The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
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 STANDARDS
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 ...