Errol L. Hall v. Immigration and Naturalization Service

United States District Court for the District of Rhode Island

Enrol L. Hall, in the custody of the Bureau of Immigration and Customs Enforcement, filed an emergency motion for immediate release from mandatory detention or in the alternative an individualized bond hearing. Hall claims that his mandatory detention by the INS under section 236(c) of the Immigration and Naturalization Act violates the due process clause of the Fifth Amendment to the United States constitution. Section 236 (c) requires the mandatory, pre-removal detention of criminal foreigners. The court held that Hall’s right to due process under the Fifth Amendment has been violated by his mandatory detention under section 236(c) without an individualized pre-detention hearing.

In 1973, Hall, a Jamaican citizen, came to the United States on a visitor visa. In 1983, he was convicted of armed robbery and served two years of a twenty-years prison sentence. The remaining time was to be spent on parole. In 1997, he violated his parole and was sentenced to two years as anaccessory before the fact and for deriving support from prostitution. The INS issued a Notice to Appear charging Hall as being removable based upon his overstaying the visitor visa and the 1983 conviction. In 1999, upon completion of his sentence, the INS took Hall into custody.

The Immigration Judge found that Hall was deportable (1) as a foreigner who overstayed his temporary period of admission since 1973 and (2) because of his conviction for an aggravated felony (armed robbery) in 1983. The Board of Immigration Appeals affirmed.  The BIA reopened Hall’s removal proceedings and remanded the matter to the Immigration Judge for further proceedings and a new decision on his application for waiver of removal. Hall had two INS administrative custody determinations that indicated that he should be detained in INS custody pending a final determination of his removal.

In this case, the court referred to Zadvydas v. Davis, 533 U.S. 678, 693 (2001) where the Supreme Court held that the due process clause applies to all persons within the United States, including foreigners, whether their presence here is lawful, unlawful, temporary, or permanent. The court in this case explained that the degree to which an alien is entitled to protections and afforded rights by the Constitution is dependent on the particular classification of the foreigner on a scale ranging from excludable to legal permanent resident (LPR). The court held that Hall is a deportable foreigner who falls closer to the LPR side than the excludable side. They reasoned that because his time in the United States has not been brief, his entire family lives here and INS has detained him for three years awaiting a final determination on his adjustment of status application, Hall is entitled to an increased degree of protection.

This case involves a liberty interest that refers to the right to be free from government detention without the opportunity for an individualized hearing to address risk of flight and danger to the public. The court held that Hall has a fundamental right to be free from mandatory detention without a bail hearing. In its decision, this court agreed with Hoang v. Comfort, 282 F.3d 1247, 1259 (10^th Cir. 2002) which held that Section 236(c), rather than establishing a procedure to determine which foreigner might be a flight risk, it establishes a  presumption that all foreigners to which mandatory detention applies are flight risks and a danger to the community. The court ruled that for Section 236(c) to simply presume that Hall is a flight risk and dangerous without the opportunity to rebut that presumption violates his substantive due process rights. They reasoned that a statute that simply assumes that every foreigner convicted of an “aggravated felony” is a danger to the community is not sufficiently narrowly tailored to address the compelling government interest of preventing the absconding of foreigners pending deportation and/or protecting public safety.   

The court ordered the INS to hold a prompt hearing at which an individualized determination of Hall’s risk of flight and danger to the community may be assessed, and an appropriate determination may be made with respect to whether he should be detained or released pending the final outcome of his appeal.

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United States of America v. Carmen Hernandez

United States Court of Appeals for the Seventh Circuit

Carmen Hernandez, a citizen of Peru , was convicted of conspiracy to import, possess, and pass counterfeit United States currency. The district court sentenced Ms. Hernandez to eleven months confinement and three years of supervised release. The district court granted a downward departure sentence of two levels because the Sentencing Guidelines would have required a sentence of more than one year, which would have led to Ms. Hernandez’s deportation. In this suit, the Government appealed the sentence. The court held that the district court abused its discretion in granting a two-level downward departure in Ms. Hernandez’s sentence.

Sentencing Guidelines § 5K2.0 allows departures from the range established by the Guidelines “if the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described.” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court granted the downward sentence reasoning that Ms. Hernandez’s two U.S. citizen children, ages five and six, would have to live with their father in the United States or with their mother in the country to which she is deported. They further reasoned that such a result was not contemplated by the Guidelines.

This court explained in United States v. Guzman, 236 F.3d 830 (7^th Cir. 2001), that “the defendant’s status as a deportable alien is relevant only insofar as it may lead to conditions of confinement, or other incidents of punishment, that are substantially more onerous than the framers of the guidelines contemplated in fixing the punishment range for the defendant’s offense.” Id. at 834. The Government argued that the district court did not explain how Ms. Hernandez’s immigrant status would make the conditions of her confinement more onerous than anticipated by the Sentencing Commission. The court further noted that the Sentencing Guidelines provide that “family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.6.

The court reasoned that families are often separated by deportation and that the situation in which one parent may remain in the country legally with children who are U.S. born citizen, while the other parent is ordered deported, by no means warrants a sentence outside applicable guideline range. Koon v. United States , 518 U.S. 81, 96 (1996). The court ruled that the drafters of the Guidelines clearly knew that such cases arise with some frequency; therefore, this case is neither extraordinary, nor is the result substantially more onerous than the Commission calculated in drafting the Guidelines. The sentence was vacated, and the case was remanded for imposition of a sentence in conformity with this opinion.