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GRANT v. ZEMSKI

June 22, 1999

BARRONIE GRANT, PLAINTIFF,
v.
CHARLES W. ZEMSKI, ACTING DISTRICT DIRECTOR, U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE DEFENDANT.



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

MEMORANDUM

I. Background

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.

II. Discussion

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
  parole.
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 ...


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