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Reynero Arteaga Carballo and Daniel Benitez came to the United States from Cuba in 1980 on the Mariel boatlift. Although neither had a legal right to enter the country, they were both allowed to stay on “parole.” Both were convicted of serious crimes while in the U.S. (attempted murder in Carballo’s case) and served their prison terms. After their release from prison, the U.S. government revoked their immigration parole and held them in detention pending their return to Cuba. Given the Castro regime’s record of refusing to take back Mariel Cubans, their return is unlikely to happen in the foreseeable future. At that point, Carballo’s and Benitez’s life courses split, as do the circuit courts. In March, the 6th U.S. Circuit Court of Appeals held that the U.S. government had the unquestioned authority to keep Carballo in detention for six months pending his return to Cuba. Once the six months were up, the court said, Carballo was entitled to be freed if he provided “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” The court concluded that Carballo, who has been in U.S. prisons since 1988, had met that burden. Arteaga Carballo v. Luttrell, 322 F.3d 386. In July, the 11th Circuit ruled that Benitez, who had been in detention since 2001, had no right to be released even though there is little chance that Cuba will accept him in the foreseeable future. Benitez v. Wallis, No. 02-14324. ‘Zadvydas’ Both courts looked for guidance to the 2001 Supreme Court decision in Zadvydas v. Davis, 533 U.S. 678. Kestutis Zadvydas was of Lithuanian descent, but was born in a displaced persons’ camp in Germany in 1948. He was legally admitted to the U.S. and became a legal permanent resident alien. In 1992, following several criminal convictions, he was ordered deported. Neither Germany nor Lithuania would take him. The government argued that it could detain Zadvydas indefinitely under the authority of 8 U.S.C. � 1231(a)(6). Ordinarily, once an alien has been ordered removed, the government has a 90-day “removal period” to carry out the order. Section 1231(a)(6) says that the alien can be detained beyond that period if he is “inadmissible,” has been ordered removed because of criminal offenses or is a risk to the community. The Supreme Court said that, notwithstanding � 1231(a)(6), the government could not hold Zadvydas indefinitely. It explained, “It is well established that certain constitutional protections available to persons inside the U.S. are unavailable to aliens outside of our geographic borders. But once an alien enters the country, the legal circumstance changes, for the Fifth Amendment’s Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence in the United States is lawful, unlawful, temporary or permanent.” The 6th Circuit, in Carballo’s case, held that � 1231(a)(6) must yield to the due process clause with respect to all aliens who come under its rubric, whether they were once lawfully admitted and then ordered removed (as was Zadvydas) or never lawfully admitted and deemed “inadmissible” (as was Carballo). In Benitez, the 11th Circuit countered that the Supreme Court did not intend � 1231(a)(6) to yield when it came to inadmissible aliens. Despite the Supreme Court’s language about the rights of even unlawful aliens on U.S. soil, the 11th Circuit claimed that Benitez had the same status as an outsider looking in, relying on the “entry fiction.” In a sense, Benitez never really entered the U.S., despite his more than 20 years here, having had no right of entry and staying here merely at the sufferance of the authorities. While that may seem to elevate form over substance, the 11th Circuit does point to language in Zadvydas indicating that the Supreme Court wanted to treat inadmissible aliens in a different way. Young’s e-mail address is gyoungnlj.com.

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