Caballero v. U.S.
| Decision Date | 18 May 2001 |
| Docket Number | No. CIV A 00-2644.,CIV A 00-2644. |
| Citation | 145 F.Supp.2d 550 |
| Parties | Evelio Carvajal CABALLERO, Petitioner, v. UNITED STATES, et al., Respondents. |
| Court | New Jersey Supreme Court |
John M. Grogan (argued), Sandals & Langer, L.L.P., Philadelphia, PA, Attorney for Petitioner.
Robert J. Cleary, United States Attorney, by Paul A. Blaine, Asst. U.S. Attorney, United States Attorney's Office, Camden, NJ, Attorney for Respondent United States of America.
Joshua E. Braunstein (argued), Office of INS Litigation-Civil Division, United States Department of Justice, Washington, DC, Attorney for Respondent INS.
Petitioner comes before this court seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. For the reasons that follow, this Court must deny the Petition.
Petitioner was born in Havana, Cuba on September 15, 1942. (Answer, Ex. 3.) His grandparents primarily raised him, and he married in 1970. (Id.) His wife gave birth to two children before they separated or divorced in 1979. (Id.) A year prior, in 1978, he began a seven year sentence in Cuba for anti-revolutionary activities. (Id.) Both of his children have emigrated to the United States. (Id.)
During Petitioner's incarceration in Cuba, in April 1980, six Cubans broke through the gates of the Peruvian Embassy in Havana, Cuba, seeking asylum. Yvette M. Mastin, Comment, Sentenced to Purgatory: The Indefinite Detention of Mariel Cubans, 2 Scholar 137, 142 (2000); Birgitta I. Sandberg, Note, Is the United States Government Justified in Indefinitely Detaining Cuban Exiles in Federal Prisons?, 10 Dick J. Int'l L. 383, 384 (1992). When Peru granted asylum to those six Cubans, the Cuban government responded by removing its guards from around the Peruvian Embassy and declaring the embassy open to all. Sandberg, supra, at 384. When 10,000 asylum-seekers then overwhelmed the Peruvian Embassy, Castro opened the Cuban port of Mariel to Cubans in the United States to come and get their relatives. Id.
In response, President Carter welcomed the Cubans with "open arms," anticipating an influx of approximately 20,000 Cubans. Id.; see also Mastin, supra, at 142-43. Approximately 125,000 Cubans eventually came to the United States at the time. Sandberg, supra, at 384; Mastin, supra, at 143. In the United States, the media attributed the influx of Cubans to Castro releasing prisoners and psychiatric hospital patients to the United States. See Mastin, supra, at 144. An INS official reported to the media that "85% of the Mariel Cubans were `convicts, robbers, murderers, homosexuals and prostitutes.'" Mastin, supra, 144 (). In reality, the INS eventually determined that less than 1% of the Mariel Cubans had serious criminal backgrounds. Mastin, supra, at 146.
Petitioner arrived in the United States on May 14, 1980 as part of this event, (Answer, Ex. 3), which is labeled the Mariel Boatlift. On July 29, 1980, Petitioner's cousin sponsored him to Passaic, New Jersey. (Answer, Ex. 3.) Shortly thereafter, Petitioner began involvement in criminal activity. Between May 1982 and February 1985, Petitioner was apparently indicted for marijuana possession, cocaine possession (three times), murder, aggravated assault (twice), kidnaping, and making threats. (Answer, Ex. 3.) Of those indictments, it appears that Petitioner was convicted only of aggravated assault (once) and cocaine possession (once). (Answer, Exs.3, 5.) In March 1985, the INS revoked Petitioner's parole, and during his detention he tested positive for marijuana. (Answer, Ex. 3.)
In May 1988, the INS released Petitioner to the sponsorship of his commonlaw wife, whom he met during his first year in the United States. (Answer, Ex. 3.) In 1989, Petitioner appears to have served three months in prison for assault, trespassing, and intimidation, (Answer, Ex. 3.), and received three years probation for possession of a controlled substance with intent to distribute, (Answer, Ex. 5.) In October 1991, Petitioner received a twelve-year sentence for using a knife in the course of stealing a loaf of bread. (Petition at App.)
In September 1996, the INS took Petitioner into custody and revoked his parole the same month. (Answer, Exs.1-2.) At that time, the Bureau of Prisons conducted a psychological evaluation and recommended that Petitioner should not be released, except to a secure, long-term halfway house with a well-supervised substance abuse program able to work with individuals having antisocial personality disorder with a chemical dependency. (Answer, Ex. 3.)
A Cuban Review Panel1 interviewed Petitioner on October 23, 1996 (Answer, Exs.4-5), March 4, 1998 (Answer, Exs.7-10), and May 3, 1999 (Answer, Exs.14-19). Each time, the Panel denied parole to Petitioner. (Answer, Exs.6, 11, 20.) On April 25, 2000, the Cuban Review Panel again interviewed Petitioner. (Answer, Exs.21-23.) Apparently satisfied that Petitioner was not then violent and was likely to remain non-violent, the Panel recommended Petitioner's release to a halfway house near his daughter's residence to obtain employment and reunite with his family. (Answer, Ex. 22.) A mental health evaluation conducted on May 3, 2000 recommended "placement in a residential halfway house program and substance abuse treatment ... to reduce risk of relapse and return to criminal lifestyle." (Answer, Ex. 23.) A notice of releasability was issued on July 24, 2000.2 (Answer, Ex. 24.)
Petitioner filed the instant application seeking an order for release from custody on June 21, 2000. Petitioner contends that the INS is denying him due process of law. He seeks either (1) an evidentiary hearing to determine whether he should have been released on parole, considering all of petitioner's circumstances; (2) an order of release under supervision; or (3) a hearing on his application for release by an Immigration Judge. By Order dated December 8, 2000, this Court determined that the regulatory parole scheme developed for Mariel Cubans, see Parole Determinations and Revocations Respecting Mariel Cubans, 8 C.F.R. § 212.12 (2001), appeared to satisfy the due process rights afforded to inadmissible aliens under the Third Circuit's decision in Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir.1999).
This Court became concerned, however, that Petitioner may have a right to equal protection under the Fifth Amendment and that the INS may have violated that right by enacting different parole schemes for Mariel Cubans from those afforded to all other inadmissible aliens under the Interim Procedures discussed by the Third Circuit in Ngo, and subsequently enacted in substantially the same form as federal regulations. See Continued Detention of Inadmissible, Criminal, and Other Aliens Beyond the Removal Period, 8 C.F.R. § 241.4 (2001). Because of the complex nature of the constitutional question, John Grogan, Esq., was appointed counsel for Petitioner, and the parties were directed to filed briefs on the equal protection issue. Oral argument was heard on April 2, 2001.
This decision becomes more clear when considered in the context of the rights of inadmissible aliens as defined in caselaw.
Federal courts distinguish between deportable aliens and inadmissible aliens.3 Deportable aliens were successful in obtaining entry to the United States, legally or illegally; while an inadmissible alien seeks admission into the United States and, even if physically present, is considered detained at the border. See Chi Thon Ngo v. INS, 192 F.3d 390, 394-95 & n. 4 (3d Cir.1999); Marroquin-Manriquez v. INS, 699 F.2d 129, 134 (3d Cir.1983). Deportable aliens have rights not available to inadmissible aliens because they have achieved entry into the United States. See Landon v. Plasencia, 459 U.S. 21, 26-29, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982); Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958).
In the midst of the McCarthy Era of the early 1950s, a majority of the Supreme Court held than an inadmissible alien has no right to a hearing on his exclusion. See Shaughnessy v. United States ex rel. Mezei 345 U.S. 206, 215, 216, 73 S.Ct. 625, 97 L.Ed. 956 (1953). Immigration officials detained Mezei upon a re-entry into the United States, and he could not affect entry into any other country. See id. at 208-09, 73 S.Ct. 625. After twenty-one months in detention, a federal district court held that Mezei's continued detention without due process of law was illegal. See id. at 207-08, 73 S.Ct. 625.
The Supreme Court reversed. Even though the United States was restricting Mezei's movements, the Court found that it must treat him as though he had not landed on American soil. See id. at 213, 73 S.Ct. 625. Because he was not on American soil, he did not have a right to a hearing on his exclusion. See id. at 213-15, 73 S.Ct. 625.
Mezei's continued, and possibly indefinite, detention appeared not to disturb the Court.
[W]e do not think that [Mezei]'s continued exclusion deprives him of any statutory or constitutional right.... That exclusion by the United States plus other nations['] inhospitality results in present hardship cannot be ignored.... Whatever our individual estimate of [Congress'] policy and the fears on which it rests, respondent's right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate.
Id. at 215-16, 73 S.Ct. 625. Indeed, Mezei apparently remained detained until the executive branch released him "as a matter of grace." See Trop v. Dulles, 356 U.S. 86, 102 n. 36, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (citation omitted).
Four justices dissented from the Mezei decision. Justice Black, joined by Justice Douglas, stated that indefinitely depriving any...
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