The opinion of the court was delivered by: John W. Darrah, Judge.
MEMORANDUM OPINION AND ORDER
Petitioners filed a Petition for Habeas Corpus, alleging that Section
236(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1126
(c), violates the Fifth Amendment of the United States Constitution.
Petitioners request that this Court order bond hearings while the
petitioners' removal proceedings are pending.
Ismael Yanez (Yanez) is a native and citizen of Mexico and a lawful
permanent resident of the United States. In January 1998, Yanez was
convicted of the possession of a controlled substance and sentenced to
one-year probation. In May 1999, Yanez was convicted of possession of a
controlled substance and sentenced to eighteen months' probation and
ninety days' incarceration.
Upon completion of his sentence, Yanez was transferred into INS
custody. At a March 2000 hearing at the Immigration Court in Chicago,
Yanez did not dispute the second ground for removal but denied the
aggravated felony charge alleged by the INS. He argued that his two
convictions did not amount to "drug trafficking" under the INA and that,
because he is not an "aggravated felon", he is eligible for discretionary
relief from deportation. The Immigration Judge rejected Yanez's arguments
and found that his second conviction for possession of a controlled
substance rendered him deportable for a "drug trafficking offense." The
Judge found that Yanez was not eligible for any relief from removal and
ordered him deported from the United States.
Yanez appealed the Immigration Judge's decision to the Board of
Immigration Appeals (BIA). The appeal is currently pending, and Yanez
remains in INS custody. Yanez argues that if he is successful in his
appeal and is found not to be an "aggravated felon", he is eligible for
discretionary relief from deportation pursuant to 8 U.S.C. § 1229b(a).
Sengchanh Phengphonsavanh (Phengphonsavanh) is a lawful permanent
resident of the United States, In March 1999, Phengphonsavanh was
convicted of driving or operating a motor vehicle without the owner's
consent and was sentenced to one years s incarceration. Subsequently, the
INS issued a Notice to Appear for removal proceedings to
Phengphonsavanh, charging him as removable for having committed an
"aggravated felony" under INA § 101(a)(43)(F),
8 U.S.C. § 1101(a)(43)(F) and INA 101(a)(43)(G), 8 U.S.C. § 1101
(a)(43)(G). After serving his sentence, Phengphonsavanh was taken into
In June 2000, Phengphonsavanh appeared before an Immigration Judge who
ordered him deported as an "aggravated felon". Phengphonsavanh appealed
the Immigration Judge's decision to the BIA. Following the June hearing,
the Immigration Judge also found that Phengphonsavanh was eligible for
bond under INA § 236(c) but denied his request for bond.
Phengphonsavanh appealed the denial of his bond to the BIA.
In December 2000, the BIA dismissed Phengphonsavanh's bond appeal,
holding that the mandatory detention provision of INA § 236(c)
precluded Phengphonsavanh's release on bond. Phengphonsavanh's appeal on
the merits of his removal remains pending before the BIA, and
Phengphonsavanh remains in INS custody. Phengphonsavanh argues that if he
is found not to be an "aggravated felon", the INS has no jurisdiction
over him, and the proceedings should be terminated.
Bernardo Garza-Garza (Garza) is a lawful permanent resident of the
United States. In 1995 and 1998, Garza was convicted of two separate
offenses of unlawful use of a weapon. In June 2000, both offenses were
vacated nunc pro unc, and Garza was convicted of Class A misdemeanor of
unlawful use of a weapon. For these offenses, Garza was sentenced to one
year of probation.
In June 1999, Garza pled guilty to possession of a stolen motor vehicle
and was sentenced to three years' incarceration. In lieu of
incarceration, Garza was recommended for impact incarceration. However,
because the INS issued a detainer against Garza after his conviction, it
was determined that he was not eligible for impact incarceration; and
he, thereafter, served one year in the Illinois Department of
After completing his sentence, Garza was taken into INS custody and
detained without bond. The INS issued Garza a notice stating that he was
ineligible for release on bond pursuant to INA § 236(c).
Garza admits that he is deportable on grounds he was convicted of a
firearm charge. At his removal hearing, Garza challenged the INS's
aggravated felony charge and argued that, if he is not an aggravated
felon, he is eligible for discretionary relief from removal under INS
§ 240A. The Immigration Judge found that the INS sustained the
"aggravated felony" charge. Nevertheless, the Immigration Judge heard
testimony on Garza's application for Cancellation of Removal. After
hearing the testimony, the Immigration Judge found that should Garza's
"aggravated felony" finding be reversed by the BIA, Garza merited
cancellation of his removal under INS § 240A.
Garza appealed the Immigration Judge's finding that he was an
"aggravated felon" to the BIA. Garza's appeal is pending, and he remains
in INS custody. Garza argues that, if he is found not to be an aggravated
felon, he is eligible for discretionary relief from deportation pursuant
to 8 U.S.C. § 129b(a).
Sokha Ponn (Ponn) entered the United States as a refugee in 1984 at the
age of five. Ponn is not a lawful permanent resident of the United
States. In November 1998, Ponn was convicted of two counts of burglary to
a building based on two separate offenses in July and August 1998. Ponn
pled no contest to the offenses and was sentenced to two ...