United States District Court, Southern District of New York
October 19, 1990
U.S. EX REL. JEAN YVONNE CHUNG, PETITIONER,
RICHARD THORNBURGH, ATTORNEY GENERAL OF THE UNITED STATES, GENE MCNARY, COMMISSIONER, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, WILLIAM SLATTERY, DISTRICT DIRECTOR, NEW YORK DISTRICT, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, AND ALAN PAGE, IMMIGRATION JUDGE, EXECUTIVE OFFICE OF IMMIGRATION REVIEW, RESPONDENTS.
The opinion of the court was delivered by: Leisure, District Judge.
ORDER & OPINION
Petitioner, Jean Yvonne Chung, ("Chung" or "petitioner"), an
alien currently held in custody pending deportation proceedings,
is before the Court seeking a writ of habeas corpus. Chung is
being held without bail as an aggravated felon under the "no
bail" provisions of 8 U.S.C. § 1252(a)(2). Petitioner asks that
the Court issue a writ of habeas corpus requiring her immediate
release, or, in the alternative, a bond hearing under
8 U.S.C. § 1252(a)(1), as well as declarations that she is not an
"aggravated felon" within the meaning of the statute, and that
section 1252(a)(1) is unconstitutional.
Under the Immigration and Nationality Act (the "Act"),
8 U.S.C. § 1101 et seq., the Attorney General has the power to deport
aliens who are convicted of crimes in the United States. Id. §
1251. As a necessary corollary to that power, the Act also
provides the Attorney General with the authority to detain aliens
while deportation proceedings are pending. 8 U.S.C. § 1252(a)(1)
(formerly 8 U.S.C. § 1252(a)) gives the Attorney General
discretionary power to retain the alien in custody while awaiting
the deportation hearing, or to release the alien on bond or on
conditional parole. In addition, subsection (a)(1) provides any
court of competent jurisdiction with the authority to review or
revise such custody determinations if the Attorney General is not
"proceeding with such reasonable dispatch as may be warranted by
the facts of the case."
Section 1252(a)(2) provides that "[t]he Attorney General shall
take into custody any alien convicted of an aggravated
felony*fn1 upon completion of the alien's sentence for such
conviction. . . . [T]he Attorney General shall not release such
felon from custody." It is this section, which removes the
discretion of the Attorney General to grant bail in the case of
an aggravated felon, that petitioner asserts is either
inapplicable to her case or unconstitutional.
Petitioner, Jean Yvonne Chung ("Chung" or "petitioner"), is a
forty-three year old female alien, native and citizen of Jamaica.
Although admitted to the United States for lawful and permanent
residence only as of August 1986, Chung has continuously resided
in the United States since her first arrival in 1969. Chung is
the wife of a lawful permanent resident and the mother of nine
children, eight of whom are United States citizens.
On December 14, 1989, Chung was convicted in the Circuit Court
of Petersburg, Virginia for possession of six grams of cocaine in
violation of section 18.2-248 of the Virginia State Criminal
Code. She was sentenced to a term of 10 years imprisonment, five
years of which were suspended. On June 29, 1990, Chung was
released by Virginia authorities and taken into custody by the
INS pursuant to an administrative order to show cause, charging
her with deportability under 8 U.S.C. § 1251(a)(4)(B) and
1251(a)(11), because she had been convicted of an aggravated
felony.*fn2 On July 10, 1990, petitioner was served with an INS
form I-261, apprising her that she was to be detained without
bond and deported. That same day, petitioner appeared before
Immigration Judge Paul Nagelski in Arlington, Virginia, who
granted her motion for a change of venue and transferred the case
to the Immigration Court in New York.
On August 9, 1990, Immigration Judge Alan Page denied
petitioner's application for a bond redetermination pursuant to
section 1252(a)(1). Holding that Chung is an "aggravated felon"
as defined in section 1101(a)(43), Judge Page ruled that section
1252(a)(2) mandated her incarceration without bail.
On August 16, 1990, petitioner appealed Judge Page's "no bail"
ruling to the Board of Immigration Appeals ("Board" or "BIA"). On
that same day, a tape recording of Chung's bond hearing was sent
for transcription processing to the United States Department of
Justice, Executive Office of Immigration Review in Falls Church,
Virginia. Government's Memorandum of Law in Opposition to
Petition for Writ of Habeas Corpus (hereinafter "Government
Mem."), at 5. On August 29, 1990, the Office of Management and
Administration received the cassette tapes. Supplemental
Declaration of James A. O'Brien III (hereinafter "O'Brien Supp.
Dec.") ¶ 3. On September 4, 1990, the cassettes were delivered to
a private transcription company, and, according to the
government, were not returned until October 2, 1990.*fn3 On
October 3, 1990, copies of the transcript were mailed by first
class postage to the Executive Office of Immigration Review in
New York City. O'Brien Supp. Dec. ¶ 5. On October 11, 1990, the
Office of the Immigration Judge received copies of the
transcript. On that day, the Office of the Immigration Judge
mailed copies of the transcript and the parties' briefs to the
BIA. The appeal is pending before the BIA.
On September 13, 1990, after a hearing on the charges of
deportability, Chung was ordered deported from the United States
by Immigration Judge Page. Government Mem. at 6. Petitioner
appealed that decision to the BIA on September 14, 1990. Id.
That appeal is also pending. Pursuant to INS policy, Ms. Chung is
presently incarcerated at Wicomico Correctional Facility in
Salisbury, Maryland, until the issuance of a final order of
Petitioner argues that she is not an "aggravated felon" within
the meaning of section 1101(a)(43), and therefore not subject to
the "no bail" provisions of section 1252(a)(2). Petitioner
further argues that section 1252(a)(2) is facially defective
because it violates the substantive and procedural due process
clauses of the Fifth Amendment, as well as the Eighth Amendment
prohibition against unreasonable bail.*fn4
Respondents dispute petitioner's arguments and also contends
that the petition is not properly before the Court at this time
because petitioner has not fully exhausted
her administrative remedies. Plaintiff argues that she need not
exhaust her administrative appeals because the government has not
proceeded with reasonable dispatch, and because such appeal would
I. Standard for Review
As a threshold matter, it is necessary to consider which
statute provides the standard for review of custody
determinations made pursuant to 8 U.S.C. § 1252(a). Petitioner
invokes the jurisdiction of the Court under 28 U.S.C. § 2241,
which is the general provision for habeas relief for federal
prisoners, and 8 U.S.C. § 1105a(a)(9), which permits aliens held
in custody pending deportation proceedings to seek judicial
review through habeas corpus proceedings. Neither statute
explicitly requires exhaustion of administrative remedies.
As a general matter, however, "[i]t is now well established
that a federal prisoner must exhaust available administrative
remedies before seeking habeas corpus relief in the district
courts." Masselli v. United States Parole Commission,
631 F. Supp. 1442, 1445 (S.D.N.Y. 1986) (citing Guida v. Nelson,
603 F.2d 261, 262 (2d Cir. 1979) (per curiam)).
Several reasons underlie this rule, as Masselli found:
(1) judicial review may be facilitated by allowing
the appropriate agency to develop a factual record
and apply its expertise, (2) judicial time may be
conserved because the agency might grant the relief
sought, and (3) administrative autonomy requires that
an agency be given an opportunity to correct its own
Id. at 1445 (quoting Arias v. United States Parole
Commission, 648 F.2d 196, 199 (3d Cir. 1981)).
Moreover, courts that have considered the issue have concluded
that the language of section 1252(a) controls judicial review of
custody determinations concerning aliens held under that section,
and that, to the extent that 28 U.S.C. § 2241 and
8 U.S.C. § 1105a might provide less stringent requirements, review under
those standards is inappropriate.
The District Court for the Northern District of California held
that "[t]o allow review under section 2241 without regard to the
applicability of section 1252(a) would effectively eliminate the
requirement that a party seeking review of a parole decision show
that the INS is not moving with `reasonable dispatch.'"
Gutierrez v. Ilchert, 682 F. Supp. 467, 470 (N.D.Ca. 1988).
Similarly, the District Court for the District of Connecticut,
stated that "it is clear that Congress, by enactment of the
process for deportation matters and specifically
8 U.S.C. § 1252(a), did not intend a dual procedure for persons subject to
deportation." Massoumi-Demaghi v. Weiss, 631 F. Supp. 1525, 1526
(D.Conn. 1986). This court agrees that review of the Attorney
General's custody determination is controlled by the provisions
of 8 U.S.C. § 1252(a)(1).
II. Requirement of Exhaustion of Administrative Remedies
Courts construing the requirements of section 1252(a) have
required exhaustion of administrative remedies. See, e.g.,
Massoumi-Demaghi, 631 F. Supp. at 1526. In addition, application
of the "exhaustion" rule in this case is consistent with the
policies underlying the doctrine. As respondents argue, judicial
time may be conserved because the application and
constitutionality of the statute might never come before the
Court if petitioner is successful on appeal to the BIA. Moreover,
respondents contend, allowing petitioner's appeal to proceed to
the Board will give BIA an opportunity to reconsider its policies
in light of the recent decision in Leader v. Blackman,
744 F. Supp. 500 (S.D.N.Y. 1990), in which Judge Goettel found section
Petitioner argues that she is not required to exhaust her
administrative remedies before seeking judicial review because
the government has intentionally delayed her appeal to the BIA.
While petitioner is correct that unreasonable delay on the part
of the government would entitle
her to judicial review, section 1252(a)(1) requires a
"conclusive showing in habeas corpus proceedings that the
Attorney General is not proceeding with . . . reasonable dispatch
. . . to determine deportability." 8 U.S.C. § 1252(a)(1)
In this case, petitioner's appeal has been pending during the
process of transcription of the proceedings below and the
progress of the transcript from one government office to another,
a delay amounting to some 57 days. Although, as petitioner points
out, the transcript was forwarded to the BIA within two days of
the filing of this petition, petitioner has not made a conclusive
showing that the delay was either intentional or unreasonable
given institutional limitations. In addition, the Court notes
that the government has proceeded expeditiously with the
deportation hearing itself, as required under 8 U.S.C. § 1252a.
Petitioner also makes the unsupported contention that pursuit
of administrative appeal would be "futile." The Court agrees with
respondents that the BIA should be given the opportunity to
consider whether Immigration Judge Page properly found Chung to
be an "aggravated felon," as well as the constitutionality of
section 1252(a)(2) and of its own policies in interpreting and
implementing the statute. Accordingly, the Court need not reach
these issues at this time.
Should the BIA affirm the decision of the Immigration Judge,
however, or should the progress of petitioner's appeals before
the BIA be such that petitioner can make a conclusive showing of
unreasonable delay in the resolution of her case, the
jurisdiction of this Court would be properly invoked.
The petition of Jean Yvonne Chung is denied without prejudice
to refiling upon exhaustion of her administrative remedies, or
upon a conclusive showing of unreasonable delay by the Attorney
General in proceeding with her case.