Benitez v. Wallis

• Decision Date: 17 July 2003
• Docket Number: No. 02-14324.,02-14324.
• Citation: 337 F.3d 1289
• Parties: Daniel BENITEZ, Petitioner-Appellant, v. Robert WALLIS, Director INS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1289

337 F.3d 1289

Daniel BENITEZ, Petitioner-Appellant, v. Robert WALLIS, Director INS, Respondent-Appellee.

No. 02-14324.

United States Court of Appeals, Eleventh Circuit.

July 17, 2003.

John Stewart Mills (Court-Appointed), The Mills Firm, Jacksonville, FL, for Petitioner-Appellant.

Andrew C. MacLachlan, David V. Bernal, Office of Immigration Litigation, Civil Div., Emily Anne Radford, Papu Sandhu, Washington, DC, Michael Peter Finney and Pamela A. Moine, Asst. U.S. Attys., Pensacola, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before DUBINA, BLACK and HULL, Circuit Judges.

PER CURIAM:

Daniel Benitez, a native and citizen of Cuba, is an inadmissible alien who brought this § 2241 petition challenging his indefinite detention. The district court concluded that the INS's determinations that Benitez posed a danger to the community and was likely to engage in further violent behavior were facially legitimate and bona fide reasons to detain Benitez until removal to Cuba is possible. Consequently, the district court denied Benitez's § 2241 petition. After review and oral argument, we affirm.

I. BACKGROUND

In 1980, Daniel Benitez attempted entry into the United States from the port of Mariel, Cuba and, in effect, was stopped at the border.¹ Benitez then was paroled into the United States pursuant to § 212(d)(5) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1182(d)(5). Under § 1182(d)(5), the Attorney General may "in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States." 8 U.S.C. § 1182(d)(5).

In 1983, Benitez was convicted in Dade County, Florida, of second degree grand theft, see Fla. Stat. § 812.014, and was sentenced to three years' probation. Sometime thereafter, Benitez submitted an application to adjust his status to that of a lawful permanent resident. Under applicable immigration laws, Cuban refugees may apply for permanent resident status once they: (1) have been paroled into the United States; (2) have been physically present in the United States for one year; and (3) are eligible to receive an immigrant visa and are admissible to the United States for permanent residence. See 8 U.S.C. § 1255.²

Under the provisions of § 212(a) of the INA, certain classes of aliens are ineligible to receive an immigrant visa and are not admissible to the United States for permanent residence, and thus fail to meet the third condition outlined above. See 8 U.S.C. § 1182(a). One such class includes "[a]liens who have been convicted of a crime involving moral turpitude." 8 U.S.C. § 1182(a)(9) (1983). In 1985, Benitez's application for permanent resident status was denied because his criminal conviction for grand theft was a crime involving moral turpitude.³

In 1993, Benitez pled guilty to a multi-count criminal indictment in Florida state court. Specifically, Benitez pled guilty to armed burglary of a structure, armed burglary of a conveyance, armed robbery, unlawful possession of a firearm while engaged in a criminal offense, carrying a concealed firearm, aggravated battery, and unlawful possession, sale or delivery of a firearm with an altered or removed serial number. The state court sentenced Benitez to 20 years' imprisonment.

Based on his 1993 criminal convictions in Florida, the INS determined that Benitez's continued immigration parole was against the public interest. Pursuant to 8 C.F.R. § 212.5(d)(2), the INS revoked Benitez's immigration parole.⁴

Benitez then was ordered to appear before an immigration judge "to determine whether he should be excluded and deported." The notice informed Benitez that he had a right to counsel and to have a friend or relative present at the hearing. In 1994, Benitez was found excludable and deportable to Cuba because of his criminal convictions in Florida.⁵

On October 11, 2001, Benitez was released into INS custody. Benitez's status then was reviewed pursuant to the Cuban Review Plan to determine whether it was in the public interest to release him from INS custody.⁶ On November 6, 2001, Benitez appeared before the Cuban Review Panel.⁷

On January 11, 2002, Benitez filed this § 2241 petition challenging his indefinite detention by the INS. On January 17, 2002, Benitez received a Notice of Releaseability, in which a Cuban Review Panel concluded that Benitez was releaseable under the criteria established by the Cuban Review Plan at such time as the INS determined that a suitable sponsorship to a half-way house could be arranged.⁸ See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.12 (2002) (Parole determinations and revocations respecting Mariel Cubans). On March 10, 2003, Benitez's Notice of Releaseability was revoked because the INS concluded, without a hearing, that Benitez was involved in a planned jail escape. See 8 C.F.R. § 212.12(e).⁹ Therefore, Benitez's current detention results not only from his inadmissible alien status, but also from his violations of the conditions of his earlier immigration parole and the INS's determination that he has not refrained from criminal conduct while in custody.¹⁰

Benitez, proceeding pro se before the district court, asserted that his indefinite detention was unconstitutional in light of the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). According to the district court, the fact that Benitez was a "non-admitted parolee" made Zadvydas inapplicable because Zadvydas limited its holding to resident aliens. The district court concluded that the INS reasonably determined that Benitez was a danger to the community and was likely to engage in future criminal conduct. The district court further concluded that these determinations warranted Benitez's detention until he could be removed to Cuba. Finding no constitutional or statutory prohibition against Benitez's indefinite detention, the district court denied Benitez's § 2241 petition. Benitez timely appealed, and this Court, in its discretion, appointed counsel to represent Benitez on appeal.

II. DISCUSSION

Benitez does not challenge the fact that he (1) attempted to enter illegally the United States, (2) never formally has been admitted into this country, and (3) is properly subject to removal. Instead, Benitez filed his § 2241 petition arguing only that his indefinite detention is impermissible given the Supreme Court's decision in Zadvydas.¹¹ On appeal, Benitez asserts that his indefinite detention violates both the United States Constitution and federal law.¹²

The INS continues to detain Benitez pursuant to 8 U.S.C. § 1231(a)(6). Thus, we first discuss § 1231(a)(6) and how the Supreme Court interpreted § 1231(a)(6) in Zadvydas. We then analyze the legal issues presented in Benitez's appeal.

A. 8 U.S.C. § 1231(a)(6)

After an alien, such as Benitez, is ordered removed from the United States, the Attorney General must attempt to secure the alien's removal within 90 days. See 8 U.S.C. § 1231(a)(1) (the "removal period").¹³ "Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible...." 8 U.S.C. § 1231(a)(2). Congress, however, recognized that securing an alien's actual removal within 90 days is not always possible. Consequently, § 1231(a)(6) expressly authorizes the Attorney General to detain aliens beyond the 90-day removal period, as follows:

An alien ordered removed who is inadmissible under section 1182 of this title, removable [for violations of non-immigrant status or entry conditions, violations of criminal laws, or threatening national security] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).

8 U.S.C. § 1231(a)(6).

B. Zadvydas

In Zadvydas, the Supreme Court expressly addressed whether the government's authority under § 1231(a)(6) to detain two legal permanent residents beyond the 90-day removal period allowed the government to detain them indefinitely. The two legal permanent residents were ordered removed based on criminal convictions. The government, however, could not effectuate their removal because no country would accept them.

Specifically, Kestutis Zadvydas was a legal permanent resident alien of Lithuanian decent, who was born in a displaced persons camp in Germany in 1948. Zadvydas, 533 U.S. at 684, 121 S.Ct. 2491. Zadvydas had a long criminal history and also a long history of flight, both in his criminal proceedings and his deportation proceedings. Id. In 1992, Zadvydas was convicted of possession with intent to distribute cocaine and was sentenced to 16 years' imprisonment in state prison. Id. After only two years' imprisonment, he was released into INS custody and ordered deported to Germany. Id.

Germany, however, refused to accept Zadvydas because he was not a German citizen. Id. Next, the INS attempted to deport Zadvydas to Lithuania. Id. Lithuania refused to accept Zadvydas because he was not a citizen or a permanent resident of Lithuania. Id. The INS also tried unsuccessfully to deport Zadvydas to the Dominican Republic (Zadvydas's wife's country). Id.¹⁴

In Zadvydas, the Supreme Court also considered the case of Kim Ho Ma. Id. at 685, 121 S.Ct. 2491. Ma was born in Cambodia, but fled to the United States at an early age. Id. In 1995, Ma was convicted of manslaughter and was sentenced to 38 months' imprisonment. Id. After two years' imprisonment, he was released into INS custody and ordered removed. Id. The United States, however, has no repatriation treaty with Cambodia. Id. at 686, 121 S.Ct. 2491. Having no place to send Ma, the INS kept him in custody...