Morales-Fernandez v. I.N.S.

• Decision Date: 09 August 2005
• Docket Number: No. 03-1111.,03-1111.
• Parties: Euclides MORALES-FERNANDEZ, Petitioner-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

418 F.3d 1116

Euclides MORALES-FERNANDEZ, Petitioner-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee.

No. 03-1111.

United States Court of Appeals, Tenth Circuit.

August 9, 2005.

Submitted on the Briefs: Euclides Morales-Fernandez, pro se.

John W. Suthers, United States Attorney, and Mark S. Pestal, Assistant United States Attorney, Denver, CO, for Respondent-Appellee.

Before SEYMOUR, MURPHY and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Euclides Morales-Fernandez appeals the district court's dismissal of his pro se 28 U.S.C. § 2241 petition for a writ of habeas corpus.¹ The Supreme Court recently held that 8 U.S.C. § 1231(a)(6) limits an inadmissible alien's post-removal detention to a reasonable time period and does not permit indefinite detention by the Immigration and Naturalization Service (INS).² Clark v. Martinez, ___ U.S. ___, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). Clark's holding dictates Mr. Morales-Fernandez is entitled to be released and paroled into the country. As a result, we reverse and remand this case for proceedings consistent with this opinion.

I

Mr. Morales-Fernandez is a native and citizen of Cuba who arrived in this country with 125,000 other Cuban nationals during the 1980 Mariel boatlift. Officials from the INS detained the Mariel Cubans at the border and later made a decision to exclude them from the United States. The United States has been unable to return the Mariel Cubans to Cuba, however, because Cuba has thus far refused to accept them. No other country has expressed a willingness to accept the Mariel Cubans.

Following his initial detention, Mr. Morales-Fernandez was granted immigration parole into the United States under section 212(d)(5) of the Immigration and Nationality Act. See 8 U.S.C. § 1182(d)(5). As an individual ineligible for admission into the United States, Mr. Morales-Fernandez is classified as an "inadmissible alien" under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).³ See Pub.L. No. 104-208, 110 Stat. 3009, 3009-546 (1996). His status as an inadmissible alien has remained static for the entire twenty-five years he has been present in the United States.

After a felony conviction in 1993 for possession with intent to sell a controlled substance, Mr. Morales-Fernandez was sentenced to one year in prison. In 1995, his immigration parole was revoked due to the criminal conviction. He was taken into INS custody and exclusion proceedings were initiated. The INS issued a final order of removal on November 9, 1999. Mr. Morales-Fernandez is currently detained in INS custody at the Federal Correctional Institute in Florence, Colorado.

The Cuban Review Panel considers Mr. Morales-Fernandez's case annually to determine his suitability for immigration parole. See 8 C.F.R. § 212.12. On February 8, 2002, the Review Panel recommended he be released as soon as possible to a willing family member. The Associate Commissioner adopted the panel's recommendation and issued a Notice of Releaseability. But the INS was unsuccessful in finding suitable living arrangements for him. Then, on August 23, 2002, Mr. Moralez-Fernandez was convicted by a Bureau of Prisons hearing officer of assault on staff and refusal to obey an order. Due to this prisoner disciplinary conviction, the Associate Commissioner withdrew the Notice of Releaseability.

Mr. Moralez-Fernandez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2241, asserting two claims. First, he argued that the Attorney General does not have statutory authority to detain an inadmissible alien indefinitely. Second, he maintained that his indefinite detention violates his Fifth Amendment substantive due process rights. The INS filed a motion to dismiss. The matter was referred to a magistrate judge who issued a report recommending that the district court dismiss Mr. Morales-Fernandez's § 2241 petition. Neither party objected to the recommendation. The district court adopted the magistrate's recommendation and this appeal followed.

II

As a threshold matter, we note that Mr. Morales-Fernandez failed to file written objections to the magistrate judge's recommendations. This court has adopted a firm waiver rule under which a party who fails to make a timely objection to the magistrate judge's findings and recommendations waives appellate review of both factual and legal questions. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). This rule does not apply, however, when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the "interests of justice" require review. Id.; Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.2004); Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996); see also Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("because the rule is a nonjurisdictional waiver provision, the Court of Appeals may excuse the default in the interests of justice").

The first exception to the firm waiver rule does not apply in this case. The magistrate judge's report and recommendation stated in clear English that Mr. Morales-Fernandez had ten days in which to serve and file written objections and that a "failure to make timely objections to the magistrate judge's recommendation may result in a waiver of the right to appeal from a judgment of the district court based on the findings and recommendations of the magistrate judge." Aplt. Br. Attach. at 20. Thus, the magistrate attempted to apprise Mr. Morales-Fernandez of the consequences of a failure to object. Nonetheless, we are persuaded to exercise our discretion under the interests of justice exception to overlook the waiver rule in the instant matter.

We recently recognized in a pro se prisoner case that "[o]ur decisions have not defined the `interests of justice' exception with much specificity." Wirsching, 360 F.3d at 1197. Likely this is because "interests of justice" is a rather elusive concept. We have, however, enumerated several factors this court has considered in determining whether to invoke the exception. For instance, a pro se litigant's effort to comply, the force and plausibility of the explanation for his failure to comply, and the importance of the issues raised are all relevant considerations in this regard. See generally Wirsching, 360 F.3d at 1197-98 (10th Cir.2004); Theede v. United States Dep't of Labor, 172 F.3d 1262, 1268 (10th Cir.1999).

In many respects, the interests of justice analysis we have developed, which expressly includes review of a litigant's unobjected-to substantive claims on the merits, is similar to reviewing for plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir.1996) (en banc) (holding that "plain error review, alone, satisfies Thomas v. Arn's concern for the `interests of justice'"). Indeed, we can think of no rational basis for excepting a pro se litigant's failure to object to a magistrate's report from our longstanding practice of reviewing for plain error issues raised for the first time on appeal by counseled litigants. Id. ("the failure to object to a magistrate judge's report and recommendation is really no different from, for example, the failure of counsel in open court to object to the admission of evidence").

The notion that the plain error and interests of justices analyses are similar is supported by Supreme Court and Tenth Circuit case law. Both the Court and this circuit have frequently described the FED.R.CRIM.P. 52(b) plain error standard as shorthand for or synonymous with an "interests of justice," "miscarriage of injustice," or "manifest injustice" exception to a litigant's failure to object in the trial court. See, e.g., United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (the "discretion conferred by Rule 52(b) should be employed [only] in those circumstances in which a miscarriage of justice would otherwise result.") (emphasis added); United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) ("the plain-error exception to the contemporaneous-objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result") (emphasis added); United States v. Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir.2005) (en banc) ("we will not notice a non-constitutional error [on plain error review] unless it is both `particularly egregious' and our failure to notice the error would result in a `miscarriage of justice'") (emphasis added); Allan v. Springville City, 388 F.3d 1331, 1334 n. 2 (10th Cir.2004) ("Satisfying plain error review requires showing that the jury instruction was not only erroneous and prejudicial, but that failure to set aside the jury's verdict would result in a fundamental injustice.") (emphasis added); United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir.2003); ("because [defendant] is deemed to have waived this issue, we will not address it on appeal except for a review for plain error resulting in manifest injustice.") (emphasis added); United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir.1995) (stating that we do not consider issues raised for the first time on appeal except to review for plain error resulting in manifest injustice) (emphasis added); cf. United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.1996) (recognizing that "the mandate rule . . . is a discretion-guiding rule subject to exception in the interests of justice" and one such exception is for "blatant error" that "would result in serious injustice if uncorrected") (emphasis added). Indeed, immediately after articulating that the court of appeals may excuse a party's failure to object to a magistrate's recommendations in the "interests of justice" in Thomas v. Arn, the Supreme Court dropped a footnote which reads:

Cf. Fed. Rule Crim. Proc. 52(b) (court may correct plain error despite failure of party...