Fernandez v. Wilkinson

• Decision Date: 31 December 1980
• Docket Number: No. 80-3183.,80-3183.
• Citation: 505 F. Supp. 787
• Parties: Pedro Rodriguez FERNANDEZ, Petitioner, v. George C. WILKINSON, Respondent.
• Court: U.S. District Court — District of Kansas

505 F. Supp. 787

Pedro Rodriguez FERNANDEZ, Petitioner, v. George C. WILKINSON, Respondent.

No. 80-3183.

United States District Court, D. Kansas.

December 31, 1980.

Henri J. Watson, Dennis D. Goodden, Kansas City, Mo., Timothy J. Carmody, Olathe, Kan., for petitioner.

William E. Metcalf, Pittsburg, Kan., Roger L. McCollister, Topeka, Kan., for amicus curiae Kansas Legal Services, Inc.

Robert S. Streepy, Asst. U. S. Atty., Topeka, Kan., for respondent.

MEMORANDUM AND ORDER

ROGERS, District Judge.

Pedro Rodriguez, currently detained at the United States Penitentiary, Leavenworth, Kansas, having paid the necessary fee, has filed with the Clerk of the Court, this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. A rule to show cause issued, respondent has filed an answer and return, and petitioner has filed his traverse. Kansas Legal Services, Inc., submitted an Amicus Curiae brief in behalf of petitioner. An evidentiary hearing was conducted and oral argument was heard by the Court from counsel for both parties and the Amicus attorney. Having heard the evidence, examined the pleadings and considered all legal arguments and authorities offered, the Court makes the following factual and legal findings.

The material facts are found by the Court to be as follows:

1. Petitioner is a native and a citizen of Cuba who was incarcerated in a Cuban prison at the time he was given the opportunity to come to the United States.

2. He was transported to this country by boat along with approximately 130,000 Cuban nationals who arrived at Key West, Florida, on or about June 2, 1980, seeking admission to this country.

3. Completion of inspection of petitioner was deferred, and petitioner was temporarily removed into the United States in accordance with 8 U.S.C. § 1223.

4. During the deferred primary interview on June 14, 1980, petitioner admitted in a sworn statement that he had been arrested and convicted of crimes in Cuba and that he had been imprisoned there prior to his arrival. The crimes and circumstances of those crimes admitted to were: theft of a suitcase in 1959 for which he was sentenced to and served two years in the Santa Clara Prison; theft of a suitcase in 1964 for which he was sentenced to eight years to serve in Francequita Prison, three years of which he served before he escaped; attempted burglary in 1973 for which he was sentenced to four years in Francequita Prison. A three-year sentence was attached to the latter term as a result of the escape. Petitioner claims that the theft convictions were not of a serious nature because conditions in Cuba force the citizens to steal, and that he did not commit the alleged, attempted burglary. Petitioner testified before this Court that he was convicted by military tribunals. He further stated that he intended to remain in the United States indefinitely and was not in possession of a valid immigration visa.

5. The examining immigration officer determined that petitioner was not "clearly entitled" to land, having admitted conviction of a crime involving moral turpitude, 8 U.S.C. §§ 1225(b), 1182(a)(9), and recommended that he be detained pending an exclusion hearing. This recommendation was concurred in by a panel consisting of three supervisory immigration officials and an agency attorney and approved by the Central Office of the Immigration and Naturalization Service hereinafter referred to as INS.

6. Petitioner was temporarily removed to a processing camp in Fort McCoy, Wisconsin and, thereafter, on June 16, 1980, was given notice that he was believed to be excludable and would be detained pending a hearing, 8 C.F.R. 235.6 (1980).

7. Petitioner was transferred to the United States Penitentiary, Leavenworth, Kansas, on June 16, 1980.

8. His request for political asylum, which was submitted on June 14, 1980, was denied by the INS District Director at Kansas City, Missouri, on July 14, 1980. This denial is not challenged here.

9. During exclusion proceedings, commencing July 21, 1980, an immigration judge determined that petitioner was excludable from the United States under 8 U.S.C. § 1182(a)(9) in that he admitted having been convicted of a crime involving moral turpitude, and under § 1182(a)(20) in that he was an immigrant not in possession of proper documents. The judge reconsidered and denied petitioner's application for asylum, determined that petitioner should be excluded from entry, and entered an order of deportation. The petitioner waived his statutory right to appeal this decision.

10. The United States Penitentiary at Leavenworth is classified by the Bureau of Prisons as a maximum security institution. Petitioner has been confined in this prison for over half a year. He and approximately 230 other Cuban refugees are presently detained in a dormitory area supposedly separate from the general population of prison inmates, and are designated as on "holdover status." Petitioner testified that conditions in their detention area are more restrictive and privileges are fewer than for general population inmates at the prison.

11. The INS and the Department of State are attempting to make necessary arrangements to return petitioner and the other excluded aliens to Cuba; however, Cuba has either not responded or responded negatively to six diplomatic notes transmitted by the United States. Thus, the Government has been unable to expeditiously carry out the order of deportation and cannot even speculate as to a date of departure. No other country has been contacted about possibly accepting petitioner.

Attorneys for petitioner assert that his continued confinement at Leavenworth without bail and without having been charged with or convicted of a crime in this country is cruel and unusual punishment in contravention of the Eighth Amendment to the United States Constitution, and a violation of the Fifth Amendment Due Process Clause.

The claim that excludable aliens who have not gained entry are entitled to the protection afforded by either the Fifth or Eighth Amendments to the United States Constitution was explicitly rejected by this Court in Mir, et al., v. Wilkinson, 80-3139 (D.Kan., Sept. 2, 1980, unpublished) accord: Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950); Petition of Cahill, 447 F.2d 1343 (2d Cir. 1971). As has been observed by the United States Supreme Court, "... the Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores." Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5, 73 S.Ct. 472, 477 n. 5, 97 L.Ed. 576 (1953) citing Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103 (1945 concurring opinion). In Kwong Hai Chew v. Colding, the Court referred to "excludable aliens" as not within the protection of the Fifth Amendment, 344 U.S. at 600, 73 S.Ct. at 479. While we have never disagreed with petitioner's counsel that alien entrants to this country are extended certain rights under the United States Constitution, we have repeatedly emphasized the distinctiveness of the Cuban aliens detained pending exclusion. This case concerns a member of the relatively small subset of excludable and excluded aliens who, due to a time-honored legal fiction, are not recognized under the law as having entered our borders. Consequently, these nonentrants customarily have not enjoyed the panoply of rights guaranteed to citizens and alien entrants by our Constitution. This disparate treatment has been reaffirmed in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed. 683 (1972); Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); Pierre v. United States, 547 F.2d 1281 (5th Cir. 1977), vacated and remanded for consideration of mootness 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447. We have been presented with no persuasive authority which would permit us to disregard this well-established precedent.

As a corollary argument, petitioner urges that the potency of this legal fiction proportionally diminishes as the time which an excluded alien is detained in a federal institution within our territorial borders is extended. This argument is enticing, particularly in light of the legal anomaly that certain constitutional rights attach to aliens who manage to secretly and nefariously enter this country but not to aliens who seek entry unavailingly through lawful process. Dicta from one opinion of the Supreme Court may even be read to support this argument:

"The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights...."

Johnson v. Eisentrager, 339 U.S. 763, 770, 70 S.Ct. 936, 939, 94 L.Ed. 1255, (1950).

The Court further commented:

in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act.

Id. at 771, 70 S.Ct. at 940.

However, the substance of this argument has been rejected with regard to "parole" of aliens into this country or "temporary harborage ashore," See Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 1073, 2 L.Ed.2d 1246 (1957); Shaughnessy v. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953); 8 U.S.C. §§ 1182(a)(5), 1223(a), and the argument would seem to be stronger in the case of conditional release than detention. In short, this Court is unwilling to initiate the corrosion of this venerable legal doctrine by holding that the force of the fiction diminishes over time. Nor do we find such a holding requisite to a fair determination of the instant petition.

It has long been recognized that the power to expel or exclude aliens is a fundamental sovereign attribute...