Habeas Corpus

• Author: International Law Group

An immigration official has a duty to inspect every alien who arrives in the United States. Unless the official concludes that the alien is "clearly and beyond a doubt entitled to be admitted," he or she generally has to undergo removal proceedings to determine admissibility. Meanwhile, the U.S. may detain the alien, subject to the Secretary of Home Security's (Secretary's) discretionary authority to parole him into the country.

If, at the end of removal proceedings, the tribunal finds the alien inadmissible and to be removed, the law provides that the Secretary "shall remove the alien from the United States within a period of 90 days," 8 U.S.C. Section 1231(a)(1)(A). The instant cases deal with the extent, if any, of the Secretary's authority to continue to detain an inadmissible alien subject to a removal order after the statutory 90-day removal period is over.

Respondent, Sergio Suarez Martinez, and petitioner, Daniel Benitez, arrived in the U.S. from Cuba in June 1980 as part of the Mariel boatlift (Cuban exiles assembled fleet of fishing and pleasure vessels in Cuban port of Mariel and succeeded in bringing more than 120,000 Cubans to the U.S.), see Palma v. Verdeyen, 676 F.2d 100, 101 (C.A.4 1982) (describing circumstances of Mariel boatlift), and the Attorney General (AG) paroled them into the U.S. pursuant to his statutory authority.

By the time they had applied for an adjustment of their status, both men had become inadmissible because of prior criminal convictions while on parole. When Martinez sought adjustment in 1991, for example, Rhode Island had already convicted him of assault with a deadly weapon and California had found him guilty of burglary. By the time Benitez had sought the same relief in 1985, Florida had convicted him of grand theft.

Moreover, both men committed additional felonies after the denial of their adjustment applications. Martinez's convictions included petty theft with a prior conviction in 1996, assault with a deadly weapon in 1998, and attempted oral copulation by force in 1999. Benitez's rap sheet listed two counts of armed robbery, armed burglary of a conveyance, armed burglary of a structure, aggravated battery, carrying a concealed firearm, unlawful possession of a firearm while engaged in a criminal offense, and unlawful possession, sale, or delivery of a firearm with an altered serial number.

The AG revoked Martinez's parole in December 2000. The Immigration and Naturalization Service (INS) then...