Ngo v. INS

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

9-24-1999

Ngo v. INS

Precedential or Non-Precedential:

Docket 97-1419

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Filed September 24, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1419

CHI THON NGO a/k/a DAVID LAM,

Appellant

v.

IMMIGRATION AND NATURALIZATION SERVICE

APPEAL FROM THE DENIAL OF WRIT OF HABEAS

CORPUS BY THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-7755)

District Judge: Honorable Robert F. Kelly

Argued June 23, 1999

Before: ROTH, WEIS and COWEN, Circuit Judges

(Filed September 24, 1999)

Steven A. Morley, Esquire (ARGUED)

Bagia & Morley

The Bourse, Suite 592

111 S. Independence Mall East

Philadelphia, PA 19106

Attorney for Appellant

Virginia R. Powel, Esquire

Office of the United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

David W. Ogden, Esquire

Acting Assistant Attorney General,

Civil Division

David M. McConnell, Esquire

Assistant Director

Papu Sandhu, Esquire (ARGUED)

Emily A. Radford, Esquire

Office of Immigration Litigation

Civil Division, Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Appellee

OPINION OF THE COURT

WEIS, Circuit Judge.

The issue in this appeal is whether aliens who have

committed serious crimes in this country may be detained

in custody for prolonged periods when the country of origin

refuses to allow the individual's return. We conclude that

such detention is permitted by the relevant statutes, and is

constitutional if the government provides individualized

periodic review of the alien's eligibility for release on parole.

Because petitioner did not receive the necessary rigorous

review, we will grant a writ of habeas corpus subject to the

right of the Immigration and Naturalization Service to

promptly institute appropriate administrative action.

Petitioner is a native of Vietnam who was paroled 1 into

_________________________________________________________________

1. The Attorney General has the discretion to temporarily "parole" alien

refugees into the United States. 8 U.S.C. S 1182(d)(5)(A), (B) (1994). The

term "parole" is nowhere defined. See 5 Charles Gordon et al.,

Immigration Law and Procedure S 62.01[1], at 62-2 (1999). In the context

of an alien's initial entry, this amounts to permission by the Attorney

General for ingress into the country but is not a formal "admission." 8

U.S.C. S 1182(d)(5)(A) (1994). When the Attorney General concludes that

the purposes of this immigration parole have been served, she may order

the alien to "return or be returned to . . . custody." Id. When parole is

revoked, the alien reverts to the status of an applicant for admission,

2

the United States as a refugee in 1982. He was arrested in

1988 for possession of a firearm and in 1989 for attempted

robbery. He was convicted in state court and received

concurrent sentences of one year each for the firearm

offense and an accompanying bail-jumping charge, and two

to four years for the attempted robbery.

In March 1995, petitioner was subjected to exclusion

proceedings by the INS for lack of a valid immigrant visa,

8 U.S.C. S 1182(a)(7)(A)(i)(I) (1994); conviction of a crime

involving moral turpitude, id. S 1182(a)(2)(A)(i)(I); and

conviction of two or more crimes for which the aggregate

sentences actually imposed were five years or more, id.

S 1182(a)(2)(B). After a hearing before an immigration judge,

petitioner was ordered excluded and deported. The order

became final on July 6, 1995.

After petitioner was paroled by state authorities, he was

taken into custody by the INS and has been detained since

that time. The record does not disclose exactly when

petitioner came into INS custody, but it appears to have

been around the middle of 1995. The detention was served

in county jails in Pennsylvania until petitioner was

transferred to the INS center in New Orleans, Louisiana,

where he is presently confined. The INS has attempted to

return petitioner to Vietnam, but that country has refused

to accept him.

Petitioner sought habeas corpus relief in December 1995,

but his request was denied by the District Court, which

cited the INS' "diligent effort[s]" to return him to Vietnam.

No appeal was taken. Petitioner subsequently filed the

present petition in November 1996, contending that

because Vietnam will not take him back, he is subject to

virtually indefinite detention in violation of due process.

_________________________________________________________________

whose admissibility is determined in exclusion or the more recent

removal proceedings. 8 U.S.C. S 1226 (1994); id. S 1229a (Supp. II 1996);

5 Gordon et al., supra, S 62.01[4], at 62-12. "Parole" in this sense is

different from the conventional sense of parole from a term of

incarceration. As will be seen, the term "parole" has a third usage

describing the release from custody of aggravated felons who are being

held in administrative detention.

3

Petitioner also contended that he should be eligible for

release on parole. His submissions to the District Court

included letters from individuals attesting to his reformed

character, and a statement that while incarcerated, he had

obtained a GED, learned skills, and attended classes on

behavior modification and theology. The District Court

denied relief to petitioner without an evidentiary hearing.

Petitioner had also applied to the Attorney General for

release on parole. An Assistant District Director for

Detention and Deportation denied the request in a 1996

letter, stating that petitioner represented a high risk of

flight and a threat to the safety of the community based on

his record of convictions and bail jumping. Some months

later, another Assistant District Director, in an affidavit,

echoed the previous letter. Since then, petitioner has been

denied discretionary parole in at least three letters that

essentially parrot the previous refusals.

On appeal, we appointed counsel for petitioner, who

previously had been unrepresented. In this Court,

petitioner contends that confining him on an indefinite and

possibly permanent basis is a denial of his substantive and

procedural due process rights. Moreover, he asserts that

denial of parole without a determination of his present

dangerousness and risk of flight is arbitrary and capricious,

particularly in the absence of detailed regulations governing

review of such applications.

The District Court had jurisdiction over the petition for

habeas corpus under 28 U.S.C. S 2241. Sandoval v. Reno,

166 F.3d 225, 237-38 (3d Cir. 1999); see also DeSousa v.

Reno, ___ F.3d ___, No. 99-1115, 1999 WL 643171, at *5

(3d Cir. Aug. 25, 1999). We have appellate jurisdiction

under 28 U.S.C. S 1291, and review the dismissal of an

application for habeas corpus de novo. Yang v. Maugans,

68 F.3d 1540, 1546 (3d Cir. 1995).

I.

Petitioner does not contend that the Attorney General

lacks authority to remove him from the United States, but

instead, disputes whether she may keep him in custody.

The first issue before us is whether, after afinal order of

4

exclusion is issued, she has the statutory authority to

detain aliens who have committed specific crimes. We

conclude that the Attorney General does have such power

under both the statute in force at the time of the

petitioner's initial detention, and the version as amended in

1996.

At the time petitioner was first detained, the Immigration

and Naturalization Act required the Attorney General to

"take into custody any alien convicted of an aggravated

felony upon release of the alien" from incarceration,

pending a determination that he was excludable. 8 U.S.C.

S 1226(e)(1) (1994); see also 8 U.S.C.S 1182(d)(5)(A) (1994)

(giving the Attorney General the right to return into custody

a parolee who had been allowed into the country when, in

her opinion, "the purposes of such parole shall .. . have

been served"). Under that version of the Act, Congress

required that an excluded alien be "immediately deported,"

unless the Attorney General concluded that, "in an

individual case, . . . immediate deportation is not

practicable or proper." 8 U.S.C. S 1227(a)(1) (1994).

In cases where the country of origin would refuse or

unduly delay the alien's return, the Attorney General could

release the detainee from custody, but only where review

established that he would not pose a danger to the safety

of other persons or property. 8 U.S.C. SS 1226(e)(2), (3),

1253(g) (1994); see also Alvarez-Mendez v. Stock, 941 F.2d

956, 960-62 (9th Cir. 1991) (under section 1226(e), once

alien is taken into custody, detention must continue even

after a final order of exclusion is issued).

Although the version of the Act applicable when

petitioner was first detained does not expressly grant

authority to detain excluded aliens, the overall structure of

the statute's provisions makes it clear that Congress

intended this result. In Barrera-Echavarria v. Rison, 44

F.3d 1441 (9th Cir. 1995) (en banc), the Court of Appeals

for the Ninth Circuit examined the interplay of the

Immigration Act's various sections and stated that"it seems

difficult not to conclude that the statutory scheme

implicitly authorizes prolonged detention." Id. at 1446

5

(discussing 8 U.S.C. SS 1182(d)(5)(A), 1227(a)(1) (1994)).

Nearly every Court of Appeals to reach the issue has agreed.2

Even though the Immigration Act has never been a model

of clarity, we agree with the courts that have construed its

language and structure to permit the prolonged detention of

excludable aggravated felons. To categorically "requir[e] that

excludable aliens be released into American society when

neither their countries of origin nor any third country will

admit them," id. at 1448, will "ultimately result in our

losing control over our borders." Jean v. Nelson, 727 F.2d

957, 975 (11th Cir. 1984) (en banc), aff'd , 472 U.S. 846

(1985); see also Guzman, 130 F.3d at 66 ("Congress

intended to grant the Attorney General the authority to

detain excludable aliens indefinitely . . . ."); Barrera-

Echavarria, 44 F.3d at 1448 (in an area with"sensitive

foreign policy implications," the Attorney General has the

authority to detain excluded aliens).

In 1996, after petitioner had been placed in detention,

Congress made sweeping changes to the Immigration Act.

See Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"); Illegal

Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA").3

Under the IIRIRA, what was once implicit is now express --

the Immigration Act now specifically provides that the

Attorney General shall detain an "inadmissible" alien for a

_________________________________________________________________

2. See Guzman v. Tippy, 130 F.3d 64, 65 (2d Cir. 1997) ("authorization

is implicit in the statutory language"); Gisbert v. U.S. Attorney General,

988 F.2d 1437, 1446, amended, 997 F.2d 1122 (5th Cir. 1993) (section

1226(e) "appears to assume" the power to detain); Fernandez-Roque v.

Smith, 734 F.2d 576, 582 (11th Cir. 1984) (appearing to assume there

was authority to detain); Palma v. Verdeyen, 676 F.2d 100, 103-04 (4th

Cir. 1982) (Congress "implicitly authorized" indefinite detention). Cf.

Alvarez-Mendez, 941 F.2d at 962 (concluding that the statute explicitly

authorizes continued detention). But see Rodriguez-Fernandez v.

Wilkinson, 654 F.2d 1382, 1385 (10th Cir. 1981) (statute is vague).

3. Immigration law is sufficiently labyrinthian without jumbled cross-

references to the sections of the Immigration Act, IIRIRA, AEDPA, and

the United States Code. When referring to statutory provisions, we

therefore cite only to the United States Code wherever possible.

6

90-day period pending "removal" from the country,4 and

may continue to detain him until deportation if he has been

found guilty of designated crimes. 8 U.S.C. S 1231(a) (Supp.

II 1996).

Many provisions of the amended statute, however, do not

apply to an alien "who is in exclusion . . . proceedings

before [this subtitle's] effective date" of April 1, 1997. 8

U.S.C. S 1101 note (reprinting IIRIRAS 309(c)(1)). It is

arguable that since a final order of exclusion had been

entered against petitioner before the effective date, he was

no longer "in exclusion proceedings," and therefore, that

the amended Act does not govern his situation. See

Zadvydas v. Underdown, ___ F.3d ___, No. 97-31345, 1999

WL 604311, at *4 & n.7 (5th Cir. Aug. 11, 1999) (noting the

confusion in the statute, and concluding that the IIRIRA

applies to aliens who have received a final exclusion order).

Because both the former and present statutes grant the

_________________________________________________________________

4. Among the changes brought by the IIRIRA was a shift in basic

immigration terminology. Previously, "excludable" aliens were those who

were ineligible for admission or entry into the United States, even though

in reality they were often granted "parole," which allowed them to come

into the country. 8 U.S.C. S 1182 (1994); Alvarez-Mendez, 941 F.2d at

961 n.4. Excludable aliens could have their "parole" revoked, with

exclusion proceedings brought to deport them. 8 U.S.C. SS 1182(d)(5)(A),

1226-1227 (1994). "Deportation" proceedings, in contrast, were brought

against those aliens who had gained admission into the country. Id.

S 1252 (1994); Alvarez-Mendez, 941 F.2d at 961 n.4. See generally 5

Gordon et al., supra, S 65.02[1].

As amended, the Immigration Act refers to "inadmissible" aliens in the

place of "excludable" aliens. Although there are still separate grounds of

"inadmissibility" and "deportability," the distinction now turns on

whether an alien has been "admitted" to the United States, rather than

on whether the alien has gained "entry." 5 Gordon et al., supra,

S 63.01[3], at 63-7 & n.17 (citing 8 U.S.C. S 1101(a)(13)); id. S

65.02[2],

at 65-7 to 65-11. Also, the former distinction between "exclusion" and

"deportation" proceedings has been dropped in favor of one procedure,

called "removal" proceedings. 8 U.S.C. S 1229a (Supp. II 1996). Although

certain inadmissible aliens are subject to an expedited removal

procedure, id. SS 1225(b), 1228, the amended Act now uses "removal"

proceedings as the general procedure for both inadmissible and

deportable aliens. Id. S 1229a(a)(2), (3).

7

Attorney General authority to detain, we need not and do

not decide which version currently applies.

Similarly, both versions provide that the Attorney General

may release a criminal alien from detention on parole

subject to regulations. 8 U.S.C. S 1231(a)(3), (6) (Supp. II

1996); 8 U.S.C. S 1226(e)(2), (3) (1994). Finally -- as will

later appear -- the INS' parole review rules apply in either

case.5

II.

Serious conflicts between policy and constitutional

concerns are presented by criminal aliens whose countries

of origin refuse to repatriate them. Congress' measures to

insulate the community from potentially dangerous

criminal aliens via lengthy detention have the potential to

violate due process. Yet alternatives to incarceration have

problems as well -- one Justice Department report

concluded that 90 percent of aliens released from custody

abscond. See Department of Justice, Immigration and

Naturalization Service, Executive Office for Immigration

Review, Inspection and Expedited Removal of Aliens;

Detention and Removal of Aliens; Conduct of Removal

Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312,

10,323 (1997).

The influx into this country of Cuban criminals from Port

Mariel in 1980 presents a concrete example of this conflict.

Many of them were hardened convicts who had been

released from their Cuban jails and included in the boat-

lift. The Cuban government has refused to permit their

return. Consequently, many of the Mariel Cubans--

approximately 1,750 -- still remain in INS detention

because of their danger to the community. In addition to

this group, the governments of Vietnam, Laos and

_________________________________________________________________

5. The adoption of the AEDPA and IIRIRA by Congress in 1996, together

with the IIRIRA Transitional Rules that expired in October 1998, have

created a complex assortment of amended and repealed provisions that

is frequently baffling. In such a setting, rambling discussions on the

possible application of the various versions of the statutes without a

necessity to do so can create troubling precedents or dicta.

8

Cambodia have refused to repatriate citizens who have been

ordered to be deported from the United States. The number

of such aliens, including a number of Cubans who were not

part of the Mariel boat-lift, exceeds 1,800.

The power to exclude aliens is a "fundamental sovereign

attribute exercised by the Government's political

departments largely immune from judicial control."

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,

210 (1953). "For reasons long recognized as valid, the

responsibility for regulating the relationship between the

United States and our alien visitors has been committed to

the political branches of the Federal Government." Mathews

v. Diaz, 426 U.S. 67, 81 (1976). It is a truism that "[i]n the

exercise of its broad power over naturalization and

immigration, Congress regularly makes rules that would be

unacceptable if applied to citizens." Id. at 79-80. An alien

who is "on the threshold of initial entry" stands on a footing

different from those who have "passed through our gates"

-- " `Whatever the procedure authorized by Congress is, it

is due process as far as an alien denied entry is

concerned.' " Mezei, 345 U.S. at 212 (quoting United States

ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)).

The case before us does not question the validity of the

procedures used to admit or exclude petitioner, but it is

against that backdrop that we consider whether the

indeterminable nature of his detention pending ultimate

deportation rises to a constitutional violation. Even an

excludable alien is a "person" for purposes of the Fifth

Amendment and is thus entitled to substantive due

process. Wong Wing v. United States, 163 U.S. 228, 238

(1896) ("persons within the territory of the United States

. . . and . . . even aliens . . . [may not] . . . be deprived of

life, liberty or property without due process of law"); see

also Lynch v. Cannatella, 810 F.2d 1363, 1366 (5th Cir.

1987) (excludable alien may not be subjected to brutality by

government officials). In addition, procedural due process is

available to aliens in some circumstances. See Landon v.

Plasencia, 459 U.S. 21, 32-33 (1982) ("a continuously

present resident alien is entitled to a fair hearing when

threatened with deportation . . . [and] has a right to due

process" before being required to leave the country).

9

In Mezei, the Attorney General detained an excludable

individual for more than 21 months at Ellis Island because

he posed a security threat. Other nations had refused to

take him into their country. The Supreme Court concluded

that no constitutional violation had occurred. 345 U.S. at

215-16. Mezei has been much criticized, 6 but has remained

a governing precedent and has been applied, with some

modifications, in most of the leading cases.

In Barrera-Echavarria v. Rison, a case involving a Mariel

Cuban, the Court of Appeals for the Ninth Circuit

concluded that "applicable Supreme Court precedent

squarely precludes a conclusion that [excludable aliens]

have a constitutional right to be free from detention, even

for an extended time." 44 F.3d at 1449. However, the Court

qualified its holding, recognizing that the case did not

involve "the constitutionality of `indefinite' or `permanent'

detention with no prospect of release." Id . at 1450. Barrera-

Echavarria also pointed to the existence of detailed

regulations providing for periodic review of the alien's

eligibility for parole. Id. (discussing 8 C.F.R. SS 212.12,

212.13). Thus, the custody was not indefinite, but was

instead "a series of one-year periods of detention followed

by an opportunity to plead [the] case anew." Id. In those

circumstances, the Court concluded that there was no

constitutional violation. Id.

Most appellate courts have reached a similar result, with

some variation in their reasoning. In Palma v. Verdeyen, the

Court of Appeals for the Fourth Circuit refused to hold that

the detention of a Mariel Cuban violated due process,

saying that "the fifth and sixth amendments do not require

a restrictive interpretation of the Immigration Act that

would either circumscribe the right of the United States to

deny admission to aliens or limit the congressional power

granted in Article I S 8 . . . ." 676 F.2d at 104; see also

Guzman, 130 F.3d at 66 (excluded alien's rights determined

_________________________________________________________________

6. See, e.g., Jean, 472 U.S. at 876 n.9 (Marshall, J., dissenting)

(listing

commentaries); Lisa C. Solbakken, Note, The Anti-Terrorism And Effective

Death Penalty Act: Anti-Immigration Legislation Veiled in an Anti-

Terrorism

Pretext, 63 Brook. L. Rev. 1381, 1400 n.100 (1997) (listing

commentaries).

10

by procedures established by Congress and not by the due

process protections of the Fifth Amendment, and noting

existence of regulations allowing parole); Gisbert, 988 F.2d

at 1442-44 ("continued INS detention of the petitioners is

not punishment and does not constitute a violation of the

aliens' rights to substantive due process," and noting the

existence of regulations for a grant of parole); Fernandez-

Roque, 734 F.2d at 582.

The one appellate opinion fundamentally differing in its

approach is Rodriguez-Fernandez v. Wilkinson. There, the

Court of Appeals for the Tenth Circuit observed that the

prolonged detention at issue was "imprisonment under

conditions as severe as we apply to our worst criminals."

654 F.2d at 1385. Acknowledging the "entry fiction" that

detention is only a continuation of exclusion, the Court

construed the statute to require release so as to avoid the

"serious constitutional questions" of indefinite detention. Id.

at 1386.

It is significant, however, that the decision in Rodriguez-

Fernandez was handed down before the promulgation of

regulations providing parole review for Mariel Cubans. A

number of Courts have looked to the existence of those

procedures to turn back due process challenges. See

Guzman, 130 F.3d at 66; Barrera-Echavarria , 44 F.3d at

1450; Palma, 676 F.2d at 104-05. Cf. Alvarez-Mendez, 941

F.2d at 962-63 (not relying on existence of procedures in

constitutional analysis); Gisbert, 988 F.2d at 1442-44

(holding that denial of parole is not a constitutional

violation, but noting that petitioners did not assert the

government failed to follow the review procedures);

Fernandez-Roque, 734 F.2d at 582 (because petitioners had

no liberty interest whatsoever, there was no need to look to

Cuban review procedures).

A post-IIRIRA case also cited the parole provisions. In

Zadvydas v. Underdown, the Court of Appeals for the Fifth

Circuit discussed the plight of a "stateless person" with a

long criminal history who had been ordered deported. In

that case, the petitioner was a resident alien rather than an

excludable alien, as was the situation with the Mariel

Cubans. The Court, looking to the IIRIRA, decided that

once an order of deportation is final, no distinction exists

11

between the rights of resident aliens and those ordered

removed as excludable. 1999 WL 604311, at *5, *11-*12. In

that fashion, the Court confined the distinction created by

the Mezei "entry fiction" to proceedings prior to a final order

of exclusion or deportation. Id. at *12-*13.

The Zadvydas Court noted two justifications for detention

-- the risk of flight and the threat of additional criminal

activity. "[W]hile we must tolerate a certain risk of

recidivism from our criminal citizens, we need not be

similarly generous when it comes to those who have not

achieved citizenship." Id. at *13. The Court held that

detention was permissible "while good faith efforts to

effectuate the alien's deportation continue and reasonable

parole and periodic review procedures are in place." Id. at

*14. Reasoning that the alien might ultimately find a

country that would accept him, the Court concluded that

the detention was permissible because rules permitting

parole review were in existence. Id. at *4, *7, *14 (citing

Gisbert, 988 F.2d at 1443 n.11).

To summarize, case law holds there is no constitutional

impediment to the indefinite detention of an alien with a

criminal record under a final order of exclusion,

deportation, or removal if (1) there is a possibility of his

eventual departure; (2) there are adequate and reasonable

provisions for the grant of parole; and (3) detention is

necessary to prevent a risk of flight or a threat to the

community.

To a large extent, these holdings are based on thefiction

that "detention is not punishment," and the"entry" fiction

that an excludable alien "stands at the border" even when

he has been physically present within the country for years.

Characterizing prolonged detention as anything other than

punishment might be somewhat puzzling to petitioner, who

remained in jail under the same conditions as before the

state released him, although his status had technically

changed from that of a state inmate to an INS "detainee."

Similarly, an alien whose detention occurs in a maximum

security federal prison may be forgiven for wondering when

his punishment stopped and detention began. Rodriguez-

Fernandez, 654 F.2d at 1385.

12

As Justice Jackson remarked, "[i]t overworks legal fiction

to say that one is free in law when by the commonest of

common sense he is bound." Mezei, 345 U.S. at 220

(Jackson, J., dissenting). It is similarly unrealistic to believe

that these INS detainees are not actually being"punished"

in some sense for their past conduct.

Nevertheless, the power of the government to detain

aliens is well-established. Reno v. Flores, 507 U.S. 292,

305-06 (1993). Even citizens may be confined pretrial

under certain circumstances. United States v. Salerno, 481

U.S. 739, 746-48 (1987). Indeed, a citizen may be

committed indefinitely when his mental condition poses a

danger of criminal violence to the community. Kansas v.

Hendricks, 521 U.S. 346, 363 (1997); Addington v. Texas,

441 U.S. 418, 426-27 (1979).

We therefore hold that aliens with criminal records as

specified in the Immigration Act may be detained for

lengthy periods when removal is beyond the control of the

INS, provided that appropriate provisions for parole are

available. When detention is prolonged, special care must

be exercised so that the confinement does not continue

beyond the time when the original justifications for custody

are no longer tenable. The fact that some aliens posed a

risk of flight in the past does not mean they will forever fall

into that category. Similarly, presenting danger to the

community at one point by committing crime does not place

them forever beyond redemption.

Measures must be taken to assess the risk of flight and

danger to the community on a current basis. The stakes are

high and we emphasize that grudging and perfunctory

review is not enough to satisfy the due process right to

liberty, even for aliens.

For example, the petitioner in this case was repeatedly

denied parole by INS officials based on no more than a

reading of his file that listed years-old convictions for

firearm, attempted robbery, and bail jumping offenses. No

inquiry was made to ascertain, for example, whether the

bail jumping offense was the result of a lack of notice,

misunderstanding, or an affirmative effort to avoid

apprehension. The INS made no effort to determine if such

13

conduct was presently likely to be repeated or whether it

could be discouraged by requiring appropriate surety.

Through at least four denials of parole, the INS continued

to cite to the petitioner's now nearly ten-year old

convictions as justification to confine him.

We do not suggest that these convictions are no longer

relevant. Due process is not satisfied, however, by rubber-

stamp denials based on temporally distant offenses. The

process due even to deportable and excludable aliens

requires an opportunity for an evaluation of the individual's

current threat to the community and his risk offlight.

It is extremely unlikely that the petitioner's detention will

be permanent. Diplomatic efforts with Vietnam are

underway, albeit at a speed approximating the flow of cold

molasses. Although the progress is agonizingly slow, it

nonetheless represents movement toward the petitioner's

ultimate repatriation. He has, however, been detained in a

prison setting for more than four years after being found by

state authorities to be suitable for release into the

community following his criminal convictions. To presume

dangerousness to the community and risk of flight based

solely on his past record does not satisfy due process.

After oral argument on this case, the INS announced

detailed Interim Rules for detainees such as petitioner, and

its intention to promulgate regulations to the same effect.7

These rules have some similarities to those available for the

Mariel Cubans. The Interim Rules include (1) written notice

to the alien thirty days prior to the custody review advising

that he may present information supporting a release; (2)

the right to representation by counsel or other individuals;

(3) the opportunity for an annual personal interview; (4)

written explanations for a custody decision; (5) the

opportunity for review by INS headquarters; (6) reviews

every six months; (7) a refusal to presume continued

detention based on criminal history; and other provisions,

as quoted in the Appendix attached to this opinion.

_________________________________________________________________

7. United States Department of Justice, Immigration and Naturalization

Service, Memorandum from Michael A. Pearson, Executive Associate

Commissioner, Office of Field Operations, Interim Changes and

Instructions for Conduct of Post-Order Custody Reviews (Aug. 6, 1999).

14

We have reviewed these rules carefully and conclude that

conscientiously applied, they provide reasonable assurance

of fair consideration of a petitioner's application for parole

pending removal. We are aware that in a similar case, a

five-judge District Court in the Western District of

Washington required that detainees receive a hearing before

an immigration judge with a right of appeal to the Bureau

of Immigration Appeals. Phan v. Reno, ___ F. Supp. 2d ___,

Nos. C98-234Z, C99-177C, C99-185R, C99-341WD, C99-

151L, 1999 WL 521980, at *7 (W.D. Wash. July 9, 1999).

That Court noted its dissatisfaction with earlier INS review

procedures, reciting criticism that "Directors simply relied

on the aliens' past criminal history and the fact that they

were facing removal from the United States, summarily

concluding that the aliens posed such risks and denying

them release." Id. We agree that such superficial review is

not satisfactory and does not afford due process.

The Interim Rules, subsequently announced by the INS,

appear on their face to satisfy Phan's objections. Among

other things, the rules require an individualized analysis of

the alien's eligibility for parole, present danger to society

and willingness to comply with the removal order.

Moreover, they do not result in placing additional cases on

the already overloaded dockets of immigration judges.

The Interim Rules apply to petitioner, regardless of

whether one concludes that he is being detained under the

former or present versions of the Immigration Act. Our

reading of the Interim Rules suggests that they will

encourage good faith review. So long as petitioner will

receive searching periodic reviews, the prospect of indefinite

detention without hope for parole will be eliminated. In

these circumstances, due process will be satisfied.

We do not intend to create a new legal fiction that allows

for de facto indefinite detention based upon reviews that

are comprehensive in theory but perfunctory in fact. Thus,

if experience should show that our initial reaction to the

Interim Rules or eventual permanent regulations was too

sanguine, there will be time enough to consider the more

extensive methods suggested by the Phan Court.

The petitioner has not yet received the rigorous review of

his eligibility for parole that due process requires.

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Accordingly, the order of the District Court will be reversed

and the case remanded with directions that the petition for

a writ of habeas corpus be granted and the petitioner

released unless within 30 days the INS begins the review

process for petitioner under the Interim Rules set out in the

Appendix to this opinion (or under permanent regulations

that are at least as favorable to him). We neither express

nor intimate any views as to whether petitioner should be

released on parole as a result of review under the Interim

Rules.

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APPENDIX

INTERIM PROCEDURES

(1) Pursuant to the provisions of 8 C.F.R. S 241.4, the

District Director will continue to conduct a custody

review of administratively final order removal cases

before the ninety-day removal period mandated by

S 241(a)(1) expires for aliens whose departure cannot

be effected within the removal period.

(2) These procedures apply to any alien ordered removed

who is inadmissible under S 212, removable under

237(a)(1)(C), 237(a)(2), or 237(a)(4) or who has been

determined by the Attorney General to be a risk to the

community or unlikely to comply with the order of

removal. They cover aliens convicted of an aggravated

felony offense who are subject to the provisions of old

INA S 236(e)(1)-(3), and non-aggravated felon aliens

with final orders of exclusion. Mariel Cubans are

excluded from these procedures as parole reviews for

them are governed by 8 C.F.R. S 212.12. The ninety-

day review will be conducted pursuant to the

instructions set out in the memoranda of February 3

and April 30, 1999. District Directors may, in their

discretion, interview the alien if they believe that an

interview would facilitate the custody review.

(3) Following expiration of the ninety-day removal period,

the next scheduled review provided by the District

Director shall be nine months from the date of thefinal

administrative order of removal or six months after the

last review, whichever is later. Written notice shall be

given to each alien at least 30 days prior to the date of

the review. The notice will be provided either by

personal service or certified mail/return receipt. The

notice shall specify the factors to be considered and

explain that the alien will be provided the opportunity

to demonstrate by clear and convincing evidence that

he is not a threat to the community and is likely to

comply with the removal order.

(4) For the review discussed in paragraph 3 above, an

interview is mandatory and the District Director's

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preliminary decision will be subject to Headquarters

review. Thereafter, custody reviews will be conducted

every six months, alternating between District Director

file reviews and a review that includes the opportunity

for an interview at the alien's request and a

Headquarters review of detention decisions. A separate

notice will advise the alien of the opportunity for the

interview. The alien may check the appropriate box on

the notice, returning the form provided within 14

calendar days so that an interview may be scheduled.

The District Director has the discretion to schedule

further interviews if he determines they would assist

him in reaching a custody determination.

(5) The alien must be advised that he may submit any

information relevant to support his request for release

from detention, either in writing, electronically, by U.S.

mail (or any combination thereof), or in person if an

interview is conducted. The alien must also be advised

that he may be represented by an attorney, or other

person at no expense to the government. If an

interview has been scheduled, the alien's

representative may attend the review at the scheduled

time.

(6) The District Director may delegate custody decisions to

the level of the Assistant District Director, Deputy

Assistant District Director, or those acting in their

capacity. Custody determinations will be made by

weighing favorable and adverse factors to determine

whether the detainee has demonstrated by clear and

convincing evidence that he does not pose a threat to

the community, and is likely to comply with the

removal order. See 8 C.F.R. S 241.4. The alien's past

failure to cooperate in obtaining a travel document

shall be considered an adverse factor in determining

eligibility for release. See INA S 241(a)(1)(C) Suspension

of Period. The fact that the alien has a criminal history

does not create a presumption in favor of continued

detention.

(7) Within thirty days of the District Director's custody

review, the alien must receive written notification of a

custody decision. All notification will be provided either

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by personal service or certified mail/return receipt. A

decision to release should specify the conditions of

release. A decision to detain will clearly delineate the

factors presented by the alien in support of his release,

and the reasons for the District Director's decision.

(8) With respect to those detain decisions that are subject

to Headquarters review under paragraph 4, the District

Director's determination that the alien should be

detained is to be regarded as only preliminary. In those

instances, the Regional Directors will forward the

preliminary detain decisions to Headquarters for

review. Headquarters review will be conducted by

Operations and Programs representatives (with

assistance from the Office of General Counsel as

necessary). Where the Headquarters reviewer's decision

concurs with the District Director's, the Headquarters

reviewer will write a supporting statement and will seek

concurrence from a second Headquarters reviewer.

Where the two reviewers differ, a panel of three

Headquarters reviewers will conduct a further review of

the case. The Headquarters panel may ratify the

District Director's decision, return the case to the

District Director to reconsider his decision, or

determine that additional information is required to

make a decision. The Headquarters review must be

completed within thirty days of file receipt. The

Headquarters review conclusions will be forwarded to

the Regional Director for distribution to and

appropriate action by the District Director.

(9) The District Director will review his decision in light of

the Headquarters recommendations and will notify the

alien of the final custody determination within thirty

days of completion of the Headquarters review.

(10) The District Director should make every effort to effect

the alien's removal both before and after expiration of

the removal period. All steps to secure travel

documents must be fully documented in the alien's

file. However, if the District Director is unable to

secure travel documents locally after making diligent

efforts to do so, then the case shall be referred to

Headquarters OPS/DDP for assistance. More detailed

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instructions will be issued from the Executive

Associate Commissioner for Operations by separate

memorandum.

(11) On August 30, 1999, and on the last workday of each

quarter (September, December, March, June) each

district shall submit a custody review status report to

its Regional office and to Headquarters. There will be

more detailed instructions issued on reporting

procedures at a later time.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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