The opinion of the court was delivered by: Fern M. Smith, District Judge.
ORDER GRANTING APPLICATION FOR WRIT OF HABEAS CORPUS; GRANTING
MOTION TO VACATE APRIL 9, 1999 ORDER; VACATING JUDGMENT
Pending before the Court is petitioners' Application for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241 (the
"Application"). By this Application, petitioners mount an "as
applied" challenge to the constitutionality of Immigration and
Nationality Act ("INA") § 236(c) (codified at
8 U.S.C. § 1226(c)). The Application requires the Court to determine (1)
whether, as resident aliens, petitioners have a substantive due
process right to freedom from arbitrary detention; (2) whether §
236(c) violates that right by requiring detention without
possibility of bail for criminal aliens awaiting deportation; and
(3) whether § 236(c) violates petitioners' procedural due process
right to a hearing "at a meaningful time and in a meaningful
manner." The Court finds that § 236 violates petitioners'
substantive and procedural due process rights. The Application is
Petitioners Nhoc Danh and Uong Ly are lawful permanent
residents who arrived in this country in 1983 as refugees from
Vietnam. They have seven children, aged eight to twenty-two
years, four of whom are native-born U.S. citizens.
In December 1998, petitioners pled no contest to one count of
Fraudulent Obtainment of AFDC benefits*fn1 and received a
sentence of two-years' probation and restitution. Thereafter, the
Immigration and Naturalization Service arrested petitioners,
placed them in detention, and initiated removal proceedings
against them. Petitioners have been detained since January 13,
1999. They contest only their detention pursuant to INA § 236(c).
Despite their ineligibility for bond under § 236(c),
petitioners moved the Immigration Court for immediate release,
contending that they are neither a flight risk nor a danger to
the community. After subsequently changing their no contest plea
to one count of simple perjury*fn3 — an act that arguably fell
outside the definition of an "aggravated felony" — they also
moved the Immigration Court to terminate their removal
proceedings. While these motions were pending, petitioners filed
the instant § 2241 Application. By this Application, petitioners
seek (1) a finding that § 236(c) is unconstitutional as applied
to them; (2) an individualized bond hearing before the
Immigration Judge ("IJ"), within two business days, to determine
whether petitioners present a flight or safety risk; (3)
reasonable attorneys' fees and costs.
On April 2, 1999, IJ Alberto Gonzalez denied the motion to
terminate on the ground that petitioners' conviction for perjury
still amounted to an "aggravated felony" under INA §
101(a)(43)(M)(i). See Order Denying Motion to Terminate at 2.
Relying on a technical distinction between a "conviction" and an
"offense," the IJ reasoned that petitioners' conceded involvement
in acts that resulted in a loss to the government exceeding
$10,000 was sufficient to characterize their conviction for
perjury as one for "aggravated felony" under § 236(c).*fn4 The
IJ consequently denied the motion for an individualized bond
hearing because, under § 236(c), aliens subject to removal
proceedings are categorically ineligible to apply for bond.
"[T]here is no authority for the Court to consider any evidence
relating to [petitioners'] likelihood of flight risk and danger
of the community." Amended Order Denying Request for Bond
Determination Hearing (the "IJ's Amended Order").
On April 9, 1999, this Court summarily dismissed petitioners' §
2241 application as moot, reasoning that the IJ had considered
and denied the request for bond. The Court reached this
conclusion without the benefit of the IJ's Amended Order, which
clarified that no individualized assessment of bond versus
detention had in fact been made.
Petitioners thereafter moved under Federal Rules of Civil
Procedure 59(e) and 60(b) to vacate or set aside the Court's
April 9 Order. The basis of this motion was that the IJ had not
considered petitioners' dangerousness and flight risk; instead,
he denied bond because he believed that § 236(c) gave him no
authority to grant it. In response to the motion, the Court
issued an order to show cause to the government (1) why the April
9 Order should not be vacated, and (2) why petitioners' § 2241
application should not immediately be granted.
A district court may entertain a petition for a writ of habeas
corpus challenging the execution of a federal sentence only on
the ground that the sentence is being executed "in violation of
the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3); United States v. Giddings, 740 F.2d 770,
772 (9th Cir. 1984).
A federal statute is presumed constitutional unless shown
otherwise. Martinez v. Greene, 28 F. Supp.2d 1275, 1281 (D.Colo.
1998). To prevail on a facial challenge to the constitutionality
of a statute, the petitioner "must establish that no set of
circumstances exists under which
the [statute] would be valid." United States v. Salerno,
481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). To prevail
on an "as applied" challenge, the petitioner need only show that
the statute, as applied to him, is invalid.
District courts have jurisdiction under 28 U.S.C. § 2241 to
entertain challenges to § 236(c) itself, as opposed to the manner
in which it is enforced. See Parra v. Perryman, 172 F.3d 954,
1999 WL 173692 at *2. Respondent concedes jurisdiction of this
Court. Respondent's Amended Response to the Court's Order to Show
Cause (the "Government's Response") at 6 ...