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March 4, 1996

THERESA ST. JOHN, Petitioner, against EDWARD J. MCELROY, Assistant District Director, Deportation, Immigration and Naturalization Service, New York District Office, Respondent.

The opinion of the court was delivered by: WOOD



 Petitioner Theresa St. John ("St. John"), a lawful permanent resident alien, is currently detained by the Immigration and Naturalization Service ("INS"), pending a final determination by the Board of Immigration Appeals ("BIA") as to whether she may be excluded from the United States due to her Bermudian drug conviction, based on acts committed while she was a juvenile. St. John contends that the procedures applied by the INS at her parole hearing were insufficient to satisfy Fifth Amendment due process requirements. I agree, and I therefore remand for a second parole hearing before an immigration judge.

 I. Background

 On December 18, 1995, this court issued an Opinion directing the INS to grant St. John a parole hearing, as required by the due process clause. See St. John v. McElroy, 95 Civ. 9810 (KMW), 1995 U.S. Dist. LEXIS 18863, 1995 WL 753936 (S.D.N.Y. December 18, 1995) (the "December 18 Opinion").

 On December 22, 1995, the INS conducted a parole hearing for St. John, which resulted in a December 29, 1995, written decision (the "INS Decision") denying her parole application.

 On January 23, 1996, this court issued a second Opinion and Order, which was subsequently amended on February 6, 1996. See St. John v. McElroy, 95 Civ. 9810 (KMW), 1996 WL 49956 (S.D.N.Y. February 6, 1995) (the "February 6 Opinion"). The February 6 Opinion -- originally, and as amended -- enjoined the INS (1) to provide St. John with access to her medical records, and (2) to allow an independent physician to examine St. John. *fn1"

 II. Analysis

 A. Whether St. John Is Statutorily Ineligible For Parole

 In considering the question whether the hearing conducted on remand satisfied procedural due process, I first consider the INS's argument that St. John was not entitled to any process at all, with regard to her parole determination, because she is statutorily ineligible for a parole grant. See § Immigration and Nationality Act ("INA") § 236(e), 8 U.S.C. § 1226(e); see also INS Decision, pp. 3-4. Section 236(e) states that an alien with an "aggravated felony" conviction "shall" be detained unless certain circumstances, not applicable here, exist.

 The INS did not cite § 236(e) as a ground for initially denying St. John parole without a hearing. However, when St. John sought a parole hearing from this court, counsel for the INS argued that, due to § 236(e), remand for a parole hearing would be futile.

 In my December 18 Opinion, I declined to hold that a hearing would be futile, because I remained in doubt as to (1) whether St. John's Bermuda conviction, based on acts committed when she was a juvenile, constituted an "aggravated felony" conviction, and (2) whether § 236(e) is constitutional, under the due process clause, as applied to permanent resident aliens such as St. John. See 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. *fn2" 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)). *fn3" 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 ...

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