Domingo Arango Marquez v. Immigration and Naturalization Service

Opinion by Judge WARDLAW; Concurrence by Judge BEEZER

OPINION

Domingo Arango Marquez is a Mariel Cuban refugee subject to indefinite detention by the Immigration and Naturalization Service (“INS”) since August 16, 2000, because his country of origin will not accept his repatriation. Because he is an “excluded alien” under the former immigration law or an “inadmissible alien” under the Illegal Immigration Reform & Immigrant Responsibility Act of 1996 (“IIRIRA”), the district court held that the presumptively reasonable period of six months post-removal detention under 8 U.S.C. § 1231 established in Zadvydas v. Davis, 533 U.S. 678, 700 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001) for admitted aliens is inapplicable to Marquez’s case and denied his habeas corpus petition. Because we have since extended the statutory construction of § 1231 in Zadvydas to embrace aliens deemed inadmissible under 8 U.S.C. § 1182 , Lin Guo Xi v. INS, 298 F.3d 832, 833-34 (9th Cir.2002), we hold that Marquez is entitled to a determination whether his removal to Cuba is reasonably foreseeable and to release, subject to appropriate supervised conditions of release, if it is not.

I.

Marquez is a native and…

concurring.

I concur in the opinion of the court because I am bound by the court’s prior decision in Lin Guo Xi v. INS, 298 F.3d 832 (9th Cir.2002). Lin Guo Xi relies on the Supreme Court’s opinion in Zadvydas v. Davis, 533 U.S. 678 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001). Lin Guo Xi holds that under 8 U.S.C. § 1231 (a)(6), inadmissable aliens are entitled to the same reasonable time limitations against indefinite detention as are deportable aliens.

I write separately because the holding in Lin Guo Xi , including its interpretation of Zadvydas , is contrary to the express holdings of the majority of our sister circuits which consider 8 U.S.C. § 1231 (a)(6). See Benitez v. Wallis, 337 F.3d 1289, 1298-1301 (11th Cir.2003) (per curiam); Borrero v. Aljets, 325 F.3d 1003, 1007 (8th Cir.2003); Rios v. INS, 324 F.3d 296, 297 (5th Cir.2003); Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991-92 (7th Cir.2001), cert. denied, 537 U.S. 846 , 123 S.Ct. 185 , 154 L.Ed.2d 73 (2002); see also Rosales-Garcia v. Holland, 322 F.3d 386, 416-21 (6th Cir.2003) (Boggs, J., dissenting), cert. denied, — U.S. -, 123 S.Ct. 2607 , 156 L.Ed.2d 627 (2003).

346 F.3d 892 Domingo ARANGO MARQUEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. No. 01-17191. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 11, 2002 — San Francisco, California. Filed September 19, 2003. COPYRIGHT MATERIAL OMITTED Daniel J. Broderick, Chief Assistant Federal Defender, Gillian Black, Staff Attorney, Federal Defender, Sacramento, California, for the Appellant. Shelley R. Goad, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the Appellee. Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Chief Judge, Presiding. D.C. No. CV-00-06584-REC. Before: Dorothy W. NELSON, Robert R. BEEZER, and Kim McLANE WARDLAW, Circuit Judges. Opinion by Judge WARDLAW; Concurrence by Judge BEEZER OPINION WARDLAW, Circuit Judge. 1 Domingo Arango Marquez is a Mariel Cuban refugee subject to indefinite detention by the Immigration and Naturalization Service ("INS") since August 16, 2000, because his country of origin will not accept his repatriation. Because he is an "excluded alien" under the…