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Date: 08-02-2001
Case Style:
Rolando Moreno Sierra v. Immigration and Naturalization Service, et al.
Case Number: 258 F.3d 1213 (10th Cir. 2001)
Judge: Ebel
Court: United States Court of Appeals for the Tenth Circuit on appeal from the United States District Court for the District of Colorado
Plaintiff's Attorney:
Defendant's Attorney: Mark C. Walters
Description:
Denver, Colorado pro se plaintiff sought a writ of habeas corpus.
Rolando Moreno Sierra is an excludable alien1 who is currently detained in a federal prison pending Cuba's decision to allow him back into that country. In 1998, he was recommended for parole, but he was involved in a prison fight before his release and his parole was subsequently withdrawn. He filed a pro se petition for a writ of habeas corpus, arguing that the Due Process Clause entitles him to a hearing on the withdrawal of parole and an opportunity to appeal the disciplinary conviction for fighting. The district court dismissed his petition on the merits. We hold that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (codified as amended in scattered sections of 8 U.S.C.), did not deprive us of jurisdiction to consider Sierra's petition. On the merits, we find that Sierra has received the process he is due and we therefore AFFIRM.
BACKGROUND
Sierra is a Cuban who came to the United States during the 1980 Mariel boat lift.
Page 1216
He was paroled into the United States. Over the next twelve years, he was convicted of several crimes, including theft. Because of this criminal history, the Immigration and Naturalization Service (INS) denied his application to become a lawful permanent resident in 1987. In 1992, an immigration judge denied Sierra's application for asylum and ordered that he be excluded and deported. Sierra's appeal of this decision was summarily dismissed by the Board of Immigration Appeals. Because Cuba will not accept him back, Sierra has been detained in federal prisons for most of the last eight years.
Mariel Cubans who are being detained have their cases reviewed every year to determine whether they should be paroled. See 8 C.F.R. 212.12(g)(2). A Cuban Review Panel makes a recommendation to the Associate Commissioner for Enforcement of the INS, who has the discretion to approve parole. See id. 212.12(b), (d). This approval may be withdrawn prior to release if "the conduct of the detainee, or any other circumstance, indicates that parole would no longer be appropriate." Id. 212.12(e).
Sierra was denied parole in 1992 because of his "tendency to engage in criminal activities as reflected by [his] extensive criminal record." In 1994, he was released to a halfway house, but his parole was revoked six months later because he had violated its conditions. He was denied parole again in 1995, 1996, and 1997. While detained in prison, he was disciplined for numerous incidents, such as insolence, refusing an order, threatening others, and minor assaults.
On July 28, 1998, the Review Board recommended that he be paroled to a halfway house, noting that he had no disciplinary incidents in 1998. Before his release, however, he was cited for fighting. After a disciplinary hearing, a discipline hearing officer rejected Sierra's argument that he was acting in self-defense and upheld the charge. Sierra claims he has administratively appealed the discipline entered as a result of this hearing. Because of the fighting incident and apparently while Sierra's disciplinary appeal was pending, the Associate Commissioner for Enforcement, without a hearing, withdrew approval for Sierra's parole.
Sierra filed a petition for a writ of habeas corpus under 28 U.S.C. 2241 in the district court. In his petition, he argued: (1) he was entitled to a hearing on the parole withdrawal and (2) the Cuban Review Panel should not have withdrawn his parole while his appeal of the disciplinary decision was pending. The district court denied the petition on the merits, finding that the Due Process Clause did not entitle Sierra to a hearing on his parole withdrawal or the right to await the outcome of his appeal of the disciplinary hearing before the parole withdrawal proceeding continued.
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: