The opinion of the court was delivered by: Reed, District Judge.
Grant is a 37 year old native of Jamaica. He was admitted to
the United States almost 19 years ago, in July of 1980 and
adjusted his status to a lawful permanent resident on August 8,
1982. He has since remained a resident of the United States.
Grant owns a home in Philadelphia, is gainfully employed and has
two children who are United States citizens. Both his father and
step-mother are United States citizens.
On November 20, 1992, Grant was convicted of one count of
possession with the intent to distribute a controlled substance
(marijuana). As a result of his conviction, Grant was sentenced
to eighteen months reporting probation and a fine. Grant
successfully completed his probation.
On May 4, 1999, INS agents took Grant into custody in
Philadelphia. The INS determined that pursuant to § 236(c) Grant
was subject to mandatory detention and was not eligible for
release on bond. On May 12, 1999, the INS initiated removal
proceedings against Grant by filing a Notice to Appear. On May
19, 1999, an Immigration Judge held an individual bond
redetermination hearing. The Immigration Judge determined that §
236(c) did not apply to Grant and that he should be released from
custody provided he post a $1,500.00 bond. In so ordering, the
Immigration Judge found that Grant was not a flight risk or a risk
of danger to the person or property of others. (Respondent's
Opposition to Petition For Writ of Habeas Corpus ("Resp. Opp."),
Exh. 5 & 6).
The INS immediately appealed the decision of the Immigration
Judge, triggering an automatic stay of his decision. See
8 C.F.R. § 3.19(i)(2). The net effect of the appeal by the INS was that
Grant remained in custody at the Berks County prison pending a
decision by the Board of Immigration Appeals ("BIA") on whether
Grant is eligible for release. An appeal can take anywhere from
three to six months. Meanwhile, the INS has yet to determine
whether Grant will be deported.
Grant filed this petition for habeas corpus arguing that he
is being unlawfully detained by a statute that does not apply to
him or, in the alternative, is violative of the substantive and
due process provisions of the Fifth Amendment of the United States
Constitution. The respondent counters by arguing that the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA") stripped this Court of jurisdiction to hear a petition
for habeas corpus. The respondent also argues that even if this
Court has jurisdiction, it should require Grant to exhaust
administrative remedies. Finally, the respondent argues that, if
the Court reaches the statutory question before it, § 236(c)
applies to Grant and is not violative of the Constitution.
A. Subject Matter Jurisdiction
Respondents argue that section 236(e) of the INA, 8 U.S.C. § 1226(e),
has stripped this Court of jurisdiction to review this
petition for habeas corpus. As amended by the IIRIRA, § 236(e) of
the INA 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
8 U.S.C. § 1226(e). Respondent argues that this section
forecloses judicial review over all immigration detention
decisions made by the Attorney General concerning the application
of § 236 and any of the Attorney General's decisions relating to a
particular alien's suitability for INS detention or release under
the statute. Respondent further argues that because Grant is
subject to § 236(c) by virtue of his 1992 conviction, § 236(e)
applies and the petition must be dismissed for lack of
jurisdiction. This Court does not agree.
The Court of Appeals for the Third Circuit recently held
that, despite the broad jurisdiction-stripping language of an
analogous provision of the INA,*fn2 habeas corpus review
pursuant to 28 U.S.C. § 2241 survived for claims by aliens who
have been ordered deported based upon the commission of certain
enumerated crimes. Sandoval v. Reno, 166 F.3d 225, 236-38 (3d
Cir. 1999); see also De Sousa v. Reno, 30 F. Supp. 844, 848-49
("unless it has been expressly repealed, 28 U.S.C. § 2241 provides
a jurisdictional basis for reviewing immigration decisions upon
petition for writ of habeas corpus"). The Sandoval Court
recognized that habeas jurisdiction has been available to aliens
in executive custody for over a century. Id. at 237. The Court
of Appeals reasoned that in light of existing precedent, habeas
jurisdiction could not be repealed by implication and that
"nothing less than an express statement of congressional intent is
required before a grant of habeas corpus jurisdiction as provided
in 28 U.S.C. § 2241 will be found to have been repealed." Id.
(relying upon Felker v. Turpin, 518 U.S. 651 (1996) and Ex Parte
Yerger, 75 U.S. 85 (1868)). Because ...