Ngo v. INS ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    9-24-1999
    Ngo v. INS
    Precedential or Non-Precedential:
    Docket 97-1419
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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/264
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    Filed September 24, 1999
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 97-1419
    CHI THON NGO a/k/a DAVID LAM,
    Appellant
    v.
    IMMIGRATION AND NATURALIZATION SERVICE
    APPEAL FROM THE DENIAL OF WRIT OF HABEAS
    CORPUS BY THE EASTERN DISTRICT OF PENNSYLVANIA
    (D.C. No. 96-cv-7755)
    District Judge: Honorable Robert F. Kelly
    Argued June 23, 1999
    Before: ROTH, WEIS and COWEN, Circuit Judges
    (Filed September 24, 1999)
    Steven A. Morley, Esquire (ARGUED)
    Bagia & Morley
    The Bourse, Suite 592
    111 S. Independence Mall East
    Philadelphia, PA 19106
    Attorney for Appellant
    Virginia R. Powel, Esquire
    Office of the United States Attorney
    615 Chestnut Street, Suite 1250
    Philadelphia, PA 19106
    David W. Ogden, Esquire
    Acting Assistant Attorney General,
    Civil Division
    David M. McConnell, Esquire
    Assistant Director
    Papu Sandhu, Esquire (ARGUED)
    Emily A. Radford, Esquire
    Office of Immigration Litigation
    Civil Division, Department of Justice
    P.O. Box 878, Ben Franklin Station
    Washington, D.C. 20044
    Attorneys for Appellee
    OPINION OF THE COURT
    WEIS, Circuit Judge.
    The issue in this appeal is whether aliens who have
    committed serious crimes in this country may be detained
    in custody for prolonged periods when the country of origin
    refuses to allow the individual's return. We conclude that
    such detention is permitted by the relevant statutes, and is
    constitutional if the government provides individualized
    periodic review of the alien's eligibility for release on parole.
    Because petitioner did not receive the necessary rigorous
    review, we will grant a writ of habeas corpus subject to the
    right of the Immigration and Naturalization Service to
    promptly institute appropriate administrative action.
    Petitioner is a native of Vietnam who was paroled 1 into
    _________________________________________________________________
    1. The Attorney General has the discretion to temporarily "parole" alien
    refugees into the United States. 8 U.S.C. S 1182(d)(5)(A), (B) (1994). The
    term "parole" is nowhere defined. See 5 Charles Gordon et al.,
    Immigration Law and Procedure S 62.01[1], at 62-2 (1999). In the context
    of an alien's initial entry, this amounts to permission by the Attorney
    General for ingress into the country but is not a formal "admission." 8
    U.S.C. S 1182(d)(5)(A) (1994). When the Attorney General concludes that
    the purposes of this immigration parole have been served, she may order
    the alien to "return or be returned to . . . custody." Id. When parole is
    revoked, the alien reverts to the status of an applicant for admission,
    2
    the United States as a refugee in 1982. He was arrested in
    1988 for possession of a firearm and in 1989 for attempted
    robbery. He was convicted in state court and received
    concurrent sentences of one year each for the firearm
    offense and an accompanying bail-jumping charge, and two
    to four years for the attempted robbery.
    In March 1995, petitioner was subjected to exclusion
    proceedings by the INS for lack of a valid immigrant visa,
    8 U.S.C. S 1182(a)(7)(A)(i)(I) (1994); conviction of a crime
    involving moral turpitude, id. S 1182(a)(2)(A)(i)(I); and
    conviction of two or more crimes for which the aggregate
    sentences actually imposed were five years or more, id.
    S 1182(a)(2)(B). After a hearing before an immigration judge,
    petitioner was ordered excluded and deported. The order
    became final on July 6, 1995.
    After petitioner was paroled by state authorities, he was
    taken into custody by the INS and has been detained since
    that time. The record does not disclose exactly when
    petitioner came into INS custody, but it appears to have
    been around the middle of 1995. The detention was served
    in county jails in Pennsylvania until petitioner was
    transferred to the INS center in New Orleans, Louisiana,
    where he is presently confined. The INS has attempted to
    return petitioner to Vietnam, but that country has refused
    to accept him.
    Petitioner sought habeas corpus relief in December 1995,
    but his request was denied by the District Court, which
    cited the INS' "diligent effort[s]" to return him to Vietnam.
    No appeal was taken. Petitioner subsequently filed the
    present petition in November 1996, contending that
    because Vietnam will not take him back, he is subject to
    virtually indefinite detention in violation of due process.
    _________________________________________________________________
    whose admissibility is determined in exclusion or the more recent
    removal proceedings. 8 U.S.C. S 1226 (1994); id. S 1229a (Supp. II 1996);
    5 Gordon et al., supra, S 62.01[4], at 62-12. "Parole" in this sense is
    different from the conventional sense of parole from a term of
    incarceration. As will be seen, the term "parole" has a third usage
    describing the release from custody of aggravated felons who are being
    held in administrative detention.
    3
    Petitioner also contended that he should be eligible for
    release on parole. His submissions to the District Court
    included letters from individuals attesting to his reformed
    character, and a statement that while incarcerated, he had
    obtained a GED, learned skills, and attended classes on
    behavior modification and theology. The District Court
    denied relief to petitioner without an evidentiary hearing.
    Petitioner had also applied to the Attorney General for
    release on parole. An Assistant District Director for
    Detention and Deportation denied the request in a 1996
    letter, stating that petitioner represented a high risk of
    flight and a threat to the safety of the community based on
    his record of convictions and bail jumping. Some months
    later, another Assistant District Director, in an affidavit,
    echoed the previous letter. Since then, petitioner has been
    denied discretionary parole in at least three letters that
    essentially parrot the previous refusals.
    On appeal, we appointed counsel for petitioner, who
    previously had been unrepresented. In this Court,
    petitioner contends that confining him on an indefinite and
    possibly permanent basis is a denial of his substantive and
    procedural due process rights. Moreover, he asserts that
    denial of parole without a determination of his present
    dangerousness and risk of flight is arbitrary and capricious,
    particularly in the absence of detailed regulations governing
    review of such applications.
    The District Court had jurisdiction over the petition for
    habeas corpus under 28 U.S.C. S 2241. Sandoval v. Reno,
    
    166 F.3d 225
    , 237-38 (3d Cir. 1999); see also DeSousa v.
    Reno, ___ F.3d ___, No. 99-1115, 
    1999 WL 643171
    , at *5
    (3d Cir. Aug. 25, 1999). We have appellate jurisdiction
    under 28 U.S.C. S 1291, and review the dismissal of an
    application for habeas corpus de novo. Yang v. Maugans,
    
    68 F.3d 1540
    , 1546 (3d Cir. 1995).
    I.
    Petitioner does not contend that the Attorney General
    lacks authority to remove him from the United States, but
    instead, disputes whether she may keep him in custody.
    The first issue before us is whether, after afinal order of
    4
    exclusion is issued, she has the statutory authority to
    detain aliens who have committed specific crimes. We
    conclude that the Attorney General does have such power
    under both the statute in force at the time of the
    petitioner's initial detention, and the version as amended in
    1996.
    At the time petitioner was first detained, the Immigration
    and Naturalization Act required the Attorney General to
    "take into custody any alien convicted of an aggravated
    felony upon release of the alien" from incarceration,
    pending a determination that he was excludable. 8 U.S.C.
    S 1226(e)(1) (1994); see also 8 U.S.C.S 1182(d)(5)(A) (1994)
    (giving the Attorney General the right to return into custody
    a parolee who had been allowed into the country when, in
    her opinion, "the purposes of such parole shall .. . have
    been served"). Under that version of the Act, Congress
    required that an excluded alien be "immediately deported,"
    unless the Attorney General concluded that, "in an
    individual case, . . . immediate deportation is not
    practicable or proper." 8 U.S.C. S 1227(a)(1) (1994).
    In cases where the country of origin would refuse or
    unduly delay the alien's return, the Attorney General could
    release the detainee from custody, but only where review
    established that he would not pose a danger to the safety
    of other persons or property. 8 U.S.C. SS 1226(e)(2), (3),
    1253(g) (1994); see also Alvarez-Mendez v. Stock, 
    941 F.2d 956
    , 960-62 (9th Cir. 1991) (under section 1226(e), once
    alien is taken into custody, detention must continue even
    after a final order of exclusion is issued).
    Although the version of the Act applicable when
    petitioner was first detained does not expressly grant
    authority to detain excluded aliens, the overall structure of
    the statute's provisions makes it clear that Congress
    intended this result. In Barrera-Echavarria v. Rison, 
    44 F.3d 1441
     (9th Cir. 1995) (en banc), the Court of Appeals
    for the Ninth Circuit examined the interplay of the
    Immigration Act's various sections and stated that"it seems
    difficult not to conclude that the statutory scheme
    implicitly authorizes prolonged detention." 
    Id.
     at 1446
    5
    (discussing 8 U.S.C. SS 1182(d)(5)(A), 1227(a)(1) (1994)).
    Nearly every Court of Appeals to reach the issue has agreed.2
    Even though the Immigration Act has never been a model
    of clarity, we agree with the courts that have construed its
    language and structure to permit the prolonged detention of
    excludable aggravated felons. To categorically "requir[e] that
    excludable aliens be released into American society when
    neither their countries of origin nor any third country will
    admit them," 
    id. at 1448
    , will "ultimately result in our
    losing control over our borders." Jean v. Nelson, 
    727 F.2d 957
    , 975 (11th Cir. 1984) (en banc), aff'd , 
    472 U.S. 846
    (1985); see also Guzman, 130 F.3d at 66 ("Congress
    intended to grant the Attorney General the authority to
    detain excludable aliens indefinitely . . . ."); Barrera-
    Echavarria, 
    44 F.3d at 1448
     (in an area with"sensitive
    foreign policy implications," the Attorney General has the
    authority to detain excluded aliens).
    In 1996, after petitioner had been placed in detention,
    Congress made sweeping changes to the Immigration Act.
    See Antiterrorism and Effective Death Penalty Act of 1996,
    Pub. L. No. 104-132, 
    110 Stat. 1214
     ("AEDPA"); Illegal
    Immigration Reform and Immigrant Responsibility Act of
    1996, Pub. L. No. 104-208, 
    110 Stat. 3009
    -546 ("IIRIRA").3
    Under the IIRIRA, what was once implicit is now express --
    the Immigration Act now specifically provides that the
    Attorney General shall detain an "inadmissible" alien for a
    _________________________________________________________________
    2. See Guzman v. Tippy, 
    130 F.3d 64
    , 65 (2d Cir. 1997) ("authorization
    is implicit in the statutory language"); Gisbert v. U.S. Attorney General,
    
    988 F.2d 1437
    , 1446, amended, 
    997 F.2d 1122
     (5th Cir. 1993) (section
    1226(e) "appears to assume" the power to detain); Fernandez-Roque v.
    Smith, 
    734 F.2d 576
    , 582 (11th Cir. 1984) (appearing to assume there
    was authority to detain); Palma v. Verdeyen, 
    676 F.2d 100
    , 103-04 (4th
    Cir. 1982) (Congress "implicitly authorized" indefinite detention). Cf.
    Alvarez-Mendez, 
    941 F.2d at 962
     (concluding that the statute explicitly
    authorizes continued detention). But see Rodriguez-Fernandez v.
    Wilkinson, 
    654 F.2d 1382
    , 1385 (10th Cir. 1981) (statute is vague).
    3. Immigration law is sufficiently labyrinthian without jumbled cross-
    references to the sections of the Immigration Act, IIRIRA, AEDPA, and
    the United States Code. When referring to statutory provisions, we
    therefore cite only to the United States Code wherever possible.
    6
    90-day period pending "removal" from the country,4 and
    may continue to detain him until deportation if he has been
    found guilty of designated crimes. 8 U.S.C. S 1231(a) (Supp.
    II 1996).
    Many provisions of the amended statute, however, do not
    apply to an alien "who is in exclusion . . . proceedings
    before [this subtitle's] effective date" of April 1, 1997. 8
    U.S.C. S 1101 note (reprinting IIRIRAS 309(c)(1)). It is
    arguable that since a final order of exclusion had been
    entered against petitioner before the effective date, he was
    no longer "in exclusion proceedings," and therefore, that
    the amended Act does not govern his situation. See
    Zadvydas v. Underdown, ___ F.3d ___, No. 97-31345, 
    1999 WL 604311
    , at *4 & n.7 (5th Cir. Aug. 11, 1999) (noting the
    confusion in the statute, and concluding that the IIRIRA
    applies to aliens who have received a final exclusion order).
    Because both the former and present statutes grant the
    _________________________________________________________________
    4. Among the changes brought by the IIRIRA was a shift in basic
    immigration terminology. Previously, "excludable" aliens were those who
    were ineligible for admission or entry into the United States, even though
    in reality they were often granted "parole," which allowed them to come
    into the country. 8 U.S.C. S 1182 (1994); Alvarez-Mendez, 
    941 F.2d at
    961 n.4. Excludable aliens could have their "parole" revoked, with
    exclusion proceedings brought to deport them. 8 U.S.C. SS 1182(d)(5)(A),
    1226-1227 (1994). "Deportation" proceedings, in contrast, were brought
    against those aliens who had gained admission into the country. 
    Id.
    S 1252 (1994); Alvarez-Mendez, 
    941 F.2d at
    961 n.4. See generally 5
    Gordon et al., supra, S 65.02[1].
    As amended, the Immigration Act refers to "inadmissible" aliens in the
    place of "excludable" aliens. Although there are still separate grounds of
    "inadmissibility" and "deportability," the distinction now turns on
    whether an alien has been "admitted" to the United States, rather than
    on whether the alien has gained "entry." 5 Gordon et al., supra,
    S 63.01[3], at 63-7 & n.17 (citing 8 U.S.C. S 1101(a)(13)); id. S
    65.02[2],
    at 65-7 to 65-11. Also, the former distinction between "exclusion" and
    "deportation" proceedings has been dropped in favor of one procedure,
    called "removal" proceedings. 8 U.S.C. S 1229a (Supp. II 1996). Although
    certain inadmissible aliens are subject to an expedited removal
    procedure, id. SS 1225(b), 1228, the amended Act now uses "removal"
    proceedings as the general procedure for both inadmissible and
    deportable aliens. Id. S 1229a(a)(2), (3).
    7
    Attorney General authority to detain, we need not and do
    not decide which version currently applies.
    Similarly, both versions provide that the Attorney General
    may release a criminal alien from detention on parole
    subject to regulations. 8 U.S.C. S 1231(a)(3), (6) (Supp. II
    1996); 8 U.S.C. S 1226(e)(2), (3) (1994). Finally -- as will
    later appear -- the INS' parole review rules apply in either
    case.5
    II.
    Serious conflicts between policy and constitutional
    concerns are presented by criminal aliens whose countries
    of origin refuse to repatriate them. Congress' measures to
    insulate the community from potentially dangerous
    criminal aliens via lengthy detention have the potential to
    violate due process. Yet alternatives to incarceration have
    problems as well -- one Justice Department report
    concluded that 90 percent of aliens released from custody
    abscond. See Department of Justice, Immigration and
    Naturalization Service, Executive Office for Immigration
    Review, Inspection and Expedited Removal of Aliens;
    Detention and Removal of Aliens; Conduct of Removal
    Proceedings; Asylum Procedures, 
    62 Fed. Reg. 10,312
    ,
    10,323 (1997).
    The influx into this country of Cuban criminals from Port
    Mariel in 1980 presents a concrete example of this conflict.
    Many of them were hardened convicts who had been
    released from their Cuban jails and included in the boat-
    lift. The Cuban government has refused to permit their
    return. Consequently, many of the Mariel Cubans--
    approximately 1,750 -- still remain in INS detention
    because of their danger to the community. In addition to
    this group, the governments of Vietnam, Laos and
    _________________________________________________________________
    5. 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. In such a setting, rambling discussions on the
    possible application of the various versions of the statutes without a
    necessity to do so can create troubling precedents or dicta.
    8
    Cambodia have refused to repatriate citizens who have been
    ordered to be deported from the United States. The number
    of such aliens, including a number of Cubans who were not
    part of the Mariel boat-lift, exceeds 1,800.
    The power to exclude aliens is a "fundamental sovereign
    attribute exercised by the Government's political
    departments largely immune from judicial control."
    Shaughnessy v. United States ex rel. Mezei, 
    345 U.S. 206
    ,
    210 (1953). "For reasons long recognized as valid, the
    responsibility for regulating the relationship between the
    United States and our alien visitors has been committed to
    the political branches of the Federal Government." Mathews
    v. Diaz, 
    426 U.S. 67
    , 81 (1976). It is a truism that "[i]n the
    exercise of its broad power over naturalization and
    immigration, Congress regularly makes rules that would be
    unacceptable if applied to citizens." 
    Id. at 79-80
    . An alien
    who is "on the threshold of initial entry" stands on a footing
    different from those who have "passed through our gates"
    -- " ``Whatever the procedure authorized by Congress is, it
    is due process as far as an alien denied entry is
    concerned.' " Mezei, 
    345 U.S. at 212
     (quoting United States
    ex rel. Knauff v. Shaughnessy, 
    338 U.S. 537
    , 544 (1950)).
    The case before us does not question the validity of the
    procedures used to admit or exclude petitioner, but it is
    against that backdrop that we consider whether the
    indeterminable nature of his detention pending ultimate
    deportation rises to a constitutional violation. Even an
    excludable alien is a "person" for purposes of the Fifth
    Amendment and is thus entitled to substantive due
    process. Wong Wing v. United States, 
    163 U.S. 228
    , 238
    (1896) ("persons within the territory of the United States
    . . . and . . . even aliens . . . [may not] . . . be deprived of
    life, liberty or property without due process of law"); see
    also Lynch v. Cannatella, 
    810 F.2d 1363
    , 1366 (5th Cir.
    1987) (excludable alien may not be subjected to brutality by
    government officials). In addition, procedural due process is
    available to aliens in some circumstances. See Landon v.
    Plasencia, 
    459 U.S. 21
    , 32-33 (1982) ("a continuously
    present resident alien is entitled to a fair hearing when
    threatened with deportation . . . [and] has a right to due
    process" before being required to leave the country).
    9
    In Mezei, the Attorney General detained an excludable
    individual for more than 21 months at Ellis Island because
    he posed a security threat. Other nations had refused to
    take him into their country. The Supreme Court concluded
    that no constitutional violation had occurred. 
    345 U.S. at 215-16
    . Mezei has been much criticized, 6 but has remained
    a governing precedent and has been applied, with some
    modifications, in most of the leading cases.
    In Barrera-Echavarria v. Rison, a case involving a Mariel
    Cuban, the Court of Appeals for the Ninth Circuit
    concluded that "applicable Supreme Court precedent
    squarely precludes a conclusion that [excludable aliens]
    have a constitutional right to be free from detention, even
    for an extended time." 
    44 F.3d at 1449
    . However, the Court
    qualified its holding, recognizing that the case did not
    involve "the constitutionality of ``indefinite' or ``permanent'
    detention with no prospect of release." Id . at 1450. Barrera-
    Echavarria also pointed to the existence of detailed
    regulations providing for periodic review of the alien's
    eligibility for parole. 
    Id.
     (discussing 8 C.F.R. SS 212.12,
    212.13). Thus, the custody was not indefinite, but was
    instead "a series of one-year periods of detention followed
    by an opportunity to plead [the] case anew." 
    Id.
     In those
    circumstances, the Court concluded that there was no
    constitutional violation. 
    Id.
    Most appellate courts have reached a similar result, with
    some variation in their reasoning. In Palma v. Verdeyen, the
    Court of Appeals for the Fourth Circuit refused to hold that
    the detention of a Mariel Cuban violated due process,
    saying that "the fifth and sixth amendments do not require
    a restrictive interpretation of the Immigration Act that
    would either circumscribe the right of the United States to
    deny admission to aliens or limit the congressional power
    granted in Article I S 8 . . . ." 
    676 F.2d at 104
    ; see also
    Guzman, 
    130 F.3d at 66
     (excluded alien's rights determined
    _________________________________________________________________
    6. See, e.g., Jean, 
    472 U.S. at
    876 n.9 (Marshall, J., dissenting)
    (listing
    commentaries); Lisa C. Solbakken, Note, The Anti-Terrorism And Effective
    Death Penalty Act: Anti-Immigration Legislation Veiled in an Anti-
    Terrorism
    Pretext, 
    63 Brook. L. Rev. 1381
    , 1400 n.100 (1997) (listing
    commentaries).
    10
    by procedures established by Congress and not by the due
    process protections of the Fifth Amendment, and noting
    existence of regulations allowing parole); Gisbert, 
    988 F.2d at 1442-44
     ("continued INS detention of the petitioners is
    not punishment and does not constitute a violation of the
    aliens' rights to substantive due process," and noting the
    existence of regulations for a grant of parole); Fernandez-
    Roque, 
    734 F.2d at 582
    .
    The one appellate opinion fundamentally differing in its
    approach is Rodriguez-Fernandez v. Wilkinson. There, the
    Court of Appeals for the Tenth Circuit observed that the
    prolonged detention at issue was "imprisonment under
    conditions as severe as we apply to our worst criminals."
    
    654 F.2d at 1385
    . Acknowledging the "entry fiction" that
    detention is only a continuation of exclusion, the Court
    construed the statute to require release so as to avoid the
    "serious constitutional questions" of indefinite detention. 
    Id. at 1386
    .
    It is significant, however, that the decision in Rodriguez-
    Fernandez was handed down before the promulgation of
    regulations providing parole review for Mariel Cubans. A
    number of Courts have looked to the existence of those
    procedures to turn back due process challenges. See
    Guzman, 
    130 F.3d at 66
    ; Barrera-Echavarria , 
    44 F.3d at 1450
    ; Palma, 
    676 F.2d at 104-05
    . Cf. Alvarez-Mendez, 
    941 F.2d at 962-63
     (not relying on existence of procedures in
    constitutional analysis); Gisbert, 
    988 F.2d at 1442-44
    (holding that denial of parole is not a constitutional
    violation, but noting that petitioners did not assert the
    government failed to follow the review procedures);
    Fernandez-Roque, 
    734 F.2d at 582
     (because petitioners had
    no liberty interest whatsoever, there was no need to look to
    Cuban review procedures).
    A post-IIRIRA case also cited the parole provisions. In
    Zadvydas v. Underdown, the Court of Appeals for the Fifth
    Circuit discussed the plight of a "stateless person" with a
    long criminal history who had been ordered deported. In
    that case, the petitioner was a resident alien rather than an
    excludable alien, as was the situation with the Mariel
    Cubans. The Court, looking to the IIRIRA, decided that
    once an order of deportation is final, no distinction exists
    11
    between the rights of resident aliens and those ordered
    removed as excludable. 
    1999 WL 604311
    , at *5, *11-*12. In
    that fashion, the Court confined the distinction created by
    the Mezei "entry fiction" to proceedings prior to a final order
    of exclusion or deportation. 
    Id.
     at *12-*13.
    The Zadvydas Court noted two justifications for detention
    -- the risk of flight and the threat of additional criminal
    activity. "[W]hile we must tolerate a certain risk of
    recidivism from our criminal citizens, we need not be
    similarly generous when it comes to those who have not
    achieved citizenship." Id. at *13. The Court held that
    detention was permissible "while good faith efforts to
    effectuate the alien's deportation continue and reasonable
    parole and periodic review procedures are in place." Id. at
    *14. Reasoning that the alien might ultimately find a
    country that would accept him, the Court concluded that
    the detention was permissible because rules permitting
    parole review were in existence. Id. at *4, *7, *14 (citing
    Gisbert, 
    988 F.2d at
    1443 n.11).
    To summarize, case law holds there is no constitutional
    impediment to the indefinite detention of an alien with a
    criminal record under a final order of exclusion,
    deportation, or removal if (1) there is a possibility of his
    eventual departure; (2) there are adequate and reasonable
    provisions for the grant of parole; and (3) detention is
    necessary to prevent a risk of flight or a threat to the
    community.
    To a large extent, these holdings are based on thefiction
    that "detention is not punishment," and the"entry" fiction
    that an excludable alien "stands at the border" even when
    he has been physically present within the country for years.
    Characterizing prolonged detention as anything other than
    punishment might be somewhat puzzling to petitioner, who
    remained in jail under the same conditions as before the
    state released him, although his status had technically
    changed from that of a state inmate to an INS "detainee."
    Similarly, an alien whose detention occurs in a maximum
    security federal prison may be forgiven for wondering when
    his punishment stopped and detention began. Rodriguez-
    Fernandez, 
    654 F.2d at 1385
    .
    12
    As Justice Jackson remarked, "[i]t overworks legal fiction
    to say that one is free in law when by the commonest of
    common sense he is bound." Mezei, 
    345 U.S. at 220
    (Jackson, J., dissenting). It is similarly unrealistic to believe
    that these INS detainees are not actually being"punished"
    in some sense for their past conduct.
    Nevertheless, the power of the government to detain
    aliens is well-established. Reno v. Flores, 
    507 U.S. 292
    ,
    305-06 (1993). Even citizens may be confined pretrial
    under certain circumstances. United States v. Salerno, 
    481 U.S. 739
    , 746-48 (1987). Indeed, a citizen may be
    committed indefinitely when his mental condition poses a
    danger of criminal violence to the community. Kansas v.
    Hendricks, 
    521 U.S. 346
    , 363 (1997); Addington v. Texas,
    
    441 U.S. 418
    , 426-27 (1979).
    We therefore hold that aliens with criminal records as
    specified in the Immigration Act may be detained for
    lengthy periods when removal is beyond the control of the
    INS, provided that appropriate provisions for parole are
    available. When detention is prolonged, special care must
    be exercised so that the confinement does not continue
    beyond the time when the original justifications for custody
    are no longer tenable. The fact that some aliens posed a
    risk of flight in the past does not mean they will forever fall
    into that category. Similarly, presenting danger to the
    community at one point by committing crime does not place
    them forever beyond redemption.
    Measures must be taken to assess the risk of flight and
    danger to the community on a current basis. The stakes are
    high and we emphasize that grudging and perfunctory
    review is not enough to satisfy the due process right to
    liberty, even for aliens.
    For example, the petitioner in this case was repeatedly
    denied parole by INS officials based on no more than a
    reading of his file that listed years-old convictions for
    firearm, attempted robbery, and bail jumping offenses. No
    inquiry was made to ascertain, for example, whether the
    bail jumping offense was the result of a lack of notice,
    misunderstanding, or an affirmative effort to avoid
    apprehension. The INS made no effort to determine if such
    13
    conduct was presently likely to be repeated or whether it
    could be discouraged by requiring appropriate surety.
    Through at least four denials of parole, the INS continued
    to cite to the petitioner's now nearly ten-year old
    convictions as justification to confine him.
    We do not suggest that these convictions are no longer
    relevant. Due process is not satisfied, however, by rubber-
    stamp denials based on temporally distant offenses. The
    process due even to deportable and excludable aliens
    requires an opportunity for an evaluation of the individual's
    current threat to the community and his risk offlight.
    It is extremely unlikely that the petitioner's detention will
    be permanent. Diplomatic efforts with Vietnam are
    underway, albeit at a speed approximating the flow of cold
    molasses. Although the progress is agonizingly slow, it
    nonetheless represents movement toward the petitioner's
    ultimate repatriation. He has, however, been detained in a
    prison setting for more than four years after being found by
    state authorities to be suitable for release into the
    community following his criminal convictions. To presume
    dangerousness to the community and risk of flight based
    solely on his past record does not satisfy due process.
    After oral argument on this case, the INS announced
    detailed Interim Rules for detainees such as petitioner, and
    its intention to promulgate regulations to the same effect.7
    These rules have some similarities to those available for the
    Mariel Cubans. The Interim Rules include (1) written notice
    to the alien thirty days prior to the custody review advising
    that he may present information supporting a release; (2)
    the right to representation by counsel or other individuals;
    (3) the opportunity for an annual personal interview; (4)
    written explanations for a custody decision; (5) the
    opportunity for review by INS headquarters; (6) reviews
    every six months; (7) a refusal to presume continued
    detention based on criminal history; and other provisions,
    as quoted in the Appendix attached to this opinion.
    _________________________________________________________________
    7. United States Department of Justice, Immigration and Naturalization
    Service, Memorandum from Michael A. Pearson, Executive Associate
    Commissioner, Office of Field Operations, Interim Changes and
    Instructions for Conduct of Post-Order Custody Reviews (Aug. 6, 1999).
    14
    We have reviewed these rules carefully and conclude that
    conscientiously applied, they provide reasonable assurance
    of fair consideration of a petitioner's application for parole
    pending removal. We are aware that in a similar case, a
    five-judge District Court in the Western District of
    Washington required that detainees receive a hearing before
    an immigration judge with a right of appeal to the Bureau
    of Immigration Appeals. Phan v. Reno, ___ F. Supp. 2d ___,
    Nos. C98-234Z, C99-177C, C99-185R, C99-341WD, C99-
    151L, 
    1999 WL 521980
    , at *7 (W.D. Wash. July 9, 1999).
    That Court noted its dissatisfaction with earlier INS review
    procedures, reciting criticism that "Directors simply relied
    on the aliens' past criminal history and the fact that they
    were facing removal from the United States, summarily
    concluding that the aliens posed such risks and denying
    them release." 
    Id.
     We agree that such superficial review is
    not satisfactory and does not afford due process.
    The Interim Rules, subsequently announced by the INS,
    appear on their face to satisfy Phan's objections. Among
    other things, the rules require an individualized analysis of
    the alien's eligibility for parole, present danger to society
    and willingness to comply with the removal order.
    Moreover, they do not result in placing additional cases on
    the already overloaded dockets of immigration judges.
    The Interim Rules apply to petitioner, regardless of
    whether one concludes that he is being detained under the
    former or present versions of the Immigration Act. Our
    reading of the Interim Rules suggests that they will
    encourage good faith review. So long as petitioner will
    receive searching periodic reviews, the prospect of indefinite
    detention without hope for parole will be eliminated. In
    these circumstances, due process will be satisfied.
    We do not intend to create a new legal fiction that allows
    for de facto indefinite detention based upon reviews that
    are comprehensive in theory but perfunctory in fact. Thus,
    if experience should show that our initial reaction to the
    Interim Rules or eventual permanent regulations was too
    sanguine, there will be time enough to consider the more
    extensive methods suggested by the Phan Court.
    The petitioner has not yet received the rigorous review of
    his eligibility for parole that due process requires.
    15
    Accordingly, the order of the District Court will be reversed
    and the case remanded with directions that the petition for
    a writ of habeas corpus be granted and the petitioner
    released unless within 30 days the INS begins the review
    process for petitioner under the Interim Rules set out in the
    Appendix to this opinion (or under permanent regulations
    that are at least as favorable to him). We neither express
    nor intimate any views as to whether petitioner should be
    released on parole as a result of review under the Interim
    Rules.
    16
    APPENDIX
    INTERIM PROCEDURES
    (1)    Pursuant to the provisions of 8 C.F.R. S 241.4, the
    District Director will continue to conduct a custody
    review of administratively final order removal cases
    before the ninety-day removal period mandated by
    S 241(a)(1) expires for aliens whose departure cannot
    be effected within the removal period.
    (2)    These procedures apply to any alien ordered removed
    who is inadmissible under S 212, removable under
    237(a)(1)(C), 237(a)(2), or 237(a)(4) 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. They cover aliens convicted of an aggravated
    felony offense who are subject to the provisions of old
    INA S 236(e)(1)-(3), and non-aggravated felon aliens
    with final orders of exclusion. Mariel Cubans are
    excluded from these procedures as parole reviews for
    them are governed by 8 C.F.R. S 212.12. The ninety-
    day review will be conducted pursuant to the
    instructions set out in the memoranda of February 3
    and April 30, 1999. District Directors may, in their
    discretion, interview the alien if they believe that an
    interview would facilitate the custody review.
    (3)    Following expiration of the ninety-day removal period,
    the next scheduled review provided by the District
    Director shall be nine months from the date of thefinal
    administrative order of removal or six months after the
    last review, whichever is later. Written notice shall be
    given to each alien at least 30 days prior to the date of
    the review. The notice will be provided either by
    personal service or certified mail/return receipt. The
    notice shall specify the factors to be considered and
    explain that the alien will be provided the opportunity
    to demonstrate by clear and convincing evidence that
    he is not a threat to the community and is likely to
    comply with the removal order.
    (4)    For the review discussed in paragraph 3 above, an
    interview is mandatory and the District Director's
    17
    preliminary decision will be subject to Headquarters
    review. Thereafter, custody reviews will be conducted
    every six months, alternating between District Director
    file reviews and a review that includes the opportunity
    for an interview at the alien's request and a
    Headquarters review of detention decisions. A separate
    notice will advise the alien of the opportunity for the
    interview. The alien may check the appropriate box on
    the notice, returning the form provided within 14
    calendar days so that an interview may be scheduled.
    The District Director has the discretion to schedule
    further interviews if he determines they would assist
    him in reaching a custody determination.
    (5)   The alien must be advised that he may submit any
    information relevant to support his request for release
    from detention, either in writing, electronically, by U.S.
    mail (or any combination thereof), or in person if an
    interview is conducted. The alien must also be advised
    that he may be represented by an attorney, or other
    person at no expense to the government. If an
    interview has been scheduled, the alien's
    representative may attend the review at the scheduled
    time.
    (6)   The District Director may delegate custody decisions to
    the level of the Assistant District Director, Deputy
    Assistant District Director, or those acting in their
    capacity. Custody determinations will be made by
    weighing favorable and adverse factors to determine
    whether the detainee has demonstrated by clear and
    convincing evidence that he does not pose a threat to
    the community, and is likely to comply with the
    removal order. See 8 C.F.R. S 241.4. The alien's past
    failure to cooperate in obtaining a travel document
    shall be considered an adverse factor in determining
    eligibility for release. See INA S 241(a)(1)(C) Suspension
    of Period. The fact that the alien has a criminal history
    does not create a presumption in favor of continued
    detention.
    (7)   Within thirty days of the District Director's custody
    review, the alien must receive written notification of a
    custody decision. All notification will be provided either
    18
    by personal service or certified mail/return receipt. A
    decision to release should specify the conditions of
    release. A decision to detain will clearly delineate the
    factors presented by the alien in support of his release,
    and the reasons for the District Director's decision.
    (8)    With respect to those detain decisions that are subject
    to Headquarters review under paragraph 4, the District
    Director's determination that the alien should be
    detained is to be regarded as only preliminary. In those
    instances, the Regional Directors will forward the
    preliminary detain decisions to Headquarters for
    review. Headquarters review will be conducted by
    Operations and Programs representatives (with
    assistance from the Office of General Counsel as
    necessary). Where the Headquarters reviewer's decision
    concurs with the District Director's, the Headquarters
    reviewer will write a supporting statement and will seek
    concurrence from a second Headquarters reviewer.
    Where the two reviewers differ, a panel of three
    Headquarters reviewers will conduct a further review of
    the case. The Headquarters panel may ratify the
    District Director's decision, return the case to the
    District Director to reconsider his decision, or
    determine that additional information is required to
    make a decision. The Headquarters review must be
    completed within thirty days of file receipt. The
    Headquarters review conclusions will be forwarded to
    the Regional Director for distribution to and
    appropriate action by the District Director.
    (9)    The District Director will review his decision in light of
    the Headquarters recommendations and will notify the
    alien of the final custody determination within thirty
    days of completion of the Headquarters review.
    (10)   The District Director should make every effort to effect
    the alien's removal both before and after expiration of
    the removal period. All steps to secure travel
    documents must be fully documented in the alien's
    file. However, if the District Director is unable to
    secure travel documents locally after making diligent
    efforts to do so, then the case shall be referred to
    Headquarters OPS/DDP for assistance. More detailed
    19
    instructions will be issued from the Executive
    Associate Commissioner for Operations by separate
    memorandum.
    (11)   On August 30, 1999, and on the last workday of each
    quarter (September, December, March, June) each
    district shall submit a custody review status report to
    its Regional office and to Headquarters. There will be
    more detailed instructions issued on reporting
    procedures at a later time.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    20