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February 14, 2003


The opinion of the court was delivered by: Bucklo, District Judge


Lincoln Forbes is in the custody of the Immigration and Naturalization Service ("INS") pending the administrative appeal of an order of removal. He claims that the denial of the possibility of release on bond pending his appeal violates his substantive and procedural due process rights, and he seeks a writ of habeas corpus. I grant the petition.


The facts, as stated in my previous opinion denying the government's motion to dismiss, are as follows. Mr. Forbes is a native of Jamaica, but he has lived in the United States since 1967 and is a legal permanent resident alien. He has five children, four in the Chicago area, and two grandchildren, all of whom are United States citizens. His father is also a United States citizen residing in the Chicago area. He is active in his church and, until his current detention, was steadily employed by a limousine company.

In 1995, Mr. Forbes was convicted of unlawful delivery of cannabis and was sentenced to a twenty-four month term of probation. In November 2001, he left the United States briefly and on his return discovered that his green card had expired. He was paroled into the United States and voluntarily went to the INS to renew his green card, where he was told to return at a later date so that his background investigation could be completed. When he returned on the designated date, he was taken into custody and removal proceedings were commenced against him.

On June 10, 2002, Mr. Forbes was found removable by an Immigration Judge. He was denied bond on the grounds that it is not permitted by § 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c). Mr. Forbes is appealing the order of removal to the Board of Immigration Appeals, and he seeks a writ of habeas corpus on the grounds that the categorical denial of bond pending his appeal is unconstitutional. Mr. Forbes acknowledges that he has no absolute right to release on bond, and he does not ask me to grant him release; he asks only that I order the INS to grant him an individualized bond hearing.


My order denying respondents' motion to dismiss contains a thorough discussion of the law in this area. To review, the Seventh Circuit has upheld the constitutionality of § 1226(c) as applied to the case of a prisoner who conceded his removability. Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999). However, several more recent district court cases have held that the statute is unconstitutional as applied to prisoners who have a good-faith claim that they will ultimately be permitted to remain in the country. See Bonsal v. Perryman, No. 02-06530, 2003 U.S. Dist. LEXIS 82, at *11 (N.D. Ill. Jan. 3, 2003) (Castillo, J.) (finding § 1226(c) invalid as applied to legal permanent resident who contests his removability in good faith); Gill v. Ashcroft, No. 01 C 9879, 2002 WL 1163729, at *6 (N.D. Ill. May 31, 2002) (Nordberg, J.) (same); Vang v. Ashcroft, 149 F. Supp.2d 1027, 1036 (N.D. Ill. 2001) (Pallmeyer, J.) (same); see also Yanez v. Holder, 149 F. Supp.2d 485, 492-94 (N.D. Ill. 2001) (Darrah, J.) (distinguishing Parra and holding that it does not bar review of constitutional claim by petitioners who had good faith defenses to removal, but holding that § 1226(c) was constitutional as applied to petitioners because of slight chance of success).

The central question thus becomes whether Mr. Forbes has a good-faith defense to removal. Mr. Forbes has submitted the affidavit of his attorney, Tom Swift, attesting that Mr. Forbes was erroneously denied the opportunity to file for relief under § 212(c) of the Immigration and Nationality Act as allowed by INS v. St. Cyr, 533 U.S. 289, 329 (2001) (holding that provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 repealing discretionary relief from removal do not apply retroactively to aliens who pleaded guilty to possession of controlled substances prior to the enactment of the statute). Mr. Forbes has also submitted the brief filed on his behalf before the Board of Immigration affairs, appealing the Immigration Judge's order of removal.

These materials appear to present a plausible claim that Mr. Forbes may be exempt from removal under St. Cyr. As there has been no response from the government contesting the accuracy of these documents, I conclude that Mr. Forbes has a good-faith defense to removal. Thus, Parra may be distinguished, and I am persuaded by the reasoning of Judge Castillo in Bonsol that § 1226(c) is unconstitutional as applied to individuals who, like Mr. Forbes, have a good-faith defense to removal. The Fifth Amendment's guarantee of due process protects both citizens and lawful permanent residents of the United States. Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The government may not interfere with the fundamental liberty interests of an individual, such as his interest in physical freedom, unless its actions are narrowly tailored to meet a compelling state interest. Reno v. Flores, 507 U.S. 292, 301-02 (1993). The governmental interest at stake in detaining Mr. Forbes without a bond hearing is "(1) protecting the public from potentially dangerous criminal aliens; (2) preventing aliens from absconding during criminal proceedings; (3) correcting procedures under which twenty percent of criminal aliens released on bond did not report for deportation hearings; and (4) restoring public faith in the immigration system." Vang at 1037. But as Judge Castillo wrote in Bonsol:

Bonsol at *6. Accordingly, I find that Mr. Forbes is entitled to an individualized bond hearing, and I order the Immigration and Naturalization Service to provide him with such a hearing within two weeks.

The petition for a writ of habeas corpus ...

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