322 F.3d 386 (6th Cir. 2003), 99-5683, Rosales-Garcia v. Holland

Docket Nº:99-5683, 99-5698
Citation:322 F.3d 386
Party Name:Mario Rosales-Garcia, Petitioner-Appellant, v. J.T. Holland, Warden, Respondent-Appellee. Reynero Arteaga Carballo, Petitioner-Appellant, v. Mark Luttrell, Warden; Immigration and Naturalization Service, Respondents-Appellees.
Case Date:March 20, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 386

322 F.3d 386 (6th Cir. 2003)

Mario Rosales-Garcia, Petitioner-Appellant,

v.

J.T. Holland, Warden, Respondent-Appellee.

Reynero Arteaga Carballo, Petitioner-Appellant,

v.

Mark Luttrell, Warden; Immigration and Naturalization Service, Respondents-Appellees.

Nos. 99-5683, 99-5698

United States Court of Appeals, Sixth Circuit

March 20, 2003

Argued: March 20, 2002

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Appeal from the United States District Courts for the Eastern District of Kentucky at Lexington and the Western District of Tennessee at Memphis. Nos. 98-00286; 98-03081—Karl S. Forester, Chief District Judge and Julia S. Gibbons, District Judge.

COUNSEL

Mario Rosales-Garcia, Miami, FL, prose.

Reynero Arteaga Carballo, Union Resque Mission Los Angeles, CA, Pro se.

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Judy Rabinovitz, ACLU IMMIGRATION RIGHTS PROJECT, New York, New York, for Appellants.

Linda S. Wernery, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Appellees.

Judy Rabinovitz, (argued and briefed), ACLU IMMIGRATION RIGHTS PROJECT, New York, NY, Liliana Garces, (briefed) AMERICAN CIVIL LIBERTIES UNION IMMIGRANTS' RIGHTS PROJECT, Oakland, California, Lucas Guttentag (briefed), AMERICAN CIVIL LIBERTIES UNION IMMIGRANTS' RIGHTS PROJECT, New York, NY, David W. Leopold (briefed), Cleveland, Ohio, for petitioner-Appellants, Mario Rosales-Garcia and Reynero Arteaga Carballo

Allen W. Hausman, Linda S. Wernery (argued and briefed), Emily A. Radford, Mark C. Walters, Greg D. Mack (briefed), U.S. Dept. of Justice, Immigration Litigation, CIVIL DIVISION, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent-Appellees, J.T. Holland Mark Lutterall and I.N.S.

Before: MARTIN, Chief Circuit Judge; KRUPANSKY, BOGGS, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MARTIN, C. J., DAUGHTREY, COLE, CLAY, and GILMAN, JJ., joined. BOGGS, J. (pp. 48-57), delivered a separate dissenting opinion, in which KRUPANSKY and BATCHELDER, JJ., joined.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioners Mario Rosales-Garcia and Reynero Arteaga Carballo appeal the denials of their petitions for the writ of habeas corpus in the district courts. Both Petitioners, Cuban nationals who have been ordered removed from the United States, are currently in the indefinite and potentially permanent custody of the Immigration and Naturalization Service ("INS") because Cuba refuses to allow them to return. In its recent decision in Zadvydas v. Davis, 533 U.S. 678, 682 (2001), the Supreme Court held that the provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") that authorizes the post-removal-period detention of removed aliens must be construed to contain an "implicit 'reasonable time' limitation" because the indefinite detention of aliens who are removable on grounds of deportability "would raise serious constitutional concerns."

We first conclude that Rosales's and Carballo's detention by the INS is governed by IIRIRA. We then conclude that although Rosales and Carballo are removable on grounds of inadmissibility, as opposed to deportability, the Supreme Court's limiting construction of IIRIRA's post-removal-detention provision applies to their detention. Finally, we conclude that even if the Supreme Court's construction of IIRIRA does not apply to Rosales and Carballo, their indefinite detention independently raises constitutional concerns, and we construe IIRIRA's post-removal-period detention provision as it applies to Rosales and Carballo to contain an implicit reasonable-time limitation. Because there is no significant likelihood of the petitioners' removal in the reasonably foreseeable future, the continued detention of the petitioners by the INS is not authorized by the applicable statute, and we REVERSE the district courts' denials of their habeas petitions and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

Petitioners-Appellants Mario Rosales-Garcia ("Rosales") and Reynero Arteaga Carballo ("Carballo") arrived in this country as part of the Mariel boatlift in 1980, during which over 120,000 Cubans crossed by boat from the Mariel harbor in Cuba to the United States. Rosales and Carballo, Page 391

like most of the Mariel Cubans, arrived in this country without documentation permitting them legal entry; therefore, because they were not authorized to enter the country and because immigration officials stopped them at the border, they were deemed "excludable" under the immigration law in effect at the time.1 Although excludable aliens have not "entered" the country for the purposes of immigration law, Rosales and Carballo were permitted physical entry into the United States pursuant to the Attorney General's authority under 8 U.S.C. § 1182(d)(5)(A) (1982) to grant immigration parole. 2 As of 1986, this parole has been governed by regulations specifically promulgated by the INS for Mariel Cubans. 8 C.F.R. § 212.12 (2002) (the "Cuban Review Plan"). Following their independent criminal convictions, the Attorney General, acting through the INS, revoked Rosales's and Carballo's parole and initiated exclusion proceedings against them. Both petitioners were excluded and, pursuant to the immigration law in effect at the time, they should have been immediately deported. Cuba, however, has refused to repatriate most of the Mariel Cubans whom the United States has excluded, and the U.S. government does not contend in this appeal that a repatriation by Cuba of either Rosales or Carballo is reasonably foreseeable.3 Because Cuba refused to accept the Page 392

deportation of either Rosales or Carballo, the INS has detained them in prisons in the United States. A. Rosales

Rosales was twenty-three when he arrived in the United States, and he was soon thereafter paroled into the custody of his aunt. Beginning in 1980, Rosales was arrested for a number of offenses, including aggravated battery, possession of marijuana, burglary, and loitering. Rosales was convicted of the following offenses: possession of marijuana and resisting arrest in October 1981; grand theft in September 1981, for which he received two years of probation in March 1983; burglary and grand larceny in October 1983, for which he received two six-month sentences, to be served consecutively; escape from a penal institution in February 1984, for which he received a 366-day sentence; and one count of conspiracy to possess with the intent to distribute cocaine in March 1993, for which he received a sixty-three month federal prison sentence and five years of supervised release.

On July 10, 1986, Rosales's immigration parole was revoked by the INS on the basis of the escape and grand larceny convictions, pursuant to INS authority under 8 U.S.C. § 1182(d)(5)(A) (1982) and 8 C.F.R. § 212.5(d)(2) (1986). In a separate proceeding before an immigration judge, Rosales was denied asylum and ordered excluded on June 26, 1987, pursuant to 8 U.S.C. § 1182(a)(20) (1982), for improper documentation. Rosales was in INS detention between July 1986 and May 1988, when he was again released on parole. After he pleaded guilty to the cocaine conspiracy charge in 1993, the INS revoked Rosales's parole, this time pursuant to the Cuban Review Plan. When Rosales was released from federal prison in May 1997, the INS detained him, pursuant to 8 U.S.C. § 1226(e) (1994). Rosales remained in INS detention for four years, during which time he was denied parole twice, in November 1997 and March 1999, under the Cuban Review Plan. In April 2001, Rosales was granted parole and released into a halfway house program. Rosales completed the program in May 2001, and he was subsequently released into the community under conditions of supervision.

Rosales filed his pro se habeas petition in the United States District Court for the Eastern District of Kentucky on July 9, 1998. In the petition, he alleged that his "continued incarceration is illegal, it violates Due Process, statu[t]es, and case law . . . ." Rosales Joint Appendix ("Rosales J.A.") at 9. The district court initially denied Rosales's habeas petition sua sponte in October of 1998; however, Rosales filed a motion to amend, and the district court vacated its initial denial. On May 3, 1999, the district court denied with prejudice Rosales's amended habeas petition. The court concluded that under the IIRIRA, 8 U.S.C. § 1231(a)(6) (Supp. V. 1999), the Attorney General was authorized to detain Rosales indefinitely, and the court further concluded that such detention did not violate Rosales's constitutional substantive or procedural due process rights. In regard to Rosales's substantive due process claim, the court held that Rosales "ha[d] no fundamental right to be free to roam the United States." Rosales J.A. at 91. With respect to Rosales's procedural due process claim, the court held that "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Rosales J.A. at 91 (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)).

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On August 4, 2000, a panel of this court heard the case on appeal, and on January 31, 2001, the panel reversed the district court's denial of Rosales's petition. Following the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001), the government petitioned the Court for certiorari, asking that the panel's decision be vacated and remanded in light of Zadvydas. On December 10, 2001, the Supreme Court granted the government's request. Thomas v. Rosales-Garcia, 122 S.Ct...

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