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 But his parole was revoked in 1988 when he was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felony convictions, petitioner's parole was revoked for a second time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
(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.
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, ...