Review Plan in 1989, Jd. tn 1994, he was convicted in an Illinois court of a drug offense, and later
he was convicted of a weapons violation. id. at 990-91. After serving those sentences he was
returned to federal custody. /d. at 991. The Seventh Circuit held that it was not a violation of the
petitioner's due process rights to keep him in federal custody since Cuba would not accept his
repatriation. Id. at 991-92.

Since Rodriguez, like the aliens in Shaughnessy and Hoyte-Mesa, 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. /d., citing Zadvydas,
533 U.S. at 687 (additional citations omitted). In 1980 and again in 1991, Petitioner was granted
parole into the United States with certain conditions, including compliance with the laws of this
country. “His breach of those conditions is sufficient to authorize his current detention.” Hoyte-
Mesa, 272 F.3d at 991 (citation omitted). The length of Petitioner's deportation depends on the
outcame of his annual parole review. Our Court of Appeals has stated that access to this type of
administrative review satisfies detained aliens’ due process rights. /d. at 992

For these reasons, Respondents’ motion for summary judgment (Doe. 10-1)is granted, and

Rodriguez's petition for a writ of habeas corpus is denied.

ENTER:

Dated: July 14, 2003



considered annually for immigration parole in accordance with the Cuban Review Plan, & CFR.
§ 212.12. Upon reviewing a detainee’s case, the Cuban Review Panel makes a recommendation
to the Associate Commissioner for Enforcement of the INS, who has the discretion to approve
parole. fd. In November 2002, Rodriguez filed a this petition for a writ of habeas corpus. Invoking
Zadvydas v. Davis, 533 U.S. 678 (2001), he argues 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.

Fifty years ago, the Supreme Court ruled in Shaughnessy v- United States ex rel, Mezeil,
345 U.S. 206 (1953), that the United States may, without violating the Constitution, indefinitely
detain an excludable alien (that is, an alien deemed ineligible to be admitted to the United States)
if his country of origin refuses to accept his return, In Zadvydas, 533 U.S. 678, the case principally
relied on by Petitioner, the Court considered the constitutionality of the indefinite detention of
resident aliens awaiting deportation. In doing 50, the Court reaffirmed its decision in Shaughnessy
by distinguishing between excludable aliens (ie. aliens paroled into the United States pending
admissibility) and aliens (i.e. resident aliens) who were admitted to the United States but
subsequently ordered removed. Zadvydas, 533 U.S. at 682 (noting that “[alliens who have not yet
gained initial admission to this country would present a very different question”). As our Court of
Appeals has stated, the Supreme Court’s holding in Shaughnessy remains unaffected by the
Zadvydas decision. Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir. 2001).

In Hoyte-Mesa, the Seventh Circuit affirmed the denial of habeas relief to a petitioner who,
like Petitioner Rodriguez, had arrived in the United States from Cuba on the Mariel boat lift. He
was released into this country on parole, but was later convicted of endangering safety by conduct
regardless of life, battery, and carrying a concealed weapon. Id. at 990 Upon release from prison,
ne was taken into INS custody until a decision of the Board of Immigration Appeals made final an
order of deportation. Id. He was detained pending deportation and paroled under the Cuban

3


Minute OA Korm (16197)

V4 United States District Court, Northern District of Illinois
4
Sitting Judge if Other
Reb R. Pallmeyer than Assigaed Judge
—
02 C7983 | DATE 7/14/2003
CASE Jose Suarez Rodriguez vs. John Ashcroft
L TITLE
[ln the following box (a) indicute the party filing the motion, e-g., plaintiff, defendant, 3rd party plaintit¥, und (b) state briefly the nature
MOTION: of the motion being presented.
DOCKET ENTRY:
a5) it Filed motion of [ use listing in “Motion” box above.]
Q) im) Brief in support of motion duc
(3) im) Answer briefto motion due____- Reply to answer brief due____.
(4) a Ruling/Hearing on set for at
(5) ol Status hearing[held/continued to] [set for/re-set for] on __— set for at
(6) a Pretrial conference|held/continued to] {sct for/re-set forlon_ set for_ at
) oO Trial[sct for/re-set for}on at
(8) o TBench/Jury trial] [Hearing] held/continuedto at.
9) 0 ‘this case is dismissed [with/without) prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OD Local Rule 41.1 CLF RCP41(a\1) OO FRCP41(a)(2).
a _| {Other docket entry] Enter Memorandum Opinion And Order, Respondents’ motion for summary
judgment (Doc. 10-1) is granted, and Rodriguez’s petition for a writ of habeas corpus is denied.
ai) @ [For further detail sce order attached to the original minute order. |
No notices required, advised in open court,
2
No notices required, under pins
Vv | Notices mailed by judge's staff. JUL 16 2003
Notified counsel by telophone. te dackysed
Docketing (6 mail nutices.
a | Mail AO 450 torm. Ngy isis
Copy to judge/magistrate jndge. LUNs LOOSE sy
7 3 nanos
courtroom rs rats
ETV deputy’s - HIV
initials
Date/time received in.» eee
eentral Clerk's Cftiog “ys La] 2 anki depuay iis



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE SUAREZ RODRIGUEZ,
DOCKETEE

JUL 1 6 2003

Plaintiff,
Ww No. 02 C 7983

JOHN ASHCROFT, United States
Attorney Generai, et al.,

Judge Rebecca R. Palimeyer

Defendants.
MEMORANDUM OPINION AND ORDER

Jose Suarez Rodriguez (“Petitioner" or “Rodriguez"), an excludable alien and citizen of
Cuba, has been detained by the {mmigration and Naturalization Service (INS) since June 21, 2002
pending deportation, Rodriguez 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 is not authorized
pursuant to the Supreme Court's decision in Zadvydas yv. Davis, 533 U.S. 678 (2001). The
government (or “Respondents”) filed a motion for summary judgment on February 18, 2003.
Although advised of the motion and of his obligation to respond, Rodriguez has not responded to
the government's motion. For the following reasons, Respondents’ mation for summary judgment
is granted and Rodriguez’s petition for writ of habeas corpus is denied.

In June 1980, Patitioner entered the United States at Key West, Florida on the Mariel boat
lift and was paroled into the United States. (Defendants Local Rule 56.1 Statement of Material
Facts as to Which There is No Genuine Issue, hereinafter “56.1" 76.) The Attorney General has
the discretion to “parole” aliens into the United States. 8 U.S.C. § 1182(d)(5)(A), Samirah v.

O'Connell, No. 03-1786, 2003 WL 21507968, __F.3d___, (7th Cir. July 2, 2003). Parole allows

‘ Although the government refers to itself as “Defendant” and to Rodriguez as
“Plaintiff,” the parties to a petition for a writ of habeas corpus are generally referred to as

“Respondent” and “Petitioner.”



an alien temporarily to remain in the this country pending a decision on his application for
admission. fd. Soon after being paroled, Petitioner was convicted of a crime of moral turpitude.”
Because of that conviction, an immigration judge ordered Rodriguez deported and revoked his
parole effective May 27, 1986.° (/d.; Defendants’ Memorandum of Law in Support of their Motion
for Summary Judgment, at 1.) The INS was unable to repatriate Rodriguez to Cuba in 1986,
however, and Petitioner remained in INS custody pursuant to 8 C-F.R. § 212.12 until he was
paroled on February 6, 1991, pursuant to a decision of the Department of Justice Cuban Review
Panel. (56.1 18.)

In 1997, Rodriguez was convicted of aggravated battery and sentenced to two years in the
Illinois Department of Corrections. (/d. 19.) He was convicted in 2000 of felony use or possession
of a firearm, as well as possession of a controlled substances, crimes for which he was sentenced
to seven and five years, respectively, also in Illinois. (td.)

After Petitioner completed serving his sentences for these convictions, he was returned to
INS custody on June 21, 2002. (/d.) In December 2002, INS officials reviewed Petitioner's case
and revoked the parole that had been issued to him in 1991, pursuant to 8 C.F.R. § 212.12(h)(2)
and (4). (/d. 10.) On December 20, 2002, the INS District Director for Chicago, Brian Perryman,
informed Rodriguez by letter that his parole had been revoked due to his state court convictions,
and that Rodriguez would be detained in custody of the INS, where he would subsequently be

interviewed by the Cuban Review Plan Panel. (/d.) There is no dispute that Rodriguez has been

? Rodriguez pleaded guilty in California 1982 to shooting a rifle into an inhabited
building, for which he was placed on three years probation. His probation was revoked in 1984 and
he was sentenced to three years in prison when he was convicted of auto theft, for which he
received a concurrent two year term. Petitioner was incarcerated for 26 months, and was paroled
by California but held on detainer by the INS. (Department of Justice Review Panel's Final
Decision - Parole, dated Nov. 9, 1990, Ex. 4 to 56.1.)

8 The record does not indicate whether Petitioner sought further review, or whether
the Board of Immigration Appeals reviewed the immigration judge's decision.

2