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In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1726

Guillermo Hoyte-Mesa,

Petitioner-Appellant,

v.

John Ashcroft, et al.,

Respondents-Appellees.

Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. TH 00-303-C-Y/H--Richard L. Young, Judge.

Submitted November 19, 2001/*--Decided December 3, 2001


  Before Bauer, Easterbrook, and Evans,
Circuit Judges.

  Per Curiam.  Guillermo Hoyte-Mesa, an
excludable alien and citizen of Cuba, has
been detained by the INS in federal
prison since March 1996 pending
deportation. Hoyte filed a petition for a
writ of habeas corpus under 28 U.S.C.
sec. 2241, challenging his detention on
the grounds that it violates his due
process rights and amounts to cruel and
unusual punishment. The district court
denied his petition and we affirm.

  Hoyte arrived in the United States in
May 1980 during the Mariel boatlift from
Cuba, and in August he was paroled into
the United States. While released on
parole, Hoyte, armed with a knife,
slashed a victim in the face, chest,
hand, and leg. He was convicted of
endangering safety by conduct regardless
of life and sentenced to five years'
imprisonment. Later he stabbed a prisoner
and was convicted of battery. On another
occasion he was convicted of carrying a
concealed weapon. Upon release from
prison, Hoyte was taken into INS custody,
and in 1986 an immigration judge
determined that Hoyte was excludable and
deportable from the United States. See 8
U.S.C. sec.1182(a). The immigration order
became final when the Board of
Immigration Appeals upheld the
immigration judge's decision and Hoyte
did not seek further review.

  INS detained Hoyte pending his
deportation until October 1989, when he
was paroled under the Cuban Review Plan.
See 8 C.F.R. sec. 212.12. In 1994 an
Illinois state court convicted Hoyte of a
drug offense he committed while released
on parole. He subsequently was convicted
of a weapons violation. After serving his
sentences for these crimes, he was
returned to federal custody where he has
remained to date.

  Since 1996, Hoyte has received annual
consideration for immigration parole in
accordance with the Cuban Review Plan, 8
C.F.R. sec. 212.12. A Cuban Review Panel
makes a recommendation to the Associate
Commissioner for Enforcement of the INS,
who has the discretion to approve parole.
Id. Hoyte was denied parole as recently
as October 2000. In his decision denying
parole, the Associate Commissioner noted
Hoyte's immigration history and criminal
record, as well as various disciplinary
infractions for which Hoyte was cited
while detained, including possession of
an unauthorized item, insolence,
stealing, being absent from his
assignment, and refusing an order.

  In October 2000 Hoyte filed a petition
for writ of habeas corpus alleging that
his "indefinite" detention pending
deportation, caused by Cuba's refusal to
repatriate him and INS's refusal to
release him on parole, violates due
process and amounts to cruel and unusual
punishment. Relying on our decision in
Carrera-Valdez v. Perryman, 211 F.3d 1046
(7th Cir. 2000), the district court
denied the petition, finding no
constitutional violation in the
indefinite detention of an excludable
alien who is subject to an elaborate
mandatory administrative review process
that annually reevaluates his parole
eligibility.

  Our decision in Carrera-Valdez
principally relied on the Supreme Court's
pronouncement in Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206
(1953), that the United States could
constitutionally detain an excludable
alien indefinitely if his country of
origin refused to accept his return.
Carrera-Valdez, 211 F.3d at 1048. Since
our decision in Carrera-Valdez, the
Supreme Court decided Zadvydas v. Davis,
121 S. Ct. 2491 (2001), in which it
considered the constitutionality of the
indefinite detention of resident aliens
awaiting deportation. In doing so, the
court reaffirmed its decision in Mezei by
distinguishing between excludable aliens
and aliens who were admitted to the
United States but subsequently ordered
removed. Zadvydas, 121 S. Ct. at 2495
(noting that "[a]liens who have not yet
gained initial admission to this country
would present a very different
question"). The Court's holding in Mezei
remains unaffected by the Zadvydas
decision. Id. at 2500 (explaining that
Mezei's excludable status "made all the
difference"). Mezei remains good law, and
by extension so too does our holding in
Carrera-Valdez.

  Since Hoyte, like Mezei, was never
granted admission to the United States
prior to his exclusion, the Fifth
Amendment does not offer him the same
protections as resident aliens who are
subsequently ordered removed. See
Zadvydas, 121 S. Ct. at 2500; Carballo v.
Luttrell, ___ F.3d ___, No. 99-5698, 2001
WL 1194699, at *13 (6th Cir. Oct. 11,
2001); Sierra v. INS, 258 F.3d 1213, 1218
(10th Cir. 2001). Consequently, the
district court did not err when it held
that Hoyte's continued detention does not
violate due process. 

  Although Hoyte was adjudicated
excludable, he was subsequently granted
parole into the United States with
certain conditions, including compliance
with our laws. His breach of those
conditions is sufficient to authorize his
current detention. Cf. Zadvydas, 121 S.
Ct. at 2501-02 (noting that a removable
alien's interest after six months'
detention would be limited to
"supervision under release conditions
that may not be violated"). Hoyte's
current incarceration therefore results
not only from his excludable status, but
also from his violation of parole
conditions. Furthermore, the length of
his detention now depends on the outcome
of his annual parole review. Since Hoyte
has access to this type of administrative
review, the district court correctly
concluded that Hoyte's detention
satisfies due process. Accordingly the
judgment of the district court is
AFFIRMED.

FOOTNOTE

/* After an examination of the briefs and the
record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the
briefs and the record. See Fed. R. App. P.
34(a)(2).



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