In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1726

Guillermo Hoyte-Mesa,

Petitioner-Appellant,

v.

John Ashcroft, et al.,

Respondents-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. TH 00-303-C-Y/H--Richard L. Young, Judge.

Submitted November 19, 2001/*--Decided December 3, 2001

 Before Bauer, Easterbrook, and Evans,

Circuit Judges.

 Per Curiam. Guillermo Hoyte-Mesa, an

excludable alien and citizen of Cuba, has

been detained by the INS in federal

prison since March 1996 pending

deportation. Hoyte filed a petition for a

writ of habeas corpus under 28 U.S.C.

sec. 2241, challenging his detention on

the grounds that it violates his due

process rights and amounts to cruel and

unusual punishment. The district court

denied his petition and we affirm.

 Hoyte arrived in the United States in

May 1980 during the Mariel boatlift from

Cuba, and in August he was paroled into

the United States. While released on

parole, Hoyte, armed with a knife,

slashed a victim in the face, chest,

hand, and leg. He was convicted of

endangering safety by conduct regardless

of life and sentenced to five years’

imprisonment. Later he stabbed a prisoner

and was convicted of battery. On another

occasion he was convicted of carrying a

concealed weapon. Upon release from

prison, Hoyte was taken into INS custody,

and in 1986 an immigration judge

determined that Hoyte was excludable and

deportable from the United States. See 8

U.S.C. sec.1182(a). The immigration order

became final when the Board of

Immigration Appeals upheld the

immigration judge’s decision and Hoyte
did not seek further review.

 INS detained Hoyte pending his

deportation until October 1989, when he

was paroled under the Cuban Review Plan.

See 8 C.F.R. sec. 212.12. In 1994 an

Illinois state court convicted Hoyte of a

drug offense he committed while released

on parole. He subsequently was convicted

of a weapons violation. After serving his

sentences for these crimes, he was

returned to federal custody where he has

remained to date.

 Since 1996, Hoyte has received annual

consideration for immigration parole in

accordance with the Cuban Review Plan, 8

C.F.R. sec. 212.12. A Cuban Review Panel

makes a recommendation to the Associate

Commissioner for Enforcement of the INS,

who has the discretion to approve parole.

Id. Hoyte was denied parole as recently

as October 2000. In his decision denying

parole, the Associate Commissioner noted

Hoyte’s immigration history and criminal

record, as well as various disciplinary

infractions for which Hoyte was cited

while detained, including possession of

an unauthorized item, insolence,

stealing, being absent from his

assignment, and refusing an order.

 In October 2000 Hoyte filed a petition

for writ of habeas corpus alleging 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 and amounts to cruel and unusual

punishment. Relying on our decision in

Carrera-Valdez v. Perryman, 211 F.3d 1046

(7th Cir. 2000), the district court

denied the petition, finding no

constitutional violation in the

indefinite detention of an excludable

alien who is subject to an elaborate

mandatory administrative review process

that annually reevaluates his parole

eligibility.

 Our decision in Carrera-Valdez

principally relied on the Supreme Court’s

pronouncement in Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206

(1953), that the United States could

constitutionally detain an excludable

alien indefinitely if his country of

origin refused to accept his return.

Carrera-Valdez, 211 F.3d at 1048. Since

our decision in Carrera-Valdez, the
Supreme Court decided Zadvydas v. Davis,

121 S. Ct. 2491 (2001), in which it

considered the constitutionality of the

indefinite detention of resident aliens

awaiting deportation. In doing so, the

court reaffirmed its decision in Mezei by

distinguishing between excludable aliens

and aliens who were admitted to the

United States but subsequently ordered

removed. Zadvydas, 121 S. Ct. at 2495

(noting that "[a]liens who have not yet

gained initial admission to this country

would present a very different

question"). The Court’s holding in Mezei

remains unaffected by the Zadvydas

decision. Id. at 2500 (explaining that

Mezei’s excludable status "made all the

difference"). Mezei remains good law, and

by extension so too does our holding in

Carrera-Valdez.

 Since Hoyte, like 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. See

Zadvydas, 121 S. Ct. at 2500; Carballo v.

Luttrell, ___ F.3d ___, No. 99-5698, 2001

WL 1194699, at *13 (6th Cir. Oct. 11,

2001); Sierra v. INS, 258 F.3d 1213, 1218

(10th Cir. 2001). Consequently, the

district court did not err when it held

that Hoyte’s continued detention does not

violate due process. 

 Although Hoyte was adjudicated

excludable, he was subsequently granted

parole into the United States with

certain conditions, including compliance

with our laws. His breach of those

conditions is sufficient to authorize his

current detention. Cf. Zadvydas, 121 S.

Ct. at 2501-02 (noting that a removable

alien’s interest after six months’

detention would be limited to

"supervision under release conditions

that may not be violated"). Hoyte’s

current incarceration therefore results

not only from his excludable status, but

also from his violation of parole

conditions. Furthermore, the length of

his detention now depends on the outcome

of his annual parole review. Since Hoyte

has access to this type of administrative

review, the district court correctly

concluded that Hoyte’s detention

satisfies due process. Accordingly the

judgment of the district court is

AFFIRMED.
FOOTNOTE

/* After an examination of the briefs and the

record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the

briefs and the record. See Fed. R. App. P.

34(a)(2).