Rios v. INS , 324 F.3d 296 ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40766
Summary Calendar
MARIO JIMENEZ RIOS,
Petitioner-Appellant,
versus
IMMIGRATION AND NATURALIZATION SERVICE;
JONATHON DOBRE, Warden,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
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January 28, 2003
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:
Mario Jimenez Rios, an excludable alien who arrived in the
United States in the 1980 Mariel boatlift from Cuba, appeals the
denial of his 28 U.S.C. § 2241 habeas corpus petition, in which
he challenges his continued detention by the Immigration and
Naturalization Service ("INS"). INS took Rios into custody in
1998 following his state conviction and sentence for attempted
indecency with a child, the latest conviction in his extensive
criminal history within the United States. The record shows that
he has received parole review but has been repeatedly denied
No. 02-40766
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release on account of his criminal history and disciplinary
record.
Relying on Zadvydas v. Davis, 533 U.S. 678 (2001), Rios
contends that his continued detention violates his constitutional
rights. The district court did not err in determining that Rios
is not entitled to relief. See Gisbert v. U.S. Atty. Gen., 988
F.2d 1437, 1439 (5th Cir. 1993), amended by Gisbert v. U.S. Atty.
Gen., 997 F.2d 1122 (5th Cir. 1993). Although Zadvydas held that
a deportable alien may contest his continued detention in a 28
U.S.C. § 2241 proceeding, the Court distinguished the status of
deportable aliens from that of excludable aliens like Rios. See
Zadvydas, 533 U.S. at 682, 692-94. Rios's petition is governed
by Gisbert.
AFFIRMED.