United States District Court, N.D. Illinois, Eastern Division
July 13, 2004.
MANHARBHAI PATEL, Petitioner,
THOMAS RIDGE, Secretary of the Department of Homeland Security; MICHAEL GARCIA, Director of the Bureau of Immigration and Customs Enforcement and District Director of the Department of Homeland Security; JOHN ASHCROFT, Attorney General of the United States; CYNTHIA O'CONNELL, Acting Supervisor of the Bureau of Immigration and Customs Enforcement, Chicago, Illinois, Respondent.
The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
Before this court is petitioner Manharbhai Patel's ("Patel")
petition for a writ of habeas corpus, filed on March 24, 2004,
brought pursuant to 28 U.S.C. § 2241. For the following reasons,
the habeas petition is denied.
Patel is a native citizen of India who was admitted to the
United States as an Immigrant on November 4, 1991. He has four
children and a wife, all of whom are citizens living in the
United States. On May 24, 2001, Patel pled guilty and was
convicted in the United States District Court for the Northern
District of Illinois for the offense of False Declarations before
a Grand Jury in violation of 18 U.S.C. § 1623, Case No. 00 CR 561
(Shadur, J.), for which he was sentenced to one year in prison. On June 21, 2001, Patel was served with a Notice to
Appear, charging him as removable as an alien convicted of an
aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Upon
completion of his sentence for his criminal conviction, Patel was
placed in physical civil immigration custody by the Immigration
and Customs Enforcement ("ICE") pursuant to 8 U.S.C. § 1226(c).
Patel was initially released on bond in proceedings taking place
in Pennsylvania, based upon a Third Circuit ruling that at the
time held detention pursuant to section 1226(c) unconstitutional.
See Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001) (holding as
a violation of due process mandatory detention pursuant to
section 1226(c) without an individualized determination of risk
of flight and risk to community).*fn1 Thereafter, Patel's
venue for his removal hearing was changed to the Executive Office
for Immigration Review in Chicago, Illinois. Following this
change of venue, ICE re-detained Patel in light of the Supreme
Court's holding in Denmore v. Kim, 538 U.S. 510,
123 S.Ct. 1708, 1721-22 (2003), which provides that criminal aliens may be
detained pending their removal hearings pursuant to section
In detaining Patel, the Immigration Court refused to release
Patel based upon what Patel describes as his "good-faith claim"
contesting removability. Patel subsequently filed the instant
habeas corpus petition in this court on March 22, 2004 arguing
that his detention is unconstitutional based upon what he
describes as a "good-faith claim" contesting removability. On May
11, 2004, the Immigration Court found Patel removable from the
United States as an "aggravated felon." Patel, through counsel,
has indicated that he is appealing this finding to the Board of
Immigration Appeals ("BIA"). ANALYSIS
In 1999, the Seventh Circuit held that detention during removal
proceedings pursuant to section 1226(c) is constitutionally
permissible, Parra v. Perryman, 172 F.3d 954, 958 (7th Cir.
1999), and the Supreme Court recently reached the same
conclusion. See Denmore v. Kim, 538 U.S. 510, 123 S.Ct. 1708,
1721-22 (2003) ("Detention during removal proceedings [pursuant
to section 1226(c)] is a constitutionally permissible part of
[the] process.") Both of these cases "left open the question of
whether mandatory detention under § 1226(c) is consistent with
due process when a detainee makes a colorable claim that he is
not in fact deportable." Gonzales v. O'Connell, 355 F.3d 1010,
1020 (7th Cir. 2004); (citing Kim, 123 S.Ct. at 1738 (Souter,
J., dissenting) ("Some individual aliens covered by § 1226(c)
have meritorious challenges to removability or claims for relief
from removal. As to such aliens . . . the Government has only a
weak reason under the immigration law for detaining them.")).
Several judges of this court have held that section 1226(c) is
unconstitutional as applied to detainees who have a "good-faith
claim" that they will ultimately be permitted to remain in the
country. See e.g. Bonsol v. Perryman, 240 F. Supp.2d 823,
826-27 (N.D. Ill. 2003) (Castillo, J.). As the Seventh Circuit
has clarified, a "good-faith claim" must have some merit and
cannot be sustained by merely contesting deportability without a
colorable claim. Gonzales, 355 F.3d at 1020.
Patel argues that he has a "good-faith claim" that he is not
deportable, and, therefore, that detention pursuant to section
1226(c) is unconstitutional as applied to him. Unfortunately,
Patel has failed to develop an argument in his pleadings before
this court, relying instead on his general assertion that he has
a "good-faith claim." The closest Patel comes to developing a
meritorious "good-faith claim" is to argue "that perjury and
obstruction of justice as defined by the Immigration Act and precedent decisions before the Board of Immigration
Appeals [do] not include [Patel's] convictions for false
declarations before a grand jury." (Reply at 4.) Patel has
neither cited, quoted, nor developed any argument regarding this
precedent and statutory law. He simply states in a conclusory
manner that the cases of the BIA "define perjury and
obstruction of justice very narrowly [so as to not] include
[Patel's] underlying offense." Id.
Despite Patel's failure to develop an argument, this court will
consider his conclusory "good-faith claim" that he is not subject
to deportation.*fn2 Section 1226(c)(1) states in part:
The Attorney General shall take into custody any
alien who . . .
(B) is deportable by reason of having committed any
offense covered in section 1227(a)(2)(A)(ii),
(A)(iii). . . .
Section 1227(a)(2)(A)(iii) states: "Any alien who is convicted of
an aggravated felony at any time after admission is deportable."
The statutory definition of "aggravated felony" includes:
an offense relating to obstruction of justice,
perjury or subornation of perjury, or bribery of a
witness, for which the term of imprisonment is at
least one year.
8 U.S.C. § 1101(43)(S). Patel served one year in prison for his
conviction, therefore this court assumes that Patel is arguing
that his conviction for making false declarations before a grand
jury is not "an offense relating to obstruction of justice,
perjury or subornation of perjury." 8 U.S.C. § 1101 (43)(S). This
court rules that this argument is not a "good-faith claim" with
merit that would justify excepting Patel from the general rule of
detention prior to a final determination of deportability.
Section 1101(43)(S) only requires "an offense relating to . . .
perjury." Patel was convicted of making false declarations before
a grand jury in violation of 18 U.S.C. § 1623. Section 1623 is one of the three sections in the United States Criminal
Code, Chapter 79, which is entitled "Perjury." A violation of
section 1623 is perjury. See United States v. Gross,
511 F.2d 910
, 915 (3d Cir. 1975) ("While it is clear that the perjury and
false declaration statutes are not equivalents, it is equally
clear that [section] 1623 is a species of perjury. Indeed . . .
the intent of [section] 1623 was to `facilitate Federal perjury
prosecutions.'") (quoting H.R. Rep. No. 91-1549, reprinted in
1970 U.S.C.C.A.N. 4008). Therefore, Patel cannot maintain a
"good-faith claim" that his conviction does not fall within the
ambit of section 1101(43)(S).
Accordingly, the habeas petition is denied, terminating this
case. Any pending motions are moot.