In re Cuban, 3:MI-90-398.

• Decision Date: 07 May 1993
• Docket Number: No. 3:MI-90-398.,3:MI-90-398.
• Citation: 822 F. Supp. 192
• Parties: In re Mariel CUBAN Habeas Corpus Petitions.
• Court: U.S. District Court — Middle District of Pennsylvania

822 F. Supp. 192

In re Mariel CUBAN Habeas Corpus Petitions.

No. 3:MI-90-398.

United States District Court, M.D. Pennsylvania.

May 7, 1993.

Before CALDWELL, KOSIK and McCLURE, JJ.

MEMORANDUM AND ORDER

Procedural Background

This action initiated on December 18, 1990, when thirty-seven (37) individual habeas corpus petitions filed by Mariel Cubans detained at the United States Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg) were consolidated into a class action. The consolidation order also directed that the case be assigned to a three judge panel and counsel be appointed to represent the interests of the petitioners.

Following the initial consolidation, additional habeas petitions filed by USP-Lewisburg Mariel detainees were likewise joined. The claims of twenty-two (22) class members were subsequently dismissed by the court for a variety of reasons, including death, repatriation to Cuba, and their parole from INS custody of the Immigration and Naturalization Service (hereinafter INS).

Still pending before the court are the claims of nineteen (19)¹ petitioners. By order dated April 23, 1992 the court granted the respondent's unopposed motion that the class be decertified and proceed as a consolidated individual non-class action. Although many of the remaining petitioners are no longer incarcerated within the confines of the Middle District of Pennsylvania², this court still retains jurisdiction over their claims. Goodman v. Keohane, 663 F.2d 1044, 1047 (11th Cir.1981).

A review of both petitioners' initial form petition and the supplemental brief filed by their appointed counsel provides that the petitioners are asserting that their:

1. Present incarceration is punishment in violation of the Fifth and Sixth Amendments.

2. Immigration parole was revoked and their reparole was denied without due process of law.

3. Inordinate and prolonged detention is not authorized by Congress.

4. Ongoing detention violates controlling international law.

Factual Background

During the Spring of 1980, approximately one hundred and twenty-five thousand (125,000) Cuban citizens entered this country from Mariel, Cuba in what is now commonly referred to as the "Freedom Flotilla." These so called "Mariel Cubans" sought entry into the country as refugees and as such were placed into the custody of the INS pending a decision on their refugee status.

In the instant case, petitioners were all granted administrative parole following their arrival in this country. Their parole allowed them to remain in the United States pending a determination by the INS as to whether they should be excluded. However, all of the instant petitioners subsequently committed various, individual crimes while on parole and were thereafter incarcerated in state and federal correctional facilities throughout the country. Following service of their respective prison terms, petitioners were placed in administrative detention by the INS at federal correctional facilities.

As a result of negotiations between the United States and Cuba, an agreement was reached in 1984 whereby Cuba, in an effort to normalize immigration relations between the two countries, agreed to accept 2,746 Mariel Cubans who had been identified as having serious criminal backgrounds or suffering from mental illness. Cuba unilaterally suspended the plan in 1985. However, the repatriation agreement was reinstated in November, 1987. Following reinstatement of the agreement, a total of 942 Mariel Cubans have been repatriated. In the instant case it is unknown whether any of the remaining petitioners are on the repatriation list. However respondent notes that this court may assume that none of the remaining petitioners are named in the repatriation agreement.³

The instant petitioners have all been classified as excludable aliens. Under applicable immigration laws, an excludable alien may be paroled into this country but can still be subjected to subsequent exclusion proceedings.

Federal regulations entitled the Cuban Review Plan were enacted in 1987 regarding parole determinations and revocations of Mariel Cuban detainees. See 8 C.F.R. Section 212.12 (1992). These regulations are applicable to each of the instant petitioners, as well as any Mariel Cuban presently being detained by the INS. The plan provides that in order for a Mariel Cuban to be granted parole, a review panel must conclude that the detainee is: (1) presently a non-violent person; (2) likely to remain non-violent; (3) not likely to pose a threat to the community following his release; and, (4) not likely to violate the conditions of his parole. Id. at (D)(2).

Additional factors to be considered include a detainees mental health condition; past history of criminal behavior; institutional progress; disciplinary infractions while in custody; likelihood to abscond, ties to the United States; and any other probative information. Id. at (D)(3). If a detainee is not recommended for parole he will be provided with a personal interview before the panel. During this interview, a detainee may be accompanied by a person of his choosing and can submit information favorable to his case either orally or in writing.

Furthermore, the regulations mandate that any Mariel Cuban detainee subject to continued detention would receive a yearly review for the purpose of reconsidering his eligibility for immigration parole. Id. at (G)(2).

DISCUSSION

This Circuit in Moret v. Karn, 746 F.2d 989 (3d Cir.1984), recognized that the Attorney General has broad discretion to grant or deny parole. The Third Circuit also indicated that the INS, in terminating an excludable alien's parole, had to abide by any procedural protections mandated by its own regulations or directives. Furthermore, in reviewing parole related decisions of the INS, the standard of review for a district court was limited to whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Id. at 991.

In support of their claims, petitioners rely primarily on Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981). The court initially notes that as a decision of the Tenth Circuit, Wilkinson is not binding in this court. See 28 U.S.C. § 41. Furthermore, the Wilkinson decision was rendered prior to the implementation of the Cuban Review Plan and it involved a petitioner who had never been convicted of a crime in this country. The court will address the specific claims raised by the petitioners seriatim below.

Fifth Amendment

The form habeas petition initially submitted by each petitioner asserts that their prolonged detention violates their due process rights under the Fifth Amendment.⁴ In their supplemental supporting brief petitioners note that many of them have been incarcerated in excess of four years despite the fact that they are not presently serving a criminal sentence. They additionally argue that such prolonged civil detention in the absence of a criminal trial and sentence is improper. Their supplemental brief adds that their continued incarceration cannot be justified because: (1) it does not appear their deportation can be accomplished, or (2) betterment/protection of the public is not a plausible basis for their prolonged confinement.

Petitioners additionally assert that their confinement constitutes punishment under the Fifth Amendment and is therefore unconstitutional. This court initially notes that petitioners' claim that their confinement constitutes "punishment" is without merit. Federal courts have routinely recognized that detention pending deportation is not punitive in nature but administrative. Pena v. Thornburgh, 770 F.Supp. 1153, 1159 (E.D.Tex.1991) (citing Carlson v. Landon, 342 U.S. 524, 537-38, 72 S.Ct. 525, 532-33, 96 L.Ed. 547 (1952)); Alvarez-Mendez v. Stock, 941 F.2d 956 (9th Cir.1991), cert. denied, ___ U.S. ___, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992) (detention not punitive in nature).

An alien seeking admission into the United States is afforded only those rights which Congress agrees 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 process rights if it continues to detain him pending deportation even when the government offers no reason for the 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 detained." Sanchez v. Kindt, 752 F.Supp. 1419, 1424 (S.D.Ind.1990). The court in Alvarez-Mendez noted that when "immediate removal from the country is not possible, detention is not an excessive means" of accomplishing protection of society from a potentially dangerous alien. Supra. 941 F.2d at 962. In Sanchez, the district court concluded that there "is no viable basis in the Due Process Clause of the Fifth Amendment" which provides a Mariel Cuban detainee the right to freedom from detention. Id. 752 F.Supp. at 1428.

This court agrees with the conclusions reached in both Sanchez and Ramos, as well as other federal courts which have reached similar conclusions. See also Barrios v. Thornburgh, 754 F.Supp. 1536 (W.D.Okl. 1990); Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.1986), cert. denied, 479 U.S. 889, 107 S.Ct. 289, 93 L.Ed.2d 263 (1986). In conclusion, a Mariel Cuban is not entitled to habeas relief from administrative detention on the basis that said detention violates the Due Process Clause of the Fifth Amendment.

Sixth Amendment

Petitioners next argue that their ongoing detention infringes their rights under the Sixth Amendment. It has been recognized that excludable aliens are entitled to some protections under the Sixth Amendment. However, these protections are only available to those excludable aliens who...