Martinez v. Ins., Civil Action No. 1:CV-99-1881 (M.D. Pa. 5/17/2000), Civil Action No. 1:CV-99-1881.

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HILARIO GERARDO CUESTA MARTINEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Civil Action No. 1:CV-99-1881.

United States District Court, M.D. Pennsylvania, Harrisburg.

May 17, 2000.

Hilario Gerardo Cuesta-Martinez, Montgomery County Correctional Facility, Norristown, Pa., petitioner.

Kate L. Mershimer and David Barasch, U.S. Attorney's Office, Harrisburg, Pa., for respondent.

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

Introduction.

Hilario Gerardo Cuesta Martinez, a deportable alien, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. The petitioner contends that his prolonged detention in INS custody awaiting deportation while the INS finds a country that will accept him violates his right to procedural and substantive due process under the fifth amendment.

We are considering the report of the magistrate judge, dated January 6, 2000. The report recommends that the petition be denied. The petitioner has filed objections to the report.

II. Background.

From the submissions of the parties, the following appears to be an accurate statement of the case. Petitioner is a citizen of Cuba who entered the United States on July 2, 1971. On August 17, 1977, he became a lawful permanent resident retroactive to November 5, 1973.

On September 15, 1988, he was convicted in New York State of attempted criminal possession of a controlled substance, cocaine. He was sentenced to one and one-half to three years. On April 9, 1992, he was again convicted in New York State of attempted criminal possession of a controlled substance. He was sentenced to seven and one-half to 15 years.

On March 2, 1994, the INS issued an order to show cause and notice of hearing. This form notified Cuesta Martinez that the government intended to deport him on the basis of his September 1988 drug conviction.

On October 20, 1994, an immigration judge ordered petitioner's deportation to either South Africa or Cuba. On March 29, 1995, the Board of Immigration Appeals denied Cuesta Martinez's appeal.

On November 12, 1998, petitioner was released from his state sentence and taken into INS custody. At some point he was transferred to York County Prison, York, Pennsylvania, while awaiting deportation to a country that would accept him. (Petitioner filed this petition while he was at that prison.) On March 5, 1999, South Africa refused him entry.

Petitioner has had three custody reviews. On December 22, 1998, parole pending deportation was denied. Neither party has indicated whether any statement of reasons was given. On April 26, 1999, another custody review was conducted. On June 1, 1999, the INS denied release in a form letter, stating:

Your file was reviewed on 4/26/99 for possible release because you have a final order and that order is over ninety (90) days old. Unfortunately, at this time, we have determined that your case does not meet the criteria for further review for release. You may appeal the District Director's decision to the Board of Immigration Appeals. Your file will be reviewed again in six (6) months.

(Respondent's exhibit 4)

A material reason for the decision was apparently the impressions of the interviewing officer who reported:

Subject has demonstrated a pattern for criminal activity up until his last arrest. Drugs played a large part of his lifestyle and activities. If he is released he will probably return to drug dependency and crime.

(Petitioner's memorandum in objection, exhibit 1)

Sometime in early December 1999, the INS notified Cuesta Martinez that he would be receiving another custody review on December 18, 1999. This notice informed the petitioner that his custody would be evaluated using the factors listed in 8 C.F.R. § 241.4 and 8 C.F.R. § 241.5. (The only addition the notice made to the factors was a specific reference under factor four to any history of escapes.)¹

On April 27, 2000, we ordered the respondent to file a copy of its written notification of its December 18 custody review. The respondent replied that it had not yet prepared the written notification, and it explained the delay by way of an unsworn declaration from a supervisory INS officer.²

After the December 18 interview, the INS interviewer had concluded that petitioner was a poor candidate for release. However, the interviewer's first-line supervisor did not concur in the evaluation and recommended release under supervision. A decision was made to obtain a psychological evaluation of the petitioner to assist in making the decision. The evaluation took place on January 31, 2000, about three weeks after the custody review, but the psychologist did not submit his report until May 9, 2000. The INS represents that it is currently attempting to make a prompt custody decision.

Cuesta Martinez has filed certain records from his New York incarceration to support his contention that he would not be a danger to the community if released on bond. These records show that he satisfactorily completed a substance abuse program, a vocational course as a tape librarian, a vocational course in basic legal research and law library management. Additionally, he had earned good-time credits that shortened his sentence and had a satisfactory disciplinary record.

III. Discussion.

Cuesta Martinez's physical presence in the United States makes him a "deportable" alien rather than an "excludable" one. As the case law has developed, the difference between these two classes of aliens is important to the due process analysis, so we preface our discussion by distinguishing between them.

The distinction between a deportable alien and an excludable one arises from statutory law in place before the 1996 amendments to the immigration law and depends on whether the alien has made a successful entry into the United States, regardless of whether the entry was legal or illegal. Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 1073, 2 L.Ed.2d 1246, 1248 (1958); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212. 73 S.Ct. 625, 629, 97 L.Ed. 956, 963 (1953). An alien past the point of entry and physically present in the country was statutorily entitled to a "deportation hearing." Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1440 (5th Cir. 1993). He was a "deportable" alien. An alien at the border and seeking entry was statutorily entitled only to an "exclusion hearing." Leng May Ma, supra; Gisbert, supra. He was an "excludable" alien. An excludable alien may be physically allowed into the country while his admission is being considered, but under the "entry fiction" is still considered to be at the border awaiting entry. Chi Thon Ngo v. INS, 192 F.3d 390, 397 (3d Cir. 1999). Under this scheme, a permanent resident alien qualifies as a deportable alien because he has successfully entered the country.

As the Third Circuit noted in Chi Thon Ngo, the terminology was recently changed by the 1996 amendments. Deportation is now "removal." An excludable alien is now an "inadmissible" alien although an inadmissible alien now includes an alien unlawfully in the country even if he has successfully entered it. See 5 Charles Gordon et al., Immigration Law and Procedure § 64.01[2], at 64-4 (1999). This change in terminology does not affect our analysis of Cuesta Martinez's claim since under the old and new statutes, having at one point been a legal resident, he is a deportable alien.

Cuesta Martinez asserts that his continued detention violates procedural and substantive due process because his removal is not likely in the near future. Hence, his detention now constitutes punishment. In opposition, the government argues that Chi Thon Ngo, supra, establishes that there is no due process violation here.

Chi Thon Ngo held that the indefinite detention of an excludable alien when the INS cannot find a country that will accept him does not violate due process when the alien receives periodic reviews that assess his current danger to the community or risk of flight. The court specifically limited its holding to excludable aliens, not deportable ones. 192 F.3d at 398 n. 7. Nonetheless, the respondent contends it applies here. The magistrate judge agreed with this argument and recommended that we deny the writ.

Petitioner counters this argument by alluding to Binh Phan v. Smith, 56 F. Supp.2d 1158 (W.D. Wash. 1999), although he does not cite the case directly. In Binh Phan, a five-judge court held that a deportable alien had a due process right to release on bond when there is no realistic chance of deportation even if he is a danger to the community or a risk of flight.

Binh Phan has been followed in this district by Sombat Map Kay v. Reno, — F. Supp.2d —, 2000 WL 432606 (M.D. Pa. 2000) (Rambo, J.), which distinguished Chi Thon Ngo because that case dealt with an excludable alien. Sombat Map Kay, in accord with Binh Phan, balances the likelihood of deportation against the alien's risk of flight and risk to the community. When the likelihood of deportation is slight, as it is in cases where the government cannot find a country that will accept the alien, the government's interest in detention is considered to be weak, if not nonexistent. Id., 2000 WL 432606, at *5 In these circumstances, the alien's liberty interest in being free from incarceration outweighs as a matter of law the government's interest in detention, even if there is evidence that the alien is a risk to the community, or possibly a risk of flight. Id., 2000 WL 432606, at *6.

Other courts have decided that deportable aliens have no greater rights than excludable aliens in these circumstances. Two courts of appeal have addressed the issue. In Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999), the Fifth Circuit decided that both sets should be treated the same for due process purposes. Crucial to the court's reasoning was its belief that both sets of aliens were in the same constitutional position by having lost their right to remain...