e.g., Zadvydas v. Davis, 121 S.Ct. 2491 (2001); Parra v. Perryman, 172 F.3d 954, 957-58 (7"
Cir. 1999).

This petition is controlled by the Seventh Circuit’s decision in Parra v. Perryman, 172
F.3d 954, because petitioner is a criminal alien who has three criminal convictions with little
likelihood of relief from removal, Parra correctly relies upon the Supreme Court’s decisions in
Reno v, Flores, 507 U.S. 292 (1993) and Carlson v. Landon, 342 U.S. 524 (1952). Both Flores
and Carlson are pre-order immigration detention cases that affirm the Attorney General’s
statutory and constitutional authority to detain aliens during immigration proccedings. Under the
holdings in Flores and Carlson, the presumption of detention under § 236(c) as applied to
criminal aliens in removal proceedings is valid and constitutional.

The court in Parra discussed the due process concems under the framework enunciated in
Matthews v. Eldridge, 424 U.S. 319 (1976). The Seventh Circuit stated that the court is required
to “evaluate the private interest, the probability of error (and the effect of additional safeguards
on the rate of error), and the government’s interest in dispensing with those safeguards, with a
thumb on the scale in favor of the statute’s constitutionality.” Parra, 172 F.3d at 958.

In a case such as this one, the private interest refers to liberty in the United States by
someone who is no longer entitled to stay in this country but able to live at liberty in his native
country. In addition, the probability of error is minimal given the crimes petitioner has bcen
convicted of, the administrative removal proceedings available to him, and the likelihood that he
would prevail on any form of relicf from removal.

In the § 236(c) context, this leaves room for the argument that, although an alien may

have a liberty interest at stake, that interest is significantly circumscribed by the alien’s


Il. Petitioner Is Not Entitled To Injunctive Relief

In his petition, petitioner also utgues that he is entitled to a preliminary injunction.
Because we find that the statute pursuant to which he is being held is constitutional, we see no
need to issue a preliminary injunction. Moreover, petitioner has failed to prove the elements
necessary to issue a preliminary injunction—inadequate remedy at law, likelihood of success on
the merits, balance of harms, and public interest. Therefore, no preliminary injunction will issue
in this case.

CONCLUSION

For the foregoing reasons, we deny petitioner’s motion for bond and release from
custody. We grant respondent’s motion to dismiss the petition for habeas corpus. This is a final
and appealable order. This case is hercby terminated.

It is so ordered.

“Wayne R, Andersen
United States District Court

pace: Meebo /f yet


On July 31, 2002, the petitioner filed a document entitled “Complaint for Declaratory
Judgment and Injunction and Petition for a Writ of Habeas Corpus” (the “petition”), The petition
alleges that the petitioner is being held under §236(c), which he claims is unconstitutional as
applied to lawful permanent resident aliens such as petitioner, As relief, the petitioner asks this
court to declare the statute relating to the mandatory detention of petitioner unconstitutional,
issue a writ of habeas corpus requiring respondent to show cause as to why petitioner should be
detained pending his BLA appeal, and order the petitioner released from custody. The
tespondents seck dismissal of the case in its entirety.

DISCUSSION

1. Section 236(c) is Constitutional

Because petitioner’s case began after April 1, 1997, it is governed by IIRIRA, Division C
of Pub. L. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996). Pursuant to § 236(c) of the INA, 8
U.S.C, §1226(c)(1), as amended by TIRIRA, the Attorney General “shall take into custody any
alien who” is removable under §1227(a)(2)(B)G). A person taken into custody pursuant to §
236(c)(1) may be released under § 236(c)(2) but only if they are part of the witness protection
program. See Parra, 172 F.3d at 956,

Petitioner contends that § 236(c) should not apply to his case because the statute is
unconstitutional, violating his due process rights. In support of his position, petitioner cites cases
from other circuits such as Kim y. Ziglar, 276 F.3d 523 (9" Cir, Jan. 2002), Patel v. Zemski, 275
F.3d 299 (3 Cir. 2001), Radoncic v. Zemski, 28 Fed. Appx. 113 (3" Cir. 2001), and Houng v.
Comfort, 282 F.3d 1247 (10" Cir. 2002). However, case law from the Supreme Court and the

Seventh Circuit illustrates that petitioner’s detention pursuant to §236(c) is constitutional. See,


circumstances (alienage, removability on criminal grounds, and lack of opportunity for
discretionary or other relief), such that the interest cannot be said to be fundamental. In the
absence of a fundamental interest, the statute need only satisfy rational basis scrutiny. fd.

ln contrast, the public interest in detaining aliens under these circumstances is substantial
given the high flight rate of those released on bail, Indeed, Congress’ concern with criminal
aliens who fice or commit additional crimes is plainly evident in the detention provisions of
AEDPA and URIRA. This concern is supported by statistical data, For example, in 1992 nearly
{1,000 criminal aliens convicted of aggravated felonies, which are particularly serious crimes,
failed to appear for deportation hearings. See 8. Rep. No. 104-48, 1995 WL 170285 (Apr. 7,
1995). As Senator Abraham stated in similar observations:

Needless to say, the majority of criminal aliens released from custody do not

return for their [deportation] hearings., .. Thus, for example, a recent study by the

GAO found that 77 percent of noncitizens convicted of felonics are rearrested at

least one more time.

141 Cong. Rec. $7803, 7823 9 daily ed. June 7, 1995); see alse S. Rep. No. 48, 1995 WL at
170285,

Thus, the detention requirement of §236(c)(1)(B) is based on a “facially legitimate and
bona fide reason,” Fiallo y. Bell, 430 U.S. 787, 792 (1977). This provision sceks to prevent
clearly deportable aliens with no realistic hope of relief from removal from absconding or
committing further criminal acts during proceedings to effect their removal. Preventing danger
to the community and flight have long been considered legitimate regulatory goals. See, c.g.,
Salerno, 481 U.S. at 748-49; Schall v. Martin, 467 U.S. 253, 251 (1984); Bell v. Wolfish, 441

US. 520 (1979); Tran v. Caplinger, 847 F. Supp. 469, 475 (W.D, La. 1993) (“As already noted


Wise reser (06°97)

United States District Court, Northern District of Minois

Name of Assigned Jud Sitting Judge if Other
ae Magistrate Judge Wayne R. Andersen than Assigned Sudge
CASE NUMBER 2C S418 DATE 12/18/2002
CASE Mirwais Ali vs. Brian Perryman
TITLE

[in the following bos (u) indicate the parly filing the motion, ¢.g., plaintiff, defendant, 3rd purty plaintiét, and (b) state briefly the nature
of the motion being presented, |

MOTION:

DOCKET ENTRY:

(ap) a Filed motion of [ use listing in “Motion” box above.]

(2) Q Brief in support of motion due

Q) im Answer brief to motion duc___. Reply to answer briefdue_

(4) im Ruling/Ilearingon___sset for at .

(5) Oo Status hearing(held/continued to] [sct for/re-set for]on set for_ at

(6) g Pretrial conference[held/continued to] (set for/re-set for]on_ set for__— at.
(7) im Trial[sct for/re-set tor]on__— at.

(8) o [Bench/Jury trial] [Hearing] held/continuedto_ at.

(9) ii) This case is dismissed [with/without] prejudice and without costs[by/agrecment/pursuant to}

CUFRCP4G@n) CO Local Rule 41.1. OO FRCP41(ay(l) 0 FRCP41(a)(2).

ao 4 (Other docket cnty] Enter MEMORANDOM, OPINION AND ORDER: For the foregoing
reasons, we deny [3-1] petitioner’s motion for bond and release from custody. We grant
respondent’s motion to dismiss [5-1] the petition for habeas corpus. This is a final and appealable
order, This case is hereby terminated.

(il) ff (For further detail see order attached to the original minute order.}

No notices required, advised in open court.

No notices required

Notices mailed by judge's staft,

Notified counsel by telephone.

vo | Yocketing to mail notices,
¥ | Mail Ao 450 form.

LUNES Portier 3'9

Copy to judye/magistrate judge,

courtroom,

Ts. deputy’s ’
initials wi _t
Date/time received in
gentral Clerk's Office snag deity initia



the goal of protecting the community is a compelling one. Where, as here, an alien is involved
the interest of Congress is heightened”). These goals have been paramount among the
immigration enforcement concerns of Congress and the Attorney General.

Citing to prior precedent, the Parra decision held that “[WJell before the IIRIRA we
stated that once deportation procecdings have begun an alien’s detention is constitutional.”
Parra, 172 F.3d at 958, citing Arias v, Rogers, 676 F.2d 1139, 1143-44 (7" Cir. 1982). Now that
under TIRIRA “the powers to forego removal have been curtailed,” the constitutionality of
§236(c) is even mote clear. See Reno v. Flores, 507 U.S. 292 (993); Carlson y. Landon, 342
U.S. 524 (1952).

We find that § 236(c) is constitutional and reasonable in light of Congress’ legislative
objectives to expedite the removal of criminal aliens (since detained alien cases are adjudicated
more quickly), and enhance the INS’ enforcement efforts. As the Seventh Circuit held in Parra,
§236(c) deals with challenges to operational decisions, and it is plainly within the power of
Congress to legislate in this area. Parra, 172 F.3d at 957, 958, “Persons subject to § (236(c)]
have forfeited any legal entitlement to remain in the United States and have little hope of
clemency.” Jd.

In sum, § 236(c) has been upheld and found to be constitutional in the Seventh Circuit,
the case law of which controls in this proceeding. Therefore, the petition for habeas corpus is

dismissed because petitioner has not shown any violation of a constitutional night.


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

EASTERN DIVISION
MITRWAIS ALT,
} DEC 26 2097
Petitioner, )
) No. 02 C 5418
vy. )
) Wayne R. Andersen
BRIAN PERRYMAN, District Director  ) District Judge
of the Chicago District Office of the INS)
)
Respondent. )

MEMORANDUM OPINION AND ORDER

This case is before the Court on the petitioner’s motion for bond and release from
custody. Also before the Court is respondent’s motion to dismiss the petition for habeas corpus.
For the following reasons, petitioner’s motion for bond and release is denied, and respondent's
motion to dismiss the petition is granted.

Petitioner, an alien who became a lawful permanent resident of the United States in 1982,
was convicted of three criminal offenses in Wisconsin Circuit Court between 1997 and 2000,
The Immigration and Naturalization Service (“TNS”) initiated removal proceedings against him
based on these convictions. Subsequently, he had a hearing before an immigration judge and was
ordered removed on May 16, 2002. Petitioner has appealed that decision to the Board of
Immigration Appeals, where the case remains pending. Petitioner has now filed a petition for
habeas corpus seeking release from INS custody. Respondents move to dismiss the petition

because the petitioner’s conviction is a crime specified under Section 236(c) of the Immigration


and Nationality Act (INA), 8 U.S.C. §1226(c), and 8 C.F.R. §19(h)(2), and the petitioner is
therefore properly in INS custody pending the completion of removal proceedings.
STATEMENT OF FACTS

Petitioncr is a male native and citizen of Afghanistan who became a lawful permanent
resident of the United States on March 1, 1982. Petitioner was convicted in the Dane County
(Wisconsin) Circuit Court of the following criminal offenses: Receiving Stolen Property in
violation of § 943,34(1)(a) of the Wisconsin Statutes, once on December 8, 1997, and again on
March 6, 2000; and Possession with Intent to Distribute Tetrahydrocannabinols in violation of
§ 961.41(m)(h)(1) of the Wisconsin Statutes, on November 25, 1998. The INS initiated removal
proceedings against petitioner by serving him with a Notice to Appear (NTA), alleging facts
relating to his convictions which render him removable under 8 U.S.C. §§1227(a)(2)(A)(i), (ii),
and (iii).

The filing of the NTA commenced jurisdiction upon the Immigration Court. In the
removal proceedings, the Immigration Judge sustained the allegations in the NTA and found that
the petitioner’s removability had been established by evidence that was clear and convincing.
The Immigration Judge ordered petitioner removed to Afghanistan based upon his findings that
the petitioner was removable as charged and was ineligible for any type of relief from removal.

Petitioner filed a notice of appeal to the Board of Immigration Appeals (“BIA”). The
case awaits ruling from the BIA. Pursuant to the regulations at 8 C.F.R. § 3.19(h)(2)(i)(D), and
§ 236(c)(1) of INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), the petitioner has not been released from the custody of the INS pending

the BIA’s adjudication of his appeal.