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