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02. U.S. submission to the Inter-American Commission on Human Rights concerning claims related to Mariel Cubans


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Response of the Government of the United States to Report No. 51/01, Case No. 9903, Raphael Ferrer-Mazorra et al.

The United States respectfully refers to its earlier responses, which are available on the Commission’s website. For the reasons expressed in those responses, the United States does not intend to observe the recommendations in the above-referenced matter. As a courtesy to the Commission, the United States has attached the recent United States Supreme Court decision, Clark v. Suarez-Martinez, 125 S.Ct. 716 (Jan. 12, 2005) (available at 2005 WL 50099), which may be of interest to the Commission to the extent it bears on the Commission’s recommendations.

In 1980, Sergio Suarez-Martinez and Daniel Benitez, in the companion case, both arrived from Cuba as part of the Mariel boatlift and were paroled, as opposed to admitted, into the United States. By the time they applied for permanent resident status, both were inadmissible because of criminal convictions in the United States arising after their parole. Both had their parole revoked and were taken into immigration custody and placed in exclusion or removal proceedings before an immigration judge. As amended in 1996, the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., provides that, upon conclusion of removal proceedings, the government shall remove an alien who is determined to be inadmissible or deportable from the United States within a period of 90 days. 8 U.S.C. § 1231(a)(1)(A) (2000). The statute also allows for detention beyond the 90-day removal period in three circumstances: if the alien is (1) inadmissible, (2) deportable under specified provisions, or (3) determined to be a risk to the community or a flight risk. 8 U.S.C. § 1231(a)(6). Both Suarez-Martinez and Benitez were detained beyond the 90-day removal period, and each filed a habeas corpus petition challenging his continued detention.

In an earlier decision construing § 1231(a)(6), Zadvydas v. Davis, 533 U.S. 678 (2001), the U.S. Supreme Court interpreted the statute to authorize detention of aliens previously admitted for lawful permanent residence only as long as “reasonably necessary” to effectuate their removal. The presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months; after that, the alien is eligible for conditional release if he or she can demonstrate that there is no significant likelihood of removal in the reasonably foreseeable future. Zadvydas, 533 U.S. at 701. In Suarez-Martinez, the Court held that the same interpretation applies to other aliens, including inadmissible aliens, like Suarez-Martinez and Benitez, detained under § 1231(a)(6). Suarez-Martinez, 2005 WL 50099, at *13. As explained by the Court, "[T]o give these same words a different meaning for each category (of aliens) would be to invent a statute rather than interpret one." Id.

The United States hopes that this information is helpful to the Commission.



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