Perez-Perez v. Hanberry
| Decision Date | 15 August 1985 |
| Docket Number | C85-1338A and C85-834A.,No. Civ. A. C85-221A,Civ. A. C85-221A |
| Citation | 625 F. Supp. 58 |
| Parties | Cristobal PEREZ-PEREZ, Petitioner, v. Jack HANBERRY, et al., Respondents. Aristedes MACHADO-MATOS, Petitioner, v. Jack HANBERRY, et al., Respondents. Eduardo CRESPO-GOMEZ, Petitioner, v. Jack HANBERRY, et al., Respondents. |
| Court | U.S. District Court — Northern District of Georgia |
Petitioners are three of the more than 1000 Cuban detainees who have filed individual petitions1 for habeas corpus review of the Attorney General's refusal to parole them from the Atlanta Federal Penitentiary. After reviewing these petitions in January 1985, the Court certified that these actions are not frivolous and granted petitioners' motions to proceed in forma pauperis. The Court entered show cause orders on June 26, 1985, which directed the government to respond and to produce the complete administrative record relating to each petitioner. Also in that June 26, 1985 order, pursuant to petitioners' motions for appointment of counsel, the Court authorized the appointment of counsel under 18 U.S.C. § 3006A2 to represent petitioners in these habeas actions.
Objecting to the appointment of counsel under 18 U.S.C. § 3006A, the government moved to stay all proceedings in the approximately 1000 cases in which the Court had authorized the appointment of counsel, pending a decision on appeal of whether counsel may properly be appointed and compensated under 18 U.S.C. § 3006A. To promote a swift and efficient resolution of this issue, the Court has agreed to rule on the government's objections to appointment of counsel under 18 U.S.C. § 3006A in these three "test cases" selected by counsel for the government and counsel for amicus, the class of Cuban detainees in Fernandez-Roque v. Smith, C81-1084A. The Court will then consider the government's motion to certify this order for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b).
The three "test cases" present the following facts. Petitioner Perez-Perez, according to his petition, at one time was free on parole. In 1983 he served eleven days in jail for battery. On September 28, 1984, he was arrested for possession of drugs, but was released for lack of evidence. On October 31, 1984, INS officers took him into custody, and he has since remained at the Atlanta Penitentiary. Citing his unfamiliarity with the English language, his lack of access to his own administrative records,3 the complexity of his case, and his financial inability to obtain representation, petitioner has moved for appointment of counsel pursuant to 18 U.S.C. § 3006A(g) and 28 U.S.C. § 1915(d).4
Petitioner Crespo-Gomez, according to his petition, also at one time was free on parole, but has been in detention in the Atlanta Penitentiary since December 9, 1983. Petitioner alleges that he has been detained because he "was supposed to belong to a vocational program" and because of "an offense on the outside" for which he has completed his sentence of one year. Petitioner's form motion for appointment of counsel presents the same contentions as that of Perez-Perez, except that petitioner states that he is fluent in English.
Petitioner Machado-Matos states that he has been detained at the Atlanta Penitentiary since June 28, 1983. Although his contentions are not clear in his translated petition, he appears to allege that he is being detained for having committed some offense in the United States and for "small infractions" of prison rules. Apparently, if released on parole, he must complete a twelve year sentence in Florida. His form motion for appointment of counsel raises the same contentions as the other two cases before the Court and states that he cannot read and write English well enough to pursue his case effectively.
In opposing the appointment of counsel under 18 U.S.C. § 3006A(g), the government presents three arguments. The Court will address them in order.
The first of the government's objections concerns the Court's jurisdiction5 over these petitions under 28 U.S.C. § 2241, which in these actions is a prerequisite for appointment of counsel under 18 U.S.C. § 3006A(g). The government argues that jurisdiction lies exclusively under 8 U.S.C. § 1329.6 It summarizes its argument as follows:
The specificity of the judicial review provisions of the Immigration and Nationality Act, including 8 U.S.C. § 1329, preempts and precludes review under any general jurisdictional statute, such as 28 U.S.C. § 2241, especially when invocation of the more general statute might result in defeating a basic policy embodied in our immigration laws. Here, that policy is the Congressional ban on the representation of aliens at taxpayer expense in their exclusion and deportation proceedings. 8 U.S.C. § 1362.7
A threshold problem with the government's objection to jurisdiction under 28 U.S.C. § 2241 is that the government ignores the long history of the role of habeas corpus in immigration law, well-established at least since the beginning of this century. More than once the Supreme Court has explicitly held that an alien in custody under an exclusion order may bring a habeas corpus action to challenge its legality. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953); Chin Yow v. United States, 208 U.S. 8, 13, 28 S.Ct. 201, 202, 52 L.Ed. 369 (1908); see 2 C. Gordon and H. Rosenfield, Immigration Law and Procedure § 8.6c (1985). It makes no difference that petitioners here do not challenge their exclusion as such, but rather their denial of parole pending exclusion; the Eleventh Circuit Court of Appeals, relying on Mezei, has held that "the decision to parole or to detain an excludable alien is an integral part of the admissions process" and that the Attorney General's parole decisions are reviewable by district courts. Jean v. Nelson, 727 F.2d 957, 963, 976 (11th Cir.1984), aff'd on other grounds, ___ U.S. ___, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985); see Mezei, 345 U.S. at 213, 73 S.Ct. at 629 (). Other courts also have recognized explicitly that an excludable alien may bring a habeas corpus action to challenge denial of parole. See, e.g., Bertrand v. Sava, 684 F.2d 204, 210 (2d Cir.1982); Palma v. Verdeyen, 676 F.2d 100, 105 (4th Cir.1982). Indeed, the government has been unable to cite a single analogous case in which a court has found habeas jurisdiction to be lacking.8
Congress has carefully preserved habeas corpus jurisdiction over cases concerning the exclusion of aliens, as is illustrated by the legislative history of the 1961 amendment to the Immigration and Nationality Act (codified at 8 U.S.C. § 1105a):
H.R.Rep. No. 1086, reprinted in 1961 U.S. Code Cong. & Ad.News 2950, 2974-76 (citations omitted).
The government's actual concern is not the Court's exercise of jurisdiction under 28 U.S.C. § 2241, but rather the derivative result that petitioner will be represented in this action by an attorney who shall be compensated pursuant to 18 U.S.C. § 3006A. That concern, however, does not speak to the Court's jurisdiction — its power to decide these cases. As demonstrated above, the Court's authority to exercise jurisdiction over these cases under 28 U.S.C. § 2241 has been firmly established by decades of jurisprudence. Properly viewed, the government's first argument raises the substantive concern that discretionary appointment of counsel under 18 U.S.C. § 3006A might be inconsistent with Title 8 or with the Criminal Justice Act itself. Thus, the government's "jurisdictional" argument must fail. As the Eleventh Circuit Court of Appeals has held, "The limited nature of the substantive rights an excluded alien may claim" are not to be confused with Garcia v. Smith, 674 F.2d 838, 840, modified on denial of reh'g, 680 F.2d 1327, 1328 (11th Cir.1982).9 Therefore, the government's concern simply presents no jurisdictional question.
Other flaws also plague the government's argument. As a result of the previously discussed 1961 amend...
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