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U.S. EX REL. CHUNG v. THORNBURGH

October 19, 1990

U.S. EX REL. JEAN YVONNE CHUNG, PETITIONER,
v.
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.

BACKGROUND

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 deportation.

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 be futile.

DISCUSSION

I. Standard for ...


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