Sanchez v. Kindt

• Citation: 752 F. Supp. 1419
• Decision Date: 04 December 1990
• Docket Number: No. TH 90-105-C.,TH 90-105-C.
• Parties: Hector SANCHEZ, Petitioner, v. Warden T.R. KINDT, Respondent.
• Court: U.S. District Court — Southern District of Indiana

752 F. Supp. 1419

Hector SANCHEZ, Petitioner, v. Warden T.R. KINDT, Respondent.

No. TH 90-105-C.

United States District Court, S.D. Indiana, Terre Haute Division.

December 4, 1990.

COPYRIGHT MATERIAL OMITTED

Hector Sanchez, pro se.

Jill E. Zengler, Asst. U.S. Atty., Office of U.S. Atty., Indianapolis, Ind., for respondent.

ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING ENTRY OF JUDGMENT

McKINNEY, District Judge.

This cause is before the Court on the petition of Hector Sanchez for a writ of habeas corpus, on the petitioner's amended petition, on the respondent's answer and return and on the respondent's memorandum opposing habeas corpus petition.

Whereupon the Court, having read and examined such petitions, answer and return and memorandum, having considered the petitioner's claim and the arguments of the parties and being duly advised, now finds that the petitioner is not entitled to the relief he seeks in this action and that his petition for habeas corpus relief should accordingly be denied and this cause of action dismissed with prejudice.

I. Introduction

In this and companion cases this Court enters the fray engendered by the complex and longlasting fallout from the Cuban Mariel Boatlift of over a decade ago. In resolving the issues presented here the Court does not break new ground, but draws on the analyses and conclusions of many other courts.

Background

Petitioner is confined at the United States Penitentiary at Terre Haute, Indiana. He is an excludable alien who arrived in this Country during the 1980 Mariel Boatlift.¹ Cuba has not agreed to take him back.²

He was initially released on immigration parole.³ While in that status he was convicted of one or more felonies. His prison sentences have now been fully served. He presents three claims in this action: 1) the Attorney General does not have the authority to detain him indefinitely; 2) he has a liberty interest in freedom from detention and the denial and revocation of parole are effected without due process of law; and 3) his prolonged detention violates customary international law and is therefore illegal.

II.

A. Jurisdictional Basis for this Action

The petitioner brings this action for habeas corpus relief. The specific provision through which we may review the petitioner's claims in this action, however, is found at 8 U.S.C. § 1329:

The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this title Title 8.

The specific terms of this statute supplement, rather than supplant, the general language of the federal habeas corpus statute and the respondent has not challenged the form in which the petitioner's claims have been presented.⁴

B. Authority of Attorney General to Detain Indefinitely

It is every nation's prerogative "to determine whether, and in what numbers, outsiders without any cognizable connection to this society shall be permitted to join it." Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir.1985). This power is an inherent attribute of national sovereignty. Fong Yue Ting v. United States, 149 U.S. 698, 707-11, 13 S.Ct. 1016, 1019-21, 37 L.Ed. 905 (1893); Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892).

Congress has plenary power to admit aliens to the United States or, conversely, to bar them. Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). The power to expel or exclude aliens is a fundamental sovereign attribute exercised by the government's political departments. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). By statutory enactment, Congress has delegated broad powers in the immigration field to the Attorney General. See 8 U.S.C. § 1103. Congress has also identified a number of classes of persons who are deemed excludable. 8 U.S.C. § 1182(a)(1)-(33).⁵ A portion of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a), provides as follows:

Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States.

....

(9) Aliens who have been convicted of a crime involving moral turpitude....

(20) Any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter....

(23) Any alien who—

(A) has been convicted of a violation of, or a conspiracy to violate, any law or regulation of a State, the United States, or a foreign country relating to a controlled substance....

The INA directs the immediate deportation of excluded aliens, unless the Attorney General determines that immediate deportation is not practicable or proper, in which event the excluded alien can be either released to immigration parole or detained. 8 U.S.C. § 1227.

With respect to the treatment of excludable aliens, Congress has delegated the following authority to the Attorney General:

The Attorney General may, except as provided in subparagraph (B), in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

8 U.S.C. § 1182(d)(5)(A). "As originally conceived by the enacting Congress, parole was meant to be the exception rather than the rule. It was to be catalyzed only by the existence of an emergency (whether a personal emergency, such as an alien's medical needs, or a public emergency, such as a national need to have the alien present within the country). This view, though rigid, was well within the legislature's choice of prerogatives." Amanullah v. Nelson, 811 F.2d 1, 6 (1st Cir.1987). The mere granting of parole "shall not be regarded as an admission of the alien ...," 8 U.S.C. § 1182(d)(5)(A), and in the event of revocation of parole, the alien shall "be dealt with in the same manner as that of any other applicant for admission to the United States." Id.

This statutory scheme is not at issue in this action, nor is the petitioner's status as "an excludable or potentially excludable alien."⁶

There is no explicit statutory limit to the length of time which such a person can be detained. What is at issue, with respect to the first claim, is the Attorney General's authority to detain excludable aliens indefinitely.

The Seventh Circuit Court of Appeals has addressed this issue only obliquely. In Ramos v. Haig, 716 F.2d 471 (7th Cir.1983), the Court reviewed the denial of attorney fees under the Equal Access to Justice Act of counsel who had prevailed in the district court in securing habeas corpus relief for two juveniles who had been detained without hearing for 15 months following their arrival in this Country as part of the Mariel Boatlift. The Court found that "the sole question before this court is whether the government's long-term confinement of petitioners is "substantially justified," id., 716 F.2d at 473 n. 3, which exists when the government demonstrates that its action had a reasonable basis in law and fact. The Court reviewed the applicable law in the following terms:

Pursuant to 8 U.S.C. Sec. 1225(b), an examining immigration officer must detain, for further inquiry, all aliens "who may not appear to the examining officer to be clearly and beyond a doubt entitled to land." Generally, examining immigration officers detain aliens whom they believe to be "excludable", as defined by 8 U.S.C. Sec. 1182. These aliens are processed and assigned to various detention centers while INS conducts an investigation. Thereafter, a special inquiry officer conducts a hearing and decides whether aliens "shall be allowed to enter or shall be excluded and deported." 8 U.S.C. Sec. 1226.

Thousands of aliens arrived in our country as part of the "Cuban flotilla", approximately 2,000 of these aliens had backgrounds which warranted detention pending further inquiries. Consequently, INS assumed the responsibility of processing, detaining, and investigating a large number of aliens. These responsibilities were necessarily time consuming. Information concerning an alien's past criminal background in a foreign land is often difficult to obtain. Still, INS was able to parole a majority of these detainees within one year. Thus, we must accept the district court's findings that INS's general confinement of aliens for further inquiry was reasonable. With regard to INS's long-term detention of petitioners, we note that the circumstances which justify such detention are uncertain. The Immigration and Naturalization Act does not expressly limit the time in which INS must complete its investigations, thus, INS's legal position that it may indefinitely detain aliens awaiting exclusion hearings is not foreclosed by the Act.

Id., 716 F.2d at 474. It then found, in conformity with its limited review under the EAJA, that the district court's finding that the government's legal position was substantially justified, i.e., reasonable, was not clearly erroneous. In Santos v. Kolb, 880 F.2d 941 (7th Cir.1989), the Court considered the habeas corpus claim of a state prisoner whose attorney had failed to advise the petitioner of the collateral consequences of a felony conviction (i.e., deportation) constituted ineffective assistance of counsel. The Court described the procedure which is at issue in...