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November 8, 2000


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


Petitioner Sabrija Radoncic ("Radoncic"), an alien from Serbia-Montenegro currently in the custody of the Immigration and Naturalization Service ("INS"), has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in which he contends that confining him indefinitely, without the possibility of release on bail, is a denial of his substantive and procedural due process rights.*fn1 He now seeks an immediate hearing before an Immigration Judge to determine his eligibility for release on bail. Respondent, the Acting District Director, Immigration and Naturalization Service, Philadelphia District, ("Respondent") has opposed the petition, first arguing that Radoncic has failed to exhaust his administrative remedies before the Board of Immigration Appeals and, in the alternative, that § 1226(c) is constitutional.*fn2 As explained more fully below, the Court holds that § 1226(c) violates Radoncic's right to due process of law and that he is entitled to the relief set forth in the Order that follows this Memorandum.


In March 1991, Radoncic and his wife, natives of Serbia-Montenegro, entered the United States "at or near an unknown point along the Mexican border . . . without inspection by an immigration officer." In November 1993, the couple applied to the INS for asylum.*fn3 On March 11, 1996, the INS issued an Order to Show Cause charging Radoncic and his wife with deportability under former INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B), for entering the country without inspection. At a hearing held before an Immigration Judge on July 24, 1996, they conceded deportability as charged, but requested "asylum, withholding of deportation, and voluntary departure in the alternative."

On August 15, 1996, Radoncic was taken into custody by the United States Border Patrol and charged with smuggling other Muslims from Serbia-Montenegro into the United States. On August 29, 1996, a $5,000.00 bond was posted, and Radoncic was released from custody. He subsequently was convicted of smuggling aliens into the United States in violation of 8 U.S.C. § 1324 and of conspiracy to smuggle aliens into the United States in violation of 8 U.S.C. § 371. On January 25, 1999, Judge William K. Sessions III of the United States District Court for the District of Vermont sentenced him to an 18-month term of incarceration. When imposing the sentence, Judge Sessions made the following significant findings and recommendation:

The Court finds this to be an extraordinary situation. Whether or not profit was gained, the defendant did not become wealthy. The major purpose was in service of his community in Yugoslavia and Astoria, NY. Also, the Court finds that this defendant is not a dangerous person. Therefore the Court strenuously recommends that this defendant not be deported upon completion of his sentence and that this statement from the Court be sent to the Immigration Court. . . . .

United States v. Radoncic, No. 2:97CR00047-001 (D.Vt. filed Jan. 25, 1999) (emphasis added). Radoncic voluntarily surrendered to serve his sentence on February 23, 1999.

Because of the conviction, the Immigration Judge presiding over Radoncic's deportation proceedings found him to be "ineligible for asylum, but potentially eligible for withholding of deportation."*fn4 On April 11, 2000, however, the Immigration Judge denied Radoncic's application for relief from deportation and ordered that he be removed to Serbia-Montenegro. Radoncic's appeal from that decision to the Board of Immigration Appeals ("BIA") is still pending.

On May 19, 2000, the Bureau of Prisons released Radoncic to the custody of the INS. An Immigration Judge denied Radoncic's request for a bail hearing, asserting that 8 U.S.C. § 1226(c)(1) deprived him of jurisdiction to consider the application during the pendency of his appeal. Radoncic's petition for a writ of habeas corpus asserting a violation of his constitutional right to due process of law was filed on August 28, 2000. This Court held a hearing on September 7, 2000.


Section 1226(c) provides, in relevant part:

The Attorney General shall take into custody any alien who — . . . is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. . . .

8 U.S.C. § 1226(c)(1)(B). Section 1227(a)(2)(A)(iii) provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). The alien smuggling for which Radoncic was convicted is an "aggravated felony" for purposes of this section. See 8 U.S.C. § 1101(a)(43)(N). Section 1226(c) thus allows or, arguably, requires the INS to hold Radoncic without bond during the pendency of his removal proceedings. Radoncic contends that the invocation of 8 U.S.C. § 1226(c) to deny him a bail hearing violates his right to procedural and substantive due process.*fn5

The Due Process Clause of the Fifth Amendment provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. Even an excludable alien is a "person" for purposes of the Fifth Amendment and is therefore entitled to due process. See Chi Thon Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) (citing Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ("[A]ll persons within the territory of the United States are entitled to the protection guaranteed by [the Fifth and Sixth Amendments], and . . . even aliens shall not be . . . be deprived of life, liberty, or property without due process of law.")); see also Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ("It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings."); Ma v. Reno, 208 F.3d 815, 825 (9th Cir. ...

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