Mario Rosales-Garcia v. J.T. Holland, Warden , 238 F.3d 704 ( 2001 )

MOORE, J., delivered the opinion of the court, in which CLAY, J., joined. RICE, D.J. (pp. 727-39), delivered a separate dissenting opinion.

OPINION

MOORE, Circuit Judge.

This case presents the difficult and complex question whether an excludable alien has a liberty interest recognized by the Fifth Amendment’s Due Process Clause when the Immigration and Naturalization Service (“INS”) seeks to detain him in custody, perhaps indefinitely, without charging him with a crime or affording him a trial but simply on the ground that it cannot effect his deportation. On July 9, 1998, Petitioner-Appellant Mario Rosales-Garda (“Rosales”) applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Eastern District of Kentucky. He sought relief from the Attorney General’s decision on March 24, 1997 denying him parole from his detention at the Federal Medical Center in Lexington, Kentucky, or in the alternative, an emergency hearing before the Cuban Review Panel and the INS. Rosales is a Cuban citizen who arrived in this country during the Mariel boatlift in 1980. Because he has been declared excludable by the INS he would ordinarily be deported to his home country; however, the United States is unable to effect his deportation because Cuba refuses to accept his return. Thus, Rosales, after completing a federal prison sentence, has been taken into INS custody pending an agency determination that he is eligible for parole or that Cuba will allow him to enter. Rosales, appearing pro se, asserts that both his substantive and procedural due process rights under the Constitution are being violated by the Attorney General and the INS. The district court dismissed his petition with prejudice, and Rosales promptly appealed to this court. We REVERSE the district court’s judgment, order Rosales’s release, and REMAND to the district court for proceedings in accordance with this opinion.

I. Background

A. Facts and Procedure

Rosales left Cuba, his birthplace, and arrived in this country around May 6, 1980 as part of the Mariel boatlift, so known because over 120,000 undocumented Cubans departed from the Mariel Harbor en route to the United States. Athough Rosales was initially detained by immigration authorities, he was released into the custody of his aunt on May 20, 1980, pursuant to the Attorney General’s authority to parole illegal aliens for humanitarian or other reasons under 8 U.S.C. § 1182(d)(5)(A) (1994).¹ J.A. at 97-110 (Request for Asylum, Passport). Rosales was subsequently arrested multiple times² and was convicted of several of the offenses including: possession of marijuana and resisting arrest in October 1981, J.A. at 146-47; grand theft in September 1981, for which he received two years’ probation in March 1983, J.A. at 174; burglary and grand larceny in October 1983, for which he received two six-month sentences to be served concurrently, J.A. at 152-53, 175; and escape from a penal institution in February 1984, J.A. at 177, where he had been serving time for his previous convictions. On January 9, 1986, Rosales received a sentence of 366 days for the escape charge after he pleaded guilty. J.A. at 155, 181.

Rosales’s immigration parole was revoked on July 10, 1986 by the INS, pursuant to its authority under 8 U.S.C. § 1185(d)(5)(A) and 8 C.F.R. § 212.5(d)(2), for the escape and grand larceny charges. J.A. at 111-13. In a separate proceeding before an immigration judge in Atlanta, Georgia, on June 26, 1987, Rosales was denied asylum and deemed excludable³ from this country because he lacked a visa or other documentation entitling him to admission and because he had been convicted of state crimes in Florida. J.A. at 115. Rosales remained in immigration custody until he was considered for immigration parole a second time on April 5, 1988. J.A. at 120. He was released on May 20, 1988 to the custody of his uncle in Miami. J.A. at 122-25. Rosales was not deported at that time, however, because Cuba refused to take him back.

On March 18, 1993, Rosales pleaded guilty to one count of conspiracy to possess with the intent to distribute cocaine in the United States District Court for the Eastern District of Wisconsin; he was sentenced to 63 months in federal prison, followed by five years of supervised release. J.A. at 159-61. While Rosales was serving his sentence, the INS lodged a detainer against him, directing prison officials to release him to INS custody for deportation proceedings at the completion of his sentence. J.A. at 126-27. On March 24, 1997, prior to his release, Rosales’s immigration parole was again revoked pursuant to the regulations governing parole of Mariel Cubans at 8 C.F.R. § 212.12 (the “Cuban Review Plan”).⁴ See 8 C.F.R. § 212.12(a). When Rosales was released from prison on May 18, 1997, the INS promptly detained him and took him into custody, pursuant to its authority under 8 U.S.C. § 1226(e) (1994).⁵ On November 5, 1997, the Associate Commissioner for Enforcement for the INS reconsidered and then denied Rosales immigration parole. J.A. at 133. The INS rendered its decision on December 12, 1997 and served it on Rosales on February 11, 1998. According to its report, the Cuban Review Panel determined that Rosales had demonstrated “a propensity to engage in recidivist criminal behavior” as reflected by his criminal record and that his responses to questions at his parole interview were “non-credible.” J.A. at 133. The Panel stated that “it is not clearly evident” that releasing Rosales on parole was in the public interest; that he would not pose a threat to the community; or that he would not violate the conditions of immigration parole.⁶ J.A. at 133. Rosales has remained in custody since that determination, where he continues to receive periodic consideration for parole under the Cuban Review Plan.⁷ See 8 C.F.R. § 212.12(g)(2).

Rosales filed his habeas petition with the district court on July 9, 1998. J.A. at 5. In his petition, Rosales asserted that his due process rights under the Fifth and Fourteenth Amendments were violated because he was denied his right to be represented by counsel at the Cuban Review Panel hearing on his parole status; to review the information used against him at that proceeding; and the right to confront and cross-examine witnesses. Rosales also alleged that the Cuban Review Panel improperly assessed his prior convictions when it calculated his “score” in its assessment of his candidacy for parole, in violation of the regulations governing the Review Panel, at 8 C.F.R. §§ 212.12-13. Finally, Rosales asserted that the decision by the INS was an abuse of discretion, arbitrary and capricious, and that it violated Supreme Court precedent. Rosales sought immediate release on parole, or in the alternative, an emergency hearing at which he would be afforded procedural due process rights.

On October 1, 1998, the district court dismissed the habeas petition sua sponte, concluding that “the petitioner is not being held in violation of the U.S. Constitution or any U.S. law, rule or regulation; thus, the petitioner is not entitled to habeas relief.” J.A. at 66, 70. Rosales then filed a motion to alter or amend the judgment on October 21, 1998, stating that he meant to assert his due process rights, not under the Constitution, but under 8 U.S.C. §§ 1101, 1105(a) and 5 U.S.C. §§ 551-701 as well as Supreme Court precedents. J.A. at 13. The district court, construing pro se petitions leniently, vacated its earlier decision to dismiss and granted Rosales’s motion for reconsideration on December 1, 1998, allowing the case to proceed. J.A. at 71-73.

The government filed a response to Rosales’s petition on February 4, 1999, arguing that this case is identical to those that have been rejected by other circuits, including the Sixth Circuit in an unpublished opinion, Gonzalez v. Luttrell, No. 96-5098, 1996 WL 627717 (6th Cir. Oct.29, 1996). The government noted that Rosales had received all the procedure due under the Cuban Review Plan and that his parole had been appropriately denied by the Attorney General. Rosales responded to the government by again asserting his right to be free from indefinite detention and to be afforded procedural due process rights at his parole hearings. J.A. at 58-65. Rosales also sought the appointment of counsel through a motion to the district court, but that request was denied on February 23,1999. J.A. at 75.

The district court dismissed Rosales’s amended petition with prejudice on May 3, 1999. The district court, addressing Rosales’s statutory claims first, concluded that Congress had granted total discretionary authority to the Attorney General over immigration matters at 8 U.S.C. §§ 1103(a)(1)⁸ and 1182(d)(5)(A). After surveying the recent amendments to the immigration laws and noting Congress’s intent to provide the Attorney General with more discretion to detain aliens, the district court concluded that “the Attorney General may continue to detain the instant petitioner in conformity with federal law.” J.A. at 88-89 (D.Ct.Op.)

The district court also concluded that Rosales had failed to state a cognizable constitutional claim. The court determined that the Sixth Amendment is not applicable to Rosales’s petition “because ‘immigration proceedings and detention do not constitute criminal proceedings or punishment.’ ” J.A. at 89 (internal citations omitted). The court next found that the Fifth Amendment does not “provide ex-cludable aliens with procedural due process rights with regard to admission or parole.” J.A. at 89. Thus, the court concluded that Rosales was not due any of the procedures which he sought, namely the right to counsel, to review the information used against him, or to confront and cross-examine people who provided information at his parole hearing. Although the district court noted that “the law is less clear about the extent to which any substantive due process rights are enjoyed by excluda-ble aliens,” the court denied Rosales the benefit of the protection of the substantive component of the Fifth Amendment as well. J.A. at 90. The district court observed that Rosales “has no fundamental right to be free to roam the United States and a fundamental right is the first component of a substantive due process claim.” J.A. at 91. The court also found that Rosales’s continued detention was “neither arbitrary, conscience-shocking nor oppressive in the constitutional sense.” J.A. at 91. Rosales then filed a prompt notice of appeal to this court. J.A. at 95.

In his four-page pro se brief to this court, Rosales does not challenge the Attorney General’s right to exclude him. Rather, Rosales argues that he should be granted procedural due process rights during his parole revocation hearing and that his substantive due process rights are being violated by the indefinite nature of his detention. In response to the district court’s assertion that an excludable alien is not free to “roam” this country, Rosales asserts that he “is not asking for permission to ‘roam’ the United States.” Instead, he claims that he would return to Cuba and that “[i]f he was not part of this ‘Catch 22’, where he is not allowed to return to his country, he [would] gladly do so.” Appellant’s Br. at 3.

B. Relations With Cuba

A brief background on the United States’ relationship with Cuba is essential to our analysis. Most of the 125,000 Cuban refugees who came to this country in 1980 in the Mariel boatlift were found excludable because they arrived here without proper entry documents or because they had committed crimes in Cuba. However, a large percentage of these Cubans, including Rosales, were paroled, pursuant to the Attorney General’s authority under 8 U.S.C. § 1182(d)(5). According to the affidavit of Michael E. Ranneberger, the Coordinator of the Office of Cuban Affairs in the State Department, who has been responsible for negotiations with Cuba since 1995, “[f]or almost two decades, the United States has been discussing with Cuban authorities the issue of return of excludable Cubans.” J.A. at 56. The United States reached a limited agreement with Cuba to repatriate Mariel Cubans in December 1984. Under the terms of this agreement, Cuba consented to the return of 2,746 excludable aliens from the Mariel Boatlift, at the rate of 100 per month, whom the INS was able to identify at the time the agreement was reached. J.A. at 56 (Ranneberger Decl.); 81 (D.Ct.Op.). Rosales was not among those named in the 1984 Agreement because he was not declared excludable until 1987. Cuba suspended the agreement in May 1985, but agreed to reinstate the agreement in November 1987. See Gisbert v. U.S. Attorney Gen., 988 F.2d 1437, 1440 (5th Cir.1993). As of January 1999, 1400 Cubans had been returned to Cuba. J.A. at 56 (Ranneberger Deck).

Further talks between the two countries took place on September 9, 1994 and May 2, 1995. J.A. at 57 (Ranneberger Deck). The September 1994 agreement stated that the United States and Cuba “agreed to continue to discuss the return of Cuban nationals excludable from the United States.” J.A. at 57. Ranneberger noted that discussions between the two countries continued periodically, and while he cannot offer details from these sensitive discussions, he says that he “can confirm that the return of Cuban nationals ... remains under discussion between the two governments.” J.A. at 57.

The United States is currently detaining approximately 1,750 Mariel Cubans in U.S. prison facilities who are neither eligible for parole nor deportable because Cuba will not accept them. See Chi Thon Ngo v. INS, 192 F.3d 390, 395 (3d Cir.1999). According to the government, the United States’ position has been and currently is that Cuba is required to take back all of its nationals who are denied admission to the United States. Appellee’s Br. at 19.

II. Jurisdiction

The government challenged the district court’s jurisdiction to hear Rosales’s 28 U.S.C. § 2241 habeas petition based on 8 U.S.C. §§ 1252(g)⁹ and 1231(h)¹⁰, as well as § 1226(e)¹¹ and con-flieting case law. The district court determined that, in light of this court’s decision in Mansour v. INS, 123 F.3d 423, 426 (6th Cir.1997), and the absence of further clarification from this court or the Supreme Court, it had jurisdiction to hear the petition.¹² The government appeal's to have conceded this court’s jurisdiction to hear the instant appeal. Appellee’s Br. at 2 (stating that the court of appeals’ jurisdiction arises under 28 U.S.C. §§ 1291 and 2253). However, it is our obligation to address the predicate question of our jurisdiction, even when it is not contested, before turning to the merits of these appeals. See Arizonans for Official English v. Arizona, 520 U.S. 43, 73, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).

The Supreme Court’s recent decision in Reno v. American-Arab Anti-Discrimination Committee (“AADC’), 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), makes clear that the district court was correct to assert jurisdiction over Rosales’s habeas petition; it also establishes the propriety of our jurisdiction to hear Rosales’s claim. In AADC, the Supreme Court addressed the scope of 8 U.S.C. § 1252(g) and its ostensibly sweeping jurisdiction-stripping language.¹³ Forced to reconcile the incongruity of several provisions of the IIRIRA which simultaneously grant and deny the right of judicial review to certain aliens who were in deportation proceedings before April 1, 1997, the Supreme Court determined that § 1252(g) must have a “narrow! ]” meaning.¹⁴ See AADC, 525 U.S. at 482, 119 S.Ct. 936. Rejecting the idea that § 1252(g) “covers the universe of deportation claims — that it is a sort of ‘zipper’ clause that says ‘no judicial review in deportation eases unless this section provides judicial review,’ ” the Supreme Court restricted § 1252(g) to three discrete actions that the Attorney General may take: the decision to “commence proceedings, adjudicate cases, or execute removal orders.” Id. The Court noted that “[tjhere are of course many other decisions or actions that may be part of the deportation process....” Id.

In Zhislin v. Reno, 195 F.3d 810 (6th Cir.1999), we applied the Supreme Court’s reasoning in AADC and concluded that § 1252(g) did not preclude our review of an alien’s petition for habeas corpus challenging the INS’s authority to detain him indefinitely. See Zhislin, 195 F.3d at 814. Like Zhislin, Rosales does not seek to review the Attorney General’s decision to commence or adjudicate a case, nor does he dispute the removal order entered against him. Instead, Rosales challenges “the right of the Attorney General to detain him indefinitely when it appears that circumstances beyond anyone’s control will prevent the deportation order from ever being executed.” Id. Such a challenge is clearly outside the purview of § 1252(g) and we may therefore consider the claim. See Zhislin, 195 F.3d at 814; Carrera-Valdez v. Perryman, 211 F.3d 1046, 1047 (7th Cir.2000) (upholding district court’s jurisdiction over Mariel Cuban’s petition for release from indefinite detention); Ho v. Greene, 204 F.3d 1045, 1051 (10th Cir.2000); Ma v. Reno, 208 F.3d 815, 818 n. 3 (9th Cir.2000), cert. granted, — U.S. -, 121 S.Ct. 297, 148 L.Ed.2d 239 (2000); Chi Thon Ngo v. INS, 192 F.3d 390, 393 (3d Cir.1999); Zadvydas v. Underdown, 185 F.3d 279, 285-86 (5th Cir.1999), cert. granted, — U.S. -, 121 S.Ct. 297, 148 L.Ed.2d 239 (2000).

III. Mootness

After this appeal was submitted to this panel, the government informed the panel that on July 19, 2000, the INS determined that Rosales is releasable under the custody review procedures of 8 C.F.R. § 212.12. In its Notice of Reusability, the INS conditioned Rosales’s release on efforts to find him a suitable sponsorship or placement, namely a halfway house, as required by the Cuban Review Plan at 8 C.F.R. § 212.12(f) (“No detainee may be released on parole until suitable sponsorship or placement has been found for the detainee.”). The Notice further stated that Rosales’s release from custody is conditioned on his maintaining proper behavior while sponsorship and placement efforts are undertaken and that “[fjailure to maintain good behavior could result in [ ] continued detention.” Because the INS has not provided any further information indicating that such a sponsorship or placement has been found or that Rosales has been released on parole, we must assume that he is still in custody at the Federal Medical Center in Lexington, Kentucky.

The government argues that Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir.1991), stands for the proposition that the INS’s notice of releasability moots Rosales’s appeal. In Picrin-Peron, the Ninth Circuit considered a detainee’s appeal from the denial of his habeas corpus petition after the detainee had been released on parole for one year. Pursuant to the court’s request, an INS official authored an affidavit for the court declaring that “absent Picrin’s reinvolvement with the criminal justice system, a change in the Cuban government enabling him to return to Cuba, or the willingness of a third country to accept him, he will be paroled for another year.” Picrin-Peron, 930 F.2d at 776. Based on this sworn statement, the Ninth Circuit dismissed Picrin’s petition as moot, concluding that the court could offer the detainee no further relief. See id.

According to Article III of the Constitution, this court only possesses jurisdiction over actual cases and controversies that will the affect the rights of the litigants. See McPherson v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc ). A case is deemed moot if the relief sought would make no difference to the legal interests of the parties. See id. We are obligated to consider whether the “ease or controversy” justiciability requirement has been met in this case because it must be satisfied at all stages of review, not just upon initiation of a legal action. See id. Rosales’s petition seeks either release from custody or a hearing before the Cuban Review Panel with certain procedural protections that he believes were denied to him in error. As a preliminary step in our analysis, we note that Rosales appears to remain in federal custody, as his parole is conditioned on the INS’s ability to find him a suitable halfway house as well as on his continued good behavior. We also note that, according to 8 C.F.R. § 212.12(e), “[t]he Associate Commissioner for Enforcement may, in his or her discretion, withdraw approval for parole of any detainee prior to release when, in his or her opinion, the conduct of the detainee, or any other circumstance, indicates that parole would no longer be appropriate.” Should the INS decide, in its discretion, to withdraw his parole or should it be unable to find Mm a suitable placement, Rosales will therefore continue to be detained in federal custody. Thus, this case is not like Picrin-Peron, in which petitioner had already been released from detention and the INS verified in a sworn affidavit that he would continue to be granted yearly parole absent his involvement in any criminal activity. Moreover, if Rosales is not released, the same procedures that he asserts are constitutionally defective will continue to be used against him. Based on these circumstances, we conclude that Rosales’s petition for relief is not rendered moot by virtue of the fact that he has been notified that he is releasable. This case clearly represents a substantial ongoing controversy between the parties, for which this court can offer relief.

Moreover, we believe that, should Rosales be physically released, this case may also be adjudicated under the well-established exception to the mootness doctrine for controversies capable of repetition yet evading review. See Grider v. Abramson, 180 F.3d 739, 746 (6th Cir.1999); Pinette v. Capitol Square Review & Advisory Bd., 30 F.3d 675, 677 (6th Cir.1994); aff'd, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). Two criteria must be satisfied for a claim to fall under this exception to the mootness doctrine. First, the complaining party must show that the duration of the dispute is too short to be litigated fully prior to the cessation or expiration of the action. Second, the complaining party must show that there is a reasonable expectation that it will be subjected to the same action again. See Suster v. Marshall, 149 F.3d 523, 527 (6th Cir.1998). The Cuban Review Plan confers on the Cuban Review Panel and the Associate Commissioner for Enforcement substantial discretion to withdraw parole approval prior to release and to revoke a detainee’s parole once he is out of custody. See 8 C.F.R. § 212.12(e), (h).¹⁵ While the Plan provides yearly review for detainees who have been refused parole, see id. at § 212.12(g)(2), the Cuban Review Plan Director may schedule a review of the detainee’s status “at any time when the Director deems such a review to be warranted.” See id. at § 212.12(g)(3). Due to the discretionary nature of these regulations, the Associate Commissioner for Enforcement or the Cuban Review Panel may grant parole, withdraw parole approval or revoke Rosales’s parole repeatedly within a time period too short to effect appellate review of a habeas corpus petition. We have every reason to believe that future review of another habeas petition filed by Rosales will take at least as long as the instant case in arriving at this court. Moreover, should the INS and its officials engage in repeated denials, revocations or withdrawals of parole, the regulations make clear that Rosales will face the same detention and hearing procedures that he challenges in his current petition. Because Rosales’s situation is capable of repetition yet evading review, we conclude that his appeal is not moot.

IV. Standard of Review

This court reviews a district court’s dismissal of a habeas corpus petition de novo. See Rogers v. Howes, 144 F.3d 990, 992 (6th Cir.1998).

V. Analysis

This circuit has not ruled definitely on the constitutionality of indefinite detention of excludable aliens.¹⁶ In its brief to this court, the government frames the question before us as whether Rosales has a protected statutory or constitutional entitlement to immigration parole. The larger question, however, is whether the executive branch of the government has the authority under the United States Constitution to detain a person indefinitely without charging him with a crime or affording him a trial. We hold that indefinite detention of Mario Rosales-Garcia cannot be justified by reference to the government’s plenary power over immigration matters and that it violates Rosales’s substantive due process rights under the Due Process Clause of the Fifth Amendment to the Constitution.

A. Statutory Authority to Detain Indefinitely

Our first point of analysis is Rosales’s statutory claim that the Attorney General and the INS violated their governing statutes and regulations by denying him parole and detaining him indefinitely. See Reno v. Flores, 507 U.S. 292, 300, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (noting reviewing court’s obligation to construe statutes to avoid constitutional problems unless such construction is plainly contrary to Congress’s intent). The government argues that we are bound by former 8 U.S.C. § 1226(e) (1994), which, according to the government, authorizes the Attorney General to continue to detain Rosales indefinitely. According to IIRIRA, its permanent provisions apply only to removal proceedings commenced after April 1, 1997, IIRIRA’s effective date. See IIRI-RA § 309(c)(1). We agree with the government that we must apply former § 1226(e) to the instant case because Rosales was declared excludable in 1987 and his immigration parole was last revoked on March 24, 1997, prior to the Act’s effective date.¹⁷ Cf. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (counseling that courts of appeals must apply Chevron deference to agency’s interpretations of immigration statute).

According to former § 1226(e), pending a determination of excludability, the Attorney General must take into custody any alien convicted of an aggravated felony¹⁸ upon release of the alien. See § 1226(e)(1) (1994); see also 8 U.S.C. § 1182(d)(5)(A) (1994) (giving the Attorney General the right to return into custody an excludable alien when “the purposes of such parole shall ... have been served”); § 1227(a) (1994) (authorizing Attorney General immediately to deport any alien who is ex-cludable unless she decides, in her discretion, “that immediate deportation is not practicable or proper”). Under the former statute, the Attorney General may not release the alien from custody unless she determines that the alien may not be deported because the alien’s home country denies or unduly delays acceptance of the alien’s return. See § 1226(e)(2) (incorporating 8 U.S.C. § 1253(g) (1994)). If this determination is made, the Attorney General may release the alien only after a review in which the severity of the felony committed by the alien is considered and the review concludes that the alien will not pose a danger to the safety of other persons or to property. See § 1226(e)(3). Many circuits, including the Second, Third, Fifth, Seventh, Ninth, and Tenth Circuits have found former § 1226(e) to authorize the Attorney General to detain indefinitely an excludable alien who has been convicted of an aggravated offense. See Ho v. Greene, 204 F.3d 1045, 1055 (10th Cir.2000) (Attorney General has authority to continue indefinitely to detain excludable alien whose deportation cannot be accomplished expeditiously because the “statute is framed not as a grant of authority to detain the alien, but as a limitation on the Attorney General’s power to release the alien from detention”); Carrera-Valdez v. Perryman, 211 F.3d 1046, 1048 (7th Cir. 2000); Chi Thon Ngo v. INS, 192 F.3d 390, 394 (3d Cir.1999) (statute permits prolonged detention of excludable aggravated felons); Gisbert v. U.S. Attorney Gen., 988 F.2d 1437, 1446 (5th Cir.1993)' (“[W]e do not regard section 1226(e) as a limitation on the Attorney General’s authority to detain excludable aliens, either before or after final determination of excludability, pending their removal from this country.”); Alvarez-Mendez v. Stock, 941 F.2d 956, 962 (9th Cir.1991) (“The only logical interpretation of section 1226(e) is that it ... provides that where deportation of an alien found excludable cannot be immediate, the Attorney General may release [the alien] only if doing so will not endanger society.”).

Former § 1226(e) is not ambiguous concerning the Attorney General’s discretion to detain indefinitely an excludable alien whose deportation cannot be expeditiously accomplished. The statute explicitly states that the Attorney General “shall” not release an alien from custody unless she determines that the alien will not pose a danger to the safety of other persons or to property. The statute does not contain any language limiting the length of time the Attorney General may detain an alien pending a determination that the alien no longer poses a threat to society. Nor does the statute carve an exception to this language for aliens whose home countries refuse to accept their return. We therefore conclude, in accordance with the other circuits that have analyzed this issue, that the statute clearly authorizes the Attorney General to detain an excludable alien indefinitely. Because we cannot construe the statute to avoid constitutional inquiry, we must now address the constitutionality of Rosales’s detention.

B. The Immigration Statute and the Plenary Power Doctrine

In this case, we are confronted with two principles deeply embedded in our jurisprudence that conflict with each other: the political branches’ almost complete authority over immigration matters and a person’s inalienable right to liberty absent charges or conviction of a crime. Rosales’s petition for habeas corpus relief does not contest the government’s almost complete control over matters of immigration policy. Under Art. I, § 8, cl. 4 of the Constitution¹⁹ and the plenary power doctrine,²⁰ the executive and legislative branches have coordinate authority to establish and enforce policies for admission to and exclusion from this country, while the judiciary accords those branches almost total deference. See Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (“[T]he responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government”); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (authority over immigration matters stems not just from legislative power “but is inherent in the executive power to control the foreign affairs of the nation.”); Fong Yue Ting v. United States, 149 U.S. 698, 711, 13 S.Ct. 1016, 37 L.Ed. 905 (1893) (it is the “right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare....”). Under this doctrine, the Attorney General is charged with the administration and enforcement of all laws relating to the immigration and naturalization of aliens, and she does so with virtually no interference from the courts.²¹ The Supreme Court has “long recognized the power to expel or exclude aliens as 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, 73 S.Ct. 625, 97 L.Ed. 956 (1953); see also Diaz, 426 U.S. at 82, 96 S.Ct. 1883 (noting “narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization”).

Nor does Rosales contest the government’s right to designate him an excluda-ble alien and attempt to remove him from this country. The principle that there is no constitutional right to enter this country, see Knauff, 338 U.S. at 542, 70 S.Ct. 309, is not under review in this case. The Supreme Court has made clear that an attempt to enter this country is considered a request for a privilege rather than an assertion of right, because “the power to admit or exclude aliens is a sovereign prerogative.” See Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). According to the Supreme Court, such a privilege can only be exercised according to the procedures established by Congress and implemented by the appropriate executive officials. See Knauff, 338 U.S. at 542-44, 70 S.Ct. 309.

Finally, Rosales does not challenge the government’s application of the “entry fiction” to his case. Under the former version of the immigration act the government had two mechanisms for returning non-citizens to their country of origin: “exclusion” was the procedure used to refuse an alien entry at the border of this country; “deportation” was the procedure used to remove an alien who has already entered the country but is here illegally. See Plasencia, 459 U.S. at 25-26, 103 S.Ct. 321. Although exclusion proceedings usually occurred at the port of entry, the Supreme Court developed what has become known as the “entry fiction” to govern the rights of those aliens who are deemed excludable but who have nonetheless been allowed to enter physically the United States for humanitarian, administrative, or other reasons, under 8 U.S.C. § 1182(d)(5)(A). Under the entry fiction, an alien deemed to have entered this country illegally is treated as if detained or “excluded” at the border despite his physical presence in the United States. See Gisbert, 988 F.2d at 1440 (explaining distinction between excludable and deportable aliens). Excludable aliens have no rights with regard to their entry or exclusion from this country and they are treated differently from those who have “passed through our gates.” Mezei, 345 U.S. at 212, 73 S.Ct. 625; but see Plasencia, 459 U.S. at 32-34, 103 S.Ct. 321 (resident alien detained at border upon return to country is validly subject to exclusion proceeding but may invoke procedural due process protections during proceedings); Kwong Hai Chew v. Colding, 344 U.S. 590, 597-600, 73 S.Ct. 472, 97 L.Ed. 576 (1953) (resident alien returning to U.S. after five-month absence is subject to exclusion hearing but is entitled to procedural due process protections). According to the Supreme Court, they are due only the procedures authorized by Congress for their removal proceedings and nothing more. See Mezei, 345 U.S. at 212, 73 S.Ct. 625 (citing. Knauff, 338 U.S. at 544, 70 S.Ct. 309); compare Zadvydas, 185 F.3d at 295-97 (extending entry fiction to deportable aliens who have received final order of deportation and stripping them of due process right to be free from indefinite detention) and Ho, 204 F.3d at 1059-60 (same) with Ma, 208 F.3d at 825-26 n. 23 (rejecting INS’s argument that aliens ordered deportable are on same constitutional footing as excludable aliens seeking entry).

Rosales does, however, challenge the government’s authority to detain him indefinitely after he has completed his federal prison sentence and has neither been charged with nor convicted of another crime. It is to this challenge that we now turn our attention.

C. Constitutional Authority to Detain Indefinitely

The Fifth Amendment to the Constitution restricts the government from depriving all persons of the right to life, liberty, or property without due process of law. See U.S. Const, amend. V. The Supreme Court has consistently held that aliens physically present in this country are not wholly without constitutional protection. Indeed, the Supreme Court has accorded aliens a panoply of Fifth, Sixth, and Fourteenth Amendment rights. Should an excludable alien be accused of committing a crime, he would be entitled to the constitutional protections of the Fifth and Sixth Amendments. See Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (“[I]t must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by [the fifth and sixth] amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.”). Thus, in Wong Wing v. United States, the Court struck down a federal statute imposing a maximum of one year of hard labor on a Chinese alien upon a determination of his deportability, finding it a violation of the alien’s due process right to be free from punishment without trial. In Yick Wo v. Hopkins, another early immigration case, the Supreme Court announced that the Fourteenth Amendment’s protections extend to aliens as well:

The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.

Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (finding imprisonment of Chinese immigrants under state statute unconstitutional because it violated Equal Protection Clause of Fourteenth Amendment); see also Flores, 507 U.S. at 315-16, 113 S.Ct. 1439 (O’Connor, J., concurring) (emphasizing that juvenile aliens have a constitutionally protected liberty interest, rooted in the Due Process Clause, in freedom from institutional confinement); Diaz, 426 U.S. at 77, 96 S.Ct. 1883 (noting that there are millions of aliens in this country and that “[t]he Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these [aliens] from deprivation of life, liberty, or property without due process of law” whether they are here unlawfully or not).

As the Supreme Court has evaluated whether to extend entitlements or rights to aliens in addition to those protected by the Fifth, Sixth, and Fourteenth Amendments, the Court has demonstrated a willingness to draw lines between the rights due to citizens and those due to aliens. See Diaz, 426 U.S. at 80, 96 S.Ct. 1883 (noting that “Congress regularly makes rules that would be unacceptable if applied to citizens”). The Court has also expressed its willingness to distinguish among different classifications of aliens. However, it has never held that aliens are utterly beyond the purview of the Constitution. Thus, in Diaz, the Court held that Congress may constitutionally condition an alien’s receipt of federal medical insurance benefits (Medicare Part B) on the legality of his entry and the length of his residence in this country. See Diaz, 426 U.S. at 82-83, 96 S.Ct. 1883. However, in Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), the Court held that state statutes conditioning welfare benefits on a residency requirement or denying welfare benefits to resident aliens violated the Fourteenth Amendment’s Equal Protection Clause. The Supreme Court has also determined that the exclusion of the children of illegal aliens from a public school system pursuant to a state statute violated the Equal Protection Clause of the Fourteenth Amendment. Rejecting the government’s argument that illegal aliens are not “persons” within the purview of the Constitution, the Court stated that “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).

The government, relying on the Supreme Court’s decision in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), asks this court to conclude, despite a long line of Supreme Court decisions extending to aliens basic Fifth, Sixth, and Fourteenth Amendment protections, that excludable aliens have no cognizable Fifth Amendment liberty interest under the Constitution in freedom from indefinite incarceration. In Mezei, the Supreme Court reviewed the case of an excludable alien who was being detained indefinitely on Ellis Island because this country deemed him a security threat and the alien’s home country, as well as other nations, refused to allow him to return.²² When the case reached the Supreme Court in 1953, Mezei had been detained on Ellis Island for close to two years. Addressing the question whether the potentially indefinite detention of an excludable alien without a hearing violated the Constitution, the Supreme Court observed that “[c]ourts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Mezei, 345 U.S. at 210, 73 S.Ct. 625. The Court then deferred to the executive’s authority to “impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife.” Id. Noting the existence of a presidentially-declared state of emergency, the Supreme Court found that the Attorney General’s authority to act derived from the Passport Act of 1918, which permitted the executive to “shut out aliens whose ‘entry would be prejudicial to the interest of the United States’ ” during periods of national emergency.²³ Id. at 210-11, 73 S.Ct. 625 (citing regulations at 8 C.F.R. § 175.53 promulgated in accordance with the amendments to the Passport Act). The Supreme Court decided that “the times being what they are” it would not question the Attorney General’s discretion to detain Mezei at Ellis Island in deference to his assessment that Mezei presented a security threat. Id. at 216, 73 S.Ct. 625. Deeming this case “[a]n exclusion proceeding grounded on danger to the national security,” id., the Court refused to substitute its judgment for the legislative will. Thus, it found no statutory or constitutional impediment to Mezei’s detention or denial of a hearing. See id. at 215, 73 S.Ct. 625.

The government would have this court accept the premise that the entry fiction completely forecloses any need for this court to examine whether an excludable alien, faced with the prospect of indefinite detention imposed by an executive agency, possesses a Fifth Amendment interest in liberty from physical constraint. We do not disagree that the entry fiction is an important doctrinal principle that the Supreme Court has employed to uphold this country’s immigration laws and regulations, most notably our sovereign right to determine who may enter our borders, and our concomitant policy not to let other nations determine whom we must accept or reject by virtue of their refusal to repatriate their own citizens. However, crucial to our understanding and application of the Mezei decision are the circumstances in which the case was decided: the opinion was authored in the midst of the Korean War, as our nation labored under a fear of Communist infiltration²⁴ and in a state of affairs defined as a national emergency.²⁵ Courts have always allowed the executive an extraordinary amount of leniency during wartime or when the national security is truly at stake.²⁶ Such incomparable exigencies are clearly not present in the instant case. We are not operating in a declared state of emergency nor has there been any suggestion to this court that Rosales poses a threat to our national security.

Moreover, while the government argues for absolute judicial deference to its plenary power over immigration policies, it is clear to this court that Congress may not authorize immigration officials to treat excludable aliens with complete impunity. For example, the INS may not, consistent with the Constitution, execute an excludable alien should it be unable to effect his prompt deportation. It is also evident that Congress cannot authorize the infliction of physical torture upon an ex-cludable alien while he is detained in federal prison. See Gisbert, 988 F.2d at 1442; Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir.1987) (excludable aliens “are entitled under the due process clauses of the fifth and fourteenth amendments to be free of gross physical abuse at the hands of state or federal officials”). Consequently, we emphatically reject the government’s premise that excludable aliens are completely foreign to the Fifth Amendment of the Constitution.²⁷ We therefore find ourselves asked to draw a line of constitutional dimension between the act of torturing an excludable alien and the act of imprisoning such an alien indefinitely. We do not believe that the Constitution authorizes us to draw such a line. While it is true that aliens are not entitled to enjoy all the advantages of citizenship, see Diaz, 426 U.S. at 78, 96 S.Ct. 1883, we emphasize that aliens — even excludable aliens — are “persons” entitled to the Constitution’s most basic protections and strictures. We conclude that if Rosales is indeed being detained indefinitely, discussed infra, his Fifth Amendment interest in liberty is necessarily implicated.

D. Rosales’s Fifth Amendment Right to Liberty

The right to be free from bodily restraint, the right at issue in this case, is not a new liberty interest, but is at the heart of those interests protected by the Due Process Clause of the Fifth Amendment and available to all persons within our shores.²⁸ Rosales asserts that his continuing confinement without trial violates his substantive due process rights under the Fifth Amendment to the Constitution. He also argues that his procedural due process rights have been violated because he was not afforded certain procedural protections during his parole revocation hearing with the Cuban Review Panel. In response, the government urges that “it is undisputed that an alien who has been denied admission to the United States has no liberty interest that would entitle him to be at-large within our borders even temporarily.” Appellee’s Br. at 25. According to the government, once an alien has been found excludable his detention is a mere continuation of the exclusion that has been authorized by Congress. Because detention serves only to effectuate the exclusion order, there can be no limit on its length, other than a statutory limit, which Congress has not chosen to provide. See 8 U.S.C. § 1226(e) (1994).

The Due Process Clause is comprised of two components, one substantive and the other procedural. Substantive due process precludes “the government from engaging in conduct that ‘shocks the conscience’ or interferes with rights ‘implicit in the concept of ordered liberty.’ ” See United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (citing Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). Indeed, “[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992).

We construe Rosales’s petition for habeas corpus relief to challenge his detention as impermissible punishment in the absence of a trial. The deprivation of a fundamental liberty interest comports with due process only if it is narrowly tailored to serve a compelling government interest. See Flores, 507 U.S. at 302, 113 S.Ct. 1439. According to Salerno, in order to determine whether Rosales’s detention constitutes an impermissible restriction on liberty or permissible regulation, this court must analyze whether the detention is imposed for the purpose of punishment or whether it may be considered merely incidental to another legitimate government purpose. See Salerno, 481 U.S. at 747, 107 S.Ct. 2095. Unless Congress expressly provides that the purpose of the legislation is punitive, this court must determine whether there is an alternative purpose for the restriction. See id. Because the Supreme Court has found that deportation proceedings for resident aliens are civil actions that are not intended as punishment for unlawful entry into this country, we must conclude, for the purposes of this case, that Congress did not intend to punish excludable aliens by detaining them prior to removal from this country. See AADC, 525 U.S. at 491, 119 S.Ct. 936 (“While the consequences of deportation may assuredly be grave, they are not imposed as a punishment.”); INS v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (“The purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws.”). If the detention is intended as legitimate regulation, as in this case, we must then determine (1) whether there is an alternative, non-punitive purpose which may rationally be assigned to the detention, and (2) whether the detention “appears excessive in relation to the alternative purpose assigned [to it].” Salerno, 481 U.S. at 747, 107 S.Ct. 2095 (internal citation omitted).

Bound by this analytical framework, we first consider whether the government has articulated an alternative purpose, other than punishment, that is rationally related to Rosales’s detention. The government has identified its interests in detaining Rosales as the need to protect society from a person who poses a danger to the safety of other persons or to property pursuant to 8 U.S.C. § 1226(e) (1994).²⁹ As we note infra, we do not dispute that Rosales’s detention is rationally related to this alternative purpose. Our analysis focuses on the second prong of the Salerno test: evaluating whether Rosales’s detention appears excessive in relation to the alternative purpose such that it violates his Fifth Amendment interest in liberty. In order to evaluate the question of excessiveness, we must balance the government’s stated purpose against the likelihood of Rosales’s deportation.

The Due Process Clause clearly does not grant a person an absolute right to be free from detention, even when convicted of no crime. See Salerno, 481 U.S. at 748, 107 S.Ct. 2095; see also Schall v. Martin, 467 U.S. 253, 281, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (permitting pretrial detention of juvenile delinquents considered dangerous); Bell v. Wolfish, 441 U.S. 520, 535-40, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (allowing pretrial detention of arrestee if court finds there is risk of flight); Carlson v. Landon, 342 U.S. 524, 537-42, 72 S.Ct. 525, 96 L.Ed. 547 (1952) (allowing detention of Communist aliens pending deportation because they posed threat to nation’s public interest). In Salerno, the Supreme Court upheld the Bail Reform Act against a challenge asserting that pretrial detention of prisoners amounted to a deprivation of the prisoners’ liberty in violation of the Fifth Amendment. Noting that Congress’s stated goal in enacting the Bail Reform Act was to protect the community from dangerous persons likely to commit crime prior to trial, the Court held that “preventing danger to the community is a legitimate regulatory goal” and the Act was rationally related to that goal. Salerno, 481 U.S. at 747, 107 S.Ct. 2095; see also Martin, 467 U.S. at 264, 104 S.Ct. 2403 (“The ‘legitimate and compelling state interest’ in protecting the community from crime cannot be doubted.”). However, the Court explicitly acknowledged that length of detention could contribute to a finding of excessiveness when it observed that, at some point, “detention in a particular case might become excessively prolonged, and therefore punitive, in relation to Congress’ regulatory goal.” See Salerno, 481 U.S. at 747 n. 4, 107 S.Ct. 2095. In its conclusion that the Bail Reform Act did not cross that point, the Court emphasized that the Act “limits the circumstances under which detention may be sought to the most serious of crimes.” Id. at 747, 107 S.Ct. 2095. Among the factors contributing to its conclusion, the Court noted that the government must demonstrate probable cause that the arrestee committed the charged crime; the government must prove by clear and convincing evidence that the ar-restee presents an identified and articula-ble threat to an individual or the community; the arrestee is entitled to a prompt detention hearing at which he may be represented by counsel and has the right to testify, present evidence and cross-examine witnesses; and the Speedy Trial Act strictly limits the amount of time an arres-tee may be detained prior to trial. See id. at 747-51, 107 S.Ct. 2095. Thus, the Salerno Court, carefully delineating the contours of permissible detention, held that a finding of dangerousness alone is not enough to justify civil pretrial detention without assurances that the detention is of finite and limited duration.

Just as the Supreme Court concluded in Salerno, we recognize that Rosales’s detention is rationally related to the government’s non-punitive purpose of protecting public safety. Our concern is whether Rosales’s detention, rationally related though it may be to the government’s purpose, is unconstitutionally excessive when compared with the indefinite nature of his confinement. Detention to effectuate deportation is arguably analogous to detention prior to criminal trial. Although Rosales has never committed a crime of violence, he has compiled a fairly long and progressively more serious criminal record. The government’s interest in detaining Rosales to protect the community from harm is perhaps similar to the government’s interest in detaining a violent arrestee prior to trial who presents a safety risk to the community should he be released. As the Supreme Court held in Salerno, “the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.” Salerno, 481 U.S. at 748, 107 S.Ct. 2095. However, in this case, there are no protections similar to those in Salerno for aliens who are detained while the government attempts to effect their deportation. Cf. Foucha, 504 U.S. at 82, 112 S.Ct. 1780 (indefinite civil commitment of mentally ill persons is unconstitutional because, unlike in Salerno, the detention is not limited in duration); Martin, 467 U.S. at 269-70, 104 S.Ct. 2403 (pretrial detention of juveniles is constitutional because it is “strictly limited in time” and juveniles receive an array of procedural protections during detention such that juvenile may not be detained more than seventeen days). As the government has repeatedly emphasized, there are no limits on the length that the Attorney General may, under 8 U.S.C. § 1226(e) (1994), detain an excludable alien released from prison once the Attorney General concludes that the alien presents a danger to persons or property.

Moreover, we note that in this case, unlike in Salerno, Rosales has served his prison sentence for the crime with which he was charged and to which he pleaded guilty. The district court judge set the length of Rosales’s sentence pursuant to the United States Sentencing Guidelines, and Rosales paid his debt to society in due course. Should Rosales commit another crime upon his release, there is no reason why he could not be charged, prosecuted, and convicted for that crime. His sentence would undoubtedly reflect his recidivist tendency. Cf. Foucha, 504 U.S. at 82, 112 S.Ct. 1780 (noting that society’s “normal means of dealing with persistent criminal conduct” is sufficient arsenal against threat that mentally ill person may commit future crime if he is not indefinitely committed). Were Rosales a citizen, he would be entitled to be free once he served his sentence absent any new charges of criminal conduct, even if authorities believed him still to be a dangerous person capable of inflicting future harm on society.

Because Congress has bestowed on the executive the authority to determine whether an alien released from prison still presents a threat to society, however, such an alien may be detained after serving his sentence and prior to his deportation. This court does not dispute Congress’s authority to grant the executive that power. However, we note that in one of its earliest immigration cases, the Supreme Court delineated between detention as a means to ensure deportation and detention as a method of punishment. In Wong Wing, the Supreme Court stated that “[w]e think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.” Wong Wing, 163 U.S. at 235, 16 S.Ct. 977. Implicit in the Supreme Court’s opinion is the idea that the strength of the government’s interest in protecting the community and enforcing its immigration laws must be considered in relation to the possibility that the government may actually achieve its goal to effect Rosales’s deportation. With this admonition in mind, we turn to an evaluation of the likelihood of Rosales’s return to Cuba in order to determine whether his civil detention is excessive in relation to the government’s purpose in detaining him.

The government argues that Cuba’s unwillingness to accept the return of its citizens does not affect Rosales’s statutory or constitutional rights. Appellee’s Br. at 18. We disagree. The government submitted an affidavit by Michael Ranneberger, the Coordinator of the Office of Cuban Affairs in the State Department, detailing this country’s negotiations with Cuba for the return of Mariel Cubans. Ranneberger’s testimony reveals clearly that little progress on repatriation has been made in over fifteen years of talks. Ranneberger could only assert that the issue of repatriating Mariel Cubans “remains under discussion.” J.A. at 57. No evidence was presented to this court that any agreement between the two nations was likely or even possible in the near future. Moreover, no evidence was presented that Rosales is among those Mariel Cubans who may be returned even if such an agreement were to be executed.

Because the government has offered this court no credible proof that there is any possibility that Cuba may accept Rosales’s return any time in the foreseeable future, we are constrained to conclude that Rosales faces indefinite detention.³⁰ While other circuits have found that excludable aliens cannot demonstrate that they are being detained indefinitely because of the possibility that their home country will one day invite them back, see Zadvydas, 185 F.3d at 294 (holding that detention is not indefinite until there is a showing that “deportation is impossible, not merely problematical, difficult, and distant”); Chi Thon Ngo, 192 F.3d at 398 (concluding that “[i]t is extremely unlikely that the [Vietnamese] petitioner’s detention will be permanent” because “[diplomatic efforts with Vietnam are underway, albeit at a speed approximating the flow of cold molasses”), we decline to impose such a standard on Rosales. We will not require an alien to demonstrate that there is no conceivable possibility that his home country will ever accept his return in order to prove that his or her detention is indefinite in nature. Due to the vicissitudes of national polities and the potential for change in international relations, no alien could ever surmount such a standard, as the government need only point to ongoing talks, as it has in this case, or the potential for renewed relations to defeat the alien’s claim that his home nation has no interest in repatriating him. Instead, this court will require the government to demonstrate (1) that the alien’s home nation and this government are engaged in diplomatic discussions which encompass a specific repatriation agreement whose details are currently being negotiated; and (2) that the alien is among those whose repatriation the agreement contemplates. We believe that, because the government has superior access to information on our diplomatic negotiations with other nations, the burden appropriately rests on the government to demonstrate adequately to this court that there is a genuine likelihood that the alien is among those whom the home country will agree to take back.³¹

Moreover, we conclude that the fact that Rosales receives periodic review of his parole status does not affect the nature of his detention as indefinite. The district court determined that because the Cuban Review Plan calls for yearly consideration of a detainee’s status, Rosales cannot characterize his detention as indefinite. J.A. at 92. According to the district court, “[h]is detention is not indefinite but is for only one year at a time; at the end of each year he has an opportunity to plead his case anew.” J.A. at 92. Other courts have held similarly. See Chi Thon Ngo, 192 F.3d at 398 (finding prolonged detention permissible provided the appropriate provisions for parole are available); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir.1995) (en banc) (Mariel Cuban’s detention is more like “a series of one-year periods of detention followed by an opportunity to plead his case anew”); cf. Zadvydas, 185 F.3d at 291 (noting that because a resident alien has the opportunity to be paroled by showing that he is no longer either a threat to the community or a flight risk, and because his case is reviewed periodically, his detention cannot be considered indefinite). However, as Rosales noted himself in his pro se brief to this court, even monthly review of his status would not change the fact that he will not be released until Cuba agrees to accept him, a prospect we have already discounted, or the Cuban Review Panel determines that his behavior comports with its guidelines such that it may offer him parole. As we discussed earlier, because of the broad discretion bestowed upon the INS to grant and revoke parole, Rosales can never be certain of receiving such parole, no matter how well he behaves himself in detention.

Bearing in mind our obligation to weigh the government’s stated interest in protecting the community from danger against the likelihood that the government will be able to effectuate Rosales’s deportation, we conclude that Rosales’s confinement can only be considered excessive in relation to the purpose of protecting the community from danger and enforcing an immigration order that is, at present, unenforceable.³² We believe that this case no longer implicates the government’s plenary power to control the scope of our nation’s immigration laws, namely its ability to enforce final orders of exclusion and deportation. Judicial deference to the political branches’ authority over immigration matters has always been premised on the paramount importance of our nation’s self-determination and our national prerogative to control who enters our borders and on what conditions. See Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 (noting that judicial deference “is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations”) (internal citation omitted). Such deference becomes less compelling, however, when it directly conflicts with other constitutional interests. Cf. INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (“Congress has plenary authority in all eases in which it has substantive legislative jurisdiction, so long as the exercise of that authority does not offend some other constitutional restriction.”) (internal citation omitted). When there is no practical possibility that the alien will be returned home, as in this case, then Rosales’s prolonged detention can no longer be considered an ancillary administrative element of the INS’s removal procedures and judicial deference loses its rationale altogether. We agree with the Tenth Circuit that when an alien’s home country refuses to accept him, it appears that “detention is [ ] used as an alternative to exclusion rather than a step in the process of returning petitioner to his native Cuba.”³³ Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1386 (10th Cir.1981); cf. Chi Thon Ngo, 192 F.3d at 398 (“It is [ ] unrealistic to believe that these INS detainees are not actually being ‘punished’ in some sense for their past conduct.”). We conclude, therefore, that Rosales’s detention has crossed the line from permissive regulatory confinement to impermissible punishment without trial.³⁴ We order Rosales’s release within thirty days of the issuance of the mandate, following a hearing before the district court, upon such conditions as the district court may impose consistent with this opinion.

VI. Conclusion

The district court held that the prospect of indefinitely detaining Rosales was not “arbitrary, conscience-shocking nor oppressive in the constitutional sense.” With all due respect, this court must disagree. We conclude that the district court improperly denied Rosales’s petition for ha-beas corpus. We therefore REVERSE the district court’s judgment and REMAND for proceedings in accordance with this opinion.

1 . The statute read in pertinent part: "The Attorney General may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A) (1994) (amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA”) § 602(a), Pub.L. 104-208, 110 Stat. 3009 (1996)).

2 . Rosales was first arrested in 1980 for aggravated battery. That charge was dismissed. J.A. at 145. He was arrested for other offenses, including possession of marijuana, burglary, and loitering, but apparently he was not convicted of those offenses. J.A. at 147-54.

3 . Before the enactment of IIRIRA, aliens ineligible for admission into the United States were designated "excludable” aliens. See 8 U.S.C. § 1182(a) (1994). Excludable aliens who were granted "parole” by the Attorney General could then enter the country. If an excludable alien's parole was revoked, exclusion proceedings would be brought to deport him. See 8 U.S.C. § 1182(d)(5)(A) (1994). These aliens are now referred to as "inadmissible” aliens. See 8 U.S.C. § 1182(a). Aliens who had gained admission into the United States but were here illegally were designated "deportable” aliens. See 8 U.S.C. § 1251 (1994). They could be removed from this country by deportation proceedings. See 8 U.S.C. § 1252 (1994). Proceedings to remove both inadmissible and deportable aliens are now referred to as "removal” proceedings. See 8 U.S.C. § 1229a. Inadmissible aliens are removable under 8 U.S.C. § 1227(a)(1)(A). Under the prior statutory scheme, Rosales was an "excludable” alien.

4 . Because of the lack of an agreement with Cuba for the return of Mariel Cubans, the Attorney General adopted the Cuban Review Plan, at 8 C.F.R. §§ 212.12-.13, in 1987 to govern the grant and revocation of parole to all Cubans who arrived in the United States between April 15, 1980 and October 20, 1980. Under the Plan, the authority to grant parole for detained Mariel Cubans rests with the INS Commissioner, who may act through an Associate Commissioner for Enforcement. See id. § 212.12(b)(1). The Associate Commissioner must appoint a Review Plan Director who designates two- or three-person panels (the "Cuban Review Panel”) to make parole recommendations to the Associate Commissioner. The regulations provide for the annual review of a detainee’s status. See id. at § 212.12(g)(2). Before making a recommendation that a detainee be granted parole, the Cuban Review Panel members "must conclude that: [1] The detainee is presently a nonviolent person; [2] The detainee is likely to remain nonviolent; [3] The detainee is not likely to pose a threat to the community following his release; and [4] The detainee is not likely to violate the conditions of his parole.” Id. § 212.12(d)(2).

Each panel must weigh the following factors when making its decisions: “[1] The nature and number of disciplinary infractions or incident reports received while in custody; [2] The detainee's past history of criminal behavior; [3] Any psychiatric and psychological reports pertaining to the detainee's mental health; [4] Institutional progress relating to participation in work, educational and vocational programs; [5] His ties to the United States, such as the number of close relatives residing lawfully here; [6] The likelihood that he may abscond, such as from any sponsorship program; and [7] Any other information which is probative of whether the detainee is likely to ... engage in future acts of violence, ... future criminal activity, or is likely to violate the conditions of his parole.” See id. § 212.12(d)(3).

5 .The statute provided, in pertinent part, that "the Attorney General shall take into custody any alien convicted of an aggravated felony upon release of the alien” from criminal confinement. 8 U.S.C. § 1226(e) (1994). The parties do not dispute that Rosales's conviction for conspiracy to possess with intent to distribute cocaine was an "aggravated felony” under the statute.

6 . The Review Panel worksheet also reveals that Rosales has demonstrated "good conduct” while in custody and that he has participated in English as a Second Language classes, a drug rehabilitation program, industrial training, automotive training, and has received his GED equivalency. J.A. at 137.

7 . As of July 19, 2000, Rosales had been determined to be releasable by the INS pending placement in a suitable halfway house. The effect of this determination is discussed infra.

8 . This statute provides that "[t]he Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1).

9 .This section provides: "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Chapter.” 8 U.S.C. § 1252(g).

10 . This section provides: "Nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.” 8 U.S.C. § 1231(h).

11 . This section provides: "The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” 8 U.S.C. § 1226(e).

12 . In Mansour, this court noted that because habeas relief was available to aliens seeking review of final deportation orders, the statute denying any court’s jurisdiction to review those orders was constitutional. However, this court left undecided the scope of habeas review available to such aliens. See Mansour, 123 F.3d at 426 n. 3 (“[W]e need not address the scope of review that is available on a petition for a writ of habeas corpus.”).

13 . We do not believe that either 8 U.S.C. § 1226(e) or § 1231(h) limits our jurisdiction over this appeal because these newly enacted provisions under IIRIRA do not govern this case. See IIRIRA § 309(c)(1).

14 . IIRIRA provides that the revised rules governing removal proceedings, as well as judicial review of those proceedings, do not apply to aliens who were already in exclusion or deportation proceedings prior to the Act’s effective date on April 1, 1997. See IIRIRA § 309(c)(1). However, IIRIRA § 306(c)(1) makes § 1252(g) applicable to cases "arising from all past, pending, or future exclusion, deportation, or removal proceedings” under the Act. IIRIRA § 306(c)(1) (emphasis added). Section 1252(g) purports to strip courts of their jurisdiction over most actions by the Attorney General relating to immigration actions "[ejxcept as provided in this section.” However, according to § 309(c)(1), none of the other provisions in § 1252 apply to gases pending before April 1, 1997. In order to avoid reading § 309(c)(1) into a nullity, the Supreme Court crafted an extremely narrow reading of § 1252(g). See Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1020 n. 3 (6th Cir.1999) (explaining the conflict between the provisions in greater depth).

15 . The Associate Commissioner may revoke parole in the exercise of her discretion when "(1) The purposes of parole have been served; (2) The Mariel Cuban violates any condition of parole; (3) It is appropriate to enforce an order of exclusion or to commence proceedings against a Mariel Cuban; or (4) The period of parole has expired without being renewed.” 8 C.F.R. § 212.12(h).

16 .This court has authored several unpublished decisions including Betancourt v. Chandler, No. 99-5797, 2000 WL 1359634, at *2 (6th Cir. Sept. 14, 2000) (rejecting claim that Attorney General lacks authority to detain ex-cludable alien indefinitely); Laetividad v. INS, No. 99-5245, 1999 WL 1282432, at * 1 (6th Cir. Dec.27, 1999); Fernandez-Santana v. Chandler, No. 98-6453, 1999 WL 1281781, at *1 (6th Cir. Dec.27, 1999); and Gonzalez v. Luttrell, No. 96-5098, 1996 WL 627717, at *1 (6th Cir. Oct.29, 1996), that affirm the district court's dismissal or denial of an excludable alien's habeas corpus petition. However, because these cases are unpublished, they are not binding on this court. See 6th Cir.R. 28(g); Salamalekis v. Comm'r of Soc. Sec., 221 F.3d 828, 833 (6th Cir.2000) (unpublished decisions are not binding precedent).

17 . 8 U.S.C. § 1226 (1994) was repealed and reenacted by Congress in IIRIRA § 303 (codified at 8 U.S.C. § 1226). The amended version of the statute is inapplicable to this case.

18 . See 8 U.S.C. § 1101(a)(43) (1994) (defining aggravated felonies).

19 . The Constitution imbues the legislature with the power to “establish an uniform Rule of Naturalization.” U.S. Const. Art. I, § 8, cl. 4.

20 . The plenary power doctrine, articulated in Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 96 L.Ed. 586 (1952), states that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” See also Zadvydas, 185 F.3d at 289 ("The power of the national government to act in the immigration sphere is thus essentially plenary.”).

21 . See 8 U.S.C. §§ 1103, 1182. Section 1103(a)(1) stales that the “Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens” and that the “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”

22 . Mezei was born in Gibraltar and lived in the United States from 1923 to 1948. See Mezei, 345 U.S. at 208, 73 S.Ct. 625. In 1948, he went to Romania to visit his dying mother. He was denied entry to Romania, and remained in Hungary for 19 months before returning to the United States with a quota immigration visa issued by this country. On February 9, 1950 he was deemed excluda-ble by an immigration officer at Ellis Island on the ground that his entry would prejudice the public interest because he was a security threat.

23 . The Passport Act was amended in 1941 by an act of Congress pursuant to a national emergency declared by the President on May 27, 1941 and which continued in effect in 1953. The amendments to the Act gave the Attorney General authority to exclude aliens whose "entry would be prejudicial to the United States.” See Knauff, 338 U.S. at 540-41, 70 S.Ct. 309 (citing Act of June 21, 1941, c. 210, 55 Slat. 252, amending § 1 of the Act of May 22, 1918, c. 81, 40 Stat. 559, codified at 22 U.S.C. § 223 (repealed 1952)).

24 . The Supreme Court in Mezei specifically noted that Mezei's stateless condition was due to the fact that he "left the United States and remained behind the Iron Curtain for 19 months.” Mezei, 345 U.S. at 214, 73 S.Ct. 625. In his dissent, Justice Jackson criticized the majority for succumbing to the government’s fear of Communist "infiltration.” He stated: "[M]y apprehensions about the security of our form of government are about equally aroused by those who refuse to recognize the dangers of Communism and those who will not see danger in anything else.” Id. at 227, 73 S.Ct. 625 (Jackson, J., dissenting). He concluded by observing that it is “inconceivable” that a "measure of simple justice and fair dealing," namely a “fair hearing with fair notice of the charges,” would "menace the security of this country. No one can make me believe that we are that far gone.” Id. at 228, 73 S.Ct. 625.

25 . Moreover, Mezei has been severely criticized for establishing a "preposterous” level of deference to Congress’s authorization of due process procedures for aliens. See Henry Hart, The Power of Congress to Limit the luris-diction of Federal Courts: An Exercise in Dialectic, 66 Harv. L.Rev. 1362, 1392 (1953).

26 . Indeed, prior to those Supreme Court cases in the 1950s allowing indefinite detention, courts refused to permit the indefinite detention of aliens. As one court held:

The right to arrest and hold or imprison an alien is nothing but a necessary incident of the right to exclude or deport. There is no power in this court or in any other tribunal in this country to hold indefinitely any sane citizen or alien in imprisonment, except as a punishment for crime. Slavery was abolished by the Thirteenth Amendment. It is elementary that deportation or exclusion proceedings are not punishment for crime.... [Petitioner] is entitled to be deported, or to have his freedom.

Bonder v. Johnson, 5 F.2d 238, 239 (D.Mass.1925); see also Caranica v. Nagle, 28 F.2d 955, 957 (9th Cir.1928) (holding that government must release alien if government fails to execute order of deportation "within a reasonable time”).

27 . Other circuits have noted that excludable aliens possess some form of due process rights. See, e.g., Chi Thon Ngo, 192 F.3d at 396 ("Even an excludable alien is a 'person' for purposes of the Fifth Amendment and is thus entitled to substantive due process.”); Zadvydas, 185 F.3d at 294 ("Excludable aliens are persons, entitled to some due process, and other, constitutional protections.”); Lynch, 810 F.2d at 1366 (holding that “even excluda-ble aliens are entitled to the protection of the due process clause while they are physically in the United States”).

28 . We note that the Supreme Court decided Mezei before deciding a line of cases that expanded upon its conceptions of substantive due process, as well as cases that developed a framework for analyzing whether civil or regulatory confinement rises to the level of criminal "punishment” and thus violates a detainee's substantive due process rights.

29 . Other courts have identified additional purposes for detention including: the government’s ability to enforce deportation or exclusion orders; and preventing an alien's flight prior to deportation. See Hermanowski v. Farquharson, 39 F.Supp.2d 148, 159 (D.R.I.1999); Phan v. Reno, 56 F.Supp.2d 1149, 1155-56 (W.D.Wash.1999); Vo v. Greene, 63 F.Supp.2d 1278, 1285 (D.Colo.1999). However, because the government identified only safety to persons and property as its rationale for Rosales’s detention, we confine ourselves to evaluating this interest.

30 . Rosales has thus far been detained in immigration custody for over three years.

31 . Although the dissent states that excludable aliens "will not or cannot go elsewhere,” see infra p. 47 (emphasis added), we think it important to note that it has never been suggested to this court that Rosales has had the opportunity to be released to any third country- The dissent further states, see infra note 17, that "Rosales’s habeas petition does not suggest that he or his relatives, who are living in Florida, have arranged for him to leave the United States. Instead, he wants to be released into this country.” We seriously question how an alien who is in prison and unrepresented by counsel could ever "arrange” to leave this country, much less whether there is any evidence in the record that any other country will accept Rosales.

32 . Several district courts have reached the same constitutional conclusion with regard to deportable aliens. See Kay v. Reno, 94 F.Supp.2d 546, 553 (M.D.Pa.2000); Le v. Greene, 84 F.Supp.2d 1168, 1175 (D.Colo.2000); Vo v. Greene, 63 F.Supp.2d 1278, 1285 (D.Colo.1999); Tam v. INS, 14 F.Supp.2d 1184, 1192 (E.D.Cal.1998) ("At some point, indefinite detention of a deportable alien caused by an unenforceable INS order must intersect with the Constitution¹'); Hermanowski v. Farquharson, 39 F.Supp.2d 148, 162 (D.R.I.1999) (detention for over twenty-eight months with the promise of continued imprisonment for the rest of his life even though alien's country has refused to allow deportation constitutes governmental conduct that "shocks the conscience” in violation of the Fifth Amendment).

33 . Although the dissent claims that our reasoning will undermine this nation’s ability to enforce its immigration laws by encouraging foreign countries to send their undesirable citizens to our shores, see infra p. 736, we believe the dissent’s contention is belied by common sense. By virtue of the fact that a nation has cast out certain of its citizens — as in the Mariel boatlift — we can reasonably conclude that such a nation is unlikely to be influenced by the possibility that one day its citizens might be paroled into this country, rather than spending their remaining days locked up in American detention centers.

34 . Because we find that petitioner’s substantive due process rights were violated-, we do not reach his procedural due process claims.

1 . Immigration parole adopts the fiction that Rosales has never entered this country. See Vargas v. Swan, 854 F.2d 1028, 1029 (7th Cir.1988). Despite his parole and physical presence within the United States, the INS treats Rosales as though he has not been admitted into this country, and, legally, he remains at "the threshold of initial entry.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953). Therefore, he "stands on a different footing” than an alien who has already passed through this nation’s gates. Id.