Opinion
CASE NO. C02-2005L.
January 29, 2003
Attached are copies of my Report and Recommendation, proposed order and judgment in the above-captioned case. The originals are being filed with the Clerk. This Report and Recommendation is not an appealable order. Any notice of appeal should not be filed until the District Judge enters judgment in this case.
Because the court has ordered expedited consideration of these cases, we are directing responses to the Report and Recommendation more quickly than would otherwise be provided under the rules. Objections to the recommendation should be filed and served within seven days of the date of this letter with copies to the Clerk for forwarding to the District Judge and to my office. You should note your objections for consideration on the District Judge's motion calendar for the second Friday after they are filed. If no timely objections are filed, the matter will be ready for consideration by the District Judge on February 7, 2003.
REPORT AND RECOMMENDATION RE: INDEFINITE DETENTION
INTRODUCTION AND SUMMARY CONCLUSION
Petitioner Lorenzo Perez-Tamayo is a 46-year-old Cuban citizen who was paroled into this country at Key West, FL, on May 1526, 1980 as part of the Cuban-Mariel boatlift. (Dkt. #9 at L022). Through counsel, he has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, seeking relief from his current confinement. Petitioner argues that under new Ninth Circuit controlling law, he is being indefinitely detained in violation of the U.S. Supreme Court's decision in Zadvydas v. Davis, 121 S.Ct. 2491 (2001). See Lin Guo Xi v. Ashcroft, 298 F.3d 832 (9th Cir. 2002). In the alternative, he raises statutory and constitutional challenges to his confinement.
On July 9, 1999, this court, in a Joint Order involving five "lead" cases, ruled that indefinite detention violated substantive due process. See Phan v. Reno, 56 F. Supp.2d 1149 (W.D.Wash. 1999). The Ninth Circuit Court of Appeals in Ma v. Reno, 208 F.3d 815 (9th Cir. 2000) (subsequent history omitted), affirmed the Joint Order, but on different grounds. The court determined that the INS lacked the statutory authority to detain deportable aliens beyond a ninety (90) day removal period if there was no reasonable likelihood of removal in the foreseeable future. (Emphasis added).
In Zadvydas, supra, the United States Supreme Court affirmed Ma's general holding that indefinite detention is unauthorized. The Court stated that "in light of the Constitution's demands, . . . an alien's post-removal-period detention [is limited] to a period reasonably necessary to bring about the alien's removal from the United States." Zadvydas, 121 S.Ct. at 2498. The Court went on to adopt a "presumptively reasonable period of detention" of six months. Id. at 2504-05. Until recently, however, this decision has been construed to apply only to deportable aliens, not those who are inadmissible such as petitioner.
Recently, however, the Ninth Circuit Court of Appeals held that the Zadvydas decision applies to inadmissible aliens as well as deportable aliens. In Xi, supra, the Court reasoned:
Section 1231(a)(6) . . . does not draw any distinction between individuals who are removable on grounds of inadmissibility and those removable on grounds of deportability. On its face, the statute applies symmetrically to three classes of aliens: (1) those who are `inadmissible under section 1182'; (2) those who are deportable under sections 1227(a)(1)(C) (violation of nonimmigrant status or condition of entry), 1227(a)(2) (criminal offenses), or 1227(a)(4) (security and related grounds); or (3) those who are a risk to the community or unlikely to comply with the removal order.
. . .
The clear text of the statute, coupled with the Supreme Court's categorical interpretation, leaves us little choice but to conclude that Zadvydas applies to inadmissible individuals. . . . The statute, on its face makes no exceptions for inadmissible aliens. The Supreme Court's unqualified holding provides that the statute `does not permit indefinite detention.'Xi, 298 F.3d at 835-36 (citation omitted).
For the reasons set forth below, the Court finds that petitioner's case falls into the Xi/Zadvydas group of indefinite detention cases. Having reviewed the entire record, including the habeas petition (Dkt. #3), respondents' return and status report and motion to dismiss (Dkt. #10), petitioner's response (Dkt. #13) and the INS administrative record (Dkt. #9), I recommend that the court GRANT petitioner's habeas petition and order his release immediately, on conditions to be set by the INS. Such conditions may include those set forth in 8 C.F.R. § 241.5(a).
BACKGROUND
Petitioner is a native and citizen of Cuba. (Dkt. #9 at L022). He is a Mariel Cuban, as defined in 8 C.F.R. § 212.12(a). Petitioner was paroled into the United States at Key West, FL, on May 26, 1980. (Dkt. #9 at L022). He does not currently have a Cuban passport. (Dkt. #13 at 3).
Petitioner has particularly serious criminal history, spanning the states of Pennsylvania, New York, Maryland and Washington, as well as the District of Columbia. In Washington, D.C., on May 23, 1983, petitioner was charged with assault with a dangerous weapon, and two counts of violating the Controlled Substance Act. It appears that the assault and weapon charges were reduced to simple assault, and then dismissed. (Dkt. #9 at R015 and R061). On July 27, 1983, petitioner pleaded guilty to the two controlled substance violations. (Dkt. #9 at R015-16). The record does not reflect petitioner's sentence, if any. Less than one month later, on August 22, 1983, petitioner was arrested in Rockville, Maryland, and charged with intent to murder and possession of a deadly weapon. (Dkt. #9 at R014). The charges were apparently reduced to simple assault. On February 28, 1984, petitioner was again arrested in Rockville, Maryland, and was charged with assault with intent to murder and with assault and battery. (Dkt. #9 at R014 and R061). The disposition of these arrests are unknown.
On April 19, 1984, petitioner was arrested in Baltimore, Maryland, and charged with failure to obey police and resisting arrest. (Dkt. #9 at R061). This disposition of this arrest is unknown.
On November 19, 1984, petitioner was arrested in New York, New York, and charged with attempted second degree murder, assault with intent to cause serious injury, criminal possession of a weapon, and third degree sexual abuse. (Dkt. #9 at R020-21). On March 14, 1986, petitioner pleaded guilty to attempted criminal possession of a weapon in Bronx County Superior Court. (Dkt. #9 at R020). The sentence, if any, is not contained in the record. Just 15 days later, on March 29, 1986, petitioner was arrested in Pittsburgh, Pennsylvania, for public drunkenness and for possession of marijuana. (Dkt. #9 at R003 and R061). Petitioner subsequently pleaded guilty to the public drunkenness charge, and he was fined and ordered to pay costs. (Dkt. #9 at R003). The marijuana charge was apparently dismissed.
On July 1, 1986, petitioner was again arrested in Pittsburgh, Pennsylvania, for disorderly conduct and resisting arrest. (Dkt. #9 at R002). The charges were later withdrawn. Twenty-two days later, on July 23, 1986, petitioner pleaded guilty to reckless endangering, possession of an instrument of crime, and simple assault. (Dkt. #9 at R002). The charges are also noted as possible domestic violence. Petitioner was sentenced to time already served and two years of probation. (Dkt.#9 at R001).
On June 8, 1987, petitioner was arrested again in Baltimore, Maryland., and charged with failure to appear in court, assault by cutting or stabbing, possession of a deadly weapon (knife) with the intent to injure, and carrying a concealed deadly weapon (knife). (Dkt. #9 at R013). The dispositions of these charges are also unknown.
On February 9, 1989, petitioner was convicted in King County Superior Court of murder in the second degree. (Dkt. #9 at L011). He was sentenced to 164 months in prison, followed by one year of probation. (Dkt. #9 at L011). Then, on April 4, 1996, while serving his sentence for the murder conviction, petitioner was convicted in Snohomish County Superior Court of custodial assault. (Dkt. #9 at L021). He was sentenced to 12 months in prison, to run concurrently with the murder sentence.
The INS became aware of petitioner while he was incarcerated at the Special Offender Center at the Washington State Reformatory in Monroe, WA, where he was serving his murder sentence. (Dkt. #9 at L022). On October 1, 2001, after he had completed his sentence, petitioner was taken into custody by the INS. (Dkt. #1 at 3). Six months later, on April 21, 2002, the INS issued a Notice to Appear, placing petitioner in removal proceedings, and alleging deportability under INA § 212(a)(2)(A)(i)(I) in that he had been convicted of a crime involving moral turpitude. (Dkt. #9 at L024).
On June 18, 2002, petitioner filed an application for asylum and for withholding of removal. (Dkt. #9 at L033).
On July 15, 2002, removal proceedings were commenced before a Seattle Immigration Judge ("IJ"). Apparently petitioner withdrew his application for asylum and withholding of removal, and the IJ ordered him removed to Cuba. (Dkt. #9 at L051). Petitioner waived his right to appeal the decision to the Board of Immigration Appeals ("BIA"). (Dkt. #9 at L051). Thus, petitioner's removal order became administratively final on the same date. Petitioner is currently detained at the Correctional Services Corporation ("CSC") in Seattle, WA. (Dkt. #13 at 2).
On August 1, 2002, the Ninth Circuit Court of Appeals decided Xi v. INS, 298 F.3d 832, which held that the presumptively reasonable six-month post-removal order detention period under Zadvydas v. Davis, 533 U.S. 678 (2001), applies to inadmissible aliens as well as admissible aliens. Xi, 298 F.3d at 834. Respondents then petitioned the Ninth Circuit for a rehearing en banc of the Xi decision, but the request was subsequently denied.
On September 4, 2002, in accordance with the Cuban Review Plan, 8 C.F.R. § 212.12, a custody review of petitioner's case was conducted. (Dkt. #9 at L071). The Plan provides that each Mariel Cuban detainee will be evaluated by a Cuban Review Panel, comprised of two members of the INS staff. 8 C.F.R. § 212.12(d)(1). In order to recommend that a detainee be paroled, the panel members must conclude that he is presently non-violent, is likely to remain non-violent, and is not otherwise likely to violate any parole conditions in the event of his release. 8 C.F.R. § 212.12(d)(2).
A review panel conducted both a record review, and an in-person interview with petitioner in Seattle. On October 16, 2002, the panel issued their decision, denying petitioner parole. (Dkt. #9 at L071). The panel also notified petitioner that it would reconsider petitioner's status one year from that date. (Dkt. #9 at R070).
On October 1, 2002, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. #3). On the same date, respondents were ordered to file their return and status report no later than December 15, 2002. (Dkt. #7). On December 30, 2002, respondents filed their return and status report, along with a motion to dismiss. (Dkt. #10). On January 17, 2003, petitioner filed his response. (Dkt. #13). The petition is now ripe for review.
DISCUSSION
Petitioner asserts that the Supreme Court's interpretation of 8 U.S.C. § 1231(a)(6) in Zadvydas now applies to him pursuant to the Ninth Circuit's recent decision in Xi, supra. (Dkt. #3). Petitioner argues that his continued detention is not permissible under Zadvydas because there is no evidence that he will be removed to Cuba in the reasonably foreseeable future. In the alternative, petitioner argues that if Zadvydas does not apply to him, his detention violates his right to procedural due process under the United States Constitution.
Respondents initially argue that because petitioner is an inadmissible alien, the Court should allow the INS to continue to detain him pursuant to the Ninth Circuit en banc decision in Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (approving the protracted detention of "excludable" aliens). (Dkt. #8 at 4-6). Respondents further argue that the Solicitor General is presently reviewing the Xi decision in consideration of filing a Petition for Certiorari, and ask that in the meantime, this Court decline to follow the Xi holding. (Dkt. #10 at 5). The Court must reject respondents' argument. As discussed below, the Ninth Circuit Court of Appeals has already determined that both Xi, and therefore Zadvydas, apply to cases such as petitioner's.
1. Applicability of Xi
Respondents' argument that Barrera-Echavarria governs petitioner's case has been expressly rejected by the Ninth Circuit. In Xi, the Court of Appeals stated that:
the problem with the government's argument . . . is that the statute interpreted Barrera-Echavarria no longer exists. Instead we are bound by the Supreme Court's interpretation of the now-applicable statute, 8 U.S.C. § 1231(a)(6), which was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The government asks to read § 1231(a)(6) in light of the statutory holding in Barrera-Echavarria. Doing so, however, is untenable. This is not only because of the absence of any provision in the INA's earlier incarnation that corresponds to § 1231(a)(6), but also because IIRIRA introduced an entire set of new legal concepts purporting to redefine the `basic territorial distinction' at play in immigration law.Xi, 298 F.3d at 837-38 (citations omitted) (footnote omitted). While the Court of Appeals acknowledged that the companion case to Zadvydas, Ma v. Ashcroft, 257 F.3d 1095 (9th Cir. 2001), was not inconsistent with Barrera-Echavarria, the Court also stated that Ma did not reaffirm the continuing applicability of Barrera-Echavarria to inadmissible aliens. Xi, 298 F.3d at 837 n. 2 (stating, "[t]he government also argues that our decision in Ma . . . reaffirmed Barrera-Echavarria's continuing applicability. The government is mistaken."). Thus, the Court finds that the instant habeas petition is indeed governed by the Ninth Circuit's recent decision in Xi, and not Barrera-Echavarria as respondents argue.
The Court notes, however, that simply because Xi expands the applicability of Zadvydas to petitioner's case, it does not mean that petitioner must automatically be released. As the Ninth Circuit stated, petitioner will only be "entitled to supervised release if he can demonstrate that there is no significant likelihood of his removal in the reasonably foreseeable future." Xi, 298 F.3d at 834. Petitioner has the initial burden, and "the government must then `respond with evidence sufficient to rebut [the detainee's] showing.'" Xi, 298 F.3d at 840 (citation omitted).
2. Applicability of Zadvydas
In Zadvydas, the Supreme Court held that 8 U.S.C. § 1231(a)(6), the applicable INS post-final removal order detention statute, when "read in light of the Constitution's demands, limit[ed] an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States." Zadvydas, 121 S.Ct. at 2498. The Court stated that a "habeas court must [first] ask whether the detention in question exceeds a period reasonably necessary to secure removal." Id. at 2504. If a petitioner's removal is not reasonably foreseeable, "the court should hold continued detention unreasonable and no longer authorized by statute." Id. In determining what is a reasonable removal period, the Court adopted "for the sake of uniform administration in the federal courts," id. at 2505, a "presumptively reasonable period of detention" of six months, id. at 2504.
In the instant case, petitioner's removal order became final on July 15, 2002, and thus the six-month "presumptively reasonable period of detention" following that order, expired on January 15, 2003. The INS has made no effort to secure travel documents for petitioner, presumably because Cuba has not responded to past requests for travel documents made on behalf of other petitioners. ( See Dkt. #13, Exhibits A and D). Thus, petitioner argues, he should be released.
In response, respondents argue that petitioner's continued detention is lawful pursuant to INA § 241(a)(6) because he is a definite risk to the community if released. (Dkt. #10 at 6). Respondents note that petitioner's criminal history demonstrates that he is a recidivist for crimes of violence, and that his conviction for custodial assault while he was imprisoned demonstrates his continued violent behavior. (Dkt. #10 at 6). Petitioner replies that his potential dangerousness is only to be considered in the most extreme circumstances, that he has fully served the sentence for his crime, and that Zadvydas dictates he now be released. (Dkt. #13 at 8).
The "dangerousness" issue troubles the Court, particularly in light of petitioner's circumstances. Petitioner has been convicted of an extremely serious crime — murder in the second degree — and while it is true that he has fully served his sentence for that crime, it is also true that his criminal history illustrates continuous violent behavior during the time prior to his conviction, and even during his period of incarceration. ( See Dkt. #9 at R001-R040).
The Supreme Court has provided little guidance on the subject, but has stated that it has upheld preventive detention based on dangerousness "only when limited to specially dangerous individuals and subject to strong procedural protections." Zadvydas, 121 S.Ct. at 2499. The Court explained that "[i]n cases in which preventive detention is of potentially indefinite duration, we have also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger." Id. (emphasis in original). The Court also noted that suspected terrorism is a special circumstance.
Neither mental illness nor terrorism are present in petitioner's case, but the Court recognizes that Zadvydas did not limit "special circumstances" to those two factors only. However, while the Court believes that petitioner appears to be a dangerous individual, it appears that the Supreme Court would not consider petitioner's criminal history, without more, to be the sole basis for continued detention. See Zadvydas, 121 S.Ct. at 2499 (stating that "once the flight risk justification evaporates, the only special circumstance present is the alien's removable status itself, which bears no relation to the detainee's dangerousness."). Thus, this Court must reject respondents' argument.
Petitioner argues that all the evidence in the administrative record compels the conclusion that he will not be removed in the reasonably foreseeable future. Petitioner cites to the fact that the INS has never made any travel document requests to Cuba (Dkt. #13 at 5), and provides evidence that even if the government was to make such a request, it would be futile, as Cuba has not responded to past petitioners' requests. (Dkt. #13, Exhibit A and D). Petitioner further notes that because there are no formal diplomatic relations between the United States and Cuba, travel arrangements cannot be made at this time. (Dkt. #13 at 5). Finally, petitioner asserts that Cuba will only accept those Mariel Cuban deportees identified by name in the 1984 deportation agreement between the U.S. and Cuba, in which his name does not appear. (Dkt. #13 at 5-6).
Respondents have made a strong case for petitioner's continued detention due to his risk to the community upon release, but the Court feels compelled by its interpretation of Zadvydas to find that no "special circumstances . . . help[ing] [to] create the danger" accompany respondents' dangerousness rationale. See Zadvydas, 121 S.Ct. at 2499. The Court also finds that petitioner has produced clear and convincing evidence to demonstrate that he is not likely to be removed from the United States in the reasonably foreseeable future, and respondents have not rebutted this evidence. Accordingly, petitioner's habeas petition should be granted.
CONCLUSION
Based on the foregoing, the court should GRANT petitioner's Petition for Writ of Habeas Corpus and should order petitioner's release on conditions. Such conditions may include those set forth in 8 C.F.R. § 241.5(a). A proposed order accompanies this Report and Recommendation.
In light of the nature of the case, and the court's direction to expedite it in every way possible, this court has shortened the usual time for objections and other responses to this Report and Recommendation. ( See cover letter attached to this Report and Recommendation).
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
The court, having reviewed the Petition for Writ of Habeas Corpus, the Report and Recommendation of the Honorable Monica J. Benton, United States Magistrate Judge, and any objections or responses to that, and the remaining record, finds and Orders as follows:(1) The court adopts the Report and Recommendation;
(2) The court finds that petitioner's detention after the expiration of the six-month period is statutorily unauthorized under Zadvydas v. Davis, 121 S.Ct. 2491 (2001) and Xi v. Ashcroft, 298 F.3d 832 (9th Cir. 2002);
(3) Respondents' Motion to Dismiss (Dkt. #10) is DENIED;
(4) The Petition for Writ of Habeas Corpus (Dkt. #3) is GRANTED;
(5) Petitioner shall be released from INS custody within two business days after entry of this Order, on conditions set by the INS which may include those set forth in 8 C.F.R. § 241.5(a); and
(6) The Clerk shall send a copy of this Order to all counsel of record, and to the Honorable Monica J. Benton.