Arango Marquez v. I.N.S.

• Decision Date: 19 September 2003
• Docket Number: No. 01-17191.,01-17191.
• Citation: 346 F.3d 892
• Parties: Domingo ARANGO MARQUEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

346 F.3d 892

Domingo ARANGO MARQUEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 01-17191.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 11, 2002 — San Francisco, California.

Filed September 19, 2003.

COPYRIGHT MATERIAL OMITTED

Daniel J. Broderick, Chief Assistant Federal Defender, Gillian Black, Staff Attorney, Federal Defender, Sacramento, California, for the Appellant.

Shelley R. Goad, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the Appellee.

Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Chief Judge, Presiding. D.C. No. CV-00-06584-REC.

Before: Dorothy W. NELSON, Robert R. BEEZER, and Kim McLANE WARDLAW, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge BEEZER

OPINION

WARDLAW, Circuit Judge.

Domingo Arango Marquez is a Mariel Cuban refugee subject to indefinite detention by the Immigration and Naturalization Service ("INS") since August 16, 2000, because his country of origin will not accept his repatriation. Because he is an "excluded alien" under the former immigration law or an "inadmissible alien" under the Illegal Immigration Reform & Immigrant Responsibility Act of 1996 ("IIRIRA"), the district court held that the presumptively reasonable period of six months post-removal detention under 8 U.S.C. § 1231 established in Zadvydas v. Davis, 533 U.S. 678, 700, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) for admitted aliens is inapplicable to Marquez's case and denied his habeas corpus petition. Because we have since extended the statutory construction of § 1231 in Zadvydas to embrace aliens deemed inadmissible under 8 U.S.C. § 1182, Lin Guo Xi v. INS, 298 F.3d 832, 833-34 (9th Cir.2002), we hold that Marquez is entitled to a determination whether his removal to Cuba is reasonably foreseeable and to release, subject to appropriate supervised conditions of release, if it is not.

I.

Marquez is a native and citizen of the Republic of Cuba. Born in Havana May 12, 1957, he sought to emigrate as he became opposed to its Communist government. In early April of 1980, Marquez entered the Peruvian embassy compound in Havana, hoping to obtain political asylum and to resettle in Peru. He remained at the Peruvian embassy for over a week amid a growing crowd of refugees. On April 14, 1980, United States President Jimmy Carter ordered an airlift of up to 3500 of the refugees at the Peruvian embassy pursuant to the Refugee Act of 1980. See Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102. When President Carter's announcement of the airlift was broadcast by radio to the refugees in the embassy, Marquez decided to attempt resettlement in the United States instead of Peru. Soon thereafter, Cuban leader Fidel Castro ended the airlift program and announced that anyone who wished to leave Cuba was free to do so from the harbor at Mariel, a port city west of Havana. Marquez joined approximately 125,000 other Cubans who sailed from Mariel bound for the United States. He and other native Cubans who arrived in the United States with Castro's permission via Mariel during this period (April 15, 1980 to October 20, 1980) became known as Mariel Cubans.

Marquez arrived in Key West, Florida aboard a ship called the San Juan on May 18, 1980, according to the asylum application he filed that day. Because he had no criminal record and was not otherwise inadmissable, he was immediately paroled into the United States.

Marquez initially settled in Florida, and later moved to California, supporting himself, his wife, and his daughter by working in automobile repair shops. Unfortunately, he next embarked on a criminal career. In 1989, he was convicted of burglary and sentenced to eighteen months in prison, of which he served nine. He was then placed in INS custody pending exclusion proceedings. Marquez became subject to the "entry fiction" in immigration law. Because he was paroled into the United States, even though he was physically present here, pending an admissibility determination he is deemed "excluded." "`[S]uch aliens are legally considered to be detained at the border and hence as never having effected entry into this country.'" Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir.1995) (en banc) (quoting Gisbert v. United States Attorney Gen., 988 F.2d 1437, 1440 (5th Cir.), amended, 997 F.2d 1122 (1993)). On June 4, 1990, an Immigration Judge ordered him excluded and deported, and denied his application for asylum. He did not appeal these determinations to the Board of Immigration Appeals. Pursuant to the Cuban Review Plan, 8 C.F.R. § 212.12, which provides procedures and criteria for an annual parole review of excluded Mariel Cubans, Marquez was detained for three more years before being paroled again into the United States.

Although we lack a precise record of Marquez's criminal activities during his immigration parole from 1993 to 1997, Marquez apparently committed several more crimes during this five-year period.¹ He was convicted of grand theft (a felony) on December 9, 1997, and paroled into the United States again on June 7, 1999. On December 1, 1999, a California state court convicted him of possession of methamphetamine, and sentenced him to sixteen months in prison, of which he served nine. In preparation for his impending release, the INS reviewed his file and preliminarily recommended that he again be paroled. He was returned to INS custody on August 16, 2000. Four days later, an INS supervisor overruled the initial parole recommendation. Since then, Marquez has remained in INS detention at various penal facilities. He is currently housed in the federal prison in Lompoc, California. Because Cuba will not accept his repatriation, he is presently subject to indefinite detention by the INS.

On September 26, 2000, more than ten years after he was ordered deported, Marquez petitioned for habeas corpus in the United States District Court for the Eastern District of California, alleging that his indefinite confinement violates the constitution, laws, or treaties of the United States. While Marquez's habeas petition and motion for appointment of counsel were pending before the district court, his detention was reviewed pursuant to the Cuban Review Plan and parole was again denied.

After a series of procedural fits and starts, including the appointment and termination of appointed counsel for Marquez, the magistrate judge recommended, and the district court adopted, the conclusion that Marquez's habeas petition be denied. The courts reasoned that we had held that excludable aliens may be detained indefinitely, Barrera-Echavarria v. Rison, 44 F.3d at 1450, and thus Marquez possesses no constitutional right to be free from detention. Following the Supreme Court's announcement in Zadvydas, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653, and its companion case, Ashcroft v. Ma, id., the district court entered a subsequent order rejecting Marquez's contention that Zadvydas required his release as a matter of statutory construction, as opposed to due process, reasoning that Zadvydas's implicit limitation on post-removal order detention did not apply to excluded aliens. The district court did not have the benefit of our 2002 decision in Lin Guo Xi, 298 F.3d 832, which held that for purposes of construing the indefinite detention authorization in 8 U.S.C. § 1231(a)(6), inadmissible aliens are entitled to the same reasonable time limitations as deportable aliens. Marquez's timely appeal thus presents the question whether IIRIRA § 1231(a)(6) as subsequently interpreted by the Supreme Court in Zadvydas and by us in Lin Guo Xi, applies to him.

II.

The INS argues, as it did unsuccessfully in the district court, that we lack jurisdiction to entertain Marquez's habeas challenge to his continued detention because he failed to exhaust his administrative remedies as to the 1990 determination of excludability. While the INS is correct that former INA § 106(c) precludes review of orders of deportation or exclusion if the alien fails to exhaust his available administrative remedies, this argument misses the point.

As the district court correctly recognized, Marquez "challenges neither the Attorney General's power to exclude him nor his authority to revoke his immigration parole and detain him pending exclusion. Rather, he contends that the INS lacks the authority to detain him indefinitely, and that such detention violates his rights to substantive and procedural due process," and, since Zadvydas, 8 U.S.C. § 1231. Thus, Marquez's claim does not implicate former INA § 106(c). Rather, Marquez's 28 U.S.C. § 2241 habeas petition challenges the government's present right to detain him indefinitely. The district court has jurisdiction over this habeas claim. Zadvydas, 533 U.S. at 688, 121 S.Ct. 2491("We conclude that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention."); Magana-Pizano v. INS, 200 F.3d 603, 610 (9th Cir.1999) ("The plain language of 28 U.S.C. § 2241 provides an unambiguous grant of jurisdiction to the district courts....").

Even if Marquez's claim required administrative exhaustion, the district court properly waived exhaustion, because the exhaustion requirement in § 2241 cases is prudential, rather than jurisdictional. As explained in Castro-Cortez v. INS:

District courts are authorized by 28 U.S.C. § 2241 to consider petitions for habeas corpus. That section does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. However, we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.... [T]he exhaustion requirement in § 2241 cases is subject to waiver because it is not a ...