At page 991 Determining due process rights of excludable aliens21 citing casesholding that continued detention does not violate an excludable alien’s due-process rights since “the Fifth Amendment does not offer [excludable aliens] the same protections as resident aliens
- Gonzalez Aguilar v. McAleenan, No. 1:19-cv-00412 (D.N.M. Nov. 8, 2019).(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.)
- Obikanye v. Immigr. & Naturalization Serv., 78 F. App'x 769 (2d Cir. 2003).unpublishedBenitez v. Wallis, 337 F.3d 1289 (11th Cir.2003) (Zadvydas’s six-month presumption of reasonableness of detention applies only to “resident aliens who have effected entry.”); Borrero v. Al-jets, 325 F.3d 1003, 1007 (8th Cir.2003) (six-mont…
- Domingo Arango Marquez v. Immigr. & Naturalization Serv., 346 F.3d 892 (9th Cir. 2003).published See Benitez v. Wallis, 337 F.3d 1289, 1298-1301 (11th Cir.2003) (per curiam); Borrero v. Aljets, 325 F.3d 1003, 1007 (8th Cir.2003); Rios v. INS, 324 F.3d 296, 297 (5th Cir.2003); Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991-92 (7th Cir.2001)…
- Napoles v. Immigr. & Naturalization Serv., 278 F. Supp. 2d 272 (D. Conn. 2003).published(Mezei remains good law after Zadvydas , and “the United States [can] constitutionally detain an excludable alien indefinitely if his country of origin refused to accept his return)
- Lazaro D. Borrero v. Curtis J. Aljets, 325 F.3d 1003 (8th Cir. 2003).published See Sierra v. INS, 258 F.3d 1213, 1218 (10th Cir.2001) (holding that an inadmissible alien is legally considered to be detained at the border and thus has no due process interest in release on parole); Hoyte-Mesa v. Ashcroft, 272 F.3d 989,…
- Heng Meng Lin v. Ashcroft, 247 F. Supp. 2d 679 (E.D. Pa. 2003).publishedSee, e.g., Sierra v. INS, 258 F.3d 1213, 1218 (10th Cir.2001); Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir.2001); Soto-Ramirez v. Ashcroft, 228 F.Supp.2d 566, 572 (M.D.Pa.2002); Herrero-Rodriguez v. Bailey, 237 F.Supp.2d 543, 550-55…
- Herrero-Rodriguez v. Bailey, 237 F. Supp. 2d 543 (D.N.J. 2002).published(holding that continued detention does not violate an excludable alien’s due-process rights since “the Fifth Amendment does not offer [excludable aliens] the same protections as resident aliens)
- Lin Guo Xi v. United States Immigr. & Naturalization Serv., Opinion, 298 F.3d 832 (9th Cir. 2002).published (Mezei and prior Seventh Circuit authority upholding indefinite detention of excludable aliens remain good law)
- Chavez-Rivas v. Olsen, 207 F. Supp. 2d 326 (D.N.J. 2002).published (ruling that Zadvydas did *331 not abrogate pre-existing Circuit precedent upholding constitutionality of indefinite detention of inadmissible, rather than deportable, alien)
- Gonzalez Aguilar v. McAleenan, No. 1:19-cv-00412 (D.N.M. Mar. 24, 2020). See Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir. 2001); Gisbert v. U.S. Att’y Gen., 988 F.2d 1437 , 1442-43 (5th Cir. 1993); Castellar v. McAleenan, 388 F. Supp. 3d 1218 , 1244-46 (S.D.
Show 9 more citing cases
- Rolando M. Sierra, Sr. v. D. Romaine, 347 F.3d 559 (3d Cir. 2003).published See Hoyte-Mesa, 272 F.3d at 991 .
- Perez-Diago v. Gunja, 261 F. Supp. 2d 1246 (D. Colo. 2003).publishedSee Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir.2001). 7 .
- Garcia-Acosta v. Young, 255 F. Supp. 2d 803 (W.D. Tenn. 2003).publishedSee Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir.2001) (per curiam); Sierra v. Immigration & Naturalization Serv., 258 F.3d 1213, 1218 (10th Cir.), cert. denied, 534 U.S. 1071 , 122 S.Ct. 676 , 151 L.Ed.2d 589 (2001); Rollaro-Suarez…
- Gonzalez v. Ashcroft, 278 F. Supp. 2d 402 (D.N.J. 2003).published(where the court, in affirming the district court’s denial of Mar-iel Cuban’s habeas petition, reasoned that Mezei provided the authority to “constitutionally detain an excludable alien indefinitely if his country of ori…)
- Benitez v. Wallis, 337 F.3d 1289 (11th Cir. 2003).published (concluding that an inadmissible alien’s “continued detention does not violate due process)
- Daniel Benitez v. Robert Wallis, 402 F.3d 1133 (11th Cir. 2003).published(concluding that an inadmissible alien's "continued detention does not violate due process)
- Wilson v. Zeithern, 265 F. Supp. 2d 628 (E.D. Va. 2003).published(noting that the Fifth Amendment does not provide a parolee "the same protections as resident aliens,” and concluding that the annual review of his detention "satisfies due process)
- Omogiate v. Immigr. & Naturalization Serv., 61 F. App'x 258 (7th Cir. 2003).unpublishedSee, e.g., Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir.2001).
- Soto-Ramirez v. Ashcroft, 228 F. Supp. 2d 566 (M.D. Pa. 2002).publishedSee also Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir.2001) (per curiam) (ruling that Zadvydas does not abrogate Seventh Circuit precedent upholding indefinite detention of inadmissible aliens); Chavez-Rivas, supra. But see Borrero v…
Other citing cases
- Guerra v. Olson, 24 F. App'x 617 (7th Cir. 2001).unpublished
- Sok Ku Hong v. United States, 244 F. Supp. 2d 627 (E.D. Va. 2003).published
v.
John ASHCROFT, Et Al., Respondents-Appellees
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. § 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. § 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. § 212.12. In 1994 an Illinois[*991] 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. § 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 Carrerar-Valdez principally relied on the Supreme Court’s pronouncement in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), that the United States could constitutionally detain an ex-cludable alien indefinitely if his country of origin refused to accept his return. Carr-era-Valdez, 211 F.3d at 1048. Since our decision in Carrera-Valdez, the Supreme Court decided Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (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 excluda-ble aliens and aliens who were admitted to the United States but subsequently ordered removed. Zadvydas, 533 U.S. at 682, 121 S.Ct. at 2495 (noting that “[ajliens 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, 121 S.Ct. 2491 (explaining that Mezei’s excludable status “made all the difference”). Mezei remains good law, and by extension so too does our holding in Carrerar-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, 533 U.S. at 687, 121 S.Ct. at 2500; Carballo v. Luttrell, 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, 533 U.S. at 688-689, 121 S.Ct. at 2501-02 (noting that a removable alien’s interest after six months’ detention would be limited to “supervision under release[*992] 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.