988 F.2d 1437 (5th Cir. 1993), 91-4477, Gisbert v. United States Atty. Gen.

Docket Nº:91-4477.
Citation:988 F.2d 1437
Party Name:Felix Gonzalez GISBERT, et al., Petitioners-Appellants, v. U.S. ATTORNEY GENERAL, Respondent-Appellee.
Case Date:April 28, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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988 F.2d 1437 (5th Cir. 1993)

Felix Gonzalez GISBERT, et al., Petitioners-Appellants,


U.S. ATTORNEY GENERAL, Respondent-Appellee.

No. 91-4477.

United States Court of Appeals, Fifth Circuit

April 28, 1993

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Mark D. Kemple, Los Angeles, CA, Leo Jerome Lahey, Lafayette, LA, Gary Leshaw, Atlanta Legal Aid Soc., Atlanta, GA, Karen M. Frederiksen, Los Angeles, CA, David A. Webster, Sumner & Hewes, Atlanta, GA, for petitioners-appellants.

Joseph S. Cage, Jr., U.S. Atty., Shreveport, LA, Emily A. Radford, Lauri S. Filppu, Deputy Dir., Office of Immigration Lit., U.S. Dept. of Justice, Washington, DC, for respondent-appellee.

Appeals from the United States District Court for the Western District of Louisiana.

Before GARWOOD, and EMILIO GARZA, Circuit Judges. [*]

GARWOOD, Circuit Judge:

Petitioners-appellants 1 (petitioners or aliens) are Cuban nationals who have been ordered excluded from the United States and, following revocation of their immigration parole, are detained in custody of the Immigration and Naturalization Service (INS) pending their return to Cuba. The aliens filed petitions for habeas corpus alleging that their detention violates their due process rights, is an abuse of discretion by the Attorney General, and violates international law. The district court consolidated and dismissed the petitions. 2 Petitioners appealed this ruling, raising the same issues before this Court. We affirm.

Facts and Proceedings Below

The facts concerning petitioners are similar and undisputed. Petitioners are Cuban nationals who arrived in the United States in 1980 during the Mariel boatlift 3 in which approximately 125,000 Cubans came to the United States. Officials from the INS detained the aliens at the border and later made a decision to exclude them from the United States. The validity of this exclusion is not challenged. The United States has been unable to return petitioners to Cuba, however, because Cuba has thus far refused to accept them back. 4 No other

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country has expressed a willingness to accept the Mariel Cubans.

Following their initial detention, petitioners were granted immigration parole into the United States by the INS. While on immigration parole, each of the petitioners was convicted of, and sentenced for, violations of state or federal law ranging from attempted murder to trafficking in cocaine to petty theft. After petitioners were released from their imprisonment for these offenses, their immigration parole was revoked on the basis of their convictions. The validity of these convictions is not challenged. Final orders of exclusion were entered against petitioners; at the time of this appeal, they remain in INS custody in state or federal prisons where they have been for over two years, awaiting their return to Cuba. 5

The aliens filed petitions for habeas corpus in the district court, contending that their continued detention is illegal. The district court denied the petitions, and this appeal followed.


We review de novo the district court's dismissal of a habeas corpus petition. Alvarez -Mendez v. Stock, 941 F.2d 956, 959 (9th Cir.1991), cert. denied sub nom. Alvarez-Mendez v. Henry, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992).

The exclusion of aliens is a fundamental act of sovereignty. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953) ("Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control"); Jean v. Nelson, 727 F.2d 957, 964 (11th Cir.1984) (en banc) ("the power to control the admission of foreigners is an inherent attribute of national sovereignty"), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). The right to exclude aliens is vested in both the legislative and the executive branches of the federal government. Knauff v. Shaughnessy, 338 U.S. at 542, 70 S.Ct. at 312 ("The right ... stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation"). The political branches have plenary authority to establish and implement substantive and procedural rules governing the admission of aliens. Jean v. Nelson, 727 F.2d at 964.

United States immigration laws create two types of proceedings in which aliens may be denied the hospitality of this country: deportation hearings and exclusion hearings. Landon v. Plasencia, 459 U.S. 21, 24-25, 103 S.Ct. 321, 325, 74 L.Ed.2d 21 (1982). Deportation hearings are the usual means by which aliens who have effected actual entry into this country are removed; exclusion hearings, on the other hand, are the means of proceeding against aliens who are seeking initial admission into the United States. Id. Aliens subject to deportation generally are granted greater substantive rights than are excludable aliens. Id. at 26-27, 103 S.Ct. at 326.

Although aliens seeking admission into the United States may physically be allowed within its borders pending a determination of admissibility, such aliens are legally considered to be detained at the border and hence as never having effected entry into this country. Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir.1985); Jean v. Nelson, 727 F.2d at 969. We recognized this "entry fiction" in Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir.1987).

Petitioners do not challenge that they have been lawfully excluded from the United States. Instead, they claim that, because

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their return to Cuba is indefinite, their continued detention without further parole is unconstitutional, without proper statutory authority, and in violation of international law.

I. Constitutionality of Indefinite Detention

Petitioners raise two specific arguments alleging that their continued detention violates their constitutional rights. First, they contend that their incarceration constitutes punishment without a criminal trial, in violation of substantive due process. Second, petitioners argue that they have been deprived of a liberty interest without procedural due process. 6

The Supreme Court has held that detention of aliens pending exclusion does not violate the aliens' constitutional rights. The leading case on this issue is Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). The respondent in that case was an immigrant alien who, although he had lived in the United States for twenty-five years, was temporarily excluded from the United States upon his return from an extended stay in Europe and was sent to Ellis Island. The Attorney General ordered his exclusion to be made permanent. When no other country would receive him, the respondent filed a petition for habeas corpus. The district court granted the petition, holding that detention after twenty-one months was excessive without proof of danger to public safety, proof which the Attorney General refused to disclose. The court of appeals affirmed.

The Supreme Court reversed. The Court held that respondent was "an entrant alien or 'assimilated to [that] status' for constitutional purposes," rather than a resident alien despite his prior residency in the United States. Mezei, 345 U.S. at 213-14, 73 S.Ct. at 630 (quoting Kwong Hai Chew v. Colding, 344 U.S. 590, 597, 73 S.Ct. 472, 478, 97 L.Ed. 576 (1953)). Because his absence from the country was without authorization or reentry papers, respondent was subject to exclusion rather than deportation. The Court concluded that the continued detention of the respondent did not deprive him of any statutory or constitutional right. Id. 345 U.S. at 215, 73 S.Ct. at 630. See also Fernandez-Roque v. Smith, 734 F.2d 576, 582 (11th Cir.1984) (concluding that the denial or revocation of immigration parole does not rise to the level of a constitutional infringement). 7

  1. Substantive Due Process

    Petitioners argue that they are being punished without a criminal trial in violation of the substantive due process guarantee of the Fifth Amendment. In making this argument, the aliens rely only on the fact and duration of their continued detention by the INS in federal or state penal institutions; they do not complain about the conditions of that detention or claim that they are subject to corporeal mistreatment. Thus the question before us is whether the detention itself constitutes punishment.

    The focus of our inquiry is whether the detention is imposed for the purpose of punishment or whether it is merely incidental to another legitimate governmental purpose. Schall v. Martin, 467 U.S. 253, 268-69, 104 S.Ct. 2403, 2412, 81 L.Ed.2d 207 (1984). Because there is no evidence here of any expression of intent to punish on the

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    part of the Government, 8 that determination generally will turn on " 'whether an alternative purpose to which [the detention] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].' " Id. (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963)).

    The Ninth Circuit applied this test to the detention of a Mariel Cuban in Alvarez-Mendez v. Stock. In holding that detention of an excluded alien did not constitute illegal punishment, the court concluded that protecting society from a potentially dangerous alien was a rational, non-punitive purpose for detention. Alvarez-Mendez, 941 F.2d at 962. The court found that the detention of the alien was not an excessive means of accomplishing that purpose because immediate removal from the country was not possible. Id.

    Petitioners cite Lynch v. Cannatella, 810 F.2d 1363 (5th Cir.1987), to support their claim to...

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