Appeal from the United States District Court for the Central District of California. D.C. No. CV-89-04156-KN. David V. Kenyon, District Judge, Presiding.
Before: J. Clifford Wallace, Chief Circuit Judge, Procter Hug, Jr., Harry Pregerson, Cynthia Holcomb Hall, Charles Wiggins, Melvin Brunetti, David R. Thompson, Edward Leavy, Ferdinand F. Fernandez, Pamela Ann Rymer, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Hall, Dissent by Judge Pregerson.
Alexis Barrera-Echavarria is an alien who arrived in the United States in 1980 and was ordered excluded and deported in 1985. His deportation has not been possible, however, because neither his country of origin, Cuba, nor any third country, will accept him. With the exception of one brief period in 1992 when Barrera was released on immigration parole, he has been detained on behalf of the Immigration and Naturalization Service ("INS") in a variety of prisons since 1985.
In 1989, Barrera instituted the present habeas corpus action, arguing 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.*fn1 After more than four years of proceedings, the district court granted the writ of habeas corpus, ordering the government to release Barrera on immigration parole. On appeal by the government, a divided panel of this court affirmed.*fn2 A majority of the active, nonrecused Judges of this court voted to rehear the case en banc. We now reverse.
In December 1979, Barrera was jailed in Cuba on a theft charge. While he was awaiting trial, the Mariel boatlift began and Barrera was sent to the United States by the Cuban government. On May 29, 1980, he arrived in Key West, Florida, where he was detained by immigration authorities. Along with the vast majority of the more than 120,000 Cubans who came to the United States, Barrera was released on immigration parole a few months after arriving, pending exclusion proceedings.
After hearings, Barrera was formally denied admission to the United States and ordered excluded and deported in May 1985. As is the case with many of the Mariel Cubans, the Cuban government has consistently refused to readmit Barrera and, as far as the record shows, no third country will take him. He is thus an excluded alien whose deportation is not practicable.
Barrera appears from the record to be an unskilled and somewhat unstable individual, with little formal education. His schooling apparently ended with the sixth grade in Cuba. Since arriving in the United States, he has only sporadically taken advantage of educational opportunities, including Bible study classes and 56 hours of English classes while in Lompoc prison.
Barrera's work history is limited and he appears to have few marketable skills. He worked as a brick mason in Cuba and upon his initial parole into the United States in 1980, he held a number of menial, unskilled agricultural and factory jobs. While he has held some prison jobs, he has a "poor work record."
The last time the government approved Barrera for parole, it found it extremely difficult to place him in an appropriate program; the INS approved his parole release in late 1990 but could not find a program willing to accept him until January 1992. The difficulty resulted in part from the special needs posed by his mental and social problems. A prison psychiatrist at Lompoc determined that Barrera's mental functioning "appeared fairly normal," but concluded that he exhibited traits "attributable to an antisocial personality disorder." Further psychological testing at St. Elizabeth's Hospital in late 1991 found that Barrera has no apparent structural brain damage, although there are other neurological anomalies which were not precisely diagnosed. The evaluation confirmed a diagnosis of "Borderline Intellectual Functioning," and found an "inability to make appropriate judgments" and develop "strategies in approaching the tasks that he was asked to undertake." The report concluded that "Mr. Barrera's functional cognitive deficits and his impairment in social relations, his oscillations between anxiety, depression and irritability, appear best explained by the interaction of his limited intellectual functioning, and his basic personality structure and features."
The Lompoc doctor stressed that if paroled, Barrera must be placed in a "highly structured, well-supervised halfway house program." The doctors at St. Elizabeth's concurred, finding he needed "high levels of structure, opportunities for group and individual therapy, education and vocational training[, as well as] intensive acculturation experience. This process should be individualized to meet both his needs and adaptive capacity, with close monitoring of his social behavior prior to any release to the community."
The accuracy of these evaluations can perhaps be surmised from the record of Barrera's conduct since he arrived in the United States. Almost immediately after being paroled in 1980, Barrera began a long series of encounters with the law. In May 1981, he was arrested in Miami for grand theft auto. In August 1981, he was arrested for retail theft and armed robbery. June of 1982 saw an arrest for strong arm robbery, and the following month Barrera was charged with armed robbery and resisting arrest. While the final Dispositions of all these charges are unclear from the record, Barrera was apparently not convicted of any of them.
Barrera pleaded guilty in March 1983, however, in Dade County Circuit Court, to two counts of armed robbery with a firearm. He was sentenced to two concurrent jail terms of 230 days. Apparently not long after leaving jail, he was arrested again for burglary, in May 1983.
In July 1983, Barrera was found guilty after trial of burglary and petit theft. He was sentenced to two years in Florida state prison. While in prison, he had a "record of assaults and behavioral problems," resulting in administrative confinement, transfers, and protective custody.
The INS revoked Barrera's parole in January 1985 and, upon finishing his state sentence, he was transferred to the federal prison in Atlanta, where a number of Mariel Cubans were being detained. His disciplinary record in Atlanta was no better than in Florida, and Barrera was written up several times for destroying government property, setting fires, and fighting with other inmates.
Under the Cuban Review Plan, 8 C.F.R. §§ 212.12-13, a set of regulations governing the standards and procedures used by the INS to evaluate parole possibilities for detained Mariel Cubans, Barrera has been considered for parole at least annually since 1985. After being denied release on several occasions, he was paroled briefly in 1992, to a halfway house in the Los Angeles area. There are reports of several minor disciplinary problems at the halfway house, and Barrera's parole was revoked after six months when he was arrested for allegedly sexually assaulting another halfway house resident at knife point on two separate occasions. The latter charges were dropped because the victim became mentally incompetent and was unable to testify.
According to the record, Barrera was last reviewed for immigration parole in December 1992. In February 1993, parole was denied because the INS could not conclude that Barrera would remain nonviolent and would not pose a threat to the community.
I. The Attorney General has statutory authority to detain indefinitely an undeportable, excludable alien.
The district court found that the Attorney General does not have statutory authority indefinitely to detain undeportable, excludable aliens. This court reviews questions of statutory interpretation de novo. Braun v. INS, 992 F.2d 1016, 1018 (9th Cir. 1993). The reviewing court should, however, give deference to an agency's interpretation of the statutes it administers. Mason v. Brooks, 862 F.2d 190, 192 (9th Cir. 1988); see also Fernandez v. Brock, 840 F.2d 622, 631 (9th Cir. 1988) (where statutory language is ambiguous, court must "defer to the agency's interpretation of the statute if it 'is based on a permissible construction of the statute'" and must "not substitute [its] own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency") (quoting Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)). In addition, when Congress is aware of an agency's interpretation of a statute and takes no action to correct it while amending ...