News From The Courts

Benitez v. Wallis

Daniel Benitez, a native and citizen of Cuba, is an inadmissible alien who brought a petition challenging his indefinite detention. The U.S. District Court for the Northern District of Florida denied Benitez's petition and decided that the INS's conclusions that Benitez posed a danger to the community and was likely to display further violent behavior were legitimate and valid reasons to detain Benitez until he could be removed to Cuba. The Eleventh Circuit affirmed the decision of the district court.

In 1980, Benitez attempted entry into the U.S. from the port of Mariel, Cuba and was stopped at the border. He was paroled into the U.S. according to INA § 212(d)(5) which allows the Attorney General to temporarily parole aliens "on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States." In 1983, Benitez was convicted of second-degree grand theft and sentenced to three years probation. Sometime later, Benitez applied to become a lawful permanent resident (LPR). In 1985, Benitez's application was denied because his criminal conviction for grand theft was a crime involving moral turpitude.

In 1993, Benitez pled guilty to a multi-count criminal indictment: armed burglary of a structure, armed burglary of a conveyance, armed robbery, unlawful possession of a firearm while engaged in a criminal offense, carrying a concealed firearm, aggravated battery and unlawful possession, and sale or delivery of a firearm with an altered or removed serial number. He was sentenced to twenty years in jail. Based on these criminal convictions in 1993, INS revoked Benitez's immigration parole. Benitez was ordered to appear before an immigration judge to determine if he should be excluded and deported. In 1994, he was found excludable and deportable to Cuba for his criminal convictions.

Benitez was released into INS custody in October 2001. In November 2001, he was ordered to appear before the Cuban Review Panel to determine if it was in the public interest to release him from INS custody. In January 2002, Benitez filed a petition challenging his indefinite detention by INS. Later that January, he received a Notice of Releasability from the Cuban Review Panel. In March 2003, his Notice of Releasability was revoked when the INS concluded that Benitez was involved in a planned jail escape.

The Eleventh Circuit affirmed the district court's decision to deny Benitez's petition for several reasons. The Eleventh Circuit concluded that while Benitez was physically present in the U.S. for over twenty years, he was never admitted to the U.S. and remained an inadmissible alien. Benitez argued that his indefinite detention violated Constitutional and federal law. The Eleventh Circuit decided that as an inadmissible alien, Benitez does not have a constitutional right preventing indefinite detention. The Eleventh Circuit also concluded that Benitez posed a danger to the community and was likely to continue in his criminal behavior. Benitez cannot be returned to Cuba because the Cuban government will not allow it. The Attorney General has the discretion to detain or parole aliens who are not admitted into the U.S. and whose home country will not take them back.

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Ghashghaee v. INS

Abbas Ghashghaee, a native of Iran, appealed to the Ninth Circuit Court of Appeals for review of the Board of Immigration Appeals' (BIA) denial of his asylum application. The Ninth Circuit found that the BIA erred in finding that Ghashghaee was ineligible for asylum because of his assistance in the persecution of others. The court held that the INS did not introduce evidence to demonstrate this persecution. In addition, previous decisions stated that harm that was the result of another goal, such as the defense of the government against an opponent, was not persecution. Therefore, although Ghashghaee worked for SAVAK before the Iranian Revolution, there was no evidence that he assisted in the persecution of others. Since the BIA found that Ghashghaee had otherwise satisfied the requirements for asylum, the Ninth Circuit granted the petition for review.