ALFONSO v. ASHCROFT

WILLIAM F. SANDERSON, JR., United States Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, this cause has 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:

Type Case: This is a petition for writ of habeas corpus filed by a removable alien pursuant to 28 U.S.C. § 2241.

Parties: Petitioner is presently confined at the Jefferson County Detention Center in Waurika, Oklahoma. Respondent is the United States Attorney General.

Procedural History: Petitioner, a forty-one year old native and citizen of Cuba entered the United States as part of the Mariel Boatlift on June 4, 1980. He was subsequently paroled from INS custody. (Resp. at 2).

On September 23, 1982, Petitioner was convicted of burglary of a habitation with intent to commit theft in Bexar County, Texas, and was sentenced to seven years imprisonment. (Res. App. at 001-004). On July 19, 1985, he was convicted in Wisconsin of burglary and was sentenced to five years imprisonment. (Id. at 006-007). On June 20, 1994, he was convicted of aggravated sexual assault and unlawful restrain in Illinois, and received an eight-year sentence. (Id. at 008-016).

On August 9, 2000, Petitioner's INS parole was revoked. On August 15, 2000, the INS issued a Notice to Appear charging him with removability because of crimes of moral turpitude, because he had been convicted of two or more offenses for which the aggregate sentences of confinement were five years or more, and because he was an immigrant without a valid immigrant visa. (Id. at 16-17). On July 26, 2001, an Immigration Judge in Chicago, Illinois, ordered Petitioner removed to Cuba. (Id. at 18). Petitioner waived an appeal. ( Id.).

Cuba has refused repatriation of its citizens who have been ordered to be removed from the United States. Therefore, pursuant to 8 C.F.R. § 212.12, Petitioner has been afforded periodic custody reviews to determine his suitability for release from custody. At the review conducted on January 31, 2002, the Panel found that Petitioner was evasive and untruthful, and that recent disciplinary incidents indicated "lack of control [and] contempt for authorities." (Resp. App. at 20-21). Thus, the Panel recommended that Petitioner remain in INS custody. The record does not reflect whether this recommendation was adopted and when Petitioner will receive further review by the panel.

In this § 2241 petition, filed on February 19, 2002, Petitioner challenges his continued detention under the Fifth Amendment Due Process Clause.

In response to this Court's Order to Show Cause, Respondent filed a motion to dismiss on June 21, 2002. Although granted two opportunities to respond to the motion to dismiss and to amend the petition to present new facts not previously alleged, Petitioner has failed to so. ( See Orders filed on July 11 and August 13, 2002).

Findings and Conclusions: The petition relies exclusively on the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001), which held that resident aliens detained under § 241(a)(6) of the INA [ 8 U.S.C. § 1231 (a)(6)], cannot be held indefinitely. The Supreme Court concluded that detention of such a resident alien beyond the statutory removal period, for up to six months after the removal order becomes final, is "presumptively reasonable." Zadvydas, 533 U.S. at 701. After six months, if a resident alien can provide "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," the government must rebut the alien's showing in order to continue the alien in detention. Id.

The Supreme Court's decision in Zadvydas does not apply to aliens who — although physically within the United States — have merely been paroled into the country. Paroled aliens are "legally considered to be detained at the border and hence as never having effected entry into this country." Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1440 (5th Cir.), amended by 997 F.2d 1122 (5th Cir. 1993.) In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), the Supreme Court held that such aliens do not have due process rights to enter or to be released into the United States, and continued detention may be appropriate to accomplish the statutory purpose of preventing the entry of a person who has, in the contemplation of the law, been stopped at the border, even though they are physically present in the United States.

In Zadvydas, the Supreme Court reaffirmed its decision in Mezei by distinguishing between excludable aliens and aliens who were admitted to the United Stats but subsequently ordered removed.

[ Mezei] involved a once lawfully admitted alien who left the United States, returned after a trip abroad, was refused admission, and was left on Ellis Island, indefinitely detained there because the Government could not find another country to accept him. The Court held that Mezei's detention did not violate the Constitution. [ Mezei, 345 U.S.] at 215-216, 73 S.Ct. 625.

Although Mezei, like the present cases, involves indefinite detention, it differs from the present cases in a critical respect. As the Court emphasized, the alien's extended departure from the United States required him to seek entry into this county once again. His presence on Ellis Island did not count as entry into the United States. Hence, he was "treated" for constitutional purposes, "as if stopped at the border." Id. at 213, 215, 73 S.Ct. 625. And that made all the difference.

The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. See Kaplan v. Tod, 267 US. 228, 230, 45 S.Ct. 257, 69 L.Ed.2d 585 (1925) (despite nine years' presence in the United States, an "excluded" alien "was still in theory of law at the boundary line and had gained no foothold in the United States"); Leng May Ma v. Barber, 357 U.S. 185, 188-190, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (alien "paroled" into the United States pending admissibility had not effected an "entry").

Under the distinction made by the Supreme Court in Zadvydas between lawful resident aliens and paroled aliens, the continued detention of Petitioner, a paroled alien who never gained lawful entry into the country in the past twenty-two years, does not deprive him of any constitutional rights to due process or equal protection. See also Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991-92 (7th Cir. 2001), pet. for certiorari filed (March 4, 2002) (No. 01-10494).

For the foregoing reasons, it is recommended that the § 2241 petition for writ of habeas corpus be DENIED.

A copy of this recommendation shall be transmitted to Movant and to counsel for Respondent.

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 toDouglass v. United Serv. 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 a de 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.