Gonzalo v. Thornburgh
| Decision Date | 12 April 1991 |
| Docket Number | 90-1331,90-1647 and 90-1697.,90-1247,90-1317,90-1323,90-1254,90-1633,90-1423,90-1626,90-1421,90-1471,Civ. A. No. 90-1245,90-1248,90-1362,90-1368,90-1467,90-1414,90-1280,90-1350,90-1256 |
| Citation | 761 F. Supp. 1264 |
| Parties | Dumergel Sago GONZALO, Carolos Alberto Acosta Friol, Miguel Leon Cimarro, Marcia E. Gomez, Lopez Baldomero, Eduardo Arzola Lopez, Pedro Venereo, Luis Moya Garcia, Rigoberto R. Hernandez, Orestes Ibargollin, Pedro Lopez, Manuel Perez, Daniel Sanchez, Jose Martinez, Domingo Arango Marquez, Pedro V. Geraldo, Ramon Garcia, Oscar Fragoso, Pedro Estable, Arturo Garcia Potter, Sergio Estincer Soto, v. Richard THORNBURGH, in his Official Capacity as Attorney General of the United States. |
| Court | U.S. District Court — Western District of Louisiana |
Carl E. Perry, Asst. U.S. Atty., Lafayette, La., for respondent.
RULING
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 subject to INS detention.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. Thus, INS has continued to detain petitioner pending either Cuba's agreement to accept petitioner, or an administrative decision to parole petitioner into the country. 8 U.S.C. § 1182(d)(5); 8 C.F.R. §§ 212.12; 212.13. INS has granted parole status to the petitioner, enabling him to live outside of a governmental detention facility, albeit with restrictive conditions upon his movements and activities.2 To date, INS has not released petitioner from its detention facilities.3
Petitioner now brings this application for writ of habeas corpus. Because of the form nature of his pleadings, it is difficult to discern the precise ground which he claims justifies outright release, or entitlement to habeas review. 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 his assertion that the INS is violating his liberty interests.
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 into the United States does not possess fifth amendment rights because the power to admit aliens into the country is a sovereign prerogative. Landon v. Plascencia, 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) (). 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, 582 (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) (); United States v. Henry, 604 F.2d 908 (5th Cir.1979) (). 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, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900). Customary international law is analogous to common law, and is comprised of internationally recognized principles of law. Assuming without deciding that petitioner's detention violates customary international law, he is nevertheless not entitled to release. International law is applicable to a case only when domestic law does not speak to the outcome and is not controlling when there has been a conflicting legislative, executive, or judicial act. Paquete Habana, 175 U.S. at 700, 20 S.Ct. at 299; Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C.Cir.1988); United States v. Merkt, 794 F.2d 950, 954 (5th Cir.1986). Here, Congress has established a scheme for dealing with the Mariel Cubans, the executive branch has promulgated rules implementing this legislation, and the courts have held that an alien may not challenge his continued detention without a hearing. Thus, the Mariel Cubans may not challenge their detention on the basis of international law. Garcia-Mir v. Meese, 788 F.2d 1446, 1454-55 (11th Cir. 1986).
Petitioner also asserts that the INS has no authority under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (INA), to detain indefinitely an excludable alien. The act provides that upon an alien's arrival at the United States border, an immigration official may temporarily detain the alien for further inquiry if he "may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land...." 8 U.S.C. § 1225(b). The case is then referred to a special inquiry officer for an evidentiary hearing. 8 U.S.C. §§ 1225(b), 1226(a). Such detained aliens are classified in two ways. First, if detained, and if either the examining immigration officer or the special inquiry officer finds the alien to be excludable under 8 U.S.C. § 1182(a)(27), (28), or (29) (generally, aliens whose presence would endanger the welfare, safety, or security of the United States), the alien "shall be temporarily excluded." 8 U.S.C. § 1225(c). The Attorney General is then notified.4 If he is satisfied that the alien is excludable under the above-cited sections, and if the information upon which the Attorney General bases his finding is confidential, the alien may be summarily excluded. Otherwise, a detained alien is entitled to an exclusion hearing before a special inquiry officer in which the alien may introduce evidence and examine witnesses. From an adverse decision of the special inquiry officer, the alien may appeal to the Attorney General. 8 U.S.C. § 1226(b). The only means to challenge the Attorney General's adverse decision to exclude is by application for writ of habeas corpus in the district court. 8 U.S.C. § 1105a.
Any alien that is excluded "shall be immediately deported,"5 unless the Attorney General finds that in an individual case immediate physical transfer is not practicable or proper. 8 U.S.C. § 1227(a). As noted earlier, problems arise when there is literally no place to send the alien. Cuba has refused to admit petitioner. In 1984, Cuba agreed to accept the return of approximately 2,400 detainees. Lamentably, Cuba suspended its execution of the agreement shortly after the program began. The Government asserts that it is handling the problem of indefinite detention of the Cubans in two ways. First, it is continuing to prevail upon the Government of Cuba to accept return of all the detainees. Second, it is actively reviewing each Cuban for parole under a program instituted after disturbances at the Federal Detention Centers in Atlanta, Georgia and Oakdale, Louisiana. See 8 C.F.R. §§ 212.12, 212,13.6
As petitioner correctly notes, the INA does not explicitly permit the INS to detain indefinitely an excludable alien, although it does permit temporary detention as previously discussed. The prevailing jurisprudence concerning the Mariel Cubans' situation is that the INA does not authorize the government to detain indefinitely an excludable alien in lieu of deportation unless it shows that the detention remains temporary. Amanullah v. Nelson, 811 F.2d 1, 9 (1st Cir.1987); Fernandez-Roque I, 734 F.2d at 582; Palma v. Verdeyen, 676 F.2d 100, 104-05 (4th Cir.1982); Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1389-90 (10th Cir.1981); Tartabull v. Thornburgh, 755 F.Supp. 145, 147 (E.D.La. 1990); Gallego v. Immigration and Naturalization Service, 663 F.Supp. 517, 527 (W.D.Wis.1987). This requirement stems from: (1) the statutory provision that the Attorney General may in his...
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