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United States District Court, Southern District of California

March 17, 2003


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


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.


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.


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 binding authority.") Therefore, this Court is bound by the Ninth Circuit's decision in Xi that the holding of Zadvydas applies to "inadmissible" aliens as well.

The INS admits that after a year of trying it has been unable to secure travel papers from the Cuban government necessary to remove Petitioner from the United States. Because there is no removal agreement between the United States and Cuba,*fn3 and the government has proffered no evidence that such an agreement will likely be entered into in the near future, Petitioner has met his burden under Zadvydas of showing that there is "no significant likelihood of removal in the reasonably foreseeable future."

2. Danger to the community exception

Respondent argues that even Zadvydas applies to "inadmissible" aliens, this decision nonetheless contains an exception which allows for the continuing detention of aliens who pose a danger to the community.*fn4 In Zadvydas, the Court stated that while it had allowed "preventative detention based on dangerousness," it only did so in instances where it was "limited to specially dangerous individuals and [was] subject to strong procedural protections." 533 U.S. at 690-91 (citing Kansas v. Hendricks, 521 U.S. 346, 368 (1997) and United States v. Salerno, 481 U.S. 739, 747, 750-752 (1987)). The Court also stated that "[i]n cases in which preventive detention is of potentially indefinite duration, we have also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger." Id. at 691.

In this case Respondent argues that continued detention is warranted because Petitioner "presents a special danger to the community due to his medically documented mental illness." Respondent's Return ("Return") at 2. Petitioner does not challenge the authority of the INS to detain deportable aliens who pose a danger to the community.*fn5 Rather, Petitioner contends the INS reached the wrong result in Petitioner's case because the evidence that he is both specially dangerous and suffers from a mental illness which helps create this danger, was insufficient to support his continued detention under Hendricks.*fn6 Traverse at 12.

In conducting the initial 90-day review, deportation officer Dickerson stated that he reviewed Petitioners criminal history records as well as the fact that he had twice been determined to be mentally incompetent.*fn7 Officer Dickerson stated that on-going detention could be premised on the "continuing threat of violence" exception in Zadvydas. It is clear that this recommendation was based on his belief that Petitioner suffered from a mental condition that prevented him from being able to control his actions.*fn8 While this determination and recommendation was based on "Psychiatric information available at this time," the officer stated that Petitioner "is pending an in-depth analysis by a Psychiatrist at my request, specifically to attempt to determine if he provides a valid threat of violence to the community if he is released from Immigration Custody at this time" and should not be released until "he is determined through mental health examination to not provide a substantive threat to anyone upon his release." This recommendation was made on November 5, 2001 and adopted by the INS District Director on November 7, 2001. There is no indication in the records before the Court, that the recommended psychiatric evaluation to determine on-going dangerousness ever took place.

Petitioner contends that this determination was insufficient to uphold his potentially indefinite detention under Hendricks because 1) Officer Dickerson is not properly trained to make such mental health evaluations and 2) Petitioner's current medical and psychological documents indicated that he is "stable" and not a threat.

In analyzing this matter it is necessary to determine who bears the burden of proof regarding a detainee's dangerousness. While the INS regulations state that it is the detainee's burden to demonstrate to the Panel that if released he will pose no danger to the community, this only occurs after the District Director has made the initial determination that the detainee does pose such a danger. See 8 C.F.R. § 241.4 (d)(1), (c)(1). In Foucha v. Louisiana, 504 U.S. 71, 80-82 (1992) (internal citations omitted), the Supreme Court held that a state seeking to confine a mentally ill person must prove "by clear and convincing evidence that the individual is mentally ill and dangerous." In Hendricks, however, the Court indicated that a higher standard was required. The statute at issue in Hendricks required an initial determination by a court that there was "probable cause" to believe that the person could be defined as a "sexually violent predator." 521 U.S. at 352. If such cause was found, the person was transferred to a secure facility for "professional evaluation." Id. After this evaluation, a trial would be held to determine "beyond a reasonable doubt whether the individual was a sexually violent predator." Id. at 352-353.

While the Court in these cases was ostensibly determining the constitutional rights of "citizens" to be free from confinement, rather than "aliens" facing deportation, the Court in Zadvydas specifically referenced both of these cases in discussing the indefinite confinement of deportable aliens. Here Petitioner was not accorded a hearing for the determination as to whether he should continue to be detained as a mentally ill removable alien who is dangerous. Because the Court interprets Zadvydas as requiring such a hearing for the continued detention of removable aliens considered to be a danger to the community, the Court concludes that Petitioner's Constitutional due process rights were violated. Therefore, the INS must conduct an individualized hearing to determine if Petitioner currently poses a danger to the community sufficient enough to warrant his continued detention.

The parties have not briefed the issue of what type of hearing is appropriate to determine if Petitioner is a danger to the community, the appropriate burden of proof at such a hearing, or whether the INS already has a specific procedure in place for such a hearing. Therefore, the Court looks to Supreme Court precedence for guidance. In doing so the Court interprets Zadvydas as requiring that the government bear the burden of establishing by clear and convincing evidence that Petitioner poses a risk to the community sufficient to justify his continued detention. In Zadvydas, the Court specifically mentioned that in Salerno it upheld the detention procedure at issue there because, among other things, it contained a "requirement of proof of dangerousness by clear and convincing evidence." 533 U.S. at 691; Salerno at 750 ("In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person."). The Court's citation to Foucha v. Louisiana is further support for the position that the burden of persuasion is on the government, not the petitioner. 533 U.S. at 691 (citing Foucha v. Louisiana, 504 U.S. 71, 81-83 (1992) (striking down insanity-related detention system that placed burden on detainee to prove nondangerousness)).

The Court in Zadvydas also highlighted the importance of avoiding "preventative detention . . . of potentially indefinite duration." 533 U.S. at 691. In order to prevent such constitutionally suspect "permanent" civil confinement, the Court required strong procedural protections. Id. (citing Salerno at 747 (noting positively that the "maximum length of pretrial detention is limited" by "stringent" requirements)). In order to prevent the statute at issue in Zadvydas from foundering in constitutionally troubling waters,*fn9 the Court found six months to be a presumptively reasonable period for post-removal order detentions. Id. at 701. By analogy; this Court finds that detentions based on danger to the community are presumptively valid only for a period of six months, after which a new evaluation needs to be made to continue detention. Therefore, if the INS continues to detain Petitioner based on his danger to the community, it must re-evaluate this decision at least every six months.


For the aforementioned reasons, the Petition for writ of habeas corpus [1-1] is GRANTED in part and DENIED in part. The INS is ordered to schedule a hearing within 30 days of this Order being stamped "filed" to determine if Petitioner currently poses a danger to the community if he were to be released. If the INS decides to continue the Petitioners detention on this basis, it shall review this decision at least every six months. The Court will hold a status conference on this matter on May 13, 2003, at 11:30 p.m.


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