                                                                                                                           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Precedential or Non-Precedential: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.

                                15
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.

                               16
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

                               17
      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

                              18
       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

                               19
       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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