On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 00-00852) Honorable James M. Munley, District Judge
Before: Barry, Becker, and Greenberg,
The opinion of the court was delivered by: Greenberg, Circuit Judge.
I. FACTUAL AND PROCEDURAL HISTORY
This matter comes on before this court on Rolando Sierra's appeal from an order entered in the district court on June 18, 2002, denying his petition for a writ of habeas corpus.*fn1 Sierra is a 41-year-old Cuban national who arrived in the United States in 1980 as part of the Mariel boatlift during which over 125,000 Cubans crossed by boat from Mariel harbor in Cuba to the United States.*fn2 See JA 7. Immigration officials stopped Sierra and most Mariel Cubans at the border as they were "excludable" under the then effective immigration law.*fn3 Although excludable aliens such as Sierra have not "entered" the country for the purposes of immigration law, the government nevertheless permitted him as well as other Mariel Cubans to make a physical entry into the United States pursuant to the Attorney General's authority under 8 U.S.C. § 1182(d)(5)(A) to grant immigration parole.*fn4
Following Sierra's physical entry into the United States he engaged in a series of serious criminal acts in this country. Thus, he was convicted, inter alia, of carrying a deadly weapon and of theft in the District of Columbia in 1986 and of daytime housebreaking and of theft in Maryland in 1990 and 1991.*fn5 JA 7. As a result of these convictions, the Immigration and Naturalization Service ("INS") quite naturally and appropriately revoked Sierra's immigration parole. See JA 7. On January 6, 1992, after denying Sierra's applications for asylum and withholding of deportation, an immigration judge ordered that he be excluded and deported from the United States. JA 49-50. Sierra appealed the decision of the immigration judge to the Board of Immigration Appeals which summarily dismissed the appeal on May 6, 1992. JA 52.
Sierra should have been deported immediately but unfortunately the Cuban government generally has refused to cooperate in the return of Mariel Cubans and specifically has declined to receive Sierra. See JA 102. The INS therefore has held Sierra in custody for most of the last 11 years detaining him in various federal penitentiaries operated by the Bureau of Prisons, including the facility at Lewisburg, Pennsylvania, at the time he brought this action, and currently the facility at Lompoc, California.
Since his detention and throughout the time Sierra has been in INS custody, the INS annually has reconsidered releasing him on immigration parole in accordance with 8 C.F.R. § 212.12 (2003), which governs the cases of Mariel Cubans who remain in the Attorney General's custody. Pursuant to these regulations, a Cuban Review Panel makes a recommendation to the INS Associate Commissioner for Enforcement,*fn6 who has the discretion to approve parole. Sierra v. INS, 258 F.3d 1213, 1216 (10th Cir. 2001). The INS denied Sierra parole in 1992 because of his "tendency to engage in criminal activities as reflected by [his] extensive criminal record." Id. On April 15, 1994, the INS released Sierra to a halfway house, but six months later revoked his parole by reason of his failure to abide by the conditions of his release. Thus, he was returned to the custody of the INS. Id. The INS denied Sierra parole in 1995, 1996, and 1997. Id. While detained in prison, he has been disciplined for numerous incidents, such as insolence, refusing an order, threatening others, and minor assaults. Id.
On July 28, 1998, a Cuban Review Panel recommended Sierra's parole to a halfway house, noting that he had not been involved in any disciplinary incidents in 1998. Id. That decision, however, was revoked due to Sierra's involvement in a fight. JA 8. A panel conducted an interview on March 18, 1999, following which it declined to recommend parole, finding that Sierra was "violent and [would] remain violent if released." Id. Though a Cuban Review Panel interviewed Sierra again on September 13, 2000, and recommended him for parole, this recommendation was withdrawn on May 13, 2002, after Sierra was disciplined for disruptive behavior in October 2001. See JA 157.
Prior to filing his current petition for a writ of habeas corpus, Sierra had filed several other petitions seeking habeas relief. While he was incarcerated in Florence, Colorado, he filed an action in the United States District Court for the District of Colorado, challenging the Cuban Review Panel's 1998 withdrawal of parole based on the fighting incident. See JA 9. The district court, however, dismissed the action by an order dated August 9, 1999, and in August 2001, the Court of Appeals for the Tenth Circuit affirmed the district court's order. Sierra, 258 F.3d at 1220. On January 7, 1997, Sierra filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Alabama challenging his detention claiming that he had not committed an aggravated felony, his incarceration with felons violated his rights, and the Cuban Review Panel had refused to release him from custody. See JA 108. Sierra filed a similar action in the United States District Court for the District of Columbia on March 24, 1998. See JA 9. The District of Columbia court transferred that action to the Northern District of Alabama which consolidated it with the case pending before it and then dismissed both cases.*fn7 See JA 9. The Court of Appeals for the Eleventh Circuit affirmed the order of the district court in an unpublished memorandum on July 17, 2002. Sierra v. Sivley, No. 00-12508, 46 Fed. App. 617, 2002 WL 1798861 (11th Cir. July 17, 2002) (table).
Sierra filed the present petition for a writ of habeas corpus on May 15, 2000, in the Middle District of Pennsylvania. See JA 6. In his petition Sierra maintained that the INS improperly denied him visits with his family and improperly denied him parole. See JA 9. In proceedings before the district court Sierra argued that he was being detained in violation of the Fifth and Sixth Amendments of the Constitution, contentions he has abandoned,*fn8 and that the Supreme Court's then recent decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), which we describe at length below, prohibited his potential indefinite detention. See JA 10-11. In an order dated July 9, 2001, the district court ordered the parties to file supplemental memoranda of law addressing the lawfulness of Sierra's imprisonment in light of Zadvydas. JA 4-5. In a memorandum dated May 17, 2002, the district court held that Sierra's imprisonment was lawful and that the restrictions Zadvydas established with respect to detention of resident aliens were not applicable in his case. Nevertheless, the district court ordered the INS to review his parole status within 30 days. See JA 12-17. In a memorandum and order dated June 18, 2002, the court revoked its earlier requirement that the INS review Sierra's parole status in 30 days as the INS provided the court with evidence that it had made periodic parole reviews of Sierra's status. JA 18-21. On June 27, 2002, Sierra filed a timely notice of appeal from the June 18, 2002 order which appeal also encompasses the May 17, 2002 order. JA 1.
A. Jurisdiction and Standard of Review
The district court had jurisdiction under 28 U.S.C. § 2241 and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We exercise plenary review over the district court's legal conclusions and ordinarily would review its findings of fact under a clearly erroneous standard. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). Here, however, inasmuch as the relevant facts are undisputed, our entire review is plenary.
B. The Statutory Basis for Sierra's Current Detention
The parties dispute the statutory authority for Sierra's current detention.*fn9 Sierra argues that "8 U.S.C. § 1231(a)(6) is the statute authorizing [his] current imprisonment." Br. of appellant at 14. The government maintains that former 8 U.S.C. §§ 1226(e), 1225(b), 1227(a) and 1182(d)(5)(A) (1994) and not current section 1231(a)(6) govern his detention. Br. of appellee at 20.
Congress enacted 8 U.S.C. § 1231(a)(6) (hereinafter "section 1231(a)(6)") as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Although IIRIRA had a general effective date of April 1, 1997, see IIRIRA § 309(a) (codified at 8 U.S.C. § 1101 note (2000)), a transition section specifies that certain of its provisions do not apply "in the case of an alien who is in exclusion or deportation proceedings before [April 1, 1997]." Id. § 309(c)(1) (hereinafter "section 309(c)(1)").*fn10 According to the government, section ...