admits that he is deportable on grounds he was convicted of a firearm charge. At his removal hearing, Garza challenged the INS's aggravated felony charge and argued that, if he is not an aggravated felon, he is eligible for discretionary relief from removal under INS § 240A. The Immigration Judge found that the INS sustained the "aggravated felony" charge. Nevertheless, the Immigration Judge heard testimony on Garza's application for Cancellation of Removal. After hearing the testimony, the Immigration Judge found that should Garza's "aggravated felony" finding be reversed by the BIA, Garza merited cancellation of his removal under INS § 240A.
Garza appealed the Immigration Judge's finding that he was an "aggravated felon" to the BIA. Garza's appeal is pending, and he remains in INS custody. Garza argues that, if he is found not to be an aggravated felon, he is eligible for discretionary relief from deportation pursuant to 8 U.S.C. § 1229b(a).
Sokha Ponn (Ponn) entered the United States as a refugee in 1984 at the age of five. Ponn is not a lawful permanent resident of the United States. In November 1998, Ponn was convicted of two counts of burglary to a building based on two separate offenses in July and August 1998. Ponn pled no contest to the offenses and was sentenced to two years' imprisonment for the first offense and five years' probation for the second offense.
While he was serving his prison sentence, the INS issued Ponn a Notice to Appear for removal proceedings. The INS charged that Ponn was an "aggravated felon" and that he was removable from the United States under INA § 237(a)(2)(A)(iii) or INA § 101(a)(43)(G) for having committed a theft offense or burglary offense for which the term of imprisonment is at least one year.
In June 2000, Ponn finished serving his prison sentence and was transferred to INS custody. At an Immigration Court hearing in October 2000, Ponn denied the INS's removability charge and argued that his guilty plea did not constitute a "conviction" under the INA. He also argues that his offenses should be considered under the Federal Juvenile Delinquency Act, 18 U.S.C. § 503 (FDJA) because he was seventeen years old at the time of the commission of the crime and under twenty-one when he was convicted.
At a January 2001 hearing, an Immigration Judge found Ponn was removable from the United States as an "aggravated felon". The Judge considered the merits of Ponn's two applications for relief, denied both requests for relief, and ordered Ponn removed to Cambodia. Ponn appealed the Judge's decision. The appeal is pending, and Ponn remains in INS custody. Ponn argues that, even if his offenses are found to constitute "aggravated felonies", he is still eligible for relief from removal if he adjusts his status from refugee to lawful permanent resident and his criminal offenses are waived for humanitarian purposes. In addition, he argues that he is eligible to apply for relief under Article 3.1 of the United Nations Convention Against Torture.
Gustavo Reyes-Ramirez (Reyes) entered the United States in 1986. Reyes is not a lawful permanent resident of the United States. In 1997, Reyes was charged with possession of a controlled substance. Reyes pled guilty and was sentenced to two years' probation. In June 2000, Reyes' probation was revoked, and he was sentenced to one year incarceration. Reyes served sixty-one days of his sentence and was released into INS custody.
The INS issued a Notice to Appear, alleging Reyes was removable from the United States under INA § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B). The INS also charged Reyes with remaining in the United States for a time longer than permitted under INA § 101(a)(15), 8 U.S.C. § 1101(a)(15).
In September 2000, Reyes had a bond hearing before an Immigration Judge. The Immigration Judge found that Reyes was subject to mandatory detention under INA 236(c). In a December 2000 hearing, Reyes denied the INS removability charge, arguing that his offense should be evaluated under the FDJA because he was seventeen years old at the time of the crime's commission and he was under twenty-one at the time of his conviction. Reyes argues that if he is not found to be an "aggravated felon", the INS does not have jurisdiction over him and that the proceedings should cease and that he also can seek relief from deportation because he fears returning to Guatemala.
Respondents first argue that the petitioners have failed to exhaust...
To continue reading
Request your trial
-
Shurney v. I.N.S.
...circumstances, it would be futile to require Shurney to pursue admittedly ineffective administrative relief. See, e.g., Yanez v. Holder, 149 F.Supp.2d 485 (N.D.Ill. 2001); Danesh v. Jenifer, 2001 WL 558233, No. 00-CV-74409-DT (E.D.Mich.2001); Marogi v. Jenifer, 126 F.Supp.2d 1056 (E.D.Mich.......
-
Gayle v. Johnson
...immigration judge concluded that Parra is deportable and ineligible for any relief from removal” (emphasis added)); Yanez v. Holder, 149 F.Supp.2d 485, 488 (N.D.Ill.2001) (“Garza admits that he is deportable on grounds he was convicted of a firearm charge. At his removal hearing, Garza chal......
-
Hoang v. Comfort
...does not have the power to reach constitutional arguments, and thus is not empowered to grant effective relief. See Yanez v. Holder, 149 F.Supp.2d 485, 489-90 (N.D.Ill.2001); Welch, 101 F.Supp.2d at 351-52. Third, the BIA has previously ruled that it is barred by § 236(c) from granting bond......
-
Ramos Serrano v. Estrada
...Ashcroft, 149 F.Supp.2d 1027 (N.D.Ill.2001); Tiv v. Reno, No. 99 C 872, 2000 WL 246252 (N.D.Ill. Feb 24, 2000); but see Yanez v. Holder, 149 F.Supp.2d 485 (N.D.Ill.2001); Kahn v. Perryman, No. 00 C 3398, 2000 WL 1053962 (N.D.Ill. Jul 31, 2000). 16. Parra, 172 F.3d at 958. 17. Id. 18. See Ho......