In this immigration case, the Supreme Court once again explores the detention of non-citizens. Here, the Court will consider whether its ruling in Zadvyas v. Davis, 533 U.S. 678 (2001), which determined on statutory grounds that permanent residents could not be held indefinitely, extends to inadmissible aliens. If Zavydas does not, such aliens as Benitez may remain indefinitely detained until they can be re-admitted to their home countries.
Questions as Framed for the Court by the Parties
Whether 8 U.S.C. § 1231(a)(6) and Zadvyas v. Davis, 533 U.S. 678 (2001), compel the release of an arriving alien who was apprehended at the border of the United States, denied admission, and ordered removed from the United States.
Facts
Daniel Benitez is an inadmissible alien who has lived in the United States for over twenty years. He is one of nearly 2,300 foreign nationals who entered the country illegally and are therefore subject to deportation, but cannot be repatriated because either their countries will not accept their return, or because the U.S. does not have full diplomatic ties. See Lyle Denniston, High Court To Rule On Immigrant Detention Justice Dept. Appeal On Security Gap To Be Mulled, Boston Globe, Jan. 17, 2004, at A2. Moreover, Benitez is one of 920 Cubans who tried to gain entry into the United States in 1980 during the Mariel "boat lifts." Id. Although President Fidel Castro of Cuba initially would not accept their reentry, he eventually changed his position and permitted several thousand to return; Benitez, however, is among the group of Mariel Cubans who have not yet been granted permission to reenter Cuba. Id. Pursuant to § 212(d)(5) of the Immigration and Naturalization Act, which gives the U.S. Attorney General discretion to temporarily parole into the United States any alien applying for admission who demonstrates an urgent humanitarian need or significant public benefit, Benitez and other Mariel Cubans were paroled into the United States. See 8 U.S.C. § 1182(d)(5).
While in the United States, Benitez quickly acquired a lengthy rap sheet. In 1983, he was convicted and sentenced to three years probation in Dade County, Florida for second degree grand theft, a crime involving "moral turpitude." As a result, Benitez's application to alter his legal status to a permanent resident was denied in 1985 because aliens who have been convicted of a crime involving moral turpitude are ineligible to receive an immigrant visa and are not admissible to the United States for permanent residence. See 8 U.S.C. § 1182(a)(9). His second application was denied in 1990 for lack of prosecution.
In 1993, Benitez was convicted again, this time pleading guilty in Florida state court for armed burglary of a structure, armed burglary of a conveyance, armed robbery, unlawful possession of a firearm while engaged in a criminal offense, carrying a concealed firearm, aggravated battery, and unlawful possession, sale or delivery of a firearm with an altered or removed serial number. Benitez was sentenced to twenty years imprisonment, but served only eight. See Alfonso Chardy, High Court to Decide Fate of Refugee, The Miami Herald, April 18, 2004. As a result of this conviction, the Immigration and Naturalization Service ("INS") found Benitez's continued immigration parole against public interest and terminated his parole. See 8 C.F.R. § 212.5(d)(2). In 1994, an immigration judge found Benitez excludable and deportable to Cuba based on his criminal convictions.
After serving eight years of his sentence, Benitez was turned over to INS custody in October 2001. On November 6, 2001, Benitez appeared before the Cuban Review Panel to determine whether his release from INS custody would be contrary to public interest. See 8 C.F.R. §212.12(a). The Cuban Review Panel is responsible for making Mariel Cuban parole determinations. On January 11, 2002, Benitez filed a habeas petition pursuant to 28 U.S.C. §2241 challenging his indefinite detention by INS. On January 17, 2002, Benitez received a Notice of Releaseability from the Cuban Review Panel, which enables a Mariel Cuban detainee to be released on parole. See 8 C.F.R. §212.12(d)(4)(i).Benitez was therefore releasable, once INS arranged a suitable sponsorship to a half-way house. See 8 U.S.C. § 1182(d)(5)(A); 8 CFR §212.12. However, on March 10, 2003, INS concluded that Benitez was involved in a planned jail escape and consequently revoked his Notice of Releasability.
Benitez is currently detained for several reasons, including his inadmissible alien status, his violations of the conditions of his earlier immigration parole, and INS's determination that he has not refrained from criminal conduct while in custody. The Eleventh Circuit Court of Appeals affirmed the district court's denial of Benitez's § 2241 petition. The United States Supreme Court granted writ of certiorari to hear Benitez's appeal because the circuit courts are conflicted regarding the application of Zadvydas to inadmissible aliens.
Analysis
The main issue in Benitez is whether the ruling in Zadvyas extends to inadmissible aliens. In Zadvyas, there was a 5-4 split among the Justices in deciding whether a person who was already in the U.S. as a permanent resident, and then ordered to be deported but couldn't actually be removed from the country, could be detained indefinitely. The Supreme Court decided on statutory grounds, rather than on constitutional grounds, that these permanent residents could not be held indefinitely. See Zadvyas v. Davis, 533 U.S. 678 (2001). Detainees must be released after a period of time if a reasonable possibility did not exist that they could be returned to their home country. The Zadyvas Court, recognized six months as a presumptively reasonable time of post-removal-period detention for resident aliens. Id.at 680. However, the Court also noted that the issue for people who had never been admitted to the U.S. would present a very different case. Id. at 682.
Benitez is that very different case. The Supreme Court stressed that an underlying distinction in immigration law exists between an alien who has properly effected entry into the U.S., and an alien who, like Benitez, has never been formally admitted to the country, and thus is classified as a legal, albeit inadmissible alien. See Benitez v. Wallis, 337 F.3d 1289, 1292 (11th Cir. 2003). Benitez has been physically present in the U.S. since 1980 but has never been formally admitted. He was paroled into the U.S., and precedent decisions have held that parolees, in effect, are treated as if they are still at the border. See Jean v. Nelson, 727 F.2d 957, 969-70 (11th Cir. 1984) (holding that an alien's legal status is not altered by parole). Benitez's dilemma is that he does not have the option to change his status to a lawful permanent resident since he committed crimes involving moral turpitude, and he does not have the option to be returned promptly since it is unclear if Cuba will re-admit him.
Benitez filed a habeas action challenging his indefinite detention and essentially argued that the Zadvyas decision should be extended to his situation, that of an inadmissible alien. However, the circuit courts are split in regard to the application of Zadvyas. See Benitez, 337 F.3d 678. Where the Fifth, Seventh, and Eighth Circuits have held Zadvyas inapplicable to inadmissible aliens, the Sixth and Ninth Circuit have held Zadvyas to extend to inadmissible aliens. Id. The Eleventh Circuit aligned itself with the former view, holding Zadvyas inapplicable to inadmissible aliens like Benitez. Id.
If the Supreme Court decides that Zadvyas does not apply, Benitez will remain indefinitely detained by the Immigration and Naturalization Service. It is plausible that President Fidel Castro would permit Mariel Cubans in the U.S. to return to Cuba, and therefore it could be argued that Benitez should be detained until some future date. However, due to the uncertainty with such an event, Benitez's detention is indefinite.
If the Supreme Court decides that Zadvyas does apply, Benitez will be subject to review every six months to determine if he is dangerous; if not, he will then reside in a half-way house. The rejection of Zadvyas here would recognize the constitutional rights of hundreds of Cuban immigrant criminals and other illegal non-U.S. citizens with no country to accept them. However, such an outcome could produce disincentives for illegal immigrants to seek to legal status because they would still receive constitutional protection regardless of their status.
Policy considerations
Opponents of indefinite detention argue that if Zadyvas does not apply, and Benitez remains indefinitely detained by INS, it seems inherently unfair to imprison a person indefinitely for a crime that doesn't match the severity of the sentence. It is especially problematic in situations like Benitez, where an inadmissible illegal alien finished serving his sentence and yet is still being detained simply because his country will not re-admit him.
Beyond noting the competing security interest, proponents of indefinite detention have argued that it might deter immigrants from entering the U.S. illegally. It could also encourage immigrants to adjust to a legal status, thereby allowing the government to better track people within our borders. The Bush Administration favors a Supreme Court holding for indefinite detentions due to heightened concerns for border protection. Solicitor General Theodore Olson warns the Court that, by not allowing indefinite detention, they risk creating a "back door into the United States" for dangerous non-U.S. citizens. Supreme Court Agrees to Consider Immigrant Detention Case,CNN.com (Jan.16, 2004), available at http://www.cnn.com/2004/LAW/01/16/scotus.immigrants.ap/. Olson further contends that mandating the release of these detainees "creates an obvious gap in border security that could be exploited by hostile governments or organizations that seek to place persons in the United States for their own purposes." Id. Although Benitez and other similar detainees have completed their sentences and arguably may no longer pose a criminal risk, it may be a dangerous proposition to open our country too easily and too widely to illegal criminal aliens.
Constitutional analysis
If the Court decides Benitez on constitutional grounds, its analysis will involve the application of the Fifth Amendment to determine whether Due Process protection is guaranteed to everyone in this country, whether lawful, unlawful, resident, or non-resident. In 1945, the Supreme Court held in Bridges v. Wixon (326 U.S. 135, 161) that excludable aliens are not within the protection of the Fifth Amendment. If the Court continues to hold the Fifth Amendment inapplicable to non-resident aliens, it would represent an especially dangerous proposition in Benitez's case, where he would be detained in prison for the rest of his life for crimes that do not warrant life-time imprisonment. In this context, Estelle McKee, who teaches the Asylum and Convention Against Torture Clinic at Cornell Law School, expressed that whether or not the Court decides to apply this holding to Benitez will depend on how far the Fifth Amendment has progressed during the last half-century.
Courts have been known to apply the Fourteenth Amendment to all "persons" within the U.S. and not just to United States citizens. See Plyler v. Doe, 457 U.S. 202 (1982) (stating that illegal aliens are protected under the Equal Protection Clause). But see Khasminskaya v. Lum, 47 Cal. App. 4th 537, (1st Dist. 1996) (stating that the Equal Protection Clause is not violated when limiting governmental benefits to persons who are "lawfully resident" under INS laws). Could the same argument be made here? Professor Stephen W. Yale-Loehr, who teaches Immigration Law at Cornell Law School, suggests a sliding-scale scheme, where illegal aliens do not share the same rights as legal residents, but as these illegal aliens develop more stakes here in the U.S., such as buying property or establishing a family, they would gain constitutional rights. However, one major drawback could be that such an approach may actually encourage illegal aliens to establish stakes rather than trying to adjust to a legal status.
Conclusion
Taking everything into consideration, it seems very likely that the Supreme Court will rule against Benitez. After all, the Court held in Zadvyas that the issue of inadmissible aliens would be a very different case, indicating that Zadvyas's legal status played a crucial role in the Court's decision. Furthermore, the Court was very closely divided in Zadvyas and there is no reason for a major shift in one direction or the other for Benitez. And as for the issue of Due Process protection, the Court will likely avoid dealing with the constitutional issue, as it did in Zadvyas.