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November 6, 1990


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


Terry Winfield Kellman ("Kellman") has petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Kellman is currently being held under detention by the Immigration and Naturalization Service ("INS") while awaiting the outcome of deportation hearings. He has challenged the constitutionality of Section 242(a)(2) of the Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. § 1252(a)(2),*fn1 under which he has been denied the opportunity for a bail hearing. For the following reasons, the statute is held to be unconstitutional and the writ will issue unless the required bearing is held.


Kellman, a native of Barbados, West Indies, was admitted to the United States as a permanent resident alien in 1980. For the past ten years, Kellman has lived and worked in New York City. In January, 1989, Kellman pled guilty in New York State Supreme Court to one count of attempted criminal sale of a controlled substance in the third degree in violation of §§ 110.00 et seq. and 220.39 of the New York Penal Law. Following his plea, Kellman was sentenced to a prison term of one to three years.

Kellman was paroled from state custody in March of this year, at which time he was arrested by the INS and held for deportation pursuant to sections 241(a)(4)(B) and 241(a)(11) of the Act.*fn2 The INS claimed that Kellman's state criminal conviction satisfied the "aggravated felony" requirement of § 241(a)(4)(B). Initially, Kellman was detained without bond, and although a bond redetermination hearing was later held, the Immigration Judge who presided over that hearing denied Kellman's petition for release based solely on § 242(a)(2) and its requirement that "the Attorney General shall not release from custody" any aggravated felon awaiting deportation.

Kellman's original petition for habeas corpus relief under 28 U.S.C. § 2241 challenged only the INS's determination that he was an "aggravated felon" within the meaning of the INA. While Kellman conceded that his state conviction could form a basis for deportation under § 241(a)(11), he argued that he should not have been detained without bail under § 242(a)(2) while awaiting the deportation decision. After the government had responded to this argument, Kellman, through a letter to the court, raised the question of the constitutionality of § 242(a)(2). The government was directed to respond to this new claim, and the issue was fully submitted on October 5, 1990.


Aggravated Felony

Kellman challenges the INS determination that he is an aggravated felon, because he was convicted of violating a state narcotics law rather than the Controlled Substance Act. However, Kellman does not assert that he could not have been prosecuted under federal law for his behavior. The state statute which he was convicted of attempting to violate, New York Penal Law § 220.39 is substantially similar to 21 U.S.C. § 841(a)(1), which makes it a federal crime to "knowingly or intentionally . . . distribute, or dispense, or possess with intent to . . . distribute, or dispense a controlled substance." Although Kellman was not in fact convicted of violating the Controlled Substance Act, his conduct was "punishable under" that statute, and thus constituted a drug trafficking crime qualifying him as an aggravated felon under the INA. See Leader v. Blackman, 744 F. Supp. 500, 504 (S.D.N Y 1989) (attempted violation of same New York law constituted aggravated felony under INA); In re Barret, No. A37-213-802 (Board of Immigration Appeals Nov. 7, 1989) (same result under comparable Maryland narcotics law).

Constitutionality of § 242(a)(2)

Recently, a number of courts have addressed the issue of whether § 242(a)(2)'s denial of bail to aggravated felons awaiting deportation offends the Constitution. In Davis v. Weiss, 749 F. Supp. 47 (D.Conn. 1990), Morrobel v. Thornburgh, 744 F. Supp. 725 (E.D.Va. 1990) and Eden v. Thornburgh, No. 90-1473-CIV-KEHOE (S.D.Fla. July 23, 1990) the statute was held to be a valid exercise of Congress' broad power to regulate the admission and exclusion of aliens. However, in five other decisions, Joe v. INS, No. 90-12313-Z-20, 1990 WL 167457 (D.Mass. Oct. 26, 1990); Paxton v. INS, 745 F. Supp. 1261 (E.D.Mich. 1990); Agunobi v. Thornburgh, 745 F. Supp. 533 (N.D.Ill. 1990); Leader v. Blackman, supra, 744 F. Supp. 500 (S.D.N.Y. 1990) and Chao Yang v. INS, 3-90-CV-300 (D.Minn. June 27, 1990), § 242(a)(2) was found to violate the procedural and substantive due process rights of alien detainees. On balance, the analysis of the latter cases seems more persuasive, and where relevant, the reasoning of Leader is hereby adopted.

In Davis, Morrobel, and Eden, § 242(a)(2) was found to be constitutional based on the courts' use of a relaxed standard of review derived from an admittedly long line of Supreme Court cases involving challenges to immigration statutes. Primary among these is Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), in which the Court reaffirmed the principle that "congressional determinations [in immigration matters] are subject only to limited judicial review." Id. at 795-96 n. 6, 97 S.Ct. at 1479-80 n. 6. However, Fiallo recognized "a limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens." Id. at 793 n. 5, 97 S.Ct. at 1478 n. 5. Moreover, the Fiallo Court relied heavily on Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954), in which Justice Frankfurter specifically stated

  Policies pertaining to the entry of aliens and
  their right to remain here are peculiarly
  concerned with the political conduct of
  government. In the enforcement of these policies,
  the Executive Branch of the Government must respect
  the procedural safeguards of due process.

347 U.S. at 531, 74 S.Ct. at 743 (quoted in Fiallo, 430 U.S. at 792-93 n. 4, 97 S.Ct. at ...

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