The opinion of the court was delivered by: BUCKLO
The petitioner, Albert Ekekhor, a lawful permanent resident, is currently being detained by the Immigration and Naturalization Service ("INS") pending a final determination by the Board of Immigration Appeals as to whether he may be excluded from the United States. Mr. Ekekhor seeks a writ of habeas corpus, maintaining, among other things, that his denial of parole pending the outcome of his appeals denies him due process under the law. For the reasons set forth below, the writ of habeas corpus will issue.
The petitioner, Albert Ekekhor, a native of Nigeria, became a lawful permanent resident of the United States through marriage in 1985. In 1992, Mr. Ekekhor was arrested at John F. Kennedy International Airport and charged with attempting to smuggle heroin into the United States. He plead guilty to the charge and was incarcerated. Mr. Ekekhor was released in October, 1994, and moved to Elgin, Illinois. In October, 1996, the Immigration and Naturalization Service ("INS") arrested Mr. Ekekhor while he met with his parole officer. Mr. Ekekhor had not violated his parole at the time of his arrest. The INS eventually placed Mr. Ekekhor in exclusion proceedings, arguing that as a result of his heroin conviction, Mr. Ekekhor was excludable from the United States.
On December 19, 1996, Mr. Ekekhor convinced an immigration judge that the Transitional Period Custody Rules ("Transitional Rules") contained in the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") applied to him and that he could be released on bond pending his exclusion hearing. The judge ordered a bond in the amount of $ 2,500. The following day, the INS filed a notice of appeal to the Board of Immigration Appeals and sought a stay of the judge's order. The Board granted the stay on December 20, 1996. The Board noted there were serious questions presented regarding an immigration judge's ability to entertain bond requests in exclusion proceedings and directed the parties to file briefs addressing a number of specific issues. (Pet. Ex. B). To date, the Board has taken no action regarding this appeal.
On March 17, 1997, a second immigration judge granted Mr. Ekekhor a waiver of exclusion. The INS also appealed this decision to the Board, challenging Mr. Ekekhor's statutory eligibility for a waiver and the immigration judge's discretionary decision to grant the request. This appeal remains pending before the Board. On April 30, 1997, Mr. Ekekhor made a written request to the District Director of the INS, Curtis Aljets, to be paroled from custody pending the outcome of the appeals.
On May 27, 1997, Mr. Aljets rejected Mr. Ekekhor's request for parole in a six sentence letter. This petition for habeas corpus relief was filed on May 30, 1997.
Mr. Aljets first argues that I lack jurisdiction to entertain this habeas petition because Mr. Ekekhor has failed to exhaust his administrative remedies. According to 8 U.S.C. § 1105a(c), "an order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations."
Mr. Ekekhor is not appealing an order of exclusion, but an order denying bond pending the exclusion determination. The Seventh Circuit has noted in the deportation context that "bond hearings are separate and apart from deportation hearings" and "[a] bond determination is not a final order of deportation." Gornicka v. INS, 681 F.2d 501, 505 (1982); see also National Ctr. for Immigrants' Rights v. INS, 791 F.2d 1351, 1354 (9th Cir. 1986)(finding exhaustion requirement only applies to orders of exclusion and not to conditions imposed on bonds prior thereto), rev'd on other grounds, 481 U.S. 1009, 95 L. Ed. 2d 489, 107 S. Ct. 1881 (1987); Montero v. Cobb, 937 F. Supp. 88, 90-91 (D. Mass. 1996)(same).
Mr. Ekekhor is not appealing an order of exclusion. Indeed, he won his exclusion hearing on the merits. Instead, he appeals the denial of a bond, which does not appear to be covered by the statute in issue. Accordingly, I find I have jurisdiction to hear Mr. Ekekhor's petition.
Mr. Ekekhor argues that his parole denial by the district director, Mr. Aljets, violated his due process rights. Mr. Ekekhor petitioned for parole after an immigration judge ruled in his favor on the merits of his exclusion proceeding and the INS appealed the immigration judge's decision. The INS appealed the immigration's judge's decision on two grounds, questioning first, Mr. Ekekhor's eligibility for an exclusion waiver and second, the discretionary decision to grant the waiver. Before Mr. Aljets made his decision on Mr. Ekekhor's parole, the Board of Immigration Appeals issued a decision finding individuals like Mr. Ekekhor are eligible for waiver of exclusion. In re Fuentes-Campos, (BIA Interim Decision 3318), 1997 WL 269368 (May 14, 1997)(en banc). Mr. Aljets nonetheless rejected Mr. Ekekhor's parole petition, although the only remaining issue on appeal was the discretionary decision of the immigration judge in granting the waiver. Mr. Ekekhor argues that Mr. Aljets was not a disinterested decision-maker because he was also the person appealing the merits decision and further, Mr. Aljets abused his discretion by failing to consider relevant evidence to Mr. Ekekhor's petition.
Mr. Aljets argues that the release of excludable aliens is solely within the discretionary power of the Attorney General and that 8 U.S.C. § 1226(e)
mandates that Mr. Ekekhor, due to his heroin conviction, be kept in detention until there is a final decision of admissibility. In St. John v. McElroy, 917 F. Supp. 243 (S.D.N.Y. 1996), the court considered the constitutionality of Section 1226(e) as it applied to permanent resident aliens like Mr. Ekekhor. The court noted Section 1226(e) "imputes a purpose to injure society to all detained aliens with aggravated felony convictions, regardless of the circumstances of the individual case." Id. at 246. Consequently, the court found section 1226(e) unconstitutional because it did not take into account the due process rights of lawful permanent residents.
Section 1226(e) denies lawful permanent residents an individualized bail determination or parole determination. Yet, it is possible a lawful permanent resident could succeed on the merits of his immigration hearing and thus, should never have been detained in the first place. Id. at 247. This scheme is inconsistent with the due process rights that have historically been granted lawful permanent residents. Landon v. Plasencia, 459 U.S. 21, 32, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982)("Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation.").
Accordingly, Section 1226(e) has consistently been found unconstitutional as applied to lawful permanent residents in exclusion proceedings. Alba v. McElroy, 1996 U.S. Dist. LEXIS 17796, No. 96 CIV. 8748 (DLC), 1996 WL 695811, at *2 (S.D.N.Y. Dec. 4 1996); Thomas v. McElroy, 1996 U.S. Dist. LEXIS 12445, No. 96 CIV. 5065 (JSM), 1996 WL 487953), at *2 (S.D.N.Y. Aug. 27, 1996)(same); Cruz-Taveras v. McElroy, 1996 U.S. Dist. LEXIS 11516, No. 96 CIV. 5068 (MBM), 1996 WL 455012, at *5 (S.D.N.Y. Aug. 13, 1996); St. John, 917 F. Supp. at 247.
I find the reasoning of the St. John court persuasive. Lawful permanent residents have due process rights that are not recognized by Section 1226(e). Accordingly, I find Section 1226(e) unconstitutional as it applies to the class of lawful permanent residents, including Mr. ...