Tartabull v. Thornburgh

• Decision Date: 18 December 1990
• Docket Number: 90-2202,90-2205 to 90-2208,Civ. A. No. 90-2185,90-2316,90-2317,90-2262 to 90-2265,90-2360 to 90-2363,90-2370,90-2400,90-2269,90-2328 to 90-2330,90-2283,90-2192 to 90-2194,90-2595 and 90-2596.,90-2369
• Citation: 755 F. Supp. 145
• Parties: Pedro TARTABULL v. Richard THORNBURGH.
• Court: U.S. District Court — Eastern District of Louisiana

755 F. Supp. 145

Pedro TARTABULL v. Richard THORNBURGH.

Civ. A. Nos. 90-2185, 90-2192 to 90-2194, 90-2202, 90-2205 to 90-2208, 90-2262 to 90-2265, 90-2269, 90-2283, 90-2316, 90-2317, 90-2328 to 90-2330, 90-2360 to 90-2363, 90-2369, 90-2370, 90-2400, 90-2595 and 90-2596.

United States District Court, E.D. Louisiana.

December 18, 1990.

Pedro Tartabull, pro se.

Reneé C. McGinity, Asst. U.S. Atty., U.S. Attorney's Office, New Orleans, La., for respondent.

MEMORANDUM OPINION

MENTZ, District Judge.

The petitioners in this case are citizens of Cuba who arrived in the United States during the 1980 Mariel boatlift (the Freedom Flotilla). They are being detained under the civil immigration detention powers conferred on the Attorney General by the Immigration and Nationality Act (the Act), 8 U.S.C. sections 1101-1524. The petitioners seek habeus corpus relief,¹ alleging that (1) the Act does not authorize the Attorney General to detain them indefinitely; (2) even if the Act does give the Attorney General the power to detain them indefinitely, the power is being exercised without regard to constitutional safeguards of due process; and (3) continued detention violates customary international law.

I. STATUTORY AUTHORITY

The petitioners are being detained as excludable aliens² under section 212(a) of the Act. 8 U.S.C. section 1182(a). The Act provides explicitly for the temporary detention of excludable aliens. Sections 235 and 237 of the Act provide for the detention of an alien while determining whether the alien is excludable and subject to deportation. 8 U.S.C. sections 1225, 1227. Section 237 envisions an immediate deportation unless "immediate deportation is not practicable or proper." 8 U.S.C. section 1227(a).

The petitioners argue that the Attorney General has no statutory authority to detain them indefinitely. Once it was discovered that deportation to Cuba was not possible, they should have been released. The government, on the other hand, argues that the Act provides implicit authority to the Attorney General to detain indefinitely an alien who cannot be returned to his country of origin.

The court finds the reasoning and conclusions of the Eleventh Circuit persuasive on this issue. See Fernandez-Roque v. Smith, 734 F.2d 576, 580 n. 6 (11th Cir. 1984); see also Palma v. Verdeyen, 676 F.2d 100, 103 (4th Cir.1982) ("indefinite detention of a permanently excluded alien ... is not unlawful"). In Fernandez-Roque, the court upheld the district court's determination that the Attorney General has implicit authority to detain excludable aliens indefinitely. The district court gave three reasons for its finding: (1) although the statutory scheme contemplates explicitly only a temporary detention prior to an immediate deportation, the Act also recognized that immediate deportation may not always be "practicable or proper"; (2) Congress failure to place an express limit on the time for detention of excludable aliens, while imposing a six-month limit for detention of deportable aliens, was intentional; and (3) because the authority of Congress and the executive is plenary in immigration matters, the court was unwilling to impose a statutory limitation on the power of the Attorney General to detain an alien where no such limitation was expressly provided for in the Act. Fernandez-Roque v. Smith, 567 F.Supp. 1115, 1124 (N.D.Ga. 1983), rev'd on other grounds, 734 F.2d 576 (11th Cir.1984). The district court was also reluctant to impose a statutory limitation on the Attorney General's detention authority because any limitation would require the release of a detainee without regard to his danger to the community or his ability to care for himself. Id.

In addition to the reasons provided by the Eleventh Circuit, the court finds the parole provision illuminating. 8 U.S.C. section 1182(d)(5)(A). Section 1182(d)(5)(A) affords the Attorney General a great deal of discretion in deciding whether to parole or to detain an excludable alien. Section 1182 of the Act provides that

the Attorney General may ... 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....

8 U.S.C. section 1182(d)(5)(A).

Both the First Circuit in Amanullah v. Nelson, 811 F.2d 1, 6 (1st Cir.1987), and the Eleventh Circuit in Jean v. Nelson, 727 F.2d 957, 966 (11th Cir.1984), acknowledge that the scope of the authority delegated to the Attorney General in the area of parole is "particularly sweeping." Jean, 727 F.2d at 977. The First Circuit in Amanullah, after researching the legislative history of the Act's parole provision, concluded that "parole was meant to be the exception rather than the rule." Amanullah, 811 F.2d at 6. Congress intended that the Attorney General use his parole authority sparingly and only in emergency-type situations, if, for example, an alien were to require emergency medical care. Id.

If Congress intended a limited use of the parole power, it seems obvious that the Attorney General must be afforded the statutory authority to detain excludable aliens indefinitely. The alternative is to force the Attorney General to parole the aliens — an option that this court is certain Congress did not intend.

II. VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS

The petitioners allege that they are being deprived of their liberty without due process of law in violation of the fifth and sixth amendments. They further argue that they are being punished by imprisonment without the benefit of a jury trial in violation of the sixth amendment.

A. Fifth Amendment Right To Due Process of Law

In the eyes of the law, these excludable aliens have not yet entered the country. Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986). It is well settled that an alien seeking initial admission to the United States has no constitutional rights regarding his admission. Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982). The alien has a constitutional due process right regarding his deportation only after he has been accorded legal resident alien status. Id.; see also Amanullah v. Nelson, 811 F.2d 1, 9 (1st Cir.1987) ("outside the context of admission and exclusion procedures, excludable aliens do have due process rights").

The petitioners do not allege that they have constitutional rights regarding the decision to deport. The petitioners are questioning the constitutional limits on the government's ability to deny them parole. To the petitioners, the indefinite detention is in effect a "punishment without trial" that is constitutionally impermissible. They claim that their constitutionally protected liberty interest has been denied them without due process of law.

The Eleventh Circuit has addressed this issue and has concluded that the decision to parole rather than to detain is an "integral part of the admissions process." Jean v. Nelson, 727 F.2d 957, 963 (11th Cir.1984); see also Amanullah v. Nelson, 811 F.2d 1, 8 (1st Cir.1987) (excludable aliens cannot challenge parole decisions on constitutional grounds). An alien is detained when the Attorney General decides to exclude him from the country; the alien has not passed the "threshold of initial entry." Shaughnessy v. United States, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953). As the Shaughnessy Court stated, the government can require aliens arriving by boat to remain on their vessel pending a determination of admission. Id. at 215, 73 S.Ct. at 630. Permitting the aliens "temporary harborage" on shore, an "act of legislative grace," does not confer additional rights on the alien. Id.

Aliens who have not gained entry to the United States, such as the petitioners, have no constitutional liberty right under the Fifth Amendment. See, e.g., Shaughnessy, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956; Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21. The Supreme Court has stated that "the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law." Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892) (quoted in Jean, 727 F.2d at 968). Because the Attorney General acted under powers conferred on him by Congress, the petitioners do not have a claim for a violation of due process.

B. The Sixth Amendment Right to a Trial by Jury

The petitioners allege that the indefinite incarceration to which they are being subjected is a punishment which cannot constitutionally be imposed on them without a jury trial. The government responds that the detention is not punitive; the aliens have been detained to prevent them from unlawfully entering the United States.

The government has the authority to detain a person without a trial as a regulatory measure. The petitioners, citing United States v. Melendez-Carrion, 790 F.2d 984, 1007 (2d Cir.1986) (Feinberg, C.J., concurring), argue that a regulatory detention, if lengthy, becomes punitive. However, in Melendez-Carrion, the court was discussing the Bail Reform Act of 1984, which authorized pretrial detention on the grounds of dangerousness of those awaiting trial. 18 U.S.C. sections 3141-3156. The Melendez-Carrion court found this provision unconstitutional because it constituted a violation of the defendants' liberty interest.³ Because of the finding of unconstitutionality on fifth amendment grounds, the majority in Melendez-Carrion did not reach the sixth amendment question.

Furthermore, the defendants in the Melendez-Carrion case stood in a different spot than do...