Armentero v. I.N.S.

• Decision Date: 21 June 2005
• Docket Number: No. 02-55368.,02-55368.
• Citation: 412 F.3d 1088
• Parties: Luis L. ARMENTERO, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

412 F.3d 1088

Luis L. ARMENTERO, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 02-55368.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 7, 2004.

Filed June 21, 2005.

Marc Van Der Hout and Megan Ferstenfeld-Torres, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California; Trina A. Realmuto, American Immigration Law Foundation, Washington, D.C.; and Michael Tanaka, Deputy Federal Public Defender, Los Angeles, California, for the petitioner-appellant.

David J. Kline and Michelle E. Gorden, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Terry J. Hatter, District Judge, Presiding.

Before: MESKILL,^* FERGUSON, and BERZON, Circuit Judges.

ORDER

As the Petitioner-Appellant is now a fugitive from custody, the "fugitive disentitlement" doctrine precludes him from pursuing this appeal. See Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996); Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir.2003). Accordingly, the appeal is DISMISSED.

IT IS SO ORDERED.

FERGUSON, Circuit Judge, concurring specially:

I concur in the order to dismiss this matter on the basis of the fugitive disentitlement doctrine. I write separately, however, to express my concern over the increasing assumption of power by U.S. administrative officials to decide matters vested by our constitution to the judiciary. Administrative agents cannot be vested with the authority to render decisions concerning the length of detention. Such decision-making power rests in the hands of a judicial officer.

8 U.S.C. § 1231(a)(6) provides in relevant part: "An alien ordered removed who is inadmissible under ... section 1182 of this title ... may be detained beyond the removal period." 8 C.F.R. §§ 212.12-13 (the "Cuban Review Plan"), adopted in 1987, confer special administrative authority to a Cuban Review Panel to determine a Mariel Cuban detainee's suitability for parole. The Panel consists of two or three persons selected from the staff of the Bureau of Immigration and Customs Enforcement (BICE), a division of the Department of Homeland Security. See 8 C.F.R. § 212.12(c). A Mariel Cuban detainee may be released on parole only "for emergent reasons or for reasons deemed strictly in the public interest." 8 C.F.R. § 212.12(b)(1). The ultimate decision to release a Mariel Cuban detainee is made by the Associate Commissioner for Enforcement, a single administrative official. See 8 C.F.R. § 212.12(d)(2).

This statutory and administrative arrangement affords the Attorney General (now the Secretary of Homeland Security), Cuban Review Panelists, and the Associate Commissioner for Enforcement the authority to determine whether and for how long an excludable Cuban national may be detained. But this authority has been seriously limited. In Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court interpreted 8 U.S.C. § 1231(a)(6) as authorizing the Attorney General to detain admissible aliens only so long as "reasonably necessary" to remove them from the country. "[O]nce removal is no longer reasonably foreseeable," the Court held, "continued detention is no longer authorized." Id. at 699, 121 S.Ct. 2491. The presumptive period during which the detention of an alien is reasonably necessary is six months. Id. at 701, 121 S.Ct. 2491. In Clark v. Martinez, ___ U.S. ___, ___, 125 S.Ct. 716, 722, 160 L.Ed.2d 734 (2005), the Supreme Court extended Zadvydas to apply to excludable (and inadmissible) aliens as well.

Zadvydas and Martinez, therefore, invite doubt as to the constitutionality of the current Cuban Review Plan. "The Due Process Clause applies to all `persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491 (citations omitted). "[T]he Constitution may well preclude granting `an administrative body the unreviewable authority to make determinations implicating fundamental rights.'" Id. at 692, 121 S.Ct. 2491 (quoting Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 450, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). I, therefore, take issue with the authority of a Cuban Review Panel to render judicial determinations concerning excludable aliens' length of detention.

In Armentero's case, a Cuban Review Panel reviewed his case seven times in the span of nearly a decade, and six of those times the Panel denied him parole and recommended his continued detention. To this date, notwithstanding the lower federal courts' review of his current habeas petition, no judicial officer has reviewed whether Armentero should remain detained. A single ad hoc administrative panel-indeed, a single administrator alone-should not assume the distinctly judicial role of determining matters of fundamental constitutional importance. The Internal Revenue Service does not decide how long to detain tax evaders; neither should a Cuban Review Panel decide how long to detain excludable aliens.

BERZON, Circuit Judge, dissenting:

I respectfully dissent from the majority's decision to dismiss this case on the basis of the "fugitive disentitlement" doctrine. Several considerations counsel against resort to such a sanction on the facts of this case. Instead, I would again reach the merits of the question decided by this panel in its initial decision—who is the proper respondent for habeas petitions filed by immigration detainees? See Armentero v. INS, 340 F.3d 1058 (9th Cir. 2003) (Armentero I), withdrawn, 382 F.3d 1153 (9th Cir.2004) (order).

As I suggest below, our original opinion, when clarified and considered in light of the government's litigation stance, is consistent with the Supreme Court's decision in Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). Padilla expressly reserved the question decided by this panel in Armentero I. See id. at 2718 n. 8. I am therefore convinced that, as in Armentero I, we should remand to the district court to allow Armentero to amend his habeas petition to name a proper respondent, who need not be the "Field Office Director."

As I read Padilla, it did not entirely abandon the Supreme Court's earlier admonition that "we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements." Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). In the special circumstances of immigration habeas petitions like Armentero's, the procedural rule for which the government argues would indeed "suffocate the writ," as I proceed to demonstrate after some important preliminaries.

Consequently, although two intervening legal developments have made this conclusion considerably less significant going forward than it was at the time we agreed to rehear this case,¹ I would essentially reaffirm our original holding in Armentero I. Because the majority instead dismisses this appeal on the basis of a discretionary equitable doctrine not applicable here, I respectfully dissent.

I. Background

As we summarized in Armentero I,

Luis Armentero, a native and citizen of Cuba, arrived at Key West, Florida as part of the Mariel Boatlift. He was paroled into the United States pursuant to INA § 212(d)(5)(A), 8 U.S.C. § 1182(d) (5)(A). During his first five years in the United States, Armentero amassed a record of arrests, convictions, and brief jail stints, mostly for petty offenses. Then, on June 24, 1985, Armentero was convicted of violating § 261.2 of the California Penal Code, Rape by Force, and sentenced to three years in prison. An Immigration Judge found Armentero excludable from the United States and ordered him deported. This order was not appealed and became final in November 1987.

The INS was apparently unable to deport Armentero. In the ensuing years, Armentero was released to a halfway house; detained once again by the INS after a new conviction; paroled again convicted of yet another crime; and detained once more by the INS.

On October 5, 2001, while detained at the INS processing center in San Pedro, California, Armentero filed a pro se habeas petition in the United States District Court for the Central District of California, claiming that he was being indefinitely detained in violation of the Due Process clause of the Fifth Amendment and that the conditions of his detention amounted to punishment imposed in violation of the Constitution. The INS later transferred Armentero from the San Pedro facility to the federal penitentiary at Terre Haute, Indiana, for continued detention.

The district court denied Armentero's petition without prejudice on January 25, 2002. Armentero then appealed to this court.

Armentero I, 340 F.3d at 1060 (footnote omitted). In Armentero I, we held that, by naming the INS² as the respondent to his habeas petition, Armentero had failed to name a proper respondent. The proper respondents, we held, are the Attorney General and the Secretary of Homeland Security. Rejecting the INS's argument based on the so-called "immediate custodian" rule, we concluded:

Neither Supreme Court law nor our own precedent requires that an immigration detainee name her immediate physical custodian as respondent in a habeas action. Accounting for the considerable practical problems with adhering to an immediate custodian rule in the immigration context and the changes resulting from the recent overhaul of the agencies enforcing our nation's immigration laws, we hold that the appropriate respondents to immigration detainees' petitions are the DHS Secretary and the Attorney General. We therefore remand to the district court with...