Sierra v. Romaine

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

10-29-2003

Sierra v. Romaine

Precedential or Non-Precedential: Precedential

Docket No. 02-2826

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PRECEDENTIAL

Filed October 29, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2826

ROLANDO M. SIERRA, SR.,

Appellant

v.

D. ROMAINE, Warden; IMMIGRATION &

NATURALIZATION SERVICE; JOHN ASHCROFT,

Attorney General of the United States of America

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 00-00852)

Honorable James M. Munley, District Judge

Argued September 9, 2003

BEFORE: BARRY, BECKER, and GREENBERG,

Circuit Judges

(Filed: October 29, 2003)

Christopher W. Wasson (argued)

Barak A. Bassman

Pepper Hamilton LLP

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, Pa. 19103-2799

Attorneys for Appellant

2

Robert D. McCallum, Jr.

Assistant Attorney General

United States Department of Justice

Civil Division

Linda S. Wernery

Senior Litigation Counsel

United States Department of Justice

Thankful T. Vanderstar

Laura L. Flippin (argued)

United States Department of Justice

Civil Division

Office of Immigration Litigation

Post Office Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Appellees

Judy Rabinovitz

American Civil Liberties Union

Foundation

Immigrants’ Rights Project

125 Broad Street

New York, NY 10004-2400

Lucas Guttentag

Liliana M. Garces

American Civil Liberties Union

Foundation

Immigrants’ Rights Project

405 14th Street, Suite 300

Oakland, CA 94612

Attorneys for Amicus Curiae

American Civil Liberties Union

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. FACTUAL AND PROCEDURAL HISTORY

This matter comes on before this court on Rolando

3

Sierra’s appeal from an order entered in the district court

on June 18, 2002, denying his petition for a writ of habeas

corpus.1 Sierra is a 41-year-old Cuban national who arrived

in the United States in 1980 as part of the Mariel boatlift

during which over 125,000 Cubans crossed by boat from

Mariel harbor in Cuba to the United States.2 See JA 7.

Immigration officials stopped Sierra and most Mariel

Cubans at the border as they were “excludable” under the

then effective immigration law.3 Although excludable aliens

1. Sierra filed his petition for habeas corpus in the district court under

28 U.S.C. § 2241. See JA 22. In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct.

2271 (2001), the Supreme Court concluded that aliens the INS has

detained can petition for writs of habeas corpus under 28 U.S.C. § 2241

— whether they are detained pursuant to the pre-1996 statutory regime,

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), or

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). See

Rosales-Garcia v. Holland, 322 F.3d 386, 394 (6th Cir.) (en banc), cert.

denied, 123 S.Ct. 2607 (2003); see also Zadvydas v. Davis, 533 U.S.

678, 688, 121 S.Ct. 2491, 2498 (2001) (Ҥ 2241 habeas corpus

proceedings remain available as a forum for statutory and constitutional

challenges to post-removal-period detention.”).

2. Sierra had been incarcerated in Cuba for petty theft immediately

preceding his departure to the United States. See JA 74.

3. The Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA) substantially altered the landscape in immigration law and

brought about a shift in basic immigration terminology. Chi Thon Ngo v.

INS, 192 F.3d 390, 395 n.4 (3d Cir. 1999). Pre-IIRIRA the law referred to

“excludable” aliens as “those who were ineligible for admission or entry

into the United States.” Id. “Excludable” aliens could be subject to

exclusion proceedings; “ ‘[d]eportation’ proceedings, in contrast, were

brought against those aliens who had gained admission into the

country.” Id. “The deportation hearing is the usual means of proceeding

against an alien already physically in the United States, and the

exclusion hearing is the usual means of proceeding against an alien

outside the United States seeking admission.” Landon v. Plasencia, 459

U.S. 21, 25, 103 S.Ct. 321, 325 (1982). In practice, however, the

technical linguistic distinction under pre-IIRIRA law seems not to have

been followed in all cases. For example, in “exclusion proceedings” an

immigration judge on January 6, 1992, ordered that “the applicant

[Sierra] be excluded and deported as charged.” JA 50. IIRIRA “refers to

‘inadmissible’ aliens in the place of ‘excludable’ aliens. Although there

are still separate grounds of ‘inadmissibility’ and ‘deportability,’ the

4

such as Sierra have not “entered” the country for the

purposes of immigration law, the government nevertheless

permitted him as well as other Mariel Cubans to make a

physical entry into the United States pursuant to the

Attorney General’s authority under 8 U.S.C. § 1182(d)(5)(A)

to grant immigration parole.4

Following Sierra’s physical entry into the United States

he engaged in a series of serious criminal acts in this

country. Thus, he was convicted, inter alia, of carrying a

deadly weapon and of theft in the District of Columbia in

1986 and of daytime housebreaking and of theft in

Maryland in 1990 and 1991.5 JA 7. As a result of these

convictions, the Immigration and Naturalization Service

(“INS”) quite naturally and appropriately revoked Sierra’s

immigration parole. See JA 7. On January 6, 1992, after

denying Sierra’s applications for asylum and withholding of

deportation, an immigration judge ordered that he be

excluded and deported from the United States. JA 49-50.

Sierra appealed the decision of the immigration judge to the

Board of Immigration Appeals which summarily dismissed

the appeal on May 6, 1992. JA 52.

Sierra should have been deported immediately but

unfortunately the Cuban government generally has refused

distinction now turns on whether an alien has been ‘admitted’ to the

United States, rather than on whether the alien has gained ‘entry.’ ” Ngo,

192 F.3d at 394 n.4. An alien who does not enter the United States

legally is not “admitted.” 8 U.S.C. § 1101(a)(13)(A). “Inadmissible” aliens,

therefore, include aliens who have not entered the United States

(formerly excludable) and those who entered illegally (formerly

deportable). 8 U.S.C. § 1182(a)(6). Both “inadmissible” and “deportable”

aliens are now subject to removal proceedings. 8 U.S.C. § 1229a(3).

4. 8 U.S.C. § 1182(d)(5)(A) stipulates that “such parole of such alien shall

not be regarded as an admission of the alien.” Rosales-Garcia v. Holland,

322 F.3d 386, 391 n.2 (6th Cir. ) (en banc), cert. denied 123 S.Ct. 2607

(2003). The concept that aliens who are physically present within the

United States but nonetheless technically are considered to be at the

border is known as the “entry fiction” doctrine. See id.

5. Sierra’s convictions for theft and breaking and entering are aggravated

felonies under the Immigration and Nationality Act. See 8 U.S.C.

§ 1101(a)(43).

5

to cooperate in the return of Mariel Cubans and specifically

has declined to receive Sierra. See JA 102. The INS

therefore has held Sierra in custody for most of the last 11

years detaining him in various federal penitentiaries

operated by the Bureau of Prisons, including the facility at

Lewisburg, Pennsylvania, at the time he brought this

action, and currently the facility at Lompoc, California.

Since his detention and throughout the time Sierra has

been in INS custody, the INS annually has reconsidered

releasing him on immigration parole in accordance with 8

C.F.R. § 212.12 (2003), which governs the cases of Mariel

Cubans who remain in the Attorney General’s custody.

Pursuant to these regulations, a Cuban Review Panel

makes a recommendation to the INS Associate

Commissioner for Enforcement,6 who has the discretion to

approve parole. Sierra v. INS, 258 F.3d 1213, 1216 (10th

Cir. 2001). The INS denied Sierra parole in 1992 because of

his “tendency to engage in criminal activities as reflected by

[his] extensive criminal record.” Id. On April 15, 1994, the

INS released Sierra to a halfway house, but six months

later revoked his parole by reason of his failure to abide by

the conditions of his release. Thus, he was returned to the

custody of the INS. Id. The INS denied Sierra parole in

1995, 1996, and 1997. Id. While detained in prison, he has

been disciplined for numerous incidents, such as insolence,

refusing an order, threatening others, and minor assaults.

Id.

On July 28, 1998, a Cuban Review Panel recommended

Sierra’s parole to a halfway house, noting that he had not

been involved in any disciplinary incidents in 1998. Id. That

decision, however, was revoked due to Sierra’s involvement

in a fight. JA 8. A panel conducted an interview on March

6. In order to recommend that a detainee be paroled, the panel members,

two members of the INS professional staff, must conclude that the

detainee is presently non-violent, likely to remain non-violent, and not

otherwise likely to violate any conditions in the event of his parole.

Chavez-Rivas v. Olsen, 207 F. Supp. 2d 326, 329 (D.N.J. 2002). There is

a list of seven, apparently non-exclusive, factors to guide a Cuban

Review Panel in reaching its determinations. Id. If a Cuban Review Panel

cannot recommend parole based solely on the detainee’s paper record, it

must interview the detainee. Id.

6

18, 1999, following which it declined to recommend parole,

finding that Sierra was “violent and [would] remain violent

if released.” Id. Though a Cuban Review Panel interviewed

Sierra again on September 13, 2000, and recommended

him for parole, this recommendation was withdrawn on

May 13, 2002, after Sierra was disciplined for disruptive

behavior in October 2001. See JA 157.

Prior to filing his current petition for a writ of habeas

corpus, Sierra had filed several other petitions seeking

habeas relief. While he was incarcerated in Florence,

Colorado, he filed an action in the United States District

Court for the District of Colorado, challenging the Cuban

Review Panel’s 1998 withdrawal of parole based on the

fighting incident. See JA 9. The district court, however,

dismissed the action by an order dated August 9, 1999,

and in August 2001, the Court of Appeals for the Tenth

Circuit affirmed the district court’s order. Sierra, 258 F.3d

at 1220. On January 7, 1997, Sierra filed a petition for a

writ of habeas corpus in the United States District Court

for the Northern District of Alabama challenging his

detention claiming that he had not committed an

aggravated felony, his incarceration with felons violated his

rights, and the Cuban Review Panel had refused to release

him from custody. See JA 108. Sierra filed a similar action

in the United States District Court for the District of

Columbia on March 24, 1998. See JA 9. The District of

Columbia court transferred that action to the Northern

District of Alabama which consolidated it with the case

pending before it and then dismissed both cases.7 See JA 9.

The Court of Appeals for the Eleventh Circuit affirmed the

order of the district court in an unpublished memorandum

on July 17, 2002. Sierra v. Sivley, No. 00-12508, 46 Fed.

7. The district court adopted the findings and conclusions of a

magistrate judge who recommended that the court dismiss Sierra’s

petition for lack of jurisdiction pursuant to section 242(g) of the

Immigration and Nationality Act, 8 U.S.C. § 1252(g), because “[d]etention

of aliens pending repatriation constitutes an ‘action by the Attorney

General’ incident to the execution of removal orders” and thus is barred

from judicial review. JA 115. Alternatively, the magistrate judge

recommended dismissal on the merits, concluding that, as an excludable

alien, Sierra “has no right to be set free in this country.” JA 118.

7

App. 617, 2002 WL 1798861 (11th Cir. July 17, 2002)

(table).

Sierra filed the present petition for a writ of habeas

corpus on May 15, 2000, in the Middle District of

Pennsylvania. See JA 6. In his petition Sierra maintained

that the INS improperly denied him visits with his family

and improperly denied him parole. See JA 9. In proceedings

before the district court Sierra argued that he was being

detained in violation of the Fifth and Sixth Amendments of

the Constitution, contentions he has abandoned,8 and that

the Supreme Court’s then recent decision in Zadvydas v.

Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), which we

describe at length below, prohibited his potential indefinite

detention. See JA 10-11. In an order dated July 9, 2001,

the district court ordered the parties to file supplemental

memoranda of law addressing the lawfulness of Sierra’s

imprisonment in light of Zadvydas. JA 4-5. In a

memorandum dated May 17, 2002, the district court held

that Sierra’s imprisonment was lawful and that the

restrictions Zadvydas established with respect to detention

of resident aliens were not applicable in his case.

Nevertheless, the district court ordered the INS to review

his parole status within 30 days. See JA 12-17. In a

memorandum and order dated June 18, 2002, the court

revoked its earlier requirement that the INS review Sierra’s

parole status in 30 days as the INS provided the court with

evidence that it had made periodic parole reviews of Sierra’s

status. JA 18-21. On June 27, 2002, Sierra filed a timely

notice of appeal from the June 18, 2002 order which appeal

also encompasses the May 17, 2002 order. JA 1.

II. DISCUSSION

A. Jurisdiction and Standard of Review

The district court had jurisdiction under 28 U.S.C.

8. See Reply Br. of appellant at 1 (“this case is about the application of

a statute as interpreted by the Supreme Court and not Constitutional

law”). Nor does Sierra currently maintain that he improperly is being

denied visits with his family or that his continued detention violates

international law.

8

§ 2241 and we have jurisdiction under 28 U.S.C. §§ 1291

and 2253. We exercise plenary review over the district

court’s legal conclusions and ordinarily would review its

findings of fact under a clearly erroneous standard. See

Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). Here,

however, inasmuch as the relevant facts are undisputed,

our entire review is plenary.

B. The Statutory Basis for Sierra’s Current Detention

The parties dispute the statutory authority for Sierra’s

current detention.9 Sierra argues that “8 U.S.C. § 1231(a)(6)

is the statute authorizing [his] current imprisonment.” Br. of

appellant at 14. The government maintains that former 8

U.S.C. §§ 1226(e), 1225(b), 1227(a) and 1182(d)(5)(A) (1994)

and not current section 1231(a)(6) govern his detention. Br.

of appellee at 20.

Congress enacted 8 U.S.C. § 1231(a)(6) (hereinafter

“section 1231(a)(6)”) as part of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),

Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996).

Although IIRIRA had a general effective date of April 1,

1997, see IIRIRA § 309(a) (codified at 8 U.S.C. § 1101 note

(2000)), a transition section specifies that certain of its

provisions do not apply “in the case of an alien who is in

exclusion or deportation proceedings before [April 1, 1997].”

Id. § 309(c)(1) (hereinafter “section 309(c)(1)”).10 According to

the government, section 309(c)(1) of IIRIRA precludes this

court from applying IIRIRA to Sierra, an unadmitted,

9. The district court did not address this issue.

10. The general rule of inapplicability in section 309(c)(1) of IIRIRA

provides as follows:

(c) TRANSITION FOR CERTAIN ALIENS. —

(1) GENERAL RULE THAT NEW RULES DO NOT APPLY. —

Subject to the succeeding provisions of this subsection, in the case

of an alien who is in exclusion or deportation proceedings before

[April 1, 1997,] —

(A) the amendments made by this subtitle shall not apply, and

(B) the proceedings (including judicial review thereof) shall

continue to be conducted without regard to such amendments.

9

inadmissible alien ordered excluded and deported prior to

its effective date.

In contrast Sierra contends that IIRIRA does apply and

that section 1231(a)(6) governs this action because: (1) the

most natural reading of section 309(c)(1) is that it applies

only to matters at issue through the pendency of

proceedings and not to post-final-order detention

determinations; (2) in Zadvydas the Supreme Court applied

section 1231(a)(6) to a petitioner who had been placed in

deportation proceedings and ordered deported prior to April

1, 1997; and (3) in Zadvydas, as well as in other cases, the

INS has argued that section 309(c)(1) only applies to aliens

in pending deportation or exclusion proceedings, not to

post-final-order detention determinations.

As we will discuss in more detail below, several courts of

appeals have found that section 1231(a)(6) governs the

detention of aliens in procedural circumstances similar to

those of Sierra.11 See Martinez Vazquez v. INS, No. 03-

35026, ___ F.3d ___, 2003 WL 22244774, at *3 (9th Cir.

Oct. 1, 2003); Rosales-Garcia v. Holland, 322 F.3d 386,

401-03 (6th Cir.) (en banc), cert. denied, 123 S.Ct. 2607

(2003); Zadvydas v. Underdown, 185 F.3d 279, 286-87 (5th

Cir. 1999), vacated sub nom. on other grounds, Zadvydas v.

Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001).

(a) The language of section 309(c)(1)

IIRIRA’s transition provision, section 309(c)(1), surely is

ambiguous. Uncertainty arises from its present tense

language describing an alien who “is” in proceedings

“before” April 1, 1997. As the Court of Appeals for the Fifth

Circuit stated in Zadvydas v. Underdown, “[t]he problem is

11. In Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir. 1999), we faced the

question of whether section 1231(a)(6) applied to an alien who, like

Sierra, was ordered excluded and deported several years before IIRIRA’s

effective date. Noting that the “adoption of the AEDPA and IIRIRA by

Congress in 1996, together with the IIRIRA Transitional Rules that

expired in October 1998, have created a complex assortment of amended

and repealed provisions that is frequently baffling,” we expressly reserved

judgment on the question based on our conclusion that the petitioner’s

detention was authorized regardless of which statutory regime applied.

Id. at 395 n.5.

10

created by the statute’s usage of ‘before,’ which might be

read to imply that the statute only affects those that were

free of any involvement in deportation [or exclusion]

proceedings prior to the effective date.” 185 F.3d at 286

n.7.

As originally enacted, the transition rule in section

309(c)(1) applied “in the case of an alien who is in exclusion

or deportation proceedings as of [April 1, 1997].” (Emphasis

added.)12 But 11 days after IIRIRA’s enactment, a technical

amendment struck and replaced the term “as of ” with the

term “before.” See Extension of Stay in the United States for

Nurses Act, Pub. L. No. 104-302, § 2, 110 Stat. 3656

(1996). The government argues that this technical

amendment “made clear that IIRIRA’s provisions do not

apply to aliens who were placed in administrative

proceedings before IIRIRA’s general effective date of April 1,

1997.” See Br. of appellee at 24. It is not clear, however,

that Congress intended the amendment to have that broad

effect, though we acknowledge that if Congress had not

substituted “before” for “as of ” it would be clearer that

section 1231(a)(6) would apply in cases such as this one

completed before IIRIRA’s effective date. As the Court of

Appeals for the Fifth Circuit explained in Zadvydas v.

Underdown, “[t]he confusing ‘before’ was . . . the product of

what was labeled as a ‘technical’ amendment established by

the Hatch-Kennedy amendment to the H-1A Nursing Bill

. . . . Nothing indicates what the goal of this amendment

was, and the failure of the amendment to change the

surrounding language makes its intended purpose unclear.”

185 F.3d at 287 n.7 (internal citation omitted).

The Court of Appeals for the Sixth Circuit’s en banc

decision in Rosales-Garcia and the Court of Appeals for the

Fifth Circuit’s decision in Zadvydas v. Underdown support

Sierra’s position that section 309(c)(1) applies only to

12. Originally the title of section 309(c) of IIRIRA read “Transition For

Aliens In Proceedings.” Section 203(a)(2) of the Nicaraguan Adjustment

and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat.

2193, 2198 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644

(1997), changed the title to its current form which is “Transition For

Certain Aliens.”

11

matters relating to ongoing deportation or exclusion

proceedings and not to post-final-order detention

determinations so that section 1231(a)(6) is applicable in

this case.13 Rosales-Garcia involved Mariel Cubans who, like

Sierra, were unadmitted aliens ordered excluded and

deported before IIRIRA’s effective date. The court of appeals

found that the present tense language of section 309(c)(1)

and the Supreme Court’s language in INS v. St. Cyr, 533

U.S. 289, 121 S.Ct. 2271 (2001), and other cases indicated

that section 309(c)(1) applies only to proceedings pending

on April 1, 1997. Rosales-Garcia, 322 F.3d at 402-03.

Accordingly, the court rejected the government’s argument

that pre-IIRIRA law should apply and instead concluded

that section 1231(a)(6) governed appellants’ imprisonment

because neither of their “exclusion proceeding[s] was

pending on April 1, 1997.”14 Id. at 403. In Zadvydas v.

Underdown, the Court of Appeals for the Fifth Circuit, while

noting that the statute “is not a model of clarity” with

respect to its application to an alien ordered deported prior

to the IIRIRA’s effective date, agreed with the parties that

IIRIRA applies to all aliens who are not “in proceedings” on

the statute’s effective date. See 185 F.3d at 286-87.15

In support of his argument that IIRIRA applies unless the

immigrant in question was in pending immigration

proceedings on April 1, 1997, Sierra also points to St. Cyr

13. In Zadvydas the Supreme Court did not reverse the court of appeal’s

determination that section 1231(a)(6) was the applicable statute. Indeed,

without addressing the issue, the Supreme Court assumed in Zadvydas

that section 1231(a)(6) was applicable.

14. The dissenting judges in Rosales-Garcia did not accept the

government’s argument that section 1231(a)(6) was inapplicable. See

Rosales-Garcia, 322 F.3d at 416-21 (Boggs, J., dissenting).

15. Though the Supreme Court applied IIRIRA in Zadvydas, it did not

explain why it did so. See Rosales-Garcia, 322 F.3d at 401. Inasmuch as

the Court in Zadvydas did not discuss the application of IIRIRA to

Zadvydas, we cannot simply assume that such application is appropriate

for all aliens ordered deported or excluded before April 1, 1997. Id.

However, there are other reasons that IIRIRA is the appropriate statute.

Most significantly, this is the best interpretation of section 309(c)(1). In

addition, as we will discuss in more detail below, the government until

recently endorsed this interpretation.

12

in which the Supreme Court noted that “[s]ection 309(c)(1)

is best read as merely setting out the procedural rules to be

applied to removal proceedings pending on the effective

date of the statute.” 533 U.S. at 318, 121 S.Ct. at 2289. In

Rosales-Garcia the court quoted this language and pointed

out that “The St. Cyr Court also noted that ‘the Conference

Report expressly explained “[section 309(c)] provides for the

transition to new procedures in the case of an alien already

in exclusion or deportation proceedings on the effective

date.” 322 F.3d at 402 (citations omitted). The court of

appeals concluded that “[i]n other words, according to the

Supreme Court, § 309(c) provides only that IIRIRA does not

apply to removal proceedings that were pending on April 1,

1997.” Id.; see also Reno v. American-Arab Anti-

Discrimination Comm., 525 U.S. 471, 487, 119 S.Ct. 936,

945 (1999) (referring to “§ 309(c)(1)’s general rule” that

IIRIRA’s provisions “do not apply to pending cases”).

Section 309(c)(1)(B), which provides that “the proceedings

(including judicial review thereof) shall continue to be

conducted without regard to such amendments,” i.e., under

pre-IIRIRA law, also supports this interpretation of section

309(c)(1). As amicus American Civil Liberties Union

(“ACLU”) points out, the focus on “proceedings” and

“judicial review thereof ” in section 309(c)(1)(B) confirms

that section 309(c)(1) governs issues relating to the

determination of excludability or deportability, not post-

final-order detention that occurs thereafter and is unrelated

entirely to the proceedings. See Br. of amicus at 12-13.

(b) INS’s shifting position on the applicable law

In its brief the government argues that “the INS has

consistently taken the position that, pursuant to section

309(c)(1) of IIRIRA, the pre-IIRIRA law applies to the

detention of excludable aliens whose immigration

proceedings were initiated prior to April 1, 1997.” Br. of

appellee at 27. In addition, according to the government, “to

the extent this Court finds IIRIRA § 309(c) ambiguous, it

should accord Chevron[16] deference to the INS’s

interpretation.” Br. of appellee at 28.

16. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

843-44, 104 S.Ct. 2778, 2782 (1984).

13

Contrary to the government’s contention that it

“consistently [has] taken the position that, pursuant to

§ 309(c)(1) of IIRIRA, the pre-IIRIRA law applies to the

detention of excludable aliens whose immigration

proceedings were initiated prior to April 1, 1997,” the

government previously has argued that IIRIRA, not pre-

IIRIRA law, applies to the detention of excludable aliens

whose immigration proceedings were initiated and

concluded prior to April 1, 1997. Most significantly, in

Sierra’s prior litigation challenging the parole revocation

process, the government acknowledged before the Court of

Appeals for the Tenth Circuit that IIRIRA applied. See

Sierra, 258 F.3d at 1216-17 n.2 (“The parties agree that

IIRIRA applies to this case, and for purposes of this appeal

we assume it does, although the matter is not free from

doubt.”); see also Benitez v. Wallis, 337 F.3d 1289, 1293

n.13 (11th Cir. 2003) (In a case involving a Mariel Cuban

found excludable and deportable prior to IIRIRA’s effective

date, “in the district court proceedings, the government

relied on IIRIRA, did not assert that pre-IIRIRA rules

applied, and did not dispute (in any way) the district court’s

application of IIRIRA.”).

In addition, the INS has argued in cases involving

deportable aliens that section 309(c)(1) applies only when

proceedings are in progress. The government advanced this

exact reason before the court of appeals in Zadvydas v.

Underdown to justify application of section 1231(a)(6) to the

petitioner, who had been placed in proceedings prior to

April 1, 1997. In that case the government argued that the

“exception in section 309(c)(1) . . . only applies to

‘proceedings’ in progress. Because Mr. Zadvydas already

has a final deportation order and his administrative

proceedings have been concluded, the exception found in

309(c)(1) does not apply to his case, and the effective date

provision of § 309(a) governs.”17 See Respondents-

17. The government attempts to explain the position it took in Zadvydas

v. Underdown by arguing that because of an alleged ambiguity created

by the various statutory changes, both the pre-1996 and post-1996

detention statutes governed Zadvydas’ imprisonment. See Br. of appellee

at 22. As the ACLU points out, this argument is not persuasive. See Br.

14

Appellants’ Supplemental Brief in Zadvydas v. Underdown

at 10, No. 97-31345 (5th Cir.) (filed Apr. 22, 1999) (copy

attached to amicus brief as Exh. A); see also Zadvydas v.

Underdown, 185 F.3d at 286-87 (agreeing with the

government’s position that IIRIRA governed Zadvydas’

detention); In re Nai Meng Saelee, 22 I. & N. Dec. 1258 n.61

(2000).

As the ACLU also points out, following the Supreme

Court’s decision in Zadvydas the government continued to

advance the same interpretation of section 309(c)(1) to

justify application of section 1231(a)(6) to an alien placed in

deportation proceedings prior to IIRIRA’s effective date and

ordered deported thereafter. See Br. of amicus at 16. The

government argued before the Court of Appeals for the

Eleventh Circuit that section 309(c)(1) did not govern the

alien’s detention because he was subject to a final order

and no longer was in deportation “proceedings.” See Brief

for respondent/appellees in Al Najjar v. Ashcroft at 13-14,

No. 02-11153-JJ (11th Cir.) (filed May 21, 2002) (copy

attached to amicus brief as Exh. B). In further support of

its position, the government argued that Congress intended

that the same detention rules would apply to individuals

subject to final orders regardless of the date of those

orders, stressing that: “[B]ecause custody decisions are

necessarily prospective, it is logical that Congress intended

one set of detention rules to apply to all aliens with final

orders awaiting deportation or removal.”18 Id. at 14. Though

of amicus at 17-22; see also Chavez-Rivas v. Olsen, 207 F. Supp. 2d

326, 332-33 (D.N.J. 2002) (“At oral argument, counsel for the

Respondents claimed that the INS’s position in Zadvydas applied only to

deportable criminal aliens. I fail to see the relevance of that distinction

here, and, in any event, the INS has nothing at all to distinguish its

position in Sierra, wherein the petitioner was, like Chavez-Rivas,

inadmissible. Nor is there any evidence that the INS’s conclusion is

based on underlying policy concerns, or indeed, on reasoned deliberation

of any kind.”) (citation omitted).

18. The ACLU also points out that the government has maintained that

the newly enacted “reinstatement” of removal provision, IIRIRA

§ 241(a)(5), applies to aliens in proceedings before IIRIRA’s effective date

because those aliens were no longer in ongoing proceedings and section

15

the procedural posture of Al Najjar differs from that here

inasmuch as in that case the deportation order was entered

after IIRIRA’s effective date, the government’s position in Al

Naijar is somewhat inconsistent with its position here.

Notwithstanding its position in these cases, the

government recently has abandoned this interpretation of

section 309(c)(1) and now contends that IIRIRA has a more

limited application. Thus, before the Court of Appeals for

the Sixth Circuit in Rosales-Garcia, the government argued

that section 309(c)(1) precludes application of section

1231(a)(6) in all cases of aliens excluded prior to IIRIRA’s

effective date. See 322 F.3d at 401 (noting that “[a]ccording

to the government, § 309(c)(1) of IIRIRA precludes [the

court] from applying IIRIRA to an alien excluded prior to

the statute’s effective date.”).19

We do not suggest that a governmental agency may not

change its interpretation of a statute and, indeed, we

recognize that ordinarily it should make such a change if it

believes that its prior interpretation was incorrect. Thus, we

have no intention of discouraging agencies from

reevaluating their positions regarding the meaning of

statutes.

309(c)(1) is therefore inapplicable. See Br. of amicus at 17 (citing Brief

for respondent in Castro-Cortez v. INS at 38-39, No. 99-70267 (9th Cir.)

(filed Mar. 27, 2000) (referencing section 309(c)(1) and arguing that

“[u]nless an alien is in deportation or exclusion proceedings when the

INS attempts to reinstate the alien’s prior order, section 241(a)(5) applies

to the alien.”) (copy attached to amicus brief as Exh. C)). Relatedly, in St.

Cyr the INS argued that “Congress’ comprehensive establishment of a

new immigration framework . . . shows its intent that, after a transition

period, the provisions of the old law should no longer be applied at all.”

St. Cyr, 533 U.S. at 317, 121 S.Ct. at 2288 (quoting Br. of INS at 33-34).

19. None of the judges of the en banc court in Rosales-Garcia accepted

the government’s argument. We also note that, as Sierra points out, the

government’s petition for a writ of certiorari in Rosales-Garcia did not

ask that the Supreme Court review the court of appeal’s holding that

section 1231(a)(6) applies to Mariel Cubans who, like Sierra, were in

immigration proceedings prior to IIRIRA’s effective date. See Reply Br. of

appellant at 2.

16

Nevertheless an agency’s interpretation is entitled to

deference in accordance with the “ ‘thoroughness evident in

[the agency’s] consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements, and all

those factors which give it power to persuade, if lacking

power to control.” EEOC v. Arabian Am. Oil Co., 499 U.S.

244, 257, 111 S.Ct. 1227, 1235 (1991) (internal quotation

marks and citations omitted). In view of the government’s

shifting position that we have set forth, we accord little

deference to its contention here. First, the government

appears to have advocated only in litigation the application

of pre-IIRIRA law to petitioners whose cases are

procedurally similar to Sierra’s. See Rosales-Garcia, 322

F.3d at 403 n.22. “An interpretation contained in a brief—

like interpretations contained in opinion letters, policy

statements, agency manuals, and enforcement guidelines—

lacks the force of law and therefore is not entitled to

Chevron deference.” Id.; see also Chavez-Rivas v. Olsen, 207

F. Supp. 2d 326, 332 (D.N.J. 2002). Second, as discussed

above, the government’s position has been inconsistent and

is therefore unpersuasive.20 Rosales-Garcia, 322 F.3d at

403 n.22 (“In a number of other cases in which excluded,

deported, or removed aliens challenged the legality of their

continued detention, the government argued that IIRIRA

should apply to alien petitioners who had been excluded or

deported prior to April 1, 1997.”) (citations omitted); see

also Chavez-Rivas, 207 F. Supp. 2d at 332 (“The INS’s

interpretation, I am sad to report, appears to be no more

than an ad hoc judgment offered for no greater purpose or

policy than that it is advantageous to advance the INS’s

position in this particular litigation.”).21

20. As the court of appeals noted in Rosales-Garcia, “[i]nasmuch as

shifting agency interpretations issued in regulations are accorded less

deference under the highly deferential Chevron standard, we see no

reason why we should respect shifting agency interpretations expressed

in briefs.” 322 F.3d at 403 n.22 (internal citations omitted).

21. Our quotation from Chavez-Rivas should not be taken as a signal

that we are critical of the government with respect to its attempt to apply

IIRIRA temporally as the statute surely is not clear. See Chi Thon Ngo v.

INS, 192 F.3d 390, 395 n.5 (3d Cir. 1999).

17

In conclusion, because the best interpretation of section

309(c)(1) as adopted by several courts of appeals is that

IIRIRA applies unless the petitioner was in deportation

proceedings pending on April 1, 1997, we will interpret

IIRIRA that way. In the circumstances, inasmuch as

Sierra’s proceedings were concluded in 1992 and therefore

no longer were pending on April 1, 1997, section 1231(a)(6)

governs his current detention and we will apply that statute

here.

C. Construction of Section 1231(a)(6) as Applied to Sierra

In view of our conclusion that section 1231(a)(6) governs

Sierra’s detention,22 we must determine whether the

Supreme Court’s holding in Zadvydas, reading into section

1231(a)(6) a temporal limit on post-removal detention for

resident aliens, also applies to the detention of an

unadmitted, inadmissible alien such as Sierra. The district

court held that Zadvydas was not applicable because,

unlike the petitioners in Zadvydas, Sierra “never

effectuated an entry into the United States.” JA 12. Sierra

argues that the district court’s “opinion reflects an incorrect

reading of Zadvydas, which construed the statute which

authorizes imprisonment of all immigrants pending

deportation, whether or not they have affected a legal entry

into the United States.” Br. of appellant at 6. Sierra claims

that the district court erred, “because it is well-established

that a statutory interpretation rendered by the Supreme

Court, even on the basis of the Constitutional avoidance

doctrine, is binding in all applications of the statute.” Br. of

appellant at 10.

22. If we had concluded that the government is correct that pre-IIRIRA

law governs the detention, we would have held that the Attorney General

has the authority to detain Sierra indefinitely pending his deportation

and thus we would have affirmed the denial of his petition for a writ of

habeas corpus. See Chi Thon Ngo v. INS, 192 F.3d 390, 395 (3d Cir.

1999). While the ACLU argues to the contrary, see Br. of amicus at 24-

27, the government is correct in its contention that the Supreme Court’s

decision in Zadvydas did not undermine Ngo’s holding in this respect,

and Sierra does not argue otherwise. See Rios v. INS, 324 F.3d 296, 297

(5th Cir. 2003).

18

(a) Section 1231(a)(6)

After an alien, such as Sierra, is ordered removed from

the United States, the Attorney General must attempt to

secure his removal within 90 days. See 8 U.S.C.

§ 1231(a)(1) (the “removal period”). Moreover, “[u]nder no

circumstance during the removal period shall the Attorney

General release an alien who has been found inadmissible

. . . .” 8 U.S.C. § 1231(a)(2). Congress, however, recognizes

that securing an alien’s actual removal within 90 days is

not always possible. Consequently section 1231(a)(6)

authorizes the Attorney General to detain aliens beyond the

90-day removal period, as it provides:

An alien ordered removed who is inadmissible under

section 1182 of this title, removable [for violations of

nonimmigrant status or entry conditions, violations of

criminal laws, or threats to national security] or who

has been determined by the Attorney General to be a

risk to the community or unlikely to comply with the

order of removal, may be detained beyond the removal

period and, if released, shall be subject to the terms of

supervision in paragraph (3).

The INS has detained Sierra because his conduct shows

that he is a risk to the community.

(b) Zadvydas v. Davis

In Zadvydas the Supreme Court considered whether the

government’s authority under section 1231(a)(6) to detain

two legal permanent residents beyond the 90-day removal

period allowed it to detain them indefinitely. There two legal

permanent residents were ordered removed by reason of

their criminal convictions. The government, however, could

not remove them because no country would accept them.

In evaluating the legality of indefinite detention in

Zadvydas, the Supreme Court considered whether

indefinite detention of resident aliens, if authorized by

section 1231(a)(6) as the government contended was the

case, would present constitutional problems. In making its

determination the Court predicated its decision on its

recognition that the two resident alien petitioners in

Zadvydas enjoyed certain constitutional privileges

19

associated with individuals who have gained entry into the

United States. 533 U.S. at 692-93, 121 S.Ct. at 2500. The

Court explained, however, that Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625 (1953),

permits the indefinite detention of unadmitted aliens the

government is unable to send elsewhere, but noted that

Mezei “differs from the present cases [in Zadvydas] in a

critical respect” in that the alien in Mezei was “ ‘treated,’ for

constitutional purposes, ‘as if stopped at the border.’ ”

Zadvydas, 533 U.S. at 693, 121 S.Ct. at 2500 (quoting

Mezei, 345 U.S. at 213, 215, 73 S.Ct. at 630, 631). Thus,

the Court in Zadvydas explained that the distinction

between aliens who have gained entry and those stopped at

the border “made all the difference” in its earlier decision

that Mezei’s indefinite detention did not violate the

Constitution. Id. at 692-93, 121 S.Ct. at 2500.

In Zadvydas the Court further stressed that “[t]he

distinction between an alien who has effected an entry into

the United States and one who has never entered runs

throughout immigration law.” Id. at 693, 121 S.Ct. at 2500.

The Court also emphasized that “[i]t is well established that

certain constitutional protections available to persons

inside the United States are unavailable to aliens outside of

our geographic borders.” Id., 121 S.Ct. at 2500. “But once

an alien enters the country, the legal circumstance

changes, for the Due Process Clause applies to all ‘persons’

within the United States, including aliens, whether their

presence here is lawful, unlawful, temporary, or

permanent.” Id., 121 S.Ct. at 2500.

After an extended discussion of the serious constitutional

problems of permitting the indefinite detention of legal

permanent residents as opposed to unadmitted aliens, the

Court in Zadvydas saved section 1231(a)(6) from possible

unconstitutionality in the context of a resident alien by

limiting the post-removal-period detention to a length of

time reasonably necessary to bring about the actual

removal of the resident alien. Id. at 694-99, 121 S.Ct. 2501-

03. The Court then recognized six months as a

presumptively reasonable time of post-removal-period

detention for resident aliens, though the time may be

extended if there is a significant likelihood of removal in the

20

foreseeable future. Furthermore, a release may be made

subject to conditions a violation of which may justify a

return of the alien to custody. Id. at 699-702, 121 S.Ct.

2503-05.

(c) Courts of Appeals split post-Zadvydas

There is a division of opinion among the courts of appeals

as to whether Zadvydas limits only the government’s

authority to detain resident aliens or whether it applies to

all categories of aliens. Compare Borrero v. Aljets, 325 F.3d

1003, 1007 (8th Cir. 2003) (concluding “that Zadvydas’s

six-month presumption of reasonableness is inapplicable to

inadmissible aliens”), Benitez v. Wallis, 337 F.3d at 1301

(concluding that “[T]he government has the authority under

§ 1231(a)(6) to detain inadmissible aliens indefinitely and

Zadvydas’s six-month presumption of reasonableness is

inapplicable to inadmissible aliens.”), Rios v. INS, 324 F.3d

296, 297 (5th Cir. 2003) (concluding that Zadvydas

“distinguished the status of deportable aliens from that of

excludable aliens”), and Hoyte-Mesa v. Ashcroft, 272 F.3d

989, 991 (7th Cir. 2001), cert. denied, 537 U.S. 846, 123

S.Ct. 185 (2002) (concluding that an inadmissible alien’s

“continued detention does not violate due process”), with

Rosales-Garcia, 322 F.3d at 410-15 (applying the

reasonableness limitation that the Supreme Court read into

section 1231(a)(6) in Zadvydas to inadmissible aliens), and

Xi v. INS, 298 F.3d 832, 837-39 (9th Cir. 2002) (same); see

also Martinez Vazquez, 2003 WL 22244774, at *3. But

notwithstanding this conflict among the courts of appeals,

the Supreme Court has denied certiorari in cases

representing both viewpoints. See Benitez, 337 F.3d at

1295-96.

Inasmuch as the Supreme Court has not resolved the

issue we are constrained to reach a conclusion on the

question of whether in the light of Zadvydas the

government may detain an unadmitted alien indefinitely

under section 1231(a)(6) if it is unable to send the alien to

any other country. In this process we first will discuss why

Sierra remains an inadmissible alien and then examine

whether the reasonableness component, as read into

section 1231(a)(6) by the Supreme Court in Zadvydas,

21

applies to inadmissible aliens. See Benitez, 337 F.3d at

1296.

(d) Sierra is an unadmitted alien

Although Sierra has been present physically in the

United States for more than 20 years, the government never

formally has admitted him and inasmuch as he was

excludable when he arrived he is, as we explained above,

an inadmissible alien. See supra note 3 and accompanying

text. We reiterate that when Sierra arrived in the United

States as part of the Mariel boatlift he was stopped at the

border and paroled into this country. He was paroled

because Congress has recognized that it is often

appropriate to permit arriving aliens, such as Sierra, to

make a temporary, unofficial entry into the United States

pending the resolution of their applications. See Benitez,

337 F.3d at 1296; see also 8 U.S.C. § 1182(d)(5)(A)

(granting authority to Attorney General to parole an alien

seeking admission into the United States, but providing

that such parole does not constitute an admission of the

alien). But the Supreme Court has rejected claims that the

parole or detention of an unadmitted alien has any effect on

the alien’s status under the law. See Leng May Ma v.

Barber, 357 U.S. 185, 78 S.Ct. 1072 (1958).23 Because

detention or parole does not alter an alien’s legal status it

is clear that Sierra is an inadmissible alien in a legal

position similar to that of any other alien who has not

gained entry and has been stopped at this country’s border.

See Benitez, 337 F.3d at 1296. Thus, legally, though Sierra

is physically in the United States, he has not been admitted

23. In Leng May Ma, the Court noted that “[f]or over a half century this

Court has held that the detention of an alien in custody pending

determination of his admissibility does not legally constitute an entry

though the alien is physically within the United States.” 357 U.S. at 188,

78 S.Ct. at 1074. Likewise, the Court explained that “[t]he parole of

aliens seeking admission is simply a device through which needless

confinement is avoided while administrative proceedings are conducted.

It was never intended to affect an alien’s status . . . .” Id. at 190, 78

S.Ct. at 1075; see also Mezei, 345 U.S. at 215, 73 S.Ct. at 631 (alien

permitted to enter pending decision on admissibility “is treated as if

stopped at the border”).

22

to this country. In short, he is both inadmissible and

unadmitted.

Any discussion of Sierra’s rights in the immigration

context also must recognize the fundamental difference in

the legal status of (1) unadmitted aliens such as Sierra and

(2) resident aliens who have effected “entry” into the United

States, whether illegally or legally. See id. Zadvydas

recognized this critical distinction which has been a

hallmark of immigration law for more than a hundred

years. Id. For example, in Leng May Ma the Supreme Court

emphasized that “our immigration laws have long made a

distinction between those aliens who have come to our

shores seeking admission . . . and those who are within the

United States after an entry, irrespective of its legality.” 357

U.S. at 187, 78 S.Ct. at 1073. The Court continued that

“[i]n the latter instance the Court has recognized additional

rights and privileges not extended to those in the former

category who are merely ‘on the threshold of initial entry.’ ”

Id. (quoting Mezei, 345 U.S. at 212, 73 S.Ct. at 629).24

(e) Zadvydas’s temporal limitation on detention does not

apply to Sierra

Although Sierra does not argue that he has a

constitutional right precluding his continued detention, he

does argue that he has a statutory right under section

1231(a)(6), post-Zadvydas, prohibiting indefinite detention.25

See Br. of appellant at 17. We reiterate that there is a split

of opinion among the courts of appeals regarding the

breadth of Zadvydas’s holding. The Courts of Appeals for

the Sixth and Ninth Circuits have held that Zadvydas

24. The Court further has explained that aliens seeking admission, such

as Sierra, have no constitutional rights regarding their applications for

admission. See Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329

(1982) (“[A]n alien seeking initial admission to the United States requests

a privilege and has no constitutional rights regarding his application, for

the power to admit or exclude aliens is a sovereign prerogative . . . .

[H]owever, once an alien gains admission to our country and begins to

develop the ties that go with permanent residence his constitutional

status changes accordingly.”) (internal citations omitted).

25. The government does not contend that repatriation by Cuba of Sierra

is reasonably foreseeable.

23

applies to all aliens regardless of their legal status. See

Rosales-Garcia, 322 F.3d at 405-06; Xi, 298 F.3d at 835-

36. However, the Courts of Appeals for the Fifth, Seventh,

Eighth, and Eleventh Circuits have concluded that

Zadvydas does not affect the government’s long-standing

authority to detain indefinitely unadmitted aliens. See

Benitez, 337 F.3d at 1298-1301.26

The Courts of Appeals for the Eighth and Eleventh

Circuits have addressed in some detail the issue of whether

the Zadvydas Court’s construction of section 1231(a)(6) as

containing a “reasonableness” component must apply

categorically to all aliens, regardless of the aliens’ legal

status. Borrero, 325 F.3d at 1005-07; Benitez, 337 F.3d at

1298-1301. Both courts applied Zadvydas as limiting the

detention period of only those aliens whose continued

confinement raises serious constitutional doubt and both

courts expressly rejected the argument that the same

statutory construction of section 1231(a)(6) must apply

categorically to all future cases whether or not their

circumstances raise the same constitutional questions.

These courts thoroughly have set forth reasons which

convince us to reject Sierra’s argument about how section

1231(a)(6) must be read post-Zadvydas.

First, in Borrero the court explained that Zadvydas

limited “the detention only of those aliens whose detention

raises serious constitutional doubt — admitted aliens.”

Borrero, 325 F.3d at 1007. Second, it emphasized that

“Zadvydas itself does not mandate uniform application of

§ 1231(a)(6) to all aliens.” Id. The court reached this

conclusion based, in part, on the Supreme Court’s notation

that “ ‘terrorism or other special circumstances’ may justify

greater deference to Congress and the Executive.” Id.

(quoting Zadvydas, 533 U.S. at 696, 121 S.Ct. at 2502).

Third, the court of appeals stressed how Zadvydas

“expressly distinguished Mezei on the grounds that Mezei

26. Various district courts have come to the same conclusion. See, e.g.,

Gonzalez v. Ashcroft, No. 03-2290 (JLL), ___ F. Supp. 2d ___, 2003 WL

22012599 (D.N.J. Aug. 26, 2003); Napoles v. INS, No. 3:02CV2116

(PCD), ___ F. Supp. 2d ___, 2003 WL 21999003 (D. Conn. July 22,

2003).

24

had not made an entry into the United States.” Borrero, 325

F.3d at 1007. Based on these reasons, the court concluded

that “Zadvydas’s six-month presumption of reasonableness

is inapplicable to inadmissible aliens.” Id.

In Benitez the court of appeals stated that it found the

Borrero court’s reasoning persuasive and therefore adopted

it. See Benitez, 337 F.3d at 1299. In addition, the Benitez

court set forth several other reasons for reaching its

conclusion. First, according to Benitez “Zadvydas reads like

an as-applied constitutional challenge where the Supreme

Court repeatedly stated that its holding would not

necessarily apply to other situations.” Id. Because

Zadvydas was qualified in so many respects and reads like

an as-applied decision, the court of appeals concluded that

the Supreme Court left the law and the statutory scheme

intact with respect to inadmissible aliens who never have

been admitted into the United States. Id.

Second, the court of appeals in Benitez, adopting the

reasoning of the dissent in Xi, stated that it takes “the

Supreme Court at its word: while indefinite detention raises

serious constitutional questions in the case of aliens who

have been admitted to the United States, ‘[a]liens who have

not yet gained initial admission to this country would

present a very different question.’ ” Id. (quoting Xi, 298 F.3d

at 840 (Rymer, J., dissenting) (quoting Zadvydas, 533 U.S.

at 682, 121 S.Ct. at 2495)). In Zadvydas the Supreme

Court expressly declined to overrule Mezei.27 Zadvydas, 533

27. Notwithstanding Zadvydas, Mezei plainly remains good law. See

Hoyte-Mesa, 272 F.3d at 991. As the dissent in Rosales-Garcia reminded,

the

Supreme Court has recently and emphatically instructed us that we

should leave the overruling of Supreme Court precedents to that

Court, even if we believe, or divine, that the Court should, or will,

overrule them. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct.

1997, 2017 (1997). No matter how much the court may disagree

with the distinction between excludable and deportable aliens, it

simply cannot be disputed that the controlling Supreme Court

precedent makes that distinction and holds that excludable aliens

do not have a constitutional right to be permitted to remain in the

United States at liberty if their removal cannot be seasonably

obtained.

322 F.3d at 418 (Boggs, J., dissenting).

25

U.S. at 693, 121 S.Ct. at 2500. The court of appeals in

Benitez also rejected the argument that Zadvydas leaves

courts with little choice but to apply section 1231(a)(6)

uniformly to all aliens.28 337 F.3d at 1299. Quoting Judge

28. Sierra relies on three cases to support his position that once the

Supreme Court interpreted section 1231(a)(6), that interpretation applies

to all immigrants: Rosales-Garcia and Xi, both of which held that

Zadvydas’s holding applies to excludable/inadmissible aliens, and

Chmakov v. Blackman, 266 F.3d 210, 214-15 (3d Cir. 2001), in which we

confronted the question of whether the Supreme Court’s determination

in St. Cyr that IIRIRA did not revoke federal habeas jurisdiction for aliens

with no other avenue of review applied equally to aliens who had other

review available. We do not find these cases to be persuasive in the

context here. To start with we are satisfied that the reasoning in Rosales-

Garcia and Xi is not as persuasive as that in Benitez and Borrero. With

respect to Chmakov, Sierra suggests that in that case “this Court held

that statutory interpretations based on the doctrine of Constitutional

avoidance, like Zadvydas, apply in all applications of the statute.” See

Reply Br. of appellant at 5. The court in Chavez-Rivas explained why

Chmakov does not stand for this proposition. “It appears . . . that

Chmakov was based, not on the view of the avoidance canon that

[petitioner] argues, but rather on the common-law notion that statutes

repealing jurisdiction are not favored.” 207 F. Supp. 2d at 334. As the

court in Chavez-Rivas further explained,

[n]or does some of the broad-sweeping language of Chmakov point to

a contrary conclusion . . . . This language . . . is part of the court’s

analysis of whether or not IIRIRA ‘clearly’ withdraws habeas

jurisdiction. The INS had claimed that the very language in IIRIRA

that the Supreme Court found insufficiently clear in St. Cyr could

nonetheless be clear enough to withdraw habeas jurisdiction for

Chmakov. The Chmakov court, in rejecting that argument, simply

concluded that what the Supreme Court had already found unclear

could not magically become clear. The reference to the ‘background

or pedigree of the petitioner’ likely is meant only to emphasize the

fact that the standard for statutory clarity is the same regardless of

whether the clear statement rule is supplied by the avoidance canon

or by common law principles.

Id. at 334-35 (internal citation omitted).

The ACLU cites two cases in an attempt to support its argument that

a Supreme Court interpretation based on the avoidance canon

necessarily binds all subsequent interpretations of the statute, Food

Chemical News v. Young, 900 F.2d 328, 332-33 (D.C. Cir. 1990), and

Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929, 936 n.36 (D.C. Cir.

26

Rymer’s dissent in Xi, Benitez stated that, “[w]e do have a

choice because the Court’s interpretation was discrete as to

admitted aliens” and “[i]t was driven by the need to avoid

constitutional problems that pertain to those who are

admitted—but that do not pertain to those who are not

admitted.” Id. (citation omitted). The court further agreed

with Judge Rymer that “[t]he result is a nuanced

interpretation of § 1231(a)(6) that keeps it from being

applied unconstitutionally but otherwise leaves it alone.

When a statute has different applications, it is not

necessary to say that it is categorically infirm; it is only the

constitutionally problematic aspects which are subject to

the construction that avoids the problem.” Id. (citation

omitted).

Third, as the Benitez court explained, the ability to

exclude aliens from this country at its borders is a duty

entrusted to the Executive Branch so that it may protect

the citizens and residents of this country from all manner

of nameless dangers. See id. at 1300. In Zadvydas, the

Supreme Court emphasized that the cases before it did not

require it to consider the political branches’ authority to

control entry into the United States and therefore the court

was not leaving an “unprotected spot in the Nation’s

armor.” Zadvydas, 533 U.S. at 695-96, 121 S.Ct. at 2502

(citation omitted). “Creating a right to parole for unadmitted

aliens after six months would create an unprotected spot in

this country’s defense of its borders.” Benitez, 337 F.3d at

1300. For example, the government may not be able to

determine what potential dangers a particular unadmitted

1995). However, as the court in Chavez Rivas explained, these cases do

not support the ACLU’s argument. “Food Chemical News . . . never even

mentions the avoidance canon. Instead, it seems to conclude that the

Supreme Court would have reached the same result based on ordinary

principles of statutory interpretation, such that the existence or not of a

constitutional issue in later cases would not matter . . . . Thus, when the

D.C. Circuit subsequently relied on Food Chemical News to apply the

Supreme Court’s narrow definition [in Sofamor Danek], it had no

occasion to decide whether the Supreme Court’s avoidance rationale

required that interpretation.” 207 F. Supp. 2d at 335 (internal citations

omitted).

27

alien might pose. See id. “In such a situation, the

government historically has enjoyed broad latitude in

detaining those aliens until their security threat can be

fully ascertained. Removing this important tool from the

government’s arsenal undoubtedly would subject the

residents of this nation to greater security risks.” Id.

Fourth, the court of appeals in Benitez reiterated that

“Congress has given the Attorney General the discretion to

detain or parole persons who are not admitted into this

country and whose own country will not take them back.”

Id. In light of the fact that the Supreme Court in Zadvydas

went to such great lengths to distinguish inadmissible

aliens from aliens who have gained entry, courts should not

fetter that discretion by presumptively requiring their

release into this country after six months. Id.

Fifth and finally, in Benitez the court of appeals stated

that “reading § 1231(a)(6) as creating a right to parole into

this country after six months for inadmissible aliens is

undoubtedly a drastic expansion of the rights of

inadmissible aliens, who have never gained entry into this

country.” Id. Moreover, as the Benitez court indicated, “[i]t

is without question that Congress had a contrary intention

when enacting IIRIRA: it sought to tighten immigration

regulations. As the very language of IIRIRA mandates,

courts are not to construe IIRIRA to ‘create any substantive

or procedural right or benefit that is legally enforceable.’ 8

U.S.C. § 1231(h).” Benitez, 337 F.3d at 1300. The court

went on to indicate that “[i]t is also clear that Congress

intended the use of the term ‘inadmissibility’ to subject

removable aliens to the same potential for indefinite

detention—if they could not be removed after the

commission of a serious crime—to which excludable aliens

had been subject both statutorily and constitutionally for

years.” Id.

The Benitez court further explained that inadmissible

aliens who never have been admitted into the United States

never truly have resided in this country free from restraint.

See id. at 1301. “Rather, Congress has bestowed on them

the luxury of parole while their immigration applications

and status are finalized. To pervert this gift from Congress

into a right after six months not only would distort

28

Congress’s intent and potentially create grave security

concerns for the people of the United States, but also would

create needless difficulties in how the INS processes aliens.”

Id.

We have considered the precedents on both sides of the

Zadvydas issue and have made an independent analysis of

the parties’ arguments with respect to the case’s

application. From these examinations we have concluded

that inasmuch as Zadvydas’s holding is qualified in so

many regards, and there is no need to construe section

1231(a)(6) to avoid constitutional due process concerns for

inadmissible aliens who never have been admitted into the

United States, the Attorney General has the authority

under section 1231(a)(6) to detain Sierra indefinitely and

Zadvydas’s six-month presumption of reasonableness is

not applicable to him. Accordingly, the district court

properly denied his petition for a writ of habeas corpus.

III. CONCLUSION

In summary, we agree with the courts of appeals that

have held section 1231(a)(6) is applicable in cases in

procedural postures similar to this case but we hold that

Sierra is not entitled to relief under that section as it

permits his indefinite detention. Accordingly, we will affirm

the orders of May 17, 2002, and June 18, 2002, denying

his petition for a writ of habeas corpus.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit