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May 18, 2001


The opinion of the court was delivered by: Rodriguez, J.,


Petitioner comes before this court seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. For the reasons that follow, this Court must deny the Petition.

Petitioner was born in Havana, Cuba on September 15, 1942. (Answer, Ex. 3.) His grandparents primarily raised him, and he married in 1970. (Id.) His wife gave birth to two children before they separated or divorced in 1979. (Id.) A year prior, in 1978, he began a seven year sentence in Cuba for anti-revolutionary activities. (Id.) Both of his children have emigrated to the United States. (Id.)
During Petitioner's incarceration in Cuba, in April 1980, six Cubans broke through the gates of the Peruvian Embassy in Havana, Cuba, seeking asylum. Yvette M. Mastin, Comment, Sentenced to Purgatory: The Indefinite Detention of Mariel Cubans, 2 Scholar 137, 142 (2000); Birgitta I. Sandberg, Note, Is the United States Government Justified in Indefinitely Detaining Cuban Exiles in Federal Prisons?, 10 Dick J. Int'l L. 383, 384 (1992). When Peru granted asylum to those six Cubans, the Cuban government responded by removing its guards from around the Peruvian Embassy and declaring the embassy open to all. Sandberg, supra, at 384. When 10,000 asylum-seekers then overwhelmed the Peruvian Embassy, Castro opened the Cuban port of Mariel to Cubans in the United States to come and get their relatives. Id.
In response, President Carter welcomed the Cubans with "open arms," anticipating an influx of approximately 20,000 Cubans. Id.; see also Mastin, supra, at 142-43. Approximately 125,000 Cubans eventually came to the United States at the time. Sandberg, supra, at 384; Mastin, supra, at 143. In the United States, the media attributed the influx of Cubans to Castro releasing prisoners and psychiatric hospital patients to the United States. See Mastin, supra, at 144. An INS official reported to the media that "85% of the Mariel Cubans were `convicts, robbers, murderers, homosexuals and prostitutes.'" Mastin, supra, 144 (quoting Mark S. Hamm, The Abandoned Ones: The Imprisonment and Uprising of the Mariel Boat People 52 (1995)). In reality, the INS eventually determined that less than 1% of the Mariel Cubans had serious criminal backgrounds. Mastin, supra, at 146.
Petitioner arrived in the United States on May 14, 1980 as part of this event, (Answer, Ex. 3), which is labeled the Mariel Boatlift. On July 29, 1980, Petitioner's cousin sponsored him to Passaic, New Jersey. (Answer, Ex. 3.) Shortly thereafter, Petitioner began involvement in criminal activity. Between May 1982 and February 1985, Petitioner was apparently indicted for marijuana possession, cocaine possession (three times), murder, aggravated assault (twice), kidnaping, and making threats. (Answer, Ex. 3.) Of those indictments, it appears that Petitioner was convicted only of aggravated assault (once) and cocaine possession (once). (Answer, Exs. 3, 5.) In March 1985, the INS revoked Petitioner's parole, and during his detention he tested positive for marijuana. (Answer, Ex. 3.)
In May 1988, the INS released Petitioner to the sponsorship of his commonlaw wife, whom he met during his first year in the United States. (Answer, Ex. 3.) In 1989, Petitioner appears to have served three months in prison for assault, trespassing, and intimidation, (Answer, Ex. 3.), and received three years probation for possession of a controlled substance with intent to distribute, (Answer, Ex. 5.) In October 1991, Petitioner received a twelve-year sentence for using a knife in the course of stealing a loaf of bread. (Petition at App.)
In September 1996, the INS took Petitioner into custody and revoked his parole the same month. (Answer, Exs. 1-2.) At that time, the Bureau of Prisons conducted a psychological evaluation and recommended that Petitioner should not be released, except to a secure, long-term halfway house with a well-supervised substance abuse program able to work with individuals having antisocial personality disorder with a chemical dependency. (Answer, Ex. 3.)

A Cuban Review Panel*fn1 interviewed Petitioner on October 23, 1996 (Answer, Exs. 4-5), March 4, 1998 (Answer, Exs. 7-10), and May 3, 1999 (Answer, Exs. 14-19). Each time, the Panel denied parole to Petitioner. (Answer, Exs. 6, 11, 20.) On April 25, 2000, the Cuban Review Panel again interviewed Petitioner. (Answer, Exs. 21-23.) Apparently satisfied that Petitioner was not then violent and was likely to remain non-violent, the Panel recommended Petitioner's release to a halfway house near his daughter's residence to obtain employment and reunite with his family. (Answer, Ex. 22.) A mental health evaluation conducted on May 3, 2000 recommended "placement in a residential halfway house program and substance abuse treatment . . . to reduce risk of relapse and return to criminal lifestyle." (Answer, Ex. 23.) A notice of releasability was issued on July 24, 2000.*fn2 (Answer, Ex. 24.)

Petitioner filed the instant application seeking an order for release from custody on June 21, 2000. Petitioner contends that the INS is denying him due process of law. He seeks either (1) an evidentiary hearing to determine whether he should have been released on parole, considering all of petitioner's circumstances; (2) an order of release under supervision; or (3) a hearing on his application for release by an Immigration Judge. By Order dated December 8, 2000, this Court determined that the regulatory parole scheme developed for Mariel Cubans, see Parole Determinations and Revocations Respecting Mariel Cubans, 8 C.F.R. § 212.12 (2001), appeared to satisfy the due process rights afforded to inadmissible aliens under the Third Circuit's decision in Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir. 1999).
This Court became concerned, however, that Petitioner may have a right to equal protection under the Fifth Amendment and that the INS may have violated that right by enacting different parole schemes for Mariel Cubans from those afforded to all other inadmissible aliens under the Interim Procedures discussed by the Third Circuit in Ngo, and subsequently enacted in substantially the same form as federal regulations. See Continued Detention of Inadmissible, Criminal, and Other Aliens Beyond the Removal Period, 8 C.F.R. § 241.4 (2001). Because of the complex nature of the constitutional question, John Grogan, Esq., was appointed counsel for Petitioner, and the parties were directed to filed briefs on the equal protection issue. Oral argument was heard on April 2, 2001.

This decision becomes more clear when considered in the context of the rights of inadmissible aliens as defined in caselaw.

Federal courts distinguish between deportable aliens and inadmissible aliens.*fn3 Deportable aliens were successful in obtaining entry to the United States, legally or illegally; while an inadmissible alien seeks admission into the United States and, even if physically present, is considered detained at the border. See Chi Thon Ngo v. INS, 192 F.3d 390, 394-95 & n. 4 (3d Cir. 1999); Marroquin-Manriquez v. INS, 699 F.2d 129, 134 (3d Cir. 1983). Deportable aliens have rights not available to inadmissible aliens because they have achieved entry into the United States. See Landon v. Plasencia, 459 U.S. 21, 26-29 (1982); Leng May Ma v. Barber, 357 U.S. 185, 187 (1958).

A. Shaughnessy v. United States ex rel. Mezei
In the midst of the McCarthy Era of the early 1950s, a majority of the Supreme Court held than an inadmissible alien has no right to a hearing on his exclusion. See Shaughnessy v. United States ex rel. Mezei 345 U.S. 206, 215, 216 (1953). Immigration officials detained Mezei upon a re-entry into the United States, and he could not affect entry into any other country. See id. at 208-09. After twenty-one months in detention, a federal district court held that Mezei's continued detention without due process of law was illegal. See id. at 207-08.
The Supreme Court reversed. Even though the United States was restricting Mezei's movements, the Court found that it must treat him as though he had not landed on American soil. See id. at 213. Because he was not on American soil, he did not have a right to a hearing on his exclusion. See id. at 213-15.

Mezei's continued, and possibly indefinite, detention appeared not to disturb the Court.

[W]e do not think that [Mezei]'s continued exclusion deprives him of any statutory or constitutional right. . . . That exclusion by the United States plus other nations[`] inhospitality results in present hardship cannot be ignored. . . . Whatever our individual estimate of [Congress'] policy and the fears on which it rests, respondent's right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate.
Id. at 215-16. Indeed, Mezei apparently remained detained until the executive branch released him "as a matter of grace." See Trop v. Dulles, 356 U.S. 86, 102 n. 36 (1958) (citation omitted).
Four justices dissented from the Mezei decision. Justice Black, joined by Justice Douglas, stated that indefinitely depriving any individual of his liberty without a "fair open court hearing" violated the American concepts of a free society. See id. at 217-18 (Black, J., dissenting).

Justice Jackson, joined by Justice Frankfurter, wrote a separate dissenting opinion.

Justice Jackson explained that exclusion of an alien without a hearing presented no problem, as long as the government can turn the alien back on land or return him to sea. See id. When indefinite detention becomes the only alternative, however, the government must provide procedural due process before taking an alien's liberty. See id.
"It overworks legal fiction to say that one is free in law when by the commonest of common sense he is bound. . . . We must regard this alien as deprived of liberty, and the question is whether the deprivation is a denial of due process of law." Id. at 220-21 (Jackson, J., dissenting). Justice Jackson found that the executive branch had the power to detain an alien, as long as it accords him procedural due process. See id. at 224. He explained that the courts would surely not permit the government to drop an alien into the sea (the taking of life) or confiscate his valuables and money (the taking of property). See id. at 227. Indefinite detention fell somewhere between the two, as it is the taking of liberty. See id. He found that this "may be done only by proceedings which meet the test of due process of law." See id.
The Mezei "decision may be constitutionally infirm, even though it has never been overruled." Ronald D. Rotunda & John E. Nowak, 3 Treatise on Constitutional Law § 18.11, p. 465 (3d ed. 1999.) As far back as 1896, the United States Supreme Court itself had recognized that the Constitution provides some protection to inadmissible aliens. In Wong Wing v. United States, the Court stated that the Constitution permits detention of inadmissible aliens, but that the government could not sentence an inadmissible alien to "hard labor" without providing the alien with due process. 163 U.S. 228, 237 (1896); see also Lynch v. Cannatella, 810 F.2d 1363, 1370, 1373-74 (5th Cir. 1987) (finding inadmissible aliens protected by the Fourth and Fifth Amendments from physical abuse by government officials); United States v. Henry, 604 F.2d 908, 912-13 (5th Cir. 1979) (providing Fifth Amendment rights to inadmissible aliens in criminal proceedings). See generally Jean v. Nelson, 472 U.S. 846, 873-74 (Marshall, J., dissenting) (discussing the Fifth Amendment protections afforded to inadmissible aliens).
B. The General Rule in Appellate Courts
Many of the federal courts of appeals have addressed the problem of an inadmissible alien detained by the United States who is unable to affect release into his home country or any other country. Overwhelmingly, the federal appellate courts have found that whatever rights such an inadmissible alien enjoys in the United States, a detention system that provides for periodic parole determinations does not violate those rights. See Carrera-Valdez v. Perryman, 211 F.3d 1046, 1048 (7th Cir. 2000) (citing Mezei and determining that an inadmissible alien cannot constitutionally attack his indefinite detention); Zadvydas v. Underdown, 185 F.3d 279, 288-90 (5th Cir. 1999), cert. granted, 121 S.Ct. 297 (2000) (finding that an alien ordered departed is equivalent to an inadmissible alien and that such aliens have "some constitutional protections," which are not violated by indefinite detention with possibility of parole); Guzman v. Tippy, 130 F.3d 64, 66 (2d Cir. 1997) (concluding that the INS may indefinitely detain inadmissible aliens and that the Fifth Amendment provides no due process rights because inadmissible aliens' process rights are restricted to those processes granted by Congress); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1448-50 (9th Cir. 1995) (holding that custody of inadmissible aliens with a parole procedure was not indefinite, but "a series of one-year periods of detention" and stating that inadmissible aliens have no constitutional right to be free from detention); Fernandez-Roque v. Smith, 734 F.2d 576, 580-82 (11th Cir. 1984) (concluding that parole is part of the admissions process, thus inadmissible aliens have no constitutional rights surrounding the parole); Palma v. Verdeyen, 676 F.2d 100, 103-04 (4th Cir. 1982) (finding that the Constitution gives Congress the right to determine the rights of inadmissible aliens).
C. Alternative Approaches
The Tenth Circuit and the Sixth Circuit have issued opinions that offer alternative approaches to interpreting Mezei. In Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1386-89 (10th Cir. 1981), the Tenth Circuit interpreted then-existing immigration statutes and regulations as prohibiting the indefinite detention of inadmissible aliens. See id. at 1386-90. The Tenth Circuit "[n]evertheless" found that it should "discuss the serious constitutional questions involved." See id. at 1386. In this dicta, the Tenth Circuit found that an inadmissible alien "in physical custody within the United States may not be `punished'" without the protections of the Fifth Amendment. See id. at 1387. The indefinite detention of an inadmissible alien whose country of origin would not accept his return deprived the alien of his liberty interest in being free from restraint. See id. The court in Rodriguez-Fernandez distinguished the Supreme Court's decision in Mezei because: (1) the "focus of Mezei" was a due process hearing concerning re-entry, not parole; (2) the decision was made in the context of Mezei being a security risk during the Korean War; (3) the conditions of detention on Ellis Island were not comparable to the conditions of detention in maximum security prisons; and (4) Mezei eventually "voluntarily terminated" efforts to be deported to another country. See id. at 1388.

Construing a habeas petition by a Mariel Cuban, also an inadmissible alien, to challenge his detention "as impermissible punishment in the absence of trial," the Sixth Circuit recently applied a two-prong test, taken from United States v. Salerno, 481 U.S. 739 (1987),*fn4 in determining whether the INS was violating a petitioner's substantive due process rights. See Rosales-Garcia v. Holland, 238 F.3d 704, 722-27 (2001). Applying the Salerno test, the court found that the detention violated the petitioner's Fifth Amendment rights. See id. at 726-27. The court ordered the petitioner released within 30 days. See id. at 727.

D. Chi Thon Ngo v. INS
The Third Circuit recently visited this topic in Chi Thon Ngo v. INS,192 F.3d 390 (3d Cir. 1999). In Ngo, the INS paroled petitioner into the United States in 1982 as a refugee. See id. at 392. After convictions for possession of a firearm in 1988 and attempted robbery in 1989, the petitioner was ordered ...

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