United States District Court, N.D. Illinois
February 27, 2004.
PEDRO RODRIGUEZ Petitioner
CYNTHIA J. O'CONNELL, Interim Enforcement, Bureau of Immigration and Customs Enforcement, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
Pro se petitioner, Pedro Rodriguez, filed a petition for writ of
habeas corpus alleging that defendants' continued detention of him is
unconstitutional. Defendants have filed an unopposed motion for summary
judgment which is currently before the Court. For the following reasons,
defendants' motion for summary judgment is granted.
Petitioner is a fifty-nine year old male who is a native and citizen of
Cuba. Petitioner arrived in the United States at Key West, Florida on May
17, 1980 on the Mariel boat lift. Petitioner had originally been placed
in exclusion proceedings in March of 1991. At that time, the immigration
judge determined that he was inadmissible to the United States pursuant
to Sections 212(a)(9) and (23) of the Immigration and Nationality Act
based upon his criminal convictions and for being an immigrant not in
possession of a valid immigrant visa or other entry document. Petitioner
was given the opportunity to apply for political asylum by the judge at
that time, however, he declined to do so. Petitioner did not appeal this
decision to the Board of
Immigration Appeals and, therefore, he is subject to a final order
of removal from the United States.
On June 7, 1991, petitioner was approved for a "Special Placement
Program" through the Department of Justice, the Community Relations
Service, and with the concurrence of the Commissioner of the Immigration
and Naturalization Service ("INS"). This program allowed petitioner to be
released from INS custody on conditional parole, the terms of which were
explained to him in Spanish, his native language, and agreed to by him as
evidenced by his signature on the agreement form.
On December 10, 1998, petitioner was convicted of two counts of
second-degree murder and sentenced to thirteen years in the Illinois
Department of Corrections (IDOC). Due to this conviction, petitioner's
parole status was revoked by the District Director of the INS on April 6,
1999. Petitioner was released from IDOC and placed into INS custody on
August 14, 2002.
On August 16, 2002, pursuant to 8 C.F.R. § 212.12, Deportation
Officer James McPeek reviewed petitioner's case and custody status and
recommended his continued detention. This recommendation was endorsed by
the Supervisory District Deportation Officer and, ultimately, by the INS
Headquarters Official on August 20, 2002. Pursuant to the regulatory
framework for Cuban detainees who have previously been granted parole and
subsequently had the parole denied, petitioner was interviewed by the INS
on June 13, 2003, and his continued detention was recommended. On
December 9, 2003, the INS issued an order denying petitioner's release
and ordering his continued detention. See 8 C.F.R. § 212.12(g)(2).
A court may grant summary judgment to the moving party when there is no
of material fact and the movant is entitled 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).
In considering the motion, all reasonable inferences must be drawn in
favor of the non-moving party. See, e.g., Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970); Bailor v. Salvation Army,
51 F.3d 678, 681 (7th Cir. 1995). However, 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). Indeed, the party must go beyond the pleadings, affidavits,
depositions, answers to interrogatories, and admissions on file to
designate specific facts showing a genuine issue for trial. Bank
Leumi LeIsrael, BMM v. Lee, 928 F.2d 232, 236 (7th Cir. 1991);
see also Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994).
In his habeas petition before this Court, petitioner alleges "unlawful
detention" under the United States Supreme Court's ruling in Zadvydas
v. Davis, 121 S.Ct. 2491 (2001) because the INS has continued his
detention beyond six months. The petition also alleges that this Court
has jurisdiction over this petition because petitioner is guaranteed
habeas review as a matter of constitutional right.
Section 236(a) of the Immigration and Nationality Act authorizes the
Attorney General to detain aliens pending their removal from the United
States. 8 U.S.C. § 1226(a). Section 236(c)(1)(A) provides for
mandatory custody, without bond, of any alien who "is inadmissible by
reason of having committed any offense covered in section
212(a)(2), 8 U.S.C. § 1182(a)(2)." Petitioner has committed two
violent crimes (second degree murder), which render him inadmissible
under Section 212(a)(2)(i)(I), 212(a)(2)(B), and 212(a)(7)(A)(i)(I)
(formerly codified at Section 212(a)(9) and (23). See The Immigration and
Nationality Act of 1952, as amended, 8 U.S.C. § 101, et. seq. (1990).
Thus, petitioner has been properly held in INS custody pending the
resolution of his immigration case.
Petitioner now has a final order of removal entered against him by an
immigration judge after review of his immigration case. Because he is a
Mariel Cuban who entered the country in 1980, he is subject to the review
provisions set forth in the federal regulations at 8 C.F.R. § 212.12.
In this case, the undisputed facts show that those procedures have been
followed by the defendants in dealing with petitioner.
Petitioner was transferred into INS custody in August of 2002, and his
review was conducted within two days of his entry into custody. Pursuant
to 8 C.F.R. § 212.12, petitioner is entitled to an annual review of
his custody status according to the Cuban Review Plan. The review that
petitioner is entitled to involves a review of his record, his personal
interview before a Cuban Review Panel and consideration of any
information he submits to the panel in support of his application for
release on parole. 8 C.F.R. § 212.12(a), et. seq.
In this case, it is clear from the report that the review considered
all aspects of petitioner's case and that the seriousness of his criminal
convictions were taken into account, as well as his history of violence.
In addition, the fact that petitioner had previously been granted parole
by the District Director, and he violated that parole, was part of the
record assessed as well. Thus, petitioner has had a meaningful review of
his custody status, and this has been done appropriately
in accordance with the regulations set forth in
8 C.F.R. § 212.12.
While petitioner relies upon the Supreme Court's ruling in
Zadvydas to invoke the jurisdiction of this court, his case does
not fall within the jurisdictional parameters of that case. As a native
and citizen of Cuba who arrived in this country on a Mariel boatlift in
1980, petitioner was paroled into the country. He has never been admitted
as a lawful permanent resident and, therefore, the Court's holding in
Zadvydas does not apply to him. Those individuals who have not
effected an "entry" are not covered by the ruling of the Supreme Court in
Zadyvdas. That ruling was based upon the statutory construction
of IN A § 241 to avoid constitutional questions, which the Court
indicated would not be raised by the continued detention of persons who
have not "entered." See, e.g., Zadvydas v. Davis, et al,
121 S.Ct. 2495. See also, comments to proposed, regulations, 66 Fed.
Reg. 56967, 56968 (Nov. 14, 2001). Therefore, the Supreme Court's holding
in Zadvydas does not support petitioner's petition for habeas
For the reasons stated above, we find that summary judgment must be
granted in defendants' favor. The case law that petitioner relies upon
does not apply to an individual who has been paroled into the country
from Cuba. Moreover, there are specific regulations and procedures for
release which deal separately with Cuban nationals who are in the United
States pursuant to parole rather than those individuals who have actually
made a lawful entry into the country. See Zadvydas, 121 S.Ct. at
2495. In this case, the undisputed facts demonstrate that defendants have
appropriately complied with the regulations and procedures applicable to
For the foregoing reasons, we grant the motion for summary judgment
filed by defendants. Judgment is hereby entered in favor of defendants,
and this case is hereby terminated.
It is so ordered.
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