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ARRIOLA-ARENAS v. RIDGE

May 26, 2004.

YURI BADIM ARRIOLA-ARENAS
v.
TOM RIDGE, Secretary of Homeland Security, et al



The opinion of the court was delivered by: STEWART DALZELL, District Judge

ORDER

AND NOW, this 26th day of May, 2004, upon consideration of Yuri Badim Arriola-Arenas's petition for a writ of habeas corpus brought under 28 U.S.C. § 2241 (docket entry # 1) and the Government's response thereto, and the Court finding that:

(a) Arriola-Arenas is a native of Guatemala and a lawful permanent resident of the United States;

  (b) In the course of removal proceedings based on his convictions for robbery and offensive touching, Immigration Judge Walt Durling ruled on March 5, 2004 that Arriola-Arenas was eligible for both a waiver and cancellation of removal, see In re Arriola-Arenas, No. A36487736, mem. op. at 6 (E.O.I.R. Mar. 5, 2004) (Durling, I.J.);

  (c) On March 9, 2004, the Bureau of Immigration and Customs Enforcement ("BICE") appealed this ruling to the Bureau of Immigration Appeals ("BIA"), and the BIA ordered Arriola-Arenas's detention without bond during the pendency of the appeal pursuant to 8 U.S.C. § 1226(c)(1) (B), which mandates the detention of an alien who is removable on the basis of an aggravated felony;

  (d) Arriola-Arenas then filed the § 2241 petition now before us; (e) The petition first contends that BICE's decision to appeal IJ Burling's decision violates the Double Jeopardy and Due Process Clauses of the Fifth Amendment;

  (f) We lack jurisdiction even to consider this argument because Arriola-Arenas is not under a final order of removal and the proceedings before the BIA may well moot his constitutional challenge, Duvall v. Elwood, 336 F.3d 228, 232-233 (3d Cir. 2003);

  (g) Arriola-Arenas next argues that his detention pending appeal violates the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment*fn1;

  (h) In Demore v. Kim, 538 U.S. 510, 531 (2003), the Supreme Court rejected the argument that the mandatory detention of a criminal alien during removal proceedings violates due process;

  (i) Arriola-Arenas's Eighth Amendment argument also lacks merit;

  (j) The Supreme Court has held that "when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, . . . the Eighth Amendment does not require release on bail", United States v. Salerno, 481 U.S. 739, 754-55 (1987);

  (k) The safety of the community is one such "compelling interest", id. at 753, and thus the mandatory detention of criminal aliens during removal proceedings does not violate the Eighth Amendment*fn2, Marogi v. Jenifer, 126 F. Supp.2d 1056, 1061-62 (E.D. Mich. 2000); Avramenkov v. INS, 99 F. Supp.2d 210, 218 (D. Conn. 2000); Reyes v. Underdown, 73 F. Supp.2d 653, 658 (W.D. La. 1999);

  It is hereby ORDERED that:
1. The petition is DENIED; and
2. The Clerk of Court shall CLOSE ...

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