to mandatory detention under section 1226(c), INA § 236(c),
although they are being detained under 8 U.S.C. § 1231, INA §
241, while they await removal. The fourth, Celio De La Cruz, has
already been removed to the Dominican Republic.
However, Jibril Koita and Maher Omari are still in
administrative proceedings and the petition remains viable for
them. After review of the case law, we conclude that these
petitioners are entitled to habeas relief, but instead of
granting the writ unconditionally, we will first give the INS an
opportunity to review their cases individually to determine if
they should be released on bond.
A. Jibril Koita.
Petitioner, Jibril Koita, a citizen of Gambia, entered the
United States in 1989 on a visitor's visa. In January 1995, he
was convicted in New York of possession of stolen property in the
fifth degree. In June 1995, he applied for and was granted status
as a permanent resident alien. In February 1999, he was sentenced
in the United States District Court for the District of Delaware
to six months for conspiracy to commit bank fraud.
In June 1999, the INS sent Koita a notice to appear, informing
him that under 8 U.S.C. § 1182(a)(6)(C)(i), INA §
212(a)(6)(C)(i), the agency intended to remove him for
fraudulently failing to reveal on his application for
permanent-resident-alien status several arrests in New York in
1994 and 1995 that made him inadmissible under
8 U.S.C. § 1227(a)(1)(A), INA § 237(a)(1)(A). In August 1999, he was
notified of an additional ground for removal — that his criminal
convictions set forth above were crimes of moral turpitude
subjecting him to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), INA
§ 237(a)(2)(A)(ii). Koita remains in mandatory detention while
the INS proceeds against him. He has a hearing scheduled for
October 2, 2000, before an immigration judge.
B. Maher Omari.
Petitioner, Maher Omari, is a citizen of Jordan who entered the
United States on a student visa in 1989. In October 1998, he pled
guilty in federal court to conspiracy to defraud the government
and was sentenced to twenty months incarceration. On May 10,
1999, a final order of removal was entered against him on the
basis that his crime was an aggravated felony as defined in
8 U.S.C. § 1101(a)(43), INA § 101(a)(43), and that it required his
removal under 8 U.S.C. § 1227(a)(2)(A)(iii), INA §
Petitioner requested relief from removal on two grounds; first,
that he would be persecuted as a member of a particular social
group if he is returned to Jordan; second, that he would be
tortured if he is returned. His case was referred to an asylum
officer. In July 1999, the asylum officer decided that Omari had
a reasonable fear of persecution and referred his case to an
The immigration judge held a hearing and considered Omari's
claim of persecution if he is returned to Jordan. The judge also
considered his claim of torture under the United Nations
Convention Against Torture. On October 8, 1999, under
8 U.S.C. § 1231(b)(3), INA § 241(b)(3), the immigration judge granted Omari
withholding of removal on the ground that he would be subject to
persecution as a member of a particular social group.
The INS appealed that decision to the BIA. On April 7, 2000,
the BIA reversed the immigration judge, ruling that Omari did not
qualify as a member of a particular social group within the
meaning of the immigration law. However, it remanded the case to
the immigration judge to determine if Omari could qualify for
withholding of removal on the ground of torture.
On May 24, 2000, the immigration judge again decided that Omari
was entitled to
withholding of removal, this time on the ground that he would be
tortured if returned to Jordan.*fn2 On June 1, 2000, the INS
appealed this ruling to the BIA, and the appeal is still pending.
In the meantime, Omari is being held in mandatory detention.
In opposing the petition, the respondent argues that the
petitioners have no due process right to release on bail, relying
solely on Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999).
Parra did reject such a right, but its ruling was based on a
narrow set of facts, so narrow that we fail to see how Parra
could guide other courts facing the same due process issues in
other factual contexts.
In Parra, a Mexican citizen being held in mandatory detention
pending conclusion of INS removal proceedings against him filed
for habeas relief, claiming that he had a due process right under
the Fifth Amendment to release on bail during this period.
However, he conceded his guilt for a felonious sexual assault. He
also conceded that this crime was an aggravated felony under
federal immigration law subjecting him to removal. There was also
no question that Mexico would accept him. The Seventh Circuit
concluded that an alien in these circumstances has no due process
right to release on bond.
The court reasoned as follows. First, since the petitioner
himself admitted that he was removable, any legal right to remain
in the United States had come to an end, and any administrative
appeals Parra was pursuing were merely "postponing the
inevitable." 172 F.3d at 958. Second, Parra could not prevail
under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976), the lead case for examining procedural due
process claims. Under the Mathews test: (1) the private
interest at stake was nonexistent since Parra's concessions left
him without any cognizable interest in remaining in the United
States; (2) the likelihood of INS error in ordering removal was
zero, again because Parra had conceded removability; and (3) the
government's interest in mandatory detention was high, given that
90% of aliens released on bond flee. 172 F.3d at 958.
Our case is materially different because, unlike in Parra,
neither of the petitioners here concede that they are removable.
Hence, Parra's reasoning would not apply. Other courts have
similarly distinguished Parra. See Chukwuezi v. Reno, No.
3:CV-99-2020, 2000 WL 1372883, slip op. at 3-4 (M.D.Pa. May 16,
2000) (Vanaskie, C.J.); Hon Man Szeto v. Reno, 2000 WL 630869,
at *4 (N.D.Cal.); Nhoc Danh v. Demore, 59 F. Supp.2d 994, 1003
(N.D.Cal. 1999). We therefore look elsewhere to resolve the
The law in this area is unsettled. Some courts have held that
immigrants have no due process rights in these circumstances and
must stay in detention during INS administrative proceedings.
See e.g., Avramenkov v. INS, 99 F. Supp.2d 210 (D.Conn. 2000);
Okeke v. Pasquarell, 80 F. Supp.2d 635 (W.D.Tex. 2000); Reyes
v. Underdown, 73 F. Supp.2d 653 (W.D.La. 1999); Diaz-Zaldierna
v. Fasano, 43
741 F. Supp.2d 1114 (S.D.Cal. 1999). Other courts have decided
otherwise. See Chukwuezi, supra; Welch v. Reno, 101 F. Supp.2d 347
(D.Md. 2000); Van Eeton v. Beebe, 49 F. Supp.2d 1186 (D.Or.
1999); Nhoc Danh, supra; Bouayad v. Holmes, 74 F. Supp.2d 471
(E.D.Pa. 1999); Martinez v. Greene, 28 F. Supp.2d 1275 (D.Colo.
After review of the case law, we agree with the latter opinions
and rule that, as applied, the petitioners have both a
substantive and procedural due process right to a hearing on
whether they should be released on bond pending completion of
their INS proceedings.
The cases provide the analysis, so extended discussion is not
necessary. We need only note as follows. These petitioners
entered the country legally and have a liberty interest in
freedom from bodily restraint that is protected under both
substantive and procedural due process. See Bouayad, supra, 74
F. Supp.2d at 474 (citing Reno v. Flores, 507 U.S. 292, 113
S.Ct. 1439, 123 L.Ed.2d 1 (1993), and Foucha v. Louisiana,
504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)).*fn3
As applied, the mandatory-detention requirement violates
substantive due process because it incarcerates all immigrants
who are in INS removal proceedings without regard to whether an
individual alien poses a flight risk or a danger to the
community. See Van Eeton, supra; and Martinez, supra, (both
citing United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095,
95 L.Ed.2d 697 (1987)); Welch, supra. Detention could exceed a
year, or even more, as this case shows, since Koita's hearing has
yet to take place, having been scheduled for October 2, 2000.
As applied, and using the Mathews analysis, mandatory
detention also violates procedural due process by not granting
the immigrant an opportunity to be heard on whether he should be
released from confinement while INS proceedings are pending.
Chukwuezi, supra; Van Eeton, supra; Nhoc Danh, supra; Martinez,
Accordingly, we will order the respondent to grant these
petitioners an opportunity to show that they should not be
confined. As Chief Judge Vanaskie did in Chukwuezi, we will
require the review process found acceptable in Chi Thon Ngo,
supra, or an equivalent.
We will issue an appropriate order.
AND NOW, this 27th day of September, 2000, it is ordered that:
1. The petition for a writ of habeas corpus under
28 U.S.C. § 2241 is granted as follows.
2. The petitioners shall be released unless, within
30 days of the date of this order, the respondent
grants the petitioners a review of their detention in
accord with the procedures discussed in Chi Thon Ngo
v. INS, 192 F.3d 390 (3d Cir. 1999), or other
procedures that are as favorable.
3. The Clerk of Court shall close this file but
either petitioner may reopen it if the respondent has
not granted the petitioner the relief ordered within
the deadline imposed.