Rumierz v. INS CV-98-538-JD 06/26/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Antoni A. Rumierz

v. Civil No. 98-538-JD

Immigration and Naturalization Service

O R D E R

Antoni A. Rumierz, proceeding pro se and in forma pauperis,

petitions for a writ of habeas corpus pursuant to

, seeking relief from detention by the Immigration and

Naturalization Service ("INS"), arguing that his detention

pending resolution of his deportation proceeding violates his

Fifth and Eighth Amendment rights. The INS filed a motion to

dismiss the petition asserting that the mandatory detention

provision of the Immigration and Nationality Act ("INA"),

(c), precludes release from detention. Rumierz

filed a brief in response, asserting that either § 1226(c) does

not apply to him or that it is unconstitutional. The court

ordered additional briefing from the INS and provided an

opportunity for Rumierz to respond. As the parties' supplemental

briefs now have been filed, the issues raised by the parties are

addressed on the merits. Background

Antoni Rumierz is a citizen of Poland who immigrated to the

United States in 1980. On March 15, 1994, the INS issued a show

cause order to Rumierz charging that he was subject to

deportation pursuant to the INA,

(a)(2)(A)(ii),

because he had been convicted of two separate crimes involving

"moral turpitude." On May 18, 1995, the INS took Rumierz into

custody as an alien in the United States in violation of the

immigration laws. Rumierz reguested release, and the INS set his

bail bond at $35,000, which was reduced to $20,000 the next day.

Rumierz did not provide the bond and has remained in custody.

At his deportation hearing held on June 26, 1995, Rumierz,

who was represented by counsel, applied for a waiver of

deportation pursuant to a then-applicable provision of the INA,

(c). The immigration judge found Rumierz to be

deportable as charged and denied his application for a waiver.

Rumierz appealed the decision, and asked that the deportation

proceeding be terminated since one of his convictions had been

vacated. On May 15, 1996, the Board of Immigration Appeals

("BIA") remanded the proceedings. The INS submitted a new charge

of deportability based on another conviction.

A second deportation hearing was held on May 24, 1996, that

was continued until June 28. Through counsel, Rumierz conceded

2 that he was deportable as charged, but continued to seek a waiver

pursuant to § 11 8 2 (c). The immigration judge determined that

Rumierz remained eligible for § 1 1 8 2 (c) relief, despite the

changes in the statute by the Antiterrorism and Effective Death

Penalty Act ("AEDPA") effective on April 24, 1996. The

immigration judge again decided, however, that Rumierz was not

entitled to a waiver of deportation under § 1 1 8 2 (c) . Rumierz

again appealed the decision.

On September 30, 1996, Congress enacted the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

("IIRIRA") that further modified parts of the INA. Section

1182(c) was repealed as a part of the IIRIRA amendments. See

Div. C, Title III, § 304(b),

-597

(Sept. 30, 1996). In addition, IIRIRA included both permanent

and transitional provisions for the apprehension and detention of

criminal aliens. See

Div. C, Title III, § §

303(a) and 303(b),

-586 (Sept. 30, 1996).

In reviewing the record of Rumierz's appeal on August 13,

1997, the BIA found that the immigration judge's decision was

missing and remanded the case to develop an adeguate record for

appeal. A hearing was held before the immigration judge on

September 5, 1997. The judge again found that Rumierz was

deportable, but this time she decided that he was not eligible

3 for relief pursuant to § 1 1 8 2 (c) , which had been previously

repealed. She also found that even if Rumierz were eligible for

waiver under § 11 8 2 (c) , she would again deny relief in the

exercise of her discretion. Rumierz appealed the decision to the

BIA, and his appeal remains pending.

Also on September 5, 1997, the immigration judge held a bond

hearing, in response to Rumierz's reguest for a change in

custody, and denied his reguest. On February 11 and April 3,

1998, Rumierz again asked for bond redetermination hearings.

Each time the immigration judge denied his reguest, finding that

his circumstances had not materially changed.

On September 22, 1998, Rumierz filed a petition for a writ

of habeas corpus pursuant to

on grounds that

his detention violates his Fifth and Eighth Amendment rights.

The IIRIRA transitional rules expired in October of 1998, and the

permanent provisions became effective. Under the new provisions,

custody of a detained deportable alien is mandatory except under

certain narrow conditions that are not at issue in this case.

See

(c)(2). As part of IIRIRA, Congress also

provided that § 1226(c) would apply only to aliens "released

after" the period of the transitional rules.

Div. C, Title III, § 303(b)(2).

4 Discussion

The INS moves to dismiss Rumierz's petition on grounds that

this court lacks jurisdiction to consider the petition and, even

if jurisdiction exists, the mandatory detention provision,

(c), precludes Rumierz's claims. In response,

Rumierz contends that § 1226(c) does not apply to him under the

effective date provision of IIRIRA, and that § 1226(c) is

unconstitutional.

A. Jurisdiction

The issue of jurisdiction must be resolved before reaching

the merits of the parties' argument. See Maqhsoudi v. I.N.S.,

(1st Cir. June 10, 1999); Parella v.

Retirement B d . ,

(1st Cir. 1999). The INS

contends that the jurisdictional holding in Goncalves v. Reno,

(1st Cir. 1998), cert, denied, 119 S. C t . 1140

(1999), does not apply in this case. In Goncalves, the court

held that neither AEDPA nor IIRIRA repealed the right to seek

habeas relief pursuant to § 2241 and that the new INA § 2 4 2 (g),

(

(g)), did not preclude judicial consideration

of the pure statutory guestion raised in that case. I d . at 123

and 125.

As the INS points out, § 1252 applies to judicial review of

5 orders of removal (deportation), not to challenges of detention

pending removal, and § 12 5 2 (g) applies only to three specific

types of removal decisions.

; see also Reno v.

American-Arab Anti-Discrimination Comm., 119 S. C t . 936, 944

(1999); Parra v. Perryman,

(7th Cir. 1999); but

see Richardson v. Reno,

(11th Cir. July 14,

1999). The INS argues that instead of § 1252(g), the judicial

review provision pertaining to the apprehension and detention of

aliens,

(e), bars review of Ramirez's petition.1

Section 1226(e) applies to discretionary judgments made

under § 1226, which includes both discretionary and mandatory

provisions. Section 1226(c) is a mandatory provision not subject

to the Attorney General's discretion. Compare § 1226(a) ("On a

warrant issued by the Attorney General, an alien mav be arrested

and detained pending a decision . . . .) (emphasis added), with §

1226(c) "The Attorney General shall take into custody any alien

who - . . . .") (emphasis added). In addition, Rumierz is

1Section 1226(e) provides:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

6 challenging the applicability of § 1226(c), not the particular

action taken or decision made under the section. Therefore, §

1226(e) does not bar judicial review of Rumierz's challenge to

the application of § 1226(c) . Most courts that have considered

the jurisdictional guestion have also found that § 1226(e) does

not bar judicial review of an alien's challenge to the

applicability of § 1226(c) as opposed to the IMS's implementation

of the statute. See, e.g., Parra,

; Saucedo-

Tellez v. Perryman,

(N.D. 111. July 2,

1999); Grant v. Zemski,

(E.D. Pa. June 22,

1999); Aguilar v. Lewis,

(E.D. Va. June

11, 1999); Van Eeton v. Beebe,

(D. Or.

Apr. 13, 1999); but see Edwards v. Blackman,

(M.D. Pa. May 27, 1999).

B. Application of § 1226(c)

Rumierz primarily argues that IIRIRA established that after

the end of the period of the transition period custody rules, §

1226(c) "shall apply to individuals released after such periods."

IIRIRA at § 303(b)(2) (not codified but included following

). He contends that because he was released from

criminal custody long before the expiration of the transition

rules, § 1226(c) does not apply to him. Inexplicably, the INS

7 ignores the argument Rumierz makes based on IIRIRA § 303(b)(2),

and concentrates solely on whether the phrase "when the alien is

released" in § 1226(c) (1) limits its application of the statute

to aliens released from criminal custody after the effective date

of § 12 2 6 (c) .

In every case, which the court has found, that addresses the

guestion of the effective date of § 1226(c) as provided by IIRIRA

§ 303(b)(2), each court has decided that the statute applies

prospectively to aliens released from criminal custody after the

expiration of the transition rules. See Saucedo-Tellez,

; Grant,

; Aguilar,

; Velasquez v. Reno,

(D.N.J.

1999). The court finds the reasoning in those cases persuasive

and the language of § 303(b) (2) dispositive, particularly since

the INS has not provided any argument to the contrary. Since

Rumierz was released from criminal custody long before October of

1998 and was in INS custody at that time, § 1226(c) does not

apply to him. Given the explicit effective date provision in §

303(b)(2) of IIRIRA, it is not necessary to also consider the

statutory construction issue the INS relies upon. C. Disposition

The disposition of Rumierz's petition requires further

explanation. In his petition, Rumierz alleged that he was being

held by the INS without bail during his deportation proceedings

and cites

(a), probably meaning § 1252(a) (2) (B) ,

which was the mandatory detention provision in effect until the

INA was amended in 1991. See

Stat. 1733,

1751 (1991). However, the old version of § 1252(a) was not in

effect when Ramirez was detained in 1995, and the immigration

judge did set bond for him at $20,000. Then, because Rumierz was

in deportation proceedings on the effective date of the

transition rules under IIRIRA and the final order of his removal

has not yet been issued, the transition rules, § 303 (b) (3) (B),

governed his subsequent requests for custody redetermination.

See, e.g., Rowe v . I .N .S .,

(D. Mass.

1999). His subsequent requests for bond redetermination, the

last on April 13, 1998, were denied not because bond was

unavailable, but because the immigration judge determined that

the record did not establish that Rumierz's circumstances had

materially changed.

On September 22, 1998, when Rumierz filed his petition, he

was subject to the transition rules that permitted bond for

detained aliens under specified terms. See IIRIRA § 303(b) (3) (B)

9 (included after

). However, by the time the INS

moved to dismiss the petition on December 22, 1998, the

transition rules had expired, § 1226(c) had become effective, and

the INS represented in its motion that Rumierz was detained

without bail pursuant to § 1226(c). In his response, Rumierz

also argued that he was subject to mandatory detention and

challenged the application of § 1226(c) to him. Therefore,

Rumierz's petition is construed to allege that he is in INS

custody pursuant to mandatory detention under § 1226(c) and to

challenge its application to him. For that reason, the petition

is not construed to challenge the amount of the bond previously

set by the immigration judge since that issue has not been

available while the INS held Rumierz without bail under §

12 2 6 (c).

At the eleventh hour, however, the INS has submitted a

supplemental memorandum in which it explains that it has recently

determined that § 1226(c) does not apply to Rumeriez. The INS

also represents that it has determined as a matter of discretion

under § 1226(a) not to release Rumierz on bond, although that

decision will be reviewed by an immigration judge pursuant to

Rumierz's reguest. Accordingly, Rumierz's challenge to his

detention pursuant to § 1226(c) is moot. Since his petition is

construed to raise only that issue, it is denied.

10 Conclusion

For the foregoing reasons, the respondent's motion to

dismiss (document no. 14) is denied. The petition for a writ of

habeas corpus is denied as moot. The clerk of court is directed

to enter judgment accordingly and to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, District Judge

July 26, 1999

cc: Antoni Andrzej Rumierz, pro se Brenda M. O'Malley, Esguire Peter Papps, Esguire

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