Papazoglou vs. Napolitano et al

Filing 16

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 5/3/2012:Judicial staff mailed notice(gl, )

IN THE UNITD STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
Dimitrios PAPAZOGLOU,
)
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Petitioner,
)
)
v.
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No. 1:12-cv-00892
Janet Napolitano, Secretary, U.S. Department )
of Homeland Security; Ricardo Wong,
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Judge Sharon Johnson Coleman
Chicago Enforcement and Removal Office
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Director, U.S. Immigration & Customs
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Enforcement, U.S. Department of Homeland )
Security; Karen Lundgren, Chicago Chief
)
Counsel, Office of Chief Counsel, Immigration)
& Customs Enforcement, U.S. Department of )
Homeland Security;
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)
Respondents.
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MEMORANDUM OPINION AND ORDER

Dimitrios Papazoglou (“Petitioner”) filed a petition for a writ of habeas corpus
challenging the constitutionality of 8 U.S.C. § 1226(c) and requesting his release from
custody. Petitioner argues two constitutional challenges: (1) that his detention in excess of
thirteen (13) months is unreasonable and in violation of substantive due process in light of the
granting of full relief from removal by the Immigration Judge (“IJ”) and the delays by the
Department Homeland Security (“DHS”) in placing him into removal proceedings as well as
its delay regarding the adjudication of the I-130 visa petition and (2) that he failed to receive
strong procedural protections to safeguard his fundamental liberty interests and his
immigration detention exceeded a reasonable length of time. Respondents oppose the petition
for writ of habeas corpus arguing that this Court lacks subject matter jurisdiction, that
Papazoglou failed to exhaust his remedies prior to this petition and that his detention is lawful

and reasonable. For the reasons that follow, Petitioner’s writ of habeas corpus is granted in
part.
Factual background
Petitioner Dimitrios Papazoglou, a 54 year old Greek national, has resided in the U.S.
as a lawful permanent resident since July 16, 1990. In 2008, Papazoglou pled guilty and was
convicted of third degree sexual assault in violation of Wis. Stat. § 940.225(3) and physical
abuse of a child in violation of Wis. Stat. § 948.03(3)(b). As a result of his offense against a
minor child, on April 21, 2011, DHS initiated deportation proceedings against Papazoglou by
issuing and serving him with a Notice to Appear (“NTA”). After completing his prison
sentence, petitioner was transferred to Immigration & Customs Enforcement (“ICE”) custody
where he was mandatorily held due to the serious nature of his criminal convictions.
On May 16, 2011, pursuant to the NTA, Papazoglou appeared before an IJ who found
Papazoglou removable under 8 U.S.C. § 1227(a)(2)(E)(i) for having been convicted of child
abuse but reserved the issue of whether he was removable as an aggravated felon under 8
U.S.C. § 1227(a)(2)(A)(iii). Although found eligible for removal, petitioner was also eligible
to apply for relief from removal. Thus, at this same hearing, Papazoglou presented the IJ with
an I-130 visa petition (which is a petition filed on behalf of alien relatives), which had been
previously filed on May 13, 2011 by his wife a U.S. citizen. Petitioner also later filed a Form
I-485 application for adjustment of status and a Form I-601 application for waiver of grounds
of inadmissibility.
On November 17, 2011, the IJ granted Papazoglou’s Form I-601 waiver and
adjustment of status. The IJ found that, in spite of his convictions stemming from a guilty plea
of an offense against a minor, Papazoglou merited a favorable exercise of discretion and full

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relief from removal. Although having received a ruling in his favor, DHS continued to detain
Papazoglou and on December 16, 2011, filed for an appeal of the IJ’s decision with the Board
of Immigration Appeals (the “Board”).
On December 19, 2011 Papazoglou filed a motion for a bond redetermination with the
Immigration Court. On January 18, 2012, the IJ held a bond redetermination hearing during
which Papazoglou’s request for custody redetermination was granted and he was released. On
the same day, DHS filed for an automatic stay of the IJ’s bond order with the Board resulting
in Papazoglou’s continued custody. Nine days later, on January 27, 2012, DHS withdrew the
automatic stay and filed a motion for a discretionary stay of the bond order, which was later
granted by the Board on February 2, 2012. However, Papazoglou had already been released
from custody on February 1st pursuant to DHS’s withdrawal of the automatic stay of the bond
order but was taken back into custody on February 8, 2012 when the Board granted the
discretionary stay.
On March 6, 2012, DHS appealed Papazoglou’s bond order. Currently, Papazoglou
remains in custody, pursuant to § 1226(c), awaiting the resolution of DHS’s appeal of both
his release from custody and his adjustment of status. While awaiting the results of both
appeals, Papazoglou filed this petition for a writ of habeas corpus in this Court under 28
U.S.C. § 2241 challenging the constitutionality of his indefinite detainment and seeking an
injunction to release him from custody.

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Discussion
I. Jurisdiction under 8 U.S.C § 1226(e)
Respondents first contend that this Court is without jurisdiction to provide the relief
Papazoglou is seeking in his petition. Specifically, respondents argue that Papazoglou is
currently detained based the Attorney General’s unfettered discretion to stay petitioner’s bond
and judicial review of the exercise of that discretion is barred.
The Seventh Circuit has held that 8 U.S.C. § 1226(e) does not deprive this Court of
jurisdiction over this matter. Gonzalez v. O’Connell, 355 F.3d 1010, 1014 (7th Cir. 2004).
§ 1226(e) states:
The Attorney General’s discretionary judgment regarding the application of this
section shall not be subject to review. No court may set aside any action or decision
by the Attorney General under this section regarding the detention or release of any
alien or the grant, revocation, or denial of bond or parole. Id.
Federal district courts, however, have jurisdiction over constitutional questions raised in
habeas corpus petitions. Bonsol v. Perryman, 240 F. Supp. 2d 823, 825 (N.D. Ill. 2003).
Although § 1226(e) of the Immigration and Nationality Act (“INA”) forecloses judicial
review of discretionary INA decisions on bond or detention, the constitutionality of the statute
itself as applied to a specific matter may still be adjudicated in court. Parra v. Perryman, 172
F.3d 954, 957 (7th Cir. 1999).
Although at first glance, § 1226(e) appears to preclude judicial review of the Attorney
General’s discretionary stay under § 1226(c), this very argument was rejected by the Seventh
Circuit in Parra v. Perryman and more recently by the Supreme Court in Demore v. Kim, 538
U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003); Parra, 172 F.3d at 957. In both Parra and
Kim, aliens who were mandatorily detained under § 1226(c) challenged that section as
unconstitutional. Gonzalez, 355 F.3d at 1014. The Supreme Court in Kim held that it was not

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deprived of jurisdiction by § 1226(e) to consider a challenge based on constitutionality
because the petitioner was not simply challenging the discretionary judgment by the Attorney
General or a decision that the Attorney General has made regarding his detention or release;
rather the petitioner challenged the statutory framework that permitted his detention without
bail. Id. The Supreme Court concluded that “Section 1226(e) contains no explicit provision
barring habeas review, and we think that its clear text does not bar respondent’s constitutional
challenge to the legislation authorizing his detention without bail.” Kim, 538 U.S. at 51.
Here, Papazoglou raises two constitutional challenges: first, that his detention in
excess of thirteen (13) months is unreasonable and in violation of substantive due process in
light of the IJ’s decision granting him full relief from removal; and second that as a lawful
permanent resident his detention has exceeded a reasonable period of time. Pet. for Writ of
Habeas Corpus, ¶ 35. Papazoglou, like the petitioners in Kim, and Parra, is not challenging
the “operational decisions” of the Attorney General but the “statutory framework that permits
his detention without bail.” Gonzalez, 355 F.3d at 1014. As such, this Court may exercise
jurisdiction under the habeas corpus statute and consider Petitioner’s due process claims and
whether § 1226(c) is being constitutionally applied.
II. Constitutionality of 8 U.S.C § 1226(c)
Procedure under 8 U.S.C § 1226(c)
Section 1226(c) allows the Attorney General to take into custody and mandatorily
detain certain criminal aliens against whom removal proceedings have been initiated, but not
yet completed. Aliens eligible for mandatory custody under Section 1226(c) include those
who are deportable because they have been convicted of an aggravated felony. 8 U.S.C.
§1227(a)(2)(A)(iii). If an alien subject to mandatory detainment claims that he is not eligible

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for Section 1226(c) mandatory detainment, a “Joseph Hearing” before an IJ is immediately
provided. Kim, 538 U.S. at 514. At this hearing, the detainee may avoid mandatory detention
by demonstrating any one of the following: (1) he is not an alien; (2) he was not convicted of
the predicate crime; or (3) that INS is otherwise substantially unlikely to establish that he is in
fact subject to mandatory detention. Id. If the IJ determines the alien falls within § 1226(c),
then he is without authority to conduct an individualized bond determination. Gonzalez, 355
F.3d at 1013. However, if the IJ determines the alien does not fall within § 1226(c), then IJ
may consider the question of bond. Id.
Here, Petitioner does not argue that he is not subject to § 1226(c), but instead argues
that his detention under § 1226(c) is unconstitutional. The Supreme Court and the Seventh
Circuit have ruled on the constitutionality of § 1226(c), but as applied to aliens who have
conceded that they are eligible for deportation. See Kim, 538 U.S. at 531; Parra, 172 F.3d at
957. For example, in Parra, a detainee and Mexican citizen, agreed with the INS that the drug
offense to which he pled guilty made him eligible for deportation back to Mexico. Id.
Because there was no possibility of avoiding deportation, rendering his removal
“overwhelmingly likely”, the court held that the detainee’s request for a bond release was
merely an attempt to “postpone the inevitable.” Id. In other words, the Seventh Circuit ruled
that the mandatory detention without a bond hearing was constitutional as applied to an alien
who had conceded deportability and is merely “passing time while waiting for the order to
become final.” Vang v. Ashcroft, 149 F. Supp. 2d 1027, 1033 (N.D. Ill. 2001).
The Parra decision left the door open to claims made by detainees who had not yet
conceded deportability, but instead had colorable claims that they were not in fact deportable.
Id. Thus, later courts determined that Parra left open an exception for three categories of

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aliens whose deportations, unlike in Parra, were not certain. These categories of aliens
include: 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. Bonsol, 240 F. Supp. 2d at 826. For these aliens, mandatory detention
raised questions of due process violations. Id.; See Hussain v. Mukasey, 510 F.3d 739, 743
(7th Cir. 2007) (recognizing that there are instances in which an alien detained pursuant to 8
U.S.C. § 1226(c) may have a right to release before a final judgment is entered).
In the present case, Papazoglou suggests that his case qualifies as an example of an
exception to the Parra decision. Specifically, Papazoglou contends that his mandatory
detention without bail is unconstitutional because he has a colorable, good faith claim that he
is not deportable – namely that an IJ has already determined that he is eligible to remain in the
United States. Therefore, given the length of Papazoglou’s detainment and that he has already
received a judgment in his favor, Papazoglou seeks habeas corpus relief.
Since Parra, several district courts in our circuit held § 1226(c) as unconstitutional as
applied to detainees who have not conceded removability and have good-faith claims against
deportation. See Gonzalez, 355 F.3d at 1019 (finding that a “wholly different case arises when
a detainee who has a good-faith challenge to his deportability is mandatorily detained under §
1226(c)”); Bonsol, 240 F.Supp.2d at 825 (noting that without an individualized bond hearing,
the INS’ mandatory detention of the Petitioner, a lawful permanent resident with a good-faith
challenge to deportation, is unconstitutional); Vang, 149 F.Supp.2d at 1036. In Vang, the
court found that mandatory detention under § 1226(c) potentially infringed upon the
detainee’s fundamental liberty interests and analyzed the constitutionality of § 1226(c) under

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the compelling interest test set forth in United States v. Salerno, 481 U.S. 739, 107 S.Ct.
2095, 95 L.Ed. 2d 697 (1987).
In Salerno, the Supreme Court held that the government may not infringe upon a
person’s fundamental liberty interests, unless the infringement was narrowly tailored to serve
a compelling state interest. See Vang, 149 F.Supp.2d at 1037 (citing Martinez v. Greene, 28
F.Supp.2d. 1275 (D. Colo. 1998)). In the context of immigration statutes and regulations, to
determine if the infringement is narrowly tailored to serve a compelling state interest, the
court must first determine if the infringement is a punitive punishment or permissible
regulation. Id., at 1282. If the infringement is a permissible regulation, then the court must
determine if the infringement is excessive in relation to purpose of the said regulation. Id.
Here, Papazoglou received both full relief from removal and subsequent release from
custody from the IJ. Nevertheless, Papazoglou remains in custody awaiting the resolution of
DHS’s appeal. Papazoglou has demonstrated a legitimate and good faith reason to contest his
removability, namely that an IJ has already determined that Papazoglou merits full relief from
removal. Therefore, unlike Parra, Papazoglou is not postponing inevitable deportation but
instead presents a legitimate defense to his removability where his deportation is not
“overwhelmingly likely”. See Bonsol, 240 F.Supp.2d at 826; Parra, 172 F.3d at 956. Thus,
Papazoglou’s detainment under § 1226(c) without the opportunity for a bond hearing presents
a question of constitutionality.
Having found that Papazoglou has presented a valid question of whether § 1226(c) is
being applied in accordance with due process, this Court, applying the Salerno framework to
Papazoglou’s claims, finds that respondents have failed to satisfy the second element of the
Salerno test. Specifically, this Court finds that the goals outlined by Congress for mandatory

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detention under § 1226(c) do not justify holding Papazoglou in custody without a bond
hearing. The Court recognizes that the government has a compelling interest in detaining
aliens with felony convictions without bond. These interests include “(1) protecting the public
from potentially dangerous criminal aliens; (2) preventing aliens from absconding during
removal proceedings; (3) correcting procedures under which twenty percent of criminal aliens
released on bond did not report for deportation hearings and (4) restoring public faith in the
immigration system.” Id. at 1037, citing S. Rep. No. 104-48 (cited in Rogowski v. Reno, 94
F.Supp.2d.177, 184 (D. Conn. 1999)). These are clearly legitimate regulatory goals.
Additionally, respondents argue that Papazoglou has a pending expedited appeal and
his removal proceedings are ongoing which denotes that a definite end is in sight. The Court,
however, notes that respondents have failed to present this court with a date certain for their
appeal of petitioner’s bond or for their appeal of his waiver of deportation. Therefore,
petitioner has been in custody for over a year without any indication that his matter is nearing
resolution.
Papazoglou remains mandatorily detained despite the fact that he has demonstrated
substantial likelihood that he will be allowed to remain in the United States and will be
released from custody because these findings have already occurred. As a convicted felon
who has pled guilty to committing a crime against a minor child, Papazoglou does not have
an absolute right to remain at liberty during the course of his removal proceedings.
Nevertheless, to achieve the ends of justice, this Court must give full consideration to the
circumstances of this case. Given these circumstances – that respondents are the appellant
party, a date certain for either appeal has yet to be set, Papazoglou has been detained for over
a year and an IJ has already determined Papazoglou should be released from custody –

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mandatory detention, without the opportunity of a bond hearing or a date set for Papazoglou’s
pending appeals is excessive in relation to the purpose of § 1226(c) outlined above. Thus,
Papazoglou’s due process rights have been violated.
Allowing a bond redetermination on this matter would afford Papazoglou his due
process rights without defeating the regulatory purpose of § 1226(c). Therefore, in the interest
of justice, this Court directs that a bond redetermination hearing before an IJ be held
immediately, within seven (7) days of this order to determine whether continued detention
until the resolution of DHS appeal of Petitioner’s waiver of deportation is warranted in light
of Parra and the applicable district court decisions that follow. Furthermore, respondents
must provide a hearing date certain before the Board within 45 days of this order.
This Court understands that jurisdiction over this bond hearing lies with the
immigration judge and the immigration authorities in the application of the INA. The Court,
nevertheless, is particularly concerned that the Petitioner has pled guilty to child abuse and
sexual abuse of a minor but there is no record showing counseling or rehabilitation outside of
Petitioner’s own acknowledgment to ameliorate his condition. Therefore, this Court expects
any decision rendered to take full consideration not only of the appropriateness of bond, but
also of the necessity to include certain conditions such as mandatory counseling,
implementation of supervision restrictions, and any other parameters or restrictions to ensure
the safety of the pubic, particularly that of minor children.

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CONCLUSION
For the forgoing reasons, the Court grants Petitioner Papazoglou’s petition for writ of
habeas corpus and order that a bond hearing be held before an Immigration Judge within
seven (7) days of this order. Further, this Court orders that respondents provide a hearing date
certain before the Board of Immigration Appeals within 45 days of this order.

IT IS SO ORDERED.
May 3, 2012
Dated

Hon. Sharon Johnson ColemanUnited
States District Court

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