MEMORANDUM OPINION AND ORDER
GOTTSCHALL, District Judge.
Petitioner, Angelo Moro, a criminal alien subject to a Final Administrative Removal Order issued against him on December 3, 1998, has filed a petition for Writ of Habeas Corpus seeking his release on bond pending his actual removal from the United States. The government has moved to dismiss his petition on the basis that this court lacks jurisdiction to entertain any of Moro's claims. Having already addressed the issue of its jurisdiction over Moro's
On December 3, 1998, an immigration judge (IJ) issued a Final Administrative Removal Order against Moro under § 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii).
On December 14, 1998, Moro filed an Amended Petition for Writ of Habeas Corpus ("Petition")
On February 18, 1999, after inviting the parties to file supplemental briefs on how the recent Seventh Circuit decision in LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998) (interpreting AEDPA § 440(a)), affects this case, the court issued a minute order finding that it had no jurisdiction over Moro's case insofar as he sought to challenge the statutory and regulatory structure rendering a person deportable on the basis of two property-crime convictions.
In its original memorandum, the government argued that this court lacks jurisdiction to review Moro's custody either prior to or following his December 3, 1998 removal hearing because § 1252(g) effected a repeal of district court jurisdiction to entertain habeas petitions by aliens under a final order of removal and because Moro has not exhausted his administrative remedies. The government further argued that Moro's pre-hearing and post-hearing custody were properly initiated and continued pursuant to valid statutory authority.
In its supplemental memorandum, the government reiterates its exhaustion argument and modifies its § 1252(g) argument in light of the recent Supreme Court decision in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). The government now argues that Moro's efforts to be released from custody are barred by § 1252(g)'s bar against jurisdiction over challenges to the execution of removal orders. The government also argues that: 1) Moro's continued detention following the removal period is proper under § 1231(a)(6); 2) Moro has no fundamental right to be released; and 3) Moro's continued detention fosters a legitimate governmental purpose.
As Moro appears to challenge only his continued confinement following the denial of his redetermination of bond request at his December 3, 1998 hearing, the court need only address the issue of Moro's post-hearing custody.
The Statutory Scheme for Detention of Criminal Aliens Following the Entry of Removal Orders
This case is governed by 8 U.S.C. § 1231,
1. Detention during the removal period
Under § 1231, the Attorney General is directed to remove aliens subject to orders of removal within 90 days (the "removal period"). Id. § 1231(a)(1)(A). During the removal period, the Attorney General is also directed to detain such aliens. Id. § 1231(a)(2). The statute further emphasizes that "[u]nder no circumstances during the removal period shall the Attorney General release an alien who has been found ... deportable under § 1227(a)(2) [the criminal alien provision] ... of this title." Id.
In this case, the applicable date for the beginning of the removal period is the date on which Moro's order of removal became administratively final: December 3, 1998. Id. § 1231(a)(1)(B)(i). As an admitted criminal alien found deportable under § 1227(a)(2)(A)(ii), Moro qualifies as an alien who cannot, under § 1231, be released under any circumstances during the removal period. Id. § 1231(a)(2). The government thus correctly argues that Moro's custody during the removal period was not only authorized but required under the statute.
Detention following the removal period
The government arguments about the propriety, under § 1231, of Moro's continued detention following the removal period are on less solid ground. The government argues that: 1) Moro's custody is not only authorized but required under 8 U.S.C. § 1231(a)(6); and 2) INS may continue to hold Moro in custody under 8 U.S.C. § 1231(a)(1)(C) due to his "nonassistance" in procuring the documents necessary for his departure from the United States.
Aside from outlining and authorizing the detention of aliens during the removal period, § 1231 also contains provisions addressing the custody of aliens following the removal period, directing supervised release for some types of aliens and permitting continued detention of others. As a general rule, "[i]f the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General" and including certain specified provisions. 8 U.S.C. § 1231(a)(3). The statute further specifies, however, that certain types of aliens "may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph 3." Id. § 1231(a)(6) (emphasis added). These aliens include, among others, aliens found removable under 8 U.S.C. § 1227(a)(2) (criminal aliens) and aliens determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal. Under § 1231(a)(6), the statute thus permits — though it does not require — detention beyond the removal period, at the discretion of the Attorney General, for these types of aliens. It also appears to vest the Attorney General with the discretionary power to order supervised release for these aliens.
Subsection 1231(a)(1)(C), titled "[s]uspension of period," states:
This subsection requires the extension of the removal period and permits continued detention in the event that an alien improperly inhibits removal efforts. Although this subsection places a burden of good-faith cooperation on aliens in securing their removal, it does not, contrary to the government's assertion, require Moro's continued detention because there is no evidence in this case that Moro has impeded the government's efforts to remove him or refused relevant assistance. According to Moro, he cannot obtain documentation of his identity because of his status as a Romani. Consequently, at this stage the court cannot find that § 1231(a)(1)(C) applies to defeat Moro's claim that his continued detention is improper.
Although the court has rejected some of the arguments the government makes regarding the applicability and interpretation of various provisions of § 1231, it agrees with the government that the statute required Moro's detention during the removal period and further finds that it permits his detention, pursuant to § 1231(a)(6), even following the 90-day time period. This holding does not, however, end the inquiry, for Moro has asserted that this scheme is unconstitutional, a claim the government contends this court has no jurisdiction to review.
Jurisdiction Over Moro's Claim That His Continued Detention Is Unconstitutional
The government has argued that both § 1252(g) and Moro's failure to exhaust his administrative remedies deprive this court of jurisdiction over his constitutional challenge to the statutory scheme that permits his continued detention both during and after the removal period despite the government's alleged inability to effect his removal.
The court disagrees with the government's contention that it lacks jurisdiction over this case pursuant to 8 U.S.C. § 1252(g). Subsection 1252(g), titled "Exclusive Jurisdiction," states:
The government initially argued that § 1252(g) effected a complete repeal of district court jurisdiction to entertain habeas petitions by aliens subject to final orders of deportation or removal. The Supreme Court's narrow construction of § 1252(g) has, however, rendered this argument unavailing. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, ___, 119 S.Ct. 936, 943, 142 L.Ed.2d 940 (1999) (holding that § 1252(g) applies "only to three discrete actions that the Attorney General may take: her `decision or action' to `commence proceedings, adjudicate cases, or execute removal orders'"). In American-Arab, the Court expressly rejected the argument that § 1252(g) "covers all or nearly all deportation claims," id. at 941, emphasizing the implausibility "that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings." Id. at 943. As the Court pointed out, "[t]here are of course many other decisions or actions that may be part of the deportation process," such as the decision to open an investigation or to surveil a suspected violator. Id.
Recognizing the limitations the Supreme Court imposed in American-Arab, the government now contends that this case "falls within the jurisdictional prohibition of 8 U.S.C. § 1252(g) relating to the execution of removal orders because petitioner's efforts to be released from custody interfere
Reading the phrase "execute removal orders" "to mean precisely what [it] say[s]," American-Arab, 525 U.S. at ___ n. 9, 119 S.Ct. at 944 n. 9, the court cannot agree. Moro is not challenging the "execution" of his removal order, for he is not seeking to block any effort to put him on a plane or boat and actually, physically remove him from this country; rather, he is challenging his continued detention pending the execution of this order. See Parra, 172 F.3d 954, 956-57 (rejecting argument that § 1252(g) applied to bar challenge by alien who sought release from confinement while waiting for his order of removal to become final). Subsection 1252(g) is inapplicable to such a claim, because custody pending deportation is one of the "many other decisions or actions that may be part of the deportation process" that are not included in § 1252(g)'s bar on jurisdiction. Cf. American-Arab, 525 U.S. at ___, 119 S.Ct. at 945 (finding petitioners' claim that they were targeted for deportation because of their political affiliation barred by § 1252(g) because it constituted a challenge to the Attorney General's decision to "commence proceedings," one of the three types of decisions protected from judicial review under 1252(g)).
Exhaustion of administrative remedies 8
Finally, the government argues that Moro has failed to exhaust his administrative remedies. Specifically, the government points out that Moro timely appealed the IJ's December 3, 1998 denial of his request for a redetermination of bond to the BIA and that the BIA has not yet acted on this appeal. To counter this argument, Moro invokes the futility exception to the exhaustion doctrine.
Generally speaking, exhaustion of administrative remedies is required under the INA before an alien may challenge an order of deportation or removal. See 8 U.S.C. § 1105a(c) (requiring exhaustion of administrative remedies prior to review of an order of deportation or exclusion by any court); 8 U.S.C. § 1252(d) (requiring exhaustion of administrative remedies prior to review of a final order of removal by any court). See generally Ademi v. INS, 31 F.3d 517, 520 (7th Cir.1994) (rejecting alien's claim that the BIA failed to take administrative notice of changed conditions in the former Yugoslavia because administrative remedies must be exhausted prior to judicial review of deportation order and alien failed to raise his claim before the BIA); Asencio v. INS, 37 F.3d 614, 615-16 (11th Cir.1994) (holding that under 8 U.S.C. § 1105a(c), court lacked jurisdiction to consider claims not presented to the BIA because alien had obligation to exhaust available administrative remedies prior to obtaining judicial review).
Exhaustion generally is not required, however, for due process claims because the BIA does not have the authority to adjudicate constitutional issues. Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir.1993). There is thus an exception to the exhaustion requirement for
Although the court believes that Moro's futility argument raises serious concerns, it is not willing at this stage to find that pursuit of the appeal before the BIA is futile. For one thing, Moro does not cite any case law in which a court has found pursuit of an administrative appeal futile before a decision in that appeal could be handed down.
Moreover, the court submits that the exception to the exhaustion requirement applies to this case, in which event Moro's futility argument may be beside the point. Moro's claim that his detention is excessive, disproportionate, and unrelated to any legitimate, attainable goal or purpose sounds in due process. Accordingly, even if Moro has sufficiently raised this claim before the BIA, it appears to this court that the BIA has no authority to entertain it.
As an initial matter, the court notes that this case differs from the statutory provisions and case law cited above because Moro seeks to challenge his continued detention rather than his removal order. Nevertheless, the court believes that it is appropriate to apply the principle of administrative exhaustion in this case, especially in light of Moro's decision to appeal the IJ's decision to the BIA.
The court is also troubled by the question of how much time may pass before appeal of a bond issue to the BIA effectively becomes futile.
The court's preliminary conclusion that the custody challenge Moro brings in his Petition falls within the exception to the exhaustion doctrine does not alter its belief that giving the BIA a reasonable opportunity to decide this case is appropriate. First, the court notes that Moro chose to appeal the IJ's denial of his request for a redetermination of bond to the BIA. In that appeal, Moro presses non-constitutional issues which, if resolved by the BIA in his favor, obviate the need for review in this court. Second, in light of the judicial canon counseling avoidance of difficult constitutional questions unless necessary, the court believes the best way to handle this case is to permit the BIA a reasonable period of time to decide Moro's appeal.
The court requests further briefing by the parties including, but not necessarily limited to, the issues outlined above and the questions set forth below. In court on May 7, the government agreed to request the BIA to expedite its decision on Moro's appeal. The court also requested that the government ask the BIA when it might hand down a decision in this case. The court now requests that the government file a memorandum by May 28 regarding the issues raised in this Opinion as well as the BIA's response, if any, to these questions. In the event that the BIA fails to indicate that it will act on Moro's appeal within a reasonable period of time, the court may conclude that Moro's futility argument is well taken. If Moro wishes to respond, he may do so by June 7, and he should include relevant support for his assertion that the BIA routinely affirms immigration judges' denial of bail for criminal aliens.
Bases for Jurisdiction
In the event that the court rejects the government's exhaustion argument, it will find that it has jurisdiction over Moro's challenge to his continued detention. As noted above, although the statutory scheme authorized and required Moro's
Even if § 1231 did, however, contain a relevant judicial review provision, the Seventh Circuit's recent decision in Parra indicates that district courts retain jurisdiction under 28 U.S.C. § 2241 at least over constitutional challenges to custodial provisions of the INA, if not over challenges to specific operational decisions implementing those custodial provisions that Congress has chosen to remove from the ambit of judicial review. Parra, 172 F.3d 954, 957-58 (holding that although district courts lack jurisdiction under § 2241 to consider challenges to certain operational decisions implementing § 1226, district courts have § 2241 jurisdiction over challenges to § 1226 itself, that is, over constitutional challenges to the legislation establishing the framework for those operational decisions).
Given the court's finding that it has jurisdiction over Moro's custody challenge under § 2241 (absent a finding in the government's favor on exhaustion), the court need not now decide whether it also has jurisdiction under the Great Writ. The court notes, however, that Parra suggests that this court may also have jurisdiction under the Great Writ, Art. I, § 9, cl. 2. The Great Writ is a "device designed to prevent detention by the Executive Branch without trial." Parra, 172 F.3d 954, 957-58. Like subsection 1226(c), which the Seventh Circuit found authorizes detention without trial, id., subsections 1231(a)(2) and 1231(a)(6) also authorize detention by the Executive Branch without trial. Moreover, Moro claims that his detention has no end in sight given his status as a stateless alien. He thus falls squarely within one of the categories the Seventh Circuit identified in Parra as within the ambit of the Great Writ. Id. (explaining that "it is easy to imagine cases — for example, claims by persons detained under § 1226(c) ... who are detained indefinitely because the nations of which they are citizens will not take them back-in which resort to the Great Writ may be appropriate"). Unlike the criminal alien in Parra, Moro contends that he cannot end his detention; he does not have "the keys in his pocket," for he has no identity documents and Yugoslavia will not accept him. Id.
Constitutionality of Moro's Continued Detention
The government has also argued that, even if this court finds it has jurisdiction, Moro is not entitled to relief for two reasons. First, the government argues that Moro has no fundamental right to be released. According to the government, Moro's custody is neither unconstitutional nor in violation of the immigration laws and regulations. Second, the government argues that Moro's custody fosters a legitimate governmental purpose, specifically, by ensuring his presence at the time his removal order is executed, thereby fostering his efficient and expeditious removal.
In light of the court's reservation of decision on the exhaustion issue, the court declines to address these arguments at this time but will, if necessary, rule on these arguments at a later date.
Having carefully reviewed the statutory scheme and the parties' filings, the court concludes that the statutory provisions the government has cited do not bar the exercise of jurisdiction in this case. However, the court reserves decision at this time as to whether Moro's alleged failure to exhaust his administrative remedies precludes the exercise of jurisdiction over this case and requests an additional response from the parties directed to the points summarized below. The government should file its supplemental memorandum by May 28; if Moro wishes to respond, he must do so by June 7.
In its memorandum, the government should inform the court of what response, if any, it has received from the BIA regarding the requests it agreed to make in court on May 7. The court needs to know whether the BIA has agreed to expedite Moro's appeal and how much time the BIA anticipates will pass before deciding that appeal. The court reminds the parties, however, that under the circumstances of this case, it believes that the BIA should be given a reasonable opportunity to decide Moro's appeal.
Both the government and Moro should address the issue of how much time may pass before appeal of the bond issue to the BIA becomes futile. In addition, Moro should include support for his assertion that the BIA routinely affirms denial of bail for criminal aliens.
Finally, if Moro believes that the TPCR are applicable to his case and relevant to the proceedings in this court, see supra n. 7, he should brief this issue, indicating clearly what provisions, rules, or regulations he believes are applicable and also indicating whether he disagrees with the court's conclusion that 8 U.S.C. § 1231 governs this case.
Moreover, in its February 18 order, the court expressly reserved decision as to whether it had jurisdiction over Moro's claim that his continuing detention is excessive and unconstitutional in light of the government's alleged inability to deport him to any country. It is to this claim that the court now turns — and to which Parra is relevant, though not precisely parallel.
As an initial matter, the court notes that this proceeding, which began on April 24, 1997, when Moro was served with the NTA, is governed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Parra, 172 F.3d 954, 955-56 (holding that proceedings commenced after April 1, 1997 are governed by IIRIRA). The court understands 8 U.S.C. § 1231 — a provision Moro himself cites in his Petition — to be the applicable provision in this case. If Moro disagrees, he should bring his disagreement to the court's attention, setting out in detail what provisions or rules he believes are applicable.