Rodriguez-Fernandez v. Wilkinson

• Decision Date: 09 July 1981
• Docket Number: RODRIGUEZ-FERNANDE,No. 81-1238,P,81-1238
• Citation: 654 F.2d 1382
• Parties: Pedroetitioner-Appellee, v. George C. WILKINSON, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1382

654 F.2d 1382

Pedro RODRIGUEZ-FERNANDEZ, Petitioner-Appellee, v. George C. WILKINSON, Warden, Respondent-Appellant.

No. 81-1238.

United States Court of Appeals, Tenth Circuit.

July 9, 1981.

William C. Bryson, Atty., Dept. of Justice, Washington, D. C. (James P. Buchele, U. S. Atty., Robert S. Streepy, Asst. U. S. Atty., Topeka, Kan., Jack M. Goldklang and Kate Stith Pressman, Attys., Washington, D. C., with him on the brief), for respondent-appellant.

Dennis D. Goodden, Kansas City, Mo. (Henri J. Watson and Tim Carmody, Kansas City, Mo., Roger L. McCollister, Executive Dir. and William E. Metcalf, Kansas Legal Services, Inc., Topeka, Kan., with him on the brief), for petitioner-appellee.

Jerome J. Shestack, Philadelphia, Pa. (Merrie Faye Witkin and Christopher Keith Hall, New York City, with him on the brief), for amici curiae The Lawyers Committee for International Human Rights and the U. S. Helsinki Watch Committee.

Steven M. Schneebaum of Patton, Boggs & Blow, Washington, D. C. (Harry A. Inman and Amy Young-Anawaty, Washington, D. C., of counsel), filed a brief for amicus curiae the International Human Rights Law Group.

Howard Eisberg, Kansas City, Mo., filed a brief for amicus curiae American Civil Liberties Union, Western Missouri.

Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This is an appeal from a decision of the district court granting a writ of habeas corpus, ordering immediate release of Pedro Rodriguez-Fernandez to the custody of an American citizen upon such conditions as the Attorney General of the United States may impose. Rodriguez-Fernandez is a Cuban national who arrived in the United States aboard the so-called Freedom Flotilla which carried approximately 125,000 people from Cuba to Key West, Florida. Petitioner arrived at Key West on June 2, 1980, seeking admission to this country as a refugee.

Acting pursuant to 8 U.S.C. § 1223(a), immigration officials permitted Rodriguez-Fernandez to leave the boat and placed him in custody pending a determination of his eligibility for admission. In an interview with immigration officials, Rodriguez-Fernandez admitted that at the time he left Cuba he was a prisoner serving a sentence in a Cuban prison for attempted burglary and escape. He denied being guilty of the attempted burglary, for which he was tried by a military revolutionary court. But he confessed that he had prior convictions in 1959 and 1964, in each case for the theft of a suitcase from a bus or train station, and that while serving an eight year term for the second theft he escaped from prison. In 1973, at the time of his conviction, he received a four year sentence for the attempted burglary and an added three year term for the escape. He testified he was scheduled for release from prison on June 27, 1981, apparently at the expiration of the terms imposed in 1973. Based upon his criminal record and lack of immigration documents, the officers found that Rodriguez-Fernandez was not clearly entitled to land. He was then detained pending an exclusion hearing pursuant to 8 U.S.C. §§ 1182(a)(9), (20), and 1225(b). Following a brief stay at a processing camp in Wisconsin, petitioner was transferred to the federal penitentiary at Leavenworth, Kansas.

In a formal exclusion hearing held July 21, 1980, an immigration hearing officer determined that Rodriguez-Fernandez was an excludable alien and ordered him deported to Cuba pursuant to 8 U.S.C. § 1227(a). Petitioner does not challenge the lawfulness of the exclusion order; that is not an issue in this appeal. The Immigration and Naturalization Service on August 28, 1980, requested the State Department to arrange petitioner's deportation to Cuba. Cuba, however, has refused all requests to accept petitioner and other members of the Freedom Flotilla. The trial court found,

"Cuba has either not responded or responded negatively to six diplomatic notes transmitted by the United States. Thus, the Government has been unable to expeditiously carry out the order of deportation and cannot even speculate as to a date of departure. No other country has been contacted about possibly accepting petitioner."

Fernandez v. Wilkinson, 505 F.Supp. 787, 789 (D.Kan.1980). Upon Cuba's refusal to accept petitioner, the Attorney General ordered his continued detention in the federal penitentiary at Leavenworth. He was incarcerated there in September 1980, when he filed the instant petition for a writ of habeas corpus. Thereafter, he was transferred to the United States Penitentiary in Atlanta, Georgia, where he is currently held with approximately 1,700 other excludable Cubans similarly situated.

By an order dated December 31, 1980, the district court held that Rodriguez-Fernandez has no rights to avoid detention under either the Fifth or Eighth Amendments to the United States Constitution. However, it held that the Attorney General's actions under the circumstances were arbitrary and an abuse of his discretion. It found that although the Attorney General's actions did not offend any statute, they violated principles of customary international law which create a right to be free from such detention. The order gave the government ninety days to release Rodriguez-Fernandez. The court later denied a government motion to reopen based upon the transfer of petitioner to Atlanta. On April 22, 1981, a compliance hearing was held with respect to its earlier order. The government reported that, exercising the discretionary parole power, representatives of the Attorney General determined Rodriguez-Fernandez to be releasable pursuant to 8 U.S.C. § 1182(d)(5). ¹ He had not been released, however, because of a suspension imposed by the new national administration of President Reagan to permit a reconsideration of government policies. The court was informed that the President had appointed a special task force due to file a report May 4, 1981, discussing, inter alia, what should be done with the excluded Cubans still being detained. It requested an additional sixty days to effect either the deportation or parole of Rodriguez-Fernandez. On April 23, 1981, the district court denied the government's request and ordered petitioner's release within twenty-four hours to the sponsorship of an American citizen living in Kansas City. From these orders the government has appealed.

On the government's motion this Court entered a stay of the district court's order pending final disposition of the matter. The case was expedited and orally argued before a panel of this Court on May 12, 1981. The government attorneys promised to report to this Court any change in status or development affecting the incarceration of petitioner during our deliberations; they wanted additional time to develop a solution. The period we have needed for research and deliberation has given the government significant additional time. Apparently no change has been made, and we now must determine this controversy.

Rodriguez-Fernandez has committed no offense against the United States; he has merely appeared on our shores as a member of the Freedom Flotilla seeking permission to immigrate. Yet, he has been confined in a maximum security federal prison, some of the time in solitary confinement, for more than a year.

The case presents unusual difficulties. The applicable statutes are vague with regard to the problem facing this Court. Also, the case law generally recognizes almost absolute power in Congress concerning immigration matters, holding that aliens in petitioner's position cannot invoke the Constitution to avoid exclusion and that detention pending deportation is only a continuation of exclusion rather than "punishment" in the constitutional sense.

In the instant case the detention is imprisonment under conditions as severe as we apply to our worst criminals. It is prolonged; perhaps it is permanent. At least six times Cuba has been approached to take back petitioner and others in his status; Cuba has consistently refused or failed to acknowledge the request. The last attempt to effect a return was apparently in August 1980, many months ago. Thus it appears detention is here used as an alternative to exclusion rather than a step in the process of returning petitioner to his native Cuba. Petitioner testified he is willing to go to another country, "anywhere in the world where I'll not be a prisoner unjustly or unfairly." Under the statute, however, he may not specify a place of deportation; it states that he is to be deported to the country from whence he came. 8 U.S.C. § 1227(a).

We dispose of the appeal by construing the applicable statutes to require Rodriguez-Fernandez' release at this time. Nevertheless, it seems important to discuss the serious constitutional questions involved if the statute were construed differently.

It is clear Rodriguez-Fernandez can invoke no constitutional protection against his exclusion from the United States. He may be excluded for considerations of race, politics, activities, or associations that would be constitutionally prohibited if he were a citizen. See Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); United States ex rel. Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979 (1904); The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). He would fare no better if he were an alien resident in the United States. Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1950); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); J. Wasserman, Immigration Law and Practice at 210-211 (3d ed. 1979); Note, The Alien and the Constitution, 20 U.Chi.L.Rev. 547, 549-550 (1953). ²

Under the theory that Congress' power in this area is plenary and that, in any case, a deportation is not penal in nature, it has been held that normal criminal rights are inapplicable. Thus, aliens may be arrested by administrative warrant issued without...