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Damas-Garcia v. United States

October 17, 2001


The opinion of the court was delivered by: Simandle, District Judge


This matter is before the Court on application of petitioner Osvaldo Damas-Garcia *fn1 ("Damas-Garcia" or "petitioner") for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner has been detained by the Immigration and Naturalization Service (the "INS") as an excludable alien and is currently being held at the Federal Correctional Institution in Fairton, New Jersey.

In his petition, Damas-Garcia claims that his Fifth Amendment rights have been violated by his continued INS detention. Petitioner puts forth several arguments to support this claim. *fn2 First, petitioner alleges that the legal distinction between excludable aliens and other types of aliens is unconstitutional. (Pet'r's Br. at 3.) Second, petitioner argues that his detention violates international law. (Pet'r's Br. at 4.) Third, petitioner argues that his Fifth Amendment procedural due process rights were violated because he was not provided with "meaningful individualized consideration of his suitability for parole." (Id.) Fourth, petitioner claims that his Fifth Amendment substantive due process rights have been violated because Cuba's refusal to accept deportees will likely result in indefinite detention. (Id.) Finally, petitioner argues that the parole board relied on an error on his criminal record and that this error violated his constitutional rights. (Pet'r's Br. at 12.) For reasons explained below, this Court will deny this petition in its entirety upon the merits.


Petitioner is one of approximately 1,750 Mariel Cubans being detained by the INS in United States prison facilities who are neither eligible for parole nor deportable because Cuba will not allow them back into the country. *fn3

A. The Mariel Cuban Boatlift

Petitioner is one of approximately 125,000 undocumented Cuban nationals who came to the United States during the 1980 Mariel boatlift. *fn4 See Palma v. Verdeyen, 676 F.2d 100, 101 (4th Cir. 1982). Many Mariel Cubans, having been released from prison prior to their departure, came to this country without the proper travel documents. Moret v. Karn, 746 F.2d, 989, 990 (3d Cir. 1984). Because they lacked the necessary documentation to legally enter the United States, many Mariel Cubans were deemed "excludable." *fn5 Because Cuba initially refused to accept the return of the excludable Mariel Cubans, and given the special circumstances of their arrival, the Attorney General, pursuant to his authority, deemed deportation improper and released most of the Mariel Cubans on immigration parole. See 8 U.S.C. §§ 1182(d)(5) and 1227(a) (2000). Individuals who are granted entry into the United States on immigration parole, such as the Mariel Cubans, are not considered legal aliens, but rather are considered the same as individuals who have only just arrived at the U.S. border. See 8 U.S.C.A. §§ 1182(d)(5)(A).

The paroles of many Mariel Cubans have since been revoked, primarily because of new criminal conduct while on parole that posed an unacceptable risk to the safety of the American public. 52 Fed. Reg. 48799 (Dec. 28, 1987); see, e.g., In re Cuban, 822 F. Supp. 192, 194 (M.D. Pa. 1993). When an immigration parole is revoked, the individual is detained by INS pending reinstatement or deportation. A two-member Cuban Review Panel (the "Panel") annually reviews Mariel Cubans who are returned to INS custody to determine their suitability for immigration parole. See 8 C.F.R. § 212.12. This reconsideration includes a review of the detainee's records and a personal interview, during which the detainee may be accompanied by a representative and may present oral and written information in support of the detainee's release on parole. 8 C.F.R. § 212.12(d)(4). The recommendation of the Panel must be unanimous. 8 C.F.R. § 212.12(d)(1). Consideration is given to the detainee's institutional progress, ties to the community, criminal and disciplinary records, psychological evaluations, and any other information which is probative as to whether parole of the detainee is in the public interest. 8 C.F.R. § 212.12(d)(3).

Additionally, to recommend release on parole, the Panel must first determine if the detainee is: (i) presently a non-violent person; (ii) likely to remain non-violent; (iii) not likely to pose a threat to the community following release; and (iv) not likely to violate condition of parole. 8 C.F.R. § 212.12 (d)(2)(i)-(iv). If approved for parole, the detainee is released upon condition of his placement with suitable sponsorship. 8 C.F.R. § 212.12(f).

B. Petitioner's Arrests and Convictions

Petitioner is a native of Cuba who arrived in the United States on April 24, 1980 in Miami, Florida, as a member of the Mariel boatlift. (Resp't's Ans. at 1.) Shortly after, he was granted immigration parole pursuant to 8 U.S.C. §§ 1182(d)(5)(A) and was released into the United States under the sponsorship of his aunt. (Resp't's Ans. at 2.) While petitioner admits that he had a criminal record in Cuba (Resp't's Ex. 6), he initially claimed in 1990 that the basis for this was his robbery conviction (Resp't's Ex. 6), although he stated a year later that he was also convicted for posting anti-Castro signs. (Resp't's Ex. 7.)

While in the United States, petitioner continued his criminal propensities. Shortly after his arrival into the United States in 1980 until his detention in 1989, petitioner developed an extensive criminal record. (Resp't's Ex. 2.) Petitioner has been arrested approximately nine times and has been convicted of or pled guilty to serious, violent offenses including assault with a deadly weapon on a police officer, burglary, and aggravated sexual conduct with children under the age of 14. *fn6

In May 1985, petitioner pled guilty to burglary of a building in Texas and was sentenced to a two-year custodial term. (Resp't's Ex. 3.) On January 5, 1989, petitioner pled guilty to lewd and lascivious acts with a child under the age 14 in California and was sentenced to serve a three-year custodial term. (Resp't's Ex. 4.) At this time, the sentencing judge recommended that petitioner be deported upon the completion of his sentence. (Id.)

Upon notification of petitioner's lewd and lascivious conviction, the INS commenced the detainer process and on December 6, 1989, revoked petitioner's immigration parole under 8 C.F.R. § 212.5(d). (Resp't's Ex. 5.) On December 26, 1989, petitioner was returned to INS custody. (Resp't's Ex. 6.)

While in INS custody, petitioner continued to display violent and aggressive behavior. On March 11, 1992 and again on June 18, 1993, petitioner received disciplinary action for fighting. (Resp't's Ex. 18.)

In 1994, the INS served petitioner with notice of an exclusion hearing before an immigration judge. (Resp't's Ex. 10, 11.) The exclusion proceeding was based upon his failure to possess valid entry documents and his conviction of a crime involving moral turpitude, pursuant to the Immigration and Nationality Act, as amended, 8 U.S.C. 1101 et seq. (Id.) Following the hearing on March 21, 1994, a final order of removal was entered. (Id.) Petitioner continues to be detained by the INS, pending the agency's determination either (1) that he is eligible for immigration parole or (2) that Cuba will accept his return.

Since petitioner has come into INS custody, petitioner has had annual custody reviews in accordance with the requirements of 8 C.F.R. § 212.12. (Resp't's Ex. 6-9, 12-17, 19.) Every review of petitioner's status has resulted in a denial of parole. (Id.) Specifically, petitioner has been denied parole because of his failure to take responsibility for or show remorse for his crimes. (Id.)


Petitioner filed the present petition under 28 U.S.C ยง 2241 in this Court on February 13, 2001, claiming that his due process rights have been violated because (1) there is an illegal distinction between excludable aliens and other types of aliens; (2) his detention violates international law; (3) the Cuban Review Panel has not reviewed his case with the required individualized consideration; (4) he is being detained indefinitely; and (5) INS failed ...

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