Palma v. Verdeyen, 81-7013

• Citation: 676 F.2d 100
• Decision Date: 07 April 1982
• Docket Number: No. 81-7013,81-7013
• Parties: Miguel Mayet PALMA, Appellee, v. R. J. VERDEYEN, William French Smith, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 100

676 F.2d 100

Miguel Mayet PALMA, Appellee, v. R. J. VERDEYEN, William French Smith, Appellants.

No. 81-7013.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 2, 1982.

Decided April 7, 1982.

Lauri Steven Filppu, Gen. Lit. and Legal Advice Sec., Crim. Div., U. S. Dept. of Justice, Washington, D. C. (Elsie L. Munsell, U. S. Atty., Alexandria, Va., G. Wingate Grant, Asst. U. S. Atty., Richmond, Va., Lawrence Lippe, Chief, Gen. Lit. and Legal Advice Sec., Crim. Div., U. S. Dept. of Justice, Washington, D. C., on brief), for appellants.

Stephen K. Glenn, Richmond, Va. (Layne, Hayes & Smith, Christopher Holdridge, Richmond, Va., on brief), for appellee.

Before BUTZNER, HALL, and SPROUSE, Circuit Judges.

BUTZNER, Circuit Judge:

The United States appeals a district court's grant of a writ of habeas corpus to Miguel Mayet Palma, an alien, presently detained in the Petersburg Federal Correctional Institute. The district court recognized that Mayet Palma could be detained pending administrative exclusion proceedings and for a reasonable time thereafter while the government attempted to return him to Cuba. But relying primarily on Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981), it held that neither the Immigration and Nationality Act nor the Constitution empowered the government to detain him indefinitely after attempts to return him proved futile. We reverse.

I

In 1980, some 125,000 Cuban aliens arrived without visas in Florida aboard a flotilla of small boats. Cuban authorities had taken advantage of this exodus to give criminals the option to remain in prison or to leave for the United States. Immigration officers found that about 25,000 of the arriving aliens admitted some criminal history, but only about 2,000 were deemed to have backgrounds serious enough to warrant continued detention. Most of the other aliens were promptly paroled under provisions of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5), after sponsors were found. ¹

Exclusion proceedings were begun against the 2,000 aliens who were not suitable for immediate parole. In the meantime, they were held at various federal institutions, including the federal penitentiary in Atlanta. Mayet Palma was transferred from Atlanta to Petersburg for his own safety after he witnessed a prison murder.

In the summer of 1981, the Attorney General announced that the government intended to return to Cuba all excludable aliens still in detention. Cuba refused, however, to take them back. For the purpose of this case, we must assume on the basis of the record that the United States is not presently negotiating with Cuba for the return of any aliens and that Cuba will not soon change its policy.

The Attorney General also refined the procedures for review of each detainee's case. The current plan, adopted in July 1981 and twice modified, calls first for a review of the detainee's file. If parole cannot be recommended on that basis, a panel composed of Immigration and Department of Justice officials personally interviews the detainee. The panel must determine if the detainee should be recommended for parole, considering such factors as his past criminal history, his record of disciplinary infractions while in custody, and his cooperativeness in institutional work and vocational programs. Release cannot be recommended unless the panel members agree that (1) the detainee is presently a nonviolent person, (2) he is likely to remain nonviolent, and (3) he is unlikely to commit any criminal offense following his release. Panel recommendations are not conclusive but must be approved by the Commissioner of the Immigration and Naturalization Service. The plan requires subsequent review of a detainee within one year after a decision denying him parole, and it allows earlier review on the recommendation of the staff of the institution where the alien is detained. The plan states that after all detainees have received subsequent reviews, the procedures will be reevaluated for the purpose of determining future review of the remaining detainees.

II

Mayet Palma arrived in the United States on June 3, 1980, as part of the Cuban flotilla. He lacked a visa or other entry papers and later gave a sworn statement that before he left, he had been in prison for a second theft offense. United States authorities were unable to make an independent verification of Mayet Palma's criminal record and have accepted at face value his assertion that he received five and ten year sentences for stealing a violin and a radio.

By August, immigration officials had notified Mayet Palma that he appeared to be an excludable alien as defined by 8 U.S.C. § 1182(a)(9) (aliens who have been convicted of crimes of moral turpitude) and 8 U.S.C. § 1182(a)(20) (aliens lacking a visa, passport, or similar document). In April, 1981, an immigration judge conducted an exclusion hearing pursuant to 8 U.S.C. § 1226(a) and held Mayet Palma excludable under the two cited provisions. The judge also held that Mayet Palma was not a refugee entitled to asylum under the 1967 Protocol and Convention Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. 6577, or the Refugee Act of 1980, Pub.L.96-212, 94 Stat. 102 (8 U.S.C. §§ 1101(a)(42) and 1253(h) ). His appeal, authorized by § 1226(b), to the Board of Immigration Appeals, where he was assisted by counsel, was considered and dismissed on the merits. In re Mayet Palma, A23 220 135 (B.I.A. Jan. 13, 1982) (unreported decision). Accordingly, Mayet Palma is now subject to a final order of exclusion.

In the meantime, a review panel had examined Mayet Palma's file and decided not to recommend his parole. Following the Attorney General's procedures, it scheduled an interview with him in December, 1981, at which he was represented by counsel. Two of the three members of the interviewing panel recommended parole, but the Commissioner declined to follow this recommendation. The Commissioner based his decision on the uncontested disciplinary record compiled by Mayet Palma during his detention: since his arrival in the United States, he had set ten fires at the prison, assaulted the staff, and fought with other detainees. ²

Mayet Palma filed a petition for habeas corpus, a third avenue to release. On December 29, 1981, the district judge granted the writ and ordered Mayet Palma to be released the following day to an uncle in New York. ³ We stayed this judgment pending an expedited appeal. On appeal Mayet Palma does not claim to be a refugee within the meaning of the Protocol and Convention Relating to the Status of Refugees or the Refugee Act of 1980. He does not rely on international law but bases his claim on the Constitution and the Immigration and Nationality Act. Specifically, he contends that the Attorney General deprived him of his liberty without due process of law in violation of the fifth amendment. He also asserts that even if the law authorized his detention, the Attorney General abused his discretion in denying him parole.

III

Congress has virtually plenary authority over the admission of aliens. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977). It may exclude aliens for reasons that it deems to be in the public interest. The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). Although it may detain an alien pending exclusion, it may not supplement the order of exclusion by inflicting summary punishment at hard labor. Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896). Nevertheless, indefinite detention of a permanently excluded alien deemed to be a security risk, who is refused entry to other countries, is not unlawful. Shaughnessy v. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). Although the statutes applicable to these cases differed, all of the Court's opinions rested on the following principles. A sovereign state has an inherent right to exclude aliens. In the United States the Constitution commits enforcement of this right to the Congress, which in turn may authorize officers of the executive branch to exercise it. See Nishimura Ekiu v. United States, 142 U.S. 651, 659-60, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892). This congressional power over the exclusion of aliens has a corollary: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950). Of course, in an appropriate case, to ascertain what Congress has authorized, one must consider the treaties, agreements, and customary international law to which the United States subscribes, as well as to domestic law. In this appeal, however, the parties have addressed the issues in terms of domestic law.

Section 1225(b) of 8 U.S.C. provides that an arriving alien may be detained for inquiry. Section 1227(a) directs the immediate return of the excluded alien "unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper." Subject to an exception not applicable to this case, § 1182(d)(5) authorizes the Attorney General in his discretion to parole temporarily an alien who seeks admission, if parole is justified for emergent reasons or is deemed to be in the public interest. When the purpose of the parole has been served, the Attorney General is empowered to return the alien to custody. In addition to these specific grants of authority, Congress in § 1103 conferred broad general powers on the Attorney General for the enforcement and administration of the Immigration Act.

It is apparent, as the district judge emphasized, that none of these statutes expressly authorizes the Attorney General to detain an alien indefinitely after an unsuccessful attempt to return him. Nevertheless, we conclude that Congress implicitly authorized the Attorney General to order such detention. In...