§§ 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.
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 1478 n. 4) (emphasis added).