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March 16, 1999


The opinion of the court was delivered by: Moskowitz, District Judge.


Petitioner, a deportable legal permanent resident alien, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. Petitioner challenges the constitutionality of the Attorney General's lack of discretion, under 8 U.S.C. § 1226(c), to release him on bail pending the outcome of his removal proceedings (referred to interchangeably as "deportation" proceedings). Specifically, the issue is whether § 1226(c)'s mandatory-detention provision violates petitioner's right to due process of law under the Fifth Amendment to the United States Constitution by denying him an individualized determination of his suitability for release on bail. For the reasons set forth below, the Court holds that § 1226(c), at least as applied in this case, does not infringe on petitioner's due process rights. Accordingly, the petition is DENIED.

I. Background

Petitioner is a Mexican citizen and legal permanent resident of the United States. In 1997, petitioner was convicted in state court of violating California Health and Safety Code § 11350, which proscribes possession of certain controlled substances (in this case, 0.36 grams of cocaine base, or "crack" cocaine). On November 16, 1998, upon completing his 135-day jail sentence for this offense, petitioner was released on probation and transferred to the Attorney General's custody to face deportation.*fn1 The Attorney General sought deportation under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that an alien may be deported for violation of a state's controlled substance laws. There is no dispute that petitioner, based on his state-court conviction for possession of cocaine base, is presumptively deportable on this ground.

Because of the length of time that petitioner has been a lawful permanent resident (almost ten years), and because he has never been convicted of an aggravated felony,*fn2 petitioner is eligible to seek cancellation of removal. See 8 U.S.C. § 1229b(a). Petitioner has applied for this discretionary relief. A removal hearing, in which his application will be considered, is currently scheduled for March 26, 1999. The record reflects that, in the meantime, petitioner asked respondent to release him on bail or at least afford him a bail hearing to assess whether bail is appropriate. Petitioner's request was denied, apparently on the ground that the Attorney General, under 8 U.S.C. § 1226(c), has no discretion to release an alien, such as petitioner, who is facing possible deportation for a controlled substances offense.*fn3 Petitioner has been in the Attorney General's continuous custody since his arrest on November 16, 1998.

In broad brush, the parties' contentions in this Court are as follows. Petitioner maintains that § 1226(c)'s mandatory-detention provision violates his Fifth Amendment right to due process of law. Petitioner submits that, before he may be detained indefinitely in deportation proceedings, he is entitled, at a minimum, to an individualized determination that he is either a flight risk or a danger to the community. Respondent replies that the petition should be denied because a deportable alien in the Attorney General's custody does not enjoy any federal constitutional right to bail or any individualized assessment of fitness for temporary release.

II. Subject Matter Jurisdiction

This case is adjudicated in the thick of significant new rulings construing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). After this matter was argued and fully briefed, the Untied States Supreme Court vacated the Ninth Circuit decision relied on by both parties here to establish this Court's jurisdiction to hear the petition. Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir.) (per curiam), amended, 159 F.3d 1217 (9th Cir. 1998), vacated and remanded, ___ U.S. ___, 119 S.Ct. 1137, 143 L.Ed.2d 206(1999) (No. 98-836). The Supreme Court remanded Magana-Pizano for "further consideration" in light of Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. ___ 119 S.Ct. 936, 142 L.Ed.2d 940(1999) ("American-Arab").

Subject matter jurisdiction, of course, is a threshold question in any dispute in federal court. While the point requires some explanation, the Court concludes that despite the recent (at least temporary) demise of Magana-Pizano, there is jurisdiction to hear the petition under 28 U.S.C. § 2241.

In Hose v. INS, 141 F.3d 932 (9th Cir. 1998), the Ninth Circuit addressed recent restrictions on judicial review of immigration matters that IIRIRA imposed in 8 U.S.C. § 1252. Specifically at issue was the scope of § 1252(g), which directs that

  [e]xcept as provided in this section and
  notwithstanding any other provision of law, no court
  shall have jurisdiction to hear any cause or claim by
  or on behalf of any alien arising from the decision or
  action by the Attorney General to commence
  proceedings, adjudicate cases, or execute removal
  orders against any alien under this chapter.

Hose gave this subsection a broad reading, holding that

  [e]xcept as provided in [8 U.S.C. § 1252], federal
  courts are divested of all jurisdiction to hear any
  claim by any alien involving an immigration
  proceeding. . . . Section 1252 does not give the
  district court jurisdiction to hear Hose's habeas
  petition. Not having been granted jurisdiction under
  section 1252, that jurisdiction is removed just as the
  statute says it is.

Hose, 141 F.3d at 935. Emphasizing that the petitioner had failed to demonstrate how she lacked effective direct review of her claims, Hose further held that IIRIRA's stripping of judicial review, under the circumstances, did not violate the Suspension Clause. Id. at 936. See U.S. CONST. art. I, ยง 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). However, the Ninth Circuit expressly declined to voice any opinion on ...

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