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VANG v. ASHCROFT
July 10, 2001
EE SI VANG, KEVIN WEDDERBURN, JUAN MIRELES, TOU KO VUE, MARIO SOLORZANO, AND AKAKY YAKOBASHVILE, PLAINTIFFS,
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES AND BRIAN PERRYMAN, AS CHICAGO DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS.
The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Petitioners Kevin Wedderburn, Tou Ko Vue, Akaky Yakobashvile and Juan
Mireles (collectively, "Petitioners") are four lawful permanent residents
of the United States against whom the Immigration and
Naturalization Service ("INS") has instituted removal proceedings.
Petitioners are detained without a possibility of release on bond subject
to § 236(c) of the Immigration and Nationality Act ("INA"),
8 U.S.C. § 1226(c), as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA"). They have petitioned
this court for habeas corpus relief, arguing that this mandatory
detention violates their substantive and procedural due process rights
under the Fifth Amendment to the U.S. Constitution. In addition to this
constitutional argument, Wedderburn claims that the INS violated the INA
by applying § 1226(c) retroactively. For the reasons stated below,
the court grants relief to all four Petitioners and directs the INS to
perform an individualized bond determination for any of the Petitioners
who remain in custody.
On April 24, 1996, Congress passed the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214,
which directs automatic mandatory detention for any alien convicted of an
"aggravated felony" as that term is defined in 8 U.S.C. § 1101(a)(43)
of the INA, and for certain other non-citizens with criminal
convictions. 8 U.S.C. § 1252. On September 30, 1996, Congress amended
the INA with the IIRIRA. IIRIRA replaced AEDPA's mandatory detention
provision, see 8 U.S.C. § 1226(c)(1), and also included "Transition
Period Custody Rules" ("TPCRs"), IIRIRA § 303(b)(3), which restored
the pre-AEDPA practice of permitting individualized bond determinations
in immigration court for individuals who could prove both legal entry
into the United States and the fact that they did not present a
substantial risk of flight or threat to persons or property. If the alien
met these criteria, the immigration court could set bond pending a
determination of the alien's removal case. The TPCRs remained in effect
from October 9, 1996 to October 8, 1998.
When the TPCRs expired, IIRIRA's mandatory detention provision, §
1226(c)(1), became effective for all criminal aliens. The new provision,
entitled "Detention of Criminal Aliens," requires the Attorney General to
"take into custody any alien who . . . [is removable as an aggravated
felon under § 1227(a)(2)(A)(iii)] . . . when the alien is released,
without regard to whether the alien is released on parole, supervised
release, or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense."
8 U.S.C. § 1226(c)(1).*fn1 Section 1226(c) further provides that:
The Attorney General may release an alien described in
paragraph (1) only if the Attorney General decides
pursuant to section 3521 of title 18, United States
Code, that release of the alien from custody is
necessary to provide protection to a witness, a
potential witness, a person cooperating with an
investigation into major criminal activity, or an
immediate family member or close associate of a
witness, potential witness, or person cooperating
with such an investigation, and the alien
satisfies the Attorney General that the alien will not
pose a danger to the safety of other persons or of
property and is likely to appear for any scheduled
As will be demonstrated in this section, Wedderburn, Vue,
Yakobashvile, and Mireles have all been convicted of at least one offense
which the INS considers to be included within § 1226(c)(1). Not one
of these four Petitioners is eligible for the witness protection
program, see 8 U.S.C. § 1226(c)(2), and therefore each is subject to
detention without possibility of bond. Petitioners contend that §
1226(c) is unconstitutional as applied to them, violating both their
substantive and procedural due process rights. Petitioners argue that the
additional burdens associated with allowing Immigration Judges ("IJs") to
make individualized bond determinations are minimal and do not outweigh
the risk of erroneously depriving Petitioners of their liberty interest
throughout the time during which proceedings against them are
The following are the relevant facts-those regarding Kevin Wedderburn
and Juan Mireles, while slightly updated, are taken almost verbatim from
Tiv v. Reno, No. 99 C 872, 2000 WL 246252, at *2-3 (N.D.Ill. Feb. 24,
2000), and those regarding Tou Ko Vue and Akaky Yakobashvile, who were
not added as Petitioners until after the Tiv decision, are taken from
the Second Amended Petition, filed with this court on March 8, 2000.
Neither party has informed the court of recent changes, if any, in the
status of Petitioners.
Wedderburn, a Jamaican national, became a lawful permanent resident of
the United States on October 9, 1987, at the age of eleven. (First Am.
Pet. ¶ 15; Resp. Mot. to Dismiss, Ex. 7.) Subsequently, Wedderburn's
father became a U.S. citizen. (First Am. Pet. ¶ 15.) In 1997, while
Wedderburn was incarcerated for a 1995 aggravated criminal sexual assault
conviction, the INS charged Wedderburn with removal as an "aggravated
felon" under 8 U.S.C. § 1227(a)(2)(A)(iii). (Id. ¶ 18; Resp.
Mot. to Dismiss, Ex. 4.) Wedderburn filed an application for a
Certificate of Citizenship on grounds that he derived United States
citizenship from his father who was naturalized when Wedderburn was
under the age of eighteen. (Am. Pet. ¶ 18.) The INS denied
Wedderburn's citizenship application. (Id. ¶ 19.)
Wedderburn was taken into INS custody upon the completion of his prison
term in May 1998. (Id. ¶ 20.) The INS then commenced removal
proceedings, during which Wedderburn argued that the Immigration Court had
no jurisdiction over him because he was entitled to U.S. citizenship.
(Id. ¶¶ 20-21.) The INS office affirmed the denial of Wedderburn's
citizenship application (Id. ¶ 19), and on August 19, 1998, the IJ
ordered him deported to Jamaica as an aggravated felon. (Id. ¶ 21.)
The Board of Immigration Appeals ("BIA") affirmed that decision on April
(Resp. Status Report, at 2.) The Seventh Circuit then
dismissed Wedderburn's petition to review the BIA's conclusion. See
Wedderburn v. INS, 215 F.3d 795, 802 (7th Cir. 2000) ("Kevin is not a
citizen of the United States, so his petition for review is
dismissed."). Neither party has advised the court whether Wedderburn has
been deported and the court assumes he remains in custody.
While in INS custody, Wedderburn requested a bond determination. (Am.
Pet. ¶ 23.) The IJ granted Wedderburn's request for bond, setting it
at $50,000. (Id.) Wedderburn's subsequent request for a new bond
determination was rejected. (Id. ¶ 23.) Unable to meet the bond
amount, Wedderburn appealed the amount of bond as prohibitively high.
Moreover, he argued that his detention violated the INA because §
1226(c) does not apply to lawful permanent residents who were taken into
INS custody before the expiration of the TPCRs on October 9, 1998. (Id.
¶¶ 23, 42.) On May 14, 1999, the BIA dismissed Wedderburn's bond
appeal as moot, holding that, pursuant to § 1226(c), the IJ had no
jurisdiction to set bond in the first place. (Resp. Status Report ¶
Vue, whose parents are Laotian, was born in a refugee camp in
Thailand, and has been a lawful permanent resident of the United
States since 1979. (Second Amended Petition ¶ 26.) Vue was convicted
of four offenses in the State of Wisconsin. Although the record does not
indicate the date, the INS charged Vue with removability based on three
of these offenses: (1) an August 12, 1996 conviction of carrying a
concealed weapon (a misdemeanor), resulting in a sentence of two years
probation; (2) an October 8, 1997 conviction of operating a vehicle
without the owner's consent (a felony), with a 24-month sentence of
incarceration; and (3) an October 9, 1998 conviction of child abuse (a
felony), with a sentence of three years probation. (Id. ¶ 27.) The
INS charged Vue as an "aggravated felon" under
8 U.S.C. § 1227(a)(2)(A)(iii) for both a "crime of violence" for
which the term of imprisonment is at least one year (
8 U.S.C. § 1101(a)(43)(F)) and a "theft offense" for which the term
of imprisonment is at least one year (8 U.S.C. § 1101(a)(43)(G)).
(Id. ¶ 28.) These two charges brought him within the reach of §
1226(c)(1). Moreover, INS charged Vue under 8 U.S.C. § 1227(a)(2)(C)
and 8 U.S.C. § 1227(a)(2)(E), which are not "aggravated felony"
On December 3, 1999, an IJ found that Vue's (1) concealed weapon
conviction (which was not an "aggravated felony") rendered him removable
under § 1227(a)(2)(C); (2) motor vehicle conviction did not
qualify as an "aggravated felony" under § 1101(a)(43)(G); and (3)
child abuse conviction was an "aggravated felony," and rendered him
removable under § 1227(a)(2)(E)(i). The IJ also determined that,
because he had been convicted of an "aggravated felony," Vue was
statutorily ineligible for Cancellation of Removal under § 1229b(a).
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