Luis L. Armentero v. Immigration and Naturalization Service , 412 F.3d 1088 ( 2005 )

FERGUSON, Circuit Judge,

concurring specially:

I concur in the order to dismiss this matter on the basis of the fugitive disen-titlement doctrine. I write separately, however, to express my concern over the increasing assumption of power 'by U.S. administrative officials to decide matters vested by our constitution to the judiciary. Administrative agents cannot be vested with the authority to render decisions concerning the length of detention. Such decision-making power rests in the hands of a judicial officer.

8 U.S.C. § 1231(a)(6) provides in relevant part: “An alien ordered removed who is inadmissible under ... section 1182 of this title ... may be detained beyond the removal period.” 8 C.F.R. §§ 212.12-13 (the “Cuban Review Plan”), adopted in 1987, confer special administrative authority to a Cuban Review Panel to determine a Mariel Cuban detainee’s suitability for parole. The Panel consists of two or three persons selected from the staff of the Bureau of Immigration and Customs Enforcement (BICE), a division of the Department of Homeland Security. See 8 C.F.R. § 212.12(c). A Mariel Cuban detainee may be released on parole only “for emergent reasons or for reasons deemed strictly in the public interest.” 8 C.F.R. § 212.12(b)(1). The ultimate decision to release a Mariel Cuban detainee is made by the Associate Commissioner for Enforcement, a single administrative official. See 8 C.F.R. § 212.12(d)(2).

This statutory and administrative arrangement affords the Attorney General (now the Secretary of Homeland Security), Cuban Review Panelists, and the Associate Commissioner for Enforcement the authority to determine whether and for how long an excludable Cuban national may be detained. But this authority has been seriously limited. In Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court interpreted 8 U.S.C. § 1231(a)(6) as authorizing the Attorney General to detain admissible aliens only so long as “reasonably necessary” to remove them from the country. “[0]nce removal is no longer reasonably foreseeable,” the Court held, “continued detention is no longer authorized.” Id. at 699, 121 S.Ct. 2491. The presumptive period during which the detention of an alien is reasonably necessary is six months. Id. at 701, 121 S.Ct. 2491. In Clark v. Martinez, -U.S. -,-, 125 S.Ct. 716, 722, 160 L.Ed.2d 734 (2005), the Supreme Court extended Zadvydas to apply to ex-cludable (and inadmissible) aliens as well.

Zadvydas and Martinez, therefore, invite doubt as to the constitutionality of the current Cuban Review Plan. “The Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491 (citations omitted). “[T]he Constitution may well preclude granting ‘an administrative body the unreviewable authority to make determinations implicating fundamental rights.’ ” Id. at 692, 121 S.Ct. 2491 (quoting Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 450, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). I, therefore, take issue with the authority of a Cuban Review Panel to render judicial determinations concerning excludable aliens’ length of detention.

In Armentero’s case, a Cuban Review Panel reviewed his case seven times in the span of nearly a decade, and six of those times the Panel denied him parole and recommended his continued detention. To this date, notwithstanding the lower federal courts’ review of his current habeas petition, no judicial officer has reviewed whether Armentero should remain detained. A single ad hoc administrative panel-indeed, a single administrator alone-should not assume the distinctly judicial role of determining matters of fundamental constitutional importance. The Internal Revenue Service does not decide how long to detain tax evaders; neither should a Cuban Review Panel decide how long to detain excludable aliens.