[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-14324 March 11, 2005
________________________ 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
_________________________
(March 11, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before DUBINA, BLACK and HULL, Circuit Judges.
HULL, Circuit Judge:
Daniel Benitez, a native and citizen of Cuba, is an inadmissible alien who
brought a § 2241 petition challenging his immigration 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 was
possible. Consequently, the district court denied Benitez’s § 2241 petition. This
Court affirmed the denial of Benitez’s § 2241 petition, Benitez v. Wallis, 337 F.3d
1289 (11th Cir. 2003), and Benitez petitioned for certiorari to the United States
Supreme Court. On January 16, 2004, the Supreme Court granted Benitez’s
petition for certiorari. Benitez v. Wallis, 540 U.S. 1147, 124 S. Ct. 1143 (2004).
On January 12, 2005, the Supreme Court reversed the judgment of this
Court and remanded this case for further proceedings in this Court consistent with
its opinion. Clark v. Martinez, 125 S. Ct. 716 (2005). Therefore, this case is again
before this Court.
The facts surrounding Benitez’s illegal immigration into the United States,
his subsequent criminal activity in the United States, and his various removal
proceedings are well documented both in this Court’s earlier decision and in the
Supreme Court’s Clark opinion. Therefore, we do not reiterate those background
facts here. Suffice it to say that Benitez is an inadmissible alien who repeatedly
has violated the laws of the United States, and has been ordered removed from the
United States to Cuba.
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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”). “Under no circumstance 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) (emphasis added).
In Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001), the Supreme
Court interpreted § 1231(a)(6) and addressed the government’s authority to detain
two legal permanent residents beyond the 90-day removal period under
§ 1231(a)(6). In evaluating § 1231(a)(6), the Supreme Court considered whether
indefinite detention of resident aliens beyond the 90-day removal period, as
authorized by § 1231(a)(6), would present constitutional concerns. Ultimately, the
Supreme Court concluded that permitting the indefinite detention of resident
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aliens would present “serious” constitutional concerns. Zadvydas, 533 U.S. at
696, 121 S. Ct. at 2502. However, according to the Supreme Court, “[a]liens who
have not yet gained initial admission to this country would present a very different
question.” Id. at 682, 121 S. Ct. at 2495.
The Supreme Court then saved § 1231(a)(6) from unconstitutionality in the
context of resident aliens by reading into § 1231(a)(6) this limitation on the post-
removal-period detention: a length of time reasonably necessary to bring about the
actual removal of the resident alien. Zadvydas, 533 U.S. at 694-99, 121 S. Ct. at
2502-03. The Supreme Court then recognized six months as a presumptively
reasonable time of post-removal-period detention for resident aliens. Id. at 701,
121 S. Ct. at 2505.
In Clark, the Supreme Court addressed Zadvydas’ application to
inadmissible aliens, like Benitez, where the same constitutional concerns
involving resident aliens were not presented. The Supreme Court determined that:
(1) having read § 1231(a)(6) one way in Zadvydas, it must be read the same way in
subsequent cases; (2) its prior holding in Zadvydas interpreting § 1231(a)(6) thus
applies to aliens deemed inadmissible to the United States; (3) the reasonable
period of post-removal detention is presumptively six months for both admitted
and inadmissable aliens; (4) Benitez’s removal to Cuba is not reasonably
foreseeable; and (5) Benitez’s § 2241 petition should be granted.
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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.1 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
1
In its opinion, the Supreme Court noted that two days after oral argument, Benitez was
released “on a 1-year parole.” Clark, 125 S. Ct. at 721. The Supreme Court concluded that “this
case continues to present a live case or controversy” because Benitez’s one-year parole was “not
only limited to one year, but subject to the Secretary’s discretionary authority to terminate” under
8 C.F.R. § 212.12(h) (2004). Clark, 125 S. Ct. at 721 n.3.
The Supreme Court then contrasted that type of release with the type of release if Benitez
prevails in his § 2241 petition. In so doing, the Supreme Court noted that if Benitez prevails in
this case, Benitez “could not be taken back into custody unless he violated the conditions of
release (in which case detention would be authorized by 8 U.S.C. § 1253), or his detention
became necessary to effectuate his removal (in which case detention would once again be
authorized by § 1231(a)(6)).” Clark, 125 S. Ct. at 721 n.3.
Accordingly, under Clark and because he has now prevailed in this case, Benitez’s parole
is no longer subject to the one-year limitation or the Secretary’s discretionary authority to revoke
parole under § 212.12(h). Rather, Benitez’s parole is subject to (1) the conditions set forth in his
release, and (2) a change in the reasonable foreseeablity of his removal to Cuba so that detention
becomes necessary to effectuate removal.
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should have been granted.”); id. at 721 n.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)).
In light of Clark, we (1) vacate our judgment dated July 17, 2003, affirming
the denial of Benitez’s § 2241 petition, and (2) vacate the district court’s denial of
Benitez’s § 2241 petition. Further, we remand this case to the district court with
instructions for the district court to grant Benitez’s § 2241 petition and to order
that Benitez be paroled and released subject to (1) the conditions set forth in his
release, and (2) a change in the reasonable foreseeablity of his removal to Cuba so
that detention becomes necessary to effectuate removal.
VACATED AND REMANDED WITH INSTRUCTIONS.
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