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

44 F.3d 1441 63 USLW 2433 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 Oct. 20, 1994. Decided Jan. 12, 1995. Emily A. Radford and Lauri Steven Filppu, U.S. Dept. of Justice, Washington, DC, for respondent-appellant. Mark D. Kemple and Karen N. Fredericksen, 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 Education Fund. Paul Hoffman (and 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 (and 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, National Ass'n of Criminal Defense Lawyers, and California Attorneys for Criminal Justice. Appeal from the United States…

Opinion by Judge HALL, Dissent by Judge PREGERSON.

Alexis Barrera-E ehavarria is an alien who arrived in the United States in 1980 and was ordered excluded and deported in 1985. His deportation has not been possible, however, because neither his country of origin, Cuba, nor any third country, will accept him. With the exception of one brief period in 1992 when Barrera was released on immigration *1443 parole, he has been detained on behalf of the Immigration and Naturalization Service (“INS”) in a variety of prisons since 1985.

In 1989, Barrera instituted the present habeas corpus action, arguing that the Attorney General lacks statutory and constitutional authority to detain him indefinitely when it is clear that his deportation cannot be effected within the foreseeable future, and that his continued detention violates rules of international law which have binding domestic force. 1 After more than four years of proceedings, the district court granted the writ of habeas corpus, ordering the government to release Barrera on immigration parole. On appeal by the government, a divided panel of this court affirmed. 2 A majority of the active, nonreeused judges of this court voted to…

dissenting:

The majority concludes that the Attorney General has the statutory authority to detain indefinitely an excludable alien who practicably cannot be deported. Because no statute grants such authority, and because I believe that the indefinite detention of an excludable alien violates due process, I dissent.

1. LACK OF STATUTORY AUTHORITY

As Judge Noonan pointed out in the decision of the three-judge panel, 21 F.3d 314 (9th Cir.1994), there is no statute that explicitly authorizes the Attorney General to detain indefinitely an excludable alien who practicably cannot be deported. The majority argues that this authority is implicit. Drawing from an amalgam of immigration statutes, the majority cobbles together the semblance of such authority.

But these statutes only authorize the Attorney General to detain excludable aliens for a period. 8 U.S.C. § 1225 (b) allows the detention of aliens who appear to be excludable for “further inquiry.” After such inquiry, the detention under § 1225(b) has served its purpose, and further detention is not authorized. 8 U.S.C. § 1182 (d)(5)(A) provides for the return of an excludable alien on parole to “the custody from which he was…