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May 7, 1993



The opinion of the court was delivered by: WILLIAM W. CALDWELL, EDWIN M. KOSIK, JAMES F. MCCLURE, JR.

Procedural Background

 This action initiated on December 18, 1990, when thirty-seven (37) individual habeas corpus petitions filed by Mariel Cubans detained at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg) were consolidated into a class action. The consolidation order also directed that the case be assigned to a three judge panel and counsel be appointed to represent the interests of the petitioners.

 Following the initial consolidation, additional habeas petitions filed by USP-Lewisburg Mariel detainees were likewise joined. The claims of twenty-two (22) class members were subsequently dismissed by the court for a variety of reasons, including death, repatriation to Cuba, and their parole from INS custody of the Immigration and Naturalization Service (hereinafter INS).

  Still pending before the court are the claims of nineteen (19) *fn1" petitioners. By order dated April 23, 1992 the court granted the respondent's unopposed motion that the class be decertified and proceed as a consolidated individual non-class action. Although many of the remaining petitioners are no longer incarcerated within the confines of the Middle District of Pennsylvania, *fn2" this court still retains jurisdiction over their claims. Goodman v. Keohane, 663 F.2d 1044, 1047 (11th Cir. 1981).

 A review of both petitioners' initial form petition and the supplemental brief filed by their appointed counsel provides that the petitioners are asserting that their:

1. Present incarceration is punishment in violation of the Fifth and Sixth Amendments.
2. Immigration parole was revoked and their reparole was denied without due process of law.
3. Inordinate and prolonged detention is not authorized by Congress.
4. Ongoing detention violates controlling international law.

 Factual Background

 During the Spring of 1980, approximately one hundred and twenty-five thousand (125,000) Cuban citizens entered this country from Mariel, Cuba in what is now commonly referred to as the "Freedom Flotilla." These so called "Mariel Cubans" sought entry into the country as refugees and as such were placed into the custody of the INS pending a decision on their refugee status.

 In the instant case, petitioners were all granted administrative parole following their arrival in this country. Their parole allowed them to remain in the United States pending a determination by the INS as to whether they should be excluded. However, all of the instant petitioners subsequently committed various, individual crimes while on parole and were thereafter incarcerated in state and federal correctional facilities throughout the country. Following service of their respective prison terms, petitioners were placed in administrative detention by the INS at federal correctional facilities.

 As a result of negotiations between the United States and Cuba, an agreement was reached in 1984 whereby Cuba, in an effort to normalize immigration relations between the two countries, agreed to accept 2,746 Mariel Cubans who had been identified as having serious criminal backgrounds or suffering from mental illness. Cuba unilaterally suspended the plan in 1965. However, the repatriation agreement was reinstated in November, 1987. Following reinstatement of the agreement, a total of 942 Mariel Cubans have been repatriated. In the instant case it is unknown whether any of the remaining petitioners are on the repatriation list. However respondent notes that this court may assume that none of the remaining petitioners are named in the repatriation agreement. *fn3"

 The instant petitioners have all been classified as excludable aliens. Under applicable immigration laws, an excludable alien may be paroled into this country but can still be subjected to subsequent exclusion proceedings.

 Federal regulations entitled the Cuban Review Plan were enacted in 1987 regarding parole determinations and revocations of Mariel Cuban detainees. See 8 C.F.R. Section 212.12 (1992). These regulations are applicable to each of the instant petitioners, as well as any Mariel Cuban presently being detained by the INS The plan provides that in order for a Mariel Cuban to be granted parole, a review panel must conclude that the detainee is: (1) presently a non-violent person; (2) likely to remain nonviolent; (3) not likely ...

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