Rosales-Garcia v. Holland: 6th Circuit Finds Indefinite Detention of Inadmissible Noncitizens Unlawful

IMMIGRATION LAW & POLICY

Arrest and Detention

ROSALES-GARCIA V. HOLLAND: 6TH CIRCUIT FINDS INDEFINITE DETENTION OF INADMISSIBLE NONCITIZENS UNLAWFUL
Immigrants' Rights Update, Vol. 17, No. 2, April 8, 2003

The U.S. Court of Appeals for the Sixth Circuit has ruled that the Immigration and Nationality Act does not authorize the indefinite detention of non-U.S. citizens who have been found inadmissible and ordered removed from the U.S. The en banc decision applies the Supreme Court's ruling in Zadvydas v. Davis, 533 U.S. 678 (2001) (finding that sec. 241 of the INA, enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) does not authorize the indefinite detention of noncitizens who have been found deportable and ordered removed), to excludable noncitizens. The court concluded that INA sec. 241 does not authorize detention of noncitizens under a final order of exclusion once removal is no longer reasonably foreseeable, and that after a six-month period of detention there is a presumption that removal is not reasonably foreseeable.

The Sixth Circuit's decision was made in two appeals, heard together, of district court decisions denying the petitioners' habeas corpus petitions. Both petitioners, a Mr. Rosales and a Mr. Carballo, are Cubans who were paroled into the U.S. as part of the Mariel boatlift in 1980. During the 1980s, both petitioners were convicted of multiple criminal offenses and as a result had their parole status terminated, and each ultimately received a final order of exclusion. The Immigration and Naturalization Service was not able to deport them to Cuba, and both petitioners spent numerous years in INS detention.

Rosales filed a habeas petition in 1998, after he had been denied release pursuant to the Cuban Review Plan. The district court denied the petition, concluding that INA sec. 241 authorized the INS to detain Rosales indefinitely and that the statute did not violate his constitutional rights. Rosales appealed this decision to the Sixth Circuit, and a panel of the appellate court reversed the district court in a Jan. 2001 ruling. After the Supreme Court issued its decision in Zadvydas, the government petitioned the Court for certiorari in Rosales's case. In May 2001, Rosales was released on parole, subject to conditions of supervision. In Dec. 2001, the Supreme Court vacated the Sixth Circuit decision and remanded Rosales's case for consideration in light of Zadvydas.

Carballo filed a habeas petition in federal district court in Texas in 1990. The district court denied the petition, finding Caballo's detention was authorized by former INA sec. 237(a) and that the statute was constitutional. In 1998, Carballo filed a successive habeas petition in federal district court in Tennessee. The district court denied the petition, finding that the petition raised the same claims as Carballo's first petition and that under the doctrine of "the law of the case," the court was barred from considering the successive petition. Carballo appealed this decision to the Sixth Circuit, and in Oct. 2001 a panel of the appellate court upheld the district court decision. In Nov. 2001 the Sixth Circuit sua sponte vacated the panel decision and granted en banc review of the case. Subsequently, the court scheduled Rosales's case to be heard at the same time.

In the en banc ruling, the court first affirmed its jurisdiction over the habeas petitions, noting that the Supreme Court in INS v. St. Cyr, 533 U.S. 289 (2001), held that habeas jurisdiction under 28 U.S.C. sec. 2241 was not repealed by the IIRIRA. The en banc court also rejected the government's argument that Rosales's appeal is moot because he was released from detention while the case was pending. The court found that the case is not moot, because Rosales remains subject to restrictive conditions and because the government could revoke his parole and redetain him at any time and "for almost any reason."

The court also rejected the contention that the denial of Carballo's first habeas petition bars the court from considering his successive petition. The court found that, although the second petition did raise the same claims as the first one, an intervening change in the law warranted consideration of the merits of the petition.

On the merits, the court first determined that the statute applicable to the petitioners' detention is the provision enacted as part of the IIRIRA (INA sec. 241) rather than the statute that authorized their detention under pre-IIRIRA law (former INA sec. 237(a)). In rejecting the government's contention that pre-IIRIRA law should apply, the court noted that the petitioners are not challenging the legality of their original detention but rather the government's authority to continue to detain them now. The court concluded that INA sec. 241(a)(6) governs the petitioners' continued detention.

Examining the plain language of this provision, the court found no basis to distinguish the Supreme Court's interpretation of the statute in Zadvydas from the cases of the petitioners. The statute "does not draw any distinction between the categories of removable aliens; nor would there be any statutory reason to interpret 'detained beyond the removal period' differently for aliens who are removable on grounds of inadmissibility and aliens who are removable on grounds of deportability," the court held (quoting INA sec. 241(a)(6)). The court also concluded that to interpret the statute to authorize the indefinite detention of excludable noncitizens would raise serious constitutional concerns.

For these reasons, the court adopted the same interpretation of sec. 241(a)(6) as the Supreme Court used in Zadvydas. Under this interpretation, six months is considered a presumptively reasonable period for the detention of a noncitizen with a final order of exclusion. After this period, once the noncitizen presents "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" (quoting Zadvydas, 533 U.S. at 701). The court concluded that, although the government presented evidence of continuing negotiations between the U.S. and Cuba over the return of Cuban nationals, it failed to show a significant likelihood that the petitioners would be removed in the reasonably foreseeable future.

Rosales-Garcia v. Holland, No. 99-5698 (6th Cir. Mar. 5, 2003).