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April 16, 2003


The opinion of the court was delivered by: James B. Zagel, United States District Judge


A group of alien persons in the custody of the Immigration and Naturalization Service seek the writ of habeas corpus on behalf of themselves and on behalf of a class of similarly situated persons. The claim here is not that the INS is acting outside the scope of its regulations; rather, the regulations themselves are attacked as violating the due process clause of our Constitution on their face and as applied. Also, it is contended that the rules and regulations are arbitrary, capricious and outside the ambit of the law, and so stand in conflict with the Administrative Procedures Act ("APA").

The petitioners have all been ordered removed from this country, but the INS is unable to remove them to their countries of origin. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court said a six-month period of detention was presumptively reasonable. All the petitioners are detained for more than six months. Zadvydas also said that indefinite detention where there is no reasonable likelihood of removing them from the country is beyond the statutory power of the INS or the Attorney General. The Court said:

"[I]nterpreting the statute to avoid a serious constitutional threat, we conclude that once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute. . . . [In habeas cases the] court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's basic purpose, name assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute.
In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions . . . And if removal is reasonably foreseeable, the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period."
533 U.S. at 699-700. It is fair to say that the Attorney General was dismayed by the decision of the Supreme Court, which had resolved a split among the Court of Appeals. He expressed concerns for public safety because the detainees are those who have been convicted of crimes in this country.*fn1

In response to the decision of the Supreme Court, petitioners say the Executive Branch adopted procedures which forfend the release of those whom it has no authority to detain by delaying the decision to release. The decision is made by a "faceless bureaucracy," deadlines are not set, hearings are not provided, impartial review is absent and decisions are not administratively appealable.

The standard for release is that the detainee must show (I simplify here) that he or she is unlikely to be removed in the foreseeable future, and also that he or she is a "non-violent" person. The District Office makes a yes or no determination. If the answer is no, the alien may have the Headquarters Post-order Detention Unit consider these questions again. It has no deadline, and petitioners allege that it rarely decides until six months of detention has passed. There is no evidentiary hearing. In cases where the inability to remove is conceded by INS, but no other cases, the decision to detain may be presented to an Immigration Judge, subject to review by the Board of Immigration Appeals. Where the decision by the INS is based on the finding that there is still a possibility of removal, or that the detainee has no t cooperated in securing his own return (for example, by refusing to provide information which would allow the country of origin to determine that the detainee is their citizen or subject), then that is the end of the matter.

This system is alleged in practice to compound problems. Detainees are not given adequate notice required by regulations, file review dates are misstated and failure to cooperate disqualifies persons for release even when the country of origin is one for which it is impossible to obtain travel documents. A class action is said to be justified by the high proportion of indigent detainees whose individual petitions for a writ cannot be effectively prosecuted, and there is no formal administrative review which a pro se detainee can exhaust which might give timely relief. Judging solely by the docket in this Court, the class would be numerous.


The Petitioners

The individual petitioners were and are:

1. A stateless Palestinian, Jalal Hmaidan, born in Kuwait and holding a Jordanian passport, but now said to be a subject of neither nation. He has been living here as a lawful resident for over 25 years and has family here. He was convicted of aggravated discharge of a firearm and possession of a controlled substance with intent to deliver. He received multiple year sentences for both offenses. He has ten arrests and five convictions. Preferring Jordan or Kuwait to jail, he says he has tried to get travel documents, but the INS says he never identified himself as a stateless person, but rather, as a Jordanian. From the INS's perspective, he did a slapdash job of filling out the Jordanian request form for travel documents and little else. In any event, the INS was apparently right about his removal, because he now has papers to go to Jordan, and he is dismissed from the case.
2. An Algerian, Mohammed Aidouni, who came here as a stowaway and remained illegally. He was convicted of robbery and weapons charges and detained for a period of years, in part because of the time it took to adjudicate his unsuccessful attempt to avoid return to Algeria under the Convention Against Torture. While Algeria is not readily issuing travel documents these days, the INS says he failed to tell an Algerian official that he had a mother and three brothers living in Algeria (at least initially), and said he had no family in that country. The INS says that he has not cooperated to secure his removal.
3. An Iraqi, Maithan Alzehrani, who entered this country in 1993 as a refugee fearing persecution. He became a Lawful Permanent Resident. He was convicted in 1997 for unlawful restraint and domestic battery and again in 1998 for criminal sexual assault. He was the subject of an explicit decision to detain him on grounds that he had no plan on where to live or how to support himself, he had displayed an escalating pattern of violence, and he failed to demonstrate he is no longer a threat to society. Iraq is, and has been for a while, a very difficult country to which to remove a detainee, so the INS granted release on bond conditioned on his being in a sexual offender treatment program and living with a family member or friend in Chicago. The INS has now removed the bond requirement, and he too is effectively gone from this case.
4. A Laotian, Keovongsack Pongphrachanxay, who entered from a refugee camp in Thailand in 1981. By 1997, he had acquired one conviction for Armed Robbery and another for Robbery and sentences of multiple years duration. Laos does not accept deportees. He has been offered release, but only upon posting a $20,000 bond, which he cannot do. The power of the government to require a bond is denied by petitioner.
5. A Vietnamese, Den Son, who is Amerasian by ethnicity who entered this country in 1991 to look for his father whom he believes to have been a soldier in Vietnam. Less than a year after his entry, he was convicted of Home Invasion and served a good part of his twenty years in the U.S. in prison. The INS has had him since mid-2001. He cannot be returned to Vietnam, and he too was given release upon the posting of a bond of $25,000.
The respondents say that the conclusions of the INS are valid under regulations which are consistent with the law.

After Zadvydas, the Attorney General issued regulations which, triggered by the end of the six-month period, allow the detainee to petition the INS for release on the ground that there is no significant likelihood of repatriation. The detainee has to show this, usually by documentation, and he or she also must show that he or she has cooperated in the process of obtaining travel documents. According to Zadvydas, "once the alien provides good reason to believe that there is no significant likelihood of removal in the foreseeable future, the Government must respond with evidence sufficient to rebut that showing." 533 U.S. at 701.

Turning to the individual cases, I consider the standard of review for overturning the determinations made by the INS. There is one deferential test which approves "facially legitimate and bona fide" bases for decision. Fiallo v. Bell, 430 U.S. 787 (1977). Another less deferential test is "abuse of discretion." INS v. Jong Ha Wang, 450 U.S. 139 (1981). The context of both of these decisions leads me to doubt that the Zadvydas Court had either in mind.

A third standard is whether the decision is supported by substantial evidence (sometimes thought of as a kind of directed verdict standard in which the judgment stands unless no reasonable fact-finder would have reached that judgment). INS v. Elias-Zacarias, 502 U.S. 478 (1992). Reading what can be no more than runes in Zadvydas,*fn2 I think this last standard applies if one substitutes ...

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