Cruz-Elias v. US Attorney General

• Decision Date: 06 December 1994
• Docket Number: Civ. A. No. 92-498-A.
• Citation: 870 F. Supp. 692
• Parties: Narciso CRUZ-ELIAS, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

870 F. Supp. 692

Narciso CRUZ-ELIAS, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent.

Civ. A. No. 92-498-A.

United States District Court, E.D. Virginia, Alexandria Division.

December 6, 1994.

Narciso Cruz-Elias, pro se.

Helen Fahey, U.S. Atty., Rebeca O. Hidalgo, Asst. U.S. Atty., Alexandria, VA, for respondent.

MEMORANDUM OPINION

ELLIS, District Judge.

May the Attorney General indefinitely detain an excludable alien, who committed serious crimes within the United States while on immigration parole, but who has served his criminal sentence for those crimes, when there is no other country willing to accept him, and the Attorney General determines that he is unsuited for further immigration parole? This is the question presented by this petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Because petitioner's detention does not violate constitutional, statutory, or international law, the petition must be denied.

I

Petitioner is one of approximately 125,000 Mariel Cubans, that is, Cuban citizens who arrived in the United States during the 1980 boatlift originating from the port of Mariel, Cuba. The United States declined to grant admission to many Mariel Cubans, but Cuba refused to accept their return. Most, including petitioner, were soon released into the United States on immigration parole. 8 U.S.C. § 1182(d)(5).¹ But, despite their physical entry into the country, they remained excludable aliens, regarded by legal fiction as detained at the border.²

The United States has actively sought to return some Mariel Cubans to Cuba, particularly those who returned to INS custody after committing crimes while on immigration parole within the United States. In December 1984, the United States and Cuba reached an agreement for the return of 2,746 named Mariel Cubans then in INS custody. In May 1985, Cuba suspended the agreement, after accepting return of only 201 of the listed persons. In November 1987, Cuba and the United States agreed to reimplement the 1984 agreement, the announcement of which provoked riots by Mariel Cubans incarcerated at the INS detention center at Oakdale, Louisiana, and the federal prison at Atlanta, Georgia. In the riots' wake, the United States Attorney General established new regulations on parole decisions for the Mariel Cubans. See 8 C.F.R. §§ 212.12, 212.13. This scheme for parole determinations and revocations remains in effect. While the United States is presently returning the 2,746 named Mariel Cubans under the 1984 agreement, it has reached no agreement with Cuba as to the return of other excluded Mariel Cubans.

Because petitioner was not in INS custody in 1984, he is not among those covered by the 1984 agreement. Beginning in 1985, petitioner was convicted of a number of crimes, including driving while intoxicated and assaulting his wife. Even so, he remained free on immigration parole. Then, in March 1988, a Pennsylvania court convicted him of forcefully raping a fourteen year old girl, and sentenced him to incarceration for four to ten years. In November 1990, the United States revoked petitioner's immigration parole, and Pennsylvania released him to an INS detainer. In June 1991, September 1992, and again in January 1994, petitioner was denied re-parole after consideration pursuant to the special parole review programs established for the Mariel Cubans. See 8 C.F.R. § 212.12.

Petitioner is presently in civil immigration detention at the federal prison at Petersburg, Virginia. He seeks habeas relief, alleging that indefinite detention of an excludable alien (i) is not authorized by statute, (ii) violates the Fifth and Sixth Amendments, and (iii) violates customary international law. The government contends that petitioner eventually might be repatriated if further negotiations with Cuba are successful, but that in any event, petitioner's detention is lawful even if repatriation is never possible. Petitioner's claims, though not insubstantial, are ultimately unpersuasive.

II

First, it is settled in this circuit that the Attorney General has implicit statutory authority to detain indefinitely an excludable alien. In 1982, the Fourth Circuit Court of Appeals held that, although no statute expressly authorizes such detention, Congress implicitly authorized it "when the alien cannot be returned and the Attorney General finds him unsuitable for parole." See Palma v. Verdeyen, 676 F.2d 100, 104 (4th Cir.1982). For the purposes of its decision, the Palma court specifically assumed that the United States was not negotiating with Cuba, and that repatriations would not soon take place. 676 F.2d at 102.

Since the Palma decision, Congress has not enacted a statute that clearly authorizes or forbids indefinite detention of excludable aliens. The statute that most nearly addresses the question, § 504(b) of the Immigration Act of 1990, provides that the Attorney General shall take custody of any alien convicted of an aggravated felony after his release from state or federal imprisonment, and shall not release him unless "review concludes that the alien will not pose a danger to the safety of other persons or property." 8 U.S.C. § 1226(e).³ Several courts have persuasively established that this provision makes clear the Attorney General's authority to detain indefinitely an excludable alien who has committed an aggravated felony.⁴ Petitioner's rape conviction appears to constitute an aggravated felony within the meaning of the immigration statutes.⁵ In any event, whether or not 8 U.S.C. § 1226(e) applies to petitioner, it is clearly established by Palma in this circuit that the Attorney General has at least implicit authority to detain petitioner indefinitely.

III

Petitioner's second argument, that indefinite detention of excludable aliens violates the Constitution, presents a more difficult question. While the Supreme Court has clearly stated that an excludable alien has no constitutional right to receive admission or immigration parole,⁶ it is less clear that the Constitution has no application to an excludable alien's detention. The Supreme Court's most complete statement on such detention came in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). Mezei was a resident alien in the United States for twenty five years, but journeyed to Eastern Europe in 1948. Upon returning to New York, Mezei, having travelled behind the Iron Curtain, was detained by immigration authorities. For undisclosed security reasons, the Attorney General, without a hearing, ordered Mezei's permanent exclusion. No other country would accept Mezei, and after nearly two years of detention on Ellis Island, he sought habeas relief. The Supreme Court held that Mezei's exclusion and detention did not violate federal statutes or the Constitution. Id. at 215, 73 S.Ct. at 630-31.

It is unclear whether the Mezei Court felt that the Constitution, though applicable, was not violated in the circumstances of the case, or whether the Court instead meant to hold that excludable aliens are outside the Constitution's mantle, possessing no constitutional rights with respect to their detention.⁷ The latter view, though it presents substantial practical and conceptual problems,⁸ has gained general acceptance in the courts.⁹ Thus, under this view, the Constitution does not preclude the United States from imprisoning an excludable alien for a century, even though he has never committed a crime, if no other country will accept him.¹⁰

The majority of the Ninth Circuit panel challenged the consensus view recently in Barrera-Echavarria v. Rison, 21 F.3d 314, rehearing en banc granted, 35 F.3d 436 (9th Cir.1994).¹¹ The Barrera court held that, at some point, detention of an excludable alien becomes excessive in relation to the regulatory goal of excluding unwanted aliens, and constitutes punishment to which the Due Process clause is applicable. Id. at 316-17; see Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (excludable alien may not be punished prior to repatriation, by year of hard labor, without criminal trial and conviction).¹² The court declined to draw a precise line distinguishing attempted exclusion from imprisonment, but found that, after eight years, Barrera-Echavarria's detention had crossed that line. Id. at 317.

While the Barrera court understandably rebels against the idea that excludable aliens inhabit a void beyond the Constitution's reach, its approach is flawed for two reasons. First, the Barrera approach rests far more on the concept of "punishment" than it will bear. The passage of time alone does not convert preventive detention of aliens to punishment. The Supreme Court, in distinguishing punishment from detention incidental to some other regulatory goal, has stated that the question is one of government intent, and principally turns on the rationality of the government's non-punitive purposes and the reasonableness of the detention in relation to those purposes. See United States v. Salerno, 481 U.S. 739, 747-48, 107 S.Ct. 2095, 2101-02, 95 L.Ed.2d 697 (1987) (pretrial detention under Bail Reform Act); Schall v. Martin, 467 U.S. 253, 268-69, 104 S.Ct. 2403, 2412, 81 L.Ed.2d 207 (1984) (pretrial detention of accused juvenile delinquents). Here, the primary reason for the detention is non-punitive, namely to prevent excludable aliens who have already committed crimes within this country from inflicting further harm. In other words, detention in these circumstances serves the purpose of protecting society from the risk of harm posed by certain excludable aliens. Given this, and given that the United States has no alternative to confining or releasing the alien, the detention does not become punishment solely by virtue of its duration.¹³

Second, the Barrera court's analysis is flawed because it gives no principle by which it can be determined when preventive detention becomes punishment, nor does it recognize...