WILLIAM SANDERSON, Magistrate Judge
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2241 by a person in the custody of the Immigration and Naturalization Service who is presently confined at the Johnson County, Texas Jail in Cleburne.
Findings and Conclusions: Relying on the Supreme Court's recent decision in Zadvydas v. Davis, 533 U.S. ___, 121 S.Ct. 2491 (2001), Ventura Vera claims to be entitled to release from confinement pending his return to his country of citizenship, Cuba, or his deportation to another country willing to accept him.
It is undisputed that Ventura arrived in the United States at Key West, Florida, on May 11, 1980, as one of approximately 125,000 Cuban nationals who in 1980 came to the United States in what is generally referred to as the Mariel boat lift. Because of the large numbers involved, the INS paroled Petitioner and other Mariel Cubans into the United States. See Gisbert v. United States Attorney General, 988 F.2d 1437, 1439-40 (5th Cir. 1993).
Ventura's subsequent criminal record which he amassed following his parole to Fort Chaffee, Arkansas and subsequently to Springfield, Missouri, is likewise uncontested.
Ventura disputes the factual bases for his convictions in Cuba and for his first degree assault in Greene County, Missouri (See Respondent's response filed on August 13, 2001, at page 2; compare Ventura's response filed on August 24, 2001). However, the fact of his prior convictions is not contested.
Although both petitioners whose claims were before the Supreme Court in Zadvydas, supra, as well as Ventura were physically within the United States, their respective statuses were legally distinct and distinguishable. Both Kestutis Zadvydas and Kim Ho Ma were resident aliens, subject to removal proceedings, at the time they filed their § 2241 petitions. See Zadvydas, supra, at 121 S.Ct. 2495-96. Ventrua, on the other hand, never received resident alien status.
Accord. See Sierra v. INS. 258 F.3d 1213, 1218 (10th Cir. 2001), wherein the court addressing a habeas corpus petition filed by another Mariel Cuban observed that: "Although he has been physically present in the United States for more than twenty years [Petitioner] is `legally considered to be detained at the border and hence as never having effected entry into this country'."
Notwithstanding the relief granted in Zadvydas, the Supreme Court expressly distinguished those petitioners circumstances from persons who had never been admitted into the United States Specifically, the Supreme Court reiterated the continuing viability of its prior decision in Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 73 S.Ct. 625 (1953). The Court proceeded to restate the distinction between an alien who has effected an entry into the United States and one who has never entered, citing its decision in Leng May Ma v. Barber, 357 U.S. 185, 188-190, 78 S.Ct. 1072, 1074 (1958) (alien "paroled" into the United States pending admissibility had not effected an "entry"). Zadvydas, 121 S.Ct. at 2500.
With respect to persons in the status of "parolees" into the United States, this court is bound by the prior decision of the Fifth Circuit in Gisbert v. United States Attorney General, supra, holding that a person whose immigration parole has been revoked can be held in continuous custody while the United States attempts to find a country to which such person can be deported.
Ventura also complains about the events which transpired between the date on which he was released from the Missouri Department of Corrections to the custody of the INS, culminating with his hearing before an immigration judge on February 8, 2000, in which the immigration judge ordered him to be removed to Cuba. See Petition; also see Respondent's Appendix at 006-14. Ventura waived an appeal from the removal order and since no decision was rendered by the Bureau of Immigration Appeals, this court is without jurisdiction to consider such complaints.
Finally, he complains of the action of the Cuban Review Panel on June 29, 2000, in which his continued detention was recommended. Although such a determination may not be entirely immune from judicial review, any habeas corpus jurisdiction which may exist is limited to determining whether the INS "[has] articulated some individualized facially legitimate and bona fide reason for denying parole, and some factual basis for that decision in each individual case."Marczak v. Greene, 971 F.2d 510, 518 (10th Cir. 1992) (emphasis in original). As reflected in the Parole Review panel's determination in June, 2000, the requisites have been satisfied. See Respondent's appendix at 21-24. RECOMMENDATION:
Another annual review pursuant to 8 C.F.R. § 212.12(g)(2) should have already been conducted or will be held in the near future.
Ventura filed a motion to amend and to add a new claim to his petition on September 4, 2001. Specifically he seeks to be considered in the status of a resident alien admitted into the United States. While it is likely that he did not appreciate his status as a parolee when allowed to reside in this country, he has presented the court with no documentation that at any time prior to his incarceration on state criminal charges he was ever misinformed by the INS as to his residency status. This added claim is patently frivolous and it would be futile to allow him to amend his petition.
For the foregoing reasons it is recommended that the petition be denied.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.