Supp. 2d 485, 489-90 (N.D. Ill. 2001). This Court, therefore, may exercise jurisdiction over
Bonsol’s due process claims and consider the constitutionality of § 1226(c).

II. Without an individualized bond hearing, the INS’ mandatory detention of Bonsol, a
Jawful permanent resident with a good-faith challenge to deportation, is unconstitutional.

Section 1226(c) states that “the Attorney General shail take into custody any alien who
. .. is deportable by reason of having committed any offense” listed in the statute. 8 U.S.C.
§ 1226(c)(1)(B) (emphasis added). As Respondents note, the Seventh Circuit has ruled on the
constitutionality of § 1226(c), at least as applied to aliens who concede their ultimate
removability by the INS. Parra, 172 F.3d at 957. In Parra, the court held that mandatory
detention under § 1226(c) did not implicate a fundamental liberty interest because the petitioner
agreed with the INS that the drug offense to which he pled guilty made him eligible for
deportation. Id. at 958. Because there was no possibility of avoiding deportation, the court
opined that his request for a bond release was merely an attempt to “postpone[] the inevitable.”
Id. at 958. Significantly, however, Parra carved out an exception for three categories of aliens
whose ultimate deportations, unlike Parra’s own, are not certain: (1) aliens who claim they are
citizens; (2) aliens who claim they have not been convicted of the offenses that trigger removal;
and (3) aliens who have no country to which they can be removed. /d. at 957. Several courts
have invoked these exceptions and have allowed aliens not conceding removability to bring due
process challenges to § 1226(c). See, e.g., Vang v. Ashcroft, 149 F. Supp. 2d 1027, 1035 (N.D.
Ill. 2001) (Pallmeyer, J.); Gill v. Ashcroft, No. 01 C 9879, 2002 WL 1163729, *4 (N.D. Ill. May

31, 2002) (Nordberg, J.).



~

Because we hold that Bonsol’s substantive due process rights are infringed by the mandatory
detention provision of § 1226(c), he is entitled to the due process that an individualized bond
hearing provides. This minimal accommodation will ensure that Petitioner’s due process rights
are not abridged and is not onerous when weighed against the liberty interest at stake.’
CONCLUSION
For the foregoing reasons, we granted in part and denied in part Bonsol’s petition for

habeas corpus, (R. 1-1), and denied the Governmen’t’s motion to dismiss, (R. 6-1).

ENTERED: Vy
HES

Judge Ruben Castillo
United States District Court

Date: January 3, 2003

2? We emphasize that this opinion is limited to the narrow holding that a legal resident
alien, who contests his removability, may not be detained without an individualized bond hearing
pursuant to § 1226(c) because such mandatory detention violates his substantive due process
tights. We do not hold that § 1226(c) is facially invalid, nor do we decide whether Bonsol’s
procedural due process rights were violated in this case. But see Welch, 293 F.3d at 218 n.4
(noting that procedural due process challenge “collapses into” the substantive due process
challenge).



In response, the INS filed a motion to dismiss Bonsol’s petition for lack of subject matter
jurisdiction and for failure to state a claim. Fed. R. Civ. P. 12(b)(1), 12(b)(6). Respondents
argue first that Bonsol must exhaust his administrative remedies before seeking relief in federal
court. The respondents further contend that the statute is constitutional and has been upheld by

_ the Seventh Circuit in Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999).
LEGAL STANDARD

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit.
Autry v. N.W. Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). All well-pleaded facts
are taken as true, and all inferences are drawn in favor of the non-movant. Dawson v. Gen.
Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992). The motion will be granted only if it appears
beyond a doubt that the non-movant can prove no set of facts entitling him to relief. Venture
Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 432 (7th Cir. 1993).

ANALYSIS
I. This Court has jurisdiction over constitutional challenges to § 1226(c).

Federal district courts possess jurisdiction over constitutional questions raised in habeas
corpus petitions. See Calcano-Martinez v. INS, 533 U.S. 348, 351 (2001); Forbes v. Perryman,
222 F. Supp. 2d 1076, 1077 (N.D. Ill. 2002). Although § 1226(e) of the INA forecloses judicial
review of discretionary INS decisions on bond or detention, the constitutionality of the statute
itself may still be adjudicated in court. Parra, 172 F.3d at 957. Moreover, where habeas corpus
petitioners question the constitutionality of a statute, they need not exhaust administrative

remedies prior to filing their petition. Forbes, 222 F. Supp. 2d at 1077; Yanez v. Holder, 149 F.



Vang and Gill invoke Parra’s second exception, holding that if the detained alien has a
legitimate, potential defense to removal he may be eligible for release on bond while awaiting the
final removal decision. In Vang, for example, the defendant’s contention that he had not
committed an aggravated felony cast sufficient doubt on the “inevitability” of his deportation that
he deserved the possibility of release on bond. Vang, 149 F. Supp. 2d at 1036. Similarly, in Gill,
the petitioner claimed that his Illinois disposition was not a “conviction” for purposes of the
immigration statutes. Gill, 2002 WL 1163729, at *1. Like these cases, we believe that our case
is distinguishable from Parra because Bonsol has not conceded his removability and, like the
petitioner in Gill, raises a good-faith challenge to his removal based on his assertion that he was
not “convicted” under Illinois law. Thus, we turn to the constitutionality of § 1226(c) as applied
to Bonsol.

The Fifth Amendment’s guarantee of substantive due process protects Americans,
including lawful permanent residents of the United States, Zadvydas v. Davis, 533 U.S. 678, 693
(2001), against government conduct that “shocks the conscience” or “interferes with rights
implicit in the concept of ordered liberty,” Vang v. Ashcroft, 149 F. Supp. 2d at 1034-5 (internal
citation omitted). Where a fundamental liberty interest is at stake, the government’s conduct
must be narrowly tailored to meet a compelling interest. Reno v. Flores, 507 U.S. 292, 301-02
(1993); United States v. Salerno, 481 U.S. 739, 750-51 (1987); Vang, 149 F. Supp. 2d at 1035.
At issue in this case is whether the mandatory detention of permanent resident aliens without
possibility of bond is narrowly tailored to the INS’ interest in: “(1) protecting the public from
potentially dangerous criminal aliens; (2) preventing aliens from absconding during removal

proceedings; and (3) correcting procedures under which twenty percent of criminal aliens



>

~srinute Order Form (06/97)
(Punitea States District Court, Northern District of Illinois
‘ano Aine Jude Ruben Castillo Sng dese
CASE NUMBER 02 C 6530 DATE 1/3/2003
CASE Jose Bonsol vs. Brian Perryman, District Director
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented, ]
DOCKET ENTRY:
(60) a Filed motion of [ use listing in “Motion” box above.]
(2) qo Brief in support of motion due _
(3) oO Answer brief to motion due___. Reply to answer briefdue___.
(4) Oo Ruling/Hearing on setfor___ at
(5) Oo Status hearing[held/continued to] [set for/re-set for]on_—_eset for at
(6) im Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor__——s at.
(7) im} Trial{set for/re-set for]on___at
(8) o [Bench/Jury trial] [Hearing] held/continuedto__—__at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) CLocal Rule 41.1 OFRCP41(a\(1) OO FRCP41(a}(2).

ao) =f {Other docket entry] | Enter Memorandum Opinion and Order. Jose Bonsol’s petition for habeas
corpus is granted in part and denied in part. Respondents’ motion to dismiss is denied. This case is
hereby dismissed.

dai) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

Document
Number: :.

No notices required, umber of notices

VAN 0. § 2003

Notices mailed by judge’s staff.

Notified counsel by telephone.

| Docketing to mail notices.

Mail AO 450 form. 7

Copy to judge/magistrate judge 4unod Lan1sia sn
yest

Ro espa B24 Hd €- WWE ey

initials

OT OEGLS once

mailing deputy initials



uv

released on bond did not report for deportation hearings; and (4) restoring public faith in the
immigration system.” Vang at 1037 (citing S. Rep. No. 104-48, at *1-3 (1995)).

We believe that mandatory detention, as applied to lawful permanent resident aliens like
Bonsol, is not necessary to ensure removal of criminals subject to § 1226(c), and is not narrowly
tailored to that objective. The provision is not narrowly tailored because it adopts a categorical
approach to detention, based only on the criterion of lack of United States citizenship. It does not
account for the severity of the criminal offense at issue, the detainee’s alien status, his ties to the
community versus his risk of flight, or any other factor that is otherwise determinative according
to Congress’s stated reasons for the mandatory detention provision. Although Congress has
broad power over immigration and thus it may be argued that such detention of aliens falls within
this power, see Flores, 507 U.S. at 294-95, legal residents are entitled to heightened
constitutional protection by virtue of their status and links to the community, Zadvydas, 533 U.S.
at 694; Landon v. Plasencia, 459 U.S. 21, 32 (1982); Plyler v. Doe, 457 U.S. 202, 210 (1982)
(“Aliens . . . have long been recognized as ‘persons guaranteed due process of law’”); Patel v.
Zemski, 275 F.3d 299, 310 (3d Cir. 2001); Gill, 2002 WL 1163729, *5. But see Welch v.
Ashcroft, 293 F.3d 213, 221 (4th Cir. 2002) (detention of permanent resident aliens pending the
outcome of removal proceedings does not implicate a fundamental right); Parra, 172 F.3d at
958. Moreover, the relief sought in this case—an individualized bond hearing—does not in any
way infringe on the political branches’ plenary power with respect to immigration issues,
Zadvydas, 533 U.S. at 695, 700; Flores, 507 U.S. at 305; ‘our tuling simply accords detainees the

opportunity to establish that detention pending removal is not warranted in their case.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JOSE BONSOL, )
)
Petitioner, )
) No. 02 C 6530
v. ) Judge Ruben Castillo
)
BRIAN PERRYMAN, District Director )
of the Immigration and Naturalization )
Services, and the UNITED STATES )
OF AMERICA, ) 1)
) CKer,
Respondents. ) Yan 06 LD

003
MEMORANDUM OPINION AND ORDER

Petitioner Jose Bonsol filed a petition for a writ of habeas corpus challenging the
constitutionality of § 236(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. §
1226(c), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), arguing that its mandatory detention provision violates his due process rights.
He sought immediate release from Immigration and Naturalization Service (“INS”) custody or, at
the minimum, an individualized bond hearing to assess whether detention without bond was
warranted in his case. Respondents filed a motion to dismiss Bonsol’s habeas corpus petition for
failure to state a claim and for lack of subject matter jurisdiction. On December 10, 2002, this
Court issued an order granting Bonsol’s petition in part and denying it in part, and ordered the

INS to hold an individualized bond hearing within 10 days.' We also denied the INS’ motion to

' Pursuant to this Court’s Order, the INS promptly granted Bonsol an individualized
bond hearing, and the immigration judge set bond in the amount of $10,000.


dismiss. We issue this opinion to explain more fully our decision to grant Bonsol’s request for
an individualized bond hearing.
RELEVANT FACTS

Petitioner Jose Bonsol, a citizen of the Philippines, has been a permanent resident alien in
the United States since November 1996, On June 29, 2001, he was convicted of possessing
methamphetamine in violation of Illinois law and was sentenced to two years’ probation. See
720 ILCS 570/410. As a result of this offense the INS initiated deportation proceedings against
Bonsol in August 2002. Pursuant to § 1226(c) of the INA, which requires the Attomey General
to detain aliens deportable because of their criminal offenses, the INS detained Bonsol without
bond. On September 4, 2002, the immigration judge, relying on § 1226(c), denied Bonsol’s
request for bond and ordered Bonsol removed to the Philippines. (R. 6, Resp’t Mot. to Dismiss,
Ex. 3, Immigration Judge Order.) Bonsol appealed the decision, contending that probation is not
a “conviction” under Illinois law that triggers deportation proceedings under the INA. He
presently awaits a final order of the Board of Immigration Appeals (BIA).

While awaiting the results of his BIA appeal, Bonsol filed a petition for a writ of habeas
corpus in this Court under 28 U.S.C. § 2241. Bonsol argues that the broad sweep of the INA’s
mandatory detention requirement without prior individualized bond hearings violates both the
procedural and substantive due process guarantees of the Fifth Amendment. Bonsol further
contends that Congress’s twin rationales for mandatory detention under § 1226(c)—flight risk
and danger to the community—are not present in every case and thus an individualized bond

hearing is necessary to ensure that his liberty interests are adequately protected.