The court once again sees the fiction and ignores the truth.

Author:Pace, Lance G.
Position:Case Note





    1. The Constitutional Rights of Excluded Aliens

    2. Barrera's Situation

    3. International Law is Applicable in Barrera's Case



    Alexis Barrera-Echavarria's journey began in 1980 when he attempted to immigrate to the United States from Cuba.(1) Upon his arrival, he was detained by immigration authorities but was released on immigration parole a few months later.(2) In 1985, following exclusion hearings, the Immigration and Naturalization Service (INS) ordered Barrera's exclusion and deportation back to Cuba.(3) Cuba, however, refused to readmit Barrera and no other country has been found that will agree to accept him.(4) Since that time, Barrera has remained in prison except during a brief period in 1992 when he lived at a Los Angeles area halfway house.(5)

    Barrera's legal battles have been ongoing for over a decade. In 1989, Barrera filed a habeas corpus action on grounds that, because no plans existed for his deportation in the foreseeable future, his continued detention violated international law.(6) The history of this single effort to obtain Barrera's release spans eight years and has included a grant of the writ of habeas corpus by the district court,(7) an affirmance by the Ninth Circuit,(8) and, in the most recent decision, a rehearing en bane and a reversal of the district court--thereby dismissing Barrera's writ of habeas corpus.(9)

    The court's decision in this case is yet another example in which the judicial branch of the United States government has completely ignored the rights of aliens who are "within the United States" according to the INS's definition of this term.(10) What makes Barrera's case so incredible is that he has been imprisoned for over a decade without having been convicted of a crime that could justify such prolonged detention.(11)

    This Note thoroughly discusses the ramifications of the Ninth Circuit's decision in Barrera-Echavarria. The study begins with a recitation of the factual background and the court's holding. An analysis of the case law relevant to the court's decision follows this section, focusing on the constitutional rights of aliens and the exclusion/expulsion distinction. Recognizing the reality of the situation, this Note argues that the time has come for the court to see through the fiction it has created and grant Barrera's release. Such a holding is mandated not only by domestic law concerning immigration, but also by applicable international law. Finally, this Note sums up the majority's arguments contending that the reasoning used by the court to justify the denial of due process protections to excludable aliens is very questionable and largely without merit--especially when applied to Barrera and people in similar situations.


    Alexis Barrera-Echavarria came to the United States from Cuba as part of the Mariel Boatlift, in 1980.(12) The INS initially detained Barrera pending a hearing to determine whether immigration would be granted.(13) Due to the large number of Cuban immigrants, he was paroled a few months after his arrival until the time of his hearing.(14) The INS heard Barrera's case in 1985 at which time Barrera was "formally denied admission to the United States and ordered excluded and deported [back to Cuba]."(15) Cuba would not readmit Barrera, however, and since this time no other country has agreed to accept him.(16)

    During Barrera's parole but before his deportation order, he had a variety of difficulties with the law, including a guilty plea to two counts of armed robbery with a firearm in March of 1983 and a trial conviction of burglary and petit theft in July of 1983.(17) Following his state prison sentence, Barrera's immigration parole was revoked and he was transferred to a federal prison in Atlanta where his disciplinary record was also poor.(18) Despite numerous considerations for parole while imprisoned,(19) Barrera was released on parole only once.(20) During this brief period, Barrera lived in a halfway house in the Los Angeles area.(21) The government revoked Barrera's parole after he was arrested for the alleged sexual assault of another halfway house resident on two separate occasions.(22) Since this incident, the INS has denied Barrera parole because they "c[an] not conclude that Barrera would remain nonviolent and would not pose a threat to the community."(23)

    The current controversy derives from a habeas corpus action filed by Barrera in 1989.(24) He argues 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."(25) More than four years after Barrera filed this suit, the district court granted a writ of habeas corpus and ordered the government to release Barrera on immigration parole.(26)

    The Ninth Circuit initially affirmed Barrera's release following the government's appeal in 1994.(27) The court's decision concluded that Barrera's continued imprisonment could no longer be simply characterized as preventative detention--rather, it was excessive punishment prohibited by the Constitution.(28) Additionally, it determined that the government lacked the statutory authority needed to continue Barrera's detention.(29) The court concluded that while the statutory authority relied on by the government provides for the deportation, parole, or detention of an alien, these provisions are silent regarding perpetual imprisonment.(30) The court also noted the 1990 Congressional amendment to Title 8 of the United States Code--the addition of [sections] 1226(e)(31)--which provided "the Attorney General shall take into custody any alien convicted of an aggravated felony and shall not release such felon from custody unless the Attorney General determines that the alien cannot be deported because of the refusal of the country of origin to receive the alien."(32) In that event, parole is only to be granted if "the alien will not pose a danger to the safety of other persons or property."(33) Finding that Barrera was not an aggravated felon, the court held the statute was insufficient authority for continued detention.(34) The court dismissed the government's argument that the statute merely limited the Attorney General's discretion to parole rather than providing the authority to detain aggravated felons.(35) In conclusion, the court stated that "[l]iberty from bodily confinement has been repeatedly recognized as `the core' of the liberty protected from arbitrary government action."(36)

    In the most recent turn of events for Barrera-Echavarria v. Rison,(37) the Ninth Circuit voted to rehear the case en banc, reversed the district court, and denied Barrera's writ of habeas corpus.(38) The court's decision agreed with the government in three areas.

    First, it found that "[t]he Attorney General has statutory authority to detain indefinitely an undeportable, excludable alien."(39) The Attorney General's authority "derives from the intersection of several statutory provisions."(40) The Immigration and Nationality Act(41) allows the Attorney General to

    in [her] discretion parole into the United States temporarily under

    such conditions as [she] may prescribe for emergent reasons or for

    reasons deemed strictly in the public interest any alien applying for

    admission to the United States ... and when the purposes of such

    parole shall, in the opinion of the Attorney General, have been served

    the alien shall forthwith return or be returned to the custody from

    which he was paroled ....(42)

    Another section of the Immigration and Nationality Act provides that "any alien ... arriving in the United States who is excluded under this chapter, shall be immediately deported ... unless the Attorney General, in an individual case, in [her] discretion, concludes that immediate deportation is not practicable or proper."(43) Barrera argued that, because this section only addresses detention pending immediate deportation, Congress did not intend to confer authority to detain excluded aliens once it becomes apparent that immediate deportation is not possible.(44) The court rejected this argument, however, finding

    the overall structure of the provisions relating to excludable

    aliens assumes that the Attorney General has authority to detain

    aliens who are subject to exclusion proceedings or who have

    been ordered excluded unless she decides, in her discretion, to


    parole.... [Therefore], Barrera's continued detention is

    authorized by statute.(45)

    Second, the Ninth Circuit found that Barrera's detention was constitutional.(46) It based this holding on the Supreme Court's distinction between aliens--legal or illegal-currently residing in the United States and those who are seeking permission to enter at the border.(47) Thus, aliens who live inside the border, after having entered the United States illegally, are granted more rights than those attempting to enter legally.(48) Those seeking legal admission are deemed "excludable" under the entry doctrine fiction even if they are physically present in the United States.(49) As one of these excluded aliens, Barrera has no procedural due process rights regarding his admission or exclusion.(50) Barrera "stands on a different footing" because "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned."(51) The court also noted that this case did not involve the constitutionality of "indefinite" or "permanent" detention without any prospect of release because Barrera continues to be reviewed annually for parole.(52)

    Third, the Ninth Circuit found that Barrera's continued detention does not violate rules of international law against prolonged arbitrary detention because "international...

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