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                           United States Court of Appeals
                                    Tenth Circuit
                                     AUG 2 2001
                                   PATRICK FISHER
                           UNITED STATES COURT OF APPEALS
                                   TENTH CIRCUIT
         ROLANDO MORENO SIERRA,           
                                          No. 99-1379
         J.C.  HIGGINS,                   

                    Appeal from the United States District Court
                            for the District of Colorado
                                (D.C. No. 99-K-518)
         Submitted on the briefs:(1)
         Rolando Moreno Sierra, pro se.
         Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant 
         Federal Public Defender, Denver, Colorado, for Petitioner-Appellant.
         Mark C. Walters, Assistant Director, and Loreto S. Geisse, Attorney, Office of 
         Immigration Litigation, Department of Justice, Washington, D.C.; and Michael E.

         (1)     After examining the briefs and appellate record, this panel had determined 
         unanimously to honor the parties' request for a decision on the briefs without 
         oral argument. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).  The case is 
         therefore submitted without oral argument.  We also deny Sierra's pro se "Motion 
         to Suppress Immigration and Naturalization Service Brief on Ground of Perjury."
         Hegarty, Assistant United States Attorney, Denver, Colorado, for Respondents-
         Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.
         EBEL, Circuit Judge.
              Rolando Moreno Sierra is an excludable alien(1) who is currently detained in 

         a federal prison pending Cuba's decision to allow him back into that country.  In 

         1998, he was recommended for parole, but he was involved in a prison fight 

         before his release and his parole was subsequently withdrawn.  He filed a pro se 

         petition for a writ of habeas corpus, arguing that the Due Process Clause entitles 

         him to a hearing on the withdrawal of parole and an opportunity to appeal the 

         disciplinary conviction for fighting.  The district court dismissed his petition on 

         the merits.  We hold that the Illegal Immigration Reform and Immigrant 

         Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 

         3009-546 (codified as amended in scattered sections of 8 U.S.C.), did not deprive 

         us of jurisdiction to consider Sierra's petition.  On the merits, we find that Sierra 

         has received the process he is due and we therefore AFFIRM.

         (1)     An "excludable" alien is one who is ineligible for admission to the United 
         States.  United States v. Landeros-Mendez, 206 F.3d 1354, 1355 n.1 (10th Cir. 
         2000).  The terminology has since been changed; such aliens are now referred to 
         as "inadmissible."  Id.


              Sierra is a Cuban who came to the United States during the 1980 Mariel 

         boat lift.  He was paroled into the United States.  Over the next twelve years, he 

         was convicted of several crimes, including theft.  Because of this criminal 

         history, the Immigration and Naturalization Service (INS) denied his application 

         to become a lawful permanent resident in 1987.  In 1992, an immigration judge 

         denied Sierra's application for asylum and ordered that he be excluded and 

         deported.  Sierra's appeal of this decision was summarily dismissed by the Board 

         of Immigration Appeals.  Because Cuba will not accept him back, Sierra has been 

         detained in federal prisons for most of the last eight years.

              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). 

         A Cuban Review Panel makes a recommendation to the Associate Commissioner 

         for Enforcement of the INS, who has the discretion to approve parole.  See id. 

         . 212.12(b), (d).  This approval may be withdrawn prior to release if "the 

         conduct of the detainee, or any other circumstance, indicates that parole would no 

         longer be appropriate."  Id. . 212.12(e).

              Sierra was denied parole in 1992 because of his "tendency to engage in 

         criminal activities as reflected by [his] extensive criminal record."  In 1994, he 

         was released to a halfway house, but his parole was revoked six months later
         because he had violated its conditions.  He was denied parole again in 1995, 

         1996, and 1997.  While detained in prison, he was disciplined for numerous 

         incidents, such as insolence, refusing an order, threatening others, and minor 


              On July 28, 1998, the Review Board recommended that he be paroled to a 

         halfway house, noting that he had no disciplinary incidents in 1998.  Before his 

         release, however, he was cited for fighting.  After a disciplinary hearing, a 

         discipline hearing officer rejected Sierra's argument that he was acting in self-

         defense and upheld the charge.  Sierra claims he has administratively appealed 

         the discipline entered as a result of this hearing.  Because of the fighting incident 

         and apparently while Sierra's disciplinary appeal was pending, the Associate 

         Commissioner for Enforcement, without a hearing, withdrew approval for 

         Sierra's parole.

              Sierra filed a petition for a writ of habeas corpus under 28 U.S.C. . 2241 

         in the district court.  In his petition, he argued: (1) he was entitled to a hearing on 

         the parole withdrawal and (2) the Cuban Review Panel should not have 

         withdrawn his parole while his appeal of the disciplinary decision was pending. 

         The district court denied the petition on the merits, finding that the Due Process 

         Clause did not entitle Sierra to a hearing on his parole withdrawal or the right to
         await the outcome of his appeal of the disciplinary hearing before the parole 

         withdrawal proceeding continued.


         I.  Jurisdiction

              We have an independent duty to examine issues relating to our jurisdiction. 

         Ho v. Greene, 204 F.3d 1045, 1050 (10th Cir. 2000).  Accordingly, we appointed 

         counsel to represent Sierra and requested supplemental briefing on the federal 

         courts' subject-matter jurisdiction.  We now hold that IIRIRA did not strip the 

         federal courts of jurisdiction to consider Sierra's habeas petition.(2)

               IIRIRA added a provision to federal law restricting court review of 

         discretionary decisions in the immigration context:

                    Notwithstanding any other provision of law, no court shall 
              have jurisdiction to review  
                   . . .
                             (ii) any other decision or action of the Attorney General 
                   the authority for which is specified under this subchapter to be 
                   in the discretion of the Attorney General, other than the 
                   granting of relief under [asylum law].
         8 U.S.C. . 1252(a)(2)(B).

              There are two reasons why this provision does not apply in this case.  First, 

         this statute addresses only "jurisdiction to review."  In the immigration context, 

         "jurisdiction to review" has a meaning distinct from "habeas corpus," and a 

         statute stripping courts of the former does not also deprive them of the ability to 

         hear a habeas challenge.  INS v. St. Cyr, 121 S. Ct. 2271, 2285 (2001).  The 

         Supreme Court in St. Cyr concluded that the phrases "judicial review" and 

         "jurisdiction to review" found in . 1252(a)(1) and (a)(2)(C) preclude only "full, 

         nonhabeas review," id. at 2286, and we see no reason why the same phrase in 

         . 1252(a)(2)(B)(ii) should have any greater reach.  Sierra, accordingly, may 

         proceed through a . 2241 habeas petition, as he has done in this case.

              Second, . 1252(a)(2)(B)(ii) strips the courts of jurisdiction to review only 

         matters falling within the Attorney General's discretion.  Sierra does not seek 

         review of the Attorney General's exercise of discretion; rather, he challenges the 

         constitutionality of the procedures used in his parole proceeding.  It is never 

         within the Attorney General's discretion to act unconstitutionally.  See Aguilera
         (2)     Under pre-IIRIRA law, it was established that immigration parole 
         decisions could be challenged through writs of habeas corpus.  See, e.g., Marczak 
         v. Greene, 971 F.2d 510, 515-16 (10th Cir. 1992).  The parties agree that IIRIRA 
         applies to this case, and for the purposes of this appeal we assume it does, 
         although the matter is not free from doubt.  Most provisions of IIRIRA do not 
         apply to "an alien who is in exclusion or deportation proceedings before" April 1, 
         1997.  See 8 U.S.C. 1101 note (Effective Dates).  Sierra was ordered excluded 
         in an exclusion proceeding held in 1992; literally, then, he was in exclusion 
         proceedings "before" April 1, 1997.  One appellate court, however, has applied 
         IIRIRA to a situation like here where an alien's order of exclusion or deportation 
         became final before April 1, 1997.  See Zadvydas v. Underdown, 185 F.3d 279, 
         286-87 & n.7 (5th Cir. 1999), rev'd on other grounds, 121 S. Ct. 2491 (2001). 
         Without deciding the issue, we simply accept the application of IIRIRA pursuant 
         to the agreement of the parties and consider whether it deprived us of 
         v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001) (holding that statutes 

         restricting judicial review of discretionary decisions do not preclude review of 

         challenges to the constitutionality of INS regulations); Ho, 204 F.3d at 1052 

         (holding that . 1252(a)(2)(B)(ii) does not bar challenges to the constitutionality 

         of immigration statutes), overruled on other grounds by Zadvydas v. Davis, 121 

         S. Ct. 2491 (2001); cf. Zadvydas, 121 S. Ct. at 2497-98 (holding that ". 2241 

         habeas corpus proceedings remain available as a forum for statutory and 

         constitutional challenges to post-removal-period detention").

              The other jurisdictional provision of IIRIRA that is arguably implicated is 

         found in . 1226, which discusses the detention of aliens pending a decision on 

         whether they are to be removed.  It is not clear that this section applies to Sierra, 

         who has already received a decision that he is to be removed.  Cf. Ho, 204 F.3d 

         at 1052 n.4 ("Arguably . . . . 1226(e) applies only to discretionary decisions 

         made by the Attorney General pending the entry of a final removal order.") 

         Assuming it applies, it does not deprive us of jurisdiction.  Section 1226(e) 


              The Attorney General's discretionary judgment regarding the 
              application of this section shall not be subject to review.  No court 
              may set aside any action or decision by the Attorney General under 
              this section regarding the detention or release of any alien or the 
              grant, revocation, or denial of bond or parole.
         Although the wording of this section varies slightly from those sections 

         specifically discussed by the St. Cyr Court in that it does not use the phrases 

         "judicial review" or "jurisdiction to review," we find this difference unimportant. 

         Section 1226(e), like . 1252, does not explicitly mention habeas review or 

         . 2241.  "Implications from statutory text or legislative history are not sufficient 

         to repeal habeas jurisdiction; instead, Congress must articulate specific and 

         unambiguous statutory directives to effect a repeal."  St. Cyr, 121 S. Ct. at 2278-

         79.  We hold that . 1226(e) does not "speak[] with sufficient clarity to bar 

         jurisdiction pursuant to the general habeas statute."  Id. at 2286.

              None of the other jurisdictional provisions of IIRIRA appear to apply to 

         this case.  We therefore hold that we have jurisdiction to address Sierra's . 2241 

         habeas petition on the merits.  We review de novo the district court's dismissal of 

         the petition.  Ho, 204 F.3d at 1052.

         II. Merits

              Sierra challenges the procedures used to withdraw his parole under the 

         Mariel Cuban regulations, 8 C.F.R. . 212.12.  Specifically, he argues that he was 

         entitled to a hearing on the withdrawal and a chance to await the appeal of his 

         disciplinary conviction.  Sierra's procedural due process arguments face a high 


              Although he has been physically present in the United States for more than 

         twenty years, Sierra is "legally considered to be detained at the border and hence 

         as never having effected entry into this country."  Gisbert v. U.S. Attorney Gen., 

         988 F.2d 1437, 1440 (5th Cir.), amended by 997 F.2d 1122 (5th Cir. 1993).  The 

         Due Process Clause does not provide him a liberty interest in being released on 

         parole.  See Ho, 204 F.3d at 1060.  Ordinarily, then, "[w]hatever the procedure 

         authorized by Congress is, it is due process as far as an alien denied entry is 

         concerned."  United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 


              The government asserts that Sierra's continued detention is authorized by 

         the pre-IIRIRA version of 8 U.S.C. . 1226(e) (repealed effective April 1, 1997). 

         That section provided:

              (1)  Pending a determination of excludability, the Attorney General 
              shall take into custody any alien convicted of an aggravated 
              felony . . . .
              (2) Notwithstanding any other provision of this section, the Attorney 
              General shall not release such felon from custody unless the 
              Attorney General determines that the alien may not be deported 
              because [the alien's country of origin denies or unduly delays 
              acceptance of the alien's return].

         (3)     The above rule applies to procedural due process challenges such as 
         Sierra's.  This case does not involve, and we do not address, a substantive due 
         process challenge to congressional legislation.  Cf., e.g., Rodriguez-Fernandez v. 
         Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981) ("Surely Congress could not 
         order the killing of Rodriguez-Fernandez and others in his status on the ground 
         that Cuba would not take them back and this country does not want them.").
              (3) If the determination described in paragraph (2) has been made, 
              the Attorney General may release such alien only after 
                (A)     a procedure for review of each request for relief under this 
                   subsection has been established,
                (B)     such procedure includes consideration of the severity of the 
                   felony committed by the alien, and
                (C)     the review concludes that the alien will not pose a danger to 
                   the safety of other persons or to property.
         We have interpreted former . 1226(e) to authorize continued detention of an 

         excludable alien who has been convicted of an aggravated felony after the entry 

         of a final order of exclusion.  Ho, 204 F.3d at 1055.

              As noted above, former . 1226(e) was repealed effective April 1, 1997. 

         The most similar provision in current law appears to be 8 U.S.C. . 1231(a). 

         Under this provision, an inadmissible alien such as Sierra must generally be 

         removed from this country within a short period of time, ninety days under 

         current law.  See 8 U.S.C. . 1231(a)(1)(A).  If the alien is not removed within 

         this period, he is "subject to supervision under regulations prescribed by the 

         Attorney General."  Id. . 1231(a)(3).  In particular, certain criminals "may be 

         detained beyond the removal period and, if released, shall be subject to the terms 

         of supervision."  Id. . 1231(a)(6) (emphasis added).

              We need not decide whether former . 1226(e) or current . 1231(a)(6) 

         governs Sierra's detention.  Cf. Ho, 204 F.3d at 1053 n.5 (noting that the result 

         would be the same under either statute).  Both statutes commit the decision 

         whether to parole an alien to the discretion of the Attorney General.  The parties
         have not called our attention to any other applicable statutory provisions 

         requiring the sorts of procedures Sierra demands.

              The Attorney General has delegated the authority for parole decisions for 

         Mariel Cubans to the Associate Commissioner for Enforcement as provided by 8 

         C.F.R. . 212.12(b).  The parole decision, "while invested with considerable 

         discretion, is not entirely immune from judicial review."  Marczak v. Greene, 971 

         F.2d 510, 515 (10th Cir. 1992).(4)  Under Marczak, however, our habeas review is 

         limited to determining whether INS officials "have articulated some 

         individualized facially legitimate and bona fide reason for denying parole, and 

         some factual basis for that decision in each individual case."  Id. at 518.

              In Sierra's case, the Marczak standard is easily met.  The Associate 

         Commissioner for Enforcement explained that Sierra's parole was being 

         withdrawn because he had been cited for fighting.  This is a facially legitimate 

         reason for withdrawing parole.  See 8 C.F.R. . 212.12(e) (stating that parole may 

         be withdrawn if "the conduct of the detainee . . . indicates that parole would no 

         longer be appropriate"); see also id. . 212.12(d)(2) (including as criteria for the
		  parole determination whether the detainee is nonviolent and likely to remain 

         nonviolent).  The incident report and the hearing officer's findings provided 

         some factual basis for the fighting charge.

              Neither the statutes nor the governing regulations require a hearing on 

         parole withdrawal.  Neither require affording Sierra an opportunity to appeal his 

         fighting conviction before a decision on the parole withdrawal.  The lack of a 

         hearing and opportunity to await the disciplinary appeal therefore do not deny 

         Sierra the due process of law to which he is entitled.  We therefore AFFIRM the 

         district court's decision.


         III.  Other Issues

              In his appellate briefs, Sierra raises several other issues.  He argues that (1) 

         his conditions of confinement violate the Eighth Amendment; (2) he is not an 

         illegal alien because he was invited to this country by President Carter; and (3) 

         his indefinite detention violates his constitutional rights.  These issues were not 

         raised in his habeas petition before the district court, and we do not consider 

         them for the first time on appeal.  See Walker v. Mather (In re Walker), 959 F.2d 

         894, 896 (10th Cir. 1992).  We note also that the second argument could have 

         (4)     Marczak involved former 1182(d)(5)(A), which provided that "[t]he 
         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."  In addition, it concerned the granting of parole in the first 
         instance rather than its withdrawal.  We are not persuaded that either difference 
         is material in this context.
         been raised in his earlier exclusion proceeding.  The order of exclusion is now 

         final, and the determinations made in that proceeding are binding on us.


              We AFFIRM the district court's dismissal of Sierra's habeas petition.

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