espionage or treason. See 8 U.S.C. § 1227(a)(2). Petitioner basically
contends that Congress could not have rationally decided that deportable
aliens in these catagories — or at least controlled substances
offenders — can be presumed to be either a flight risk or a danger
to society such that they enjoy no possibility of release pending the
outcome of their removal proceedings.
The parties debate whether petitioner is a flight risk or a danger
because of his state-court conviction. On the current record, it is
difficult to evaluate the former issue; obviously inherent in any
decision to allow bail is the chance that the alien will not appear at
the removal hearing. Even if it is assumed that petitioner here is not a
flight risk, the Court concludes that his controlled substances
conviction is a sufficient ground to detain him without possibility of
bail, at least for a reasonable time while his removal is adjudicated. As
an initial matter, "[t]here is no doubt that preventing danger to the
community is a legitimate regulatory goal." Salerno, 481 U.S. at 747, 107
S.Ct. 2095. The next step, under Salerno, is whether the regulation is
excessive in furthering that objective. As to the provision at issue in
this case — controlled substances convictions,
8 U.S.C. § 1227(a)(2)(B)(i) — the evidence is overwhelming that
illegal drug use and trafficking have posed, and will likely continue to
pose, a significant threat to society's health and welfare. In light of
the drug trade's cost to the community, it is not excessive for Congress
to find that aliens convicted of controlled substances offenses can be
presumed to be dangerous such that their release on bail, pending the
outcome of their removal proceedings, is not warranted. Indeed, as other
courts have put it, "[t]he opinions of this Court are filled with tales
of drug possession and dealing that spun out of control and erupted into
violence." Polk v. State, 683 N.E.2d 567, 571 (Ind. 1997) (rejecting due
process challenge to statute enhancing penalties for drug possession
within 1000 feet of schools).
Petitioner, as he urges, may be able to demonstrate at his removal
hearing that he is entitled to cancellation of removal because of, among
other things, the lack of any real threat to the community that his
return would pose. This calculation presumably would turn on a range of
considerations, none before the Court in this proceeding. However, the
issue here is whether Congress violates due process by presuming that
petitioner is too dangerous to be released until he proves otherwise at
that hearing. Due to the nature of the offense giving rise to
petitioner's removal proceedings, the Court holds that this presumption is
not an unconstitutional one. Another way to view the matter is that
Congress has made a reasonable finding that anyone in petitioner's
situation, having committed a serious controlled substances offense, is
presumptively a threat to social peace not entitled to release.
The Court's conclusion that § 1226(c) is not excessive in
furthering the goal of protecting the public is reinforced by other
provisions in the statute. Specifically, Congress has excluded a certain
class of drug offenders from the mandatory-detention provision. See
8 U.S.C. § 1227(a)(2)(B)(i) (excepting "a single offense involving
possession for one's own use of 30 grams or less of marijuana"). This
exception reflects that Congress in § 1226(c) did not mindlessly
incorporate all drug crimes irrespective of the dangerousness that the
offense reflects. On the contrary, the statute signals that Congress
expressly considered whether all drug-related crimes should be included.
Cocainerelated offenses could also have been excluded from the statute's
scope but were not. For the reasons just given, their use to trigger
mandatory detention of petitioner encounters no constitutional shoal, at
least not in the due process area. In conclusion, § 1226(c) restricts
a protected liberty interest, but it does not unconstitutionally deprive
petitioner of that interest because the means that Congress has chosen to
further a legitimate regulatory goal are not excessive.
IV. Procedural Due Process
Petitioner submits that he is entitled to a bail hearing under the
three-part test for procedural due process set forth in Mathews v.
Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18(1976). The
insuperable problem with this argument is that there can be no
requirement of procedures for a right — here, bail during
deportation proceedings — that does not exist. "This is just the
`substantive due process' argument recast in `procedural due process'
terms . . . ." Reno v. Flores, 507 U.S. 292, 308, 113 S.Ct. 1439,
123 L.Ed.2d 1 (1993). Other courts addressing similar constitutional claims
have stressed the same point:
The dispositive issue is whether [the alien] has a
constitutionally protected liberty interest in
remaining free pending deportation. If such a right
exists, then the statute is a fortiori violative of
procedural due process rights because it does not
provide any procedures for protecting the liberty
interest. Conversely, if there is no right, the
absence of any protective procedures is immaterial.
Caballero v. Caplinger, 914 F. Supp. 1374, 1378 (E.D.La. 1996)
(construing predecessor version of 8 U.S.C. § 1252). As the Supreme
Court recently emphasized in a case involving different issues under the
Due Process Clause of the Fourteenth Amendment: "The first inquiry in
every due process challenge is whether the plaintiff has been deprived of
a protected interest in property or liberty. Only after finding the
deprivation of a protected interest do we look to see if the State's
procedures comport with due process." American Manuf. Mut. Ins. Co. v.
Sullivan, ___ U.S. ___, 119 S.Ct. 977, 989, 143 L.Ed.2d 130(1999)
(citations and internal quotation marks omitted). Since here, as in
Sullivan, there has been no deprivation of a constitutionally protected
interest, "we need go no further." ___ U.S. at ___, 119 S.Ct. at 990.
To be sure, in different circumstances, mandatory detention of a legal
permanent resident alien facing possible deportation could become so
lengthy that it could shift from a permissible "regulatory" detention for
deportation purposes to a form of unconstitutional imprisonment. See,
e.g., Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387-88 (10th
Cir. 1981). However, this case does not rise to that level. Petitioner's
removal hearing, which will include consideration of his application to
cancel removal, is scheduled to take place in less than two weeks.
Petitioner does not dispute respondent's assertion that the hearing was
put off until March 26, 1999 only because petitioner requested several
continuances to enable him to retain counsel and prepare his
application. Thus, any delay in holding the hearing so far is fairly
attributable to petitioner, not respondent. At least at this stage of
petitioner's removal proceedings, there is no due process violation in
detaining petitioner without any possibility of release on bail.
V. Conclusion and Order
For the reasons set forth above, the petition for writ of habeas corpus
is DENIED. Judgment shall accordingly be entered for respondent.
IT IS SO ORDERED.