The opinion of the court was delivered by: Leisure, District Judge.
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