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United States District Court, Eastern District of Pennsylvania

October 8, 2002


The opinion of the court was delivered by: Anita B. Brody, Judge.


On July 15, 2002, Oyenike Alaka ("Alaka") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging her continued detention by the Immigration and Naturalization Service ("INS") pending removal proceedings. I will grant the petition.

• Procedural History

Petitioner, Oyenike Alaka ("Alaka"), a native of Nigeria, is a thirty-eight year-old lawful permanent resident of the United States. She first entered this country without inspection in November 1984.*fn1 She became a temporary resident on November 28, 1988.*fn2 She was granted amnesty and became a permanent resident on December 1, 1990. From the time of her initial entry into the United States in 1984, until she became a lawful permanent resident in 1990, Alaka did not leave the United States. Subsequent to becoming a lawful permanent resident in 1990, Alaka has left the United States nine times.*fn3

On June 5, 1992, Alaka pled guilty and was convicted in the United States District Court for the District of Minnesota of aiding and abetting bank fraud under 18 U.S.C. § 1344. She was sentenced to eight months in prison, followed by three months of supervised release, and ordered to pay restitution in the amount of $4,716.68.

On August 8, 2001, Alaka returned to the United States after spending eight months in Nigeria. She applied for admission into the country as a returning lawful permanent resident. INS officials apprehended and detained Alaka at John F. Kennedy Airport when they discovered that she had an outstanding federal warrant for a probation violation relating to her 1992 criminal conviction.*fn4 Alaka was transferred to a detention facility in York, Pennsylvania where she has remained for almost fourteen months. Although the charged probation violation was later dismissed, the INS continued to detain Alaka because of her criminal history, asserting that her criminal conviction made her removable from the United States.*fn5

On November 19, 2001, the INS issued a Notice to Appear,*fn6 advising Alaka that she was an "arriving alien" pursuant to section 212(a)(2)(A)(i)(I) of the Immigration and Naturalization Act ("INA"), codified at 8 U.S.C. § 1182(a)(2)(A)(i)(I), based on her 1992 bank fraud conviction.*fn7 The Notice to Appear also charged that her conviction constituted a crime of moral turpitude within the meaning of INA § 101(a)(13)(C), codified at 8 U.S.C. § 1101(a)(13)(C) (2001),*fn8 and rendered her ineligible for admission into and subject to removal from the United States under INA § 235(b), codified at 8 U.S.C. § 1225(b).*fn9

On January 22, 2002, Alaka petitioned the Immigration Court requesting an independent bond hearing for release from detention pending the outcome of her INS case.*fn10 Alaka's petition was assigned to Immigration Judge Durling ("Judge Durling"), who held a hearing on the matter. He found that Alaka was not a flight risk nor a danger to the community. On March 12, 2002, Judge Durling issued a written opinion granting Alaka's petition and ordering her released on $2500 custody bond.*fn11

On March 13, 2002, the INS appealed the decision of Judge Durling to the Board of Immigration Appeals ("the Board"), contesting Immigration Judge Durling's authority to issue such a bond decision.*fn12 The INS's appeal was coupled with a Motion to Stay the effect of the Immigration Judge's order. Pursuant to the automatic stay provision of 8 C.F.R. § 3.19(2), Judge Durling's order was automatically stayed pending the outcome of the INS appeal.*fn13 On March 14, 2002, the Board granted the INS's motion to stay the Immigration Judge's bond decision.

On July 8, 2002, Alaka was before Judge Durling for another hearing to determine the effect of her foreign convictions. He held that, as a result of her foreign convictions, Alaka had constructively abandoned her status as a permanent resident. Although this interlocutory determination was made, Alaka maintains her status as a lawful permanent resident until a final decision is reached in her immigration proceedings.*fn14

On or about July 15, 2002, Alaka filed this petition for habeas corpus. On July 28, 2002, the Board of Immigration Appeals vacated Judge Durling's March 12, 2002 order that released Alaka on $2500 bond.*fn15 Finally, on August 8, 2002, a hearing was held before Immigration Judge Durling to address Alaka's withholding of removal and Convention Against Torture claims.*fn16

• Procedure under the Immigration and Naturalization Act

As any foreign traveler can attest, passengers arriving into the United States through an international airport terminal must pass through a United States Immigration Service checkpoint before entering the country. All incoming passengers are separated into two lines*fn17: one line for citizens, nationals*fn18 and lawful permanent residents,*fn19 the second line for arriving aliens.*fn20

In the first line, ordinarily, citizens, nationals and lawful permanent residents, whose credentials are in order, merely show their passports and are immediately admitted into the country without further ado. If the trip was short and the permanent resident has not committed certain proscribed acts, a lawful permanent resident alien does not have to demonstrate he or she is admissible each time he or she seeks to return after a trip outside the country.*fn21

On the other hand, in the second line, each time an arriving alien seeks to enter the United States, he or she must satisfy the INS at the airport that he or she is admissible.*fn22 Arriving aliens seeking admission must be inspected (interviewed) by an INS agent. If the arriving alien falls within a statutory category of admission*fn23 and is clearly admissible, the alien is permitted to enter the United States. All other arriving aliens are at least temporarily detained in order to determine their status; that is, whether they must be immediately returned to their origin ("expedited removal") or permitted to remain in the United States pending proceedings to determine if admissible (what I will call "regular removal").

Although lawful permanent residents begin in the same line as citizens, an INS officer will treat a lawful permanent resident as an arriving alien*fn24, if that lawful permanent resident has committed certain proscribed acts.*fn25 The lawful permanent resident is, in effect, bumped into the arriving alien line. At this point, the permanent resident must undergo an inspection as though an arriving alien. The permanent resident is then scrutinized by an Immigration Officer to determine whether or not he or she is admissible or inadmissible in the same manner as any other arriving alien.

If an arriving alien falls within one of the categories of "inadmissible" aliens, the arriving alien will be deemed inadmissible. Categories of inadmissibility include certain diseases of "public health significance," likelihood of becoming a public charge, commission or conviction of certain crimes, moral grounds such as prostitution, ideological grounds such as totalitarian or Communist party membership, prior immigration violations, or terrorist activity.*fn26 Most importantly, any alien convicted of committing a crime of moral turpitude will be deemed inadmissible.*fn27 Bank fraud, as a crime involving fraud, is a crime of moral turpitude for purposes of INA § 212(a)(2).*fn28

If an immigration officer determines that an arriving alien (including, of course, those lawful permanent residents transferred to the arriving alien line because they have committed certain proscribed acts) is not clearly admissible, the alien is placed into one of two types of removal proceedings: "expedited removal" or "regular removal".

A person who has no documents, or what appear to be false or invalid documents, is routed to "secondary inspection" for more extensive questioning as a candidate for expedited removal. If the questioning and documentation indicate that the arriving alien should be removed from this country immediately, the secondary officer can order removal, subject only to a supervisor's approval. This is expedited removal.*fn29 Expedited removal means that travelers who arrive at United States airports encounter INS officers who can literally put them on the next plane out of the United States or detain them until such removal.

Those arriving aliens not subject to expedited removal are placed in removal proceedings before an immigration judge ("regular removal").*fn30 Under INS regulations, verified lawful permanent residents are never subject to expedited removal. See, 8 C.F.R. § 235.3(b)(5)(ii).*fn31 They are placed in regular removal proceedings before an immigration judge.*fn32

Furthermore, two sets of removal grounds exist: inadmissibility and deportability.*fn33 Any alien can be "removed" because he or she is ineligible for admission to the United States ("inadmissible"), or because he or she has violated the terms of his or her status or committed proscribed acts after having been admitted to the United States ("deportable").*fn34 The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 modified several key concepts and procedures for removal of aliens who were placed in removal proceedings on or after April 1, 1997. IIRIRA renamed "excludability" grounds as "inadmissibility" grounds. "Deportability" grounds retained the same title. Although IIRIRA retained two sets of removal grounds, IIRIRA eliminated the separate proceedings for exclusion and deportation, substituting uniform removal proceedings under INA § 240a.*fn35 Once an alien is placed in regular removal proceedings, he or she may, at least temporarily, be detained.*fn36

• How the Immigration and Naturalization Act Procedures Impact Alaka

When Alaka arrived in the international terminal at John F. Kennedy Aiport she proceeded through Immigration. As a returning lawful permanent resident, it is reasonable to assume she was initially directed to the line for citizens, nationals and lawful permanent residents. Upon inspection of her credentials, the INS officials discovered Alaka had an outstanding federal warrant for a probation violation. This presumably triggered the transfer of Alaka from the line for citizens and lawful permanent residents to the line for arriving aliens. Once in the line for arriving aliens, Alaka was subject to inspection. It was then discovered that this outstanding bench warrant emanated from a 1992 conviction for bank fraud.*fn37

Because the crime of bank fraud is a crime of moral turpitude, once in the arriving alien line, Alaka was detained as inadmissible.*fn38 Thus, as a result of her conviction of a crime of moral turpitude, the INS classified Alaka as an arriving alien required to apply for admission into the country, despite her status as a lawful permanent resident.

Designated as an inadmissible alien, Alaka then became subject to removal.*fn39 Once Alaka became subject to removal it had to be determined whether she was subject to expedited removal or regular removal. Alaka's status as a lawful permanent resident prevents her from expedited removal. Therefore, Alaka is subject to regular removal proceedings pursuant to INA § 235(b)(2).*fn40 Under INA § 235(b)(2)(A)*fn41, once Alaka was classified as an inadmissible arriving alien subject to removal, the INS was authorized to detain her.

Now that she is being detained, Alaka requests an individualized hearing where she can show that she does not pose a flight risk or danger to the community. In other words, Alaka claims she is entitled to a hearing to determine if bond is appropriate (what I will call a "bond hearing").*fn42

• Bond

Three recent decisions, one from the United States Supreme Court and two from the Third Circuit Court of Appeals, address the issue of whether a detained alien is entitled to a bond hearing. In 1999, the Third Circuit dealt with an alien who had received a final order of exclusion but was still in detention after four years because his native country would not accept him.*fn43 Chi Thon Ngo v. INS, 192 F.3d 390 (3d. Cir. 1999) Despite the fact that Ngo was an excludable alien rather than a deportable alien,*fn44 the Third Circuit counseled that "[w]hen detention is prolonged, special care must be exercised so that confinement does not continue beyond the time when the original justifications for custody are no longer tenable." Ngo, 192 F.3d at 398. The Third Circuit held that "measures must be taken to assess the risk of flight and danger to community on a current basis" and that "grudging and perfunctory review is not enough to satisfy the due process right to liberty, even for aliens." Id.

In 2001, the Supreme Court examined the constitutionality of indefinite post-removal-order detention of a former lawful permanent resident alien who had received a final order of deportation but remained in INS custody pursuant to INA § 241(a)(6)*fn45 because the government was unable to effectuate the detainee's removal to another country.*fn46 Zadvydas v. Davis, 533 U.S. 678 (2001).*fn47 The Court construed the statute to limit post-removal-order detention to a period reasonably necessary to bring about the alien's removal, generally no more than six months. Zadvydas, 533 U.S. at 701. Recognizing that immigration detention implicates a fundamental liberty interest, the Court stated that a "statute permitting indefinite detention of an alien would raise a serious constitutional problem." Zadvydas, 533 U.S. at 701.

In Patel v. Zemski, 275 F.3d 299 (3d. Cir. 2001), the Third Circuit interpreted the Supreme Court's holding in Zadvydas and the Third Circuit's holding in Ngo to cover the case of a lawful permanent resident alien who was being detained pursuant to INA § 236(c)*fn48 pending a final removal determination following his conviction of a crime constituting an "aggravated felony." As a result of his conviction, the INS found Patel subject to mandatory detention under INA § 236(c),*fn49 precluding the right to bond. Patel filed a writ of habeas corpus contesting his detention. He claimed that his detention without any opportunity for an individualized determination of his risk of flight or danger to the community violated both his substantive due process and procedural due process rights to be free from restraint of liberty. Examining Patel's detention in light of the Supreme Court's recent decision in Zadvydas, the Third Circuit held that:

"[m]andatory detention of aliens after they have been found subject to removal but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded the opportunity for an individualized hearing at which they can show that they do not pose a flight risk or danger to the community."

Patel, 275 F.3d at 314. See also United States v. Radoncic, 28 Fed. Appx. 113 (3d. Cir. Jan. 4, 2001), petition for cert. filed, 70 U.S.L.W. 3642 (U.S. April 4, 2002) (No. 01-1459) (not precedential).

The issue before me is covered by the teachings of Ngo and Zadvydas and controlled by their offspring, Patel. The comparison of facts in each case is outlined in this chart.

Zadvydas Ngo Patel Alaka

Former lawful Not a lawful Remains lawful Remains lawful permanent permanent permanent permanent resident resident*fn50 resident resident

Post-removal Post-removal Pre-removal Pre-removal order order order order

Subject to Subject to Subject to Subject to removal removal because removal removal because of of criminal because of because of criminal conviction criminal criminal conviction conviction conviction

Admitted into Paroled into Admitted into Detained upon United States. United States. United States. arrival in Detained while Detained while Detained while US after present in US. present in US. present in US. return from trip abroad.

Like Patel, Alaka is a lawful permanent resident in the throes of the regular removal process under INA § 240a.*fn51 Like Patel, although Alaka has been deemed removable, she has not yet been ordered removed. Finally, like Patel, Alaka is being detained pending the outcome of the removal process because she has a criminal conviction rendering her removable. But the case for Alaka receiving a bond hearing is even stronger than that of Patel. Patel was held pursuant to the mandatory detention provisions of § 236(c) of the Act due to a criminal conviction rendering him removable.*fn52 Alaka is being held pursuant to the detention provisions of § 235(b)(2) of the Act due to a criminal conviction rendering her removable.*fn53 Unlike the express language of INA § 236(c) at issue in Patel, where Congress clearly intended the mandatory detention of criminal aliens during the removal process, nothing in the plain language of INA § 235(b)(2) indicates that Congress authorized mandatory detention without the opportunity for a bond hearing in this case. INA § 235(b)(2) only states that an alien "shall be detained" for a regular removal proceeding under INA § 240a*fn54.

The only one difference between Alaka and Patel, is that Patel was apprehended in the United States, whereas Alaka was apprehended in the airport after returning from a trip abroad. This distinction is of no consequence. Once in regular removal proceedings, there is no difference between Alaka and Patel.*fn55 Both are entitled to a bond hearing regardless of how they came to be placed in regular removal. There is no rationale for an alien in regular removal proceedings to be entitled to bond when the ground for removal is deportability, but prohibited bond when the ground for removal is inadmissibility. As previously explained, once an alien is in removal proceedings, the distinction between deportation and inadmissibility is no longer cognizable under the Act. The Immigration and Naturalization Act now refers to "inadmissible" aliens in the place of "excludable" aliens. Although there are still separate grounds of "inadmissibility" and "deportability", the former distinction between "exclusion" and "deportation" proceedings has been dropped in favor of one procedure, "removal".*fn56 Except for certain inadmissible aliens who are subject to an expedited removal procedure,*fn57 the amended Act now uses regular removal proceedings as the general procedure for both inadmissible and deportable aliens.*fn58

The Third Circuit's rationale in Patel is sufficiently broad to encompass those lawful permanent resident aliens in regular removal proceedings, such as Alaka, who are otherwise classified as "arriving aliens" under § 101(a)(13)(c) of the Act.*fn59 Patel mandates that due process requires "an individualized inquiry into the reasons for detention." Patel, 275 F.3d at 311 (3rd Cir. 2001). The Government contends that Alaka already received such an independent review when she applied for parole. Due process is not satisfied, however, by rubberstamp denials of release based on a cursory review of an alien's file.*fn60 The District Director of the INS denied Alaka's request in a letter. The Director simply ticked boxes stating Alaka presented a high risk of flight and a threat to the community. The Director also ticked a mysterious third box, indicating "other" reasons for the decision denying parole.*fn61 Under Patel, the right to a bond hearing is constitutionally required. There is nothing in Patel to suggest that anything less satisfies this requirement.

In Ngo, the Third Circuit granted a bond hearing to a post-removal-order alien who was excluded from the country. In Zadvydas, the Supreme Court granted a bond hearing to a post-removal-order former lawful permanent resident who was ordered to be deported from this country as a result of their criminal convictions. Finally, in Patel the Third Circuit held that a lawful permanent resident detained while in regular removal proceedings is entitled to a bond hearing.*fn62 The facts in these cases make it clear that Third Circuit jurisprudence requires that a bond hearing be offered to Alaka. The detention of lawful permanent resident arriving aliens after they have been found subject to removal but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded the opportunity for an individualized hearing at which they can show that they do not pose a flight risk or a danger to the community.


AND NOW, this day of October 2002, upon consideration of the petition for writ of habeas corpus, it is ORDERED that:

(1) The Petition for Writ of Habeas Corpus (Docket Entry #1) is Granted and remanded to the Immigration Judge for a bond hearing.*fn63

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