The opinion of the court was delivered by: Walls, District Judge
Petitioner Randy Ricardo Dean, a lawful permanent resident in this country, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241 requesting this Court to order an immediate bond hearing before an immigration judge or release him from detention pending his removal proceedings. Petitioner asserts that mandatory detention under §236(c) of the Immigration and Nationality Act, 8 U.S.C. §1226(c) (the "Act") violates his substantive and procedural due process rights by depriving him of an opportunity to demonstrate his suitability for release. Respondents assert that mandatory detention under §236(c) pending administrative removal is constitutional. This Court finds that §236(c) is unconstitutional as it applies to Petitioner and grants Petitioner's request for an immediate bond hearing before an immigration 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).
Before addressing the merits, the Court must establish that subject matter jurisdiction exists over Petitioner's claim. Under 28 U.S.C. §2241, district courts have jurisdiction to entertain challenges to §236(c) itself, as opposed to the manner in which it is enforced. See Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999). ("That statute does not purport to foreclose challenges to [§236(c)] itself, as opposed to decisions implementing that subsection."). Respondents concede jurisdiction of this Court. (Respondents' Answer to Habeas Corpus Petition and Application to Dismiss For Failure to State a Claim, at 5) ("This court has jurisdiction under 28 U.S.C. §2241 to review statutory and constitutional challenges to an alien's detention.").
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 ...