Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SHARMA v. ASHCROFT

May 25, 2001

CHANDRA D. SHARMA, ET AL.
v.
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.

I. BACKGROUND

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 citizens.

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 pertinent 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 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.