Opinion
CIVIL ACTION NO. SA-04-CA-0293 RF (NN)
April 28, 2004
ORDER GRANTING MOTION FOR BAIL
The matter before the Court is applicant's motion for bail hearing, the government's opposition thereto and the supplementary briefing that has been filed since the April 16, 2004 hearing (docket entries 6, 9, 10, 13 and 15). This matter was referred to me by Order of April 13, 2004.
Factual Background
Applicant entered the United States as a foreign exchange student in 1970 and graduated from a California high school. She returned to her country of origin, Thailand. After graduating from college with an English degree, she returned to the United States in 1985 and obtained a student visa. She married a U.S. citizen in 1990, from whom she obtained a divorce in 1993. While married applicant's immigration status was changed to permanent resident alien. After the marriage terminated, immigration authorities received a tip in April 1994 that applicant entered into her marriage for the purpose of circumventing the immigration laws. Subsequently the District Director of INS issued a Notice of Intention to Rescind Adjustment of Status concluding that her marriage was a sham designed to avoid the immigration laws. Applicant filed a motion to terminate rescission proceedings. Immigration took no action on this motion. Instead, deportation proceedings commenced in November 1996, and a hearing convened in July 1997 before an Immigration Judge who ruled in favor of INS ordering applicant's deportation. Applicant appealed this decision administratively as well as through the Fifth Circuit.
Petitioner alleges that shortly after her marriage she discovered her husband was bisexual and having an affair with another man.
Although the notice was issued in June 1995, it was sent to the wrong address. In June 1996 the Service advised the applicant that it was vacating that Notice and that she would be notified of further action taken by the Service. Applicant's Exhibits Offered in Support of writ application, received April 8, 2004, Exh. 9.
One of her arguments on appeal involved the jurisdiction of immigration authorities to order deportation, due to the more than five-year gap between the time her status was adjusted from permanent resident status (1990) to the time rescission proceedings were initiated (1996). On August 26, 2003, the Fifth Circuit held that applicant had not exhausted her administrative remedies with respect to this argument, but otherwise affirmed the agency's decisions. Applicant then presented her statute of limitations argument to the Board of Immigration Appeals which denied the motion to reconsider.
Applicant's Exhibits Offered in Support of writ application, received April 8, 2004, Exh. 25. The BIA denied the motion to reconsider without considering the merits of the jurisdictional challenge, finding that applicant had already submitted the maximum number of motions to reconsider.
On April 6, 2004, applicant was arrested by immigration officials at her home. On April 8, 2004, she filed her petition for writ of habeas corpus and request for temporary restraining order, requesting that respondents be restrained from removing her from the United States and that the status quo be maintained pending resolution of this habeas review. On April 12 she filed her motion for bail hearing.
The parties announced at the April 16, 2004 bail hearing that respondents have agreed to maintain the status quo and not proceed with removal pending final order of this Court.
A bail hearing was held on April 16. The parties were invited to file further briefing and supplement their original motion prior thereto. They were also invited to file additional briefing thereafter. In anticipation of the bail hearing I requested Pretrial Services interview the applicant and verify personal information relevant to flight and dangerousness issues. The parties were provided a copy of the report and respondents given an opportunity to challenge its findings. They did not. Applicant submitted 20 passionate letters from family, friends, and co-workers and supporting her release on bond, detailing her stability, trustworthiness, and ties to the community to supplement the hearing record.
Summary of Argument
In summary, the applicant argues that this Court has authority to grant bond, pending final determination of her habeas writ application, and that authority should be exercised in favor of granting bond in this case. Respondents focus on the merits of this case, which they argue are weak relying on principles of res judicata and collateral estoppel as barring further judicial review. Respondents further contend that although the Court may have authority to release a habeas applicant, that authority should be exercised only when the habeas petition raises a "substantial claim" and extraordinary circumstances exist that make a grant of bail necessary to give effect to the requested habeas relief. They argue these factors are not present here so as to justify release.
Mapp v. Reno . 241 F.3d 221 (2nd Cir. 2001).
Analysis
I have carefully reviewed the parties' arguments and authorities and conclude that (1) this Court has authority to release applicant pending conclusion of its habeas review, and (2) the facts in this case compel exercise of the Court's authority to order release of this applicant.
In concluding that this Court has authority to release a habeas petitioner, I rely on the analysis of recent case authorities on this issue found in Mapp v. Reno , a Second Circuit case, in which the court concluded that such authority existed, but the exercise of which rarely justified. The Fifth Circuit's only reported decision which I have located, Boyer v. City of Orlando , also recognizes the Court's authority to order release of habeas petitioners pending review of their writ applications by the Court. I conclude that the Court has authority to grant bail to habeas applicants.
Id. at 266.
402 F.2d 966 (5th Cir. 1968)
What is not clear is the standard which should be applied in determining whether authority to release a habeas applicant should be exercised in a given case. In Mapp , the Second Circuit held that release is warranted only if the habeas petition raises a "substantial claim" and extraordinary circumstances exist that make a grant of bail necessary to give effect to the requested habeas relief. Mapp, and other petitioners in cases discussing this standard, faced removal or deportation due to their criminal convictions which involved crimes of moral turpitude, aggravated felonies, drugs, firearms or domestic violence, and who filed habeas petitions in an effort to obtain judicial review of orders of deportation. In contrast, I have found no authorities which discuss the relevant factors when the order of deportation and the habeas applicant's current custodial status were not predicated in some way on a judicial adjudication of guilt and criminal responsibility, as is the case now before this Court.
In the case before this Court the applicant has never been convicted of any type of criminal offense. She has lived in San Antonio consistently since 1985. She works two jobs. She has pursued additional education. She owned a restaurant for five years, until 2000. She has a daughter in Florida with whom she has regular contact. Her son is a Buddhist monk in Thailand. She has lived at the same address for 12 years, and shared a home with a U.S. citizen during that time. The letters submitted on applicant's behalf paint a picture of a hard-working, religious, kind, self-supporting woman; a model "citizen." When she was ordered deported in 1997, after an immigration judge found that her 1990 marriage was entered into for the purpose of evading the immigration laws, she remained in the community, vigilantly pursuing every legal remedy to remain in the United States. There is no evidence that the applicant poses any risk of flight or danger to the community if released pending conclusion of this habeas proceeding.
The issue which the applicant presents to this Court — the jurisdiction of the immigration officials to order deportation after the five-year rescission period has lapsed — is one of first impression in this Circuit. The petitioner's interpretation of the operative immigration statute was accepted by the Third Circuit in Bamidele v. INS , another case involving sham marriage allegations. In a later case, Asika v. Ashcroft , the Fourth Circuit rejected this holding, deferring to the agency's limited interpretation of the five-year limitations statute as applicable to rescission proceedings only. Recognizing the circuit authority which supports petitioner's argument, the lack of Fifth Circuit authority on the issue and the refusal of the BIA to address this issue when invited, at this stage of the case I conclude that applicant's petition presents a substantial claim.
99 F.3d 557 (3rd Cir. 1996).
362 F.3d 264 (4th Cir. 2004).
See note 4, supra .
I also conclude that the facts in this case are exceptional and deserving of special treatment in the interests of justice. The applicant is unlike any in the cases I have reviewed in which courts considered similar requests for bond. Her residence, employment, relationships and financial condition are exceedingly stable. She has lived in the same city since she arrived in the United States almost 20 years ago. She has never been convicted of any criminal offense. She has never been the subject of a lawsuit. She has appeared at every hearing. Her release presents not a hint of danger to person or property. The interests of justice dictate granting of bond in this case.
For these reasons it is ORDERED that the motion for bail is GRANTED and that respondent be released on bond pending final judgment in this habeas proceeding, and agree to pay the United States $10,000 if she should fail to appear as directed by court or immigration officials, or otherwise violate the conditions of her release. Those conditions include:
1. Post $1,000 in cash with the U.S. District Clerk to secure her $10,000 bond.
2. Report as directed to immigration officials or their designee.
3. Mr. Henry Scholl agree to serve as both co-surety on the bond as well as custodian, to help supervise the applicant while she is on release to assure her compliance with release conditions, and
4. Not violate federal, state or local law while on release.
Applicant and co-surety/custodian are further ORDERED to sign appropriate documents memorializing their respective responsibilities as a condition of release.
It is so ORDERED.