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EKEKHOR v. ALJETS

September 17, 1997

ALBERT EKEKHOR, Petitioner,
v.
CURTIS J. ALJETS, District Director of the Chicago District Office of the Immigration and Naturalization Service, Respondent.



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.

 Background

 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. *fn2" 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.

 Jurisdiction

 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." *fn3" 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.

 Due Process

 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) *fn4" 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."). *fn5" 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. ...


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