United States District Court, N.D. Illinois
March 29, 2004.
PERPETUO CALARZA-SOLIS, Petitioner
JOHN ASHCROFT, et al. Respondents
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM AND ORDER
Petitioner Perpetuo Galarza-Solis ("Solis") brought this Petition for
Writ of Habeas Corpus, under 28 U.S.C. § 2241, seeking release from
custody while awaiting appeal of an immigration judge's termination of
removal proceedings against him. For the reasons that follow, the
petition [1-1] is DENIED.
Solis contends that the regulation under which he is currently being
detained, 8 C.F.R. § 1003.19(i)(2), is unconstitutional. Before
addressing this contention, however, the Court will briefly address the
legal framework governing the detention of resident aliens during
Under 8 U.S.C. § 1226(c)(1)(B), the Attorney General is required to
detain deportable aliens who have been "convicted" of an aggravated
felony, 8 U.S.C. § 1227(a)(2)(A)(iii)J or of violating a state law
relating to a controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i).
See also Denmore v. Kim, 538 U.S. 510, 123 S.Ct. 170S, 1714
(2003); Gonzalez v. O'Connell, 355 F.3d 1010, 1013 (7th Cir.
2004). Although section 1226(c) docs not provide for bail, once the alien
is detained, he may "immediately" move for a "Joseph hearing" to
determine if he falls within
section 1226(c). Demore 123 S.Ct. at 1712. See also 8
C.F.R, § 1003.19(h)(1)(ii) (providing that an alien may seek a
"determination by an immigration judge that the alien is not properly
included" within § 1226(c)); In re Joseph, 22 I. & N.
Dec. 799, 1999 BIA LEXIS 25, at "14 (BIA 1999) (finding that an alien
should be provided "the opportunity to offer evidence and legal authority
on the question of whether the Service has properly included him within a
category that is subject to mandatory detention").
"At the [Joseph] hearing, the detainee may avoid mandatory detention by
demonstrating that he is not an alien, was not convicted of the predicate
crime, or that the INS is otherwise substantially unlikely to establish
that he is in fact subject to mandatory detention." Demote. 123 S.Ct, at
1712 n. 3. In determining whether the alien falls within section 1226(c),
the immigration judge "must necessarily look forward to what is likely to
be shown during the hearing on the underlying removal case." In re
Joseph, 999 BIA LEXIS 25, at *20. The immigration judge's ultimate
decision "may be based upon any information that is available . . . or
that is presented to him or her by the alien or the Service,"
8 C.F.R. § 1003.19(d). If the court determines the alien docs fall within
section 1226(c), then it is without authority to conduct an
individualized bond determination. See
8 C.F.R. § 1003.19(h)(1)(i)(E), If, however, "the court determines the alien
does not fall within subsection (c), then it may consider the
question of bond." Gonzalez. 355 F.3d at 1013. See also In re
Joseph, 999 B1A LEXIS 25, at *16 ("A determination in favor of
an alien. . . . allows an [judge] to consider the question of bond").
If the immigration judge grants bond, the government may immediately
file an EOIR-43, Notice of INS to Appeal Custody Redetermination ("Notice
of Appeal"), which pursuant to
8 C.F.R. § 1003.19(i)(2), automatically stays the immigration
judge's release order, requiring the resident alien to remain in custody
Here, Soils, a citizen of Mexico, has lived in the United States since
1981 and has been a lawful permanent resident since 1990, In September of
2002, Solis pled guilty to two felony drug charges in Illinois state
court and was sentenced to four years incarceration. Solis, however,
filed a timely motion to vacate his plea. After the denial of his motion
to vacate, Solis filed a timely appeal,
A year after his guilty plea, in September of 2003, the Government
instituted removal proceedings against Solis, seeking to deport him based
on his drug convictions. At his Joseph hearing, the immigration judge
terminated the removal proceedings because he found that Solis'
convictions were on appeal and therefore, not "final" and could "not be
used to seek his deportation at this time."
After termination of the removal proceedings, the immigration judge
conducted a hearing on Solis' request for release from custody. On
November 25, 2003, after hearing evidence from both sides, the
immigration judge ordered Solis to be released on a $5,000 bond.
Immediately thereafter, the Government filed a Notice of Appeal. Pursuant
to 8 C.F.R. § 1003.19(i)(2), this
filing automatically stayed the immigration judge's release order
and resulted in Solis being detained until the Government's appeal is
Solis now comes before this Court seeking his release based on the
grounds that S C.F.R. § 1003.19(i)(2) violates the Due Process Clause
of the Constitution. In support of this contention, Solis cites to
several district court decisions, outside of this district, which have
held that section 1003.19(i)(2) violates due process. See Ashley v.
Ridge, 288 F. Supp.2d 662, 668-75 (D. N.J. 2003); Uritsky v.
Ridge, 286 F. Supp.2d 842, 846-47 (E.D, Mich, 2003); Bezmen v.
Ashcroft, 245 F. Supp. 446, 450-51 (D. Conn. 2003);
Almonte-Vargas v. Elwood, 2002 WL 1471555, at *2~5 (E.D, Pa.
June 28, 2002), In response, the Government contends that these decisions
are not controlling under the Supreme Court's decision in
Denmore, 123 S, Ct. at 1722 and the Seventh Circuit's recent
decision in Montenegro v. Ashcroft, 355 F.3d 1035, 1037-38 (7th
After carefully reviewing all of the above decisions, this Court finds
that the district court cases, holding section 1003.19(i)(2)
unconstitutional, are not applicable to this case. First, both
Bezmen and Almonte-Vargas, which were decided before
the Supreme Court's decision in Denmore, based their holdings
on circuit court decisions which held that mandatory detention under
section 1226(c) was unconstitutional. See Bezmen, 245 F. Supp.
at 451 (in holding section 1003.19(i)(2)'s automatic stay provision
unconstitutional, the court found that this "kind of detention analogizes
closely to the mandatory detention . . . mandated by S U.S.C. §
1226(c), which many courts have found to exceed permissible
constitutional limits"); Almonte-Vargas, 2002 WL 1471555, at *5
(finding that detention under section 1003.19(i)(2)'s automatic stay
provision "suffers from the same constitutional infirmities as mandatory
detention under §
1226(c)"), After Denmore, however, the circuit court
cases relied on by Bezmen and Almonte-Vargas are no
longer good law because the Supreme Court in Denmore, 123 So.
Ct. at 1722, held that mandatory detention under section 1226(c) was
"constitutionally permissible," Therefore, because Bezmen and
Almonte-Vargas hinged on circuit decisions which are no longer
good law, this Court finds them unpersuasive,
The Court next turns its attention to Ashley and
Uritsky, which were decided after Dgnmore bul found
that section 1003.19(i)(2) was nevertheless unconstitutional. This Court,
however, does not need to decide if section 1003.19(i)(2) is
constitutional under these holdings because it finds Ashley and
Uritsky are factually distinguishable from the instant action.
The petitioner in Uritsky, 286 F. Supp.2d at 843, was
charged with third degree criminal sexual assault when he was 17 years
old. The slate court, however, did not enter a "judgment of conviction."
Id. Instead, the court assigned him "to Youthful Trainee Status." At his
removal hearing, the immigration judge held that the petitioner did not
fall within the scope of section 1226(c) because "assignment to Youthful
Trainee Status did not constitute a conviction for immigration purposes."
Id. Because there was no "conviction," and thus no mandatory
detention under section 1226(c), the immigration judge ordered
petitioner's release on bond.*fn2 Id.
Here, similar to Ashley and Uritsky the immigration
judge found that Solis did not fall within the scope of section 1226(c)
because he found that Solis' convictions were on appeal and therefore,
not "final" and could "not be used to seek his deportation at this time,"
section 1226(c)'s mandatory detention was not applicable, the
immigration judge then considered the question of bond as permitted under
Gonzalez, 355 F.3d at 1013 and In re Joseph, 999 BIA
LEXIS 25, at *16, Under Montenegro v. Ashcroft 355 F.3d 1035, 1037 (7th
Cir. 2003), however, this Court finds that the immigration judge erred in
finding that Soils' conviction was not final because it was on appeal,
and therefore, the immigration judge should not have even considered the
issue of bond because Solis was within the scope of section 1226(c)'s
mandatory detention provision.*fn3
In Montenegro, 355 F.3d at 1036, the petitioner, a resident
alien, filed a section 2241 petition contesting the immigration court's
finding that he be deported based on a felony drug conviction. The
petitioner contended that deportation was improper at that time because
he was "still challenging" his criminal conviction on appeal. Rejecting
this contention, the Seventh Circuit, per curiam, held that the Illegal
Immigration Reform and Immigrant Responsibility Act "eliminated the
finality requirement for a conviction." Id. at 1037, In
reaching this holding, the Seventh Circuit relied on
8 U.S.C. § 1101(a)(48)(A), which defines "the term conviction,
with respect to an alien, [as] a formal judgment of guilt of the
alien entered by a court or, if adjudication of guilt has been
withheld, where (i) a judge or jury has found the alien
guilty or the alien has entered a plea of guilty. . . ." Therefore,
the court held that the petitioner's conviction, despite the pending
appeal, "rendered him removable," Id. at 1037-38.
Accordingly, following Montenegro, this Court finds that
regardless of his pending appeal, Solis' conviction put him within the
scope of section 1226(c)'s mandatory detention
provision, and thus, the immigration judge should not have even
considered the issue of bond. This Court thus DENIES Solis' Petition for
Writ of Habeas Corpus.*fn4
For the reasons above, this Court DENIES Petitioner Perpetuo
Galarza-Solis' Petition for Writ of Habeas Corpus [1-1], It is so