[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 03-12231 ELEVENTH CIRCUIT
Non-Argument Calendar May 6, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 03-00004-CV-AAA-2
GUILLERMO PEREZ-AQUILLAR,
Petitioner-Appellant,
versus
JOHN ASHCROFT,
D. L. HOBBS, Warden,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Georgia
_________________________
(May 6, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of Clark v. Martinez,
--- U.S. ----, 125 S. Ct. 716, --- L. Ed. 2d ---- (2005). Appellant Perez-Aquillar is a
Mariel Cuban who was paroled into the United States in 1980 but whose parole
was later revoked based upon his criminal convictions. We previously affirmed
the district court’s denial of this 28 U.S.C. § 2241 habeas corpus petition, in which
he argued that his continued detention violated his due process rights. See
Perez-Aquillar v. Ashcroft, Case No. 03-12231, 88 Fed. Appx. 382 (11th Cir. Nov.
13, 2003) (Table). In affirming the denial of habeas relief, we held that
inadmissible aliens, such as Perez-Aquillar, do not have “constitutional or
statutory rights to be free from indefinite detention. Thus, the district court did not
err in dismissing Perez-Aquillar’s § 2241 petition.” Id., slip op. at 3.
In Zadvydas v. Davis, 533 U.S. 678, 689, 121 S. Ct. 2491, 150 L. Ed. 2d
653 (2001), the Supreme Court interpreted 8 U.S.C. § 1231(a)(6) to authorize the
continued detention of legal permanent aliens beyond the mandated 90-day
removal period, but only for as long as “reasonably necessary” to effectuate
removal from the country. The Court explained that “once removal is no longer
reasonably foreseeable, continued detention is no longer authorized.” Id. at 699.
“[T]he presumptive period during which the detention of an alien is reasonably
necessary to effectuate his removal is six months; after that, the alien is eligible for
conditional release if he can demonstrate that there is ‘no significant likelihood of
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removal in the reasonably foreseeable future.’” Clark, 125 S. Ct. at 722 (quoting
Zadvydas, 533 U.S. at 701).
In Clark, the Court extended its interpretation of § 1231(a)(6) to
inadmissible aliens, such as Perez-Aquillar. The Court also vacated and remanded
for reconsideration our decision in Benitez v. Wallis, 337 F.3d 1289 (11th Cir.
2003), in which we had affirmed the denial of § 2241 habeas relief to an
inadmissable Cuban alien. On remand, we explained that under Clark, an
inadmissible alien can no longer be detained beyond statutory 90-day removal
period of 8 U.S.C. § 1231(a)(1), where there was no significant likelihood of
removal in the reasonable foreseeable future. Benitez v. Wallis, --- F.3d ----, 2005
WL 564136 (11th Cir. Mar. 11, 2005). As we stated:
Clark effectively ends this case. There is no contention that
conditions in Cuba have changed so that Benitez’s removal to Cuba is
reasonably foreseeable. Therefore, until this Country’s relationship
with Cuba changes so that removal is reasonably foreseeable or
Congress amends 8 U.S.C. § 1231(a)(6) to distinguish between
resident aliens and inadmissible aliens, Clark dictates that Benitez is
entitled to be released and paroled into the country. See Clark, 125 S.
Ct. at 727 (“Both Martinez and Benitez were detained well beyond
six months after their removal orders became final. The Government
having brought forward nothing to indicate that a substantial
likelihood of removal subsists despite the passage of six months
(indeed, it concedes that it is no longer even involved in repatriation
negotiations with Cuba); and the District Court in each case having
determined that removal to Cuba is not reasonably foreseeable; the
petitions for habeas corpus should have been granted.”); id. at 721 n.
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3 (noting that Benitez was subject to the conditions of release and 8
U.S.C. § 1253 authorized his detention if he violated the conditions of
release); see also Clark, 125 S. Ct. at 728 (O’Connor, J., concurring)
(“[A]ny alien released as a result of today's holding remains subject to
the conditions of supervised release . . . . And, if he fails to comply
with the conditions of release, he will be subject to criminal
penalties--including further detention.” (citations omitted)).
2005 WL 564136, at *2.
In short, the instant case, which is factually indistinguishable and raises the
same legal issues, is controlled by our decision in Benitez. Accordingly, we
vacate our November 13, 2003 decision, affirming the denial of Perez-Aquillar’s
§ 2241 petition. We VACATE the district court’s denial of the § 2241 petition
and REMAND this case to the district court with instructions to grant the § 2241
petition and order Perez-Aquillar’s parole and release subject to “(1) the
restrictions set forth in his release, and (2) a change in the reasonable
foreseeability of his removal to Cuba so that detention becomes necessary to
effectuate removal.” Benitez, 2005 WL 564136, at *2.
VACATED AND REMANDED WITH INSTRUCTIONS.
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