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JARDINES-GUERRA v. ASHCROFT

March 17, 2003

LUIS JARDINES-GUERRA, [A74-047-764] PETITIONER, VS. JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL; IMMIGRATION AND NATURALIZATION SERVICE; AND ADELE FASANO, INS DISTRICT DIRECTOR FOR THE SAN DIEGO DISTRICT, RESPONDENTS.


The opinion of the court was delivered by: Barry Ted Moskowitz, United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS

On August 27, 2002, Petitioner filed a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is an inadmissible alien under a final removal order and is currently being detained by the Immigration and Naturalization Service ("INS"). Petitioner contends that since there is no significant likelihood that the INS will be able to effect his removal to his native country, the INS lacks statutory power to continue his detention indefinitely pending his deportation.

For the reasons stated below, the Court GRANTS in part and DENIES in part the Petition for writ of habeas corpus.

I. BACKGROUND

Petitioner is a 42-year old native of Cuba who arrived in the United States via Miami, Florida on August 23, 1995. The INS took him into custody upon his arrival but released him into the United States as a public interest parolee. See 8 U.S.C. § 1182 (d)(5) (stating that Attorney General has discretion to parole an alien into the United States temporarily, but the paroled alien's physical presence in the United States does not constitute an entry or an admission).

On May 27, 2001, Petitioner was sentenced to two years of incarceration in state prison for violating a restraining order and making terrorist threats against an individual. On or about May 29, 2001, the INS took him into custody and on August 1, 2001, an immigration judge ordered Petitioner's removal to Cuba. As Petitioner waived his right to appeal this decision, his removal order became final on August 1 2001. 8 C.F.R. § 241.1 (b). Pursuant to 8 U.S.C. § 1231 (a)(2), the INS placed Petitioner in post-order detention pending his removal. Petitioner's removal was not effected within the 90-day removal period required by 8 U.S.C. § 1231 (a)(1). The INS, however, continued to detain Petitioner under authority of § 1231(a)(6), which allows for detention beyond 90 days of inadmissible aliens who the Attorney General determines "to be a risk to the community." According to the INS, Petitioner is a risk to the community because of his violent disposition and his mental illness.

The INS has been unable to obtain a travel document from the Cuban government for Petitioner's removal to Cuba. Because his removal to Cuba is not "significantly likely" in the reasonably foreseeable future, Petitioner contends that the INS lacks statutory authority to continue to detain him.

II. DISCUSSION

1. Applicability of Xi

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that the Attorney General's authority under § 1231(a)(6) to detain an admitted alien beyond the statutory removal period must be construed as being limited to a period of time reasonably necessary to remove the alien. The Court held that six months was a presumptively reasonable period, but after that if "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 to rebut that showing" or release the alien pending deportation. Id. at 701.

Rather than challenging Petitioner's contention that there is not a significant likelihood that he will be removed to Cuba, Respondent contends that Zadvydas is only applicable to "admitted" aliens, not aliens who have been deemed "inadmissible" like Petitioner.*fn1 While the Supreme Court in Zadvydas was specifically addressing the interests of "admitted" aliens held beyond the statutory removal period, the Ninth Circuit construed the holding of Zadvydas to cover "inadmissible" aliens as well. Xi v. INS, 298 F.3d 832 (9th Cir. 2002). As the court in Xi stated:

Section 1231(a)(6) [. . .] does not draw any distinction between individuals who are removable on grounds of inadmissibility and those removable on grounds of deportability. On its face, the statute applies symmetrically to three classes of aliens: (1) those who are "inadmissible under section 1182;" (2) those who are deportable under sections 1227(a)(1)(C) (violation of non-immigrant status or condition of entry), 1227(a)(2) offenses), or 1227(a)(4) (security and related grounds); or (3) those who are a risk to the community or unlikely to comply with the removal order. . . . Although Zadvydas concerned the second prong of the statute — relating to aliens — the Court's ultimate holding [that the statute contains a six-month presumptively reasonable period of detention] addresses the statute as a whole. . . .

Xi, 298 F.3d at 835.

Respondent's arguments that the Ninth Circuit in Xi misconstrued the holding of Zadvydas and that this Court should stay its decision on the instant motion until an en banc rehearing of Xi are both unavailing. Xi is binding precedent on this Court unless and until it is withdrawn by the Ninth Circuit or it is overruled by the Supreme Court.*fn2 Yong v. INS, 208 F.3d 1116, 1119, n. 2 (9th Cir. 2000) ("[O]nce a federal circuit court issues a decision, the district courts within that circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before applying the circuit court's decision as ...


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