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NGUYEN v. FASANO

February 1, 2000

HOANG MANH NGUYEN; NAM VIET NGUYEN; NGOC VAN NGUYEN; MINH NHAT PHAN, PETITIONERS,
V.
ADELE FASANO, SAN DIEGO DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE; JANET RENO, UNITED STATES ATTORNEY GENERAL, RESPONDENTS.



The opinion of the court was delivered by: Keep, District Judge.

ORDER TO SHOW CAUSE

On September 7, 1999, Petitioners Hoang Manh Nguyen, Nam Viet Nguyen, Ngoc Van Nguyen, and Minh Nhat Phan, through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondents oppose.

I. Background

A. Hoang Manh Nguyen

Petitioner Manh Nguyen entered the United States as a refugee on November 26, 1985. (Pet. ¶ 15). According to Petitioner Manh Nguyen, he later adjusted his status to that of lawful permanent resident of the United States, retroactive to his date of entry. (Id.). On November 12, 1991, he was convicted of first degree robbery and received a total sentence of 11 years, 4 months. (Resp.Exh. B, p. 2). On May 1, 1997, the INS placed Petitioner Manh Nguyen in removal proceedings and determined that he should be held without bond. (Id., pp. 4-7). On June 24, 1997, an Immigration Judge ordered Petitioner Manh Nguyen removed from the United States to Vietnam; Petitioner Manh Nguyen appealed the decision to the Board of Immigration Appeals (BIA). (Id., pp. 10-13). On January 8, 1998, the BIA dismissed Petitioner Manh Nguyen's appeal and affirmed the Immigration Judge's decision. (Id., pp. 14-15). Petitioner Manh Nguyen appealed to the Ninth Circuit, which dismissed his petition for review as untimely. (Id., p. 16). His order of removal was final as of June 4, 1998. (Id., p. 18).

Petitioner Manh Nguyen alleges that he suffered a back injury in December, 1998; as a result he has been experiencing paralysis in his leg and has needed a walker or a wheelchair to move about. (Pet.Exh. 45). On March 24, 1999, Petitioner Manh Nguyen made a written request to the INS for his release from custody and included letters from family and friends pledging support and an offer of employment to Petitioner upon his release from custody. (Id. 38-45). On March 31, 1999, and October 6, 1999, the INS reviewed his file and determined both times that Petitioner should continue to be detained by the INS. (Resp.Exh. B, pp. 18-21). On October 18, 1999, the district director incorporated and reiterated the October 6, 1999, custody decision, but informed Petitioner Manh Nguyen of his right to appeal the decision to continue detention to the BIA pursuant to 8 C.F.R. § 236.1 (d)(3)(iii). (Id., p. 22). Petitioner Manh Nguyen has been in INS custody for 2 years and 8 1/2 months.

B. Nam Viet Nguyen

On May 30, 1990, Petitioner Viet Nguyen entered the United States as an immigrant. (Pet. ¶ 24). On July 21, 1992, he was convicted of residential burglary with the use of a firearm and sentenced to seven years in prison. (Id. ¶ 26). On April 23, 1996, the INS placed Petitioner Viet Nguyen in deportation proceedings and set a bond in the amount of $12,000. (Pet.Exh. 71). Petitioner made a request for reduction in bond, which was denied. The Immigration Judge ordered him to be held without bond on May 7, 1996. (Resp.Exh. C, p. 6). On June 4, 1996, Petitioner Viet Nguyen was ordered deported to Vietnam. (Id., p. 7). He did not appeal that decision to the BIA, and as a result, the deportation order became final. On April 2, 1999, Petitioner Viet Nguyen made a written request to the INS for his release from custody and included letters from his family and friends pledging support and an offer of employment. (Pet. Exh. 53-62). On August 5, 1999, the INS issued a custody decision holding that Petitioner Viet Nguyen would continue to be detained in INS custody and that the decision could not be appealed to the BIA. (Resp.Exh. C, p. 9). On October 18, 1999, the district director incorporated and reiterated the August 5, 1999 custody decision, but informed Petitioner Viet Nguyen of his right to appeal the decision to the BIA pursuant to 8 C.F.R. § 236.1 (d)(3)(iii). (Id., p. 10). Petitioner Viet Nguyen has been in INS custody for 3 years and 8 1/2 months.

C. Ngoc Van Nguyen

On December 12, 1996, the INS requested travel documents from the United Kingdom, a request that was denied by the United Kingdom on December 16, 1996. (Pet.Exh. 80). On April 17, 1997, the INS requested travel documents from the Embassy of Vietnam. (Id. 79). On August 25, 1997, Petitioner Van Nguyen made a written request to the INS for release on an order of supervision. (Id. 75). Respondents submitted a file review dated March 31, 1999, that stated that release was not recommended at that time. (Resp.Exh. D., pp. 13-15). On July 1, 1999, a deportation officer submitted a memorandum to Assistant District Director Kim Porter that concluded that Petitioner Van Nguyen would not pose a threat to the community upon release from INS custody. (Id., p. 16). On August 5, 1999, however, the INS determined that Petitioner Van Nguyen should continue to be. detained in INS custody and that such decision was not appealable. (Id., p. 20). On October 18, 1999, the district director incorporated and reiterated the August 5, 1999 custody decision, but informed Petitioner Van Nguyen of his appeal rights pursuant to 8 C.P.R. § 236.1(d)(3)(iii). (Id., p. 21). Petitioner Van Nguyen has been detained by the INS for 3 years and 10 months.

D. Minh Nhat Phan

Petitioner Phan entered the United States as a refugee on October 27, 1981. (Pet. ¶ 42). His status was subsequently adjusted to lawful permanent resident, retroactive to October 27, 1981. (Id.). On July 28, 1989, Petitioner Phan was convicted of attempted second degree murder and sentenced to fourteen years in prison. (Resp.Exh. E, p. 2). On May 28, 1996, the INS placed him in deportation proceedings and ordered him held without bond. (Id., p. 5). On September 17, 1996, he was ordered deported to Australia with an alternative order of deportation to Vietnam. (Id., p. 6). Petitioner Phan did not appeal from that decision so it became final.

On September 19, 1996, the INS requested travel documents for Petitioner Phan from Australia. (Pet.Exh. 123). Australia denied the INS's request and indicated that they would not accept Petitioner Phan as a deportee. (Id.) Petitioner Phan made many requests to the immigration judge for a change in his custody status, all of which were denied. (Pet.Exh. 102, 107, 110, 113). The INS requested travel documents from the Embassy of Vietnam in an undated letter. (Pet.Exh. 121). On January 4, 1999, the INS prepared a document regarding Petitioner Phan entitled "Information for travel document or passport." (Pet.Exh. 122). In March, 1999, Petitioner submitted letters from his parents and his sister, stating their support and an offer of employment. (Pet.Exh. 95-97). On August 3, 1999, a custody review was completed. (Resp.Exh. E, pp. 13-15). On August 5, 1999, the district director found that Petitioner Phan should continue to be detained in INS custody and that the BIA could not review this decision. (Id., p. 16). On October 18, 1999, the district director incorporated and reiterated the August 5, 1999 decision, but informed Petitioner Phan of his appeal rights pursuant to 8 C.F.R. § 236.1 (d)(3)(iii). (Id., p. 17). Petitioner Phan has been in INS custody for 3 years and 8 months.

II. Discussion

Petitioners challenge their continued detention as violating their substantive and procedural due process rights. Respondents, citing 8 U.S.C. § 1226 (e) and § 1252(b)(9), first argue that this court lacks subject matter jurisdiction to decide these claims. Respondents also argue that Petitioners have not exhausted their administrative remedies because they have not appealed their custody decisions to the BIA. Last, Respondents argue that Petitioners' continued detention does not violate their substantive due process rights.

A. Subject Matter Jurisdiction

Prior to reaching the merits of Petitioners' claims, this court must assess whether this court has subject matter jurisdiction over Petitioners' writ. Absent intervening law, this court has jurisdiction pursuant to 28 U.S.C. ยง 2241. Respondents' and Petitioners' respective positions require this court to review a number of provisions appearing in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L.No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), codified in various sections of Title ...


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