Petitioner because Cuba will not accept his return (id. q 3), and there is no reasonable likelihood
that Respondent can effectuate exclusion/removal in this case in the foreseeable future. (Jd. $5).

On June 10, 2004, a Cuban Review Panel (“Panel”) convened and reviewed Petitioner’s
case for possible release under parole conditions under 8 C.F.R. § 212.12. Ud. 78.) Itis
undisputed that this review was done in compliance with 8 C.F.R. § 212.12. (id) After
reviewing the case in its entirety, the Panel recommended that Petitioner remain detained based
upon his criminal record and history of violence. (id 49.) The Panel’s recommendation was
then reviewed by the Associate Commissioner for Enforcement of the Department of Homeland
Security, who issued a final decision endorsing the Panel’s recommendation not to release
Petitioner at this time. (/d.) Petitioner’s case and status will be reviewed again by the Panel and
the DHS, ICE within one year of the date of the final decision pursuant to the regulations relating
to the Cuban Review Plan. (/d.; 8 C.F.R. § 212.12(g)(2).) Petitioner is presently in
Respondent’s custody. (Resp.’s St. § 2.)

ANALYSI

1. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). In
determining whether there is a genuine issue of material fact, the evidence must be viewed in the
light most favorable to the party opposing the motion, and any doubts regarding the evidence
must be resolved in favor of the nonmoving party. See Foley v. City of Lafayette, 359 F.3d 925,
928 (7th Cir. 2004). Seventh Circuit precedent has affirmed the grant of summary judgment in

the context of habeas corpus petitions brought under 28 U.S.C. § 2241. See White v. Henman,


(DE. 1 at 8.) Alternatively, Petitioner argues that, as applied, § 1231(a)(6) violates Petitioner’s
due process rights. (fd) As explained below, numerous decisions from the Supreme Court, the
Seventh Circuit, and district courts in this district preclude Petitioner’s constitutional claims. As
a result, Respondent's summary judgment motion is granted to the extent it relates to Petitioner’s
constitutional claims.

In Hoyte-Mesa v. Ashcroft, 272 F.3d 989 (7th Cir. 2001) (per curiam), an excludable
Mariel Cuban argued that his detention violated his due process rights and constituted cruel and
unusual punishment. See Hoyte-Mesa, 272 F.3d at 990. The Seventh Circuit found the
petitioner’s constitutional claims in Hoyte-Mesa unavailing, citing precedent that also forecloses
Petitioner’s constitutional claims here. In this regard, the Seventh Circuit noted that the Supreme
Court in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), held that the “United
States could constitutionally detain an excludable alien indefinitely if his country of origin
refused to accept his return.” Hoyte-Mesa, 272 F.3d at 991. The Seventh Circuit noted that it
relied on Mezei in Carrera-Valdez v. Perryman, 211 F.3d 1046 (7th Cir. 2000), see Hoyte-Mesa,
272 F.3d at 991, which held that an excludable Mariel Cuban was not “constitutionally entitled to
release,” Carrera-Valdez, 211 F.3d at 1048; accord Rios v. INS, 324 F.3d 296, 297 (Sth Cir.
2003); Borrero v. Aljets, 325 F.3d 1003, 1008 (8th Cir. 2003). The Seventh Circuit also held that
the Supreme Court’s holding in Mezei was unaffected by the Zadvydas decision, discussed supra.
Hoyte-Mesa, 272 F.3d at 991. The Seventh Circuit reasoned that because the petitioner in Hoyte-
Mesa, like the petitioner in 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.” Jd.


As set forth below, however, the Supreme Court has read a temporal limitation into the language
of § 1231(a)(6), at least with respect to resident aliens. Petitioner asserts that this limitation
should apply to him too. (D.E. 1 49 23-24.)

In support of his petition, Petitioner repeatedly invokes the Supreme Court’s decision in
Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Supreme Court decided whether §
1231(a)(6) “authorizes the Attorney General to detain a removable alien indefinitely beyond the
removal period or only for a period reasonably necessary to secure the alien’s removal.” Id. at
682 (emphasis omitted). The Supreme Court found the answer to be the latter, holding that §
1231(a)(6) “contain[s} an implicit ‘reasonable time’ limitation, the application of which is
subject to federal-court review.” Id. This reasonable time limitation, the Supreme Court held, is
presumptively six months, after which, and upon a petitioner providing good reason to believe
there is no significant likelihood of removal in the reasonably foreseeable future, the government
must rebut the petitioner’s showing. /d. at 701. “[O]nce removal is no longer reasonably
foreseeable, continued detention is no longer authorized by the statute.” Id. at 699; see also id. at
701 (‘“[A]n alien may be held in confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.”). The Supreme Court
emphasized that it read this limitation into § 1231(a)(6) to avoid “serious constitutional
concerns” that would arise from the indefinite detention of aliens who had been admitted to the
United States. /d. at 682; see also id. (“Aliens who have not yet gained initial admission to this
country would present a very different question.”).

Petitioner claims that the holding in Zadvydas extends to all aliens, not just aliens who

have been admitted to the United States, including inadmissible aliens like him. (D.E. 1 at 5.)


977 F.2d 292, 295 (7th Cir. 1992); Alonzo v. Rozanski, 808 F.2d 637, 639 (7th Cir. 1986).
Il. The Challenges to Petitioner’s Detention

Petitioner’s briefing is not a model of clarity. It appears that substantial portions are
merely photocopies of or inserts from briefs relating to his BIA proceedings, which resulted in a
decision adverse to him that was not appealed to the Seventh Circuit. Nonetheless, Petitioner’s
“Petition for Writ of Habeas Corpus” is fairly read to raise a statutory claim (see D.E. 1 at 4-5
(“COUNT ONE (Detention not Authorized by Statute),” citing 8 U.S.C.§ 1231(a)(® and
Zadvydas v. Davis, 533 U.S. 678 (2001)), and to raise facial and as-applied constitutional
challenges. (See D.E. 1 at 6-9.) The petition also seeks (essentially duplicative) declaratory
telief. (/d. at 10.)

A. Petitioner’s Statutory Claims

Petitioner’s statutory claim relates to 8 U.S.C. § 1231(a)(6). This statute provides, in
relevant part, that “[a]n alien ordered removed who is inadmissible . . ., removable . . . [,] 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 ... .” 8 U.S.C. §
1231(a)(6). The removal period provided for by statute is ninety days, see 8 U.S.C. §
1231(a)(1)(A) (defining “removal period”), during which time the statute contemplates detention,
see 8 U.S.C. § 1231(a)(2) (“During the removal period, the Attorney General shall detain the
alien.”). It is undisputed that Petitioner is both inadmissible and removable. (D.E. 1 {7 1, 3;
Resp.’s St. § 1.) Therefore, one might argue that, under the statute, the Government may detain
Petitioner beyond the ninety-day removal period, and perhaps, in practical terms, indefinitely,

given that it is undisputed that Petitioner cannot be removed to Cuba in the foreseeable future.


statutory question (and resolving it against Petitioner). See, e.g., Lazaro v. Ashcroft, No. 04-
1381, 2004 WL 1718439, at *2 (N.D. Ill. July 29, 2004) (Darrah, J.) (collecting district court
decisions and holding, in a case where a petitioner claimed that his detention was not authorized
by § 1231(a)(6), that Zadvydas does not apply to a Mariel Cuban who had not gained admission
to the United States); Prieto-Herrera v. Ashcroft, No. 02-7397, 2003 WL 22019353, at *3 (N.D.
Ill. Aug. 26, 2003) (Coar, J.) (holding that Mariel Cuban’s continued detention did not violate 8
U.S.C. § 1231(a)(6) post-Zadvydas); Yero-Porro v, Ashcroft, No. 02-7229, 2003 WL 21312665,
at *3 (N.D. Il. June 2, 2003) (Andersen, J.) (same). The Court also did not uncover any
authority in this district adopting the position Petitioner urges here. Nonetheless, the Court notes
that at least two circuit courts have questioned whether Hoyte-Mesa definitively passed on the
statutory question. See Benitez v. Wallis, 337 F.3d 1289, 1298 (11th Cir. 2003) (rejecting
Petitioner’s statutory position, but stating that the “Hoyte-Mesa [did] not engage in any statutory
analysis of how § 1231(a)(6) must be read after Zadvydas.”); Xi v. INS, 298 F.3d 832, 839 n.3
(9th Cir. 2002) (“Hoyte-Mesa, a Mariel Cuban, challenged his detention on exclusively
constitutional grounds.”). While the Court is mindful that the weight of authority is against
Petitioner, the most prudent course seems to be to await the guidance from the Supreme Court,
which can reasonably be expected to shed substantial light on whether Petitioner’s statutory
claim is, in fact, unavailing.

B. _ Petitioner's Constitutional Claims

On the constitutional front, Petitioner contends, again invoking Zadvydas, that §
1231(a)(6) facially violates the Due Process Clause of the Fifth Amendment “insofar as it

permits the indefinite detention of individuals in the absence of adequate procedural safeguards.”


‘Miqute Order Form (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Jud ili Sitting Judge if Oth
vor Magistrate Judge Mark Filip than Asignd Jatge
CASE NUMBER 04 C 3610 DATE 12/10/2004
CASE VASALLO O’REILY vs. JOHN ASHCROFT
TITLE
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature.
MOTION: of the motion being presented.]
DOCKET ENTRY:
qa) Qo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(63) Oo Answer brief to motion due. . Reply to answer brief due :
@ im Ruling/Hearing on set for at te
(5) Oo Status hearingfheld/continued to) [set for/re-set for} on set for at :
© im} Pretrial conference[held/continued to) [set for/re-set for} on set for at .
fe) Oo Trial{set for/re-set for] on at
(8) a {Bench/Jury trial} [Hearing] held/continued to at
(9) aq This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) CLocal Rule 41.1 CUFRCP41(a\(1), ELFRCP4I(@)2),_-
do) {Other docket entry} ENTER MEMORANDUM OPINION AND ORDER: Respondent’s
motion for summary judgment is granted in part. Petitioner’s constitutional claims (and the
duplicative portion of the declaratory count relating to the constitutional claims) are rejected. The
parties should be prepared to promptly address the effect of the Supreme Court’s upcoming
decision in Benitez v. Wallis, when it is rendered.
(lj) wf [For further detail see order attached to the original minute order.]

No notices required, advised in open court

No notices required.

Notices mailed by judge’s staff.
Notified counsel by telephone.
a | Docketing to mail notices,

Mail AO 450 form. . $e
Copy to judge/magistrate judge.
courtroom
TBK deputy’s seh Hy Gt Ott
initials og sy iid Gi de
Date/time received in
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: A ree
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CONCLUSION
For the foregoing reasons, Respondent’s motion for summary judgment is granted in part.
Petitioner’s constitutional claims (and the duplicative portion of the declaratory count relating to
the constitutional claims) are rejected. The parties should be prepared to promptly address the
effect of the Supreme Court’s upcoming decision in Benitez v. Wallis, when it is rendered.

So ordered.

Wt Le

Mark Filip | }
United States DistHtt Judge
Northem District of Iilinois

Dated: a JO _2004-

i


Since it is undisputed that Petitioner, like the petitioner in Hoyte-Mesa, was an
excludable/inadmissible alien, the Court holds that Petitioner’s continued detention by
Respondent does not violate whatever federal due process rights that he may have. During his
detention, the petitioner in Hoyte-Mesa, like Petitioner here, “received annual consideration for
immigration parole in accordance with the Cuban Review Plan, 8 C.F.R. § 212.12.” Id The
petitioner in Hoyte-Mesa was denied parole under the Cuban Review Plan prior to his filing a
habeas petition, like Petitioner in the case at bar, based upon, among other things, his criminal
record. Id; see also Resp.’s St. | 9. The parole review procedures available to Petitioner and
prescribed by the Cuban Review Plan regulations, 8 C.F.R. § 212.12, are “the procedures
authorized by Congress,” and are sufficient due process “as far as an alien denied entry is
concerned.” Mezei, 345 U.S. at 212; accord, e.g., Hoyte-Mesa, 272 F.3d at 992; Borrero, 325
F.3d at 1008; Lazaro, 2004 WL 1718439, at *2 (holding that the annual review of a Mariel
Cuban’s detention by the Cuban Review Panel satisfied the petitioner’s due process rights and
allowed for his continued detention) (collecting cases); Rodriguez v. O'Connell, No. 02-8054,
2004 WL 406767, at *3 (Mar. 1, 2004) (Andersen, J.). And because Petitioner’s case was
reviewed in compliance with the regulations (Resp.’s St. { 8), the Court concludes that Petitioner
has received all appropriate due process with respect to his continued detention by Respondent.
Accordingly, Petitioner’s facial and as-applied constitutional challenges are foreclosed by settled

Supreme Court and Seventh Circuit precedent.

10


Respondent asserts that the Supreme Court’s reasoning in Zadvydas was explicitly limited to the
post-removal-period detention of resident aliens. (D.E. 6 at 4-5.)

This question has split the circuit courts of the United States. Although neither party
appears to have been apprised of this fact, this split prompted the Supreme Court on January 16,
2004, to grant a writ of certiorari with respect to Benitez v. Wallis, 337 F.3d 1289 (11th Cir.
2003), cert. granted, —U.S. —, 124 S. Ct. 1143 (Jan. 16, 2004), on the question of whether the
language in § 1231(a)(6), “which does not distinguish in its application between admitted and
non-admitted aliens, may be interpreted differently for non-admitted aliens” like Petitioner in the
instant case.‘ Benitez is fully briefed and was argued to the Supreme Court on October 13, 2004.
A review of the oral argument transcript reveals that the Supreme Court explored multiple issues
relevant to the proper disposition of Petitioner’s statutory claim.

Given that a Supreme Court decision in the Benitez case can reasonably be expected to
issue soon, the Court believes it most prudent to await the guidance of the Supreme Court before
resolving the statutory claim. The Court appreciates that the weight of circuit court authority is
against Petitioner. See Sierra v. Romaine, 347 F.3d 559, 573-576 (3d Cir. 2003) (holding
Zadvydas’s temporal limit on post-removal-period detention for resident aliens under §
1231(a)(6) did not apply to an unadmitted, inadmissible Mariel Cuban); Borrero v. Aljets, 325
F.3d 1003, 1005 (8th Cir, 2003) (same); Benitez v. Wallis, 337 F.3d 1289, 1301 (11th Cir. 2003)
(same). The Court also is aware that some decisions in this district interpret the Seventh

Circuit’s decision in Hoyte-Mesa v. Ashcroft, 272 F.3d 989 (7th Cir. 2001), as addressing this

‘ The quote is taken from the “Questions Presented” section relating to Benitez v. Wallis, 337
F.3d 1289 (11th Cir. 2003), as taken from the Supreme Court’s website,
www.suy .gov/orders/04grantednotedlist. hi

7


he was paroled into the United States.’ (Petitioner’s “Motion Supporting [sic] of the Habeas
Corpus Brief,” (D.E. 9) at 3.) In June of 1980, however, the Immigration and Naturalization
Service (“INS”) terminated Petitioner’s parole. (/d.) Petitioner further contends that after the
INS terminated his parole, the INS detained him in Atlanta for approximately two and a half
years. (/d.)

According to Petitioner, the INS paroled him from detention in 1983. (id) While on
parole, Petitioner was charged with armed battery with a deadly weapon in 1988. (id) He was
sentenced to a six-year term of incarceration, and Petitioner served a portion of that sentence.
After his release, a domestic abuse order was issued against Petitioner. (JZ) He was convicted
of knowingly violating the domestic abuse order on four occasions in 1999 and 2000. (Id)

On August 8, 2002, after completing his sentences for battery with a deadly weapon and
repeatedly violating the domestic abuse order, Petitioner was taken into custody of the
Department of Homeland Security, Immigration and Customs Enforcement (“DHS, ICE”).
(Resp.’s St. § 7.) His immigration hearing was held, and his appeal to the Board of Immigration
(“BIA”) was adjudicated on October 23, 2003. (/d. 46.) The BIA ordered Petitioner removed to
Cuba, and Petitioner did not file an appeal of the BIA’s decision. (Jd)

The United States is currently unable to deport, exclude, or remove individuals such as

enforced”). The Court notes that Respondent filed with the Court a Notice to Pro Se Litigant
Opposing Motion for Summary Judgment (D.E. 7), which appears to have been served on
Petitioner.

3 Although Petitioner did not file, as he was required to do with respect to presenting
factual assertions in the summary judgment context, a statement of additional facts under Local
Rule 56.1(b)(3)(B), the Court recites various factual allegations contained in Petitioner’s filings
in an effort to present a coherent background of the case. These allegations are not inconsistent
with Respondent’s statement of facts, which the Court deems admitted under the local rule.

3


3-6.) Petitioner also argues that § 123 1(a)(6) is facially unconstitutional or, alternatively,
unconstitutional as applied to him. (/d. at 8). Petitioner also seeks declaratory telief, which is a
count that essentially duplicates his other claims, Ud. at 10.)

As explained below, Respondent’s motion for Summary judgment is granted in part, in



THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
Vasallo O’ Reily )
)
Petitioner, )
)
v. ) Case No. 04 C 3610
)
JOHN ASHCROFT, Attorney General ) Hon. Mark Filip
of the United States, District Director, Doce rg
Immigration and Naturalization Service, _) D D
and Bureau of Immigration and Customs _) EC y 3 2004
Enforcement! )
)
Respondents. )

MEMORANDUM OPINION ORDE!
Petitioner Vasallo O’Reily (“Petitioner”) is an inadmissible/excludable alien and citizen
of Cuba who is subject to a final order of removal from the United States. Petitioner has filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2241, alleging that Respondent’s
continued detention of him is unlawful. Petitioner argues that his detention is not authorized by
8 U.S.C. § 1231(a)(6), which relates to the propriety of an alien’s continued detention after the

expiration of a ninety-day statutory removal period. (Pet. for Writ of Habeas Corpus (D.E. 1) at

' The Court notes that on March 1, 2003, the Immigration and Naturalization Service
ceased to exist as an independent agency of the Department of Justice, and its functions were
transferred to the newly formed Department of Homeland Security. See, e.g., Ciorba v. Ashcroft,
323 F.3d 539 n.1 (7th Cir. 2003). The Court further notes that the proper respondent to a petition
under 28 U.S.C. § 2241 is the person having custody of the petitioner. See 28 U.S.C. § 2243.
Respondents contend that, in light of the Supreme Court’s decision in Rumsfeld v. Padilla, ~
U.S, —,124 S. Ct. 2711, 2720 & n.13 (2004), and authority cited therein, Ms. Deborah Achim,
the Field Office Director for the Chicago District Office of the Department of Homeland
Security, should be substituted as the sole Respondent to this petition, Petitioner does not object
to this substitution and redesignation of the Respondent. Accordingly, going forward, Ms.
Deborah Achim will and should be listed as the Respondent in the caption of this case.

NG