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April 5, 1999


The opinion of the court was delivered by: Barry, District Judge.


On December 16, 1998, based on a nineteen year old conviction for which he received probation, petitioner, Jose Velasquez, was taken into custody by agents of the Immigration and Naturalization Service ("INS"). Petitioner is being mandatorily detained, without bond and without a hearing on bond, pursuant to section 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), pending removal proceedings. He seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, arguing that § 1226(c) cannot be retroactively applied to him as he was released from criminal custody well over a decade before that statutory section took effect. Failing that, he argues that § 1226(c) is unconstitutional both on its face and as applied, violating his Fifth Amendment substantive and procedural due process rights as well as the Eighth Amendment prohibition against excessive bail. For the reasons which follow, the petition will be granted.*fn1

I. Factual Background

Respondents concede that a case cannot be imagined with less sympathetic facts for the position they espouse. Tr., March 30, 1999 at 3. Those facts are undisputed. Petitioner was born in the Republic of Panama on May 5, 1947 to Homero Velasquez, a citizen of Panama, and his wife, Jennie Doran, a United States citizen. His father was a member of the Panamanian diplomatic service and petitioner accompanied his father on numerous assignments when he was posted in the United States. When, in 1960, petitioner's father finished an assignment here, petitioner remained in order to complete high school at West Catholic High School in Philadelphia. He was admitted to the United States as a lawful permanent resident on June 23, 1960 and has continuously lived here since that time. Both petitioner's older brother and older sister are United States citizens.

In 1965, petitioner married Johanna Hasson, a United States citizen, and they have three adult children, all of whom were born in the United States and are United States citizens. For many years, petitioner operated the Velasquez Deli in Philadelphia and his wife has worked for ten years at the Mellon Bank in Philadelphia. The couple owns a home in Aldan, Pennsylvania.

In early December 1998, petitioner traveled to Panama to visit his mother who was scheduled to have hip-replacement surgery. Upon his return to Newark Airport on December 16, 1998, he was taken into custody by INS agents and placed in the Hudson County Correctional Center where he remains in detention. The INS served petitioner with a Notice to Appear for removal proceedings, charging him with removal under: (1) INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) (West Supp. 1998), as an alien who has been, or has aided or conspired with, an illicit trafficker in a controlled substance; and (2) INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (West Supp. 1998), as an alien who has been convicted of, or admits to having committed, a violation of, or conspiracy to violate, a state or federal law relating to a controlled substance.*fn2

These charges were based upon the fact that almost nineteen years ago, on May 15, 1980, in Dade County, Florida, petitioner pled guilty to conspiracy to sell and the sale or delivery of a controlled substance and was sentenced to five years probation and a $5,000 fine. Petitioner "was at a party; was approached by a friend and asked if he could sell cocaine; [and] replied that he did not sell cocaine, but that another man at the party might do so." See Compl., Exh. A at 5. He claims, and respondents do not dispute, that he never anticipated receiving, and never received, any compensation for any transaction that might thereafter have taken place. Petitioner successfully completed probation and no removal proceedings were initiated against him over the many years prior to the present action. From all accounts, he led an exemplary life prior to the incident in 1980, and he surely has led an exemplary life since then.

Petitioner submits that he has a claim to United States citizenship by virtue of the United States citizenship of his mother and has moved for termination of the removal proceedings before the Immigration Court. On March 8, 1999, petitioner was advised by the Immigration Judge that he lacked jurisdiction to entertain petitioner's request for bond because petitioner is subject to the INA's mandatory detention provision, INA § 236(c)(1), 8 U.S.C. § 1226(c), which took effect on or about October 9, 1998. See Compl. ¶ 17. Petitioner now challenges the application of the mandatory detention provision to him.

II. Discussion

As noted above, petitioner asserts that, one, INA § 236(c), 8 U.S.C. § 1226(c), should not be retroactively applied to him as he was released from custody before that statutory section became effective; and, two, 8 U.S.C. § 1226(c) is unconstitutional both as applied and on its face as it violates his Fifth and Eighth Amendment rights. Respondents argue that the petition must be dismissed because (1) this court lacks subject matter jurisdiction; (2) 8 U.S.C. § 1226(c) has been properly applied to petitioner; and (3) 8 U.S.C. § 1226(c) does not violate the Constitution.

A.  History of the Detention of Aliens
              Removable for Having Committed Certain
              Enumerated Crimes

Under the Immigration and Nationality Act of 1952, the Attorney General had the discretion to release an alien pending a final determination of deportability. The INA provided that:

  Any such alien taken into custody may, in the
  discretion of the Attorney General and pending
  such final determination of deportability, (1) be
  continued in custody; or (2) be released under
  bond in the amount of not less that $500 with
  security approved by the Attorney General,
  containing such conditions as the Attorney General
  may prescribe; or (3) be released on conditional

8 U.S.C. § 1252(a) (1970).

In 1988, Congress passed the Anti-Drug Abuse Act ("ADAA") which amended the INA and added, inter alia, a mandatory detention provision for certain aliens removable for having committed enumerated crimes. As amended by the ADAA, the INA provided that "[t]he Attorney General shall take into custody any alien convicted of an aggravated felony upon completion of the alien's sentence for such conviction . . . . [and] . . . the ...

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