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OKEY AGUNOBI v. THORNBURGH

September 17, 1990

CHRISTIAN OKEY AGUNOBI, Plaintiff,
v.
RICHARD A. THORNBURGH, ATTORNEY GENERAL, EUGENE P. McNARY, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, Defendants


James H. Alesia, United States District Judge.


The opinion of the court was delivered by: ALESIA

JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE

 Now before the court is the defendants' motion to dismiss, or in the alternative for summary judgment. The plaintiff's complaint requests declaratory and injunctive relief, alleging the following: the defendants' application of 8 U.S.C. § 1252(a)(2) amounts to the imposition of excessive bail and violates the Eighth Amendment to the United States Constitution; 8 U.S.C. § 1252(a)(2) violates the plaintiff's right to due process of law guaranteed to him by the Fifth Amendment to the Constitution; and the defendants' application of 8 U.S.C. § 1252(a)(2) to the plaintiff's case is a violation of 8 U.S.C. § 1252(a)(1). For the reasons set forth below, the court denies defendants' motion to dismiss, or in the alternative for summary judgment, except as to Count III of the complaint, and on the court's own motion grants the plaintiff summary judgment as to Counts I and II of the complaint.

 I. FACTS

 The plaintiff Christian Okey Agunobi ("Agunobi") is a citizen of Nigeria, who was admitted to the United States for permanent residence on July 27, 1982. On November 3, 1989, in the United States District Court for the Eastern District of New York, Agunobi was convicted of the offense of importation of heroin in violation of 21 U.S.C. § 952(a) upon a plea of guilty, and sentenced to fourteen months imprisonment followed by a three year term of supervised release. Agunobi was incarcerated at the Federal Correctional Institution in Danbury, Connecticut. He was given credit for good time served and, on June 4, 1990, released into the custody of the Immigration and Naturalization Service ("INS"). On the same date, the INS charged Agunobi with deportability pursuant to 8 U.S.C. § 1252(a)(1), as an alien convicted for the violation of a law or a regulation relating to a controlled substance, and 8 U.S.C. § 1251(a)(4)(B), for having been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43). *fn1" The INS has detained Agunobi at the Oakdale Detention Center, located in Oakdale, Louisiana, pending his deportation hearing, pursuant to 8 U.S.C. § 1252(a)(2). Section 1252(a)(2) provides:

 
The Attorney General shall take into custody any alien convicted of an aggravated felony upon completion of the alien's sentence for such conviction. Notwithstanding subsection (a) of this section, the Attorney General shall not release such felon from custody.

 Section 1252(a)(1) provides, in relevant part:

 
Pending a determination of deportability in the case of any alien . . . such alien may . . . be arrested and taken into custody. Except as provided in paragraph (2), any such alien taken into custody may, . . . be released under bond. . . .

 On June 15, 1990, Agunobi moved for a bond determination before Immigration Judge Duck in Oakdale, Louisiana. On August 2, 1990, Judge Duck denied Agunobi's motion and entered a decision containing the following reasoning:

 
The Respondent has been charged under Section 241(a)(4)(B). This court is satisfied he is properly charged as such. Therefore, he is not entitled to be released on bond. The Board of Immigration Appeal has determined the completion of sentence for purposes of being detained as an aggravated Felon is his actual release from custody, and not at the end of his probation or parole.

 Agunobi then filed this action on August 8, 1990.

 A. Motion to Dismiss

 The Government's argument in support of its motion to dismiss is that this court does not have jurisdiction over this matter because this action is, in effect if not in name, a petition for habeas corpus and the court does not have personal jurisdiction over the plaintiff's custodian. The court rejects the Government's argument. This is not a petition for habeas corpus. The plaintiff is not requesting his release, but rather that a bond determination be made considering the particular facts and circumstances of his case and accordingly, the conclusive presumption in Section 1252(a)(2), which stands between the plaintiff and any bond hearing, be declared unconstitutional. Moreover, the government's claim that the court does not have jurisdiction over the plaintiff's custodian is also without merit. The government argues that the custodian is located in Oakdale, Louisiana, but it is clear from the statute itself that the custodian is the Attorney General of the United States, who is certainly subject to the jurisdiction of this and other United States courts. 8 U.S.C. § 1252(a)(2). ...


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