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YANEZ v. HOLDER

July 5, 2001

ISMAEL YANEZ, SENGCHANH PHENGPHONSAVANH, BERNARDO GARZA-GARZA, SOKHA PONN, AND GUSTAVO REYES-RAMIREZ, PETITIONERS,
V.
ERIC HOLDER, INTERIM ATTORNEY GENERAL OF THE UNITED STATES, AND BRIAN PERRYMAN, DISTRICT DIRECTOR, IMMIGRATIONS AND NATURALIZATION SERVICE, CHICAGO, ILLINOIS, RESPONDENTS.



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.

I. BACKGROUND

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 INS custody.

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 Corrections.

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 ...


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