The opinion of the court was delivered by: William H. Walls, United States District Judge.
FACTS AND PROCEDURAL BACKGROUND
Petitioner, a native and citizen of Trinidad, was admitted to the
United States as a lawful permanent resident on March 21, 1976. On
January 27, 1989, Petitioner pled guilty to distributing cocaine in
violation of 21 U.S.C. § 841(a)(1) and was sentenced in the United
States District Court for the Eastern District of New York on October
30, 1997 to a fifty-seven month term of imprisonment. On June 14, 2001, a
Notice to Appear in Removal Proceedings (NTA) was issued, charging
Petitioner with § 237(a)(2)(A)(iii) removal based on his conviction
of an aggravated felony, and under § 237(a)(2)(B)(i) based on his
conviction of a controlled substance violation.
On July 2, 2001, Petitioner was released from the Federal Bureau of
Prisons where he was serving his criminal sentence and was taken into the
custody of the Immigration and Naturalization Service ("INS"). A bond
hearing was held on July 17, 2001 before an immigration judge in Newark,
New Jersey who, after several adjournments, determined that the
Petitioner was eligible for a waiver of inadmissibility under §
212(c) of the Act, 8 U.S.C. § 1182,*fn1 and that he was subject to
mandatory detention pursuant to § 236(c). However, the judge also
noted that if the District Court found that § 236(c) was
unconstitutional, then the Petitioner should be released upon the posting
of a $10,000 bond. The INS reserved appeal.
A hearing on the merits of the case under § 212(c) of the Act was
set for September 18, 2001 and then adjourned until October 30, 2001.
Pending the hearing Petitioner is being held at the Hudson County Jail
pursuant to § 236(c).
The issue before this court is whether § 236(c) violates
Petitioner's due process rights by requiring detention without a hearing
pending removal proceedings. The statute provides in pertinent part:
The Attorney General shall take into custody any alien
who . . . is deportable by reason of having committed
any offense covered in section 1227(a)(2)(A)(ii),
(A)(iii), (B), (C), or (D) of this title . . . when the
alien is released, without regard to whether the alien
is released on parole, supervised release, or probation,
and without regard to whether the alien may be arrested
or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(1)(B). An alien subject to this provision may only
be released on bond if he is associated with the federal witness
protection program and is not a flight risk or a danger to others.
8 U.S.C. § 1226(c)(2).
The Due Process Clause of the Fifth Amendment provides that "[n]o
person shall . . . be deprived of life, liberty, or property, without due
process of law." U.S. Const. amend. V. This affords protection to
individuals against two types of government action — substantive
and procedural. Substantive due process prevents the government from
engaging in conduct that "shocks the conscience" regardless of the
procedure provided. Rochin v. California, 342 U.S. 165, 172 (1952).
Procedural due process requires that government action which deprives a
person of life, liberty or property be implemented in a fair manner. See
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
It is well established that resident aliens are entitled to the
protections of due process of law in deportation proceedings. See Landon
v. Plasencia, 459 U.S. 21, 33 (1982) ("[O]nce an alien gains admission to
our country and begins to develop the ties that go with permanent
residence his constitutional status changes accordingly."). See
Kiareldeen v. Reno, 72 F. Supp.2d 402 (D.N.J. 1999). It is equally
clear, however, that Congress has broad powers over immigration and has
the authority to enact rules that would be unconstitutional if applied to
citizens. See Mathews v. Diaz, 426 U.S. 67,68 (1976).
The Supreme Court has not addressed the constitutionality of the
mandatory detention provisions of § 236(c). Further, district courts
are currently split over the issue of whether § 236(c) violates an
alien's due process rights. The Seventh Circuit, the only circuit that
has confronted the issue directly, held that § 236(c) was
constitutional on the grounds that a ...