what classes of aliens should be deported, the same is not true
of how those aliens are treated pending deportation. Like all
rules affecting fundamental rights, rules falling in the latter
category must comport with due process. Salerno therefore
There are at least two counter arguments to this position,
neither of which is persuasive. The first is that detention is a
necessary corollary of deportation. Because judicial review over
deportation is limited, the argument goes, so is it limited over
detention. In Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96
L.Ed. 547 (1952), the Court used this rationale to apply
deferential review to the Attorney General's denial of bail to
aliens with a history of Communist activity. The Attorney
General's decision was supported by a finding by the district
court that aliens who harbored a "philosophy of violence against
this Government" would hurt the United States if they were set
free pending their deportation hearings. See id. at 542, 72
The facts of Carlson are readily distinguishable from those
here. Unlike § 236(c), which imposes a blanket prohibition on
bail, the statute in Carlson afforded opportunities for
individualized bond determinations. As the Court acknowledged,
"[o]f course purpose to injure [the United States] could not be
imputed generally to all aliens subject to deportation." Id. at
538, 72 S.Ct. 525. But this is effectively what § 236(c)
The second counter argument is that § 236(c) itself reflects a
substantive, "policy" decision to deny bond wholesale in order to
protect society and enforce substantive immigration laws. Because
Congress has plenary authority over policy matters, the argument
goes, the Court's review of § 236(c) should be deferential.
This argument, too, is unpersuasive. In Fiallo v. Bell,
430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), the petitioners
challenged sections of the Immigration and Nationality Act on the
ground that it conferred preferential status to the relationship
of illegitimate children with their natural mothers but not with
their natural fathers. The Court found that this distinction was
supported by a deliberate "policy" choice to protect one
relationship over the other. Id. at 797, 97 S.Ct. 1473. The
Court acknowledged Congress' wide latitude to make similar
determinations — for example, that alien children cannot qualify
for preferential status if they are married or are over 21 years
of age; that legitimated alien children are ineligible for
preferential status unless their legitimation occurred before
their 18th birthday; or that adopted alien children are not
entitled to preferential status unless they were adopted before
the age of 14 and have lived with their adopted parents for at
least two years thereafter. Id. at 798, 97 S.Ct. 1473 (citing
8 U.S.C. § 1101(b)(1), 1101(b)(1)(C), 1101(b)(1)(E)). These "policy
questions" were characterized as essentially matters of line
drawing regarding what entitlements should be conferred, and what
should be withheld. See id. at 798, 97 S.Ct. 1473 ("With
respect to each of these legislative policy decisions, it could
be argued that the line should have been drawn at a different
Section 236(c) has little to do with the distribution of
entitlements to aliens and far more to do with the deprivation of
fundamental liberty interests. Mandatory detention with no
possibility of bond is not a simple "line drawing" or policy
decision that a system of ordered liberty can entrust solely to
the political branches of government. It is only ancillary to
substantive immigration policy and, as such, does not escape
searching judicial review. For these reasons, the deference
accorded to substantive immigration decisions does not
automatically extend to rules implementing or enforcing those
Because aliens have a substantive due process right to freedom
from arbitrary detention and because § 236(c) curtails that
freedom, the conclusion remains unchanged: Salerno applies.
Finally, respondent argues that Salerno is a criminal case
that can have no application in deportation proceedings, which
are essentially civil. Criminal defendants enjoy numerous
procedural safeguards to which aliens are not entitled, such as
the presumption of innocence and the right to a speedy trial. In
this vein, it has been said that an alien's liberty interest is
"significantly more qualified" than that of a criminal defendant.
Doherty, 943 F.2d at 210.
Nonetheless, the fundamental right to be free from bodily
restraint is not reserved exclusively for citizens; rather, "all
persons within the territory of the United States are entitled to
the protection guaranteed by [the Fifth and Sixth] amendments."
Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41
L.Ed. 140 (1896); see also Harisiades v. Shaughnessy,
342 U.S. 580, 586 & 587 n. 9, 72 S.Ct. 512, 96 L.Ed. 586 (1952)
(immigrants stand "on an equal footing with citizens" under the
Constitution with respect to protection of personal liberty). It
strains the imagination that individuals detained because of
criminal activity should have more rights than those held simply
for regulatory purposes.
Moreover, courts reviewing § 236(c) have applied the Salerno
test either to uphold the statute, see Diaz-Zaldierna,
43 F. Supp.2d 1114 (S.D.Cal. 1999), or declare it unconstitutional.
See Van Eeton v. Beebe, 49 F. Supp.2d 1186 (D.Or. 1999);
Martinez v. Greene, 28 F. Supp.2d 1275 (D.Colo. 1998). In
addition, those courts that have declined to apply Salerno have
done so for reasons other than the fact that Salerno was a
3. Does § 236(c) Survive the Salerno Heightened Scrutiny
The Salerno test asks whether the governmental restriction is
"excessive" in relation to its purpose. Salerno, 481 U.S. at
747, 107 S.Ct. 2095. The government has advanced a four-fold
purpose to § 236(c): (a) to prevent flight; (b) to protect the
public from "potentially dangerous" criminal aliens; (c) to
correct the failure of prior bond procedures, under which more
than twenty percent of criminal aliens absconded before their
deportation hearings; and (d) to repair the "serious damage to
the American immigration system caused by the Government's
inability to detain criminal aliens pending deportation and
remove them properly." Government's Response at 14 (citing S.Rep.
No. 48, 104th Cong., 1st Sess. (1995 WL 170285) at 1-6, 9,
As applied to petitioners, § 236(c)'s indiscriminate denial of
bond is "excessive" in relation to each of these purposes.
Petitioners have resided in this country lawfully since 1983.
Application at 3. They have seven children aged 8 to 22 years
whom they care and provide for. Amicus Curiae Brief of the
A.C.L.U. ("Amicus Brief") at 20. Four of these children are
native-born U.S. citizens. Application at 3. The Court finds that
these ties make petitioners extremely unlikely flight risks.
Furthermore, petitioners were not convicted of a violent crime or
an offense with attendant dangers, such as drug use. To the
Court's knowledge, petitioners have not — until recently — had
any trouble with the law. Amicus Brief at 19. There is no
evidence that petitioners' release would pose a threat to public
safety. Finally, there are ways to rectify the problem of aliens
absconding before deportation that do not implicate petitioners'
right to freedom from arbitrary detention. In view of these
considerations, § 236(c) is plainly "excessive" under Salerno.
This conclusion is supported by the case law. The cases cited
by the parties involve statutes that fall into one of three broad
categories: (1) those that pertain to pure policy matters or
rules; (2) those that confer discretion on the Attorney General
to release the petitioner on bond; and (3) those, like § 236(c),
that categorically deny bond. The first two classes of cases are
distinguishable. As discussed above, § 236(c) does not fall
within Congress' plenary power over immigration laws because it
relates to the treatment of aliens in the course of enforcing or
implementing those laws. Cases applying rationality review to
substantive immigration decisions — for example, the decision to
confer preferential status to the relationship of an illegitimate
child with his natural mother but not with his natural father,
see Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50
(1977), or the decision to impose a two year nonresidency
requirement on aliens who marry U.S. citizens during deportation
proceedings, see Anetekhai v. INS, 876 F.2d 1218 (5th Cir.
1989) — are therefore inapposite.
The second class of cases applies deferential review to
statutes that vest discretion in the Attorney General to grant
bond. In these cases, the alien received an individualized
determination of his or her suitability for release on bond; the
decision to deny bond was reviewed for abuse of discretion and
was typically upheld. See, e.g., Carlson v. Landon,
342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Doherty v. Thornburgh,
943 F.2d 204 (2d Cir. 1991). These cases are also distinguishable
from the instant case. Under an abuse of discretion standard, the
Attorney General's decision to deny bond can always be reversed
if it is arbitrary or erroneous. By contrast, § 236(c) provides
no such "safety valve" to protect individuals in petitioners'
position. Petitioners moreover do not oppose limited judicial
review over individualized bond determinations; they challenge
only the blanket denial of bond.
The third class of cases — those involving statutes like §
236(c) that categorically denies release on bond — is most
relevant to the case at bar. Of these cases, two applied the
Salerno heightened a scrutiny test to § 236(c) and concluded
that the statute failed that test.*fn7 One applied the Salerno
test to reach the opposite conclusion — that § 236(c) passed
constitutional muster. See Diaz-Zaldierna v. Fasano,
43 F. Supp.2d 1114 (S.D.Cal. 1999). Diaz-Zaldierna, however, is
distinguishable on the facts. There, the petitioner had been
convicted for possession of crack cocaine and had served a
135-day jail sentence before being detained by the INS. The Court
concluded that § 236(c) was not excessive because (a) controlled
substance offenders pose a significant threat to society's health
and welfare, and (b) Congress excluded minor drug offenders from
the scope of § 236(c)'s mandatory detention, suggesting that it
did not "mindlessly incorporate all drug crimes irrespective of
the dangerousness that the offense reflects." Id. at 1120;
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"). In sharp contrast to the petitioner in
Diaz-Zaldierna, petitioners here were not convicted of drug
related offenses, and § 236(c) does not otherwise differentiate
between low and high flight risk detainees or between detainees
who are dangerous to society and those who are not. It is not
inconsistent to endorse the outcome in Diaz-Zaldierna and yet
find that § 236(c) is "excessive" as applied to the facts here.
Still a fourth case upheld § 236(c) based on a purely
deferential standard of review.
See Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999). Like
Diaz-Zaldierna, Parra, too, is distinguishable. The question in
Parra was whether an alien (a) convicted of criminal sexual
assault and who (b) did not contest his deportability had a
constitutional right to remain at home until his deportation
order became final. Finding that the petitioner had conceded no
"legal right to remain in the United States" and was simply
"postponing the inevitable," id. at 958, the Seventh Circuit
answered that question in the negative.
By contrast, petitioners vigorously challenge their
deportability, both on the ground that they were not convicted of
an "aggravated felony" within the meaning of § 236(c), and that
deportation would be futile because Vietnam refuses to take back
citizens who have resided in the United States. More importantly,
petitioners do not assert an absolute entitlement to be released
pending deportation proceedings, but only the modest right to an
individualized bond determination regarding whether release
pending deportation is appropriate. In this context, there is no
cogent reason to follow Parra's deferential posture.
Respondent relies heavily on the case of Reno v. Flores,
507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), to vindicate its
position. In that case, a class of alien juveniles awaiting
deportation proceedings challenged a statute pursuant to which
they were held in child care facilities and could only be
released to a parent, close relative, or legal guardian.
Petitioners, who had no parent, close relative, or guardian,
asserted a right to be placed in the custody of a responsible and
willing adult rather than a government-operated child care
facility. In the alternative, they claimed a right to an
individualized determination as to whether it was in their best
interests to remain in custody or be released to a private
The Court applied rationality review to uphold the statute. It
reached this conclusion because (a) petitioners were juveniles
who, "unlike adults, are always in some form of custody"; (b)
"freedom from physical restraint . . . is not at issue in this
case"; and (c) the statute served the purposes of "preserving and
promoting the welfare of the child." Id. at 302-03, 113 S.Ct.
These considerations do not obtain here. First, petitioners
Nhoc Danh and Uong Ly are adults. Second, the juveniles in
Flores were housed in facilities meeting "state licensing
requirements for shelter care, foster care, group care, and
related services to dependent children." Id. at 298, 113 S.Ct.
1439. These were not correctional institutions but rather low
security facilities that provided physical care and maintenance,
counseling, education, recreation, family reunification services,
and access to religious services, visitors, and legal assistance.
Id. This is partly why the Flores Court found that freedom
from physical restraint was "not at issue."*fn8 Id. at 302,
113 S.Ct. 1439. By contrast, petitioners are being held in county
detention centers, presumably together with convicted felons. The
right at stake here is freedom from arbitrary physical detention;
the right asserted in Flores was the right to be placed in the
custody of a willing and able non-relative custodian rather than
in "a decent and humane custodial institution."*fn9 Id. at
303, 113 S.Ct. 1439. Third, the Flores Court applied
because the government's interest was aligned with that of the
juveniles. Moreover, the interest in "protecting the welfare of
juveniles who have come into [the government's] custody"
outweighed the juveniles' interest in being released to
"strangers." Id. at 305, 113 S.Ct. 1439. The converse is true
here: petitioners' fundamental right to freedom from arbitrary
detention outweighs respondent's concern that petitioners will
present a flight risk or a danger to society.
Cases that reach the result advocated by respondent are
therefore distinguishable on the facts from the case at bar. By
contrast, at least two district courts that have considered the
identical statute have applied the Salerno standard to find it
unconstitutional. For all the reasons set forth above, the Court
finds that § 236(c) fails the Salerno test and violates
petitioners' substantive due process rights.
D. Procedural Due Process
Because the Court concludes that petitioners' substantive due
process rights were violated, it is strictly unnecessary to
determine whether their procedural due process rights were also
compromised. Only when a restriction on liberty survives
substantive due process scrutiny does the further question of
whether the restriction is implemented in a procedurally fair
manner become ripe for consideration. See United States v.
Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697
(1987). Nonetheless, the Court considers petitioners' procedural
due process claim in the event it later determined that § 236(c)
withstands substantive due process scrutiny.
To determine whether a statute or governmental conduct
satisfies procedural due process, courts must balance the
following factors: (1) the private interest affected by the
official action; (2) the risk of an erroneous deprivation of the
interest; (3) the probable value of additional or substitute
procedural safeguards; and (4) the government's interest,
including the fiscal and administrative burdens that additional
or substitute procedures would entail. Mathews v. Eldridge,
424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
By now it is well established that legal aliens are entitled to
due process under Mathews. "Permanent resident aliens are
protected by the Due Process Clause of the Fifth Amendment."
Richardson v. Reno, 162 F.3d 1338, 1362 (11th Cir. 1998). See
also Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74
L.Ed.2d 21 (1982) (applying the Mathews test to a permanent
resident alien who was denied readmission into this country while
attempting to smuggle illegal aliens from Mexico). Numerous
courts have applied Mathews to review mandatory immigration
detention statutes such as § 236(c). See, e.g., Van Eeton v.
Beebe, 49 F. Supp.2d 1186 (D.Or. 1999) (permanent resident alien
challenging § 236(c)'s blanket denial of bond); Martinez v.
Greene, 28 F. Supp.2d 1275 (D.Colo. 1998) (same); St. John v.
McElroy, 917 F. Supp. 243, 250 (S.D.N.Y. 1996) (permanent
resident alien challenging denial of parole pending exclusion).
Even the Seventh Circuit case of Parra v. Perryman,
172 F.3d 954 (7th Cir. 1999), which applied a deferential standard to §
236(c) in the substantive due process context, analyzed the
petitioners' procedural due process rights under the Mathews
factors. Respondent's contention that Congress' plenary power
over immigration precludes application of basic fair process
norms to lawful resident aliens is therefore untenable.
Under Mathews, a statute such as § 236(c) that denies even
the possibility of bond can scarcely claim constitutional
sanction. The interest at stake here is fundamental to any
democratic society: the right to freedom from arbitrary
detention. Because petitioners' continued detention is unlikely
to further any of the asserted purposes behind § 236(c), the risk
of an erroneous deprivation of that interest is acute. Respondent
could easily avoid
these problems by affording individuals in petitioners' situation
an individualized bond hearing. The additional burden of such a
hearing to the overall deportation process — a process that may
take months or even years — is slight compared to the rights at
stake. Indeed, release on bond may actually serve the
government's interest by freeing up unnecessary jail space.
"A fundamental requirement of due process is `the opportunity
to be heard' . . . . at a meaningful time and in a meaningful
manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187,
14 L.Ed.2d 62 (1965). The prior bond determination hearing before
the IJ afforded petitioners no opportunity to be heard regarding
their dangerousness or flight risk. Petitioners are therefore
entitled to an individualized bond hearing before the IJ.
For these reasons, even if § 236(c) does not violate
petitioners' substantive due process rights, it deprives them of
procedural due process.
For the foregoing reasons, petitioners' application pursuant to
28 U.S.C. § 2241 for a writ of habeas corpus is GRANTED. The
Court's April 9, 1999 Order is VACATED. The judgment entered
April 9, 1999 in favor of respondent and against petitioners is
It is FURTHER ORDERED that:
(1) the Immigration Judge shall hold an
individualized hearing within two (2) business
days to determine whether petitioners' release
on bond would pose a flight risk or a danger to
(2) petitioners are awarded costs, but the request
for attorneys' fees is DENIED.