United States District Court, Eastern District of Pennsylvania
May 25, 2001
CHANDRA D. SHARMA, ET AL.
JOHN ASHCROFT, ET AL.
The opinion of the court was delivered by: Surrick, District Judge.
MEMORANDUM & ORDER
Petitioners Chandra D. Sharma and Subodh C. Sharma brought the
instant habeas corpus petition pursuant to 28 U.S.C. § 2241
challenging the constitutionality of their mandatory detention by
the Immigration & Naturalization Service ("INS"). Petitioners
were detained by the INS after an Immigration Judge deemed them
deportable under the Immigration & Nationality Act of 1952, as
amended, 8 U.S.C. § 1101 et seq. (the "INA") as a result of each
of them having been convicted of an aggravated felony.
Petitioners are being detained in the custody of the INS at the
Low Security Correctional Institution in Allenwood ("LSCI
Allenwood") pending the outcome of their appeal of their
respective orders of deportation. Because Section 236(c) of the
INA mandates the detention of deportable immigrants who were
convicted of aggravated felonies, see 8 U.S.C. § 1226(c), neither
Petitioner has been given a bail hearing to determine whether his
release is appropriate pending the outcome of their appeal.
Petitioner Chandra Sharma, who is 76 years old, immigrated in
1981 as a lawful permanent resident. His son, Petitioner Subodh
Sharma, first came to this country from his native India in 1974
and became a lawful permanent resident in 1979. Petitioners have
established deep roots in this country, and several of their
family members are United States citizens. Chandra Sharma has two
adult sons, other than Subodh Sharma, who are United States
citizens. Chandra's wife Sushila Sharma is a lawful permanent
resident with a pending naturalization application. Subodh
Sharma's wife, Dr. Ranjana Sharma, is a naturalized United States
citizen and physician at an emergency care facility. His son
Aditya Sharma and daughter Jyoti Sharma are both United States
In July, 1998, Petitioners were convicted of bank fraud
(18 U.S.C. § 1344), conspiracy to commit bank fraud, false statements
on loan application, etc. (18 U.S.C. § 371) and the making of
false statements (18 U.S.C. § 1014). United States v. Sharma,
Crim. Dkt. No. 96-321 (M.D.Pa.).
The case involved events that dated from 1986 through 1992 and
arose from Petitioners' efforts to obtain financing for their
family business. Throughout the criminal proceedings, Petitioners
were permitted to remain at liberty on bail, appeared in a timely
fashion for every required appearance, and fully complied with
the conditions of their release. Moreover, in passing sentence on
Petitioners after their conviction, Judge Rambo of the United
States District Court for the Middle District of Pennsylvania,
recommended that the "Bureau of Prisons not impose harsher
conditions of confinement" because of the Sharma's resident alien
status. She also expressly found that the Sharmas do not
constitute "a threat to the safety of the public."
Removal proceedings against Petitioners began while they were
serving their federal criminal sentence at LSCI Allenwood. In a
decision dated December 19, 2000, the Immigration Judge
determined that Petitioners were removable under Sections
101(a)(43)(M)(i) and 237(a)(2)(A)(iii) of the INA as a result of
each having been convicted of an aggravated felony. 8 U.S.C. § 1101
(a)(43)(M)(i), 1227(a)(2)(A)(iii). On January 9, 2001 the
Immigration Judge denied Petitioners' motion for reconsideration
but noted that the matter should be reviewed by the Board of
Immigration Appeals (the "BIA").
Petitioners took a timely appeal to the BIA from the decision
of the Immigration Judge. To date, the transcripts of
Petitioners' removal hearing have not been transcribed and no
date has been set for submission of their brief on appeal. Only
after the BIA proceedings are complete will Petitioners be able,
if necessary, to challenge their deportation in federal court.
Petitioners have been model prisoners at LSCI and have not had
any disciplinary problems of any kind. Chandra Sharma is in poor
health and suffers from a calcified prostate and kidney stone.
II. NATURE AND STAGE OF PROCEEDING
Petitioners have remained in detention under the custody of the
INS since the completion of their respective federal sentences in
November 2000. They have not been afforded a bail hearing to
determine the appropriateness of their release pending the
outcome of their appeal. Section 236(c) of the INA provides, in
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 237(a)(2)(A)(iii) of the INA
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 crimes for which Petitioners were
convicted constitute an "aggravated felony" as defined by the
INA. See 8 U.S .C. § 1101(a)(43)(M)(i). Under the circumstances
Section 236(c) requires the INS to detain Petitioners during the
pendency of their removal proceedings. Petitioners contend that
the failure of the INA to grant them a bail hearing violates
their due process and Eighth Amendments rights under the
Constitution. Petitioners seek relief from this Court in the form
of an order requiring that the INS conduct a bail hearing, as
done in similar cases. See
United States v. Zemski, 121 F. Supp.2d 814 (E.D.Pa. 2000);
Bouayad v. Holmes, 74 F. Supp.2d 471, 476 (E.D.Pa. 1999).
III. ANALYSIS OF LAW
The District Court has jurisdiction over the petition for
habeas corpus under 28 U.S.C. § 2241. Chi Thon Ngo v.
Immigration and Naturalization Service, 192 F.3d 390, 393 (3d
Cir. 1999) (exercising jurisdiction over habeas petition of
excludable alien challenging continued detention without bail
hearing), citing Sandoval v. Reno, 166 F.3d 225, 237-38 (3d
Cir. 1999) and DeSousa v. Reno, 190 F.3d 175, 180 (3d Cir.
1999); Bouayad v. Holmes, 74 F. Supp.2d 471, 473 (E.D.Pa. 1999);
Grant v. Zemski, 54 F. Supp.2d 437, 439-41 (E.D.Pa. 1999)
(ruling that INA did not contain clear statement that Congress
sought to eliminate habeas jurisdiction).
B. The Petition Warrants Relief in The Form of a Bail
It is well established that aliens have a right to due process
under the Fifth Amendment. See Reno v. Flores, 507 U.S. 292,
306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Chi Thon Ngo v. INS,
192 F.3d 390, 396 (3d Cir. 1999). It is also well established
that Congress has broad powers over immigration and may "`make
rules that would be unacceptable if applied to citizens.'" Chi
Thon Ngo, 192 F.3d at 395-96, quoting Mathews v. Diaz,
426 U.S. 67, 79-80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Flores,
507 U.S. at 305-06, 113 S.Ct. 1439.
The Supreme Court has held that Congress may allow for the
detention of aliens under certain circumstances. For example, an
alien suspected of entering the country illegally may be detained
pending his deportation hearing. Flores, 507 U.S. at 306, 113
S.Ct. 1439, citing Carlson v. Landon, 342 U.S. 524, 538, 72
S.Ct. 525, 96 L.Ed. 547 (1952) and Wong Wing v. United States,
163 U.S. 228, 235, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ("We think
it clear that detention or temporary confinement, as part of the
means necessary to give effect to the provisions for the
exclusion or expulsion of aliens, would be valid. Proceedings to
exclude or expel would be in vain if those accused could not be
held in custody pending the inquiry into their true character,
and while arrangements were being made for their deportation.").
Moreover, in enacting the precursor to 8 U.S.C. § 1252(a),
Congress eliminated any presumption of release pending
deportation, committing that determination to the discretion of
the Attorney General. See Carlson, 342 U.S. at 538-540, 72
S.Ct. 525 (holding that aliens in deportation proceedings who, in
the discretion of the Attorney General, posed a risk to the
community because of communist activity could be detained).
However, Section 236(c) imposes an absolute restriction on the
liberty of each of the Petitioners in this case by foreclosing
any possibility of a hearing on the necessity of detention. The
question of whether the mandatory detention of a deportable alien
violates the alien's due process rights has not been addressed by
our Court of Appeals and has not been answered uniformly by other
courts. Compare Bouayad v. Holmes, 74 F. Supp.2d 471 (E.D.Pa.
1999) (mandatory detention provision unconstitutional) and cases
cited therein with Diaz-Zaldierna v. Fasano, 43 F. Supp.2d 1114,
1118-21 (S.D.Cal. 1999) (mandatory detention provision
constitutional). The only appellate court decision to have
directly addressed the issue, Parra v. Perryman, 172 F.3d 954
(7th Cir. 1999), upheld the constitutionality of mandatory
detention for deportable aliens convicted of an aggravated
felony, reasoning that persons
subject to Section 236(c) have forfeited any legal entitlement to
remain in the United States and can unilaterally end their
confinement at any time by returning to their native land. Id.
In Chi Thon Ngo, the Court of Appeals for the Third Circuit
addressed the related issue of when an excludable alien, as
opposed to a deportable alien, may be mandatorily detained after
having been convicted of an aggravated felony. The Court
recognized that due process demands an underlying justification
for the detention of aliens. The petitioner in Chi Thon Ngo was
an alien whose order of removal was final but who was still
detained in the United States because his native country,
Vietnam, refused to accept him. See Chi Thon Ngo, 192 F.3d at
392. The Court of Appeals emphasized the need for an
individualized evaluation of the petitioner's detention by
stating that "[t]he process due even to excludable aliens
requires an opportunity for an evaluation of the individual's
current threat to the community and his risk of flight." Id. at
398. The court held that the petitioner's continued detention did
not violate due process as long as 1) there was a possibility of
the alien's eventual departure, 2) there were adequate and
reasonable provisions for the grant of parole by INS, and 3) the
detention was necessary because of risk of flight or threat to
the community. Id. at 397.
Although the Chi Thon Ngo court expressly limited its holding
to excludable aliens and expressed no view on situations
involving deportable aliens, see id. at 398 n. 7, in the case
of United States v. Zemski, 121 F. Supp.2d 814 (E.D.Pa. 2000),
the rational of Chi Thon Ngo was extended to require a bail
hearing for a deportable alien held in detention while an appeal
of his deportation decision remained pending. The facts in the
Zemski case are very similar to the facts in the instant case.
In Zemski, the petitioner had been convicted of an aggravated
felony and was found removable under the INA. The petitioner
appealed the decision of deportation, but remained in detention.
A briefing schedule for his appeal of the removal decision had
not been set, and the petitioner did not know when a final
decision would be made. The District Court concluded that, as in
Chi Thon Ngo, the petitioner was subject to an "indeterminable
detention." Zemski, 121 F. Supp.2d at 817 n. 7. Drawing from the
Court of Appeal's decision, the Zemski court concluded that
"there is no reason why an excludable alien would be entitled to
greater protection than a deportable alien: `Once an alien gains
admission to our country and begins to develop the ties that go
with permanent residence, his constitutional status changes
accordingly.'" Id. at 818, quoting Landon v. Plasencia,
459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The Zemski
Court ordered that petitioner be given an individualized
evaluation, including an individual hearing and decision, to
determine whether the continued detention of Petitioner is
necessary to prevent risk of flight or danger to the community.
Id. at 818. In reaching this decision, the court observed that
"[i]f an alien who is subject to a final removal order is
constitutionally entitled to an individualized assessment of the
risk of flight and danger to the community on a current basis,
then a fortiori, an alien who is not yet subject to a final
removal order must be accorded the same opportunity." Id. at
Admittedly, the petitioner's situation in Chi Thon Ngo was
more extreme than that of the petitioner in Zemski and the
petitioners in the instant case. The petitioner in Chi Thon
Ngo, although removable under the INA, could not be repatriated
because his native country would not accept him. Because there
was no way of knowing if the petitioner would ever be deported,
the duration of his detention was truly "indeterminable." Left
without any legal recourse, the petitioner was "literally in a
legal limbo." See Juarez-Vasquez v. Holmes, Civ. A. No.
00-4727, 2000 WL 1705775, *2 (Weiner, J.) (E.D.Pa. 2000)
(discussing Chi Thon Ngo). Here, Petitioners will remain in
detention only as long as they appeal the decision to deport
them. This is a factor that was relied upon heavily in Parra v.
Perryman, 172 F.3d 954, 958 (7th Cir. 1999) (an alien convicted
of an aggravated felony could avoid a prolonged detention by
choosing to forego such litigation and return to their native
Several other courts of this District have declined to follow
Parra. See Bouayad v. Holmes, 74 F. Supp.2d 471, 476 (E.D.Pa.
1999) (petitioner granted a bail hearing); Juarez-Vasquez v.
Holmes, Civ. A. No. 00-4727, 2000 WL 1705775, *2 (Weiner, J.)
(E.D.Pa. 2000) (same). In Bouayad, the court stated:
[W]here, as here, a petitioner contests whether he is
removable under 8 U.S.C. § 1227, the option of ending
detention by departing this country does not cure any
constitutionality infirmity in the mandatory
detention provisions. To hold otherwise would be to
put the cart before the horse by requiring an alien
who is subject to mandatory detention and not yet
under a final order of removal to forego any
challenges to the removal proceeding in order to
secure his or her liberty.
Bouayad, 74 F. Supp.2d at 476 (internal citations omitted). We
find application of this logic to Petitioners' circumstance to be
sound, particularly because, as aliens convicted of aggravated
felonies, the INA prohibits their voluntary departure, see
8 U.S.C. § 1229c, and thus requires that they remain in detention
while they pursue their appeal. Such a legal quagmire constitutes
a denial of Petitioner's due process right to be free from
Petitioners have asked this Court for an immediate release on
bail through the exercise of the federal courts' "inherent
authority to admit to bail individuals properly within their
jurisdiction." See Mapp v. Reno, 241 F.3d 221, 226 (2d Cir.
2001). We deny such relief. Cf. Landano v. Rafferty,
970 F.2d 1230, 1239 (3d Cir. 1992) (release of prisoner on bail during
pendency of habeas petition requires finding of "extraordinary
circumstances"). However, we will require that the INS provide
each Petitioner with the requisite individualized hearing as did
the courts in Zemski and Bouayad.
Under the circumstances we conclude that the mandatory
detention of Petitioners by the INS pending the outcome of their
appeal of the decision to deport them is a violation of their
respective due process rights. Accordingly we will order that the
INS conduct a bail hearing to determine the necessity of
detaining each Petitioner.
An appropriate order follows.
AND NOW, this 24st day of May, 2001, IT IS HEREBY ORDERED THAT
the petition for a writ of habeas corpus under 28 U.S.C. § 2241
is GRANTED as follows:
1. Petitioners are to be RELEASED from custody unless
Respondent commences an individualized evaluation, including an
individual hearing and decision within thirty (30) days, to
determine whether the continued detention of each Petitioner is
necessary to prevent risk of flight or danger to the community.
2. If either Petitioner demonstrates that he is not a threat to
the community or a flight risk, Respondent immediately shall
order said Petitioner released from custody on bond upon
3. So long as either Petitioner remains in INS custody, the
procedure set forth in paragraph 1 hereof shall be repeated every
six (6) months if said Petitioner so requests.
AND IT IS SO ORDERED.
© 1992-2003 VersusLaw Inc.