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July 10, 2001


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


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.


A. The Statute

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 proceeding.

8 U.S.C. § 1226(c)(2).

B. The Petitioners

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 pending.
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.

1. Kevin Wedderburn

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 19, 1999. (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 ¶ 2.)

2. Tou Ko Vue

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" grounds.*fn2 (Id.)
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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