321 F.3d 1357 (11th Cir. 2003), 01-14249, De La Teja v. U.S.

Docket Nº:01-14249
Citation:321 F.3d 1357
Party Name:CARLOS GUSTAVO DE LA TEJA, Petitioner-Appellant, v. UNITED STATES OF AMERICA, JOHN ASHCROFT, Attorney General, Respondents-Appellees.
Case Date:February 21, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1357

321 F.3d 1357 (11th Cir. 2003)

CARLOS GUSTAVO DE LA TEJA, Petitioner-Appellant,

v.

UNITED STATES OF AMERICA, JOHN ASHCROFT, Attorney General, Respondents-Appellees.

No. 01-14249

United States Court of Appeals, Eleventh Circuit

February 21, 2003

Page 1358

[Copyrighted Material Omitted]

Page 1359

Frederic Skip Sugarman, Atlanta, GA, for Petitioner-Appellant.

Melissa S. Mundell, U.S. Atty., Savannah, GA, Cindy S. Ferrier and Linda S. Wendtland, U.S. Dept. of Justice, Civ. Div., OIL, Washington, DC, for Respondents-Appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before BLACK and MARCUS, Circuit Judges, and MIDDLEBROOKS[*], District Judge.

MARCUS, Circuit Judge:

In this immigration case, Carlos De La Teja appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. De La Teja raises four claims: first, he says that his continuing detention pending the entry of a final order of removal pursuant to § 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c), ("INA"), violates the Due Process Clause of the Fifth Amendment; second, he claims that his detention violates the constitutional prohibition against double jeopardy; third, he argues that his removal would violate the district court's vacated judicial order of deportation; and finally, he alleges that removal would be inconsistent with the United Nations Convention Against Torture. Because De La Teja is no longer being detained pursuant to INA § 236—his order of removal now having become final—the first issue has become moot, depriving us of subject matter jurisdiction over this claim. We possess jurisdiction over the remainder of appellant's claims; however, we find them to be without merit and, accordingly, affirm the district court's order in all other respects.

I.

This story began on June 2, 1980, when De La Teja arrived in the United States among some 125,000 undocumented Cuban nationals during the Mariel boatlift. He was paroled into the United States pursuant to 8 U.S.C. § 1182(d)(5). In November 1996, he was convicted in the United States District Court for the Southern District of Florida of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and possession of property stolen from interstate or foreign commerce in violation of 18 U.S.C. § 659. He was sentenced to a term of 210 months imprisonment and the district court entered an order of deportation pursuant to 18 U.S.C. § 3583(d). Thereafter, he began cooperating with the government's investigation, and so the government moved to reduce his sentence. In September 1997, the district court granted the motion, reduced the sentence of imprisonment to 60 months and vacated the original judicial order of deportation.

On March 23, 2000, while De La Teja was still in the custody of the Bureau of Prisons, the Immigration and Naturalization Page 1360

Service ("INS") issued a Notice to Appear (the charging document). Appellant was charged specifically with being inadmissible to the United States under 8 U.S.C. § 1182(a)(2)(A)(i)(I)&(II), based on convictions that constituted both a crime of moral turpitude and a controlled substance violation. Upon completion of his criminal sentence, the INS detained De La Teja pursuant to 8 U.S.C. § 1226(c) on the ground that he could not demonstrate that, if released, he was neither a danger to the community nor a flight risk. On January 16, 2001, De La Teja filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that his continued pre-removal-order of detention pursuant to § 1226(c) violated the Due Process Clause of the Fifth Amendment. Thereafter, on June 20, 2001, the district court held that § 1226(c) is not facially unconstitutional, reasoning that as a detained criminal alien, De La Teja did not have a constitutional right to be released from detention prior to removal proceedings. The trial court specifically found that § 1226(c) was designed for the legitimate governmental purpose of ensuring that an alien can be physically located at the conclusion of removal proceedings. This appeal ensued.

Meanwhile, on September 21, 2001, the Notice to Appear was filed, thereby commencing removal proceedings against him before the Immigration Court in Atlanta. De La Teja first appeared before an Immigration Judge on April 16, 2002, at a master calendar hearing which allowed him to plead to the charges set forth in the Notice to Appear. However, the proceedings were continued so that he could obtain legal representation. De La Teja next appeared at a May 14, 2002 hearing, but the proceedings were again continued, this time to allow him to apply for asylum and for the withholding of removal pursuant to 8 U.S.C. §§ 1138(a) and 1231(b)(3), and withholding or deferral of removal pursuant to Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"). The Immigration Court set an August 27, 2002 deadline for filing such applications, which De La Teja failed to meet. On October 10, 2002, the Immigration Court issued its decision, finding De La Teja removable as charged and pretermitting any potential application for asylum or withholding of removal under Title 8, or withholding or deferral of removal under the Convention Against Torture. Notably, the appellant did not file an appeal with the Board of Immigration Appeals. Accordingly, the order of removal became final on November 12, 2002.

II.

De La Teja's principal argument on appeal is that under the Supreme Court's recent decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), his residence within the territorial boundaries of the United States for over twenty years is sufficient to afford him the fundamental right to be free from physical restraint, and that this right was violated by his pre-removal-order detention. In Zadvydas, the Court addressed the detention of aliens who were admitted to the United States but subsequently became subject to a final order of removal. It concluded that construing the applicable statute, 8 U.S.C. § 1231(a), to allow "an indefinite, perhaps permanent, deprivation of human liberty," id. at 692, 121 S.Ct. at 2500, "would raise a serious constitutional problem" under the Fifth Amendment's Due Process Clause, id. at 690, 121 S.Ct. at 2498. The Supreme Court therefore held that " read in light of the Constitution's demands," § 1231(a) "limits an Page 1361

alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States." Id. at 659, 121 S.Ct. at 2498. Because of the applicability of the Fifth Amendment's due process guaranty to admitted aliens, and the lack of any indication that Congress intended to give the Attorney General unfettered power to hold such aliens for more than six months, the Court established a presumption that detention is allowed for six months following the conclusion of the removal period. See id. at 701, 121 S.Ct. at 2504-05. De La Teja contends that every circuit that has addressed the issue since Zadvydas has extended its holding to § 1226(c)...

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