The opinion of the court was delivered by: Keep, District Judge.
On March 19, 1999 petitioner Alireza Alikhani, through counsel, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
("Petition"). Petitioner is a native and citizen of Iran who became a
lawful permanent resident of the United States on October 2, 1998. On
April 26, 1999, respondents filed a return in opposition to the petition.
Respondents filed a notice of lodgment regarding subject matter
jurisdiction on May 18, 1999. In addition to a traverse, petitioner moved
to strike the lodgment, or in the alternative, to file a supplemental
brief in response. Petitioner's alternative request was granted and
petitioner filed a supplemental brief on June 11, 1999. On June 18, 1999,
petitioner requested oral argument.
Petitioner is currently being held by INS without bond pursuant to the
mandatory detention provision codified at 8 U.S.C. § 1226 (c). On
April 22, 1997, petitioner pled guilty and was convicted of possession of
methamphetamine for sale, an enhancement for having a firearm in the
house, and of a charge of possession of phone cloning equipment. See
Petition at ¶ 10. Petitioner was given a suspended sentence, and as a
condition of his probation, he was sent to work furlough. See id. at
¶ 13. On October 20, 1997, petitioner was released from the California
authorities directly to INS and charged with deportability on the grounds
of the aggravated felony. INS released petitioner from custody on October
21, 1997, when petitioner posted a $5,000 bond.
The challenge to the mandatory detention provision in this case does
not involve a decision to "commence proceedings," to "adjudicate cases,"
or to "execute" a removal order. Rather, petitioner's claims are
unaffected by 1252(g) because they "constitute `general collateral
challenges to unconstitutional practices and policies used by the
agency.'" Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998), cert.
denied, ___ U.S. ___, 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999) (quoting in
part McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111 S.Ct.
888, 112 L.Ed.2d 1005 (1991)). Petitioner's challenge to the mandatory
detention law is therefore distinct from a petition that seeks review of
the bond determination itself. Cf. Walters, 145 F.3d at 1052 n. 15
(analogizing to review of social security cases). In sum, a challenge to
the constitutionality of confinement pending deportation does not address
any discretionary action by the Attorney General, and "does not implicate
the three categories of unreviewable decisions specified in §
1252(g)." Diaz-Zaldierna v. Fasano, 43 F. Supp.2d 1114, 1117 (S.D.Cal.
1999). Accordingly, this court finds that § 1252(g) does not deprive
it of jurisdiction to hear petitioner's collateral challenges to the INS'
implementation of federal law.
Respondents argue that the broad language contained in § 1252(b)
divests this court of jurisdiction over any challenge to any aspect of
the deportation process. This court, however, finds that § 1252(h)
does not divest this court of jurisdiction over petitioner's collateral
challenges to his detention. Section 1252(b) applies to a "review of an
order of removal" under § 1252(a)(1). 8 U.S.C. § 1252 (b). The
clear language of Section 1252(b)(1) demonstrates that it applies to
final orders of removal, stating that petitions "must be filed not later
than 30 days after the date of the final order of removal."
8 U.S.C. § 1252 (b)(1). District courts do not have jurisdiction over
final removal orders. Rather, challenges to final removal orders are to
be filed with the court of appeals for the judicial circuit "in which the
immigration judge completed the proceedings." 8 U.S.C. § 1252
Respondents rely on § 1252(b)(9), a section that has been referred
to as an "unmistakable zipper clause," i.e. that § 1252(b)(9)
regulates jurisdiction where no other specific provision applies. Reno
v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct.
936, 943, 142 L.Ed.2d 940 (1999). Respondents maintain that
8 U.S.C. § 1252 (b)(9) repeals this court's jurisdiction. Section
1252(b)(9) states that:
Judicial review of all questions of law
and fact, including interpretation and
application of constitutional and statutory
provisions, arising from any action
taken or proceeding brought to remove
an alien from the United States under
this subchapter shall be available only
in judicial review of a final order under
this section. 8 U.S.C. § 1252 (b)(9)
Although the Supreme Court reviewed the scope of § 1252(g) in
American-Arab Anti-Discrimination Committee, the Supreme Court also
discussed § 1252(b)(9) in that case. As described above, the Supreme
Court held that § 1252(g) was not susceptible to a broad reading
that would allow it to be applied to all deportation claims. In comparing
the narrow scope of § 1252(g) to § 1252(b)(9), the Supreme
Court indicated that § 1252(b)(9) "covers the universe of
deportation claims." American-Arab Anti-Discrimination Committee, 119
S.Ct. at 943. In essence, respondents urge this court to expand the dicta
of the Supreme Court so as to apply § 1252(b) and § 1252(b)(9)
to an alien's habeas petition regardless of what aspect of the
deportation proceeding petitioner challenges.
This court finds that the § 1252(b)(9) "zipper clause" does not
deprive this court of jurisdiction over petitioner's claims regarding his
detention. Section 1252(b)(9) only applies to final orders of
deportation. In arguing that § 1252(b)(9) applies to any aspect of
the deportation process, respondents conflate petitions addressing the
final orders of removal, addressed by § 1252, with petitions
addressing procedures unrelated to a final removal order such as this
one, predicated on § 1226. Petitioner is not challenging the removal
decision itself, but rather his detention at this time. Oftentimes,
habeas petitions will be brought long before a final order of removal is
entered because an individual believes that he or she is being
This court finds that § 1252(b)(9) is not intended to cover all
challenges by an alien to all aspects of the treatment he or she receives
during the deportation process. Although American-Arab indicates that
§ 1252(b)(9) is a zipper clause, there is no support in the statute
for expanding § 1252(b)(9) beyond the scope of removal/deportation
orders into the area of an alien's detention. The language of §
1252(b)(9) itself does not indicate that it applies to all claims by aliens
including detention. Rather, § 1252(b)(9) specifically discusses
actions or proceedings brought "to remove an alien." The language of
§ 1252(b)(9) therefore appears to apply to removal proceedings, and
not to other issues such as detention.
The court's interpretation is consistent with the statutory scheme.
Section § 1252(b)(9) appears under the heading entitled "Judicial
review of orders of removal" (emphasis added). The heading under which a
section appears aids a court in determining how to apply a certain
section. See Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219,
1226, 140 L.Ed.2d 350 (1998). Section 1226 of the statute, in
contrast, explicitly addresses "Apprehension and detention of aliens."
The petitioner in this case is challenging his detention, not a final
order of removal. The petition would appear to be governed by § 1226
by the clear language of the statute. To read § 1252(b)(9) as
covering all claims, including claims regarding an alien's detention,
would render § 1226 superfluous. Such an interpretation is to be
avoided. See, e.g., Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct.
675, 58 L.Ed.2d 596 (1979).
Were respondents' position adopted, an alien in petitioner's position
would be left without recourse. Petitioner is challenging his detention.
If respondents are correct that § 1252(b)(9) applies to all claims,
petitioner would be barred from challenging an allegedly unconstitutional
detention because no final order regarding his removal has been issued.
To read § 1252(b)(9) as revoking this court's jurisdiction to review
constitutional challenges to collateral aspects of the deportation
procedure, and to consequently immunize INS' implementation of federal
immigration laws from due process challenges, "would raise difficult
constitutional issues." Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir.
1998) (quoting Catholic Social Services, Inc. v. Reno, 134 F.3d 921, 927
(9th Cir. 1997)). It is well-established that "when constitutional
questions are in issue, the availability of judicial review is presumed,
and we will not read a statutory scheme to take the `extraordinary' step
of foreclosing jurisdiction unless Congress intent to do so is manifested
by "clear and convincing' evidence." Califano v. Sanders, 430 U.S. 99,
109, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (quoting in part Weinberger v.
Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)).
Instead, statutes should be interpreted to preserve the authority of
courts to consider constitutional claims when possible. See Walters, 145
F.3d at 1052 (quoting American-Arab Anti-Discrimination Committee v.
Reno, 119 F.3d 1367, 1372 (9th Cir. 1997)) (overruled on other grounds,
525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999)).
Repeal of habeas jurisdiction requires a more explicit statement from
Congress than § 1252(b)(9), which does not mention detention
proceedings at all. See, e.g., Felker v. Turpin, 518 U.S. 651, 660-665,
116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (implied repeals of habeas
jurisdiction are disfavored). Article I, Section 9, Clause 2 of the
Constitution prohibits suspension of the writ of habeas corpus except in
extraordinary circumstances. Respondents' position would require this
court to examine whether the writ is being suspended and/or whether this
particular suspension is permissible in light of the Suspension Clause. As
the First Circuit noted, a habeas challenge to detention by the executive
is at the "historical core of the Suspension Clause." Goncalves v. Reno,
144 F.3d 110, 123 (1st Cir. 1998) (citing, inter alia, Felker), cert.
denied, U.S. 119 S.Ct. 1140, 143 L.Ed.2d 208 (1999). In light of the
court's interpretation as outlined above, however, it is not necessary to
make such determinations. See Parra v. Perryman, 172 F.3d 954, 957 (7th
Cir. 1999). Accordingly, this court holds that § 1252(b)(9) does not
deprive this court of jurisdiction to hear petitioner's claims regarding
his detention when a final removal order has not yet been issued.
3. Section 1226(e)
Respondents also argue that § 1226(e) deprives this court of
jurisdiction. This court rejects that argument. Section 1226(c) states
The Attorney General's discretionary
judgment regarding the application of
this section shall not be subject to review.
No court may set aside any action
or decision by the Attorney General under
this section regarding the detention
or release of any alien or the grant,
revocation, or denial of bond or parole.
The language of the statute clearly refers to discretionary acts taken by
the Attorney General. As the Supreme Court noted,
many provisions of IIRIRA "are aimed at protecting the Executive's
discretion from the courts. . . ." American-Arab Anti-Discrimination
Committee, 119 S.Ct. at 945. To interpret § 1226(e) as affecting
this court's jurisdiction to hear a constitutional challenge to a statute
which requires mandatory detention reads the section too broadly. Section
2241 specifically allows a court jurisdiction to ensure that individuals
are not in custody in violation of the laws of the United States. See
28 U.S.C. § 2241 (c)(3). Section 1226(e) simply deprives a court of
jurisdiction to review the Attorney General's exercise of the discretion
she has to release or detain an alien. See 8 U.S.C. § 1226 (e).
In this case, a discretionary decision of the Attorney General is not
at issue. Rather than challenge a discretionary decision regarding bond,
for example, petitioner in this case challenges the constitutionality of
a non-discretionary law that calls for mandatory detention of all aliens
who have committed certain felonies. There is no indication that §
1226(e) is intended to deprive this court of jurisdiction over
constitutional challenges to laws governing an alien's detention. As the
Seventh Circuit stated, "[s]ection 1226(e) likewise deals with
challenges to operational decisions, rather than to the legislation
establishing the framework for those decisions." Parra v. Perryman,
172 F.3d 954, 957 (7th Cir. 1999).
A review of other sections of § 1226 reveal the type of
discretionary decisions contemplated by § 1226(e). Section
1226(a), for example, states that the Attorney General "may continue to
detain" an arrested alien, or "may release" an arrested alien on bond or
on conditional parole if that alien is not made ineligible by §
1226(c). Pursuant to § 1226(b), the Attorney General "may revoke a bond
or parole." Section 1226(e)(2) also contains some discretionary
considerations such as whether the alien is a witness or individual
cooperating with a government investigation. See 8 U.S.C. § 1226
(c)(2). Although § 1226(e) could affect jurisdiction over
discretionary actions, a discretionary decision is not at issue in this
Because this case does not involve the Attorney General's exercise of
"discretionary judgment" as delineated in § 1226(e), this court
finds § 1226(e) is inapplicable to the present petition. See
Velasquez v. Reno, 37 F. Supp.2d 663, 668 (D.N.J. 1999) (holding that the
court has jurisdiction to review similar claims pursuant to § 2241).
Accordingly, this court retains its habeas jurisdiction pursuant to
B. Exhaustion of Administrative Remedies
The government argues that petitioner*fn1 has not exhausted his
administrative remedies because he has an appeal of the detention
determination pending with the Board of Immigration Appeals ("BIA"). In
support of its argument, the government notes that administrative
exhaustion requirements arise from either explicit statutory language or
from the administrative scheme providing for agency relief. See McKart
v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194
(1969). While the government broadly asserts that "the governing
regulations provide for review of administrative review," the government
falls to indicate what statutory or administrative provisions mandate
exhaustion in the present circumstances. See Government's Brief at 5.
Where a statute does not explicitly require administrative exhaustion,
the decision of whether to require exhaustion is left to judicial
discretion. See Wang v. Reno, 81 F.3d 808, 814 (9th Cir. 1996). In Wang,
the Ninth Circuit held that due process challenges to INS procedures do
not require administrative exhaustion be
cause the constitutional challenge to INS procedure does not implicate a
review of a deportation order, See id. Additionally, where there is no
explicit requirement of exhaustion prior to seeking judicial review, then
intra-agency review of a decision is optional. See Young v. Reno,
114 F.3d 879, 882 (9th Cir. 1997).
In the present case, there does not appear to be an explicit provision
which requires administrative review prior to the filing of a judicial
action. Additionally, like in Wang, a review of the detention order here
does not implicate the deportation order. A review of petitioner's
detention pending deportation, regardless of the outcome, is entirely
consistent with the deportation order. Thus, the court finds that
petitioner is not required to exhaust his administrative remedies prior to
seeking judicial review of his mandatory detention. See e.g., Tam v.
INS, 14 F. Supp.2d 1184, 1189 (E.D.Cal. 1998); Morisath v. Smith,
988 F. Supp. 1333, 1340 (W.D.Wash., 1997).
C. Scope of 8 U.S.C. 1226(c)
Before turning to the issue of whether 8 U.S.C. 1226(c) violates
various provisions of the Constitution, the court must determine the
scope of § 1226(c)'s application. Section 1226(c)(1) reads, in
The Attorney General shall take into
custody any alien who [commits an enumerated
felony] when the alien "is released,
without regard to whether the
alien is released on parole, supervised
release, or probation, and without regard
to whether the alien may be arrested
or imprisoned again for the same
offense, (emphasis added).
The question, then, is whether § 1226(c) applies retroactively to
persons who were released from custody prior to October 10, 1998, the
effective date of the statute's mandatory detention provisions. In
examining whether § 1226(c) applies to persons released before the
effective date of the statute's mandatory detention provisions, this
court notes that there is a general presumption that statutes operate
prospectively rather than retroactively. See Landgraf v. USI Film
Products, 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In
determining whether the legislation applies retroactively, the court
looks first to whether there is an express statement regarding the proper
temporal reach of the statute. See id. at 280, 114 S.Ct. 1483. If the
statute contains express language regarding the temporal scope of the
statute, the court need not "resort to judicial default rules" in
determining the scope of the statute. Id.; see also Mathews v. Kidder,
Peabody & Co., Inc., 161 F.3d 156, 160-1 (3rd Cir. 1998), cert. denied,
___ U.S. ___, 119 S.Ct. 1460, 143 L.Ed.2d 546 (1999).
In the present case, the clear language of § 1226(c), as passed in
IIRIRA, indicates that it was intended to apply only prospectively.
Section 1226(e), the codification of the Immigration and Nationality Act
(INA) § 236(c), provides that the Attorney General shall take an
alien who has committed certain specified crimes into custody "when the
alien is released." Webster's Third New International Dictionary defines
"when" as "just after the moment that." Id. at 2602 (3rd Edition 1976).
Thus, the clear language of the statute indicates that the mandatory
detention of aliens "when" they are released requires that they be
detained at the time of release. If Congress had intended for the statute
to apply retroactively to criminals released prior to its effective
date, Congress could have used explicit retroactivity language or
required that covered aliens be taken into custody "regardless of when
the alien is released' or "at anytime after the alien is released.'
Alwaday v. Beebe, 43 F. Supp.2d 1130, 1133 (D.Or. 1999). Given the plain
language of the statute, therefore, § 1226(c) does not apply to
aliens released from prison prior to the effective date of the statute.
Several other courts have read the language of § 1226(c) to have
similar meaning. See e.g., Velasquez
v. Reno, 37 F. Supp.2d 663, 1999 WL 194198 (D.N.J. 1999); Alwaday,
43 F. Supp.2d 1130; see also Pastor-Camarena v. Smith, 977 F. Supp. 1415,
1417 (W.D.Wash., 1997) (interpreting similar language in the transitional
rules in IIRIRA).
Additionally, a clear statement within IIRIRA makes it clear that
Congress intended that § 1226(c) apply prospectively to aliens
released after the effective date. of the statute. IIRIRA was enacted on
September 30, 1996 and contained express language as to when the
mandatory detention provisions would become effective. See Velasquez, 37
F. Supp.2d at 670-71 (citing Pub.L. 104-208, Div. C, Title III, §
303(b), Sept. 30, 1996, 110 Stat. 3009-586.) Under IIRIRA, the effective
date of the mandatory detention provision of § 1226(e) could be
delayed for up to two years upon the request of the Attorney General. See
id. at 671 (citing IIRIRA § 303(b)(2)). The Attorney General chose
to exercise the right to delay enactment of § 1226(c) twice, thereby
delaying the effective date of § 1226(c) until October 10, 1998. See
During the two-year deferment, the "Transition Period Custody Rules"
("TPCRs") were in effect rather than the rules established by AEDPA
§ 440(c) or INA § 236(c). See IIRIRA § 303(b)(3); §
303(b)(2). "The TPCRs provided for bond hearings for some aliens
removable for having committed certain crimes and gave the Immigration
Court discretion to set bond if a lawfully admitted alien did not present
a danger to persons or property and was likely to appear at future
removal proceedings." Velasquez, 37 F. Supp.2d at 667 (citing IIRIRA
In discussing the delays allowed under the statute, Congress explicitly
provided that "[a]fter the end of such 1-year or 2-year periods, the
provisions of [8 U.S.C. § 1226 (c)] shall apply to individuals
released after such period." Id. (quoting IIRIRA § 303(b)(22)).
Thus, explicit language in IIRIRA indicates that § 1226(e) applies
only to individuals who are released after the effective date of the
mandatory detention provisions. See id. Congress made a clear statement
that the mandatory detention provisions of § 1226(c) apply only to
persons released on or after October 10, 1998. See id.; see also Alwaday,
43 F. Supp.2d at 1133.
The government makes two arguments as to why a prospective application
of § 1226(c) should not be adopted: 1) that the court should defer
to the Attorney General's opinions regarding the scope of §
1226(c); and 2) that a prospective application would lead to incongruous
results. The court will address these arguments in turn.
Respondents urge the court to defer to the Attorney General's
interpretation of the statute, as contained in an opinion written by the
BIA, Matter of Noble, Interim Decision No. 3301, 1997 WL 61453 (BIA
1997). In that opinion, the BIA held that § 1226(c) should apply to
alien criminals released both before and after the date the statute
became effective. The BIA reached this decision by relying on the
legislative purpose of IIRIRA, which is the streamlining of the
Where Congress's intent is clearly expressed, however, it must be given
effect. See Chevron, U.S.A, Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As
noted above, Congress clearly intended that the mandatory detention
provision of § 1226(c) only apply to those persons released from
criminal custody after the date that the provision took effect.
Accordingly, the court need not defer to the decision of the Attorney
General, and rejects it since it is inconsistent with the plain wording
of the statute.
The government also argues that the court's reading of the "when
released" language would lead to the odd result that Congress intended
that "aliens who have
escaped the INS' detection at the time of completing their sentences
should be exempt from the mandatory detention provisions." See Government
Brief at 7. The court notes, however, that the clear language of the
statute indicates that Congress intended that § 1226(c) apply only
to aliens who are released after the statute's effective date, and that
they must be detained "when" released. Congress clearly intended that the
law be applied only prospectively. As noted above, laws are strongly
presumed to be prospective rather than retroactive. See Landgraf 511 U.S.
at 265, 114 S.Ct. 1483. The presumption against retroactivity is
particularly strong in situations where retroactive application might
affect unpopular groups or individuals. See id. at 266, 114 S.Ct. 1483.
Thus, the desire to avoid passing a retroactive law that could be ruled
unconstitutional provides a reasonable explanation for why Congress chose
to make the law apply only prospectively.
Having determined that the mandatory detention rules contained in
§ 1226(c) only apply to persons released after October 10, 1998, the
court must now turn to the issue of when petitioner was released. On
February 11, 1998, petitioner was sentenced to a four year and four month
suspended sentence, and placed on probation with a condition that he
serve a period of time in work furlough. On September 18 or 19, 1998,
petitioner violated the terms of his probation. He was released from state
custody on October 21, 1998. When he was released he was immediately
taken into custody by the INS.
Petitioner argues that his release on October 21, 1998 was not his
actual release date because he was not in custody for the underlying
criminal offense but rather that he was being held for a minor probation
violation. Petitioner, therefore, argues that he was released, for the
purposes of § 1226(c), in February of 1998, prior to the October 10,
1998 effective date of the mandatory detention provision of §
Petitioner's argument, however, is unpersuasive. Under California law,
there is a "longstanding statutory rule that, when a court revokes
probation, canceling the suspension of the previously imposed sentence
necessarily puts that sentence into full force and effect." See People
v. Howard, 16 Cal.4th 1081, 1093, 68 Cal.Rptr.2d 870, 946 P.2d 828 (Cal.
1997). Under Howard, therefore, petitioner was serving time for his
original crime while he was in custody during October of 1998. His
release, therefore, was a release from incarceration for the predicate
conviction for which he was found to be deportable. As such, the INS
properly took custody of petitioner on October 21, 1998 under the
mandatory detention provisions contained in § 1226(e). Under the
mandatory detention provisions of § 1226(c), which became effective
October 10, 1998, petitioner is not entitled to a bond determination
hearing because he does not fall within the narrowly defined exceptions
to detention which are found in § 1226(c)(2).
In sum, this court finds that § 1226(c) applies only to aliens who
are released after the effective date of the statute, October 10, 1998.
In the present case, petitioner was released on October 21, 1998;
therefore the mandatory detention provisions of § 1226(c) apply to
D. Due Process Challenges
Petitioner alleges that § 1226(c) violates his substantive and
procedural due process rights as guaranteed by the Fifth Amendment of the
U.S. Constitution. The Fifth Amendment provides that "[n]o person shall
he . . . deprived of life, liberty, or property, without due process of
law." U.S. Const. amend V. "It is well established that the Fifth
Amendment entitles aliens to due process of law in deportation
proceedings." Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123
L.Ed.2d 1 (1993) (citations omitted). This protection applies even to
aliens who are illegally in the United States. See Plyler v. Doe,
457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d
786 (1982). Additionally, the Supreme Court has noted that "[o]nce an
alien gains admission to our country and begins to develop the ties that
go with permanent residence, his constitutional status changes
accordingly." Landon v. Plasencia, 459 U.S. 21, 31, 103 S.Ct. 321, 74
L.Ed.2d 21 (1982). The court turns, therefore, to the substantive and
procedural due process claim made by petitioner.
I. Substantive Due Process
The Supreme Court has noted that a line of cases holds that the due
process clauses of the Fifth and Fourteenth amendments have a "substantive
component which forbids the government to infringe certain `fundamental'
liberty interests at all, no matter what process is provided, unless the
infringement is narrowly tailored to serve a compelling state interest."
Flores, 507 U.S. at 301-02, 113 S.Ct. 1439. In analyzing a claim where
violation of a "fundamental right" is being asserted, the Flores court
stated that "`[s]ubstantive due process' analysis must begin with a
careful description of the asserted right, for "[t]he doctrine of
judicial self restraint requires us to exercise the utmost care whenever
we are asked to break new ground in this field.'" Id. at 302, 113 S.Ct.
1439 (quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct.
1061, 117 L.Ed.2d 261 (1992)).
In the present case, petitioner argues that he has a fundamental right
to be free from detention pending a final deportation decision. A number
of cases, however, indicate that the right to be free during the pendency
of deportation proceedings is a lesser interest which does not trigger
the highest level of judicial scrutiny. See, e.g., Flores, 507 U.S. at
305, 113 S.Ct. 1439; Doherty v. Thornburgh, 943 F.2d 204, 209 (2nd Cir.
1991); Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999).
In Flores, a group of juveniles challenged an immigration policy that
required alien juveniles to be released only to their parents or legal
guardians. See id., 507 U.S. at 295-96, 113 S.Ct. 1439. The court defined
the right at issue as being the "alleged interest in being released into
the custody of strangers." Id. at 305, 113 S.Ct. 1439. In holding that
the juveniles' interest was not a fundamental right, the court noted that
they had diminished rights as juveniles and as aliens. See id. at 302,
305, 113 S.Ct. 1439.
Other courts have also held that the interest of aliens to be free from
mandatory detention pending a final order of deportation is not a
"fundamental right." In assessing the mandatory detention provisions
contained in 8 U.S.C. § 1226 (c), the Seventh Circuit noted that:
[Petitioner's] legal right to remain in the
United States has come to an end. An
alien in [petitioner's] position can withdraw
his defense of the removal proceeding
and return to his native land,
thus ending his detention immediately.
He has the keys in his pocket. A criminal
alien who insists on postponing the
inevitable has no constitutional right to
remain at large during the ensuing delay,
and the United States has a powerful
interest in maintaining the detention
in order to ensure the removal actually
Parra, 172 F.3d at 957; see also Doherty, 943 F.2d at 212 ("[I]f
[petitioner] had agreed to deportation in the first place, he would not
have been detained . . .").
Given petitioner's limited interest in being free pending a final
deportation decision, this court must assess the level of scrutiny which
should be applied in evaluating the constitutionality of § 1226(c).
In Flores, the court held that strict scrutiny is only required where
fundamental rights are implicated. See Flores, 507 U.S. at 305, 113
S.Ct. 1439. "The impairment of a lesser interest . . . demands no more
than a `reasonable fit' between governmental purpose . . . and the means
chosen to advance that purpose." Id.
In passing § 1226(c), Congress decided that certain classes of
aliens will not be released while they await final orders of
deportation. The classes of aliens covered by § 1226(c) "include
those with multiple convictions for crimes involving moral turpitude,
aggravated felons, those with controlled substance convictions, and those
convicted of conspiracy to commit espionage." Diaz-Zaldierna v. Fasano,
43 F. Supp.2d at 1119-20. Protecting the community from potentially
dangerous individuals is a legitimate governmental purpose. See id.
(citing U.S. v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d
697 (1987)). Additionally, holding certain groups of aliens to ensure
that removal occurs is a legitimate governmental purpose. See Parra, 172
F.3d at 958.
In assessing whether the means used to achieve these governmental
objectives is a reasonable fit, the court must examine the extensive
discretion granted to the government in regulating issues relating to
aliens. The court in Flores noted:
For reasons long recognized as valid,
the responsibility for regulating the relationship
between the United States and
our alien visitors has been committed to
the political branches of the Federal
Government. Over no conceivable subject
is the legislative power of Congress
more complete. Thus, in the exercise of
its broad power over immigration and
naturalization, Congress regularly
makes rules that would be unacceptable
if applied to citizens. Respondents do
not dispute that Congress has the authority
to detain aliens suspected of entering
the county illegally pending their
deportation hearings. And in enacting
the precursor to 8 U.S.C. § 1252 (a),
Congress eliminated any presumption of
release pending deportation, committing
that determination to the discretion of
the Attorney General.
Id., 507 U.S. at 305-06, 113 S.Ct. 1439 (citations omitted). Given the
broad power of Congress to control the country's relationship to aliens,
the fit between the governmental purpose and the provisions of §
1226(c) can be characterized as a "reasonable fit." Id. Congress chose only
to mandatorily detain aliens who had been convicted of serious crimes.
See e.g. Diaz-Zaldierna, 43 F. Supp.2d at 1119. It is not unreasonable
for Congress to decide that aliens who have committed these crimes are
more likely to evade deportation given the high likelihood that they
will, in fact, be deported. See e.g. Parra, 172 F.3d at 958. "Section
1226(c) plainly is within the power of Congress." Id.
In sum, this court finds that petitioner's attenuated liberty interest
may be abridged by a showing that there is a reasonable fit between
§ 1226(c) and the governmental purpose it seeks to achieve. This
court further finds that § 1226(c) is reasonably tailored to achieve
the goals that led to its enactment. Thus, § 1226(c) does not
violate petitioner's substantive due process rights.
2. Procedural Due Process
Petitioner also alleges that his procedural due process rights are
violated by § 1226(c) because he is not given a bond determination
hearing. This claim, however, has the same infirmities which infected the
substantive due process claim: petitioner's limited interest in remaining
free pending a final deportation order is outweighed by the government's
interest in detaining certain classes of criminal aliens. See e.g.
Diaz-Zaldierna, supra, at 1120. As the Supreme Court in Flores noted
"[t]his is just the `substantive due process' argument recast in
"procedural due process' terms, and we reject it for the same reasons."
Id., 507 U.S. at 308, 113 S.Ct. 1439.
In determining whether a procedural due process violation has
occurred, the court looks to three factors: 1) the private interest that
will be affected; 2) the risk of erroneous deprivation through the
procedures used; and 3) the value of additional procedural safeguards and
the cost of those safeguards to the government. See Mathews v. Eldridge,
424 U.S. 319, 225, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
As noted above, the liberty interest of petitioner is very limited. In
essence, petitioner asserts the right to be free from detention despite
the fact that he is very likely to be deported and despite the fact that
he could be free from detention were he to agree to be deported. See
Parra, 172 F.3d at 957; see also Doherty, 943 F.2d at 212. The court in
Diaz-Zaldierna noted that "[t]here can be no requirement of procedures
for a right — here, bail during deportation proceedings —
that does not exist." Id., 43 F. Supp.2d at 1121. Additionally, the
governmental interest in detaining certain classes of criminal aliens is
very high. See Parra, 172 F.3d at 957. Congress intended to hold certain
criminal aliens in order to ensure public safety and to ensure that
deportation would occur. Conducting bond proceedings would harm those
goals and could lead to higher administrative costs. In sum, the
procedural due process claim must fail for the same reasons that the
substantive due process claim failed: the government's interest outweighs
the limited interest of deportable criminal aliens such as petitioner.
E. Equal Protection Clause
Petitioner also contends that his equal protection rights have been
violated. Section 1226(c) in its present form went into effect on
October 10, 1999. Petitioner argues that the statute is arbitrary and
unjust because individuals are treated differently depending on whether
the individual was released from custody before § 1226(c) took
effect. Petitioner states that the statute is arbitrary because an
individual released before § 1226(c) took effect would have been
permitted a bond hearing while an individual released after that date
cannot be awarded a bond hearing. Petitioner maintains that "the
government has failed to articulate any reason why a person should be
denied the right to a bond hearing based on the unfortuitous date he or
she is released from state custody." Petitioner's Points & Authorities at
This court finds that Congress' decision to apply the statute
prospectively is not unconstitutionally arbitrary. Petitioner cites
Tapia-Acuna v. I.N.S., 640 F.2d 223 (9th Cir. 1981) and Garberding v.
I.N.S., 30 F.3d 1187 (9th Cir. 1994). These cases apply to distinctions
based on the class of aliens and are inapposite. In this case, all aliens
are treated uniformly under § 1226(c); petitioner simply challenges
the law on the grounds that it treats individuals differently depending
on whether they were in custody when the law took effect. Petitioner's
reliance on Dion v. Secretary of Health and Human Serrices, 823 F.2d 669
(1st Cir. 1987) is also misplaced. Dion involved a challenge to a statute
based on its retroactive application and did not address equal protection
Anytime that Congress determines when a law will take effect, there
will necessarily be some line drawing. Cf. Dobbert v. Florida,
432 U.S. 282, 301, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). "[A]n equal
protection violation occurs only when different legal standards are
arbitrarily applied to similarly situated defendants." Del Vecchio v.
Illinois Dept. of Corrections, 31 F.3d 1363, 1386 (7th Cir. 1994), cert.
denied, 514 U.S. 1037, 115 S.Ct. 1404, 131 L.Ed.2d 290 (1995). The
decision to apply the statute prospectively was a rational decision. Cf.
Dobbert, 432 U.S. at 301, 97 S.Ct. 2290. Petitioner cites to no case law
indicating that it is unconstitutional for Congress to determine that a
statute should take effect prospectively. Although individuals are
treated differently depending on whether the new statute applies to
them, this distinction is not arbitrary or irrational. Accordingly, this
court finds that petitioner's equal protection claim is without merit.
F. Request for Oral Argument
On June 18, 1999, petitioner filed a request for oral argument. Both
parties have submitted briefs in support and in opposition to the petition
as well as supplemental papers on selected issues. Accordingly,
this court finds that it is able to address the issues raised in the
papers without oral argument. Pursuant to Local Rule 7.1(d)(1), this court
waives oral argument.
For the foregoing reasons, this court DENIES petitioner's application
for a writ of habeas corpus.
IT IS SO ORDERED.