Rios v. INS ( 2003 )


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  •               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.
    --------------------
    Appeal from the United States District Court
    for the Eastern District of Texas
    --------------------
    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
    -2-
    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.