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August 2, 2001


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


Pedro Ferreras ("Ferreras" or "Petitioner"), a legal permanent resident of the United States who is currently in the custody of the Immigration and Naturalization Service ("INS"), petitions this Court for a writ of habeas corpus, seeking release pending a final order of deportation. On April 23, 2000, as Ferreras attempted to reenter the country following a brief trip abroad, he was detained as inadmissible by the INS on the basis of a December 1993 conviction of sexual abuse of a minor. He has remained in INS custody since that time.

In his petition for a writ of habeas corpus, Ferreras asserts that he is being detained pursuant to Section 236(c) of the Immigration and Nationality Act of 1952, as amended ("INA" or the "Act"), codified at 8 U.S.C. § 1226(c), which generally mandates the detention of an alien who has been convicted of a crime involving moral turpitude. He argues that such detention is wrongful because the statute is unconstitutional on its face and as applied to him. He further asserts that if, as the Government contends, a different provision of the INA (Section 235(b), codified at 8 U.S.C. § 1225(b)) is found to govern his detention, that section, too, is unconstitutional. Finally, he posits that the procedures used to review his eligibility for temporary release violated his constitutional due process rights. Ferreras seeks immediate release, court ordered release on bail, or a hearing before an "independent decision-maker" to determine whether he should be released pending conclusion of his deportation proceedings.

This Court has jurisdiction under 28 U.S.C. § 2241 to consider Ferreras' petition for habeas corpus and thus to determine whether Ferreras's continued custody violates the Constitution or laws of the United States. See 28 U.S.C.A. § 2241 (West 1994 & Supp. 2000); see also INS v. St. Cyr, 121 S.Ct. 2271, 2287(2001); Calcano-Martinez v. INS, 121 S.Ct. 2268, 2270(2001); Jean-Baptiste v. Reno, 144 F.3d 212, 220 (2d Cir. 1998), reh'g denied, 175 F.3d 226 (2d Cir. 1999); Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998). Venue in this District is proper in that Petitioner is currently detained in this district, is a resident of New York, and the conviction on which his removal proceeding is based arose from events that occurred in the Southern District of New York. See 28 U.S.C.A. § 1391 (West 1993).

On February 5, 2001, following extensive briefing and oral arguments and after thorough consideration of the parties' submissions, the Court denied, for reasons stated at length on the record, Ferreras's request for immediate release pending the Court's final determination of the issues raised in Ferreras' petition. The Court now finds, for the reasons that follow, that the INS has acted in a manner consistent with the pertinent statutory provisions and that neither the statutory regime nor the procedures applied in Ferreras' case violated his constitutional rights. Accordingly, Ferreras' petition for a writ of habeas corpus is denied in all respects.


Ferreras, a 57 year old native of the Dominican Republic, was admitted to the United States as a legal permanent resident in 1979. Since that time, Ferreras has resided in Bronx County, New York, where his mother, a naturalized citizen, and his wife, brothers and sisters, all legal permanent residents, also currently reside. On November 1, 1993, Ferreras was arrested and charged with sexually abusing his then girlfriend's 13 year old niece. He pled guilty to sexual abuse in the 1st degree on December 7, 1993, and was sentenced to five years probation, which he served without incident. The INS was notified of Ferreras's conviction, at the latest, by January of 1994. Ferreras has not been convicted of any other crimes.

In 1994 and 1995, while he was on probation, Ferreras made vacation visits to the Dominican Republic and returned to the United States. On April 23, 2000, upon his return from a third visit to the Dominican Republic, Ferreras was detained by the INS. He was first detained in New York City and was then transferred for a brief period to a detention facility in York, Pennsylvania, after which he requested and was granted return to a New York City facility. On August 16, 2000, an Immigration Judge ordered Ferreras removed from the United States on the basis of his 1993 conviction. The Immigration Judge also denied Ferreras's application for cancellation of removal and for a waiver of deportation. Ferreras appealed the decision of the Immigration Judge to the BIA and, on February 28, 2001, received notice that he would be granted a hearing before an Immigration Judge to apply for relief from removal. Since his detention began, Ferreras has made two unsuccessful applications to the INS for release, one to an INS District Director and one to an Immigration Judge.

Ferreras does not contest the propriety of his initial detention based on his 1993 conviction. The controversy before the Court is focused on which statute and corresponding regulatory provisions govern his continued detention, the constitutionality of the relevant statute or statutes, and whether Petitioner's due process rights have been violated by the procedures used to continue his detention.


Statute Governing Petitioner's Detention

In his petition and extensive subsequent submissions, Ferreras argues that, notwithstanding the INS' representations to the contrary, the INS is detaining him pursuant to Section 236(c) of the INA, which is codified at 8 U.S.C. § 1226(c). See 8 U.S.C.A. § 1226(c) (West 1999). Asserting that the statute is unconstitutional, he argues that he is entitled to immediate release or a judicial hearing on the issue of release.

Under Section 236(c), an alien is subject to detention, pending a removal*fn1 decision, by reason of having been convicted of any of certain specified offenses or having engaged in statutorily proscribed activity. See generally 8 U.S.C.A. § 1226. The offenses for which an alien can be removed from the United States include crimes of moral turpitude. The statute mandates that the Attorney General "take into custody" any alien who is "inadmissible" or "deportable" by reason of conviction of such an offense "when the alien is released [from imprisonment], without regard to whether the alien is released on parole, supervised release, or probation. . . ." 8 U.S.C.A. § 1226(c). It is undisputed that, were the statute applicable, Ferreras would not come within any of the statutorily-enumerated exceptions to its detention mandate. Ferreras asserts that the mandatory detention aspect of the statute is unconstitutional on its face and as applied to him.

The Court need not reach this aspect of Ferreras' constitutional argument, however, because it is clear that he is not being detained pursuant to Section 236(c). Rather, the Government has consistently taken the position that Ferreras' detention is pursuant to Section 235(b) of the Act, which provides that an alien who is an "applicant for admission . . . shall be detained" for a removal proceeding if an immigration officer determines that such alien is not clearly and beyond a doubt entitled to be admitted." 8 U.S.C.A. § 1225(b)(2)(A) (West 1999).*fn2 Under current law, a legal permanent resident returning to the United States is considered an "applicant for admission" if, inter alia, the person has previously committed a crime involving moral turpitude. 8 U.S.C.A. § 1101(a)(13)(C) (West 1999 & Supp. 2000); 8 U.S.C.A. § 1182(a)(2)(A)(1) (West 1999 & Supp. 2000). Petitioner does not dispute that his detention is predicated upon his 1993 conviction, nor does he dispute the INS's categorization of the crime as one involving moral turpitude.*fn3

Ferreras argues that Section 235(b) is inapplicable to him because he is a legal permanent resident and therefore is not an "applicant for admission." This argument is unavailing. The INA specifically defines the term "applicant for admission" to include a legal permanent resident who has been convicted of a crime involving moral turpitude and is seeking to reenter the United States, and the INS has accordingly identified Petitioner as such. See 8 U.S.C.A. § 1101(a)(13)(C); 8 U.S.C.A. § 1182(a)(2)(A)(i)(I); 8 U.S.C.A. § 1225(b)(2)(A); Pet'r Supp. Aff. Relating to Bond Proceedings ("Pet'r Supp. Aff.") at ¶ 2 and Ex. B (letter of May 8, 2000 to counsel for Ferreras, Ismael Gonzalez, Esq., from Acting District Director in Philadelphia, M. Frances Holmes); see also Matter of Collado-Munoz, Int. Dec. 3333, 1997 WL 805604 (BIA 1997) ("Collado"). In reviewing an agency determination, federal courts must accord substantial deference to an agency's interpretation of the statutes it is charged with administering. See Chevron. U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844(1984); Sutherland v. Reno, 228 F.3d 171, 173-74 (2d Cir. 2000). "[T]he BIA is entitled to deference when interpreting . . . provisions of the Immigration and Nationality Act, as long as those interpretations are reasonable." Michel v. Immigration and Naturalization Service, 206 F.3d 253, 260 (2d Cir. 2000). Ferreras' arguments regarding the constitutionality of Section 236(c) of the INA are thus beside the point.

Ferreras further argues that this Court should deem Section 236(c) the governing statute because the INS's handling of his case appears to him inconsistent with the provisions of INA Section 235(b)(1). He asserts, in addition, that Section 236(c) provided a predicate for his detention immediately upon his release from custody under his prior conviction and thus should be considered the governing statute. These arguments, too, are unavailing.

The INS has invoked Section 235(b)(2) (providing for a deportation hearing process for those arriving aliens detained as "not clearly and beyond a doubt entitled to be admitted"), rather than Section 235(b)(1) (providing for immediate deportation of aliens determined by the immigration officer to be inadmissible) as the basis for Ferreras' detention. The INS's commencement of a removal hearing process (as opposed to summary deportation) in Ferreras' case is thus consistent with its contention that it is acting pursuant to Section 235(b) rather than Section 236(c).

Whether or not the INS could have detained Ferreras pursuant to Section 236(c) and commenced removal proceedings immediately upon his release from state incarceration, nothing in the statutory scheme requires the INS to apply its provisions now. Nor is the INS's delay in taking action based upon the 1993 conviction constitutionally significant in this context. The Court also declines Ferreras's invitation to "hold the government to its own words," which Petitioner indicates are found in a 1998 INS directive to INS regional directors providing that INS officials "must" take into custody criminal aliens "upon their release from criminal incarceration or custody." (Pet'r's Mem. of Law in Supp. of Writ of Habeas Corpus ("Pet'r's Mem.") at 18-19.) Whether the INS followed through on its directive in Petitioner's case is not a constitutional matter generally, nor is it determinative of the statutory provision governing Petitioner's detention.

The Court therefore declines to entertain Ferreras' constitutional challenge to Section 236(c) of the Act and will analyze the remainder of Ferreras' arguments in the context of Section 235(b) of the INA and the Act's related provisions for release on ...

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