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United States District Court, N.D. Illinois

May 27, 2004.


The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge


Pro se petitioner, Pedro Espino-Paez ("Espino-Paez"), filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 alleging that respondents continued detention of him is unconstitutional.*fn1 Before the court is respondents' Motion for Summary Judgment. For the reasons stated below, the motion is granted.


  Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


  Espino-Paez is a forty-six year old male who is a native and citizen of Cuba, He arrived in the United States in Key West, Florida, on May 27, 1980 on the Mariel boat lift. In 1983, he was convicted of arson and served fourteen months in prison. After an immigration hearing on May 30, 1986, an immigration judge held that Espino-Paez was inadmissible to the United States pursuant to Sections 212(a)(9) and (a)(20) of the Immigration and Nationality Act ("INA"). Espino-Paez did not appeal the decision. However, because the Immigration and Naturalization Service ("INS") was unable to repatriate him to Cuba, he was paroled out of custody pursuant to 8 U.S.C. § 1182(d)(5)(A). In 1990, Espino-Paez was convicted of aggravated battery and served fifteen months in prison. Then, in 1993, Espino-Paez was convicted of second degree murder and subsequently was incarcerated for the next nine years in the Illinois Department of Corrections.

  Upon completion of his sentence in June, 2002, Espino-Paez was taken into INS custody as a criminal alien who had never been admitted to the United States. On June 16, 2003, pursuant to 8 C.F.R. § 212.12, a Cuban Review Panel (the "Panel") reviewed Espino-Paez's case in its entirety. The Panel concluded that Espino-Paez was "an extremely dangerous man" who had been released from custody several times in the past and "each time he was released, his crimes escalated until he reached the pinnacle of crime, Murder." The Panel recommended that Espino-Paez remain in custody. On September 12, 2003, the Associate Commissioner for Enforcement of the Department of Homeland Security, Bureau of Customs and Immigration Enforcement, issued a final decision endorsing the Panel's recommendation that Espino-Paez remain in custody. Espino-Paez remains in the custody of the Department of Homeland Security ("DHS"). His case and status will be reviewed by the Panel within one year of the date of the final decision. 8 C.F.R. § 212.12.


  Espino-Paez argues that his continuing and "indefinite" detention by the DHS violates his right to due process under the Fifth Amendment. He relies on the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Court considered the constitutionality of the indefinite detention of resident aliens awaiting deportation. The Court held that six months is a presumptively reasonable period of time to effect removal. "After this 6-month period, once 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 sufficient to rebut that showing." Id. at 700. "[I]f removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute." Id. at 699-700. Espino-Paez has been in custody almost two years and he contends, with good reason, that "there is no reasonable likelihood that respondents can effect exclusion/removal in this case in the foreseeable future." (Petition, at 5.)

  However, Zadvydas applies only to "aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question," Id. at 682. Espino-Paez belongs to the latter category of aliens. In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215-16 (1953), the Supreme Court held that the United States could constitutionally detain an excludable alien indefinitely if his country of origin refused to accept his return. See also Carrera-Valdez v. Ferryman, 211 F.3d 1046 (7th Cir. 2000)(relying on Mezei, finding no constitutional violation in the indefinite detention of an excludable alien who is subject to a mandatory administrative review process that annually reevaluates his parole eligibility). In Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir. 2001), the Seventh Circuit held that the Supreme Court's holding in Mezei "remains unaffected by the Zadvydas decision. Mezei remains good law, and by extension so too does our holding in Carrera-Valdez."

  Since Espino-Paez 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. Hoyte-Mesa, 272 F.3d at 991. The Cuban Review Plan provides Espino-Paez with the right to an annual review of his detention by the Cuban Review Panel. 8 C.F.R. § 212.12. This review satisfies his rights to due process. Hoyte-Mesa, 272 F.3d at 992.


  For the reasons stated above, respondents' motion for summary judgment [#11] is granted.

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