Alexis Barrera-Echavarria v. Richard H. Rison, Warden

21 F.3d 314 62 USLW 2609 Alexis BARRERA-ECHAVARRIA, Petitioner-Appellee, v. Richard H. RISON, Warden, Respondent-Appellant. No. 93-56682. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1994. Decided March 31, 1994. Emily Anne Radford, U.S. Dept. of Justice, Washington, DC, for respondent-appellant. Karen N. Fredriksen, and Mark D. Kemple, Gibson, Dunn & Crutcher, Los Angeles, CA, for petitioner-appellee. Lucas Guttentag, Ann Parrent, New York City, for amici curiae, American Civil Liberties Union, American Immigration Law Foundation/Legal Action Center, Mexican American Legal Defense and Educ. Fund, and Asian American Legal Defense and Educ. Fund. Paul Hoffman (Bruce Hall and Cassondra Williams, Law Students), Los Angeles, CA, for amicus curiae, ACLU of Southern California. Charles D. Weisselberg, Michael J. Brennan, Dennis E. Curtis, Carrie L. Hempel (Guy C. Galambos, Seth M.M. Stodder and Lesley D. Young, Law Students), Los Angeles, CA, for amici curiae, Nat. Legal Aid and Defender Ass'n, Nat. Ass'n of Criminal Defense Lawyers, and California Attys., for Criminal Justice. Appeal from the United States District Court for the Central District of…

The United States appeals from the order of the district court granting a writ of habeas corpus to Alexis Barrera-Echavarria, one of the large group of so-called Mariel Cubans who came to these shores in May 1980. He has been found to be an excluded alien, and his return to Cuba has been ordered. Cuba has refused to take him back, and no other country has been identified as willing to accept him. The Immigration and Naturalization Service (INS), confronted with this intractable situation, has had him confined in federal prisons since 1985. The district court held that the confinement was without statutory authority and, further, that continued imprisonment constituted punishment of Barrera in violation of the Fifth and Sixth Amendments. We affirm the grant of the writ.

The writ issued by the district court requires the Attorney General to release Barrera to a halfway house or some other form of supervised release program. Barrera does not challenge tbe propriety of such supervised release. We have no reason to pass upon such custody, and this opinion does not address it.

DISCUSSION

Barrera is not a citizen; he is not a resident alien; he is an excluded alien, who in a legal…

dissenting:

The majority has given us an opinion from which we hear, in the distance, the clash of ideas and arms that characterized the Age of Enlightenment and the accompanying American and French Revolutions. However, I am not moved to conclude that the incarceration of Barrera-Echavarria has violated, or presently does violate, the Eighth Amendment of the Constitution. Moreover, this incarceration is explicitly authorized by an act of Congress. I begin by examining 8 U.S.C. § 1226 (e).

I.

When Congress enacted section 1226(e) in 1990, it was aware of immigration detention and of the Attorney General’s regulations for parole of Mariel Cubans. See, e.g., Mariel Cuban Detainees: Events Preceding and Following the November 1987 Riots: Hearing Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm, on the Judiciary, 100th Cong., 2d Sess. (1988) [hereinafter Hearing I ]. Thus, Congress was aware that the Attorney General was detaining some aliens and releasing others.

Its enactment of section 1226(e) was therefore designed to prevent the release of all such aliens. See 136 Cong.Rec. S17,118 (daily ed. Oct. 26, 1990) (statement of Sen.…