United States District Court, District of New Jersey
May 18, 2001
EVELIO CARVAJAL CABALLERO, PETITIONER,
UNITED STATES, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Rodriguez, J.,
Petitioner comes before this court seeking a Writ of Habeas Corpus
28 U.S.C. § 2241. For the reasons that follow, this Court
must deny the Petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
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.
II. RELEVANT IMMIGRATION LAW BACKGROUND
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
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
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
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
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
determining whether the INS was violating a petitioner's substantive due
process rights. See Rosales-Garcia v. Holland, 238 F.3d 704
(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
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
petitioner was ordered excluded and deported by an order that
became final on July 6, 1995. See id.
At some point in 1995, the INS took the petitioner into custody. See
id. Vietnam refused to take the petitioner back. See id. at 392, 395.
After a failed petition for a writ of habeas corpus in December 1995, the
petitioner applied again in November 1996, arguing that his detention
violated due process of law. See id. at 392-93. The district court
again denied the petition. See id. at 393.
The Third Circuit reversed. See id. at 399. Initially, the Third
Circuit held that the INS had authority, pursuant to a grant from
Congress, to detain an alien ordered deported whose country of origin
would not allow their return for a prolonged period of time. See id. at
393-94. The court then examined whether the "indeterminable nature" of
an inadmissible alien's detention could violate the United States
Constitution. See id. at 396-99.
The Third Circuit began with the following background:
Even an excludable alien is a "person" for purposes of
the Fifth Amendment and is thus entitled to
substantive due process. Wong Wing v. United States,
163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896)
("persons within the territory of the United States .
. . and . . . even aliens . . . [may not] . . . be
deprived of life, liberty[,] or property without due
process of law"); see also Lynch v. Cannatella,
810 F.2d 1363, 1366 (5th Cir. 1987) (excludable alien
may not be subjected to brutality by government
officials). In addition, procedural due process is
available to aliens in some circumstances. See Landon
v. Plasencia, 459 U.S. 21, 32-33, 103 S.Ct. 321, 74
L.Ed.2d 21 (1982) ("a continuously present resident
alien is entitled to a fair hearing when threatened
with deportation . . . [and] has a right to due
process" before being required to leave the country).
Id. at 396. The Third Circuit then noted that, while the Supreme Court's
decision in Mezei has been "much criticized," it is still controlling
law. See id. It examined the law of its sister circuits and summarized
case law holds there is no constitutional impediment
to the indefinite detention of an alien with a
criminal record under a final order of exclusion,
deportation, or removal if (1) there is a possibility
of his eventual departure; (2) there are adequate and
reasonable provisions for the grant of parole; and (3)
detention is necessary to prevent a risk of flight or
a threat to the community.
Id. at 397. The court went on to note that it is "unrealistic" to assert
that inadmissible aliens being detained by the INS are "not actually
being `punished' in some sense for their past conduct," but explained
that the power of Congress and the Executive to detain inadmissible
aliens is well-established. See id. at 398. The Third Circuit held that
the lengthy detention of inadmissible aliens with criminal records, where
the INS cannot control the removal, does not violate due process where
"appropriate provisions" for parole are available. See id. "So long as
petitioner will receive searching periodic reviews, the prospect of
indefinite detention without hope for parole will be eliminated." Id. at
399.*fn5 The court concluded that the
then-proposed by the INS for parole review of all inadmissible aliens
other than Mariel Cubans provided, on their face, for the required
searching periodic review. Id. at 399.
At the time that he filed this Petition, Petitioner was in custody
at Fairton Federal Correctional Institution in Fairton, New Jersey.
Thus, this Court has jurisdiction to entertain this Petition. See
28 U.S.C. § 2241(d) (1994). At oral argument, the parties represented
that Petitioner was transferred to a federal correctional institute in
Colorado for a drug rehabilitation program. This has no effect on this
Court's jurisdiction. See Ex parte Catanzaro, 138 F.2d 100, 101 (3d
IV. A SEARCHING, PERIODIC PAROLE DETERMINATION
The Third Circuit listed seven provisions of what is now
8 C.F.R. § 241.4 that, if "conscientiously applied," would appear to
satisfy due process. See Ngo, 192 F.3d at 399. Those factors are:
(1) written notice to the alien thirty days prior to the
custody review advising that he may present information
supporting a release; (2) the right to representation by
counsel or other individuals; (3) the opportunity for an
annual personal interview; (4) written explanations for a
custody decision; (5) the opportunity for review by INS
headquarters; (6) reviews every six months; [and] (7) a
refusal to presume continued detention based on criminal
history . . . .
Id. The Third Circuit also noted other provisions, id., but those
appear to be details relating to these seven major provisions.
The Cuban Review Plan*fn7
does not provide an alien with a right to
receive notice of an interview, as 8 C.F.R. § 241.4 provides.
Compare 8 C.F.R. § 212.12(b)(1), and 8 C.F.R. § 212.12(d)(4)(ii),
with 8 C.F.R. § 241.4(h)(2). While the Cuban Review Plan does
provide that an alien may provide the Cuban Review Panel with any
information, either orally or in writing, that "he believes presents a
basis for release on parole" and that an alien "may be accompanied during
the interview by a person of his choice," id. at § 212.12(d)(4)(ii),
those rights do not benefit a Mariel Cuban if he does not have notice so
as to gather the information or contact the person.
Eight C.F.R. § 241.4(k)(2)(iv) provides an alien with the
opportunity for an annual personal interview, and 8 C.F.R. § 241.4(h)(4)
provides the right to receive a written explanation for a custody
The Cuban Review Plan provides that the Cuban Review Panel
"shall personally interview" a Mariel Cuban who it or the Director of the
Cuban Review Plan does not recommend for parole after an initial review
of the record. Id. at § 212.12(d)(4)(i)-(ii). Under the Cuban Review
Plan, the Panel must review an alien's record annually, so, like
8 C.F.R. § 241.4, the Cuban Review Plan provides for an annual
personal interview. The Cuban Review Plan, however, does not provide a
Mariel Cuban with the right to a written explanation for a custody
A final distinction between the two parole schemes is the sponsorship
requirement. A Mariel Cuban may not be released from custody, even after
a determination that he is releasable, until the INS finds an appropriate
sponsor. See 8 C.F.R. § 241.4(j)(2).
This court finds that the Cuban Review Plan provides Mariel Cubans with
a process sufficient to satisfy their due process rights as defined by
the Third Circuit in Ngo. Annually, either the Director of the Cuban
Review Plan or the Cuban Review Panel must review a Mariel Cuban's file
and make a determination whether the alien be granted parole. The
criteria and factors are clearly defined:
(2) Criteria for Review. Before making any recommendation
that a detainee be granted parole, a majority of the Cuban
Review Panel members, or the Director in case of a record
review, must conclude 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.
(3) Factors for consideration. The following factors
should be weighed in considering whether to recommend
further detention or release on parole of a detainee:
(i) The nature and number of disciplinary infractions
or incident reports received while in custody;
(ii) The detainee's past history or criminal behavior;
(iii) Any psychiatric and psychological reports
pertaining to the detainee's mental health;
(iv) Institutional progress relating to participation in
work, educational and vocational programs;
(v) His ties to the United States, such as the number of
close relatives residing lawfully here;
(vi) The likelihood that he may abscond, such as from
any sponsorship program; and
(vii) Any other information which is probative of
whether detainee is likely to adjust to life in a
community, is likely to engage in future acts of
violence, is likely to engage in future criminal
activity, or is likely to violate the conditions of his
Id. at § 212.12(d) (emphasis added).
Unlike the review provided to the petitioner in Ngo prior to the INS'
adoption of the Interim Procedures, the Cuban Review Panel does not base
its decision solely on a petitioner's criminal history. The Panel
considers many factors to determine whether a Mariel Cuban is presently
non-violent and is likely to be non-violent in the future. The Cuban
Review Plan provides Mariel Cubans with a "searching periodic review."
See Ngo, 192 F.3d at 399.
This case also fails to present a situation where a petitioner's review
was not, in fact, individualized. The Cuban
Review Panel interviewed
Petitioner repeatedly on an annual basis. During the last interview, the
Panel found that Petitioner accepted responsibility for his previous
actions, whereas he previously failed to do so. The Panel ordered a
mental health evaluation that found Petitioner needed treatment for
substance abuse and sponsorship in a halfway house program. The Panel
provided a searching review and did not merely "parrot the previous
refusals." See id. at 393.
V. EQUAL PROTECTION UNDER THE FIFTH AMENDMENT
A. Whether A Right Exists
Still, as this Court explained in its Order of December 8, 2000, the
possibility of an equal protection problem appears. All inadmissible
aliens, with the exception of Mariel Cubans, receive the same parole
procedures. It is clear that Mariel Cubans receive fewer procedural
protections in their parole reviews. It is not clear, however, whether
inadmissible aliens are entitled to equal protection of the laws under
the Fifth Amendment. This Court finds that it need not decide whether
Petitioner is entitled to equal protection, because the regulations at
issue here would survive the scrutiny of this Court even if Petitioner
had such a right.
The Due Process Clause of the Fifth Amendment to the United States
Constitution provides that no person shall "be deprived of life,
liberty, or property, without due process of law." U.S. Const. amend.
V. "[W]hile the Fifth Amendment contains no equal protection clause, it
does forbid discrimination that is `so unjustifiable as to be violative
of due process.'" Schneider v. Rusk, 377 U.S. 163, 168 (1964) (quoting
Bolling v. Sharpe, 347 U.S. 497, 499 (1954)); see also U.S. v.
Weingartner, 485 F. Supp. 1167, 1171 (D.N.J. 1979).
As explained above, the dicta from the Supreme Court's decision in
Mezei has generally been interpreted as giving an inadmissible alien no
protection from detention under the Fifth Amendment. While inadmissible
aliens have only the due process rights provided by Congress, the Third
Circuit has interpreted Mezei and the case law of the other circuits
since Mezei as providing an inadmissible alien with a due process right
to a searching periodic parole review. That right appears to stem from
the Fifth Amendment. Still, it is not clear whether that right includes a
right to equal protection or whether a periodic parole review can be
searching if a detainee's country of origin is a factor considered.
It may be, as Judge Arterton recently explained, that the "narrow and
limited nature of substantive due process rights held by aliens" is a
limit "on the circumstances in which such a right exists, not a shading
on the extent or scope of that right once it is found to exist." See
Cardoso v. Reno, 127 F. Supp.2d 106, 110 (D.Conn. 2001). The right
defined by the Third Circuit, however, is only to a searching periodic
parole review and was not unequivocally extended to include all components
of the Fifth Amendment.
The Eleventh and Tenth Circuits have addressed the issue of whether
inadmissible aliens have a Fifth Amendment right to equal protection,
with differing results. Neither circuit's decision has resulted in a
rule of law because the United States Supreme Court effectively vacated
that portion of the Eleventh Circuit's decision, and the Tenth Circuit's
analysis appears in dicta.
In Jean v. Nelson, the Eleventh Circuit held that inadmissible Haitian
aliens have no constitutional rights to or during a parole
the INS, so there is no right to equal protection. 727 F.2d 957
(11th Cir. 1984) (en banc), affirmed on other grounds 472 U.S. 846
(1985). Thus, the INS was within its authority to deny parole to these
aliens based on their nationality. Id. at 972.
The United States Supreme Court granted certiorari. Jean v. Nelson,
469 U.S. 1071 (1984). While the Court affirmed the Eleventh Circuit's
remand to the district court, it expressed no opinion on the issue of
whether inadmissible aliens have a right to equal protection in their
parole decisions and concluded that the Eleventh Circuit "should not have
reached and decided the parole question on constitutional grounds." Jean
v. Nelson, 472 U.S. 846, 848 (1985). The regulations at issue had been
altered, while the case was on appeal to the Eleventh Circuit,
eliminating the consideration of national origin from parole decisions
for inadmissible aliens. Id. at 850-51.
Justice Marshall, joined by Justice Brennan, dissented from the
affirmation of the Eleventh Circuit's remand. He argued that the issue
of whether inadmissible aliens are entitled to equal protection should
have been reached and that the Court should hold that inadmissible aliens
do have equal protection rights in their parole decisions. Id. at 858-82
(Marshall, J., dissenting). Justice Marshall agreed that "Mezei might
suggest" that inadmissible aliens cannot invoke equal protection rights
under the Fifth Amendment. See id. at 868-69. "This broad dicta,
however, can withstand neither the weight of logic nor that of
principle, and has never been incorporated into the fabric of our
constitutional jurisprudence." Id. at 869.
In general, national-origin classifications have a
stronger claim to constitutionality when they are
employed in connection with decisions that lie at the
heart of immigration policy. When central immigration
concerns are not at stake, however, the Executive must
recognize the individuality of the alien, just as it
must recognize the individuality of all other persons
within our borders. If in this case the Government
acted out of a belief that Haitians (or Negroes for
that matter) are more likely than others to commit
crimes or be disruptive of the community into which
they are paroled, its detention policy certainly would
not pass constitutional muster.
Id. at 881.
As explained above, the Tenth Circuit, in dicta, found that
inadmissible aliens have a right to the protections of the Fifth
Amendment. See Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1386-89
(10th Cir. 1981). The court specifically found that this included the
right to equal protection of the laws. Id. at 1387. Still, as the Tenth
Circuit recently confirmed in Ho v. Greene, 204 F.3d 1045, 1057 (10th
Cir. 2000), the Rodriguez-Fernandez discussion of the issue was dicta,
because the case was resolved on statutory grounds without a need to
decide the case on constitutional grounds.
B. A Prima Facie Case
If this Court were to find that Petitioner has a Fifth Amendment right
to equal protection, it appears that he would be able to establish a
prima facie case of discrimination in violation of that right. To
establish an equal protection violation, Petitioner must establish that
an "allegedly offensive categorization invidiously discriminates against
the disfavored group." Price v. Cohen, 715 F.2d 87, 91-92 (3d
1983); Pollock v. Ocean City, 968 F. Supp. 187, 191 (D.N.J. 1997).
Once the INS determines that an inadmissible alien is releasable,
[t]he district director or Executive Associate
Commissioner may, in the exercise of discretion,
condition release on placement with a close relative
who agrees to act as a sponsor, such as a parent,
spouse, child, or sibling who is a lawful permanent
resident or a citizen of the United States, or may
condition release on the alien's placement or
participation in an approved halfway house, mental
health project, or community project when, in the
opinion of the Service, such condition is warranted.
No detainee may be released until sponsorship,
housing, or other placement has been found for the
detainee, if ordered, including but not limited to,
evidence of financial support.
8 C.F.R. § 241.4(j)(2) (emphasis added).
That provision, however, does not apply to Mariel Cubans. See
8 C.F.R. § 241.4(b)(2). A Mariel Cuban may not:
be released on parole until suitable sponsorship or
placement has been found for the detainee. The
paroled detainee must abide by the parole conditions
specified by the Service in relation to his
sponsorship or placement. The following sponsorships
and placements are suitable:
(1) Placement by the Public Health Service in an
approved halfway house or mental health project;
(2) Placement by the Community Relations Service in an
approved halfway house or community project; and
(3) Placement with a close relative such as a parent,
spouse, child, or sibling who is a lawful permanent
resident or a citizen of the United States.
8 C.F.R. § 212.12(f).
Where all other inadmissible aliens may, at the discretion of the INS,
be released without meeting sponsorship requirements, Mariel Cubans, by
the language of the written regulations, must meet sponsorship
requirements. Mariel Cubans cannot ask the INS to use its discretion to
determine whether sponsorship is necessary. All other inadmissible
aliens are entitled to the INS' use of that discretion.*fn8 Thus,
Petitioner would be able to make a prima facie case of an equal
protection violation if a Fifth Amendment right to equal protection
C. Standard of Review For An Equal Protection Challenge
Once a petitioner establishes a prima facie case of discrimination
under the equal protection clause, the burden then shifts to the
government to establish a justification for the classifications. The
government's burden depends on the level
of scrutiny a court applies when
examining the government's justification. This Court finds that a
rational basis test would be applied.
In Mathews v. Diaz, 426 U.S. 67, 80 (1976), the Supreme Court addressed
"whether the statutory discrimination [w]ithin the class of aliens
allowing benefits to some aliens but not to others is permissible." In
Mathews, aliens challenged, on equal protection grounds, their
ineligibility for Social Security benefits under federal law. See id. at
72-73. The Court explained:
For reasons long recognized as valid, the
responsibility for regulating the relationship between
the United States and our alien visitors has been
committed to the political branches of the Federal
Government. Since decisions in these matters may
implicate our relations with foreign powers, and since
a wide variety of classifications must be defined in
the light of changing political and economic
circumstances, such decisions are frequently of a
character more appropriate to either the Legislature
or the Executive than to the Judiciary. . . . Any rule
of constitutional law that would inhibit the
flexibility of the political branches of government to
respond to changing world conditions should be adopted
only with the greatest caution. The reasons that would
preclude judicial review of political questions also
dictate a narrow standard of review of decisions made
by the Congress or the President in the area of
immigration and naturalization.
Id. at 81-82 (footnotes omitted).
All discovered cases have interpreted Mathews to mean that where a
federal law discriminates among differing groups of aliens in admissions
decisions, there is no equal protection violation as long as there is
some facially legitimate reason for making the distinction. This is true
even where the federal law discriminates based on nationality. See,
e.g., Nademi v. INS, 679 F.2d 811, 814-15 (10th Cir. 1982).
Still, some courts have reasoned that there is a distinction between
the deference that a federal court should give to the legislative and
executive branches in decisions regarding admission of aliens as opposed
to the deference that a court should give to decisions regarding parole
of inadmissible aliens who have no realistic chance of affecting entry
into another country. In Rodriguez-Fernandez, the Tenth Circuit used
this reasoning when it determined, in dicta, that no constitutional
rights existed for exclusion proceedings, but they did exist for parole
proceedings; detention after an exclusion proceeding was more akin to
punishment. 654 F.2d at 1386-89; see also Rosales-Garcia v. Holland,
238 F.3d 704, 726 (6th Cir. 2001) ("[A Mariel Cuban]'s prolonged
detention can no longer be considered an ancillary administrative element
of the INS's removal procedures and judicial deference loses its
rationale altogether."); Phan v. Reno, 56 F. Supp.2d 1149, 1155
(W.D.Wash. 1999) ("[T]he plenary power doctrine has far less force [in
detention decisions] than it does, for example, over decisions concerning
who should or should not be admitted, or who should or should not be
deported."). But see Jean v. Nelson, 727 F.2d 957, 970 (11th Cir. 1984)
(rejecting this distinction). The courts that have made this distinction
have not applied a heightened scrutiny specifically to an equal
protection challenge, but to a more general substantive due process
This Court finds that a rational basis test should be used by a federal
court when examining distinctions among groups of aliens by the INS in
parole decisions. To apply a heightened scrutiny
in this situation would
create an anomaly where the executive and legislative branches may have
strong political reasons, implicating relations with foreign powers, for
disallowing the entry of aliens from a particular country, but those
reasons would eventually become subject to heightened judicial scrutiny,
in violation of the Supreme Court's mandate in Mathews, because the alien
is being detained by the United States and the particular country will
not take the alien back. The Supreme Court warned that scrutiny of
distinctions between groups of aliens beyond the use of a rational basis
test "should be adopted only with the greatest caution." Thus, this
Court would use the rational basis test to determine whether Petitioner's
Fifth Amendment right to equal protection is violated by the INS under
the parole procedures for Mariel Cubans, if Petitioner had such a right.
As long as there is a facially legitimate reason for the distinctions
between aliens in an immigration law, the law complies with the equal
protection component of the Due Process Clause of the Fifth Amendment.
Fiallo v. Bell, 430 U.S. 787, 797 (1977); DeSousa v. Reno, 190 F.3d 175,
184-85 (3d Cir. 1999). "[S]uch a classification can be upheld as
constitutional even when it is based on rational speculation . . . .Once
a facially legitimate reason for the classification is found, whether
such a reason was articulated by Congress or not, [a court] must rule the
classification constitutional." DeSousa, 190 F.3d at 184 (citing Heller
v. Doe, 509 U.S. 312, 320 (1993)); see also Pinho v. INS, No. 99-5844,
2001 WL 487907, at *5 (3d Cir. 2001) (applying rational basis test to
differing rights of aliens based on nationality).
If a right to equal protection exists under the Fifth Amendment,
that right would not be violated by the differences in the sponsorship
requirements between Mariel Cubans and all other inadmissible aliens. As
described above, a great public alarm sounded with the influx of the
Mariel Cubans. The government was concerned about Castro opening the
doors to prisons and sending his violent criminals to the United States.
That concern, it turns out, was most likely not rational. All but
approximately 2,000 Mariel Cubans have been released from detention.
Mastin, supra, at 151. Petitioner argues that the government no longer
has any rational basis for believing that the Mariel Cubans are more in
need of sponsorship requirements than any other category of inadmissible
aliens. But, given that a small percentage of the Mariel Cubans were in
fact released from Cuban prisons for transport to the United States, and
given that only a small percentage of the Mariel Cubans currently remain
in detention in the United States, the government could have a rational
belief that those Mariel Cubans still in detention are clearly in need of
sponsorship if released on parole, whereas other inadmissible aliens may
or may not need sponsorship.
Because there exists a rational reason on which the government could
have relied in establishing different treatment for these two categories
of inadmissible aliens, this Court would have to find in favor of the
government. Because the categorization would survive judicial scrutiny,
this Court finds that it should not address the novel constitutional
issue of whether Petitioner has any right to equal protection under the
Petitioner, an inadmissible alien who has been physically present in
the United States for over twenty years, is still to be treated by this
Court as not having entered the United States. As such, he is
entitled to the same constitutional protections afforded to aliens who
have affected entry into this country, either legally or illegally.
Whatever the United States Supreme Court may eventually define the
limited constitutional rights of Petitioner to be, as of today, in the
Third Circuit, Petitioner has only a right to a searching periodic parole
review. The INS is currently providing Petitioner with that review.
Petitioner may or may not have a right to equal protection of the laws
of this country under the Fifth Amendment. While he can establish that
the treatment he receives would be different if he did not fall within
the category of Mariel Cubans, this Court finds that the different
treatment is based on a rational decision by the legislative and
executive branches of the United States. Thus, this Court need not
determine the highly controversial issue of whether Petitioner's equal
protection rights exist at all.
An appropriate order will issue.
For the reason contained in this Court's Opinion of even date,
IT IS HEREBY ORDERED on this 18th day of May, 2001 that Petitioner's
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is
IT IS FURTHER ORDERED that this matter is DISMISSED WITH PREJUDICE.