* Judge John R. Brown was on the panel that heard oral argument in this case, but passed away

before the decision was entered, and the case is accordingly decided by a quorum.

1 Petitioners are Felix Gonzales Gisbert, Alberto Quintero, Alberto Garcia, Carlos Ocaña, Jose

Luis Perez, Sixto C. Asevedo, Ricardo Sanchez-Patterson, Reina Cecilia Martinez, Jesus Crespo

Carbonell, Roberto Castellon, Jose Luis Arguez-Perez, and Miguel Martinez-Diaz.

2 The opinion of the district court is published as Ramos v. Thornburgh, 761 F.Supp. 1258

(W.D.La.1991).

3 The Cubans who arrived in the boatlift are known as Mariel Cubans because they departed

from the Mariel Harbor in Cuba. United States Court of Appeals,

Fifth Circuit.

No. 91-4477.

Felix Gonzalez GISBERT, et al., Petitioners-Appellants,

v.

U.S. ATTORNEY GENERAL, Respondent-Appellee.

April 28, 1993.

A PPEALS FROM THE U NITED S TATES D ISTRICT C OURT FOR THE W ESTERN D ISTRICT OF L OUISIANA

.

Before GARWOOD, and EMILIO GARZA, Circuit Judges. * *

Circuit Judge:

Petitioners-appellants 1 (petitione rs or aliens) are Cuban nationals who have been ordered

excluded from the United States and, following revocation of their immigration parole, are detained

in custody of the Immigration and Naturalization Service (INS) pending their return to Cuba. The

aliens filed petitions for habeas corpus alleging that their detention violates their due process rights,

is an abuse of discretion by the Attorney General, and violates international law. The district court

consolidated an d dismissed the petitions. 2 Petitioners appealed this ruling, raising the same issues

before this Court. We affirm.

Facts and Proceedings Below

The facts concerning petitioners are similar and undisputed. Petitioners are Cuban nationals

who arrived in the United States in 1980 during the Mariel boatlift 3 in which approximately 125,0004 In December 1984, Cuba and the United States reached an agreement pursuant to which Cuba

was to take back 2,746 Mariel Cubans. Cuba suspended the agreement in May 1985, after only

201 excludable Cubans had been returned. In November 1987, Cuba agreed to resume

implementation of the 1984 agreement. Approximately 450 excludables have returned to Cuba

since 1987. The United States' position is and consistently has been that Cuba is required to take

back all of its nationals who are denied admission to the United States.

5 It appears from the record that petitioner Carlos Ocaña has been released; accordingly, his

case is dismissed as moot. The record also shows that Alberto Quintero was approved for

release, and that Miguel Martinez-Diaz and Ricardo Sanchez Patterson were awaiting

administrative review; should any of those petitioners have been released, counsel should now

promptly so inform this Court. Cubans came to the United States. Officials from the INS detained the aliens at the border and later

made a decision to exclude them from the United States. The validity of this exclusion is not

challenged. The United States has been unable to return petitioners to Cuba, however, because Cuba

has thus far refused to accept them back. 4 No other country has expressed a willingness to accept

the Mariel Cubans.

Following their init

ial detention, petitioners were granted immigration parole into the United

States by the INS. While on immigration parole, each of the petitioners was convicted of, and

sentenced for, violations of state or federal law ranging from attempted mu rder t o trafficking in

cocaine to petty theft. After petitioners were released from their imprisonment for these offenses,

their immigration parole was rev o ked on the basis of their convictions. The validity of these

convictions is not challenged. Final orders of exclusion were entered against petitioners; at the time

of this appeal, they remain in INS custody in state or federal prisons where they have been for over

two years, awaiting their return to Cuba. 5

The aliens filed petitions for habeas corpus in the district court, contendi ng that thei r

continued detention is illegal. The district court denied the petitions, and this appeal followed.

Discussion

We review de novo the district court's dismissal of a habeas corpus petition. A lvarez-Mendez

v. Stock, 941 F.2d 956, 959 (9th Cir.1991), cert. denied sub nom. Alvarez-Mendez v. Henry,

--- U.S.

----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992).

The exclusion of aliens is a fundamental act of sovereignty. U nited States ex rel. Knauff v.Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); S haughnessy v. United

States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953) ("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"); J ean 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, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). The

right to exclude aliens is vested in both the le gislat ive and the executive branches of the federal

government. K

nauff v. Shaughnessy, 338 U.S. at 542, 70 S.Ct. at 312 ("The right

... stems not alone

from legislative power but is inherent in the exec u tive 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. Jean v. Nelson, 727 F.2d at 964.

United States i mmigration laws create two types of proceedings in which aliens may be

denied the h o spit ality of this country: deportation hearings and exclusion hearings. L andon v.

Plasencia, 459 U.S. 21, 24-25, 103 S.Ct. 321, 325, 74 L.Ed.2d 21 (1982). Deportation hearings are

the usual means by which aliens who have effected actual entry into this country are removed;

exclusion hearings, on the other hand, are the means of proceeding against aliens who are seeking

init ial admission into the United States. I d. Aliens subject

t o deportation generally are granted

greater substantive rights than are excludable aliens. Id. at 26-27, 103 S.Ct. at 326.

Although aliens seeking admission into the United States may physically be allowed within

its borders pending a determination of admissibilit y, such aliens are legally considered to be detained

at the border and hence as never having effected entry into this country. Garcia-Mir v. Smith, 766

F.2d 1478, 1484 (11th Cir.1985); J ean v. Nelson, 727 F.2d at 969. We recognized this "entry

fiction" in Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir.1987).

Petitioners do not challenge that they have been lawfull y excluded from the United States.

Instead, they claim that, because their return to Cuba is indefinite, their continued detention without

further parole is unconstitutional, without proper statutory authority, and in violation of international

law.6 Petitioners also rely on Foucha v. Louisiana, --- U.S. ----, 112 S.Ct. 1780, 118 L.Ed.2d 437

(1992), asserting that it supports their contention that detainees have both procedural and

substantive rights to their liberty. We find Foucha inapposite on several grounds: (1) the

detainee in Foucha was a citizen rather than an excludable alien, and (2) at issue in that decision

was the detainee's confinement in a psychiatric facility (following a verdict of guilty but insane)

after the basis for holding him in that facility had ceased to exist. I. Constitutionality of Indefinite Detention

Petitioners raise two specific arguments alleging that their continued detention violates their

constitutional rights. First , t hey contend that their incarceration constitutes punishment without a

criminal trial, in violation of substantive due process. Second, petitioners argue that they have been

deprived of a liberty interest without procedural due process. 6

The Supreme Court has held that detention of aliens pending exclusion does not violate the

aliens' cons t itutional rights. The leading case on this issue is S haughnessy v. United States ex rel.

Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). The respondent in that case was an

immigrant alien who, although he had lived in the United States for twenty-five years, was

temporarily excluded from the United States upon his return from an extended stay in Europe and

was sent to Ellis Island. The Attorney General ordered his exclusion to be made permanent. When

no other country would receive him, the respondent filed a petition for habeas corpus. The district

court grante d t he petition, holding that detention after twenty-one months was excessive without

proof of danger to public safety, proof which the Attorney General refused to disclose. The court

of appeals affirmed.

The Supreme Court reversed. The Court held t hat respondent was "an entrant alien or

"assimilated to [that] status' for constitutional purposes," rather than a resident alien despite his prior

residency in the United States. M ezei, 345 U.S. at 213-14, 73 S.Ct. at 630 (quo ting Kwong Hai

Chew v. Colding, 344 U.S. 590, 597, 73 S.Ct. 472, 478, 97 L.Ed. 576 (1953)). Because his absence

from the country was without authorization or reentry papers, respondent was subject to exclusion

rather than deportati on. The Court concluded that the continued detention of the respondent did not

deprive him of any statutory or constitutional right. Id. 345 U.S. at 215, 73 S.Ct. at 630. S ee also

Fernandez-Roque v. Smith, 734 F.2d 576, 582 (1 1 th Cir.1984) (concluding that the denial or7 Petitioners seek to distinguish Mezei on the grounds that the Attorney General had found the

alien to be a threat to national security. However, there the Attorney General refused to disclose,

even in camera, any of his reasons or evidence for so concluding. In the present case, moreover,

the petitioners have been convicted of criminal offenses and determined likely to be a threat to the

community. One of the criteria considered in reviewing parole decisions is whether the alien is

likely to pose a threat to the community. 8 C.F.R. § 212.12(d)(2).

8 In the context of deportation of resident aliens, the Supreme Court has found that deportation

proceedings are not intended as punishment. Immigration and Naturalization Service v. LopezMendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) ("A

deportation proceeding is a purely civil action to determine eligibility to remain in this country,

not to punish an unlawful entry.... The purpose of deportation is not to punish past transgressions

but rather to put an end to a continuing violation of the immigration laws."). Because aliens

subject to exclusion are not entitled to the same constitutional protection as resident aliens, Jean

v. Nelson, 727 F.2d at 968, we conclude that detention pending removal and stemming from

exclusion proceedings is not intended as punishment. revocation of immigration parole does not rise to the level of a constitutional infringement). 7

A. Substantive Due Process

Petitio ners argue that they are being punished without a criminal trial in violation of the

substantive due process guarantee of the Fifth Amendment. In making this argument, the aliens rely

only on the fact and duration of their continued detention by the INS in federal or st ate penal

institutions; they do not complain about the conditions of that detention or claim that they are subject

to corporeal mistreatment. Thus the question befo re us is whether the detention i tself constitutes

punishment.

The focus of our inquiry is whether the detention is imposed for the purpose of punishment

or whether it is merely incidental to another legitimate governmental purpose. S chall v. Martin, 467

U.S. 253, 268-69, 104 S.Ct. 2403, 2412, 81 L.Ed.2d 207 (1984). Because there is no evidence here

of any expression of intent to punish on the part of the Government, 8 that determination generally will

t urn o n " "whether an alternative purpose to which [the detention] may rationally be connect ed is

assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to

it].' " I d. (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-568, 9

L.Ed.2d 644 (1963)).

The Ninth Circuit applied this test to the detention of a Mariel Cuban in Alvarez-Mendez v.

Stock. In holding that detention of an excluded alien did not constitute illegal punishment, the court9 See id. at 1370 ("stowaways ... even if they are physically present in the United States ... do

not possess a due process right to remain free of incarceration pending their deportation"), 1376 (

... "the stowaways possessed no due process right to remain free of incarceration pending their

deportati on"). concluded that protecting society from a potentially d angerous alien was a rational, non-punitive

purpose for detention. A lvarez-Mendez, 941 F.2d at 962. The court found that the detention of the

alien was not an excessive means of accomplishing that purpose because immediate removal from the

country was not possible. Id.

Petitioners cite Lynch v. Cannatella, 810 F.2d 1363 (5th Cir.1987), to support their claim to

substantive due process. However, they misread Lynch. There, sixteen Jamaican nationals stowed

away on a grain barge desti ned fo r t he United States. They were discovered before the vessel

reached the Mississippi River and detained by the Harbor Police in New Orleans until the barge was

ready to return to Jamaica. The stowaways were kept in custody for ten days, during which time they

were allegedly physically mistreated by the Harbor Police.

In Lynch, this Court addressed the classifications based on alienage that determine the

availabilit y of constitutional rights to non-citizens. The court acknowledged that the " "entry fiction'

that excludable aliens are to be treated as if detained at the border despite their physical presence in

the United States determines the aliens' right s wit h regard to immigration and deportation

proceedings," but st at ed t hat the fiction did not limit the right of excludable aliens to humane

treatment while detained within the United States. L ynch, 810 F.2d at 1373. This Court went on to

narrow this statement, however, in its holding on this issue: "We therefore hold that, w hatever due

process rights excludable aliens may be denied by virtue of their status, they are entitled under the

due process clauses of the fift h and fourteenth amendments to be free of gross physical abuse at the

hands of state or federal officials. " I d. at 1374 (emphasis added). Not only is the exception for

gross physical abuse wholly inapplicable in this case, as the pet it io ners have not alleged physical

mistreatment, but Ly nch plainly recognizes that excludable aliens may legally be denied other due

process rights, including the right to be free of detention. 9

We hold that the continued INS detention of the petitioners is not punishment and does not10 8 U.S.C. § 1182(d)(5)(A) provides 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, but such parole of such alien shall not be regarded as an

admission of the alien...." (Emphasis added.) constitute a violation of the aliens' rights to substantive due process.

B. Procedural Due Process

Petitioners claim that they are entitled to the due process protecti ons of the Fifth Amendment.

The Supreme Court has held, however, that excludable aliens are entitled only to those due process

rights as are provided by law. K nauff v. Shaughnessy, 338 U.S. at 544, 70 S.Ct. at 313 ("Whatever

the procedure author ized by Co ngress is, it is due process as far as an alien denied entry is

concerned"). S ee also Jean v. Nelson, 727 F.2d at 968 ("As to [excludable aliens], the decisions of

executive or administrative officers, acting within powers expressly conferred by congress, are due

process of law") (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 661-62, 12 S.Ct. 336, 339,

35 L.Ed. 1146 (1892)). Thus, petitioners do not have a general right to the procedural due process

guar a ntees of the Fifth Amendment. Their rights are determined by the procedures established by

Congress.

Petitioners assert three specific claims to procedural due process in the parole process: (1)

t hat t hey have a liberty interest in being paroled; (2) that they were denied due process in t he

revocation of their parole; and (3) that they have not been granted due process in the review of their

parole determinations. We conclude that petitioners have not been denied any process due them.

Petitioners contend that they have a liberty interest in their freedom, i.e. in being paroled from

immigration detention. Such an interest may arise from a statute, regulation, or directly from the due

process clause. Hewitt v. Helms, 459 U.S. 460, 465-67, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675

(1983). The petitioners' interest in immigration parole is created by the immigration statutes and is

subject to the exercise of discretion by the Attorney General . 8 U.S.C. § 1182(d)(5)(A). 1 0 The

language of the statute does not require the Attorney General to parole any alien, nor does it mandate

parole o n any particular finding or findings or place any substantive restriction on the authority to11 8 C.F.R. § 212.12 grants Mariel Cubans in immigration detention an annual review for parole

determinations by a Cuban Review Panel. This review includes a personal interview of the

detainee by the panel if parole is not recommended after a review of the alien's file. Section

212.12(d)(4). The panel, designated by the Director of the Cuban Review Plan, considers factors

such as the detainee's past history of criminal behavior, his behavior while in custody, his ties to

the United States, and the likelihood that he may abscond from a sponsorship program. Section

212.12(d)(3) ("The following factors should be weighed in considering whether to recommend

further detention or release on parole"). In order to recommend an alien for parole, the panel

must first conclude that: (1) the detainee is presently a nonviolent person; (2) the detainee is

likely to remain nonviolent; (3) the detainee is not likely to pose a threat to the community

following his release; and (4) the detainee is not likely to violate the conditions of his parole. 8

C.F.R. § 212.12(d)(2) ("Before making any recommendation that a detainee be granted parole ...

[the panel] must conclude that"). deny parole. Because petitioners' interests here are contingent upon the Attorney General's

discretion, they have no liberty interest in being paroled. See Velasco-Gutierrez v. Crossland, 732

F.2d 792 (10th Cir.1984) (holding that illegal alien s had no due process ri ghts to a proceedi ng to

determine deferred action status). See also Kentucky Dept. of Corrections v. Thompson, 490 U.S.

454, 461-66, 109 S.Ct. 1904, 1909-11, 104 L.Ed.2d 506 (1989).

Further, petitioners seek the same due process rights to the init ia l revocation of their

immigration parole as those granted to c riminal parolees. Petitioners' claims concern their

immigration parole rather than parole from serving a criminal sentence. Immigration parole is a part

of the admissions process, and its denial or revocation does not rise to the level of a constitutional

infringement. F

ernandez-Roque v. Smith, 734 F.2d at 582. S ee also Alvarez-Mendez v. Stock, 941

F.2d at 963 ("Parole decisions are an integral part of the admissions process and excludable aliens

cannot challenge such decisions as a matter of constitutional right"); A hrens v. Rojas, 292 F.2d 406,

410 (5th Cir.1961) (revocation of alien's immigration parole without a hearing did not violate alien's

rights).

Finally, petitioners claim that their rights to procedural due process have been v io lated by

their continued detention without parole because the parole review procedures are constitutionally

insufficient. Federal regulations exist that set forth explicitly the procedure for parole determinations

concerning the Mariel Cubans. 8 C.F.R. §§ 212.12, 212.13. The section 212.12 regulations establish

findings that must be made before recommending parole, factors to be considered in determining

whether to recommend parole, and the procedures for review hearings. 11 Petitioners do not contend8 C.F.R. § 212.13 allows aliens who have been denied parole under the above

procedures to request a single review by a special Department Panel. Section 212.13(a),

(b). This panel is established by the Associate Attorney General, and includes three

individuals from within the Justice Department, one of whom must be an attorney and one

a representative of the Community Relations Service. No INS representative serves.

Section 212.13(c). The detainee is allowed to submit to the Department Panel a written

statement setting forth factors he considers relevant to the parole consideration; a

member of the Department Panel may interview the detainee. Section 212.13(e), (f).

Although section 212.12 establishes criteria to be considered by the review panel

there provided for in determining whether to recommend parole, and requires certain

findings before a recommendation may be made that parole be granted, section 212.12(d),

it does not go so far as to mandate or require a recommendation of parole in any case. See Kentucky Dept. of Corrections, 490 U.S. at 462-66, 109 S.Ct. at 1910-1911

(substantive predicates to guide decision, or which establish situations in which visitation

must be denied, do not suffice to create liberty interest in allowing visitation, where they

do not mandate its allowance on any particular set of findings). In any event, the final

decision under section 212.12 is left to the discretion of the Commissioner, acting through

the Associate Commissioner, sections 212.12(b); 212.12(d)(4)(iii), and the criteria set out

in section 212(d)(2) & (3) are not expressly made applicable to the Department Panel

provided for in section 212.13. Further, the establishment by the regulations of

procedures to guide decision making in this area does not create any general due process

rights. See Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 1748, 75

L.Ed.2d 813 (1983).

12 Were petitioners to contest these points, they would be precluded by precedent in this

Circuit. This Court has held that revocation of immigration parole without a hearing was as a

matter of law not an abuse of discretion, and that the Attorney General could legally hold an

excluded alien in custody when he determined that parole is not in the public interest and

immediate deportation is impossible. Ahrens v. Rojas, 292 F.2d 406, 408, 410-12 (5th Cir.1961).

13 Petitioners base their contention that their detention is unreasonably indefinite on a belief that

they are not included in the list of Mariel aliens to be returned to Cuba pursuant to the 1984

repatriation agreement with Cuba because they were not in INS custody at the time of the

agreement. that these procedures were not followed here.

We hold that petitioners have not been denied procedural due process.

II. Statutory Authority of the Attorney General

Petitioners do not challenge the Attorney General's power to exclude them nor his authority

to revoke their immigration parole and detain them pending exclusion. 12 Rather, they contend that

the Attorney General lacks the authority to detain them indefinitely. 13

The Immigration and Nationality Act (INA) confers on the Attorney General the authority

to administer and enforce the INA; this power includes the power to detain or parole excluded aliens14 The aggravated felon category includes petitioners Perez, Castellon, Arguez-Perez, and

Martinez, who have all been convicted of drug trafficking offenses. 8 U.S.C. § 1101(a)(43).

Other petitioners who may fall within this category on the basis of convictions for crimes of

violence (as defined in 18 U.S.C. § 16) include Gisbert (aggravated assault with intent to commit

robbery), Garcia (attempted murder in the second degree), Ocaña (aggravated assault with a

deadly weapon), and Asevedo (aggravated assault). Finally, Carbonell may also be included on

the basis of a prior murder conviction in Cuba. 8 U.S.C. § 1103(a)(43) (applicable offenses in

violation of foreign law are included if the term of imprisonment was completed within the

previous fifteen years).

15 The rejected amendment to section 1226(e) would have provided that "the Attorney General

may not release from custody any alien convicted of an aggravated felony, either before or after a

determination of excludability, unless [found not to be a threat to the community]." S. 1620,

102nd Cong., 1st Sess., 137 Cong.Rec. 11,802 (1991). (Provision rejected, H.R. 3049, 102nd

Cong., 1st Sess., 137 Cong.Rec. 11,491 (1991).) pri or to deportm ent. 8 U.S.C. §§ 1103, 1182.

Amendments to t he INA in 1990 and 1991 distinguish between aliens who have been

convicted of aggravated fe lo nies and those who have not. Although these amendments became

effective after revocation of petitioners' immigration parole, they may properly be considered in this

discussion because our concern is wi t h t he legality of petitioners' present detention. S ee AlvarezMendez v. Stock, 941 F.2d at 960. Petitioners fall into both categories. 14

A. Aliens Convicted of Aggravated Felonies

It is clear in the context of deportati on proceedings that th e At t o rney General may detain

aliens convicted of aggravated felonies. 8 U.S.C. § 1252(a)(2)(B), as amended by § 504(a)(5) of the

Immigration Act of 1990 and § 306(a)(4) of the I m migration Technical Corrections Act of 1991,

provides that

"[t]he Attorney General may not release from custody any lawfully admitted alien who has

been convicted of an aggravated felony, either before or after a determination of deportability,

unless the alien demonstrates to the satisfaction of the Attorney General that such alien is not

a threat to the community and that the alien is likely to appear before any scheduled hearings."

This provision is limit

ed by its terms to lawfully admitted aliens who are subject to deportati on; it

does not apply to petitioners, who are excluded aliens. A similar amendment in t he context of 8

U.S.C. § 1226(e), pertaining to exclusion, was introduced in 1991 but was not adopted by

Congress. 15

The Ninth Circuit, in Alvarez-Mendez v. Stock, acknowledged the lack of a corresponding16 Section 1226(e) was added to the INA by P.L. 101-649, Title V, § 504(b), 104 Stat. 5050,

101st Cong. 2nd Sess., November 29, 1990. It was amended by a not presently relevant

amendment to its paragraph (1), to read in its present form by P.L. 102-232, Title III, § 306(a)(5),

105 Stat. 1751, 102nd Cong., 1st Sess., December 12, 1991. Section 1226(e) provides:

"(1) Pending a determination of excludability, the Attorney General shall

take into custody any alien convicted of an aggravated felony upon release of the

alien (regardless of whether or not such release is on parole, supervised release, or

probation and regardless of the rearrest or further confinement in respect of the

same offense).

(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 condition described in

section 1253(g) of this title exists.

(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 ." amendment in the context of exclusion proceedings but interpreted section 1226(e), first enacted in

November 1990, to fill the gap. 16 The court reasoned that to allow the Attorney General to detain

deportable aliens, without pro viding the same authority regarding excludable aliens, would

"undermine Congress' attempt to protect society from dangerous aliens" and "would be contrary to

accepted tenets of U.S. immigration law, which treat aliens subjec t to deportati on m ore favorabl

y

than those seeking initial admission." Alvarez-Mendez, 941 F.2d at 961-62.

The Ninth Circuit held that the Attorney General has explicit statutory authority to continue

the detention of excludable aliens convicted of aggravated felonies based on its interpretation of 8

U.S.C. § 1226(e). A lvarez-Mendez, 941 F.2d at 962. 8 U.S.C. § 1226(e)(1) provi des that the

Attorney General "shall" detain, "[ p ] ending a determination of excludability, " aliens who have been

convicted of an aggravated felony. (Emphasis added.) Section 1226(e)(2) qualifies subsection (1):

" Notw ithstanding any other provision of this section, the Attorney General shall not re lease such

felo n from custody unless the Attorney General determines that the alien may not be deport ed17 Section 1253(g) concerns a situation where "any country upon request denies or unduly

delays acceptance or the return of any alien who is a national, citizen, subject, or resident

thereof...." Thus if Cuba again repudiated its agreement to accept the Mariel Cubans, section

1226 would no longer apply.

18 Cf. 8 U.S.C. § 1252(c), where the INA does provide an express time limit for detention in

deportation cases. This provision, not limited to dangerous felons, requires the Attorney General

to deport the alien within six months of the final order of deportation or final order of a court if

the administrative action is judicially reviewed. There is no equivalent requirement in exclusion

cases, indicating to the courts that Congress intended to authorize more stringent restrictions on

the freedom of excluded aliens than those imposed on resident aliens. Palma v. Verdeyen, 676

F.2d 100, 104 (4th Cir.1982). because the condition described in section 1253( g) o f this title exists." 1 7 (Emphasis added.) If

subsection (2) is satisfied, nevertheless "the Attorney General may release such alien only after" he

concludes on review that "the alien will not pose a danger to the safety of other persons or to

property." Section 1226(e)(3) (emphasis added).

While we are inclined to agree with the general approach o f t he Ninth Circuit in A lvarezM endez, we do not regard section 1226(e) as a limitation on the Attorney General's authorit y to

detain excludable aliens, either bef o re o r aft er final determination of excludability, pending their

removal from this country. Section 1226(e), first enact ed in 1990, is written in this respect as a

limitation on the Attorney General's power to release, or not to detain, and is not written as a grant

o f o r limitation on his power to detain. Rather, it appears to assume such power. As explained

below, we believe the At t o rney General has implicitly been granted the power to detain in these

circumstances.

B. Aliens Not Convicted of Aggravated Felonies

At all events, the INA d o es no t expressly grant the authority to detain indefinitely those

excluded alien petitioners who have not b een co nvicted of aggravated felonies but who cannot be

immediately deported. 18 Courts addressing the issue, however, conclude that "Congress implicitly

authorized the Attorney General to order such detention." Palma v. Verdeyen, 676 F.2d 100, 104

(4th Cir.1982) (emphasis added). See also Fernandez-Roque v. Smith, 734 F.2d at 580 (affirming

the district court's finding that th e government had statutory authority to detain Mariel Cubans

indefinitely when immediate exclusion was not practical).19 Another distinguishing factor of Rodriguez was that the alien had never been paroled after his

arrival in the United States and thus had committed no crimes in this country. We must be careful

in distinguishing Rodriguez on this ground, however. Although petitioners have committed

crimes in this country, they have already served their sentences for those crimes. The Attorney General's impl icit aut ho rity to detain excludable aliens is not unlimited,

however, as the return of the alien must be immediate "unless the Attorney General

.. . in his

discretion, concludes that immediate deportati on is not practicable or proper." 8 U.S.C. § 1227(a).

The Fourth Circuit held that the Attorney General had complied with this provision by instituting

pr ocedures to review each al i en's case. P alma v. Verdeyen, 676 F.2d at 104. We agree. These

procedur es, which have been followed in the present case, are set forth in 8 C.F.R. §§ 212.12,

212.13.

Petitioners rely on Rodriguez-F e rnandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981), to

contest the authority of the Attorney General to detain them indefinitely. In Rodriguez, the Tenth

Circuit held that the INA did not permit indefinit e detention as an alternative to exclusion. 654 F.2d

at 1389-90. Several factors distinguish that case from the one before us. In R odriguez, the Attorney

General determined the ali en t o be suitable for parole, but detention was continued because the

government stayed parole releases while it re-examined its parole policy in light of the situation

created by the Mariel Cubans. Further, R odriguez was decided in 1981, before Cuba agreed to accept

the return of any Mariel Cubans. Finally, the immigration regulations have been amended since the

Tenth Circuit decided Rodriguez. M arczak v. Greene, 971 F.2d 510, 514 & n. 7 (10th Cir.1992). 19

In contrast, in the present case each of the petitioners has been determined not suitable for

parole. Although the timing of the petitioners' return to Cuba is uncertain, the Unit ed St at es is

continuing its negotiations with Cuba to effect this return.

To the extent th at R odriguez is not distinguishable from the present appeal, we decline to

agree with the Tenth Circuit's reasoning there, and instead align ourselves with more recent cases that

have upheld the Attorney General's authority to detain Mariel Cubans indefinit ely. In P alma v.

Verdeyen, the Fourth Circuit reversed the district court's grant of habeas corpus , stating that

"indefinite detention of a permanently excluded alien deemed to be a security risk, who is refused20 Nor do we address the precise conditions or nature of the detention. Petitioners' only

complaint is that they are institutionally detained instead of being paroled into the general

population. entry to other countries, is not unlawful." P alma, 676 F.2d at 103 (citing Mezei, 345 U.S. 206, 73

S.Ct. 625). S ee also Fernandez-Roque v. Smith, 734 F.2d at 580 ("[T]he government had statutory

authority to detain aliens indefinitely in those cases where immediate exclusion" was not practical).

We conclude that the INA authorizes the Attorney General to continue to detain petitioners,

whether or not they have been convicted of aggravated fe l onies, until the United States is able to

deport them.

W e do not suggest that the Attorney General would have the authority to co ntinue to

indefinit ely detain petitioners if he refused to allow their deportati on to a country that was willing and

able to accept them; at least absent circumstances now difficult to conceive, that would doubtless

be essentially punitive and henc e impro per as an administrative action without the due process

appropriate thereto. W

ong Wing v. United States, 163 U.S. 228, 237-38, 16 S.Ct. 977, 980-81, 41

L.Ed. 140 (1896). However, this is not the situation before us. 2 0 Petitioners are not requesting that

the United States attempt to se nd them to Cuba or to a third country. They want to be admitted

physically into the United States. This would, in effect, bestow on these aliens the very rights that

were denied them when their immigration parole was revoked on the basis of their criminal activity

in the United States.

Accepting petitioners' arguments here would allow on e country to export i ts unwanted

nationals and force them upon another country by the simple tactic of refusing to accept their return.

See Jean v. Nelson, 727 F.2d at 975 ("A foreign leader could eventually compel us to grant physical

admission via parole to any aliens he wished by the simple expedient of sending them here and then

refusing to take them back"). The United States cannot be forced to violate its national sovereignty

in order t o parole these aliens within its borders merely because Cuba is dragging its feet in

repatriating them. S ee Lynch, 810 F.2d at 1373 ("Courts ordinarily should abstain from placing limit s

on government discretion in these circumstances because the sovereign interest in self-determination

weighs so much more heavily in this scheme than does the alien's interest in entering the country").21 Petitioners contend that the principle quoted from The Paquete Habana is merely dictum and

should not control here. This ignores the acceptance of this principle in subsequent decisions.

See Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939

(D.C.Cir.1988); Alvarez-Mendez v. Stock, 941 F.2d at 963; Garcia-Mir v. Meese, 788 F.2d at

1453-55. III. Public International Law Claims

Public international law has been incorporated into the common law of the United States, The

Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900); G arcia-Mir v. Meese,

788 F.2d 1446, 1453 (11th Cir.), cert. denied, 479 U.S. 889, 107 S.Ct. 289, 93 L.Ed.2d 263 (1986),

and we are thus bound to construe the federal common law, to the extent reasonably pos sible, to

avoid violating principles of public international law. Public international law controls, however, only

"where there is no treaty and no controlling exe cut ive or legislative act or judicial decision...."

Garcia-Mir v. Meese, 788 F.2d at 1453 (quoting The Paquete Habana, 175 U.S. at 700, 20 S.Ct.

at 299). 21

Petitioners contend their incarceration violates principles of public international law that

prohibit prolonged arbitrary detention. Although we have not previously addressed this issue, other

circuits have held in the context of immigration detention that international law is not controlling

because federal executive, legislative, and judicial actions supersede the application of these principles

of international law.

In Garcia-Mi r v. Meese, the Eleventh Circuit, addressing a situation similar to that now

be fo re this Court, found that the decision of the Attorney General to incarcerate excluded Mariel

Cubans indefinit ely pending efforts to deport them constituted a controlling executive act sufficient

to prevail over international law. 788 F.2d at 1454-55. The court went on to assert that, even if the

executive act were found insufficien t , t he Supreme Court's decision in M ezei would be a judicial

decision sufficient to meet the test of The Paquete Habana. Id. at 1455.

The Ninth Circuit focused on the controlling act of the legislature in enacting the Immigration

and Nationality Act. A lvarez-Mendez v. Stock, 941 F.2d at 963. It found that international law did

not require the release o f the aliens where the Immigration and Nationality Act authorized the

Attorney General to detain them. "[W]e are bound by a properly enacted statute, provided it be22 Jus cogens describes peremptory norms of law which are nonderogable and form the highest

level of international law. Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d

929, 940 (D.C.Cir.1988).

23 In 1987, the announcement of the reinstatement of the 1984 repatriation agreement with

Cuba sparked riots among Mariel Cubans detained in federal detention centers in Atlanta,

Georgia, and Oakdale, Louisiana. The center in Louisiana was substantially destroyed.

Buchanan v. United States, 915 F.2d 969, 969-970 (5th Cir.1990); see also Ramos v.

Thornburgh, 761 F.Supp. 1258, 1262 (W.D.La.1991). constitutional, even if that statute violates international law." Id.

The immigration statutes, Attorney General actions, and Mezei, are equally applicable here.

W e concur with the decisions of the Eleventh and Ninth Circuits in this respect and hold tha t

international law does not require the release of the petitioners where these legislative, executive, or

judicial decisions exist to the contrary.

Petitioners also contend that prolonged arbitrary deten t io n is a violation of fundamental

human rights law, or jus cogens. 22 Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859

F.2d 929, 941 (D.C.Cir.1988). Although the N icaragua court recognized that human rights law

prohibits prolonged arbitrary detention, it did not decide that doctrines of jus cogens supersede

domestic law, nor did it address the present situation of immigration detention. Petitioners did not

raise this particular claim in the district court and thus are barred from bringing it here. U nited States

v. Sherbak, 950 F.2d 1095, 1101 (5t h Cir.1992). In any event, we do not construe international

human rights law as requiring that the United States acc ept t he Mariel Cubans under these

circumstances. As we noted above, it would be entirely different if Cuba or another country were

willing and able to take these aliens and the United States refused to allow them to leave. This is not

the case, however, as it is in the interest of the United States to return these aliens; the detention of

the aliens within the United States is at the taxpayers' expense and constitutes a security risk within

our already crowded prison systems. 23

Conclusion

We hold that, under these circumstances, the continued detention, though indefinite, of the

petitioners does not violate the petitioners' constitutional rights; that ordering such detention is within

the discretionary po wer o f t he Attorney General; and that principles of international law do not24 Except that as to petitioner Carlos Ocaña the judgment is modified so as to dismiss his suit as

m oot (see note 5, supra ). operate to prohibit their detention. The judgment of the district court is AFFIRMED. 24