DISTRICT OF NEW JERSEY
OSVALDO DAMAS-GARCIA, :
Petitioner, : HONORABLE JEROME B. SIMANDLE
v. : Civil Action NO. 01-716 (JBS)
UNITED STATES OF AMERICA, :
on behalf of the Immigration : O P I N I O N
and Naturalization Service :
Respondent. : Filed: October 17, 2001
Robert L. Cleary
SIMANDLE, District Judge:
In his petition, Damas-Garcia claims that his Fifth Amendment rights have been violated by his continued INS detention. Petitioner puts forth several arguments to support
this claim.2 First, petitioner alleges that the legal distinction between excludable aliens and other types of aliens is unconstitutional. (Pet'r's Br. at 3.) Second, petitioner argues that his detention violates international law. (Pet'r's Br. at 4.) Third, petitioner argues that his Fifth Amendment procedural due process rights were violated because he was not provided with meaningful individualized consideration of his suitability for parole. (Id.) Fourth, petitioner claims that is Fifth Amendment substantive due process rights have been violated because Cuba's refusal to accept deportees will likely result in indefinite detention. (Id.) Finally, petitioner argues that the parole board relied on an error on his criminal
record and that this error violated his constitutional rights. (Pet'r's Br. at 12.) For reasons explained below, this Court will deny this petition in its entirety upon the merits.
Petitioner is one of approximately 1,750 Mariel Cubans being detained by the INS in United States prison facilities who are neither eligible for parole nor deportable because Cuba will not allow them back into the country.3
A. The Mariel Cuban Boatlift
Petitioner is one of approximately 125,000 undocumented Cuban nationals who came to the United States during the 1980 Mariel boatlift.4 See Palma v. Verdeyen, 676 F.2d 100, 101 (4th Cir. 1982). Many Mariel Cubans, having been released from prison prior to their departure, came to this country without the proper travel documents. Moret v. Karn, 746 F.2d, 989, 990 (3d Cir. 1984). Because they lacked the necessary documentation to legally enter the United States, many Mariel Cubans were deemed excludable.5 Because Cuba initially refused to accept the return of the excludable Mariel Cubans, and given the special circumstances of their arrival, the Attorney General, pursuant to his authority, deemed deportation improper and released most of the Mariel Cubans on immigration parole. See 8 U.S.C. §§ 1182(d)(5) and 1227(a) (2000). Individuals who are granted entry into the United States on immigration parole, such as the Mariel Cubans, are not considered legal aliens, but rather are considered the same as individuals who have only just arrived at the U.S. border. See 8 U.S.C.A. §§ 1182(d)(5)(A).
The paroles of many Mariel Cubans have since been revoked, primarily because of new criminal conduct while on parole that posed an unacceptable risk to the safety of the American public. 52 Fed. Reg. 48799 (Dec. 28, 1987); see, e.g., In re Cuban, 822 F. Supp. 192, 194 (M.D. Pa. 1993). When an immigration parole is revoked, the individual is detained by INS pending reinstatement or deportation. A two-member Cuban Review Panel (the Panel) annually reviews Mariel Cubans who are returned to INS custody to determine their suitability for immigration parole. See 8 C.F.R. § 212.12. This reconsideration includes a review of the detainee's records and a personal interview, during which the detainee may be accompanied by a representative and may present oral and written information in support of the detainee's release on parole. 8 C.F.R. § 212.12(d)(4). The recommendation of the Panel must be unanimous. 8 C.F.R. § 212.12(d)(1). Consideration is given to the detainee's institutional progress, ties to the community, criminal and disciplinary records, psychological evaluations, and any other information which is probative as to whether parole of the detainee is in the public interest. 8 C.F.R. § 212.12(d)(3).
Additionally, to recommend release on parole, the Panel must first determine if the detainee is: (i) presently a non-violent person; (ii) likely to remain non-violent; (iii) not likely to pose a threat to the community following release; and (iv) not likely to violate condition of parole. 8 C.F.R. § 212.12 (d)(2)(i)-(iv). If approved for parole, the detainee is released upon condition of his placement with suitable sponsorship. 8 C.F.R. § 212.12(f).
B. Petitioner's Arrests and Convictions
Petitioner is a native of Cuba who arrived in the United States on April 24, 1980 in Miami, Florida, as a member of the Mariel boatlift. (Resp't's Ans. at 1.) Shortly after, he was granted immigration parole pursuant to 8 U.S.C. §§ 1182(d)(5)(A) and was released into the United States under the sponsorship of his aunt. (Resp't's Ans. at 2.) While petitioner admits that he had a criminal record in Cuba (Resp't's Ex. 6), he initially claimed in 1990 that the basis for this was his robbery conviction (Resp't's Ex. 6), although he stated a year later that he was also convicted for posting anti-Castro signs. (Resp't's Ex. 7.)
While in the United States, petitioner continued his criminal propensities. Shortly after his arrival into the United States in 1980 until his detention in 1989, petitioner developed an extensive criminal record. (Resp't's Ex. 2.) Petitioner has been arrested approximately nine times and has been convicted of or pled guilty to serious, violent offenses including assault with a deadly weapon on a police officer, burglary, and aggravated sexual conduct with children under the age of 14.6
In May 1985, petitioner pled guilty to burglary of a building in Texas and was sentenced to a two-year custodial term. (Resp't's Ex. 3.) On January 5, 1989, petitioner pled guilty to lewd and lascivious acts with a child under the age 14 in California and was sentenced to serve a three-year custodial term. (Resp't's Ex. 4.) At this time, the sentencing judge recommended that petitioner be deported upon the completion of his sentence. (Id.)
Upon notification of petitioner's lewd and lascivious conviction, the INS commenced the detainer process and on December 6, 1989, revoked petitioner's immigration parole under 8 C.F.R. § 212.5(d). (Resp't's Ex. 5.) On December 26, 1989, petitioner was returned to INS custody. (Resp't's Ex. 6.)
While in INS custody, petitioner continued to display violent and aggressive behavior. On March 11, 1992 and again on June 18, 1993, petitioner received disciplinary action for fighting. (Resp't's Ex. 18.)
In 1994, the INS served petitioner with notice of an exclusion hearing before an immigration judge. (Resp't's Ex. 10, 11.) The exclusion proceeding was based upon his failure to possess valid entry documents and his conviction of a crime involving moral turpitude, pursuant to the Immigration and Nationality Act, as amended, 8 U.S.C. 1101 et seq. (Id.) Following the hearing on March 21, 1994, a final order of removal was entered. (Id.) Petitioner continues to be detained by the INS, pending the agency's determination either (1) that he is eligible for immigration parole or (2) that Cuba will accept his return.
Since petitioner has come into INS custody, petitioner has had annual custody reviews in accordance with the requirements of 8 C.F.R. § 212.12. (Resp't's Ex. 6-9, 12-17, 19.) Every review of petitioner's status has resulted in a denial of parole. (Id.) Specifically, petitioner has been denied parole because of his failure to take responsibility for or show remorse for his crimes. (Id.)
Petitioner filed the present petition under 28 U.S.C § 2241 in this Court on February 13, 2001, claiming that his due process rights have been violated because (1) there is an illegal distinction between excludable aliens and other types of aliens; (2) his detention violates international law; (3) the Cuban Review Panel has not reviewed his case with the required individualized consideration; (4) he is being detained indefinitely; and (5) INS failed to use reliable information in denying his parole release. Each of these arguments will be discussed separately below.
A. Jurisdiction and Standard of Review
This Court's jurisdiction in this matter is grounded both in the habeas statute and in laws providing for court review of certain administrative decisions. Agency actions, such as the instant parole-related decision, may be reviewed under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. The standard of review in such cases is whether the agency's decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. at § 706 (2)(A); Moret, 746 F.2d at 991. It is undisputed that this Court has the authority to review INS decisions to determine whether the agency had exercised its authority in an arbitrary and capricious manner. See Moret, 746 F.2d at 991 (This standard of review is consistent with the legislative history of the Immigration and Naturalization Act of 1952, in which the grant of parole authority was first included.). Moreover, this Court has jurisdiction over the petition for habeas corpus under 28 U.S.C.§ 2241. Chi Thon Ngo v. INS, 192 F.3d 390, 393 (3d Cir. 1999).
B. Petitioner's Claims
As noted above, petitioner makes five arguments to support his claim that his Fifth Amendment due process rights have been violated. Petitioner also seeks an evidentiary hearing. This Court finds petitioner's arguments unpersuasive and lacking a sound legal basis. No evidentiary hearing is required since the existing record is complete for purposes of judicial review. Each of the petitioner's claims are discussed in turn below.
1. Whether the legal distinction between excludable aliens and other aliens residing in the United States is constitutional.
Petitioner first argues that the legal distinction between excludable and removal aliens raises a substantial constitutional question. (Pet'r's Br. at 3.) Petitioner specifically notes that an excludable alien, having the status of an individual who has not entered the United States, is not afforded the same Fifth Amendment protections as an alien who enters the country through legal or illegal means. (Id.)
An alien who has been denied admission to the United States has no liberty interest that would entitle him or her to be at-large within the United States. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972); Perez-Perez v. Hanberry, 781 F.2d 1477, 1479 (11th Cir. 1986); Ahrens v. Rojas, 292 F.2d 406, 411 (5th Cir. 1961). Despite a physical presence in the country, a paroled alien who has never been admitted can claim no greater rights than an alien at the boundary line. Leng May Ma v. Barber, 357 U.S. 185, 189 (1958); Kaplan v. Tod, 267 U.S. 228, 230 (1925); Delgado-Carrera v. INS, 773 F.2d 629, 632 (5th Cir. 1985); Yuen Sang Low v. Attorney General, 479 F.2d 820, 822-23 (9th Cir. 1973); Ahrens v. Rojas, 292 F.2d at 410-11.
The Supreme Court has consistently recognized 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. In 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.'" Leng May Ma, 357 U.S. at 187 (quoting Shaughnessy, 345 U.S. at 212). In a recent immigration case, the Supreme Court was careful to maintain this distinction between aliens who have been admitted into the United States and those who have not. Zadvydas v. Davis, --- U.S. ---, 121 S.Ct. 2491 (2001) (opinion issued June 28, 2001). In Zadvydas, the Court held that detention of an admitted alien beyond the statutory removal period of six months under 8 U.S.C. § 1231(a)(6) was permissible only if the government could rebut the alien's showing that there is no significant likelihood of removal in the reasonably foreseeable future . . . . Id. at 2502. However, the Court made it clear that its decision in Zadvydas did not apply to aliens who have merely been paroled into the country. Id. at 2495 (We deal here with aliens who were admitted to the United States but were subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question.). See also Beltran-Leonard v. I.N.S., No. 3-00-CV-2142-G, 2001 WL 112552, at *3 (N.D. Tex. Sept. 7, 2001) (holding that Zadvydas did not apply to Mariel Cuban physically present in the United States on immigration parole).
The Supreme Court of the United States has long held that an alien seeking admission into the United States is requesting a privilege and has no rights under the Constitution regarding his or her application.7 The power to admit or exclude aliens is the sovereign's prerogative. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); Shaughnessy 345 U.S. at 210 ("Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control."); Jean v. Nelson, 727 F.2d 957, 964 (11th Cir. 1984) (en banc) ("the power to control the admission of foreigners is an inherent attribute of national sovereignty"), aff'd, 472 U.S. 846 (1985); Landon v. Plasencia, 459 U.S. 21 (1982). Further, the Supreme Court has upheld the Attorney General's power to detain excludable aliens who pose a security threat to the public. Shaughnessy, 345 U.S. at 210-12 (holding continued detention of an excludable alien constitutional).
The right to exclude aliens is vested in both the legislative and the executive branches of the federal government. Knauff, 338 U.S. at 542 ("The right . . . stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation."). The political branches have plenary authority to establish and implement substantive and procedural rules governing the admission of aliens. See Jean, 727 F.2d at 964.
Petitioner was released into this country on immigration parole. A Presidential order granted him the special immigration status of Cuban/Haitian entrants (status pending). See Moret, 746 F.2d at 990. This executive order provided petitioner an opportunity to be paroled from custody and live in society until INS could properly process his papers. This order did not, however, grant petitioner full legal rights as an alien or legal residence in the United States. Rather it allowed him temporary harborage in the United States that he would not have been permitted to otherwise. See id.
Although he has been physically present in the United States since 1980, petitioner is considered an excludable alien and has not gained lawful admission to the United States. An excluded alien, petitioner "stands on a different footing" and "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Shaughnessy, 345 U.S. at 212 (internal quotations omitted). See also Ngo, 192 F.3d at 396 (noting that due process for an excludable alien is whatever procedure Congress has authorized).
Accordingly, because petitioner is an excludable alien, his claim that the distinction between excludable and other aliens is unconstitutional is without merit.
2. Whether international law applies to petitioner's detention.
Petitioner alleges that his detention by the INS violates international law. (Pet'r's Br. at 4.) Specifically, petitioner claims that Article 9 of the International Covenant of Civil and Political Rights banning arbitrary arrest and detention is violated. (Id.)
Because, as discussed above, the Attorney General has the statutory authority to detain petitioner, international law does not apply.
3. Whether the Cuban Review Panel violated petitioner's right to procedural due process.
Petitioner contends that INS failed to provide him with meaningful individualized consideration for parole release purposes. (Pet'r's Br. at 4.) Specifically, petitioner claims that instead of an individualized review, the Attorney General denied him parole because Cuba does not accept deportees. (Id.)
Detention of aliens who have committed serious crimes and have been ordered deported, removed, or excluded is constitutional, provided, inter alia, that the government provides for individualized periodic review of the alien's eligibility for release on parole. Ngo, 192 F.3d at 398. Procedural due process afforded to excludable aliens will not be satisfied, however, if the government rubber stamps a request for parole based solely on the alien's prior offenses. Id.
A review of the record and the submissions of the parties shows that there is a rational, if not overwhelming, basis in the record to support the INS decision denying petitioner's parole. Since petitioner's entry into the United States in 1980, he has accumulated an extensive criminal record. Petitioner has been arrested approximately nine times, and has been convicted of or pled guilty to serious, violent offenses, including assault with a deadly weapon, grand theft, and lewd and lascivious acts with very young children. This conduct more than adequately shows that, in the years he was on immigration parole here, Mr. Damas-Garcia so repeatedly abused this privilege that the INS was compelled to revoke his release.
Further, a review of the Cuban Review Panel's Summary Sheets denying petitioner's request for parole since his incarceration supports the Panel's decision to deny his parole. (Resp't's Ex. 6-9, 12-17, 19.) The Panel's conclusion that petitioner would constitute a threat to communities is supported by the fact that petitioner refuses to take responsibility for his crimes, as indicated in the record.
Additionally, the record reflects that the Panel gave petitioner an individualized review as required under 8 C.F.R. § 212 and Ngo. A review of the record shows that the Cuban Review Panel denied his parole in 2000 for several legitimate reasons, which included: Mr. Damas-Garcia's refusal to take responsibility for his past actions,8 his lack of remorse, his minimalization of his criminal history, and because he appeared to be a threat to the community. (Resp't's Ex. 19 at 3.) In addition to considering petitioner's criminal record, the Panel considered his behavior while in custody, his institutional work, and mental health evaluations. (Resp't's Ex. 6-9, 12-17, 19.) Specifically, at the November 3, 2000 hearing, the Panel noted that petitioner had no institutional diciplinary infractions since 1993. (Resp't's Ex. 19.) Additionally, the Panel reviewed the fact that petitioner had received his GED, completed an English As A Second Language Course, attended a 40-hour drug education program, and was currently enrolled in a computer programing course. (Id.) Further, the Panel reviewed petitioner's most recent mental health evaluation from September 1997. (Id.)
The Panel also considered the following factors required under 8 C.F.R. § 212.12(d)(2): whether petitioner was likely to remain non-violent; whether petitioner posed a danger to society; and whether petitioner was likely to violate the conditions of parole. (Id.) While the Panel determined that petitioner was presently non-violent and was likely to remain non-violent, they also determined that he was likely to pose a threat to the community if he was granted parole. (Resp't's Ex. 19.) Specifically, in the most recent hearing on November 3, 2000, the Panel found petitioner to be unremorseful, very defensive, and a threat to the community because of his denial and defensiveness. (Id.) Additionally, the Panel found petitioner:
does not take responsibility for his actions. He was limited giving information to this panel. [Petitioner] showed no remorse regarding the crimes he did admit to. [Petitioner] minimized the most serious allegation of his criminal history. [Petitioner] was very defensive from the beginning of the panel . . . No genuine change was observed and no remorse was observed.(Id.)Thus, because the Panel gave petitioner an individualized review, his claim that parole was denied because Cuba does not accept deportees is without merit.
4. Whether petitioner's continued detainment violates substantive due process.
Petitioner places great emphasis that his detention by the INS is indefinite and, therefore, violates substantive due process.9 (Pet'r's Br. at 2, 4, 9.)
An excludable alien is entitled to substantive due process. Ngo, 192 F.3d at 396 (citing Wong Wing v. U.S., 163 U.S. 228, 238 (1896)). Excluded aliens, however, have no constitutional right to immigration parole and, therefore, no right to be free from detention pending deportation. Wong Wing, 163 U.S. at 235. Further, detainment of an alien with a criminal record under a final order of exclusion, deportation, or removal is not unconstitutional provided, inter alia, there is a possibility of eventual departure. Ngo, 192 F.3d at 397-98.
The law in the Third Circuit is clear that petitioner's detention is not indefinite, but rather a series of one-year terms. See Ngo, 192 F.3d at 398; Padron-Baez v. Warden, Civ. No. 95-320, 1995 WL 419799 (D.N.J. July 10, 1995) (Irenas, J.); see also Barrera-Echavarria, 44 F.3d at 1450 (holding that Mariel Cuban's detention is a series of one-year periods, followed by an opportunity to plead his case). But see Rosales-Garcia v. Holland, 238 F.3d 704, 725-26 (6th Cir. 2001) (holding that annual review under the Cuban Review Plan constituted indefinite incarceration).
Petitioner's characterization of his detainment as indefinite simply does not make it so. As long as petitioner remains in INS custody, he will have annual reviews before the Cuban Review Panel, which will make recommendations for petitioner's parole. 8 C.F.R. § 212.12. Thus, petitioner has the opportunity on an annual basis to show that, since the previous review, he has changed his behavior and would no longer constitute a danger to society if paroled.
5. Whether petitioner's parole was denied because of an error in his criminal record.
Petitioner asserts that the information used by the Panel to determine his eligibility for parole is in error reflected by the record and that denial of parole for this reason violates his constitutional rights. (Pet'r's Br. at 12.) Petitioner claims that at his review in 2000 he was denied parole based on reliance of false information regarding his past criminal behavior. Petitioner claims that the Panel improperly considered one of his Lewd and Lascivious charges as one of the main reasons for denial of Parole. (Pet'r's Br. at 12.)
Specifically, petitioner claims that page one of the FBI record of his crimes incorrectly includes a conviction of a Lewd and Lascivious Acts with a Child under 14. (Id.) (emphasis added.) Petitioner states that the Lewd and Lascivious conviction was incorrectly entered into the computer. (Id.)
First, the FBI report shows only that petitioner was arrested and charged with Lewd and Lascivious Acts with a Child under 14. (Pet'r's Ex. B.) Second, the record states that petitioner was in fact arrested and charged with lewd and lascivious acts with a child under the age of 14. (Resp't's Ex. 4.) Additionally, the record indicates that petitioner pled guilty to this charge. (Id.) This Court is not impressed with petitioner's attempts to pass off an entry of his criminal record as a clerical error.
Further, this arrest was not one of the main reasons for denial of [p]arole as petitioner states. (Pet'r's Br. at 12.) While the Final Notice of Parole Denial dated December 13, 2000 (Final Notice), notes that petitioner was arrested and convicted on 1/05/89 for child molestation and lewd/lascivious act upon a child under the age of 14, the fact that this arrest resulted in a plea is not material under the law. See 8 C.F.R. § 212.12(d)(3)(ii) (permitting the Cuban Review Panel to consider a detainee's past history of criminal behavior).
Additionally, the Final Notice lists several factors for the denial in addition to the child molestation and lewd/lascivious charge. They include: petitioner's demonstrated propensity to engage in both assaultive and non-assaultive criminal behavior; his non-credibility at the Cuban Review Panel hearings; his institutional misconduct; his inability to accept responsibility for past behavior; his likely threat to the community; and his likely violent behavior. (Pet'r's Ex. C.)
For the foregoing reasons, this Court holds that parole in the instant case has been properly denied in view of petitioner's extensive criminal record and the factors listed above. Moreover, because the parole status of a Mariel Cuban detainee is reviewed annually pursuant to INS regulations, petitioner has received ample procedural review of his detention status. Therefore, the Court finds that any challenge of INS' parole decisions under a claim of denial of due process violation is without merit. See Ngo, 192 F.3d at 398 (holding that excludable aliens with criminal records may be detained for lengthy periods, provided that appropriate provisions for parole are available).
Date JEROME B. SIMANDLE
U.S. District Judge
DISTRICT OF NEW JERSEY
OSVALDO DAMAS-GARCIA, :
Petitioner, : HONORABLE JEROME B. SIMANDLE
v. : Civil Action NO. 01-716 (JBS)
UNITED STATES OF AMERICA, :
on behalf of the Immigration : O R D E R
and Naturalization Service :
: Filed: October 17, 2001
THIS MATTER having come before this Court on the application of petitioner, Osvaldo Damas-Garcia, for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and this Court having considered the submissions of the parties, and for the reasons expressed in the accompanying Opinion;
1Petitioner is also known as Enrique Ramos, Julio Cesar, Felix Sosa, Felix Sosa Rodriguez, and Osvaldo Damas-Garcia. (Resp't's Ex. 2.)
2Petitioner's legal arguments are, at best, disjointed. See Resp't's An. at 1 n.2. However, given the requirement that pro se pleadings be construed liberally, this Court has interpreted petitioner's arguments to fall within these five categories. See, e.g., Abdul-Akbar v. McKelvie, 239 F.3d 307, 322 (3d Cir. 2001); Zilich v. Lucht 981 F.2d 694, 694 (3d Cir. 1992) ("When . . . plaintiff is a pro se litigant, [courts] have a special obligation to construe his complaint liberally.").
3See Chi Thon Ngo v. INS, 192 F.3d 390, 395 (3d Cir. 1999).
4These aliens are named Mariel Cubans after the port of their departure: Mariel, Cuba. They arrived in the United States aboard a flotilla of small boats. Moret v. Karn, 746 F.2d 989, 990 (3d Cir. 1984).
5Normally, excludable aliens are given an exclusion hearing and, if necessary, are immediately deported. See 8 U.S.C. § 1227(a).
6While in the United States, petitioner had the following criminal record (petitioner was arrested and released unless otherwise noted):
1980 - Shoplifting