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July 8, 2002


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


I. Introduction

In this case, I must decide whether the INS has the authority to detain indefinitely certain non-resident aliens, including the so-called "Mariel Cubans," and whether the procedures used in this case to detain the petitioner, Valentin Chavez-Rivas, violated the Due Process Clause.

With compromise comes hard choices. Two decades ago, in 1980, the United States made the decision as a nation to allow over 100,000 refugees to emigrate from Cuba to our shores.*fn1 We tempered our welcome, however, by treating these Cuban immigrants as though they were still in the perpetual legal limbo, of an immigrant just outside our territorial, borders, with all the limitations on personal rights and liberties that derive from that status. See, e.g., Rosales-Garcia v, Holland, 238 F.3d 704, 731 n. 7 (6th Cir. 2001) (Rice, J., dissenting) (describing admission of Cuban immigrants as "compassionate compromise" that saved lives but weakened some legal rights), vacated and remanded for reconsideration sub nom. Thoms v. Rosales-Garcia, ___ U.S. ___, 122 S.Ct. 662, 151 L.Ed.2d 577 (2001); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1443, 1447-50 (9th Cir. 1995) (holding that status granted to Cuban migrants after extensive deliberations by Congress did not entitle Cubans to Due Process under the Fifth Amendment), cert. denied, 516 U.S. 976, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995). Last year, the Supreme Court also struck a compromise of sorts, with Congress, limiting the scope of a federal statute authorizing detention of aliens Who had been ordered removed without deciding the constitutionality of the statute. See Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

As a result of these two decisions, one by Congress, and one more recently, by the Supreme Court, I now must decide to what extent the Court, in curtailing the immigration statute to protect the rights of aliens who have in fact arrived in this country, also intended to give the same protection to the thousands of Cuban immigrants who, although physically present in the United States, are still absent in the eyes of the law. A number of other courts have already considered whether the Supreme Court's decision in Zadvydas altered the constitutional landscape for Cuban detainees. See Hoyte-Mesa v. Ashcroft, 272 F.3d 989 (7th Cir. 2001); Sierra v. INS, 258 F.3d 1213 (10th Cir. 2001); Hernandez Nodarse v. United States, 166 F. Supp.2d 538, 544-45 (S.D.Tex. 2001). That is an easy question, however, because Zadvydas made clear that it, in fact, made no constitutional rulings at all. Only one other federal Court, however, has considered in a reported decision the more difficult question whether Zadvydas's statutory holding applies equally to all aliens. See Borrero v. Aljets, 178 F. Supp.2d 1034 (D.Minn. 2001).

For the reasons that follow, I conclude that it does not. I determine that the INS retains the legal authority to detain Cubans and other aliens who are not, in a legal sense, present in the United States. I also conclude, however, that the INS violated the petitioner's Due Process rights in this case by relying in part upon evidence of arrests for previous offenses, without any evidence that the petitioner in fact committed those crimes, in concluding that he is a danger to the community. Accordingly, I shall direct the INS to conduct a new parole hearing free of the taint of that factor. In all other respects, I shall deny the relief sought by the Petitioner.

II. Facts and Procedural History

Valentin Chavez-Rivas ("Chavez-Rivas") arrived in the United States from Cuba in May of 1980. He was taken into INS custody, but soon thereafter "paroled." That is, although in a technical legal sense still within the custody of the INS, he was given liberty to roam the country. See 8 U.S.C. § 1182(d)(5) (1976) (current version at 8 U.S.C. § 1182(d)(5)(A) (2000)); Moret v. Karn, 746 F.2d 989, 990 (3d Cir. 1984). Following a 1989 conviction for trafficking in cocaine, Chavez-Rivas's parole was revoked and he was returned to INS custody. He was paroled once more, in 1993, but in 1994 and 1995, he was again convicted of drug-related charges. At the conclusion of the service of his state court sentences for these charges, on March 6, 1998, he again returned to the custody of the INS, where he has remained since.

The INS periodically reviews Chavez-Rivas's continuing detention pursuant to the terms of its Cuban Review Plan, 8 C.F.R. § 212.12 (2001) ("The Plan"). The Plan provides that each detainee will be evaluated by a Cuban Review Panel, comprised of two members of the INS professional staff.*fn2 See id. § 212.12(d)(1). In order to recommend that a particular detainee be paroled, the panel members must conclude that he or she is presently nonviolent, is likely to remain non-violent, and is not otherwise likely to violate any parole conditions in the event of his or her release. Id. § 212.12(d)(2). The Plan also provides a list of seven, apparently nonexclusive factors to guide the Panel in reaching its determinations. Id. § 212.12(d)(3). If the Panel cannot recommend parole based solely on the detainee's paper record, the Panel must interview the detainee. Id. § 212.12(d)(4)(ii). Although the detainee may be "accompanied" by a person of his choice at the interview, he has no right to counsel provided by the government, and no apparent right to review his record, cross-examine government witnesses, or call witnesses on his own behalf. See id. The interview, in short, is not an adversarial proceeding.

A Cuban Review Panel interviewed Chavez-Rivas in 1999, 2000, and, according to counsel at oral argument, in 2001. He was denied parole each time. (Tr. at 14.) In 1999 and 2000, the Panel's written explanation for each denial of parole relied in part on the fact that Chavez-Rivas had been arrested on a number of charges that were later dismissed, or for which no disposition was known. The record before me contains no explanation for the Panel's denial of parole in 2001 or 2002. Chavez-Rivas remains in INS custody.

On March 1, 2001, Chavez-Rivas filed this petition, pursuant to 28 U.S.C. § 2241 (2000). In June of 2001, the Supreme Court decided Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). I appointed counsel to represent Chavez-Rivas on August 7, 2001, and a day later, on August 8, 2001, the INS transferred him from New Jersey to another detention center in Louisiana. The Government then moved to dismiss the petition for lack of personal jurisdiction. I denied that motion, finding that Chavez-Rivas had properly named the Attorney General of the United States as a respondent, and that this Court has personal jurisdiction over the Attorney General as an officer of the United States. See Chavez-Rivas v. Olsen, 194 F. Supp.2d 368 (D.N.J. 2002).

My earlier opinion also directed the parties to brief three questions related to the underlying merits of the petition. See id. at 377. Specifically, I asked both sides to consider whether the Cuban Review Plan is constitutional in light of Zadvydas, whether I should construe the INS's regulations in order to avoid any possible constitutional question, and, finally, whether Chavez-Rivas's Review Panels had violated the Due Process Clause by relying on arrests alone, rather than evidence of criminal conduct, in assessing his future dangerousness. Id. I did not, however, prohibit the parties from briefing any other issues they deemed relevant, and Chavez-Rivas exercised this prerogative to argue, in addition, that the INS lacks the statutory authority to detain him under the Cuban Review Plan.

I have jurisdiction over this petition pursuant to 28 U.S.C. § 2241. See Zadvydas, 533 U.S. at 687-88, 121 S.Ct. 2491.

III. Discussion

A. Whether the Cuban Review Plan is Constitutional

The Third Circuit has already upheld the constitutionality of the indefinite detention of aliens having the same legal status as Chavez-Rivas. See Ngo v. INS, 192 F.3d 390, 398 (3d Cir. 1999). Like Ngo, Chavez-Rivas is what the most recent incarnation of the Immigration & Naturalization Act ("INA") describes as an "inadmissible alien," and what was formerly known as an "excludable alien."*fn3 In other words, he has never gained legal entry into this country, notwithstanding his actual physical presence here. See Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491 (citing Leng May Ma v. Barber, 357 U.S. 185, 188-90, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213, 73 S.Ct. 625, 97 L.Ed. 956 (1953); Kaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585 (1925)).

Chavez-Rivas argues, however, that Zadvydas has so undermined the Third Circuit's opinion in Ngo that I am free to disregard it. I disagree. The Supreme Court, technically, made no constitutional holding at all in Zadvydas. Rather, it determined that in light of the potential constitutional problem that would arise were it to read the INA to authorize indefinite detention of certain aliens, it would instead read the statute as not, in fact, providing such authorization. See Zadvydas, 533 U.S. at 689-90, 121 S.Ct. 2491; see also id. at 694, 121 S.Ct. 2491 ("[W]e need not consider the aliens' claim that subsequent developments have undermined Mezei's legal authority."). While some might say that for practical purposes there is little to separate a constitutional holding from a holding based on a statutory interpretation that avoids the constitutional question, in this case, that distinction makes all the difference. The Third Circuit has made a constitutional determination, and the Supreme Court has not contradicted that holding. Cf. Gilmour v. Rogerson, 117 F.3d 368, 370, 372 (8th Cir. 1997) (holding that Supreme Court's interpretation of federal statute to avoid constitutional question does not require lower federal court to find similar state statute unconstitutional), cert. denied, 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998). While it might be arguable that Zadvydas predicted or portends a future holding on the constitutional merits, "`it is not for this Court to overstep a controlling precedent or to predict its eventual demise in the Supreme Court.'" Bostic v. AT & T of the Virgin Islands, 166 F. Supp.2d 350, 362 (D.V.I. 2001) (Orlofsky, J., by designation) (quoting United States v. DeJesus, 150 ...

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