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Sharply criticizing the Immigration and Naturalization Service, a federal judge has ordered the immediate release of a Dominican woman who has spent nearly four months in jail despite an immigration judge’s order that she be released on a $5,000 bond. In Almonte-Vargas v. Elwood, U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania found that the INS has adopted policies designed to counteract the effects of a recent 3rd Circuit ruling that the INS disagrees with and is hoping to overturn in the U.S. Supreme Court. In December, the 3rd Circuit held in Patel v. Zemski that an alien who is jailed at the beginning of deportation proceedings that stem from an “aggravated felony” conviction must be given a bail hearing. Writing for a unanimous three-judge panel, 3rd Circuit Judge Dolores K. Sloviter stopped short of declaring the federal statute unconstitutional. Instead, she held only that due process requires immigration judges to hold bail hearings for such aliens despite the statute’s explicit prohibition against even considering release. “Mandatory detention of aliens after they have been found subject to removal but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded the opportunity for an individualized hearing at which they can show that they do not pose a flight risk or danger to the community,” Sloviter wrote. Under the statute, � 236(c) of the Immigration and Nationality Act, Sloviter noted that aliens are already entitled to a hearing to determine if they meet the statute’s definition of an “aggravated felon.” “There appears to be no insurmountable reason why this hearing could not be expanded to incorporate an evaluation of flight risk and danger, an evaluation that immigration judges already undertake for non criminal aliens,” Sloviter wrote. Requiring an individualized hearing, Sloviter said, “would infuse the detention process with the accuracy and precision that it currently lacks.” Now Judge Surrick has found that the INS is trying to find ways to undo the effects of Patel even before the U.S. Supreme Court decides whether to take the case. When Ursula Altagracia Almonte-Vargas was given a Patel hearing and was granted bail by an immigration judge, the INS responded by filing an appeal — triggering an automatic stay of the bail ruling — and then asking that no action be taken on the appeal. “In our view, due process is not satisfied where the individualized custody determination afforded to petitioner was effectively a charade,” Surrick wrote. “By pursuing an appeal of the immigration judge’s bond determination and requesting that no action be taken on the appeal, the INS has nullified that decision and accomplished precisely what is prohibited under Patel,” Surrick wrote. In the harshest passage in the opinion, Surrick said he rejected the INS’ argument “as a flawed and transparent attempt to eviscerate the due process required under Patel. The INS clearly disagrees with the holding in Patel and is seeking Supreme Court review … In the meantime, the INS is essentially disregarding Patel and accomplishing petitioner’s mandatory detention as an ‘aggravated felon’ through the mechanism of the automatic stay.” According to court papers, Ursula Altagracia Almonte-Vargas was born in the Dominican Republic and is a “lawful permanent resident” of the United States. Living in the United States since 1985, Almonte is currently 36 years old and the mother of three United States-born children ranging in age from 4 to 14. In April 2001, Almonte was convicted in the Berks County, Pa., Court of Common Pleas on charges of possessing and intending to sell heroin and receiving stolen cars. She was sentenced to “time served” (43 days) on the drug charges and seven years probation on the receiving stolen property charges. In October 2001, the INS began removal proceedings against Almonte, alleging that her drug convictions subjected her to deportation as an aggravated felon. After Almonte was arrested in February 2002, the INS district director decided she was to be held without bail. Almonte appealed the decision to an immigration judge who held a hearing on March 19, 2002, and ordered that she be released on $5,000 bond. The following day, the INS appealed to the Board of Immigration Appeals, arguing that the immigration judge lacked authority to redetermine the district director’s custody decision because, under the law, Almonte is subject to mandatory detention. The INS appeal triggered an automatic stay of the immigration judge’s release order. “We find petitioner’s detention particularly unconscionable in light of the INS’ express request that the BIA indefinitely delay consideration of petitioner’s detention,” Surrick wrote. (Italicization supplied by the court.) About six weeks later, Almonte’s lawyer, Alfonso Caprara, filed a habeas corpus petition in U.S. District Court, arguing that Almonte’s “indefinite detention” was unconstitutional. Just days later, on May 6, 2002, an immigration judge ordered that Almonte be deported to the Dominican Republic. She has since filed an appeal of the removal decision with the BIA. Surrick noted that even before Patel, several trial judges in the 3rd Circuit had concluded that the mandatory detention of alleged “aggravated felons” violated their due process rights, and ordered the INS to afford the petitioners individualized bail hearings. Since Patel, Surrick found that INS has decided to invoke the “automatic stay” provision in the law to effectively cancel decisions by immigration judges to grant bail. Assistant U.S. Attorney Stephen J. Britt argued that Patel does not mandate Almonte’s release because the INS is not relying solely on the mandatory detention provision, but is also arguing that the $5,000 bond is insufficient. Britt told Surrick the INS is aware of Patel and that because the INS is seeking Supreme Court review of the decision, INS trial attorneys have been instructed to appeal adverse decisions involving detention of aggravated felons. Surrick found the INS policy invalid, saying “this instruction appears designed to administratively overrule the holdings in Patel … pending Supreme Court review of the mandatory detention issue.” Interpreting Britt’s argument, Surrick said: “the government is suggesting that because the INS disagrees with and has appealed the immigration judge’s individualized bond determination, petitioner’s continued detention is an exercise of the Attorney General’s discretion … and not a function of the mandatory detention provision…. The government further suggests that such ‘discretionary judgments’ of the Attorney General are insulated from judicial review.” Surrick rejected the argument, saying “in this case, the government’s use of the automatic stay to achieve the mandatory detention provided for in Section 1226(c) exceeds constitutional limitations.” Surrick noted that Almonte has been detained for more than four months, and that her detention has continued for more than three months after the immigration judge ordered her released on bond. The INS appeal, he noted, has been pending since late March “with no indication when it will be resolved.” As a result, Surrick concluded that Almonte’s continued detention is unconstitutional and ordered her immediate release.

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