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District Court Holds That Post 9/11 Detention Rule Violates Due Process

by Carl R. Baldwin

In a courageous decision, a recent Bush appointee to the federal bench has determined that the post 9/11 regulation that automatically stayed decisions of immigration judges which ordered the release of detained aliens was an unconstitutional violation of due process. Zavala v. Ridge, 04-00253, U.S District Court for the Northern District of California.

The new difficulties began for legal immigrants with criminal convictions with the interim rule dated October 31, 2001, hard on the heels of the national tragedy of September 11, 2001. The rule's effective date was October 29, 2001, and written comments were to be submitted by December 31, 2001. The rule is at 66 FR 54909. Here is the summary:

"This rule amends the regulations of the Executive Office for Immigration Review (EOIR), by expanding the existing regulatory provision for a temporary automatic stay of an immigration judge's decision to order an alien's release in any case in which a district director has ordered that he be held without bond or has set a bond of $10,000 or more, to maintain the status quo while the Immigration and Naturalization Service seeks expedited review of the custody order by the Board of Immigration Appeals (Board) or by the Attorney General."
Behind this reasonable-sounding language lies a stunning elevation of the authority of the prosecutor and abrogation of the authority of the immigration judge.

Let us see how this worked out in the case under review, Zavala v. Ridge. Zavala, a native and citizen of Mexico, became a lawful permanent resident of the US on December 1, 1990. On January 19, 1994, he was convicted of a lewd act with a child, and sentenced to six months in jail and two years probation. He was placed in removal proceedings on April 24, 2003 after his return from a trip abroad, and was charged with having been convicted of a crime of moral turpitude. An immigration judge terminated the proceedings on October 15, 2003, on the grounds that the conviction was within the "petty offense exception" (a single offense for which he was not sentenced for more than six months). Zavala was then placed in new removal proceedings, this time charged with an aggravated felony (sexual abuse of a minor). Zavala was taken into custody by the Bureau of Immigration and Customs Enforcement ("BICE," or "the Service") in San Francisco. The deportation officer there set a bond at $25,000. Zavala was then transferred to Florence, Arizona, where it was decided that no bond would be permitted. A bond hearing was held on November 21, 2003, and the immigration judge determined, after hearing both sides, that Zavala was not a danger to the community or a flight risk, and set bond at $5,000. On that same day the BICE filed s Form EOIR-43, or Notice of Intent to Appeal Custody Redetermination, which automatically stays the custody decision of the immigration judge while the BICE appeals the judge's decision to the BIA, and the Board rules on the government's appeal. On December 5, 2003 the BICE filed a notice of Appeal to the Board. The Board then issued a briefing schedule. On December 9, 2003 Zavala requested a change of venue to Oakland, California, which was granted. He then filed a petition for writ of habeas corpus alleging that the regulation invoked by the BICE for an automatic stay of the immigration judge's bond decision violated his substantive and procedural due process rights under the Fifth Amendment, and was ultra vires because it exceeded the authority bestowed upon the BICE by Congress.

By a decision dated March 1, 2004, the district judge, Jeffrey S. White, agreed with Zavala and granted the writ. In its opinion, the court observes: "The regulation notes state that the overriding purpose was to protect the public from an alien ‘that it believes is a threat to national security or the public safety.' However, in this case as in all instances in which the automatic stay is invoked by the Service, there has already been a determination by an immigration judge that the alien is not a danger to the public or a significant flight risk…The regulation, which permits unilateral government detention of individuals without a case-by-case determination after a reasoned finding that they do not pose a threat to safety or a risk of flight, violates the Due Process Clause because no special justification exists that outweighs the individual's constitutionally protected interest in avoiding physical restraint…Accordingly, this Court finds that Petitioner is currently detained in violation of substantive due process." The court went on to find a violation of procedural due process as well. As to the allegation that the regulation was ultra vires, the court held: "Because this back-ended approach effectively transforms a discretionary decision by the immigration judge to a mandatory detention by the Service, it flouts the express intent of Congress and is ultra vires to the statute…On this additional ground, the challenged regulation is invalid."

The attorney for the victorious petitioner, Marc Van Der Hout, was not surprised by the fact that the decision in Zavala v. Ridge was by a Bush appointee: "It shows what we have said all along, that almost any judge is going to look at this and find it outrageous, not just the quote-unquote liberal judges."

The decision in Zavala v. Ridge is a stunning victory for immigrants, and a welcome reminder of the independence of the federal judiciary.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. Mr. Baldwin's website of articles and commentary is at Mr. Baldwin has written a book on immigration law, "Immigration Questions and Answers," Allworth Press, 2002, which contains essential background information on how the immigration law works. It can be ordered online at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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