Opinion
No. C 02-0995 MMC (PR)
October 3, 2002
ORDER DENYING PETITION FOR WRIT HABEAS CORPUS
Petitioner, a removable alien currently detained on behalf of the Immigration and Naturalization Service ("INS") at the Federal Correctional Institute in Dublin, California, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. After a review of the petition, the Court ordered respondent to show cause why the petition should not be granted. Respondent has filed a response and petitioner has filed a traverse.
BACKGROUND
Petitioner arrived in the United States in 1980 as part of the Mariel boat lift from Cuba. Like other "Mariel Cubans," she was eventually paroled into the general population of the United States. In 1984, petitioner was placed into INS custody after a conviction for robbery. Based on this conviction, the INS, in 1987, ordered her excluded from the United States under then-existing provisions of the Immigration and Naturalization Act ("INA"). Because Cuba would not accept her, petitioner was retained in INS custody along with many other Mariel Cubans. Under the "Cuban Review Plan," she was released on parole in 1991. In 1997, petitioner was charged with drug possession and served a fourteen-month sentence, after which the INS took her back into custody, where she remains pending deportation to Cuba.
DISCUSSION
Petitioner claims that her detention pending deportation is unlawful because Cuba will not accept her and she will not be deported in the reasonably foreseeable future. In Barrera-Echevarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc), the petitioner, a Cuban national, argued, as petitioner does here, that his continued and indefinite detention was illegal because his deportation to Cuba or any other country could not be effected in the foreseeable future. The court of appeals rejected Barrera-Echevarria's arguments and held that: (1) the Attorney General has statutory authority to detain indefinitely an undeportable, excludable alien; (2) the extended detention of an undeportable, excludable alien is constitutional; and (3) the extended detention of an undeportable, excludable alien does not violate any rule of international law enforceable by a domestic court against the United States. See Barrera-Echevarria, 44 F.3d at 1444-51; accord Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir. 2001) (finding constitutional the indefinite detention of a Mariel Cuban who was an excludable alien). The court of appeals then remanded the case to the district court with instructions to dismiss the petition. See id. at 1451. Because petitioner's claim attacking her indeterminate detention is governed by the rationale of Barrera-Echevarria, it must be denied.
In finding Barrera-Echevarria's detention constitutional, the court of appeals relied in Part on the Cuban Review Plan, which provides for annual reviews to reassess whether detained Cuban aliens should be granted parole. See Barrera-Echevarria, 44 F.3d at 1450. Petitioner, like Barrera-Echevarria, has had and will continue to have, the opportunity to plead her case for parole to the INS under the Cuban Review Plan.
Petitioner argues that her claims are governed by Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Supreme Court held that, under 8 U.S.C. § 1231(a)(6) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), the INS may Not indefinitely detain an alien where his native country will not accept him if he is removed. 533 U.S. at 689 see also Lin v. INS, 298 F.3d 832, 836, 840 (9th Cir. 2002) (Zadvydas applies regardless of whether the alien is removable because he is a deportable resident alien or because he is an inadmissible non-resident alien); Ma v. Ashcroft, 257 F.3d 1095, 1105 (9th Cir. 2001) ("In cases in which an alien has already entered the United States and there is no reasonable likelihood that a foreign government will accept the alien's return in the reasonably foreseeable future, . . . [§ 1231(a)(6)] does not permit the Attorney General to hold the alien for more than a reasonable period beyond that removal period.") Zadvydas and its progeny, however, do not apply to this case because § 1231(a)(6), the statute interpreted by those decisions, does not apply to petitioner. "As to cases in which a final deportation or exclusion order was filed on or before October 30, 1996, the INA as it was codified prior to passage of IIRIRA applies." Kalaw v. I.N.S., 133 F.3d 1147, 1150 (9th Cir. 1997). IIRIRA applies to cases in which a final order of deportation is filed after October 30, 1996. See id. (distinguishing between the effective dates of IIRIRA's temporary and permanent provisions). The parties in this case agree that a final order of exclusion was filed against petitioner in 1987. Consequently, IIRIRA does not apply to petitioner; rather, the INA as it was codified prior to the passage of IIRIRA applies. As § 1231(a)(6) is a provision added to the INA by IIRIRA, Lin 298 F.3d at 837, it does not apply to petitioner, see e.g.,id. at 837-38 (finding § 1231(a)(6) did not apply to the petitioner in Barrera-Echavarria because his deportation preceded IIRIRA);Hoyte-Mesa, 272 F.3d at 989 (not applying IIRIRA or § 1231(a)(6) to petitioner who filed federal petition in 2000, but whose deportation order was finalized in 1986); Barrera-Echavarria, 44 F.3d at 1444-45 (applying pre-IIRIRA statutes to petitioner with a 1985 deportation order).
In Lin, the Ninth Circuit explained that its decision that Lin's indefinite detention violated § 1231(a)(6) did not conflict with its en banc decision in Barrera-Echavarria allowing the petitioner's indefinite detention because § 1231(a)(6) did not apply to Barrera-Echavarria. See Lin, 198 F.3d at 837-38. The petitioner in this case is similarly situated to Barrera-Echavarria, and not to Lin, because like Barrera-Echavarria and unlike Lin, IIRIRA and § 1231(a)(6) do not apply to her. As a result, petitioner's claims are governed by the decision in Barrera-Echavarria, which, as explained above, permitted the indefinite detention of a Mariel Cuban who, like petitioner, had been found excludable. See Barrera-Echavarria, 44 F.3d at 1451; see also Hoyte-Mesa, 272 F.3d at 991-92 (same). Under Barrera-Echavarria, petitioner's challenge to her indefinite detention fails.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the Clerk shall close the file.
IT IS SO ORDERED.