Domingo ARANGO MARQUEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
No. 01-17191
United States Court of Appeals, Ninth Circuit
Argued and Submitted Oct. 11, 2002. Filed Sept. 19, 2003.
Unlike Pelich, Petitioners are not subject to indefinite detention due to a truculent refusal to comply with a minor administrative request. Rather, Petitioners are mounting a legal challenge to the INS’ statutory authority to remove them. This case is thus distinguishable from Pelich and from the cases relied on by Pelich, in which the petitioners simply refused to cooperate with the INS’ attempts to remove them. See Powell v. Ashcroft, 194 F.Supp.2d 209, 210 (E.D.N.Y.2002) (stating that the petitioner “has repeatedly provided the INS with inconsistent information regarding his identity, and these inconsistencies have demonstrably hampered the INS in carrying out his removal“); Sango-Dema v. Dist. Dir., INS, 122 F.Supp.2d 213, (D.Mass.2000) (describing the petitioner‘s refusal to provide the INS with a passport and birth certificate, to communicate with officials at the embassy of the country of removal, and to “complete any of the applications necessary to facilitate his return to his country of origin“).
Under Zadvydas, “an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” 533 U.S. at 701, 121 S.Ct. 2491. Because we hold that the INS may not remove Petitioners to Somalia, there is no significant likelihood of removal in the reasonably foreseeable future; consequently, the district court properly released Petitioners pursuant to Zadvydas.
AFFIRMED.
REAVLEY, Circuit Judge, dissenting:
I agree that we have jurisdiction but dissent from the judgment, and would reverse, because I read
The only prior authority is the Eighth Circuit decision in Jama v. Immigration and Naturalization Service, 329 F.3d 630 (8th Cir.2003), with which I agree. Opinions applying
Shelley R. Goad, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for the Appellee.
Before D.W. NELSON, BEEZER, and McLANE WARDLAW, Circuit Judges.
Opinion by Judge WARDLAW; Concurrence by Judge BEEZER
OPINION
WARDLAW, Circuit Judge.
Domingo Arango Marquez is a Mariel Cuban refugee subject to indefinite detention by the Immigration and Naturalization Service (“INS“) since August 16, 2000, because his country of origin will not accept his repatriation. Because he is an “excluded alien” under the former immigration law or an “inadmissible alien” under the Illegal Immigration Reform & Immigrant Responsibility Act of 1996 (“IIRIRA“), the district court held that the presumptively reasonable period of six months post-removal detention under
I.
Marquez is a native and citizen of the Republic of Cuba. Born in Havana May 12, 1957, he sought to emigrate as he became opposed to its Communist government. In early April of 1980, Marquez entered the Peruvian embassy compound in Havana, hoping to obtain political asylum and to resettle in Peru. He remained at the Peruvian embassy for over a week amid a
Marquez arrived in Key West, Florida aboard a ship called the San Juan on May 18, 1980, according to the asylum application he filed that day. Because he had no criminal record and was not otherwise inadmissable, he was immediately paroled into the United States.
Marquez initially settled in Florida, and later moved to California, supporting himself, his wife, and his daughter by working in automobile repair shops. Unfortunately, he next embarked on a criminal career. In 1989, he was convicted of burglary and sentenced to eighteen months in prison, of which he served nine. He was then placed in INS custody pending exclusion proceedings. Marquez became subject to the “entry fiction” in immigration law. Because he was paroled into the United States, even though he was physically present here, pending an admissibility determination he is deemed “excluded.” “[S]uch aliens are legally considered to be detained at the border and hence as never having effected entry into this country.” Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir.1995) (en banc) (quoting Gisbert v. United States Attorney Gen., 988 F.2d 1437, 1440 (5th Cir.), amended, 997 F.2d 1122 (1993)). On June 4, 1990, an Immigration Judge ordered him excluded and deported, and denied his application for asylum. He did not appeal these determinations to the Board of Immigration Appeals. Pursuant to the Cuban Review Plan,
Although we lack a precise record of Marquez‘s criminal activities during his immigration parole from 1993 to 1997, Marquez apparently committed several more crimes during this five-year period.1 He was convicted of grand theft (a felony) on December 9, 1997, and paroled into the United States again on June 7, 1999. On December 1, 1999, a California state court convicted him of possession of methamphetamine, and sentenced him to sixteen months in prison, of which he served nine. In preparation for his impending release, the INS reviewed his file and preliminarily recommended that he again be paroled. He was returned to INS custody on August 16, 2000. Four days later, an INS supervisor overruled the initial parole recommendation. Since then, Marquez has remained in INS detention at various pe-
On September 26, 2000, more than ten years after he was ordered deported, Marquez petitioned for habeas corpus in the United States District Court for the Eastern District of California, alleging that his indefinite confinement violates the constitution, laws, or treaties of the United States. While Marquez‘s habeas petition and motion for appointment of counsel were pending before the district court, his detention was reviewed pursuant to the Cuban Review Plan and parole was again denied.
After a series of procedural fits and starts, including the appointment and termination of appointed counsel for Marquez, the magistrate judge recommended, and the district court adopted, the conclusion that Marquez‘s habeas petition be denied. The courts reasoned that we had held that excludable aliens may be detained indefinitely, Barrera-Echavarria v. Rison, 44 F.3d at 1450, and thus Marquez possesses no constitutional right to be free from detention. Following the Supreme Court‘s announcement in Zadvydas, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653, and its companion case, Ashcroft v. Ma, id., the district court entered a subsequent order rejecting Marquez‘s contention that Zadvydas required his release as a matter of statutory construction, as opposed to due process, reasoning that Zadvydas‘s implicit limitation on post-removal order detention did not apply to excluded aliens. The district court did not have the benefit of our 2002 decision in Lin Guo Xi, 298 F.3d 832, which held that for purposes of construing the indefinite detention authorization in
II.
The INS argues, as it did unsuccessfully in the district court, that we lack jurisdiction to entertain Marquez‘s habeas challenge to his continued detention because he failed to exhaust his administrative remedies as to the 1990 determination of excludability. While the INS is correct that former INA § 106(c) precludes review of orders of deportation or exclusion if the alien fails to exhaust his available administrative remedies, this argument misses the point.
As the district court correctly recognized, Marquez “challenges neither the Attorney General‘s power to exclude him nor his authority to revoke his immigration parole and detain him pending exclusion. Rather, he contends that the INS lacks the authority to detain him indefinitely, and that such detention violates his rights to substantive and procedural due process,” and, since Zadvydas,
District courts are authorized by
28 U.S.C. § 2241 to consider petitions for habeas corpus. That section does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. However, we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.... [T]he exhaustion requirement in § 2241 cases is subject to waiver because it is not a “jurisdictional” prerequisite. Our conclusion that it is not “jurisdictional” is based on the fact that exhaustion is not required by statute.
239 F.3d 1037, 1047 (9th Cir.2001). Castro-Cortez emphasized that the requirements of
We have jurisdiction pursuant to
III.
It would thus appear that Zadvydas and Lin Guo Xi compel a similar outcome here. The INS introduces a new wrinkle to this seemingly obvious analysis, however, by urging that the removal and detention statute at issue in those cases,
The question we must address, therefore, is whether Marquez‘s indefinite detention2 is authorized by the version of the INA in effect between 1990 and 1995, during which time Marquez was ordered excluded and deported, as the government urges, or by the amendments in IIRIRA which substantially altered our nation‘s immigration constructs.
By way of background, pre-IIRIRA law provided for a six-month period for the INS to effect the departure of an alien subject to a final deportation order, during
In enacting
An alien ordered removed who is inadmissible under
section 1182 of this title, removable undersection 1227(a)(1)(C) ,1227(a)(2) , or1227(a)(4) of this title 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).
Section 1231(a)(6) does not authorize in-
Although the linchpin of the INS‘s argument is that pre-IIRIRA law controls Marquez‘s plight, whether to apply pre-or post-IIRIRA law to a continuing detention is not an issue that seemed to have troubled the Zadvydas Court. There the Supreme Court applied IIRIRA both to Zadvydas, who had been placed in deportation proceedings and ordered deported to Germany in 1994 (pre-IIRIRA‘s April 1, 1997 effective date) and to the companion case of Ma, in which the petitioner‘s final order of deportation appears to have been entered post-IIRIRA‘s effective date. See Zadvydas, 533 U.S. at 684-85, 121 S.Ct. 2491.
The Supreme Court‘s apparent view that the pre-or post-finality of the deportation orders there at issue was not worth discussion is perhaps explained by traditional principles of habeas jurisprudence, which give federal courts the “legal responsibility to review the lawfulness of an alien‘s continued detention.” Id. at 700, 121 S.Ct. 2491; see also Preiser v. Rodriguez, 411 U.S. 475, 486, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (The fundamental assertion underlying a petition for habeas corpus is that the petitioner “is being unlawfully subjected to physical restraint.“); Fay v. Noia, 372 U.S. 391, 401–02, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) (The writ‘s “root principle is that in a civilized society, government must always be accountable to the judiciary for a man‘s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release.“). Therefore, courts turn to the law in effect at the time the petition is considered.
We have previously recognized this principle in a case authorizing the continued detention of an excluded Mariel Cuban denied repatriation by Cuba under (then) new
Although the new section 1226(e) does not retroactively authorize any of the Attorney General‘s acts accomplished prior to the amendment, we are concerned here only with the legality of Alvarez-Mendez‘s present detention. Because this case involves a petition for the writ of habeas corpus, and not a claim for damages for illegal detention, the only issue before us is whether Alvarez-Mendez‘s detention is illegal today.
Id. at 960. We thus held that “even if his detention was illegal prior to the 1990 Act, if that Act gives the Attorney General the authority to hold Alvarez-Mendez today, his present custody is not illegal and habeas corpus is not available.” Id.; accord Gisbert, 988 F.2d at 1444 (“Although these amendments became effective after revocation of petitioners’ immigration parole, they may properly be considered in this discussion because our concern is with the legality of petitioners’ present detention.“).
Similarly here, we do not examine the validity of Marquez‘s detention between 1990 and 1995; we must address the validity of his present detention. The Sixth Circuit, sitting en banc, addressed the identical question in Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir.), cert. de-
are not challenging the legality of their original detention—they are challenging the INS‘s authority to detain them now. Therefore, whether IIRIRA retroactively authorizes [petitioners‘] detention is irrelevant; we need only assess whether IIRIRA currently authorizes their detention.
Id. at 402 (emphasis in the original).
The INS similarly urges us to hold that pursuant to § 309(c)(1), pre-IIRIRA law, i.e., former
Section 309(c)(1) sets forth a transitional rule providing an exception to IIRIRA‘s general effective date for those aliens whose orders of exclusion or deportation had not become final on April 1, 1997:
Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before the title III-A effective date—
(A) the amendments made by this subtitle shall not apply, and
(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments.
IIRIRA § 309(c)(1), 110 Stat. at 3009-625 (codified at
Moreover, as the Supreme Court has recognized, “[s]ection 309(c)(1) is best read as merely setting out the procedural rules to be applied to removal proceedings pending on the effective date of the statute.” INS v. St. Cyr, 533 U.S. 289, 318, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (emphasis in the original). The Court reasoned:
because “[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity,” Landgraf v. USI Film Prods., 511 U.S. 244, 275, 114 S.Ct. 1483 (1994), it was necessary for Congress to identify which set of procedures would apply in those circumstances.
The Court further relied upon the Conference Report, which expressly explains that 309(c) “provides for the transition to new procedures in the case of an alien already in exclusion or deportation proceedings on the effective date.” Id. (emphasis in the original).
The Supreme Court‘s conclusion that § 309(c)(1) applies only to ongoing exclusion or deportation proceedings is bolstered by that provision‘s subsequent amendment by Congress. Less than two weeks after its initial passage, Congress
It was the clear intent of the conferees that, as a general matter, the full package of changes made by [the new judicial review portion of IIRIRA] effect [sic] those cases filed in court after the enactment of the new law, leaving cases already pending before the courts to continue under existing law.
The conferees also intended, however, to accelerate the implementation of certain of [IIRIRA‘s judicial review] reforms....
Unfortunately, a cross-reference in section 309(c)(4) could be read to suggest that implementation of the transitional changes in judicial review should be delayed until after [IIRIRA‘s] general effective date.
142 Cong. Rec. H12,293 (Oct. 4, 1996) (statement of Rep. Smith). Thus, Congress‘s amendment of § 309(c)(1) to clarify that it exempts from IIRIRA‘s new rules cases involving aliens in exclusion or deportation proceedings “before” IIRIRA‘s effective date has no bearing on concluded cases such as Marquez‘s, for which IIRIRA‘s judicial review rules are irrelevant.
The Supreme Court‘s interpretation of IIRIRA § 309(c)(1) is also consistent with the focus of the remaining subsections of IIRIRA § 309(c) on issues that are procedural in nature or arise only during ongoing proceedings, which would also be irrelevant in cases involving aliens whose orders of deportation or exclusion were final on the effective date. For example, subsection (c)(2) authorizes the Attorney General to elect to apply IIRIRA‘s new procedures in cases where an evidentiary hearing has not yet taken place. Similarly, subsection (c)(3) allows the Attorney General “to terminate proceedings in which there has not been a final administrative decision and to reinitiate proceedings” under IIRIRA. As already noted, subsection (c)(4) provides transitional rules for judicial review of cases “in which a final order of exclusion or deportation is entered more than 30 days after the date of [IIRIRA‘s] enactment,” i.e., after October 30, 1996. The remainder of section 309(c)‘s provisions also resolve potential procedural issues, governing uniform application of provisions concerning continuous residence and physical presence to Notices to Appear regardless of when issued, allowing the Attorney General to waive a new ground for inadmissibility, and limiting suspension of deportation and adjustment of status under
The INS argues that we should defer to its construction of
In addition, there is no indication that Congress expressly or impliedly delegated authority to interpret IIRIRA § 309(c)(1) to the INS; nor is that provision one for which the INS‘s expertise is informative. See United States v. Mead Corp., 533 U.S. 218, 227-31, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).
Finally, we reject the INS‘s suggestion that we are precluded from applying
IV.
Because Marquez‘s detention is governed by
CONCLUSION
We therefore reverse the denial of Marquez‘s habeas petition, and remand for further proceedings consistent herewith, including the appointment of habeas counsel.
BEEZER, Circuit Judge, concurring.
I concur in the opinion of the court because I am bound by the court‘s prior decision in Lin Guo Xi v. INS, 298 F.3d 832 (9th Cir.2002). Lin Guo Xi relies on the Supreme Court‘s opinion in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Lin Guo Xi holds that under
I write separately because the holding in Lin Guo Xi, including its interpretation of Zadvydas, is contrary to the express holdings of the majority of our sister circuits which consider