specified in this particular detention statute. Accordingly, the Supreme Court recently found that
there is an implicit time limit in post-removal detention under Section 1231(a)(6), and that once
removal is no longer reasonably foreseeable, indefinite detention is not permitted. See Zadvydas,
533 U.S. at 699, Whether a detention period is reasonably necessary to secure removal, and
whether removal is no longer foresceable, are questions that are appropriately brought before a
habeas court. See id.

The petitioner has latched onto the Court's ruling in Zadvydas as the primary authority
supporting his request for a writ of habeas corpus. To him, the Court’s holding that removable
aliens may only be detained six months after an order of removal has been issued should
naturally extend to all aliens, including inadmissible (or what used to be called “cxcludable”)
aliens. To explain this reasoning, some further discussion is required. As the Court noted in
Zadvydas, the “distinction between an alien who has effected an entry into the United States and
one who has never entered runs throughout immigration law.” 533 U.S. at 693 (citations
omitted). For purposes of this case, Yero-Porro was a paroled alicn who never officially
“cntered” the United States. See Leng May Ma v. Barber, 357 U.S. 185, 188-90, 78 S.Ct. 1072
(1958) (alien “paroled” into the United States pending admissibility had not effected an “entry”);
8 U.S.C. §§ 1101(a)(13)(A)-(B), 1182(d)(5)(A). By virtue of his criminal background, TNS also
found him to be “inadmissible” under the Immigration Act. The distinction between aliens who
have “entered” the country and those who have not is significant because aliens within the
country are entitled (o the full protection of the Due Process Clause whereas those aliens
requesting admission to the United States (including paroled and/or inadmissible alicns) must be

content with “whatever process Congress has authorized.” Borrero v. Aljets, 325 F.3d 1003,


CONCLUSION
For the foregoing reasons, the petition for habeas corpus pursuant lo 28 U.S.C. § 2241 is
denied. This is a final and appealable order, This case is terminated.

It is so ordered.

, _
Wer = ¢
Wayne R. Andersen
United States District Judge

Dated: L063



DISCUSSION

Petitioner brings this action under 28 U.S.C. § 2241 as a petition for a writ of habeas

corpus. He alleges that he has been held in custody by the INS in excess of six months past a
determination in 1999 that he should be removed from the United States. Vero-Porro claims that
the United States is currently unable to deport or remove individuals to his country of origin
(Cuba), and there is no reasonable likelihood that he can be removed in the foreseeable fulure.
Thus, according to the petitioner, his potentially interminable stay in INS custody is a violation of
the federal immigration detention statute, 8 U.S.C. § 1231(a)(6). He additionally argues that the
detention statute is facially unconstitutional or, alternatively, unconstitutional as applied in this
case. Yero-Porro asks for issuance of a writ requiring the government to show why his detention
is lawful, declaratory relief regarding his detention and the statutes under which his detention
began, and an order for his release.

A writ of habeas corpus can be granted to a person who is “in custody under or by color
of the authority of the United States ... or... is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2241(c)(1), (3). Yero-Porro alleges that he
has been held in detention by the INS for over six months. Habeas corpus proceedings are an
appropriate forum for statutory and constitutional challenges to post-removal period detention by
the INS. See Zadvydas v. Davis, 533 U.S. 678, 682, 121 S.Ct. 2491 (2001).

An alien ordered removed, who has not left the country or been removed within ninety
days, is subject to supervision by the Attorney General. See 8 U.S.C. § 1231(a)(3), More
relevant here, an alien ordered removed, including aliens found inadmissible, may be detained

beyond the ninety-day removal period. See 8 U.S.C. § 1231(a)(6). There is no time limit



1007 (8th Cir. 2003) (citing Landon v. Plasencia, 459 U.S. 21, 33-35, 103 S.Ct. 321 (1982) and
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 8.Ct. 309 (1950)).

Turning back to the merits of the pelitioner’s habeas corpus petition, we must now
determine whether the Supreme Court’s holding in Zadvydas putting a temporal limit on post-
removal detention for resident aliens should be extended to detention of inadmissible aliens such
as Yero-Porro, Yero-Porro obviously argues that the Court’s decision should be extended
because he has been in INS custody since November 2001 and there is no reasonable expectation
that he will be sent back to Cuba in the near future. On the other hand, the government asserts
that the Court’s reasoning in Zadvydas was explicitly limited to post-removal detention of
resident aliens and that the Court’s prior precedent holding that the United States could
constitutionally detain an inadmissible alien indefinitely, see Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 73 S.Ct. 625 (1953), remains good law after Zadvydas.

On this issue, there is a clear split in authority among the different circuits. The Ninth
and Sixth Circuits have held that the holding in Zadvydas applies to all aliens regardless of their
status as either resident or inadmissible. See Rosales-Garcia v. Holland, 322 F.3d 386, 405-06
(6th Cir. 2003) (en banc); Xi v. INS, 298 F.3d 832, 835-36 (9th Cir. 2002). However, the Eighth
Circuit has held that “Zadvydas’s six-month presumption of reasonableness is inapplicable to
inadmissible aliens.” Borrero, 325 F.3d at 1007; see also Rios v. INS, 324 F.3d 296, 297 (Sth
Cir. 2003) (per curiam) (same). While this split may be interesting, we need not make our own
independent evaluation of the accuracy of these rulings because the Seventh Circuit has also
ruled on this issue.

In Hoyte-Mesa v. Asheroft, 272 F.3d 989 (7th Cir. 2001), the court was also confronted



Minute Order Form (D687)

Jk Ap United States District Court, Northern District of Tlinois
Name of Assigned Judge Wayne R. Andersen Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 2C 7229 DATE 6/2/2003
CASE Alfredo Yero-Porro vs. John Ashcroft et al

TITLE

Tin the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 31d pasty plaintiff, and (b) state brictly the nature
of the motion being presented,

MOTION:

DOCKET ENTRY;

(i) o Piled motion of [ usc listing in “Motion” box above.]

(2) o Bricfin support of motion due

Q) o Answer brief to motion duc,__. Reply to answer briefdue____.

(4) oO Ruling/Hearing on setfor_ at

(5) im Status hearing[held/continucd to] (set for/re-set for]on___set for .._at__

(6) QO Pretrial conference|held/continued to] [sct for/re-set for]on_ .__setfor_ at.
(7) a Trial[set for/re-set for]on__ at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to |__ at

(9) im) This case is dismissed [with/without] prejudice and without costs[by/agrecment/pursuant to]

OFRCP4(m) CLocal Rule 41.1 OPRCP41(a)(1} OO FRCP41(a)(2).

ao {Other docket entry] Enter MEMORANDUM, OPINION AND ORDER: For the foregoing
reasons, the petition for habeas corpus pursuant to 28:U.S.C. Section 2241 is denied. This is a final
and appealable order. This case is terminated.

adi ff [For further detail see order attached to the original minute order.)

No notices required, advised in open court, Document
‘Nutiber

‘No notices required. umber af notices

Rae a “

,

Notices mailed by judge's staff.

Notified counsel by telephone,

aww dockeged

¥ | Docketing to mail notices. M S
Y | Mail A0 450 form, achat Yepaty ine

Copy to judge/magistrate judge.

date mailed notice
courtroom,

TSA deputy’s
initials

Date/time received in
central Clerk's Office mailing, beputy nial

|



with a Mariel Cuban who argued that his indefinite INS detention violated the Supreme Court's
holding in Zadvydas, The Seventh Circuit noted that the Supreme Court in Zadvydas “reallirmed
its decision in Mezei by distinguishing between excludable [inadmissible] aliens and aliens who
were admitted to the United States but subsequently ordercd removed.” Hoyte-Mesa, 272 F.3d at
991. In so doing, the court held that inadmissible aliens, like Hoytc-Mesa and Yero-Porro, may
be indefinitely detained by the INS following a final order of removal. See id. (citing Zadvydas,
533 U.S. at 682 and Carrera-Valdez v. Perryman, 211 F.3d 1046, 1048 (7th Cir. 2000)).

Because we are bound by Seventh Circuit precedent on this issuc, we hold that Yero-Porro’s
continued detention by the INS does not violate federal constitutional law or 8 U.S.C. §
1231(a)(6).

With respect to the petitioner’s Due Process arguments, cven if he had properly stated a
procedural due process claim, such a claim would face a difficult road because the Cuban
Review Plan provides detailed procedures for the continuing review of Yero-Porro’s parole
status, and he has availed himself of those procedures. The Cuban Review Plan regulations, 8
C.F.R. § 212.12, are “the procedure authorized by Congress,” and are sufficient due process “as
far as an alien denicd entry is concermed.” Mezei, 345 U.S, at 212. On June 20, 2002, a Cuban
Revicw Panel convened in Ullin, Illinois at the Tri-County Jail, where Yero-Porro is being
detained by the INS. The panel revicwed his case file and conducted a personal interview with
the petitioner on that date. Therefore, we conclude that Yero-Porro has received all appropriate

due process with respect to his continued INS detention.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ALFREDO YERO-PORRO, )
)
Plaintiff, )
)
v. ) No, 02 C7229
)
JOHN ASHCROFT, United States ) Wayne R. Andersen
Attorney General; BRIAN R. ) District Judge
PERRYMAN, District Director, )
IMMIGRATION AND )
NATURALIZATION SERVICE, ) °
) %
Defendants. ) “

MEMORANDUM, OPINION AND ORDER

This case is before the Court on Alfredo Yero-Porro’s petition for a writ of habeas corpus
pursuant to 28 U.S.C, § 2241. For the following reasons, the petition for habeas corpus is
denied.

BACKGROUND

Petitioner Alfredo Yero-Porro is a thirty-nine year old native and citizen of Cuba. He
entered this country in 1980 during the “Mariel boatlift.”. He was paroled into the United States
on July 2, 1980. Tn 1986, the petitioner was convicted of operating a motor vehicle without the
owner’s consent and sentenced to two years incarceration. In 1988, the petitioncr was convicted
of battery to a police officer and resisting arrest for which he was sentenced {o three years. In

1996, the petitioner was convicted of possession with intent to deliver a controlled substance and

sentenced to five years in a Wisconsin state prison. As a result of these convictions, the



petitioner’s immigration parole has been revoked by the Immigration and Naturalization Service
(“INS”) several times, most recently on May 4, 2002. Additionally, due to these numerous
convictions, Yero-Porro was ordered administratively removed to Cuba by an officer of the INS
on August 16, 1999,

Afler the petitioner completed his Wisconsin state prison sentence on November 19,
2001, he was placed into INS custody. On June 20, 2002, the petitioner was evaluated by the
Cuban Review Panel as required by 8 C.F.R. § 212.12 and the Cuban Review Plan. The Cuban
Review Plan is a federal regulatory scheme promulgated in 1987 to establish procedures for
immigration parole determinations regarding Mariel Cubans. As part of the petitioner’s review
on June 20, 2002, the panel examined Yero-Porro’s case file in its entirety and the panel
conducted a personal interview with him. After the review was completed, the panel drafted its
recommendations regarding the petitioner's potential for release from INS custody.

The panel concluded that Yero-Porro was likely to pose a threat lo the community, that he
was unlikely to remain non-violent, and that he was likely to violate the conditions of his parole.
The panel’s recommendations were then reviewed by the INS Associate Commissioner for
Enforcement as part of the Cuban Review Plan and he concluded that, based upon a number of
factors referenced in the regulations, he was unable to recommend that the petitioner be released
from custody at that time. In accordance with the applicable regulations and the Final Notice of
Parole Denial dated July 30, 2002, the INS will reconsider his parole status and the potential for

release from custody within one year of the date of the notice.