Carrera-Valdez, A. v. Perryman, Brian ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1497
Angel Carrera-Valdez,
Petitioner-Appellant,
v.
Brian Perryman, District Director,
Immigration and Naturalization Service,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98-C-0687-S--John C. Shabaz, Chief Judge.
Submitted March 27, 2000--Decided May 2, 2000
Before Coffey, Easterbrook, and Evans, Circuit Judges.
Easterbrook, Circuit Judge. Angel Carrera-Valdez
came to the United States in 1980 during the
Mariel boatlift exodus from Cuba. Many of the new
arrivals had been convicted of crimes in Cuba,
which opened its prisons for those willing to
emigrate. Carrera is one of these convicts:
shortly before leaving Cuba, he had been
sentenced to 20 years’ imprisonment for robbery.
After arriving in the United States, Carrera was
released on parole pending a decision concerning
his immigration status, and he commenced a new
criminal career, from which four convictions have
resulted: auto theft, assault, and two (a year
apart) for distributing cocaine. Each conviction
has been followed by the revocation of Carrera’s
immigration parole, and after a time he has been
re-released, only to commit a new crime and come
back to federal custody. (On one occasion Carrera
escaped from custody, committed a new crime, and
was recaptured. Oddly he was not prosecuted for
the escape.) In 1990 a final administrative order
excluded Carrera from the United States on the
basis of his criminal record, see 8 U.S.C.
sec.1182(a), but Cuba has refused to accept his
return. He has been in federal prison since 1995
because the INS, having concluded that he is
incorrigible, has refused to parole him into the
general population yet again.
Now being held at Oxford, Wisconsin, Carrera
asked the district court to issue a writ of
habeas corpus requiring his release until Cuba
takes him back. But the court concluded that it
lacked jurisdiction and dismissed Carrera’s
petition, relying on 8 U.S.C. sec.1252(g), which
was added to the Immigration and Nationality Act
in 1996. Two opinions issued after the district
court’s decision establish that this was
mistaken, and that 28 U.S.C. sec.2241 authorizes
a district court to consider Carrera’s petition.
Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471 (1999); Parra v.
Perryman, 172 F.3d 954 (7th Cir. 1999). The INS
does not defend the district court’s decision;
instead, it contends here (as it did in the
district court) that the petition fails on the
merits.
Section 1252(g), which applies to older
exclusion orders (while other features of the
1996 legislation, such as sec.1252(b)(9), do
not), forecloses review of "the decision or
action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter."
Carrera did not ask the district court to block
the commencement or adjudication of a case, nor
did he protest the execution of a removal order.
Just like Parra, Carrera wants review of his
placement pending his transfer to another nation,
and nothing in sec.1252(g) precludes review of
the decision to confine Carrera until then. But
just as in Parra it is unnecessary to remand,
because release, the relief the alien seeks, is
not available.
Former sec.236(e) of the Immigration and
Nationality Act, 8 U.S.C. sec.1226(e) (1994 ed.),
applies to persons who, like Carrera, were
subject to an order of exclusion when the new
legislation took full effect on April 1, 1997.
Under sec.236(e) an excludable alien who has
committed an aggravated felony (a class that
includes Carrera) must be taken into custody, and
the Attorney General "shall not release such
felon from custody" unless the Attorney General
determines not only (1) that the alien’s native
land has "denie[d] or unduly delay[ed] acceptance
of the return" (sec.236(e)(2), incorporating 8
U.S.C. sec.1253(g)) but also (2) "that the alien
will not pose a danger to the safety of other
persons or to property" (sec.236(e)(3)(C)) if
released. Carrera satisfies condition (1), but
the Attorney General has determined that he does
not satisfy condition (2). He is entitled to a
writ of habeas corpus only if the second
condition violates the Constitution. (A court
might in principle issue the writ after
concluding that the Attorney General’s procedures
for making this determination are defective, and
Carrera advances such an argument. But his
convictions, which are not subject to collateral
attack here, see Custis v. United States, 511
U.S. 485 (1994), support the decision, and we
therefore need not determine what procedures are
called for when the excludable alien has not been
convicted of a crime following his arrival in the
United States.)
Almost fifty years ago, the Supreme Court held
that an excludable alien may be detained
indefinitely when his country of origin will not
accept his return. Shaughnessy v. United States
ex rel. Mezei, 345 U.S. 206 (1953). Several
Justices in more recent years have expressed
unease with that decision, but it is conclusive
in the courts of appeals. It is therefore not
surprising that at least five appellate courts
have rejected constitutional challenges, similar
to Carrera’s, brought by others who arrived on
the Mariel boatlift. See Guzman v. Tippy, 130
F.3d 64 (2d Cir. 1997); Palma v. Verdeyen, 676
F.2d 100 (4th Cir. 1982); Gisbert v. Attorney
General, 988 F.2d 1437, amended, 997 F.2d 1122
(5th Cir. 1993); Barrera-Echavarria v. Rison, 44
F.3d 1441 (9th Cir. 1995) (en banc); Garcia-Mir
v. Meese, 788 F.2d 1446 (11th Cir. 1986). See
also Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir.
1999). The only arguably contrary decision,
Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382
(10th Cir. 1981), has not garnered adherents and
is of doubtful vitality in its own circuit. Duy
Dac Ho v. Greene, 204 F.3d 1045 (10th Cir. 2000).
Given Shaughnessy there is little point in
elaborate discussion by an inferior court.
Carrera is not constitutionally entitled to
release.
Carrera advances some additional arguments, such
as a contention that the Attorney General did not
follow the Administrative Procedure Act when
promulgating the regulations under which Mariel
Cubans may apply for parole, see 8 C.F.R.
sec.212.12, and that the United States violated
a supposed contract under which he would become
a citizen five years after arriving. Arguments of
the former kind are not appropriate under
sec.2241, and the latter is untenable:
citizenship depends on abiding by the laws of the
United States, which Carrera has not done. A
demand for citizenship, moreover, is squarely
foreclosed by sec.1252(g): In this respect, at
least, the jurisdictional dismissal was correct,
because Carrera’s quest for citizenship amounts
to a collateral attack on the 1990 exclusion
order.
The judgment of the district court is vacated,
and the case is remanded with instructions to
dismiss the petition for want of jurisdiction to
the extent Carrera seeks citizenship, and
otherwise to deny the petition on the merits.