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May 28, 1999


The opinion of the court was delivered by: Fern M. Smith, District Judge.



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 GRANTED.


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).

Section 236(c)*fn2 provides for the mandatory detention of aliens who have committed, inter alia, an "aggravated felony" as defined in INA § 101(a)(43)(M)(i) (codified at 8 U.S.C. § 1101(a)(43)(M)(i)). It gives the Attorney General no discretion to release detainees based on a determination of flight risk or dangerousness. Under § 101(a)(43)(M)(i), an "aggravated felony" is defined as "fraud or deceit in which the loss to the victim or victims exceeds $10,000." Id. Petitioners were detained because their conviction for fraudulent obtainment fell within that definition.

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.


I. Legal Standard

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.

II. Analysis

A. Jurisdiction

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 ...

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