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DOAN v. I.N.S.

January 6, 2000

PHONG DOAN, PETITIONER,
V.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



The opinion of the court was delivered by: Miller, U.S. District Judge.

REVISED ORDER DENYING PETITION FOR HABEAS CORPUS*fn1

Petitioner Phong Doan, who is being indefinitely detained by the Immigration and Naturalization Service ("INS") pending his eventual repatriation to the Socialist Republic of Vietnam ("SRV"), has filed a Petition for Writ of Habeas Corpus ("Petition") in which he challenges the constitutionality of his continued detention. For the reasons set forth below, the petition is denied and the action dismissed.

BACKGROUND

Petitioner, Phong Doan, has been in detention awaiting deportation since October 28, 1998. On July 9, 1999 Petitioner filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 1441, contending that his indefinite detention is in violation of his due process rights guaranteed by the Fifth Amendment.

Petitioner is a native of Vietnam who immigrated to the United States in 1975; and in 1978 his immigration status was adjusted to that of a lawful permanent resident. Petitioner has a lengthy criminal record which includes convictions for felony assault; felon in possession of a firearm; felony conspiracy to commit robbery; misdemeanor conviction for leaving county jail without authorization; and misdemeanor vandalism. Petitioner has spent the better part of the past decade in state confinement. After completion of the sentence he received on May 25, 1994 for attempted robbery, conspiracy to commit robbery and possession of a firearm, on September 24, 1998, the Immigration and Naturalization Service ("INS") placed Petitioner in removal proceedings and determined that he should be detained without bond.

On October 28, 1998 the immigration judge ordered Petitioner removed from the United States to Vietnam. Petitioner appealed to the Board of Immigration Appeals ("BIA") and, effective April 13, 1999, Petitioner withdrew the appeal. In February 1999, the INS conducted a further custody review at Petitioner's request and determined that he continued to present both a danger to the community and a flight risk.

On July 15, 1999, the court ordered the INS to show cause why Petitioner had not been deported to Vietnam. To assist Petitioner in prosecuting this habeas petition, on September 10, 1999, the court appointed counsel to represent him.

DISCUSSION

A. Exhaustion of Administrative Remedies*fn2

As an initial matter, the government appears to contend that the court lacks jurisdiction to entertain the Petition because Petitioner failed to exhaust his administrative remedies. While the Immigration and Naturalization Act ("INA") does not contain a statutory provision requiring exhaustion of administrative remedies, the court may apply the doctrine where "sound judicial discretion" is advisable. McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). While administrative procedures are available to review discretionary determinations by the Attorney General, such as whether Petitioner presents a flight risk or a danger to the community, the issues raised in the Petition go beyond the scope of available administrative review. Petitioner contends that his continued detention is unlawful and in violation of his Fifth Amendment rights. Because no administrative proceeding is available to determine the extent of Petitioner's liberty interests under the Fifth Amendment, the exhaustion requirements do not bar the present Petition. See Id; Phan v. Reno, 56 F. Supp.2d 1149, 1153 (W.D.Wash. 1999).

B. Basis for Petitioner's Detention

Pursuant to 8 U.S.C. § 1226 (c)(1), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IRRIRA"), the Attorney General is mandated to take into custody any alien who is deportable by virtue of having committed one of the wide variety of offenses as set forth in 8 U.S.C. § 1227 (a)(2)(A)-(D). Although the INS is mandated to remove deportable aliens within 90 days, under 8 U.S.C. § 1231 (a)(6) the INS can continue to detain aliens such as Petitioner who have been ordered deported but who have not been removed within the normal 90 day removal period.

If the alien is not removed within the 90 day removal period, "the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General." 8 U.S.C. § 1231(a)(6). The regulations provide that the detainee may be released from physical detention upon demonstrating "by clear and convincing evidence that the release would not pose a danger to the community or a significant flight risk. . . ." 8 C.F.R. § 241.4 (a). In reaching this determination, the INS district director is to take into account the following factors: (1) the nature and seriousness of the alien's criminal convictions; (2) the sentences imposed and time actually served; (3) the detainee's history of failing to appear in court; (4) probation history; (5) disciplinary problems while incarcerated; (6) evidence of rehabilitative effort or recidivism; (7) the equities in the United States; and (8) prior immigration violations and history. Id. Here, in February 1999 the Attorney General determined that Petitioner poses a danger to the community based upon a review of pertinent factors, including his lengthy criminal history.

C. Legal Standards Governing Indefinite Detainees

The issues raised by the detention of "indefinite detainees" require the court to analyze and reconcile two competing and legitimate interests. On the one hand, "`[t]he exclusion of aliens is a fundamental act of national sovereignty' that `stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.'" Zadvydas v. Underdown, 185 F.3d 279, 288 (5th Cir. 1999) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950)). Not only does the Constitution provide Congress with "plenary power over immigration matters," Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 201, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993), but the power to exclude or deport aliens is "a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (citations omitted). Stated another way, "any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches as to be largely immune from judicial inquiry or interference." Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953).

On the other hand, the Fifth Amendment to the United States Constitution protects the basic and fundamental right to ensure that no person will be deprived of life, liberty or property without due process of the law. U.S. Const. Amend. V. The protections of the Fifth Amendment extend to all "persons," including deportable aliens, within the borders of the United States. See Landon v. Plasencia, 459 U.S. 21, 31-32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). "Even one whose presence in this country is unlawful, involuntarily, or transitory is entitled to that constitutional [Fifth Amendment] protection." Mathews v. Diag, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976).

In reconciling these apparently conflicting interests, courts generally apply one of two different legal standards to determine the extent of an alien's due process rights.*fn3 Because the legal standards define the extent of ...


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