‘

good reason, that “there is no reasonable likelihood that respondents can effect
exclusion/removal in this case in the foreseeable future.” (Petition, at 5.)

However, Zadvydas applies only to “aliens who were admitted to the United States but
subsequently ordered removed. Aliens who have not yet gained initial admission to this country
would present a very different question.” Jd. at 682. Espino-Paez belongs to the latter category of
aliens. In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215-16 (1953), the Supreme
Court held that the United States could constitutionally detain an excludable alien indefinitely if
his country of origin refused to accept his return. See also Carrera-Valdez v. Perryman,

211 F.3d 1046 (7 Cir. 2000)(relying on Mezei, finding no constitutional violation in the
indefinite detention of an excludable alien who is subject to a mandatory administrative review
process that annually reevaluates his parole eligibility). In Hoyte-Mesa v. Ashcroft, 272 F.3d
989, 991 (7" Cir. 2001), the Seventh Circuit held that the Supreme Court’s holding in Mezei
“remains unaffected by the Zadvydas decision. Mezei remains good law, and by extension so too
does our holding in Carrera-Valdez.”

Since Espino-Paez 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. Hoyte-Mesa, 272 F.3d at 991. The Cuban Review Plan
provides Espino-Paez with the right to an annual review of his detention by the Cuban Review
Panel. 8 C.F.R. § 212.12. This review satisfies his rights to due process. Hoyte-Mesa, 272 F.3d

at 992.


+e

.

Upon completion of his sentence in June, 2002, Espino-Paez was taken into INS custody
as a criminal alien who had never been admitted to the United States. On June 16, 2003,
pursuant to 8 C.F.R. § 212.12, a Cuban Review Panel (the “Panel”) reviewed Espino-Paez’s case
in its entirety. The Panel concluded that Espino-Paez was “an extremely dangerous man” who
had been released from custody several times in the past and “each time he was released, his
crimes escalated until he reached the pinnacle of crime, Murder.” The Panel recommended that
Espino-Paez remain in custody. On September 12, 2003, the Associate Commissioner for
Enforcement of the Department of Homeland Security, Bureau of Customs and Immigration
Enforcement, issued a final decision endorsing the Panel’s recommendation that Espino-Paez
remain in custody. Espino-Paez remains in the custody of the Department of Homeland Security
(“DHS”). His case and status will be reviewed by the Panel within one year of the date of the
final decision, 8 C.F.R. § 212.12.

DISCUSSION

Espino-Paez argues that his continuing and “indefinite” detention by the DHS violates his
right to due process under the Fifth Amendment. He relies on the United States Supreme Court’s
decision in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Court considered the
constitutionality of the indefinite detention of resident aliens awaiting deportation. The Court
held that six months is a presumptively reasonable period of time to effect removal. “After this
6-month period, once the alien provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing.” Jd. at 700. “[I]f removal is not reasonably
foreseeable, the court should hold continued detention unreasonable and no longer authorized by

statute.” Jd. at 699-700, Espino-Paez has been in custody almost two years and he contends, with


< CONCLUSION
For the reasons stated above, respondents’ motion for summary judgment [#11] is

granted.

Dated: May 27, 2004 United States District Judge


ited States District Court, Northern District of Dinois

‘Minute Order Form (06/97)
ah a

wemaiminge [Jom H-Lettow | See
CASE NUMBER 02 C 8053 DATE 5/27/2004

CASE Pedro Espino-Paez vs. John Ashcroft

TITLE

[In 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:
qd) im Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) a Answer brief to motion due__. Reply to answer briefdue___.
(4) oO Ruling/Hearingon___—_sset for saat
(5) o Status hearing[held/continued to] [set for/re-set for]on__——ssetfor at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor___—s—sat__—
() in) Trial[set for/re-set for]on____at
(8) oO (Bench/Jury trial] [Hearing] held/continued to__at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (CLocal Rule 41.1 COFRCP41(a\(1) O FRCP41(a)(2).

ao [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the

Memorandum Opinion and Order, respondent’s motion for summary judgment [11-1] is granted.
Judgment entered in favor of the respondent and against the petitioner. Case is terminated.

(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required.

oY | Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

ao | Mail AO 450 form. anne of
LEP OS ee
Copy to judge/magistrate judge.
courtroom AZn.. He
MD deputy's
initials
Date/time received in
central Clerk's Office



7

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

EASTERN DIVISION
PEDRO ESPINO-PAEZ, )
)
Petitioner, )
) No. 02 C 8053 A
v. ) Judge Joan H, Lefkow B OCHE TE
) MAY 2 8 209
JOHN ASHCROFT, ATTORNEY ) 4
GENERAL of the UNITED STATES, )
)
Respondent. )

MORANDUM OPINION ORD

Pro se petitioner, Pedro Espino-Paez (“Espino-Paez”), filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2241 alleging that respondents continued detention of him is
unconstitutional.' Before the court is respondents’ Motion for Summary Judgment. For the
reasons stated below, the motion is granted.

SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and

affidavits that are part of the record. Fed. R. Civ. P. 56(c) Advisory Committee’s notes. The

'The proper respondent to a petition under § 2241 is the person having custody of the petitioner. 28 U.S.C.
§ 2243. Brian Perryman, who was named as a respondent in Espino-Paez’s petition, retired as Chicago District
Director of the Immigration and Naturalization Service on March 1, 2003. On the same date, the INS 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. Thus, Perryman is no longer Espino-Paez’s custodian and is therefore dismissed
as arespondent. There is also some question as to whether the Attorney General is the custodian of an alien awaiting
removal. See Montenegro v. Ashcroft, 355 F.3d 1035, fn.* (7" Cir. 2004). However, because respondents have not

challenged his designation as a respondent, the court will not address the issue.



-«

party seeking summary judgment bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Jd. at 324;
Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7" Cir. 2000). A material fact must be outcome
determinative under the governing law. Jnsolia, 216 F.3d at 598-99. Although a bare contention
that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp.,
200 F.3d 485, 492 (7" Cir. 2000), the court must construe all facts in a light most favorable to the
non-moving party as well as view all reasonable inferences in that party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS

Espino-Paez is a forty-six year old male who is a native and citizen of Cuba. He arrived
in the United States in Key West, Florida, on May 27, 1980 on the Mariel boat lift. In 1983, he
was convicted of arson and served fourteen months in prison. After an immigration hearing on
May 30, 1986, an immigration judge held that Espino-Paez was inadmissible to the United States
pursuant to Sections 212(a)(9) and (a)(20) of the Immigration and Nationality Act (“INA”).
Espino-Paez did not appeal the decision. However, because the Immigration and Naturalization
Service (“INS”) was unable to repatriate him to Cuba, he was paroled out of custody pursuant to
8 UAS.C. § 1182(d)(5)(A). In 1990, Espino-Paez was convicted of aggravated battery and served
fifteen months in prison. Then, in 1993, Espino-Paez was convicted of second degree murder
and subsequently was incarcerated for the next nine years in the Illinois Department of

Corrections.