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April 9, 1998

CHEONG WAI WONG, Petitioner,

The opinion of the court was delivered by: HURD


 Cheong Wai Wong ("Wong" or "petitioner") filed the instant petition for a writ of habeas corpus on April 2, 1996, pursuant to 28 U.S.C. § 2241. Wong alleges that he was denied a transfer to Canada on the basis of his race and national origin, in retaliation for exercise of constitutional rights, and that the denial was arbitrary, capricious and whimsical, in violation of the Fifth Amendment to the United States Constitution. Respondent denies that the decision regarding Wong's transfer was based upon his race and national origin, or that it was retaliatory. Respondent further argues that review is precluded by the Administrative Procedure Act and that Wong has no protected liberty interest in a discretionary transfer.


 On June 6, 1991, Wong was sentenced to 19 years and 6 months (235 months) incarceration after being found guilty of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846. Wong's base offense level of 36 was increased by two for obstruction of justice. His offense involved approximately 85 pounds of heroin. Wong is currently serving his sentence in the Federal Correctional Institution at Ray Brook, New York ("Ray Brook").

 Wong, who ancestry is Chinese, is a citizen of both Hong Kong and Canada. On September 18, 1992, Wong submitted an Application for Transfer to Canada. See Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, T.I.A.S. No. 10824, 22 I.L.M. 530 (entered into force July 1, 1985)(hereinafter "Convention on Transfer"). The Solicitor General of Canada approved Wong's application on November 4, 1994, and formally requested his transfer. On March 22, 1995, the United States Department of Justice denied the transfer request.

 Thereafter, Wong filed the instant petition alleging unconstitutional denial of his transfer based upon his Chinese ancestry. By Traverse filed on July 25, 1996, Wong set forth information regarding twelve persons transferred to Canada through Ray Brook in 1994, 1995, and 1996. These persons had offense levels of 36 or 38, had served 15 to 30% of their sentences at the time of transfer, and had been convicted of offenses involving large quantities of controlled substances. Petitioner alleged that none of the persons transferred were of Chinese ancestry. Petitioner thus showed a colorable claim of discrimination entitling him to discovery, which respondent provided, as ordered, on December 30, 1997. *fn1" See Rules Governing § 2254 Cases R.6; L.R. 72.4(a).


 A. Convention on Transfer

 The Convention on Transfer provides for transfer of sentenced persons to the countries of their citizenship in order to "further the ends of justice and the social rehabilitation of sentenced persons." Both the transferor state and the transferee state must approve the transfer. See Convention on Transfer Art. 3. Congress has authorized the Attorney General to transfer sentenced persons to the foreign country of which they are citizens or nationals. 18 U.S.C. § 4102(3). The Attorney General may delegate this authority to the Department of Justice, § 4102(11), and has done so, 28 C.F.R. §§ 0.64-2, 0.96b. Regulations governing international transfers prohibit transfer in certain specified circumstances, inapplicable here, but otherwise direct review and determination of the appropriateness of transfer without providing guidelines for such determination. See 28 C.F.R. §§ 0.64.2, 527.40-.44; Bagguley v. Bush, 293 U.S. App. D.C. 264, 953 F.2d 660, 662 (D.C. Cir. 1991)(transfer decision under treaty discretionary), cert. denied, 503 U.S. 995, 118 L. Ed. 2d 408, 112 S. Ct. 1698 (1992); Scalise v. Thornburgh, 891 F.2d 640, 649 (7th Cir. 1989)(same), cert. denied, 494 U.S. 1083, 108 L. Ed. 2d 945, 110 S. Ct. 1815 (1990).

 B. Propriety of Review--Administrative Procedure Act

 Respondent argues that the appropriate section of the Administrative Procedure Act, 5 U.S.C. § 701 (a)(2), precludes judicial review of a discretionary agency final decision, such as denial of a transfer request. While § 701(a)(2) does preclude judicial review of discretionary agency decisions, respondent's argument must fail because petitioner's claim is grounded in the constitution. When the allegation is of a constitutional violation, judicial review is available despite the general preclusion from review of discretionary decisions. Webster v. Doe, 486 U.S. 592, 603-05, 100 L. Ed. 2d 632, 108 S. Ct. 2047 (1988)(colorable claim that discretionary agency decision violated the Constitution is reviewable by district court despite § 701 of the Administrative Procedure Act); Argabright v. United States, 35 F.3d 472, 476 (9th Cir. 1994)(citing Horton Homes, Inc. v. United States, 936 F.2d 548, 554 (11th Cir. 1991)); see also Buckeye Cablevision, Inc. v. United States, 438 F.2d 948, 951-52 (6th Cir. 1971 )(court reviews constitutional challenge to final, nonreviewable agency decision); cf. Brawer v. Levi, 435 F. Supp. 534, 537-38 (S.D.N.Y. 1977)(if pro se complaint, styled as an action for review of agency decision under the Administrative Procedure Act, were read liberally to be an action under 28 U.S.C. § 2255, court could reach constitutional question; however, as a Bivens suit for constitutional deprivation it must be dismissed based upon prosecutorial immunity). Accordingly, the decision denying Wong's transfer request is reviewable to determine if the decision was based upon unconstitutional grounds.

 C. Liberty Interest Protected by Due Process

 Respondent argues that there could be no due process violation because petitioner has no liberty interest in transfer pursuant to the Convention on Transfer due to the discretionary nature of the transfer decision. Ordinarily where a decision is discretionary, it is held that no protected liberty interest exists. See Bagguley, 953 F.2d at 662; Scalise, 891 F.2d at 649. That is so because the liberty interest at stake is not grounded in the Constitution, but rather would have been created by the delimiting nature of statutes or regulations, see, e.g., Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989); Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983); Bagguley, 953 F.2d at 662; Scalise, 891 F.2d at 649.

 Liberty, as protected by the due process clause of the Fifth Amendment, is "not confined to mere freedom from bodily restraint," but "extends to the full range of conduct which the individual is free to pursue." Bolling v. Sharpe, 347 U.S. 497, 499, 98 L. Ed. 884, 74 S. Ct. 693 (1954). Discrimination based upon race is so unjustifiable that it violates the broad liberty interest protected by the due process clause of the Fifth Amendment, similar to the manner in which such discrimination violates the equal protection clause of the Fourteenth Amendment. See id. at 499-500.

 Accordingly, Wong is protected, by the due process clause of the Fifth Amendment, from a discriminatory denial of transfer based upon race or national origin. See id.; cf. Wade v. United States, 504 U.S. 181, 185-86, 118 L. Ed. 2d 524, 112 S. Ct. 1840 (1992)(discretionary decision to depart from sentencing guidelines may not be based upon unconstitutional motives such as race or religion); Batson v. Kentucky, 476 U.S. 79, 91, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)(peremptory challenge, historically free from judicial review, is unconstitutional when based upon race); United States v. Leung, 40 F.3d 577, 587-87 (2d Cir. 1994)(sentencing unconstitutional when alien status and ethnicity appeared to influence the sentence given); United States v. Edwardo-Franco, 885 F.2d 1002, 1005 (2d Cir. 1989)(conviction reversed where appearance of judicial bias based upon race and nationality). Similarly, he is protected from retaliation for the exercise of his constitutional rights. Prows v. Federal Bureau of Prisons, 981 F.2d 466, 468-69 n.3 (10th Cir. 1992), cert. denied, 510 U.S. 830, 126 L. Ed. 2d 65, 114 S. Ct. 98 (1993); see also Perry v. Sindermann, 408 U.S. 593, 595, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972)(retaliation for exercise of free speech); Smith v. Maschner, 899 F.2d 940, 948-49 (10th Cir. 1990)(retaliation for exercise of right to access the courts); cf. United States v. Stratton, 820 F.2d 562, 564 (2d Cir. 1987)(impermissible to enhance sentence for failure to cooperate, regardless of whether failure was due to exercise of right against self-incrimination).

 D. Merits of Petitioner's Claim

 1. Analytical Framework

 Analysis of a purposeful discrimination claim follows the burden shifting rules used under Title VII of the Civil Rights Act of 1964. Batson, 476 U.S. at 94 n.18 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); United States v. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983)). First, the alleged victim of discrimination must make out a prima facie case of discrimination. 476 U.S. at 93-94. Direct and circumstantial evidence may be used to support an inference of discriminatory purpose to meet the required prima facie showing. Id. Next, the burden shifts to the government to show a non-discriminatory reason for the action. Id. The ultimate burden of proving purposeful discrimination rests with the alleged victim. 476 U.S. at 94 n.18.

 Historical statistical data may give rise to an inference of discrimination sufficient to make out a prima facie case where, for example, "'a clear pattern, unexplainable on grounds other than race, emerges.'" Castaneda v. Partida, 430 U.S. 482, 493, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977)(quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977)); Hill v. Texas, 316 U.S. 400, 404, 86 L. Ed. 1559, 62 S. Ct. 1159 (1942)("chance or accident could hardly have accounted for the continuous omission [of African-Americans being called to grand jury service] . . . for so long a period as sixteen years or more"); United States v. Alvarado, 923 F.2d 253, 255-56 (2d Cir. 1991); see also McCleskey v. Kemp, 481 U.S. 279, 291, 293-94, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987) (rejecting proffer of statistical study; distinguishing the limited contexts in which statistics demonstrate a "stark pattern" sufficient to raise inference of discrimination).

 2. Race/National Origin Discrimination

 Petitioner suggests that an inference of purposeful discrimination arises from the fact that no Orientals have been approved for transfer, as shown by the discovery provided by respondent. *fn2" Petitioner asserts that the listing of individuals shows that no Orientals have been approved for transfer, and that an inference of discrimination based upon Oriental race and/or national origin arises. It is clear, however, that no inference of discrimination can be drawn from the transfer approval and denial records.

 Respondent provided information pertaining to individuals for whom a request for repatriation was pending or ruled upon while such individual was incarcerated at Ray Brook in 1994, 1995, and 1996, whose Base Offense Level or Total Offense Level is 34 or higher, as follows:


1. the country to which each individual requested repatriation;


2. the race of each individual;


3. the national origin of each individual;


4. the status of each repatriation request, and the date of repatriation of each individual whose repatriation request was granted;


5. the sentence, in months, of each individual; and the amount of time served by each individual, in months and as a percentage of the total sentence;


6. the Base Offense Level and Total Offense Level of each individual; and the factors for which the Base Offense Levels were increased or decreased for each individual; and


7. the crimes for which each individual is incarcerated, including the drug involved, if any, and the amount of such drug.

 The list provided included seventy-nine (79) individuals. (See App. filed 12-30-97.) Seven individuals were either ineligible for transfer or withdrew their transfer request. The requests of two individuals are pending. Seventy (70) requests were ruled upon. Of the seventy, 56 were approved for transfer (80%), and 14 were denied (20%).

 The base offense levels of the seventy individuals ranged from 32 to 40, and the total offense levels ranged from 27 to 42. Base offense levels were increased or decreased due to the role in the crime, acceptance of responsibility, cooperation with the authorities, obstruction of justice, and use of a firearm, among others. Base offense levels for individuals whose transfer was approved were as low as 32 and as high as 40. Base offense levels for individuals whose transfer was denied were as low as 34 and as high as 40. Total offense levels for individuals whose transfer was approved were as low as 27 and as high as 42. Total offense levels for individuals whose transfer was denied were as low as 32 and as high as 38.

 Sentences ranged from 18 months to 360 months. Of those approved for transfer, sentences ranged from 42 months to 360 months. Of those denied transfer, sentences ranged from 18 months to 293 months. Crimes involved included, among others, possession with intent to distribute controlled substances, conspiracy to possess with intent to distribute controlled substances, conspiracy to import controlled substances, and importation of controlled substances. The controlled substances associated with the offenses included cocaine, heroin, marijuana, hashish, amphetamines, and opium. The approximate amounts of controlled substances ranged as follows: cocaine (1 kg to 1500 kg), hashish (518 kg to 2,906 kg), heroin (500 g to 100 kg), marijuana (67 kg to 9,979 kg), amphetamines (20 kg yield), opium (2.2 kg). Some of the offenses involved multiple controlled substances. Individuals approved for transfer had involvement with controlled substances in the following ranges: cocaine (1 kg to 1500 kg), hashish (518 kg to 2,906 kg), heroin (500 g to 100 kg), marijuana (450 kg to 4,989 kg), amphetamines (20 kg yield)(one individual), opium (2.2 kg)(one individual). Individuals whose transfer requests were denied had offenses involving the following ranges of controlled substances: cocaine (3 kg to 1300 kg), hashish (2,160 kg)(one individual), heroin (3 kg to 38 kg), marijuana (67 kg to 9,979 kg). Percentage of transfer applications denied, by controlled substance involved in the offense follows: heroin 27% cocaine 12% marijuana 67% hashish 17% multiple substances 20%.


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