Badio v. U.S.

172 F.Supp.2d 1200

Samuel S. BADIO, Petitioner, v. The UNITED STATES of America and the Department Of Justice, U.S. Immigration & Naturalization Service and Curtis Aljets, its District Director, Respondents.

No. Civ. 01-1963 (DSD/FLN).

United States District Court, D. Minnesota.

November 21, 2001.

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Douglas Richard Rainbow, Rainbow Law Office, Minneapolis, MN, for Samuel S Badio, petitioner.

Gregory Guy Brooker, U.S. Attorney, Minneapolis, MN, for United States of America, Immigration and Naturalization Service, suing as U.S. Immigration and Naturalization Service, Curtis J Aljets, respondents.

ORDER

DOTY, District Judge.

This matter is before the court upon petitioner's request for a writ of habeas corpus. For the following reasons, the court denies the petition.

BACKGROUND

Petitioner is 34-year-old alien national of Liberia who was admitted to the United States as a lawful permanent resident on May 19, 1994. The respondent, Curtis Aljets, is district director of the United States Immigration and Naturalization Service ("INS"), an instrumentality of the United States Department of Justice.

On March 19, 1999, the District Court for Hennepin County, Minnesota found petitioner guilty of criminal sexual conduct in the third degree under Minnesota law. After petitioner had served his sentence, respondent took him into custody pursuant to 8 U.S.C.A. 1226. Petitioner has been in detention continuously since that time. There are currently no criminal charges pending against petitioner.

The procedural posture of this case is as follows. On October 15, 1999, the INS issued a Notice to Appear charging petitioner with being deportable under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), sexual abuse of a minor. (Resp't Ex. A.) The INS detained Badio without bond pursuant to INA § 236(c)(1)(B), 8 U.S.C. § 1226(c)(1)(B). Id. at 4. Under INA 236(c)(1)(B), 8 U.S.C. § 1226(c)(1)(B), detention of criminal aliens is mandatory. See 8 U.S.C. § 1226(c) (1999) ("The Attorney General shall take into custody any alien who ... is deportable by reason having committed any offense covered in section 1227(a)(2)(A)(i), (A)(iii), (B), (C) or (D) of this title, ....").

The immigration judge conducted Badio's removal hearing on November 18, December 2, and December 23, 1999, and January 27, February 3, February 24, and March 3, 2000. (Resp't Ex. H.) On December 2, 1999, petitioner's attorney conceded the charge of removability set forth in the Notice to Appear. Id. at 8-9. Petitioner applied for withholding of removal under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), and under Article 3 of the Convention Against Torture, as implemented in 8 C.F.R. 208.16(c). Id. at 9. At the hearing, the INS argued that petitioner was ineligible for withholding of removal because he had been convicted of a particularly serious crime. Id. at 9-10. In an oral decision on March 3, 2000, the immigration judge held that petitioner's conviction for criminal sexual conduct in the third degree was not a particularly serious crime and granted petitioner withholding of removal to Liberia under INA § 241(b)(3)(A). (Resp't Ex. F; Ex. I at 22.) Petitioner was ordered deported to any country but Liberia. (Resp't Ex. F; Ex. I at 25.)

Because petitioner was ordered deported from the United States and petitioner did not appeal this determination, petitioner no longer retains permanent resident status. The INS reserved the right to appeal from the immigration judge's decision of March 3, 2000. (Resp't Ex. F; Ex. H at 259.) In its appeal, the INS challenged only the immigration judge's finding that petitioner's conviction was for a crime which was not particularly serious. (Resp't Ex. G.) Thus, petitioner's ultimate order of deportation was not appealed.

On December 12, 2000, the Board of Immigration Appeals ("BIA") determined that petitioner's conviction for criminal sexual conduct in the third degree was for a particularly serious crime, concluded that petitioner was statutorily ineligible for withholding of removal, and remanded the record to the immigration judge for a finding on petitioner's eligibility for deferral under the Convention Against Torture. (Resp't Ex. L.)

The immigration judge conducted hearings on January 25, February 8, March 22, and March 29, 2001. On March 29, 2001, the immigration judge rendered an oral decision granting petitioner deferral of removal to Liberia under 8 C.F.R. 208.17. (Resp't Ex. M; Ex. P.) At the hearing petitioner orally waived his right to an appeal of this decision. The INS, however, filed a timely appeal of the immigration judge's deferral decision with the BIA. (Resp't Ex. N.) The INS filed its brief on August 2, 2001, and petitioner filed his response brief on October 3, 2001. The board is currently considering the appeal, but at this time has not yet issued a decision.

Petitioner now files a petition for a writ of habeas corpus under 28 U.S.C. § 2241, et. seq, challenging his detention. For the reasons stated, the court denies petitioner's request for habeas corpus relief.

DISCUSSION

A. Standard of Review

Judicial review of immigration matters is limited. As the Supreme Court stated in Hampton v. Mow Sun Wong: "the power over aliens is of a political character and therefore subject only to narrow judicial review." 426 U.S. 88, 102 n. 21, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). In Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), the Supreme Court again underscored the "limited scope of judicial inquiry into immigration legislation." In Galvan v. Press, the Supreme Court emphasized this point, explaining:

Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process ... But that formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government. ... 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954).

While this congressional power is subject to constitutional limitations, see Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 2501, 150 L.Ed.2d 653 (2001), the court's review of Badio's detention status is nevertheless narrow.

B. Petitioner's Detention

Petitioner contends that he is entitled to habeas corpus relief because his detention violates the United States Immigration and Naturalization Act and the Fifth, Sixth and Eighth Amendments. He cites Zadvydas v. Davis, 121 S.Ct. 2491 (2001) to support his position that the INS's authority to detain certain people to process them for deportation is subject to constitutional limits. While the court recognizes the constitutional limitations Zadvydas imposes on post-removal-order detentions, the court concludes that Zadvydas does not apply to petitioner's pre-removal-order detention. The court further concludes that § 1226(c) does not violated the Fifth Amendment's due process clause and therefore denies petitioner's request for habeas corpus relief.¹

1. Zadvydas Does Not Apply to Pre-removal-order Detentions

Petitioner argues that his detention is unconstitutional under Zadvydas. Zadvydas, however, is limited to detained aliens, unlike Badio, who have received final removal orders and are awaiting removal from this country pursuant to 8 U.S.C. § 1231(a)(6). In Zadvydas, the Supreme Court considered "whether this post-removal statute authorizes the attorney general to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal." Id. at 2495. The Supreme Court held that the post-removal statute, when read together with the Constitution, "limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States." Id. at 2498. The Court emphasized that "it does not permit indefinite detention." Id. In reaching this conclusion, the Court distinguished post-removal-period detention from "detention pending a determination of removability or detention during the subsequent 90-day removal period," finding that the former has no termination point. Id. at 2503.

While no circuit has determined whether Zadvydas applies to pre-removal-order detentions, two circuit courts that considered pre-removal-order detentions pre-Zadvydas concluded that they do not violate the Fifth Amendment due process clause. Parra v. Perryman, 172 F.3d 954 (7th Cir.1999) (mandatory detention statute does not violate due process), see also Richardson v. Reno, 162 F.3d 1338, 1364 n. 119 (11th Cir.1998), rev'd on other grounds, 526 U.S. 1142, 119 S.Ct. 2016, 143 L.Ed.2d 1029 (1999)("Congress acts well within its plenary power in mandating detention of a criminal alien with an aggravated felony conviction facing removal proceedings."). The one district court that has considered whether § 1226(c) detentions are constitutional post-Zadvydas found that Zadvydas does not apply to pre-removal-order detentions and concluded that such detentions satisfy procedural and substantive due process. Yanez v. Holder, 149 F.Supp.2d 485 (2001).²

Following these decisions, this court concludes that Zadvydas does not support petitioner's claim because Zadvydas only applies to post-removal-order detentions. As the Supreme Court noted in Zadvydas, pre-removal-order proceedings do have a termination point. They are necessarily limited by the duration of the alien's removal proceeding. Unlike the post-removal-order detention in Zadvydas, detention during removal proceedings is not affected adversely by uncontrollable factors such as the...