[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 17, 2003
No. 02-14324 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00019-CV-5-19-MMP
DANIEL BENITEZ,
Petitioner-Appellant,
versus
ROBERT WALLIS, Director INS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 17, 2003)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Daniel Benitez, a native and citizen of Cuba, is an inadmissible alien who
brought this § 2241 petition challenging his indefinite detention. The district
court concluded that the INS’s determinations that Benitez posed a danger to the
community and was likely to engage in further violent behavior were facially
legitimate and bona fide reasons to detain Benitez until removal to Cuba is
possible. Consequently, the district court denied Benitez’s § 2241 petition. After
review and oral argument, we affirm.
I. BACKGROUND
In 1980, Daniel Benitez attempted entry into the United States from the port
of Mariel, Cuba and, in effect, was stopped at the border.1 Benitez then was
paroled into the United States pursuant to § 212(d)(5) of the Immigration and
Nationality Act (“INA”). See 8 U.S.C. § 1182(d)(5). Under § 1182(d)(5), the
Attorney General may “in his discretion parole into the United States temporarily
under such conditions as he may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien applying for
admission to the United States.” 8 U.S.C. § 1182(d)(5).
In 1983, Benitez was convicted in Dade County, Florida, of second degree
grand theft, see Fla. Stat. § 812.014, and was sentenced to three years’ probation.
1
Over the past twenty-five years,
Castro has unleashed massive waves of refugees on the United States to release
the pressure of internal dissent. In the Mariel boat-lift of 1980, Castro let some
125,000 Cubans flee to the United States. Many of these refugees were
dissidents, criminals or mental patients. In the summer of 1994, facing increasing
hostility to his regime and open defiance of the Communist Party, Castro allowed
over 50,000 refugees to flee to the United States on make-shift rafts. After the
exodus of 1994, Castro threatened to unleash another wave of refugees in the
spring of 1995 in an effort to discourage passage of the Helms-Burton Act . . . .
C. Todd Piczak, The Helms-Burton Act: U.S. Foreign Policy Toward Cuba, The National
Security Exception to the GATT and the Political Doctrine, 61 U. Pitt. L. Rev 287, 312-13 (Fall
1999).
2
Sometime thereafter, Benitez submitted an application to adjust his status to that
of a lawful permanent resident. Under applicable immigration laws, Cuban
refugees may apply for permanent resident status once they: (1) have been paroled
into the United States; (2) have been physically present in the United States for
one year; and (3) are eligible to receive an immigrant visa and are admissible to
the United States for permanent residence. See 8 U.S.C. § 1255.2
Under the provisions of § 212(a) of the INA, certain classes of aliens are
ineligible to receive an immigrant visa and are not admissible to the United States
for permanent residence, and thus fail to meet the third condition outlined above.
See 8 U.S.C. § 1182(a). One such class includes “[a]liens who have been
convicted of a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(9) (1983). In
1985, Benitez’s application for permanent resident status was denied because his
criminal conviction for grand theft was a crime involving moral turpitude.3
2
Section one of the Cuban Refugee Adjustment Act of 1966, Pub. L. No. 89-732, 80 Stat.
1161, as amended 8 U.S.C. § 1255, historical and statutory notes, provides:
That, notwithstanding the provisions of Section 245(c) of the Immigration and
Nationality Act, … the status of any alien who is a native or citizen of Cuba and
who has been inspected and admitted or paroled into the United States subsequent
to January 1, 1959, and has been physically present in the United States for at
least one year, may be adjusted by the Attorney General, in his discretion and
under such regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence if the alien makes an application for such adjustment, and
the alien is eligible to receive an immigrant visa and is admissible to the United
States for permanent residence.
3
A second application for adjustment of status filed by Benitez was denied in 1990 for
lack of prosecution.
3
In 1993, Benitez pled guilty to a multi-count criminal indictment in Florida
state court. Specifically, Benitez pled guilty to armed burglary of a structure,
armed burglary of a conveyance, armed robbery, unlawful possession of a firearm
while engaged in a criminal offense, carrying a concealed firearm, aggravated
battery, and unlawful possession, sale or delivery of a firearm with an altered or
removed serial number. The state court sentenced Benitez to 20 years’
imprisonment.
Based on his 1993 criminal convictions in Florida, the INS determined that
Benitez’s continued immigration parole was against the public interest. Pursuant
to 8 C.F.R. § 212.5(d)(2), the INS revoked Benitez’s immigration parole.4
Benitez then was ordered to appear before an immigration judge “to
determine whether he should be excluded and deported.” The notice informed
Benitez that he had a right to counsel and to have a friend or relative present at the
hearing. In 1994, Benitez was found excludable and deportable to Cuba because
of his criminal convictions in Florida.5
4
According to § 212.5(d)(2), “when in the opinion of the district director in charge of the
area in which the alien is located neither emergency nor public interest warrants the continued
presence of the alien in the United States, parole shall be terminated upon written notice to the
alien and he or she shall be restored to the status which he or she had at the time of parole.”
8 C.F.R. § 212.5(d)(2) (1993).
5
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA). See Pub. L. No. 104-208, 110 Stat. 3009, 3009-546 (1996). IIRIRA
made comprehensive changes to the Immigration and Nationality Act (INA), including changes
in immigration terminology. See generally Assa’ad v. United States Atty. Gen., 332 F.3d 1321,
1326-27 (11th Cir. 2003). Previously, individuals who were ineligible for admission to the
4
On October 11, 2001, Benitez was released into INS custody. Benitez’s
status then was reviewed pursuant to the Cuban Review Plan to determine whether
it was in the public interest to release him from INS custody.6 On November 6,
2001, Benitez appeared before the Cuban Review Panel.7
United States were referred to as “excludable,” while those who had gained admission were
referred to as “deportable.” See 8 U.S.C. §§ 1182, 1251 (1994). Excludable aliens are now
referred to as “inadmissible” aliens. See 8 U.S.C. § 1182. Additionally, the amended INA now
uses the term “removal proceedings” to refer to the proceedings applicable to both inadmissible
and deportable aliens. See 8 U.S.C. § 1229a. For the purposes of this opinion, we use the terms
excludable, inadmissable, and unadmitted interchangeably. We do so not to suggest that these
terms under immigration laws will always have the exact same legal meaning, but rather because
these terms as applied to Benitez are without any substantive difference. Benitez is excludable
under the prior version of the INA, inadmissable under IIRIRA, and his immigration parole never
constituted a formal admission or entry into the United States.
6
Before the Cuban Review Panel makes a recommendation that a detainee be granted
parole, a majority of the Panel must conclude that: “(i) The detainee is presently a nonviolent person;
(ii) The detainee is likely to remain nonviolent; (iii) The detainee is not likely to pose a threat to
the community following his release; and (iv) The detainee is not likely to violate the conditions
of his parole.” 8 C.F.R. § 212.12(d)(2).
The panel also must consider the following factors when determining whether to
recommend further detention or release on parole of a detainee: “(i) The nature and number of
disciplinary infractions or incident reports received while in custody; (ii) The detainee’s past
history of criminal behavior; (iii) Any psychiatric and psychological reports pertaining to the
detainee’s mental health; (iv) Institutional progress relating to participation in work, educational
and vocational programs; (v) His ties to the United States, such as the number of close relatives
residing lawfully here; (vi) The likelihood that he may abscond, such as from any sponsorship
program; and (vii) Any other information which is probative of whether the detainee is likely to
adjust to life in a community, is likely to engage in future acts of violence, is likely to engage in
future criminal activity, or is likely to violate the conditions of his parole.” 8 C.F.R.
§ 212.12(d)(3).
7
According to § 212.12(d)(1),
The Director shall designate a panel or panels to make parole recommendations to
the Associate Commissioner for Enforcement. A Cuban Review Panel shall,
except as otherwise provided, consist of two persons. Members of a Review
Panel shall be selected from the professional staff of the Service. All
recommendations by a two-member Panel shall be unanimous. If the vote of a
two-member Panel is split, it shall adjourn its deliberations concerning that
particular detainee until a third Panel member is added. A recommendation by a
5
On January 11, 2002, Benitez filed this § 2241 petition challenging his
indefinite detention by the INS. On January 17, 2002, Benitez received a Notice
of Releaseability, in which a Cuban Review Panel concluded that Benitez was
releaseable under the criteria established by the Cuban Review Plan at such time
as the INS determined that a suitable sponsorship to a half-way house could be
arranged.8 See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.12 (2002) (Parole
determinations and revocations respecting Mariel Cubans). On March 10, 2003,
Benitez’s Notice of Releaseability was revoked because the INS concluded,
without a hearing, that Benitez was involved in a planned jail escape. See 8
C.F.R. § 212.12(e).9 Therefore, Benitez’s current detention results not only from
his inadmissible alien status, but also from his violations of the conditions of his
earlier immigration parole and the INS’s determination that he has not refrained
from criminal conduct while in custody.10
three-member Panel shall be by majority vote. The third member of any Panel
shall be the Director of the Cuban Review Plan or his designee.
8 C.F.R. § 212.12(d)(1).
8
Although the Notice was served/delivered on January 17, 2002, it is dated December 13,
2001.
9
Benitez disputes his involvement in the planned jail escape. This issue, however, is not
before this Court.
10
Mariel Cubans who are being detained have their cases reviewed every year to
determine whether they should be paroled. See 8 C.F.R. § 212.12(g)(2). There is no claim on
appeal before this Court that Benitez has not received annual consideration for immigration
parole in accordance with the Cuban Review Plan. Inadmissable aliens other than Mariel Cubans
are considered for parole under similar procedures. See 8 C.F.R. § 241.4.
6
Benitez, proceeding pro se before the district court, asserted that his
indefinite detention was unconstitutional in light of the Supreme Court’s decision
in Zadvydas v. Davis, 533 U.S. 678 (2001). According to the district court, the
fact that Benitez was a “non-admitted parolee” made Zadvydas inapplicable
because Zadvydas limited its holding to resident aliens. The district court
concluded that the INS reasonably determined that Benitez was a danger to the
community and was likely to engage in future criminal conduct. The district court
further concluded that these determinations warranted Benitez’s detention until he
could be removed to Cuba. Finding no constitutional or statutory prohibition
against Benitez’s indefinite detention, the district court denied Benitez’s § 2241
petition. Benitez timely appealed, and this Court, in its discretion, appointed
counsel to represent Benitez on appeal.
II. DISCUSSION
Benitez does not challenge the fact that he (1) attempted to enter illegally
the United States, (2) never formally has been admitted into this country, and (3) is
properly subject to removal. Instead, Benitez filed his § 2241 petition arguing
only that his indefinite detention is impermissible given the Supreme Court’s
7
decision in Zadvydas.11 On appeal, Benitez asserts that his indefinite detention
violates both the United States Constitution and federal law.12
The INS continues to detain Benitez pursuant to 8 U.S.C. § 1231(a)(6).
Thus, we first discuss § 1231(a)(6) and how the Supreme Court interpreted
§ 1231(a)(6) in Zadvydas. We then analyze the legal issues presented in Benitez’s
appeal.
A. 8 U.S.C. § 1231(a)(6)
After an alien, such as Benitez, is ordered removed from the United States,
the Attorney General must attempt to secure the alien’s removal within 90 days.
See 8 U.S.C. § 1231(a)(1) (the “removal period”).13 “Under no circumstance
11
The Supreme Court has determined that habeas jurisdiction under § 2241 for cases
involving aliens was not repealed by ADEPA or IIRIRA. See INS v. St. Cyr, 533 U.S. 289, 314
(2001); see also Zadvydas, 533 U.S. at 688 (concluding that Ҥ 2241 habeas corpus proceedings
remain available as a forum for statutory and constitutional challenges to post-removal-period
detention”).
12
The government does not contend that repatriation by Cuba of Benitez is reasonably
foreseeable. Thus, we accept Benitez’s claim that he, at present, is subject to indefinite
detention.
13
In its response brief on appeal, the government asserts that pre-IIRIRA rules govern
Benitez’s indefinite detention. However, in the district court proceedings, the government relied
on IIRIRA, did not assert that pre-IIRIRA rules applied, and did not dispute (in any way) the
district court’s application of IIRIRA. Therefore, the issue of whether IIRIRA applies to
Benitez’s claims has been waived by the government in this particular case. See Onishea v.
Hopper, 171 F.3d 1289, 1305 (11th Cir. 1999) (en banc); Depree v. Thomas, 946 F.2d 784, 793
(11th Cir. 1991). Consequently, we apply IIRIRA to this case, but note that IIRIRA’s application
in Benitez’s case is not free from doubt because the deportation proceedings against Benitez
commenced in 1993 and Benitez’s final deportation order was entered in 1994, both events well
prior to IIRIRA. See Rosales-Garcia v. Holland, 322 F.3d 386, 401-03 (6th Cir. 2003) (en banc)
(discussing which statute to apply), cert. denied, 71 U.S.L.W. 3652, 3787, 3789 (U.S. June 23,
2003) (No. 02-1464); cf Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.2 (11th Cir. 2002)
(applying IIRIRA to an indefinite detention claim where deportation proceedings commenced in
8
during the removal period shall the Attorney General release an alien who has
been found inadmissible . . . .” 8 U.S.C. § 1231(a)(2). Congress, however,
recognized that securing an alien’s actual removal within 90 days is not always
possible. Consequently, § 1231(a)(6) expressly authorizes the Attorney General to
detain aliens beyond the 90-day removal period, as follows:
An alien ordered removed who is inadmissible under section 1182 of
this title, removable [for violations of nonimmigrant status or entry
conditions, violations of criminal laws, or threatening national
security] or who has been determined by the Attorney General to be a
risk to the community or unlikely to comply with the order of
removal, may be detained beyond the removal period and, if released,
shall be subject to the terms of supervision in paragraph (3).
8 U.S.C. § 1231(a)(6).
B. Zadvydas
In Zadvydas, the Supreme Court expressly addressed whether the
government’s authority under § 1231(a)(6) to detain two legal permanent residents
beyond the 90-day removal period allowed the government to detain them
indefinitely. The two legal permanent residents were ordered removed based on
1995, prior to IIRIRA, but the final order of deportation was entered on October 3, 1997, after
IIRIRA); see also Alanis-Bustamante v. Reno, 201 F.3d 1303, 1306-07 (11th Cir. 2000)
(discussing how Congress divided deportation proceedings into three categories). Thus, we
expressly do not address whether Benitez’s indefinite detention claims in his § 2241 petition
should be tied to his 1994 deportation order and governed by pre-IIRIRA law or whether IIRIRA
applies because Benitez is not challenging his 1994 deportation order but only the length of his
detention pursuant to that order.
9
criminal convictions. The government, however, could not effectuate their
removal because no country would accept them.
Specifically, Kestutis Zadvydas was a legal permanent resident alien of
Lithuanian decent, who was born in a displaced persons camp in Germany in
1948. Zadvydas, 533 U.S. at 684. Zadvydas had a long criminal history and also
a long history of flight, both in his criminal proceedings and his deportation
proceedings. Id. In 1992, Zadvydas was convicted of possession with intent to
distribute cocaine and was sentenced to 16 years’ imprisonment in state prison.
Id. After only two years’ imprisonment, he was released into INS custody and
ordered deported to Germany. Id.
Germany, however, refused to accept Zadvydas because he was not a
German citizen. Id. Next, the INS attempted to deport Zadvydas to Lithuania. Id.
Lithuania refused to accept Zadvydas because he was not a citizen or a permanent
resident of Lithuania. Id. The INS also tried unsuccessfully to deport Zadvydas to
the Dominican Republic (Zadvydas’s wife’s country). Id.14
14
The district court ordered Zadvydas released under supervision because it believed that
“the Government would never succeed in its efforts to remove Zadvydas from the United States,
leading to his permanent confinement, contrary to the Constitution.” Zadvydas, 533 U.S. at 685.
The Fifth Circuit reversed, concluding “that Zadvydas’ detention did not violate the Constitution
because eventual deportation was not ‘impossible,’ good-faith efforts to remove him from the
United States continued, and his detention was subject to periodic administrative review.” Id.;
see also Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999).
10
In Zadvydas, the Supreme Court also considered the case of Kim Ho Ma.
Id. at 685. Ma was born in Cambodia, but fled to the United States at an early age.
Id. In 1995, Ma was convicted of manslaughter and was sentenced to 38 months’
imprisonment. Id. After two years’ imprisonment, he was released into INS
custody and ordered removed. Id. The United States, however, has no repatriation
treaty with Cambodia. Id. at 686. Having no place to send Ma, the INS kept him
in custody because “it was unable to conclude that Mr. Ma would remain
nonviolent and not violate the conditions of release.” Id. at 685-86 (internal
quotation marks omitted).15
In evaluating indefinite detention in Zadvydas, the Supreme Court
considered whether indefinite detention of resident aliens, if authorized by
§ 1231(a)(6) as the government contended, would present constitutional problems.
The Supreme Court acknowledged that the two resident alien petitioners in
Zadvydas enjoyed certain constitutional privileges associated with individuals
who have gained entry into the United States. Id. at 693.
15
In the district court, more than one hundred habeas corpus petitioners, like Ma,
challenged their ongoing detention by the INS. The district court designated five lead cases that
presented issues common to all petitioners and directed the parties to brief and argue those issues
before five district court judges. The five district court judges issued a joint order establishing a
legal framework to apply in each individual case. The five-judge panel determined that the
Constitution forbids post-removal detention unless there is a realistic chance that the alien will be
deported. The panel further concluded that because there was no repatriation agreement with
Cambodia, there was no realistic chance that Ma and the others would be deported. A single
judge then applied this ruling to Ma and held that he should be released. The Ninth Circuit
affirmed Ma’s release for essentially the same reasons as outlined by the panel of five judges.
See Kim Ho Ma v. Reno, 208 F.3d 815 (9th Cir. 2000).
11
In Zadvydas, the Supreme Court also explained that Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206 (1953), permits the indefinite detention of
unadmitted aliens whom the government is unable to return anywhere else, but
noted that Mezei “differs from the present cases [in Zadvydas] in a critical
respect.” Zadvydas, 533 U.S. at 693. The critical difference is that the alien in
Mezei was “treated, for constitutional purposes, as if stopped at the border.”
Zadvydas, 533 U.S. at 693 (internal citations omitted). According to the Supreme
Court in Zadvydas, “that made all the difference” in its earlier decision that
Mezei’s indefinite detention did not violate the Constitution. Id.
In Zadvydas, the Supreme Court further stressed that “[t]he distinction
between an alien who has effected an entry into the United States and one who has
never entered runs throughout immigration law.” 533 U.S. at 693. The Supreme
Court also emphasized that “[i]t is well established that certain constitutional
protections available to persons inside the United States are unavailable to aliens
outside of our geographic borders.” Id. (citations omitted). “But once an alien
enters the country, the legal circumstance changes, for the Due Process Clause
applies to all ‘persons’ within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.” Id. (citations
omitted).
12
After an extended discussion of the serious constitutional problems of
permitting the indefinite detention of legal permanent residents as opposed to
unadmitted aliens, the Supreme Court in Zadvydas saved § 1231(a)(6) from
unconstitutionality in the context of a resident alien by limiting the post-removal-
period detention to a length of time reasonably necessary to bring about the actual
removal of the resident alien. Id. at 694-99. The Supreme Court then recognized
six months as a presumptively reasonable time of post-removal-period detention
for resident aliens. Id. at 699-702.
C. Circuit Split Post-Zadvydas
A circuit split has developed as to whether Zadvydas limits only the
government’s authority to detain resident aliens or whether Zadvydas applies to all
categories of aliens. Compare Borrero v. Aljets, 325 F.3d 1003, 1007 (8th Cir.
2003) (concluding “that Zadvydas’s six-month presumption of reasonableness is
inapplicable to inadmissible aliens”); Rios v. I.N.S., 324 F.3d 296, 297 (5th Cir.
2003) (concluding that Zadvydas “distinguished the status of deportable aliens
from that of excludable aliens”); Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th
Cir. 2001) (concluding that an inadmissible alien’s “continued detention does not
violate due process”), cert. denied, 123 S. Ct. 185 (2002); with Rosales-Garcia v.
Holland, 322 F.3d 386, 408 (6th Cir. 2003) (en banc) (applying the reasonableness
limitation that the Supreme Court read into § 1231(a)(6) in Zadvydas to
13
inadmissible aliens), cert. denied, 71 U.S.L.W. 3652, 3787, 3789 (U.S. June 23,
2003) (No. 02-1464); Xi v. I.N.S., 298 F.3d 832, 837-39 (9th Cir. 2002) (same).16
Although a circuit split exists, the Supreme Court has denied certiorari in cases
representing both viewpoints.
This case, however, requires us to join the debate and determine whether
unadmitted aliens, post-Zadvydas, may be detained indefinitely under
§ 1231(a)(6). To do so, we first discuss why Benitez remains an inadmissable
alien and then whether inadmissible aliens have a constitutional right to be free
from indefinite detention. We then examine whether the reasonableness
component, as read into § 1231(a)(6) by the Supreme Court in Zadvydas, applies
to inadmissible aliens.
D. Benitez Is an Inadmissible Alien
Because the status of the alien affects the issues herein, we begin by
confirming Benitez’s alien status. Although Benitez has been present physically
16
The Sixth Circuit decision in Rosales was the result of an interesting procedural history.
The district court denied the petitioner’s § 2241 petition. The Sixth Circuit reversed the district
court on January 31, 2001, and concluded that the indefinite detention of inadmissible aliens
violates the Fifth Amendment. Following Zadvydas, the government petitioned the Supreme
Court for certiorari, requesting that the Sixth Circuit’s decision be vacated and remanded in light
of Zadvydas. The Supreme Court granted the government’s motion and vacated and remanded
the case for reconsideration in light of Zadvydas. The Sixth Circuit then heard the case on
remand en banc and concluded that the Supreme Court’s interpretation of § 1231(a)(6) applied to
all classes of aliens. The Supreme Court then denied certiorari.
14
in the United States for more than 20 years, we readily conclude that Benitez never
formally has been admitted and remains an inadmissable alien.
As mentioned above, Benitez arrived in the United States as part of the
Mariel boat-lift, was stopped at the border, and paroled into this country. He was
paroled because Congress has recognized that it is often necessary to permit
arriving aliens, such as Benitez, to make a temporary, unofficial entry into the
United States pending the resolution of their applications. See Mezei, 345 U.S. at
215; see also 8 U.S.C. § 1225(b) (alien who does not appear to examining
immigration officer to be entitled to land may be detained for further inquiry); 8
U.S.C. § 1182(d)(5)(A) (granting authority to the Attorney General to parole
aliens seeking admission into the United States, but providing that parole does not
constitute an admission of the alien). Furthermore, the Supreme Court has
rejected claims that the parole or detention of an unadmitted alien has any effect
on the alien’s status under the law. See Leng May Ma v. Barber, 357 U.S. 185,
188 (1958).17 Because an alien’s legal status is not altered by detention or parole,
it is clear that Benitez is, and remains, an inadmissable alien and is similar to any
17
In Leng May Ma, the Supreme Court noted that “[f]or over a half century this Court has
held that the detention of an alien in custody pending determination of his admissibility does not
legally constitute an entry though the alien is physically within the United States.” 357 U.S. at
188. Likewise, the Supreme Court explained that “[t]he parole of aliens seeking admission is
simply a device through which needless confinement is avoided while administrative proceedings
are conducted. It was never intended to affect an alien’s status . . . .” Id. at 190; see also Mezei,
345 U.S. at 215 (alien permitted to enter pending a decision on admissibility “is treated as if
stopped at the border”). This principle has become known as the “entry doctrine” fiction.
15
other alien who has not gained entry and is stopped at this country’s border. See
Jean v. Nelson, 727 F.2d 957, 969-70 (11th Cir. 1984) (en banc).
Any discussion of Benitez’s rights in the immigration context must also
start with the fundamental difference in the legal status of (1) unadmitted aliens
and (2) resident aliens who have effected “entry” into the United States, whether
illegally or legally. This critical difference not only was recognized in Zadvydas,
but has been a hallmark of immigration law for more than a hundred years. For
example, in Leng May Ma, the Supreme Court emphasized that “our immigration
laws have long made a distinction between those aliens who have come to our
shores seeking admission . . . and those who are within the United States after an
entry, irrespective of its legality.” 357 U.S. at 187. The Supreme Court continued
that “[i]n the latter instance the Court has recognized additional rights and
privileges not extended to those in the former category who are merely ‘on the
threshold of initial entry.’” Id. (quoting Mezei, 345 U.S. at 212).
The Supreme Court further has explained that aliens seeking admission,
such as Benitez, have no constitutional rights regarding their applications for
admission. See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“[A]n alien seeking
admission to the United States requests a privilege and has no constitutional rights
regarding his application, for the power to admit or exclude aliens is a sovereign
prerogative . . . . [H]owever, once an alien gains admission to our country and
16
begins to develop the ties that go with permanent residence his constitutional
status changes accordingly.”); Kwong Hai Chew v. Colding, 344 U.S. 590, 600
(1953) (“‘excludable’ aliens . . . are not within the protection of the Fifth
Amendment”); Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J.,
concurring) (“The Bill of Rights is a futile authority for an alien seeking admission
for the first time to these shores.”).
E. Constitutional Analysis
Against this background, we now examine whether, post-Zadvydas, the
indefinite detention of an inadmissable alien, like Benitez, violates the
Constitution. As mentioned above, the Supreme Court in Mezei expressly
addressed the government’s authority to detain indefinitely unadmitted aliens.
Mezei had lived in the United States for approximately 25 years. 345 U.S. at 208.
He left the United States in 1948, without authorization or reentry papers, and
resided in Hungary for 19 months. Id. He then attempted to return to the United
States. Id. The United States refused to admit Mezei into the country, and he was
detained indefinitely on Ellis Island.
Because Mezei had voluntarily left the country, the Supreme Court had “no
difficulty in holding respondent an entrant alien or ‘assimilated to [that] status’ for
constitutional purposes.” Mezei, 345 U.S. at 214 (quoting Kwong Hai Chew v.
Colding, 344 U.S. 590, 599 (1953)). The Supreme Court also stated that:
17
It is true that aliens who have once passed through our gates, even
illegally, may be expelled only after proceedings conforming to
traditional standards of fairness encompassed in due process of law.
But an alien on the threshold of initial entry stands on a different
footing: Whatever the procedure authorized by Congress is, it is due
process as far as an alien denied entry is concerned.
Mezei, 345 U.S. at 212 (internal citations and quotation marks omitted). The
Supreme Court concluded that the unadmitted alien’s continued, even indefinite,
detention did not deprive him of any statutory or constitutional rights. Id. at 215.
This Court, sitting en banc, also has addressed the constitutional rights of
inadmissible aliens in the context of indefinite detention. In Jean v. Nelson, 727
F.2d 957 (11th Cir. 1984) (en banc), this Court considered a group of Haitian
aliens who were inadmissible and were being detained at various INS facilities
pending a final determination of the merits of their individual asylum claims.
After noting “the fundamental distinction between the legal status of excludable or
unadmitted aliens and aliens who have succeeded in effecting an ‘entry’ into the
United States,” this Court concluded that “[a]liens seeking admission to the United
States . . . have no constitutional rights with regard to their applications and must
be content to accept whatever statutory rights and privileges they are granted by
Congress.” Jean, 727 F.2d at 967-68.
This Court then addressed the concerns of the critics of a policy or legal
system that allowed for the indefinite detention of aliens. In Jean, this Court noted
that
18
[s]ome courts and commentators have suggested that when an
exercise of the government’s power to exclude results in an indefinite
detention of an excludable alien, at some point the continued
imprisonment becomes punishment, regardless of the legal
justifications or fictions involved. These authorities contend that at
this juncture the government should be required to make some
justification to continue to detain the alien.
Id. at 974. The Jean Court concluded “that we must resist the temptation to tamper
with the authority of the Executive by ruling that excludable aliens have
constitutional rights [against indefinite detention], even with regard to their
applications for parole.” Id. at 975.
The Jean decision is based on Mezei. Although Mezei has been criticized
heavily by academic commentators, it remains good law. As mentioned above,
Mezei is distinguished and preserved, but is not overruled, in Zadvydas. See
Zadvydas, 533 U.S. at 693-94. As Mezei remains valid precedent, so does Jean.
Consequently, we conclude that inadmissible aliens, like Benitez, have no
constitutional rights precluding indefinite detention. See, e.g., Borrero, 325 F.3d
at 1007-08; Rios, 324 F.3d at 297; Hoyte-Mesa, 272 F.3d at 991.
F. Statutory Right under § 1231(a)(6)
Although Benitez does not have a constitutional right precluding indefinite
detention, we also must consider whether he has a statutory right under
§ 1231(a)(6), post-Zadvydas, prohibiting indefinite detention. As previously
mentioned, a circuit split has developed as to the breadth of Zadvydas’s holding.
19
The Fifth, Seventh, and Eighth Circuits have concluded that Zadvydas does not
affect the government’s long-standing authority to detain indefinitely unadmitted
aliens. Although three circuits have so concluded, the Fifth Circuit in Rios and the
Seventh Circuit in Hoyte-Mesa do not engage in any statutory analysis of how
§ 1231(a)(6) must be read after Zadvydas. Rather, they simply conclude that
Zadvydas did not overrule Mezei and, therefore indefinite detention of unadmitted
aliens is permissible. This conclusion, however, begs the separate question of
statutory construction and whether the Supreme Court’s interpretation of
§ 1231(a)(6) in Zadvydas must now apply uniformly to all types of aliens.
The Eighth Circuit in Borrero specifically does address the statutory issue of
whether the Zadvydas Court’s statutory construction of § 1231(a)(6) as containing
a “reasonableness” component must apply categorically to all aliens, regardless of
the alien’s legal status. Borrero, 325 F.3d at 1005-07. The Eighth Circuit
concluded that Zadvydas’s narrowing construction of § 1231(a)(6) does not limit
the government’s statutory authority to detain unadmitted aliens “[b]ecause the
detention of unadmitted aliens does not raise the same constitutional concerns as
does the detention of admitted aliens.” Id. at 1005. The Eighth Circuit stressed
that “[t]he constitutional issue avoided in Zadvydas is simply not present in the
context of aliens who have not effected an entry into the United States.” Id. at
1007.
20
In doing so, the Eighth Circuit expressly rejected alien Borrero’s argument
that the same statutory construction of § 1231(a)(6) must apply “categorically to
all future cases whether or not the circumstances raise the same constitutional
questions.” Borrero, 325 F.3d at 1007. The Eighth Circuit acknowledged that the
Ninth and the Sixth Circuits have taken the view that the same construction must
apply, but the Eighth Circuit disagreed for several reasons. Id.
First, the Eighth Circuit “interpret[ed] Zadvydas as limiting the detention of
only those aliens whose detention raises serious constitutional doubt – admitted
aliens.” Borrero, 325 F.3d at 1007. Second, the Eighth Circuit emphasized that
“Zadvydas itself does not mandate uniform application of § 1231(a)(6) to all
aliens.” Id. The Eighth Circuit reached this conclusion based, in part, on the
Supreme Court’s notation that “‘terrorism or other special circumstances’ may
justify greater deference to Congress and the Executive.” Id. (quoting Zadvydas,
533 U.S. at 697). Third, the Eighth Circuit stressed how Zadvydas “expressly
distinguished Mezei on the grounds that Mezei had not made an entry into the
United States.” Borrero, 325 F.3d at 1007. Based on these reasons, the Eighth
Circuit concluded that “Zadvydas’s six-month presumption of reasonableness is
inapplicable to inadmissable aliens.” Id.
We find the Eighth Circuit’s reasoning persuasive and interpret Zadvydas as
limiting the detention period of only those aliens whose continued confinement
21
raises serious constitutional doubt, i.e., resident aliens who have effected entry.
See id.; Xi, 298 F.3d at 841-42 (9th Cir. 2002) (Rymer, J., dissenting). But see
Rosales-Garcia, 322 F.3d at 408; Xi, 298 F.3d at 837-39. In addition to the
rationale given by the Eighth Circuit in Borrero, we adopt this view for several
other reasons.
First, Zadvydas reads like an as-applied constitutional challenge where the
Supreme Court repeatedly stated that its holding would not necessarily apply to
other situations. As previously stated, Zadvydas opens with the statement that
“[a]liens who have not gained initial admission to this country would present a
very different question.” Zadvydas, 533 U.S. at 682. Because Zadvydas was
qualified in so many respects and reads like an as-applied decision, we conclude
that the Supreme Court left the law, and it seems to us the statutory scheme too,
intact with respect to inadmissible aliens who never have been admitted into the
United States.
Second, as does the dissent in the Ninth Circuit’s Xi decision, we “take the
Supreme Court at its word: while indefinite detention raises serious constitutional
questions in the case of aliens who have been admitted to the United States,
‘[a]liens who have not yet gained initial admission to this country would present a
very different question.’” Xi, 298 F.3d at 840 (Rymer, J., dissenting) (quoting
Zadvydas, 533 U.S. at 682). As does the Xi dissent, we reject the argument that
22
Zadvydas leaves us little choice but to apply § 1231(a)(6) uniformly to all aliens.
See Xi, 298 F.3d at 841 (Rymer, J., dissenting). As aptly stated by Judge Rymer,
“[w]e do have a choice because the Court’s interpretation was discrete as to
admitted aliens” and “[i]t was driven by the need to avoid constitutional problems
that pertain to those who are admitted – but that do not pertain to those who are
not admitted.” Id. We further agree with Judge Rymer that “[t]he result is a
nuanced interpretation of § 1231(a)(6) that keeps it from being applied
unconstitutionally but otherwise leaves it alone. When a statute has different
applications, it is not necessary to say that it is categorically infirm; it is only the
constitutionally problematic aspects which are subject to the construction that
avoids the problem.” Id.
Third, Zadvydas emphasizes: “Nor do the cases before us require us to
consider the political branches’ authority to control entry into the United States.
Hence we leave no ‘unprotected spot in the Nation’s armor.’” Zadvydas, 533 U.S.
at 695-96 (citation omitted). The ability to exclude aliens from this country at its
borders is a duty entrusted to the Executive Branch so that it may protect the
citizens and residents of this country from all manner of nameless dangers.
Creating a right to parole for unadmitted aliens after six months would create an
unprotected spot in this country’s defense of its borders. For example, it may be
the case that the government will not be able to determine what potential dangers a
23
particular unadmitted alien might pose. In such a situation, the government
historically has enjoyed broad latitude in detaining those aliens until their security
threat can be fully ascertained. Removing this important tool from the
government’s arsenal undoubtedly would subject the residents of this nation to
greater security risks.
Moreover, in the instant case, the government already has determined that
Benitez poses a danger to the community and is likely to engage in further violent
behavior, and therefore is a security threat. Benitez engaged in serious criminal
conduct while paroled into this country. Even after his parole was revoked based
on his criminal convictions, the INS again issued a Notice of Releaseability, but
later revoked that Notice based on its determination that Benitez still refused to
conform his conduct to the laws of this nation. In light of Benitez’s criminal
history, requiring Benitez’s release after six months’ detention does, in fact, create
the very “unprotected spot in the Nation’s armor” that the Supreme Court sought
to avoid in Zadvydas. See Xi, 298 F.3d at 842 (Rymer, J., dissenting). We decline
to read § 1231(a)(6) so as to deprive the Executive Branch of this authority absent
an express statement from the Supreme Court to the contrary.
Fourth, ideally Benitez should be returned as soon as possible to his own
country. However, this cannot happen if his own country will not allow it.
Congress has given the Attorney General the discretion to detain or parole persons
24
who are not admitted into this country and whose own country will not take them
back. In light of the fact that the Supreme Court in Zadvydas went to such great
lengths to distinguish inadmissible aliens, we shall not fetter that discretion by
presumptively requiring their release into this country after six months. As stated
by Judge Rymer, “Congress did not prescribe it, nor does a serious constitutional
doubt compel it, and we have no call to construe § 1231(a)(6) to contain this
limitation for inadmissible aliens.” Xi, 298 F. 3d at 843 (Rymer, J., dissenting).
Fifth and finally, reading § 1231(a)(6) as creating a right to parole into this
country after six months for inadmissible aliens is undoubtedly a drastic expansion
of the rights of inadmissible aliens, who have never gained entry into this country.
It is without question that Congress had a contrary intention when enacting
IIRIRA: it sought to tighten immigration regulations. As the very language of
IIRIRA mandates, courts are not to construe IIRIRA to “create any substantive or
procedural right or benefit that is legally enforceable.” 8 U.S.C. § 1231(h). It is
also clear that Congress intended the use of the term “inadmissibility” to subject
removable aliens to the same potential for indefinite detention – if they could not
be removed after the commission of a serious crime – to which excludable aliens
had been subject both statutorily and constitutionally for years. See, e.g., S. Rep.
104-249, 1996 WL 180026 at *7 (“The opportunity that U.S. immigration law
25
extends to aliens to enter and remain in this country is a privilege, not an
entitlement.”).
Inadmissible aliens such as Benitez never truly have resided in this country
free from restraint. Rather, Congress has bestowed on them the luxury of parole
while their immigration applications and status are finalized. To pervert this gift
from Congress into a right after six months not only would distort Congress’s
intent and potentially create grave security concerns for the people of the United
States, but also would create needless difficulties in how the INS processes aliens.
Because Zadvydas’s holding is qualified in so many regards, and there is no need
to construe § 1231(a)(6) to avoid constitutional due process concerns for
inadmissible aliens, the government has the authority under § 1231(a)(6) to detain
inadmissable aliens indefinitely and Zadvydas’s six-month presumption of
reasonableness is inapplicable to inadmissible aliens.
III. CONCLUSION
For all the above reasons, we affirm the district court’s denial of Benitez’s
§ 2241 petition.
AFFIRMED.
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