The opinion of the court was delivered by: Christopher C. Conner, United States District Judge.
Before the court is petitioner Julio Soto-Ramirez's petition for writ
of habeas corpus under 28 U.S.C. § 2241. Petitioner has been detained
by the Immigration and Naturalization Service ("INS") and is currently
being held in custody at Federal Correctional Institution Allenwood, in
White Deer, Pennsylvania. (Doc. 1).
In the instant petition, Soto-Ramirez claims that his continued
detention while awaiting removal is beyond the Attorney General's
statutory authority, violates his Fifth Amendment right to due process of
law and constitutes cruel and unusual punishment in violation of the
Petitioner is a Cuban national who came to the United States in the
of 1980.*fn2 Petitioner was paroled into the United
States upon his arrival. But his parole was revoked in 1988 when he was
convicted of assault. (Doc. 6, Exhibit 4, pg. 3). Upon his release,
petitioner "demonstrated a propensity to engage in assaultive criminal
behavior." (Doc. 6, Exhibit 7). He has been arrested on 12 separate
occasions for assault, disorderly conduct and criminal damage to
property. Id. In 1991 and 1992 respectively, petitioner received two
separate felony convictions: indecent assault and battery on a child
under the age of 14 (1991), and assault and battery by means of a
dangerous weapon (1992). (Doc. 6).
On March 7, 1996, while serving his sentence on the above mentioned
felony convictions, petitioner's parole was revoked for a second time
when the Immigration and Naturalization Service ("INS") deemed him
excludable, under 8 U.S.C. § 1182(a)(2)(A)(i)(I);
1182(a)(7)(A)(i)(I),*fn3 and took him into custody pending a removal
hearing before an Immigration Judge ("IJ"). On May 3, 1996, the IJ denied
petitioner's request for asylum and ordered petitioner removed. (Doc. 6,
Exhibit 2). Petitioner appealed the IJ's denial of asylum to the Board of
Immigration Appeals ("BIA"). On January 17, 1997, petitioner's order of
removal became administratively final when the BIA dismissed his appeal,
stating that "applicant's felony convictions of indecent assault and
battery on a child, and assault and battery by means of dangerous
weapon, are on their face `particularly serious crimes,' barring him from
asylum . . . ." (Doc. 6, Exhibit 3) (citations omitted).
Since his removal order became final, petitioner has remained in INS
custody at FCI-Allenwood awaiting removal. Petitioner has had annual
custody reviews in accordance with the requirements of
8 C.F.R. § 212.12. (See Doc. 6, Exhibits 4-7). To be granted parole,
the review panel must find that
8 C.F.R. § 212.12(d)(2). Petitioner has been denied parole after
each review. He has been denied parole for a variety of reasons,
including his criminal record, history of violence while incarcerated,
and mental instability.
(Doc. 6, Exhibits 4-7).
Petitioner now argues that his continued detention is unconstitutional.
A. Petitioner's Status as a Mariel Cuban.
As a threshold matter, the court must address petitioner's
misapprehension of his legal status as an "inadmissible"*fn6 alien. In
his petition, Mr. Soto-Ramirez contends:
The cases involving indefinite detention of excludable
aliens symply [sic] do not support the
constitutionality of indefinite detention of aliens
who have entered the United States. To the contrary,
our case law makes clear that, as a general matter,
aliens who have entered the United States, legally or
illegally, are entitled to the protection of the Fifth
(Doc. 1) (citations omitted) (emphasis added).
Although it is an understandable mistake considering he has lived
within our borders for approximately twenty-two years, petitioner
incorrectly states that he has "entered" the United States. As a paroled
Cuban, petitioner was never admitted to the United States. See Ngo v.
I.N.S., 192 F.3d 390, 392 (3d Cir. 1999) ("[Parole] amounts to permission
by the Attorney General for ingress into the country but is not a formal
`admission.'") (citations omitted); Damas-Garcia v. U.S., 2001 WL
1231480, *1 (D.N.J. 2001) ("Individuals who are granted entry into the
United States on immigration parole, such as the Mariel Cubans, are not
considered legal aliens, but rather are considered the same as
individuals who have only just arrived at the U.S. border.") (citing
8 U.S.C. § 1182(d)(5)(A)); Chavez-Rivas v. Olsen, 207 F. Supp.2d 326,
328 (D.N.J. 2002) ("We tempered our welcome, however, by treating these
Cuban immigrants as though they were still in the perpetual legal limbo
of an immigrant just outside our territorial borders, with all the
limitations on personal rights and liberties that derive from that
Section 1182(d)(5)(A) provides:
The Attorney General may, except as provided in
subparagraph (B) or in section 1184(f) of this title,
in his discretion parole into the United States
temporarily under such conditions as he may prescribe
only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit any alien
applying for admission to the United States, but such
parole of such alien shall not be regarded as an
admission of the alien and when the purposes of such
parole shall, in the opinion of the Attorney General,
have been served the alien shall forthwith return or
be returned to the custody from which he was paroled
and thereafter his case shall continue to be dealt
with in the same manner as that of any other applicant
for admission to the United States.
As noted above, Soto-Ramirez entered United States territory on
immigration parole in 1980. In 1996, his parole was revoked as a result
of two felony convictions, which followed a history of aberrant, criminal
behavior. Accordingly, he now stands, although physically well within the
United States border, on the same legal footing as an immigrant at the
(2001), controls the detention of inadmissible
aliens who are now subject to a final removal order. Petitioner contends
that Zadvydas' holding applies equally to all aliens and, hence, mandates
the issuance of a writ of habeas corpus.
When an alien is ordered removed, the Immigration and Nationality Act
("INA") provides that "the Attorney General shall remove the alien from
the United States within a period of 90 days (in this section referred to
as the `removal period')." 8 U.S.C. § 1231(a)(1)(A).*fn7
8 U.S.C. § 1231(a)(1)(B).
During the removal period, the Attorney General must detain the alien.
8 U.S.C. § 1231(a)(2). But if the alien is not removed during the
removal period, the Attorney General has two options — supervised
release (8 U.S.C. § 1231(a)(3)) or, at times, continued detention
(8 U.S.C. § 1231(a)(6)).
For certain aliens, the INA authorizes continued detention.
8 U.S.C. § 1231(a)(6). While section 1231(a)(6) grants the Attorney
General authority to
detain certain aliens post removal period, it does
not explicitly limit the duration of such continued detention. Section
An alien ordered removed who is inadmissible under
section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title
or who has been determined by the Attorney General to
be a risk to the community or unlikely to comply with
the order of removal, may be detained beyond the
removal period and, if released, shall be subject to
the terms of supervision in paragraph (3).
8 U.S.C. § 1231(a)(6).
The Supreme Court interpreted section 1231(a)(6) last year in Zadvydas
v. Davis, 121 S.Ct. 2491 (2001).*fn8 In construing the statute to avoid
a serious constitutional question, the Court held that section 1231(a)(6)
implicitly limits the Attorney General's authority to detain a formerly
admitted alien, after a final order of removal, to the time when their
removal is "reasonably foreseeable." Id. at 2505. For sake of "uniform
administration in the federal courts," the Court held that removal is
presumptively reasonably foreseeable for the first six months after the
removal period. Id. After six months, there must be an independent
determination of the likelihood of removal in the reasonably foreseeable
future, taking into consideration factors such as the possibility of a
repatriation agreement with the country of origin. Id.
Petitioner has been detained by the INS in excess of five years since
the date his removal order became final. He argues that the Zadvydas
Court's narrow construction of section 1231(a)(6) applies to inadmissible
aliens whose parole has been revoked. The court disagrees. The facts
before the court are clearly distinguishable from those in Zadvydas, in
that petitioner has never entered the United States while the petitioners
in Zadvydas had. See note 8, infra. Moreover, to expand the holding of
Zadvydas to inadmissible aliens would disregard decades of immigration
Federal courts have long drawn a distinction between those admitted to
the United States and those seeking admission. See Zadvydas, 121 S.Ct. at
2500 (citations omitted). Although "the Due Process Clause applies to all
`persons' within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent," Zadvydas, 121
S.Ct. at 2500 (citing Plyler v. Doc, 457 U.S. 202, 210 (1982); Matthews
v. Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Hopkins, 344 U.S. 590,
596-98, 598 n. 5 (1953); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886));
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)), it does
not apply equally to foreign citizens seeking admission to the United
States. See Mezei, 345 U.S. at 210 ("Courts have long recognized the
power to expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government's political departments largely immune from
judicial control."); Zadvydas, 121 S.Ct. at 2500 (citing U.S. v.
Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (Fifth Amendment's protections
do not extend to
aliens outside the territorial boundaries.)) Johnson v.
Eisentrager, 339 U.S. 763, 784 (1950) (same); Ngo, 192 F.3d at 395-96
("It is a truism that `[i]n the exercise of its broad power over
naturalization and immigration, Congress regularly makes rules that would
be unacceptable if applied to citizens.") (citing Mathews v. Diaz, 426
U.S. at 79-80).
Furthermore, physical presence in the United States alone, by grace of
the executive giving temporary harborage, does not extend the
constitutional protections to an inadmissible alien which are due every
person legally admitted to the United States. See Mezei, supra. In Mezei,
a former legal permanent resident, who for all intents and purposes was
the legal equivalent of an alien seeking his first admission into the
United States, was denied entry. Instead, he was found excludable*fn9
and ordered removed. He was then detained on Ellis Island pending his
ultimate removal. When no other country would allow the United States to
remove him to their territory, he filed a habeas petition challenging his
detention on due process grounds. The Supreme Court concluded that
"respondent's transfer from ship to shore on Ellis Island conferred no
additional rights; in fact, no alien so situated `can force us to admit
him at all.'" Mezei, 345 U.S. at 210 (quoting United States ex rel. Mezei
v. Shaughnessy, 195 F.2d 964 (2d Cir. 1952) (L. Hand, J. dissenting). The
Court further stated: "this Court has long considered such temporary
arrangements as not affecting an alien's status; he is treated as if
stopped at the border." Id. at 215. Ultimately, the Court held that the
indefinite, potentially permanent detention of such an alien does not
offend the constitution. Zadvydas, 121 S.Ct. at 2500 (explaining Mezei,
345 U.S. at 215-16).
Because petitioner's argument would largely eliminate this historical
distinction between admitted and inadmissible aliens, this court does not
believe that the Supreme Court intended its interpretation of section
1231(a)(6) in Zadvydas to apply to formerly paroled aliens. See
Zadvydas, 121 S.Ct. at 2500 (explaining that Mezei's excludable status
"made all the difference."). See also Hoyte-Mesa v. Ashcroft, 272 F.3d 989,
991 (7th Cir. 2001) (per curiam) (ruling that Zadvydas does not abrogate
Seventh Circuit precedent upholding indefinite detention of inadmissible
aliens); Chavez-Rivas, supra. But see Borrero v. Aljets,
178 F. Supp.2d 1034 (D.Minn. 2001) (holding that the Zadvydas' reasonably
foreseeable removal limitation does apply to Mariel Cubans whose parole
has been revoked). Consequently, Zadvydas does not apply to petitioner's
detention. The court finds that the Attorney General, in detaining
petitioner, is acting within the scope of his authority under section
1231(a)(6) and, therefore, petitioner's statutory claim fails.
C. Petitioner's Due Process Claim.
Petitioner next claims that "indefinite" detention under section
1231(a)(6) is unconstitutional. The Third Circuit has dealt specifically
with the constitutionality of prolonged detention of inadmissible aliens
whose country of citizenship will not allow repatriation. Ngo,
192 F.3d 390. In Ngo, the petitioner was a Vietnamese
parole was revoked because of criminal convictions. For unspecified
reasons, the United States was unable to remove the petitioner promptly
to Vietnam. In denying the constitutional challenge to Mr. Ngo's
detention, the Third Circuit held that "excludable aliens with criminal
records as specified in the Immigration Act may be detained for lengthy
periods when removal is beyond the control of the INS, provided that
appropriate provisions for parole are available." Id. at 398. See also In
re Mariel Cubans Habeas Corpus Petitions, 822 F. Supp. 192 (M.D.Pa.
This court is bound by Third Circuit precedent. As noted previously,
petitioner, like Mr. Ngo, entered the United States on immigration parole
under 8 U.S.C. § 1182(d)(5)(A). Also like Mr. Ngo, petitioner's
parole was revoked because of criminal convictions. Therefore,
petitioner's detention is constitutional if it meets the parole review
requirements outlined in Ngo.
Petitioner contends that the Cuban Review Panel "is illegal and only
takes place to frustrate and victimize petitioner and all prisoners who
are subject to this INS panel's partiality and unfairness." (Doc. 1).
Ngo held that there is no constitutional impediment if the parole review
process provides "reasonable assurance of fair consideration" of the
application for parole. Ngo, 192 F.3d at 398. Under Ngo, each individual's
review must be meaningful. Ngo, 192 F.3d at 398 ("The stakes are high and
we emphasize that grudging and perfunctory review is not enough to
satisfy the due process right to liberty, even for aliens.").
Applicable regulations set forth specific procedures for reviewing, on
an annual basis, the possibility of parole for detained Mariel Cubans.
8 C.F.R. § 212.12. The INS has followed these procedures assiduously
in the course of petitioner's detention. Petitioner has been interviewed
yearly since being taken into INS custody. (See Doc. 6, Exhibits 4-8).
Petitioner's mental health has been carefully examined. (Doc. 6, Exhibit
7). The review panels have also reviewed petitioner's criminal history
(which includes several assault convictions, including one for indecent
assault of a person under the age of 14) and his behavior since being
taken into custody (which includes numerous fights, assaults and other
violent behavior). See notes 4 and 5 infra. Each year the review panel
has found petitioner to be a risk to society. In light of the panels'
thorough reviews, the court finds that petitioner's parole review process
meets the rigorous requirements of Ngo. Consequently, petitioner's due
process challenge will be denied.
D. Petitioner's Eighth Amendment Claim.
Soto-Ramirez's final argument is that his indefinite detention
constitutes cruel and unusual punishment in violation of his Eighth
Amendment rights. Federal courts have held that detention prior to
removal is not punishment at all. See Ngo, 192 F.3d at 396-97 (holding
that administrative detention of inadmissible aliens ordered removed is
not punishment); Gisbert v. U.S. Atty. Gen., 988 F.2d 1437, 1442 (5th
Cir. 1993) ("Because aliens subject to exclusion are not entitled to the
same constitutional protection as resident aliens, Jean v. Nelson, 727
F.2d at 968, we conclude that detention pending removal and stemming from
exclusion proceedings is not intended as punishment."); Alvarez-Mendez
v. Stock, 941 F.2d 956, 962 (9th Cir. 1991) (holding that detention of a
Mariel Cuban ordered removed is not punishment).
That Soto-Ramirez frames it as "indefinite" does not change the
character of the detention. In reality, the length of his detention now
depends on the outcome of
his annual parole reviews. The Third Circuit
has aptly described it as "a series of one-year periods of detention
followed by an opportunity to plead the case anew." Ngo, 192 F.3d at 396
(quoting Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir.
1995). The review panels have examined petitioner annually and, to date,
they have found sufficient cause to deny his parole. Accordingly, his
continued detention does not constitute cruel and unusual punishment.
Alvarez-Mendez, 941 F.2d at 962. The court will deny petitioner's Eighth
For the reasons set forth in this Opinion, the petition for writ of
habeas corpus will be denied.