Hoang v. Comfort

282 F.3d 1247

Phu Chan HOANG, Thanh Quoc Nguyen, and Pham Qua Trung, Petitioners-Appellees, v. Michael COMFORT, Acting District Director, United States Immigration and Naturalization Service, Denver, Colorado, Respondent-Appellant Citizens and Immigrants for Equal Justice; American Immigration Lawyers Association, Amici Curiae.

No. 01-1136.

No. 01-1180.

No. 01-1343.

United States Court of Appeals, Tenth Circuit.

March 5, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michelle E. Gorden, Attorney (Emily Anne Radford, Assistant Director; Papu Sandhu, Senior Litigation Counsel; Allen W. Hausman, Senior Litigation Counsel; and Joshua E. Braunstein, Attorney, with her on the briefs), Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for Respondent-Appellant.

Judy Rabinovitz, American Civil Liberties Union Foundation, New York, New York (Liliana M. Garces, American Civil Liberties Union Foundation, Oakland, CA, and Jim Salvator, Lafayette, CO, with her on the brief), for Petitioners-Appellees.

Marvin E. Frankel and Jennifer L. Rochon of Kramer, Levin, Naftalis & Frankel LLP, New York, NY, and Nancy Morawetz, of Washington Square Legal Services, Inc., New York, NY, on the brief for Citizens and Immigrants for Equal Justice and American Immigration Lawyers Association, Amici Curiae.

Before BRISCOE and BALDOCK, Circuit Judges, and ALLEY, District Judge.¹

BRISCOE, Circuit Judge.

The United States Immigration and Naturalization Service (INS) appeals the district court's rulings in three cases which held that Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c), (INA) is unconstitutional as violative of both substantive and procedural due process. Section 236(c) of the INA requires the mandatory detention of criminal aliens pending administrative removal proceedings. We agree that the mandatory detention provision found in § 236(c) of the INA, as applied to petitioners, violates their substantive due process rights and affirm the district court.

I.

Under the INA as first enacted in 1952, an alien convicted either of a crime involving moral turpitude if the crime was committed within five years of entry into the United States or a crime violating drug or firearm laws was subject to deportation. INA § 241, codified at 8 U.S.C. § 1251 (1952). However, the INA provided the Attorney General with discretion to release such aliens on bond pending final determination of deportability. INA § 223, codified at 8 U.S.C. § 156 (1952).

In 1988, Congress amended the INA as part of the Anti Drug Abuse Act of 1988 (ADAA). The ADAA established a new category of deportable alien, the aggravated felon, which included any alien who committed crimes involving murder, drug trafficking, illicit trafficking in firearms and destructive devices, and any attempt or conspiracy to commit such crimes. ADAA § 7342, amending 8 U.S.C. § 1251(a). Under the ADAA, detention of such aliens pending removal proceedings was mandatory. ADAA § 7343(a).

However, a majority of federal district courts addressing the issue found the mandatory detention provision of the ADAA unconstitutional. See Martinez v. Greene, 28 F.Supp.2d 1275, 1279 (D.Colo.1998), and cases cited therein. As a result, Congress amended the mandatory detention statute in 1990 and 1991 to permit the release of aggravated felons who were lawfully admitted to the United States and who could demonstrate they were not a threat to the community and were likely to appear for their hearings. Id.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Stat. 1214 (AEDPA). The AEDPA created automatic mandatory detention without bond for aggravated felons and other non-citizens with criminal convictions. INA § 242(a)(2), codified at 8 U.S.C. § 1252. See Martinez, 28 F.Supp.2d at 1280. However, the AEDPA's amendment was almost immediately replaced with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 1570, which amended the INA to include § 236(c), the provision at issue here.

Section 236(c), codified at 8 U.S.C. § 1226(c), is a mandatory pre-removal detention provision directed at criminal aliens. It directs, in pertinent part, that:

The Attorney General shall take into custody an alien who —

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been [sentenced] to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

8 U.S.C. § 1226(c)(1). Thus, under § 236(c), the Attorney General is directed to detain "deportable" criminal aliens following release from their original sentences prior to decisions on their removal from the United States. The Attorney General has discretion to release an alien only if the alien or an immediate family member is participating in the federal Witness Protection Program and the alien "satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." 8 U.S.C. § 1226(c)(2).

Section 236(c) did not immediately become applicable with the passage of the IIRIRA. Instead, the IIRIRA contained "transition period custody rules" which provided immigration bond hearings to aliens with criminal convictions wherein the aliens were allowed to demonstrate legal entry and that they did not present a substantial risk of flight or threat to persons or property. The immigration court had discretion to set bond pending final administrative action. See IIRIRA § 303(b)(3); Martinez, 28 F.Supp.2d at 1280. The transition rules expired on October 9, 1998, and § 236(c) became effective.

II.

The three petitioners in these cases, Thanh Quoc Nguyen, Phu Chang Hoang and Pham Qua Trung, were all detained pursuant to § 236(c).

Thanh Quoc Nguyen

Nguyen entered the United States as a refugee from Vietnam in 1991 at the age of fifteen. He was admitted as a lawful permanent resident.

In February 1999, Nguyen pled guilty to the misdemeanor offense of threat/use of a dangerous weapon in a fight. He was sentenced to 365 days in jail, with 320 days suspended. Due to probation violations, he ultimately served his entire sentence. Upon completion of his sentence, he was detained by the INS, which had earlier commenced removal proceedings.

On February 12, 2001, after approximately three months in custody, Nguyen petitioned for a writ of habeas corpus arguing that § 236(c), as applied, was unconstitutional. He also filed an application for a temporary restraining order asking for an individual bond hearing. On February 13, 2001, the district court granted a permanent injunction and ordered the INS to provide a bond hearing. After a hearing, Nguyen was released on $8,000 bond.

Nguyen is currently seeking a withholding of removal under the INA, as well as relief under the Convention Against Torture, 8 C.F.R. § 208.18 (2001). He is also seeking post-trial relief in state court. Specifically, he seeks reduction of his sentence by one day, which would make him eligible to apply for cancellation of removal. See 8 U.S.C. § 1226(c)(1)(C).

Phu Chang Hoang

Hoang entered the United States as a refugee from Vietnam in 1979 at the age of three. He was admitted as a lawful permanent resident.

In February 1993, at the age of sixteen, Hoang pled guilty to two counts of aggravated robbery in connection with the stealing of a purse and wallet by use of force, threats, and intimidation with the aid of a firearm. He was sentenced to ten years on each count, to be served consecutively. Hoang served eight and a half years and was released, whereupon he was detained by the INS and removal proceedings were begun.

On January 24, 2001, some two months after being detained, Hoang petitioned for a writ of habeas corpus arguing that § 236(c), as applied, was unconstitutional. He also filed an application for a temporary restraining order requesting an individual bond hearing. The district court granted a final injunction in favor of Hoang directing the INS to conduct a bond hearing. After the hearing, Hoang was released on $20,000 bond. Hoang is currently seeking relief for removal under the Convention Against Torture.

Pham Qua Trung

Trung entered the United States as a refugee from Vietnam in 1987 at the age of fifteen. He was admitted as a lawful permanent resident.

On August 9, 2000, Trung pled guilty to two counts of forgery in Utah state court. He was sentenced to an indeterminate term not to exceed five years, and was required to serve thirty days. Upon completion of his sentence, he was detained by the INS, which had begun removal proceedings a month earlier.

On April 27, 2001, after more than a month in detention, Trung petitioned for a writ of habeas corpus arguing that § 236(c), as applied, was unconstitutional. Trung also filed an application for temporary restraining order, requesting an individual bond hearing. The district court granted the order and directed the INS to conduct a bond hearing. After a hearing, Trung was released on $7,500 bond.

Trung is currently seeking withholding of removal under the Convention Against Torture, and is also challenging the INS's contention that his forgery conviction constitutes an aggravated felony under the INA. 8 U.S.C. § 1227(a)(2)(A). If the challenge...