Opinion
Civil Action No. 3:00cv2142-G.
August 16, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the 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 writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
Parties: Petitioner Jorge D. Beltran-Leonard ("Leonard") is a deportable alien presently confined in the Dallas County Jail. Respondent is the Immigration and Naturalization Service (INS).
Procedural History: Petitioner, a thirty-four year old native and citizen of Cuba entered the United States as part of the Mariel Boatlift in September 1980. He was paroled from INS custody on September 12, 1980. (Respondent's Appendix ("Res. App.") at 028.)
In late 1980, approximately 125,000 Cuban nationals came to the United States. They have been denominated as Mariel Cubans because they departed from the Mariel Harbor in Cuba. See Gisbert v. U.S. Atty. General, 988 F.2d 1437, 1439 and notes 3 and 4, amended by 997 F.2d 1123 (5th Cir. 1993). Due to the unprecedented number of Cubans arriving in the United States, the INS paroled them into this country rather than processing each in accordance with normal immigration procedures. Although most of the Mariel Cubans may be categorized as persons seeking political asylum, among their numbers were included persons who had been serving prison terms for crimes against persons and property immediately prior to being transported from the Harbor to the United States. The record in this case does not disclose whether Leonard had a prior conviction record in Cuba.
On November 26, 1997, Leonard was convicted in Cleveland County, Oklahoma of three counts of assault and battery of a police officer and received three concurrent five year sentences, suspended in each case for all but 90 days. (Res. App. at 001-007.) On May 7, 1998, he was convicted in Cleveland County, Oklahoma of one count of injury to a minor child and sentenced to a two years suspended sentence. ( Id. at 007-014.) The May 1998 suspended sentence was revoked on the State of Oklahoma's motion on July 8, 1998, for violations of the conditions of release and he was sentenced to two years in the Oklahoma Department of Corrections. ( Id. at 015-016.) The INS issued a detainer to the Oklahoma Department of Corrections on July 24, 1998. ( Id. at 018.)
Leonard's INS parole was revoked on October 14, 1998, as a result of the revocation of his suspended sentence. (Res. App. at 017.) On May 11, 1999, the INS issued a Notice of Intent to Issue a Final Administrative Removal Order charging him with deportability based on § 237(a)(2)(a)(iii) of the Immigration and Naturalization Act (INA) [ 8 U.S.C. § 1227(a)(2)(A)(iii)] for his 1997 convictions for assault and battery of a police officer, which is an aggravated felony, as defined in § 101(a)(43)(F) of the INA [ 8 U.S.C. § 1101(a)(43)(F)]. ( Id. at 020.) Petitioner was never admitted to the United States as a lawful permanent resident, and as an alien convicted of an aggravated felony, he was subject to administrative removal without a hearing before an Immigration Judge. ( Id.) He was given 10 calendar days to respond to the Notice. ( Id.)
The Notice of Intent to Remove was served on Leonard on May 13, 1999, the day he was released from the Oklahoma prison system and came into INS custody pursuant to the previously filed INS detainer. (Res. App. at 020.) He indicated that day that he wished to contest the charges and indicated supporting documents were attached, but none were attached nor subsequently submitted. ( Id. at 21.)
A Final Administrative Removal Order was issued by the Dallas District Director for the INS which has jurisdiction over Oklahoma on August 5, 1999, ordering Leonard's removal to Cuba. (Res. App. at 025.) Also on that date, a Warning to Alien Ordered Removed or Deported and a Warrant of Removal/Deportation were also issued. ( Id. at 026.)
Throughout the criminal proceedings in the United States, Petitioner used the alias Jorge David Guerra. It was not until he was received into INS custody that his true name of Jorge Beltran-Leonard was discovered on his original INS parole document dated September 14, 1980.
Cuba has refused repatriation of its citizens order removed from the United States. Therefore, pursuant to 8 C.F.R. § 212.12, Leonard has been afforded periodic custody reviews to determine his suitability for release from custody. The first preliminary review by the Mariel Cuban Custody Review Team took place on June 7, 1999, and it was recommended that he remain in INS custody. (Res. App. at 029.) A more thorough review was conducted on November 3, 1999, with two additional Mariel Cuban Review panel members. ( Id. at 030-32.) The Panel found that Petitioner was not credible and that no family members volunteered to sponsor or assist him. Thus, the Panel recommended that he remain in INS custody. This recommendation was adopted by the INS Associate Commissioner for Enforcement by decision dated December 3, 1999. ( Id. at 033.) The Final Notice of Parole Denial was served on the Petitioner on January 20, 2000. ( Id. at 033-035.) Leonard was advised that he would receive reconsideration of his custody status within one year of the December 3, 1999 notice, making him eligible for reconsideration of his custody status in December of 2000. During the pendency of this action, Leonard received further review by the Panel. The most recent review occurred on March 1, 2001, and resulted in a Final Notice of Parole Denial issued on May 1, 2001. See Attachment 1 to Respondent's Supplemental Response filed on August 8, 2001.
Mariel Cubans who are being detained have their cases reviewed every year to determine whether they should be paroled. See 8 C.F.R. § 212.12(g)(2). A Cuban Review Panel makes a recommendation to the Associate Commissioner for Enforcement of the INS, who has the discretion to approve parole. See id. § 212.12(b), (d). This approval may be withdrawn prior to release if "the conduct of the detainee, or any other circumstance, indicates that parole would no longer be appropriate." Id. § 212.12(e).
Leonard filed the instant § 2241 petition on September 29, 2000, alleging that his continued detention was a violation of the Fifth Amendment Due Process and Equal Protection Clauses, as well as constituting double jeopardy, because he had completed his prison sentence. After the court issued a show cause order, Respondent filed its opposition and motion to dismiss on November 17, 2000, relying in part on the Fifth Circuit's decision in Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999). The petitioner in Zadvydas filed a petition for writ of certiorari in the United States Supreme Court, which was granted on October 10, 2000. Zadvydas v. Underdown, 531 U.S. 923, 121 S.Ct. 297 (2000) (order granting certiorari). In light of the Supreme Court's action, this court deferred further consideration of Leonard's petition pending issuance of the Supreme Court's opinion in Zadvydas. The Supreme Court issued its decision in Zadvydas v. Davis, ___ U.S. ___, 121 S.Ct. 2491 (2001) on June 28, 2001, vacating the Fifth Circuit's prior decision. On July 11, 2001, Respondent was ordered to file a supplemental response in light of the Supreme Court's Zadvydas decision. Respondent filed its supplemental response on August 8, 2001.
Findings and Conclusions: In vacating the Fifth Circuit's decision, the Supreme Court held that § 241(a)(6) of the INA [ 8 U.S.C. § 1231(a)(6)], read in light of due process protections for aliens who have been admitted into the United States, generally permits the detention of such an alien under a final order of removal only for a period reasonably necessary to bring about that alien's removal from the United States. Mezei, 345 U.S. at 212-213, 73 S.Ct. at 629-630. The Supreme Court held that detention of such an alien beyond the statutory removal period, for up to six months after the removal order becomes final, is "presumptively reasonable." Zadvydas, ___ U.S. ___, 121 S.Ct. at 2505. After six months, if an 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.
However, as distinguished from aliens admitted into the United States, the Supreme Court's decision in Zadvydas does not apply to aliens — although physically within the United States — who 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, 73 S.Ct. 635 (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. The Court distinguished the Zadvydas case from that of Mezei, cited to by the Government as support for its position that alien status itself can justify indefinite detention:
[ 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, 3 57 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").Zadvydas, ___ U.S. at ___, 121 S.Ct. at 2500.
Under the distinction made by the Supreme Court in Zadvydas between lawful resident aliens and paroled aliens, the continued detention of Leonard, a paroled alien who never gained lawful entry into the country in the past 21 years, does not deprive him of any constitutional rights to due process or equal protection.
Leonard also claims that his continued detention constitutes Double Jeopardy since he has already completed his sentence for the criminal convictions on which his removal is based. The Fifth Circuit held in Gisbert v. Attorney General, 988 F.2d 1437, 1442 (5th Cir. 1993) that detention pending exclusion did not constitute punishment, since the detention could rationally be seen as a necessary byproduct of the need to expel an unwanted alien rather than a punitive decision. Nothing in the Supreme Court's opinion in Zadvydas calls this holding into question.
RECOMMENDATION:
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.
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 Serv. Auto Assn., 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.