and there is no reasonable likelihood that be can be removed in the foreseeable future. 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 (he
detention statute is facially unconstitutional or, alternatively, unconstitutional as applied in this
case, Prieto-Herrera 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. Respondent moves for summary judgment based
on petitioner’s inability to establish a prima facie case of unlawful detention by the Attomey
General and the INS.

A wnit 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). Prieto-Herrera 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 §.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). 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 specificd 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 foresceable, indefinite detention is not permitted. See Zadvydas, 533 U.S. at 699.

“4e


tecommend release at this time. As stated in the Final Notice of Parole Denial, dated July 30,
2002, the INS will reconsider his parole status within one year of the date of the notice.
i. Legal Standard

Summary judgment is appropriate when there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of
material fact only exists when a reasonable jury could return a verdict for the non-movant,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant “can prevail just by
showing that the other party has no evidence on an issue on which that party has the burden of

proof.” Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183 (7th Cir. 1993).

In considering the motion, all reasonable inferences must be drawn in favor of the non-

moving party. See e.g., Adickes v. §.H. Kress & Co., 398 U.S. 144, 157 (1970); Bailor v.

Salvation Army, 51 F.3d 678, 681 (7th Cir. 1995). The party opposing the motion may not avoid
summary judgment by resting upon the mere allegations of the pleadings, but instead must come
forward with specific evidence showing that there is a genuine issue for trial. See Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986). The non-movant must present more than a scintilla of
evidence to successfully oppose a motion for summary judgment. See Walker v, Shansky, 28
F.3d 666, 671 (7th Cir. 1995).
Tl. 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 the
determination that he should be removed from the United States. Prieto-Herrera claims that the

United States is currently unable to deport or remove individuals to his country of origin (Cuba),

-3-


Whether a detention petiod is reasonably necessary to secure removal, and whether removal is no
longer foresceable, arc questions that are appropriately brought before a habeas court. See id,

The petitioner argues that the holding in Zadvydas, that removable aliens may only be
detained six months after an order of removal has been issued, extends to all aliens, including
inadmissible aliens. In Hoyte-Mesa v. Ashcroft, the Seventh Circuit decided a similar case
involving a Mariel Cuban who argued that his indefinite INS detention violated thc Supreme
Court's holding in Zadvydas. 272 F.3d 989 (7th Cir.2001). The court noted that the Supreme
Court in Zadvvdas “reaffirmed its decision in Mezei by distinguishing between excludable
[inadmissible] aliens and aliens who were admitted to the United States but subsequently ordered
removed." Hoyte-Mesa, 272 F.3d al 991. In so doing, the court held that inadmissible aliens, like
Hoyte-Mesa and Prieto-Herrera, 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 this Court is bound by Seventh Circuit precedent on this
issue, the Court holds that Prieto-Herrcra’s continued detention by the INS does not violate
federal constitutional law or 8 U.S.C. § 1231{a)(6).

Petitioner also argues that his due process rights have been violated. According to
petitioner, there are no reasonable administrative or judicial safeguards governing his continued
detention. Contrary to petitioner’s contention, the Cuban Review Plan provides detailed
procedures for the continuing review of Prieto-Herrera’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

concerned." Shaugnessy v. United States ex rel. Mezci, 345 U.S. 206, 212 (1953).

5+


Minute Oeder Form (06/97)

United States District Court, Northern District of Illinois

Laid
Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge David H. Coat than Assigned Judge
CASE NUMBER 02 C7397 DATE 8/25/2003
CASE Jesus Prieto-Herrera vs. John Ashcroft, ct. al.
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, und (b) state briefly the nawure
MOTION: of the motion being presented]
Respondents’ Motion for Summary Judgment [7-1] |
DOCKET ENTRY:
(5) oO Filed motion of [ use listing in “Motion” box above.]
Q) Q Brief in support of motion due.
(3) oO Answer brief to motion due____. Reply to answer brief due
(4) oO Ruling/Hearing on _ Set for Lato.
(5) o Status hearing[held/continued to] [set for/re-set for] on____set for at.
(6) ) Pretrial conference[held/continued to] [set for/re-set for]on__ set for_— at,
(7) Qo Trial(set for/re-set for] on at _
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at -_
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agrecment/pursuant to]
CFRCP4(m) CO LocalRule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
do) ff [Other docket entry} For the reasons set forth in the attached Mcmorandum Opinion and Order,
respondents’ motion for summary judgment is GRANTED [7-1]. All other motions are moot and
terminated. This action is closed. sod Uae |
ql) (For further detail see order attached to the original minute order.)
No notices required, advised in open court. Document
‘Number
No notices required, univer of notices
Notices mailed by judge's statt AUG g 6 thin
Notitied counse! by telephone, dute dogketed
X | Pocketing to mail natices
Mail AO 450 form,
Copy to judge/mugistrate judge
kb (ley courtroom Ig kd S2Snveo
deputy’s
initials yi hoe Pera
me SHES ST Renived in
2 -U4 central Clerk's Office tring deputy nits



Prieto-Herrera was transferred into INS custody in February of 2002, and his review was
conducted in June 2002. On June 19, 2002, a Cuban Review Panel convened in Ullin, Illinois at
the Tri-County Jail, where Prieto-Herrera is being detained by the INS. The panel reviewed his
case file and conducted a personal interview with the petitioner on that date. Petitioner was
served with a copy of the decision to deny his rclease on October 1, 2002. It is clear from the
report that the review considered all aspects of petitioner’s case and that the panel actually
recommends a thorough medical examination to determine if plaintiff could be released in the
future, given his medical history. The review panel has been properly implemented by the
respondents in this particular case, and pursuant to those procedures petitioner will have a timely
review of his case once again within a year of his last review. Therefore, because petitioner is a
Mariel Cuban who was paroled into the United States, and is inadmissible to the United States
due to his armed robbery and anned violence convictions, this Court concludes that Prieto-
Herrera has received ail appropriate due process with respect to his continued INS detention.
Accordingly, respondents’ motion for summary judgment is granted.

Conclusion
For the foregoing reasons, respondents’ motion for summary judgment is GRANTED.

David H. Coar
United States District Judge

Dated: August 25, 2003

-6-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF [LLINOIS
EASTERN DIVISION

JESUS PRIETO-HERRERA,
Ae 2 6 2003
Petitioner,
No. 02 C 7397
vy.
HONORABLE DAVID H. COAR
JOHN ASHCROFT, United States Attorney
General; BRIAN PERRYMAN, District
Director, IMMIGRATION AND
NATURALIZATION SERVICE,

weve eee were

Respondents.

MEMORANDUM OPINION AND ORDER

Petitioner, Jesus Prieto-Herrera, a native and citizen of Cuba, filed a writ of habeas
corpus seeking that the Court issue a writ to the respondents to show why the continued detention
of the petitioner is not unlawful. Before this court is respondents’ motion for summary
judgment, For the reasons set forth below, respondents’ motion for summary judgment is
granted,
IL Factual Background

Petitioner is a fifty seven year old male, native and citizen of Cuba, who arrived in the
United States at Miami, Florida in 1980 on the Mariel boatlift. Petitioner was paroled into this
country. He has never been admitted as a lawful permanent resident. Petitioner was taken into
respondent INS’ custody on February 6, 2002, after he completed his sentences for the
convictions of armed robbery and armed violence entered by the Peoria County Circuit Court,

Petitioner is subject to a final order of removal/exclusion from the United States, and has been

-l-

\Y



found to be a non-citizen of the United states, and to be excludable/inadmissible from the United
States, The order finding him removable was entered on June 15, 1998 by an immigration
judge who considered his immigration case while petitioner was still serving his sentence for his
criminal convictions. The judge held that based upon petitioner’s admissions to the charges in the
Notice to Appear (charging document), and the fuct that petitioner made no applications for relief
from removal, he was removable as charged, and ordered that he be removed to Cuba upon
completion of his criminal sentences. The United States is currently unable to deport, exclude,
or remove individuals such as petitioner to his country of origin. Because the petitioner is a
native and citizen of Cuba, there is no reasonable likelihood that the respondents can effectuate
exclusion/removal in this case in the foreseeable future.

On June 19, 2002, pursuant to federal regulations, a Cuban Revicw Panel convened in
Ullin, Illinois at the Tri-County Jail where petitioner is being housed by the INS. ‘The review was
done in compliance with 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, The panel reviewed petitioner’s case and
interviewed petitioner on that date. After the review was completed, the panel drafted its
recommendations regarding petitioner’s release. The panel’s conclusion overall found that it was
unable to conclude that petitioner was not likely to pose a threat to the community, and that his
HIV medical condition requires an updated medical evaluation before he should be released. The
panel’s recommendations were then reviewed by the Associate Commissioner For Enforcement
as part of the Cuban Parole Review Plan, United States Department of Justice, Immigration and

Naturalization Service, and he concluded that based upon a number of factors, he was unable to

2.