Fragedela v. Thornburgh

Decision Date12 April 1991
Docket Number90-1314,90-1472,90-1631,90-1327,90-1465,90-1638,90-1348,90-1459,90-1320,90-1364,90-1458,Civ. A. No. 90-1243,90-1253,90-1415,90-1349,90-1413,90-1478,90-1425,90-1345,90-1625,90-1321,90-1339,90-1,90-1417,90-1462,90-1424,90-1250
Citation761 F. Supp. 1252
PartiesJose Garcia FRAGEDELA, Lazaro Thomas Gonzalez, Julia Fernandez, Alfredo Rodriguez Estevez, Felix Barrios-Rodriguez, Eloy Periera, Jose Abad Nuñez, Luis Garcia, Jose M. Mateo Ruiz, Francisco Peña-Chaviano, Cristobal Turrent, Juan Dearmas Peña, Alejandro Madero Carvajal, Amando Pozo, Carlos Montero-Requeño, Jesus A. Rodriguez-Delgado, Roberto Fernandez, Rene Barbaro Betancourt, Lastre Humberto, Pablo Garcia, Joaquin Miranda, Rudesindo Enrique Izguierdo-Gonzalez, Pedro Dominguez, Essie Andres Perez, Oscar O. Hernandez, David Vento, Armando Del Rosario Vargas, Francisco R. Suarez, Roberto Viza-Navarro, Beraldo Diaz, v. Richard THORNBURGH, in his Official Capacity as Attorney General of the United States.
CourtU.S. District Court — Western District of Louisiana

Carl E. Perry, Asst. U.S. Atty., Lafayette, La., for respondent.


LITTLE, District Judge.

Each petitioner is a Cuban national who came to the United States in 1980 during the Mariel boatlift. The Immigration and Naturalization Service detained petitioner upon his arrival at the United States border and eventually decided to exclude him from admission into the country. 8 U.S.C. § 1226. De jure petitioner has never entered this country. De facto he is physically present and living in this country on parole.1 8 U.S.C. § 1101(a)(13).

Under the statutory scheme, whenever the INS renders a formal order of exclusion, it is to deport the alien to the country of his origin, or failing that, to the country of which he is a citizen, where he was born, where he has a residence, or any country willing to accept the alien. 8 U.S.C. § 1227. Unfortunately, INS has been unable to deport petitioner because Cuba has refused to accept him. INS has granted parole status to the petitioners, enabling them to live outside of a governmental detention facility, albeit with restrictive conditions upon his movements and activities.2 Petitioner, however, filed the petition for habeas relief while in the INS' actual physical custody.3

Petitioner now brings this application for writ of habeas corpus. It is difficult to discern the precise ground which he claims justifies habeas relief. Nevertheless, the court will attempt to parse through the relevant statutory and regulatory provisions as they apply to petitioner.

Generally, petitioner claims that INS possesses no authority to detain him. He asserts that INS may detain an excludable alien only for a reasonable time after it has rendered a final order of exclusion; thereafter, it must either deport the alien or release him outright. Each petitioner points to the existence of various Constitutional and statutory provisions in support of the assertion that the INS is violating his liberty interests.

As a threshold matter, the court must determine whether it possesses jurisdiction to grant habeas relief. The INS argues that because it has paroled petitioner into the country, the court no longer possesses jurisdiction to grant relief because the petitioner is not in the custody of the United States. The Fifth Circuit Court of Appeals considered a similar contention in United States ex rel. Marcello v. District Director of Immigration and Naturalization Service, 634 F.2d 964 (5th Cir.1981). In Marcello, the INS obtained an order of deportation against Marcello, a permanent resident alien. Marcello filed a petition for habeas corpus pursuant to 8 U.S.C. § 1105a(a)(9), which permits an alien held in custody pursuant to an order of deportation to apply to the district courts for a writ of habeas corpus. The government contended that the district court did not possess subject matter jurisdiction over the petition because Marcello was not "in custody." Instead, the government argued that because Marcello was subject only to travel restrictions and reporting requirements, he was not eligible to challenge his order of deportation by habeas.

The Court of Appeal noted that Congress provided in 8 U.S.C. § 1105a that review in the Courts of Appeal constitutes the sole means to review an order of deportation. Marcello, 634 F.2d at 967. The court also noted that by the same statute Congress permitted aliens "held in custody pursuant to an order of deportation" to bring habeas petitions in the district courts. Id. The court then examined the Supreme Court's expansion of the "in custody" concept for purposes of habeas jurisdiction generally, pointing out that habeas jurisdiction may exist notwithstanding the fact that the petitioner is on parole. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). Recognizing that most aliens subject to deportation are not held in physical custody, the court stated that if it held that aliens not in actual physical custody but nevertheless subject to deportation orders may bring habeas actions, such a holding would swallow the rule that appeal to the courts of appeals constitutes the only method to obtain review of a deportation order. After reviewing the legislative history, the court stated that Congress did not consider a possibility that the two provisions would conflict. The court further stated that if it applied the modern notions of "custody" to the case, the main procedural feature of the statute — eliminating resort to the district court in order to streamline proceedings — would be eliminated. Id. at 970.

The court nevertheless held that Marcello was "in custody." The court stated that when Marcello filed his petition, the government had not restrained his liberty in any way; the only possible restraint was the order of deportation, and as noted above, the court held that such an order did not confer the right to institute habeas proceedings. The district court would have been obligated to grant a motion to dismiss if the government had made one at that time. Custody had subsequently attached, however, under the more liberal standards the Supreme Court has recently articulated in such cases as Cunningham. Marcello was under "supervised parole," obligating him to report quarterly to the INS and notify it when he left the state for longer than 48 hours. This degree of restraint met the test for custody and conferred habeas jurisdiction on the district court. Id. at 971.

The situation here is analogous. Petitioner is under significant restraints imposed as a condition of his parole. He is certainly within the modern notion of custody. Contrary to the government's contention, petitioner is not challenging the INS' earlier refusal to parole him. Instead, he challenges the detention pending deportation to Cuba that arose as a result of his exclusion order. Thus, he is outside the judicial review framework set forth in 8 U.S.C. § 1105a and is entitled to challenge allegedly unlawful restraints against his liberty by the United States by habeas corpus. 28 U.S.C. § 2241. The familiar habeas jurisdictional requirements are that the petitioner must be held in custody by the United States authorities and this custody is contrary to the dictates of an Act of Congress or in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241. Clearly petitioner meets this jurisdictional test and thus the court will address the merits of the petition. Diaz v. Haig, 594 F.Supp. 1, 3 (D.Wyo. 1981).

Petitioner first alleges that his continued detention violates his fifth amendment right to due process of law and his sixth amendment privileges. An alien seeking admission to the United States does not possess fifth amendment rights because the power to admit aliens into the country is a sovereign prerogative. Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982). Thus, an alien seeking admission is afforded only those rights that Congress decides to extend. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950) ("Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned"). The government does not violate an excludable alien's due process rights if it continues to detain him pending his deportation, even where the government offers no reason for the alien's continued detention. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953); Fernandez-Roque v. Smith, 734 F.2d 576, 579 (11th Cir.1984) ("Fernandez-Roque I"). Furthermore, the sixth amendment is not implicated because immigration proceedings and detention do not constitute criminal proceedings or punishment and the rights afforded to those accused of committing crimes are not invoked. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984).

Petitioner cites cases supporting his contention that excludable aliens possess constitutional rights. Those holdings are distinguishable from the present matter because those cases addressed either an alien's constitutional interests in matters extraneous to immigration or the constitutional rights of aliens who have entered the country and therefore possess a modicum of constitutional protection. See e.g Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (children of aliens who have entered the country illegally entitled to public education under fourteenth amendment); United States v. Henry, 604 F.2d 908 (5th Cir.1979) (alien must be given Miranda warnings in criminal proceedings). As the court has noted, such cases are not applicable to petitioner.

Petitioner next argues that his detention violates customary international law. Of course, international law is part of the law of the United States. The Paquete Habana, 175 U.S. 677,...

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3 cases
  • Gaitan-Campanioni v. Thornburgh
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • 7 Noviembre 1991
    ...detention pending deportation, not indefinite detention. Amanullah v. Nelson, 811 F.2d 1, 9 (1st Cir.1987); Fragedela v. Thornburgh, 761 F.Supp. 1252, 1256 (W.D.La.1991). Still other courts have indicated that the Attorney General has implied authority to detain excludable aliens indefinite......
  • Waldei v. INS
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 12 Septiembre 1996
    ...Instead, he is considered legally detained at the border, "thus subject to exclusion rather than deportation." Fragedela v. Thornburgh, 761 F.Supp. 1252, 1253 n. 1 (W.D.La.1991) (citing Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir.1985), cert. denied, 475 U.S. 1022, 106 S.Ct. 1213, 89......
  • In re Cuban, 3:MI-90-398.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 7 Mayo 1993
    ...alien's continued detention." Ramos v. Thornburgh, 761 F.Supp. 1258 (W.D.La.1991) (citations omitted); see also Fragedela v. Thornburgh, 761 F.Supp. 1252, 1255 (W.D.Va.1991). Furthermore, "there is no explicit statutory limit to the length of time which such a person excludable alien can be......

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