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SOTO-RAMIREZ v. ASHCROFT

October 29, 2002

JULIO SOTO-RAMIREZ, PETITIONER
V.
JOHN D. ASHCROFT, CHRISTINE G. DAVIS, AND MICHAEL A. ZENK, WARDEN, RESPONDENTS.



The opinion of the court was delivered by: Christopher C. Conner, United States District Judge.

MEMORANDUM

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 Eighth Amendment.*fn1

I. Background

Petitioner is a Cuban national who came to the United States in the Mariel Boatlift 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 But his parole was revoked in 1988 when he was convicted of assault.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On March 7, 1996, while serving his sentence on the above mentioned felony convictions, petitioner's parole was revoked for a second time when the Immigration and Naturalization Service ("INS") deemed him excludable, under 8 U.S.C. § 1182(a)(2)(A)(i)(I); 1182(a)(7)(A)(i)(I),*fn3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

(i) The detainee is presently a nonviolent person;
(ii) The detainee is likely to remain nonviolent;
(iii) The detainee is not likely to pose a threat to the community following his release; and
(iv) The detainee is not likely to violate the conditions of his parole.

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,*fn4 and mental instability.*fn5 (Doc. 6, Exhibits 4-7). Petitioner now argues that his continued detention is unconstitutional.

II. Discussion

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, ...

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