127 F. Supp.2d at 113; Welch, 101 F. Supp.2d at 355; Reyes, 73
F. Supp.2d at 657.
The next step under Salerno is to determine whether the regulation is
excessive in furthering the legislative objective. The purpose of
mandatory detention under § 236(c) is the protection of the public
from potentially dangerous criminal aliens, preventing aliens from
absconding during removal procedures, correcting procedures under which
twenty percent of criminal aliens released on bond did not report for
deportation hearings, and restoring public faith in the immigration
system. See S.Rep. No. 104-48, 1995 WL 170285 at 1-6, 9; Cardoso, 127 F.
Supp.2d at 113.
In the instant case, all of the petitioners were convicted of criminal
offenses, and they do not contest such convictions. The mandatory
detention imposed by § 236(c) is limited to aliens who have been
convicted of certain enumerated crimes, including aggravated felonies and
controlled substance violations. Congress, by mandating the detention of
aliens who have committed such crimes, presumes that such aliens pose a
danger to the community and/or pose a flight risk. Detention of the
petitioners furthers Congress's legitimate goal of protecting the public.
Accordingly, § 236(c) does not violate petitioners' substantive due
process rights because the means that Congress chose to further its
legislative regulatory goals are not excessive. See Avramenkov, 99 F.
Supp.2d at 217; Reyes, 73 F. Supp.2d at 657-58; Galvez, 56 F. Supp.2d at
647; Diaz-Zaldierna, 43 F. Supp.2d at 1120; see also, Parra, 172 F.3d at
958 ("[p]ersons subject to [236(c)] have forfeited any legal entitlement
to remain in the United States and have little hope of clemency ...
[petitioner's] legal right to remain in the United States has come to an
B. Procedural Due Process
"Procedural due process" requires that, "when government action
depriving a person of life, liberty, or property survives substantive due
process scrutiny, it must still be implemented in a fair manner."
Salerno, 481 U.S. at 746. In determining whether implementation of a
government action is fair, the court evaluates: (1) the private interest
that will be affected by the official action; (2) the probability of
error and the effect of additional safeguards on that rate of error; and
(3) the government interest involved, including the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail. Mathews, 424 U.S. at 335.
Here, the petitioners' private interest is the right to be free from
indefinite and possibly long-term detention. As noted above, unlike the
petitioner in Parra, the present petitioners do not concede their
removability and argue on appeal of that determination that they are
still entitled to remain in this country. Accordingly, the petitioners do
have a strong liberty interest that is implicated by § 236(c).
As to the second factor, there is little probability of error because
the petitioners do not dispute their convictions. See Parra, 172 F.3d at
958 ("Persons subject to § 1226(c) have forfeited any legal
entitlement to remain in the United States. . . ."); Avramenkov, 99 F.
Supp.2d at 216. In addition, the provision of additional procedural
safeguards — based on the myriad of the specific grounds for each
appeal — would also be unreasonably burdensome to the government.
Such safeguards would also be of little value to a criminal alien, given
that such aliens have a slight chance, if any, of relief from removal.
Furthermore, the government has a substantial interest in ensuring the
presence of criminal aliens who have obvious motivation to
flee during the removal process. Weighing these factors and given the broad
powers Congress possesses to prescribe the treatment of aliens, see Fiallo
v. Bell, 430 U.S. 787, 792 (1977), the denial of an individualized
bond hearing to petitioners who have been found to be criminal aliens
detained pursuant to § 236(c) is not a violation of procedural due
process. See Parra, 172 F.3d at 957-58; Marogi, 126 F. Supp.2d
at 1066; Avramenkov, 99 F. Supp.2d at 216-17; Reyes, 73 F. Supp.2d
at 658; Alikhani, 70 F. Supp.2d at 1135.
The United States Supreme Court has recently decided a case involving
the rights of detained aliens. Zadvydas v. Davis, ___ U.S. ___ (2001),
2001 WL 720662 (June 28, 2001) (Davis). The present case presents a
different statute and materially different facts.
In Davis, the Supreme Court held that 8 U.S.C. § 1231 (a)(6), which
allows for the detention of aliens beyond the removal period, contained
an implicit "reasonable time" limitation, the application of which was
subject to federal court review. Davis, 2001 WL 720662 at *3 The Court
found that an alien who has been found to be removable from the United
States but who is unable to be removed from the United States because no
other country will accept the alien has a strong liberty interest that
presents a serious question whether the Constitution permits detention
that is not only indefinite but potentially permanent. Davis, 2001 WL
720662 at *11-12.
Having found this "constitutional problem", the Court continued its
analysis to determine if Congress made its intent clear, requiring the
Court to give effect to such intent. Davis, 2001 WL 720662 at *12. The
Court found that the statute did not clearly indicate an intent by
Congress to grant the Attorney General the power to hold an alien
indefinitely that had been ordered removed. The Court found that the
statute's use of the word "may", while suggesting discretion on the part
of the Attorney General, did not suggest unlimited discretion. The Court
also distinguished the statute in the present case (8 U.S.C. § 1226
(c)) from the statute in question in Davis (8 U.S.C. § 1231) in that
§ 1226(c) had a termination point and that § 1231 did not have a
termination point. Davis, 2001 WL 720662 at *13. The Court recognized,
in construing 8 U.S.C. § 1231, that a six-month presumption of
reasonable detention should be read into the statute. The Court noted
that this period did not require that every alien not removed must be
released after six months. Instead, "an alien may be held in confinement
until it has been determined that there is no significant likelihood of
removal in the reasonable foreseeable future." Davis, 2001 WL 720662 at
Unlike the statute at issue in Davis, the statute in the present case
clearly indicates congressional intent to grant the Attorney General the
authority to indefinitely confine an alien that is found deportable by
reason of being an aggravated felon. Section 1226(c) states that the
Attorney General "shall take into custody any alien . . ." and allows the
release of an alien described in the statute "only if" the alien is part
of the witness protection program. 8 U.S.C. § 1226 (C); Parra, 172
F.3d at 956. Unlike § 1231, which uses the term "may", allowing
discretion by the Attorney General in making his or her determination of
release, Section 1226 clearly mandates detention and specifically states
when release may take place. In addition, unlike Davis, there is no
suggestion that there is no significant likelihood of removal of the
instant aliens in the reasonably foreseeable future because there is no
indication that the aliens in the instant case
cannot be removed to another country. Furthermore, as found by the
Davis Court, aliens held pursuant to § 1226 have a foreseeable
detention termination point, and aliens held pursuant to § 1231 do not.
Accordingly, Davis does not control the present case nor lend support
to petitioners' argument.
For the reasons stated above, petitioners' Writ of Habeas Corp is denied.