St. John, 1995 U.S. Dist. LEXIS 18863, *19, 1995 WL 753936, at *6-*7. In my December 18 Opinion, I did not definitively resolve either of these questions, but noted simply that, because the INS had not submitted sufficient argument as to the former, and had not briefed the latter, the INS had not borne its burden of convincing me that remand would be futile. Id.
Now the INS had submitted further briefing on both of these questions. For the moment, I assume arguendo that St. John's Bermuda conviction counts as an "aggravated felony" conviction under § 236(e), despite the facts (1) that the conviction is based on conduct that occurred when St. John was a juvenile, and (2) that therefore federal jurisdiction over the offense would have been discretionary, had St. John been prosecuted in the United States.
Even on this assumption, the INS has still not persuaded me that § 236(e) is constitutional under the due process clause, as applied to permanent resident aliens like St. John.
St. John, 1995 U.S. Dist. LEXIS 18863, 1995 WL 753936, at *7. The Kellman opinion in this district held that Congress cannot constitutionally render a permanent resident alien in deportation proceedings ineligible for bail, on the basis of an aggravated felony conviction alone, without a case-by-case determination of suitability for release on bail. Kellman v. District Director, United States Immigration and Naturalization Service, 750 F. Supp. 625 (S.D.N.Y. 1990) (holding unconstitutional then-applicable version of INA § 242(a)(2), 8 U.S.C. § 1252(a)(2)).
To do so, Kellman held, was to improperly impute a purpose to injure society to all aliens who, having served sentences for aggravated felonies, were subject to deportation, thereby creating an irrebuttable presumption of bad motive -- regardless of the nature of the crime the alien had committed, the alien's conduct while imprisoned, or any other, relevant fact special to the alien seeking parole. Id. at 628.
Kellman's reasoning is directly applicable to § 236(e). Like the deportation statute that was effective when Kellman was decided, § 236(e) imputes a purpose to injure society to all detained aliens with aggravated felony convictions, regardless of the circumstances of the individual case.
The INS contends, however, that Kellman is inapplicable here because St. John is in exclusion, not deportation, proceedings. To support its argument, the INS points to case law upholding the application of § 236(e) in exclusion proceedings, despite due process challenges. Yet all of the cases the INS cites involve refugees applying for asylum, not returning permanent resident aliens like St. John. See, e.g., Gisbert v. United States Attorney General, 988 F.2d 1437 (5th Cir. 1993) (case of "Mariel Cuban" who was an excluded, non-naturalized refugee and who did not challenge exclusion order); Alvarez-Mendez v. Stock, 941 F.2d 956 (9th Cir. 1991) (case of "Mariel Cuban" who was a non-naturalized refugee subject to final exclusion order), cert. denied sub nom. Alvarez-Mendez v. Henry, 506 U.S. 842 (1992); Fernandez-Roque v. Smith, 734 F.2d 576 (11th Cir. 1984) (case of "Mariel Cuban" who was a non-naturalized refugee); Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (en banc) (case of Haitian aliens who were detained in Florida and sought asylum), aff'd, 472 U.S. 846, 86 L. Ed. 2d 664, 105 S. Ct. 2992 (1985).
The INS's analogy between cases involving asylum applicants, who never were vested with due process rights, and this case, which involves a returning lawful permanent resident, who still possesses due process rights, is highly questionable. As the Supreme Court made clear in Landon v. Plasencia, 459 U.S. 21, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982), returning permanent resident aliens possess greater due process rights than do aliens seeking initial admission to the United States, due to their greater ties to this country. Id. at 32.
Moreover, the reasoning of the refugee cases the INS cites is inapposite in the case of a returning permanent resident alien. The refugee cases cited by the INS hold that an entering alien who has no constitutional right to admission also has no right to an adjudication as to whether he or she should be paroled. See, e.g., Gisbert, 988 F.2d at 1442; Alvarez-Mendez, 941 F.2d at 963; Fernandez-Roque, 734 F.2d at 582; Jean, 727 F.2d at 971-72. This inference is based on a similarity between an entering alien's parole, and an entering alien's admission into the United States. See Fernandez-Roque, 734 F.2d at 582 (because "parole is part of the admissions process. . . its denial or revocation does not rise to the level of a constitutional infringement"); see also Jean, 727 F.2d at 971-72 ("the immediate implications of parole and legal admission are identical in a number of important respects"). Thus, the cases the government cites directly hold only that § 236(e) is constitutional as applied to an asylum applicant. Yet, unlike a refugee, a returning lawful permanent resident such as St. John has a right to be admitted to the United States, unless she is determined to be excludable.
As Judge Sweet aptly reasoned in Kellman, with regard to the then-applicable deportation statute:
the precise problem with [a statute allowing aliens with aggravated felony convictions to be held without bail is that the alien] is denied an opportunity for a bail hearing during the time in which he is contesting his [immigration status]. If he succeeds in his challenge, then he will perforce be outside the bounds of [the statute], and thus should not have been held without bail in the first place.