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November 18, 2002


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


This matter is before the Court upon petitioner Humberto Herrero-Rodriguez's application for habeas corpus relief pursuant to 28 U.S.C. § 2241. Petitioner, a Mariel Cuban, is an alien who has been detained by the Immigration and Naturalization Service ("INS") since April 20, 1998. Petitioner is seeking habeas corpus relief on the basis of the recent United States Supreme Court case of Zadvydas v. Davis, 533 U.S. 678 (2001), arguing that the Zadvydas decision should be extended to inadmissible aliens and that petitioner should be released from INS custody since his post-removal detention has been in excess of the presumptively reasonable six-month period set forth by the Supreme Court. Specifically, Petitioner contends, without elaboration or documentary support, that his detention pursuant to 8 U.S.C. § 1231(a)(6)*fn1 is violative of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments.


Petitioner is one of nearly 125,000 Cuban natives who arrived in the United States in 1980 as part of the "Mariel Boat Lift," and, accordingly, occupies the status of inadmissible alien pursuant to sections 1225 and 1182 of Title 8 to the United States Code. When Petitioner reached the United States in 1980, he was detained for an exclusion hearing and was charged with being excludable under sections 212(a)(9) and (20) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1182(a)(9) and (20). Resp't's Br. at 1. Prior to Petitioner's exclusion hearing, he admitted to having been arrested and convicted in Cuba in 1964 for assault with a deadly weapon upon a police officer and that he had received a prison sentence of thirty years. Id. at 2; Exclusion Appeal Proceedings, Ex. A. He later recanted that admission, stating that he had been serving a fifteen-year sentence for stealing at the time of the Mariel Boat Lift. Resp't's Br. at 2; Cuban Review Summary Sheet, Ex. 10. On July 21, 1980, Petitioner was ordered excluded and deported from the United States, pursuant to section 212(a)(20) of the Act, as an immigrant not in possession of a valid entry document. Resp't's Br. at 1-2.

Subsequent to the Final Order of exclusion dated October 23, 1980, Petitioner was paroled into the United States; however, his parole was revoked*fn2 following a string of criminal offenses, including: narcotics violations (8/1/86, 3/9/87, 10/3/88, 9/12/90); possessing and carrying a concealed weapon (3/9/87, 8/1/87); attempted burglary of an unoccupied structure (9/12/90); grand larceny (9/12/90); battery of a law enforcement officer (5/11/94); resisting arrest with violence (5/11/94); and, depriving a law enforcement officer of means of protection (5/11/94). Resp't's Br., Final Notice of Parole Denial, Ex. 6; Resp't's Br., Cuban Review Summary Sheet, Ex. 7; Resp't's Br., Final Notice of Parole Denial, Ex. 9; Resp't's Br., Cuban Review Summary Sheet, Ex. 10.

The Cuban Review Panel has reviewed Petitioner's detention, pursuant to 8 C.F.R. § 212.12, on three separate occasions since Petitioner's return to INS custody on April 20, 1998. On each occasion, the Panel decided to deny Petitioner release after determining that it was not evident that Petitioner was presently non-violent, would remain non-violent, was unlikely to pose a threat to the community if released, or was unlikely to violate conditions of his parole.

The Panel next reviewed Petitioner's detention on February 11, 2000. Resp't's Br., Cuban Review Summary Sheet, Ex. 7. In deciding whether he was an appropriate candidate for parole, the Panel considered Petitioner's criminal history, a mental health evaluation performed on January 18, 1999, and the testimony he provided during an interview conducted on February 10, 2000. Id. Following a discussion of his arrest and conviction in 1994 for battery of a law enforcement officer during the interview, the Panel noted that Petitioner's account of the events contradicted that which was included in the police report. Id. After reviewing Petitioner's testimony, disciplinary reports, and criminal history, the Panel concluded that Petitioner has violent tendencies, does not assume full responsibility for his behavior, and is not credible. Id. The Panel elected to deny his request for parole, citing Petitioner's lack of remorse for his past crimes, lack of respect for law enforcement officials, and lack of a support system in place to assist in his reintegration into society as its reasons for so deciding. Id.

The most recent Panel review occurred on June 25, 2001. Resp't's Br., Cuba Review Summary Sheet, Ex. 2. The Panel referenced Petitioner's progress report, which indicated that he has not been involved in any disciplinary incidents and has enrolled in ESL. Id. During his interview, Petitioner admitted to having been addicted to cocaine for eight to ten years but claimed that he never sold drugs. Id. He also stated that he has not completed a drug rehabilitation program. Id. Petitioner stated that, if released, he would contact his sponsor, whom he has never met in person but with whom he has communicated via telephone and email. Id. While he had no definite plans for employment, he stated that he is able to work as a painter. Id. In finding that he was not credible during the interview, the Panel relied considerably on Petitioner's recollection of an altercation he had with a police officer and noted that Petitioner's version of the events conflicted with a previous version he had given, as well as with the police report. Id.

The Panel ultimately decided to deny Petitioner parole once again because it could not conclude that he was presently non-violent, was likely to remain non-violent, or was not likely to pose a threat to the community following his release. Id. Reasons given in support of this conclusion included Petitioner's testimony regarding his altercation with the police officer, the fact that he has not attended drug treatment or anger management programs, and the lack of support system in place for his release. Id.

On September 18, 2001, Petitioner received a Notice of Releasability and was scheduled to begin a residential drug treatment program at FCI Englewood, Colorado, on March 8, 2002, in anticipation of his eventual placement with a suitable sponsor, pursuant to the criteria established in the Cuban Review Plan. Resp't's Br., Notice of Releasability, Ex. 1; Resp't's Br., Fomich Declaration, para. 4-6. Petitioner has not withdrawn the present Petition, however, and neither party has notified the Court of any change of address. Accordingly, the Court will proceed based upon the best information available to it that Petitioner remains in custody at FCI-Fort Dix.*fn3


Applicability of Zadvydas to Petitioner's case

Petitioner, an inadmissible alien, argues that Zadvydas v. Davis, 533 U.S. 678 (2001), should be read as applying to both deportable and inadmissible aliens. In Zadvydas, the United States Supreme Court held that 8 U.S.C. § 1231(a)(6) did not permit the INS to indefinitely detain two deportable aliens, who had been ordered removed from the United States, because nothing in the legislative history of the statute indicated Congress' intention to authorize indefinite detention. Id. at 699. Instead, the Court interpreted the statute as limiting the post-removal detention period to a reasonable time and recognized six months as constituting the presumptively reasonable amount of time upon which to effectuate removal. Id. at 699-701. Notably, the Court interpreted the statute "in order to avoid a serious constitutional threat" to the liberty interest of aliens incurred by indefinite and potentially permanent detention. Id. at 699. In so doing, the Court refrained from considering both the government's claim that Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215-16 (1953) (explaining that rights accorded to excludable aliens derive from Congress) supports indefinite detention on the basis of alien status itself and ...

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