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Can certain noncitizens be detained indefinitely? That is the question the U.S. Supreme Court must answer in Benitez v. Rozos, No. 03-7434, and Clark v. Martinez, No. 03-878, which were argued before the court on Oct. 13. Under U.S. immigration law, some noncitizens are allowed ingress to the United States for humanitarian or other reasons without being given a status. Such individuals are not considered legally admitted even though they may live here for years. Technically they are “paroled” into the United States. See generally 5 Charles Gordon, Stanley Mailman and Stephen Yale-Loehr, Immigration Law and Procedure, � 62.01 [rev. ed. 2004]. In Leng May Ma v. Barber, 357 U.S. 185, 188 (1958), the Supreme Court noted that “[f]or over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.” The court added that “[t]he parole of aliens seeking admission is simply a device through which needless confinement is avoided while administrative proceedings are conducted. It was never intended to affect an alien’s status.” Id. at 190. This principle has become known as the “entry doctrine” fiction. Noncitizens may be physically here in the United States, but legally we treat them as if they are still at our border. In the two cases before the Supreme Court, the individuals are Cuban nationals who were paroled into the United States in the Mariel boatlift of 1980, when Fidel Castro allowed any Cuban citizen who wished to depart to leave from the port city of Mariel. Some 125,000 people came. Sergio Martinez and Daniel Benitez were subsequently convicted of crimes in the United States. Both served their time in jail for their convictions and now languish in immigration custody. They face indefinite detention by immigration authorities, who cannot deport them because of the strained relations between the United States and Cuba. All together, more than 1,000 Mariel Cubans remain in federal custody nearly 25 years after the boatlift. Noelle Crombie, “Cuban Case May Clarify U.S. Power to Detain,” The Oregonian, Sept. 18, at A1. It costs U.S. taxpayers an average of $90 a day-or about $33,000 a year-to hold a noncitizen in immigration custody. Two of the Cuban detainees have been held for 19 years. A total of 33 have waited in jail for more than 15 years to be deported. Gaiutra Bahadur, “Mariel Cases Could Affect 1,700-Plus U.S. Detainees,” Philadelphia Inquirer, Oct. 13. Benitez and Martinez are relying on Zadvydas v. Davis, 533 U.S. 678 (2001), to challenge their continued detention. That case concerned a noncitizen who was already admitted to the United States as a lawful permanent resident and, although ordered deported, couldn’t be removed from the United States. There, the Supreme Court held, 5-4, that such a noncitizen could not be detained indefinitely. Justice Stephen Breyer’s majority opinion noted that open-ended detention would pose a “serious constitutional threat” that the court should avoid by interpreting the statute to have a reasonable time limit. The Zadvydas court recognized six months as a presumptively reasonable time of post-removal-period detention for permanent residents. Id. at 701. However, the majority opinion also observed that “[a]liens who have not yet gained initial admission to this country would present a very different question.” Id. at 682. Aliens and ‘Initial Admission’ That “very different question” is now squarely before the court. The circuit courts have split over whether to extend Zadvydas to inadmissible noncitizens like Benitez and Martinez. The U.S. courts of appeals for the 5th, 7th, 8th and 11th circuits have held Zadvydas to be inapplicable to inadmissible noncitizens, while the 6th and 9th circuits have held that Zadvydas extends to inadmissible individuals. The differing results in the circuits stem in part from a fundamental difference in the legal status of unadmitted noncitizens versus those who have effected “entry” into the United States, whether illegally or legally. This difference has been a hallmark of immigration law for more than a hundred years. For example, in Leng May Ma, the Supreme Court noted that “our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission…and those who are within the United States after an entry, irrespective of its legality.” 357 U.S. at 187. The decision continued that “[i]n the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry.’ ” Id. [quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 [1953]]. As the Supreme Court noted in Mezei, “It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a different footing: Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Mezei, 345 U.S. at 212 (internal citations and quotation marks omitted). Mezei has been heavily criticized by academics, and the Supreme Court has distinguished it on the facts in several cases, most recently in Zadvydas, but Mezei has never been overruled. Deputy Solicitor General Edwin Kneedler told the justices during oral argument on Oct. 13 that the nation’s need to protect its borders requires some noncitizens to be treated as if they have no due process rights. Several justices expressed skepticism about that view. Justice Ruth Bader Ginsburg noted that the government’s position would result in worse treatment for legal immigrants than for illegal ones. “You have no right to detain someone indefinitely who snuck in illegally, but somehow you do for someone who is here legally?” she asked. Stephen Henderson, “Justices Question Indefinite Detention of Cubans Due Deportation,” The Advocate [Baton Rouge, La.], Oct. 14, at 10-A. Fiction of exclusion Justice David Souter wondered about the “fiction” of pretending that Mariel Cubans, who have been here for a quarter-century, have no more rights than immigrants showing up at the border right now. “That fiction of exclusion can’t be used for constitutional purposes, can it?” he wondered. Id. “You have a Due Process Clause that says ‘persons,’ not ‘citizens,’ ” he added. Steve Lash, “ Court Mulls Cubans’ Indefinite Detention,” Chicago Daily L. Bull., Oct. 14, at 2. Justice John Paul Stevens asked how far the government would carry the “no rights” argument. “Can we kill them?” he asked Kneedler, suggesting through hyperbole the argument had to have some limits. It was a question similar to one he asked last spring during arguments over unchecked government detentions of U.S. citizens and foreigners in the war on terrorism. In those cases, which could influence the court’s rulings in the Mariel cases, the Supreme Court curbed the Bush administration’s power. Henderson, supra. The Benitez and Martinez cases have implications beyond detained Mariel Cubans. Many other immigrants are paroled into the United States and later ordered removed to countries that don’t want them. No one has precise figures on how many noncitizens might be affected by the Supreme Court’s decision. The specter of national security hangs over the two cases. Solicitor General Theodore Olson warned the court that a ban on indefinite detention would risk creating a “back door into the United States” for dangerous noncitizens. “Supreme Court Agrees to Consider Immigrant Detention Case,” CNN.com (Jan. 16), available at www.cnn.com/2004/LAW/01/16/scotus.immigrants.ap (last visited Oct. 13). Olson also argued that requiring the release of these detainees “creates an obvious gap in border security that could be exploited by hostile governments or organizations that seek to place persons in the United States for their own purposes.” Id. Milestone decision Depending on how the court rules, the decision in Benitez and Martinez could mark a milestone in determining the government’s overall power to detain noncitizens. See generally Stanley Mailman and Stephen Yale-Loehr, “Detaining and Criminalizing Asylum Seekers,” New York Law Journal, April 28, 2003, at 3. Alternatively, the court could duck the underlying constitutional issue and decide on statutory grounds, as it did in Zadvydas. In the meantime, several thousand noncitizens remain in jail awaiting the court’s decision. Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mailman is of counsel to New York’s Satterlee Stephens Burke & Burke. Yale-Loehr is of counsel at True, Walsh & Miller in Ithaca, N.Y., and teaches immigration law at Cornell Law School.

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