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February 27, 2004.

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


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 Page 2 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 Due to this conviction, petitioner's parole status was revoked by the District Director of the INS on April 6, 1999.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 genuine issue Page 3 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 Page 4 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 ...

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