                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2003

Sierra v. Romaine
Precedential or Non-Precedential: Precedential

Docket No. 02-2826




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                       PRECEDENTIAL

                                Filed October 29, 2003

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                 No. 02-2826


          ROLANDO M. SIERRA, SR.,
                            Appellant
                       v.
     D. ROMAINE, Warden; IMMIGRATION &
NATURALIZATION SERVICE; JOHN ASHCROFT,
Attorney General of the United States of America

On Appeal from the United States District Court
    for the Middle District of Pennsylvania
           (D.C. Civ. No. 00-00852)
 Honorable James M. Munley, District Judge

          Argued September 9, 2003
BEFORE: BARRY, BECKER, and GREENBERG,
             Circuit Judges

           (Filed: October 29, 2003)

                Christopher W. Wasson (argued)
                Barak A. Bassman
                Pepper Hamilton LLP
                3000 Two Logan Square
                Eighteenth and Arch Streets
                Philadelphia, Pa. 19103-2799
                Attorneys for Appellant
                            2


                   Robert D. McCallum, Jr.
                   Assistant Attorney General
                   United States Department of Justice
                   Civil Division
                   Linda S. Wernery
                   Senior Litigation Counsel
                   United States Department of Justice
                   Thankful T. Vanderstar
                   Laura L. Flippin (argued)
                   United States Department of Justice
                   Civil Division
                   Office of Immigration Litigation
                   Post Office Box 878
                   Ben Franklin Station
                   Washington, DC 20044
                   Attorneys for Appellees
                   Judy Rabinovitz
                   American Civil Liberties Union
                    Foundation
                   Immigrants’ Rights Project
                   125 Broad Street
                   New York, NY 10004-2400
                   Lucas Guttentag
                   Liliana M. Garces
                   American Civil Liberties Union
                    Foundation
                   Immigrants’ Rights Project
                   405 14th Street, Suite 300
                   Oakland, CA 94612
                   Attorneys for Amicus Curiae
                   American Civil Liberties Union


              OPINION OF THE COURT

GREENBERG, Circuit Judge.

      I.   FACTUAL AND PROCEDURAL HISTORY
 This matter comes on before this court on Rolando
                                    3


Sierra’s appeal from an order entered in the district court
on June 18, 2002, denying his petition for a writ of habeas
corpus.1 Sierra is a 41-year-old Cuban national who arrived
in the United States in 1980 as part of the Mariel boatlift
during which over 125,000 Cubans crossed by boat from
Mariel harbor in Cuba to the United States.2 See JA 7.
Immigration officials stopped Sierra and most Mariel
Cubans at the border as they were “excludable” under the
then effective immigration law.3 Although excludable aliens

1. Sierra filed his petition for habeas corpus in the district court under
28 U.S.C. § 2241. See JA 22. In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct.
2271 (2001), the Supreme Court concluded that aliens the INS has
detained can petition for writs of habeas corpus under 28 U.S.C. § 2241
— whether they are detained pursuant to the pre-1996 statutory regime,
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), or
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). See
Rosales-Garcia v. Holland, 322 F.3d 386, 394 (6th Cir.) (en banc), cert.
denied, 123 S.Ct. 2607 (2003); see also Zadvydas v. Davis, 533 U.S.
678, 688, 121 S.Ct. 2491, 2498 (2001) (“§ 2241 habeas corpus
proceedings remain available as a forum for statutory and constitutional
challenges to post-removal-period detention.”).
2. Sierra had been incarcerated in Cuba for petty theft immediately
preceding his departure to the United States. See JA 74.
3. The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) substantially altered the landscape in immigration law and
brought about a shift in basic immigration terminology. Chi Thon Ngo v.
INS, 192 F.3d 390, 395 n.4 (3d Cir. 1999). Pre-IIRIRA the law referred to
“excludable” aliens as “those who were ineligible for admission or entry
into the United States.” Id. “Excludable” aliens could be subject to
exclusion proceedings; “ ‘[d]eportation’ proceedings, in contrast, were
brought against those aliens who had gained admission into the
country.” Id. “The deportation hearing is the usual means of proceeding
against an alien already physically in the United States, and the
exclusion hearing is the usual means of proceeding against an alien
outside the United States seeking admission.” Landon v. Plasencia, 459
U.S. 21, 25, 103 S.Ct. 321, 325 (1982). In practice, however, the
technical linguistic distinction under pre-IIRIRA law seems not to have
been followed in all cases. For example, in “exclusion proceedings” an
immigration judge on January 6, 1992, ordered that “the applicant
[Sierra] be excluded and deported as charged.” JA 50. IIRIRA “refers to
‘inadmissible’ aliens in the place of ‘excludable’ aliens. Although there
are still separate grounds of ‘inadmissibility’ and ‘deportability,’ the
                                     4


such as Sierra have not “entered” the country for the
purposes of immigration law, the government nevertheless
permitted him as well as other Mariel Cubans to make a
physical entry into the United States pursuant to the
Attorney General’s authority under 8 U.S.C. § 1182(d)(5)(A)
to grant immigration parole.4
   Following Sierra’s physical entry into the United States
he engaged in a series of serious criminal acts in this
country. Thus, he was convicted, inter alia, of carrying a
deadly weapon and of theft in the District of Columbia in
1986 and of daytime housebreaking and of theft in
Maryland in 1990 and 1991.5 JA 7. As a result of these
convictions, the Immigration and Naturalization Service
(“INS”) quite naturally and appropriately revoked Sierra’s
immigration parole. See JA 7. On January 6, 1992, after
denying Sierra’s applications for asylum and withholding of
deportation, an immigration judge ordered that he be
excluded and deported from the United States. JA 49-50.
Sierra appealed the decision of the immigration judge to the
Board of Immigration Appeals which summarily dismissed
the appeal on May 6, 1992. JA 52.
  Sierra should have been deported immediately but
unfortunately the Cuban government generally has refused

distinction now turns on whether an alien has been ‘admitted’ to the
United States, rather than on whether the alien has gained ‘entry.’ ” Ngo,
192 F.3d at 394 n.4. An alien who does not enter the United States
legally is not “admitted.” 8 U.S.C. § 1101(a)(13)(A). “Inadmissible” aliens,
therefore, include aliens who have not entered the United States
(formerly excludable) and those who entered illegally (formerly
deportable). 8 U.S.C. § 1182(a)(6). Both “inadmissible” and “deportable”
aliens are now subject to removal proceedings. 8 U.S.C. § 1229a(3).
4. 8 U.S.C. § 1182(d)(5)(A) stipulates that “such parole of such alien shall
not be regarded as an admission of the alien.” Rosales-Garcia v. Holland,
322 F.3d 386, 391 n.2 (6th Cir. ) (en banc), cert. denied 123 S.Ct. 2607
(2003). The concept that aliens who are physically present within the
United States but nonetheless technically are considered to be at the
border is known as the “entry fiction” doctrine. See id.
5. Sierra’s convictions for theft and breaking and entering are aggravated
felonies under the Immigration and Nationality Act. See 8 U.S.C.
§ 1101(a)(43).
                                   5


to cooperate in the return of Mariel Cubans and specifically
has declined to receive Sierra. See JA 102. The INS
therefore has held Sierra in custody for most of the last 11
years detaining him in various federal penitentiaries
operated by the Bureau of Prisons, including the facility at
Lewisburg, Pennsylvania, at the time he brought this
action, and currently the facility at Lompoc, California.
   Since his detention and throughout the time Sierra has
been in INS custody, the INS annually has reconsidered
releasing him on immigration parole in accordance with 8
C.F.R. § 212.12 (2003), which governs the cases of Mariel
Cubans who remain in the Attorney General’s custody.
Pursuant to these regulations, a Cuban Review Panel
makes a recommendation to the INS Associate
Commissioner for Enforcement,6 who has the discretion to
approve parole. Sierra v. INS, 258 F.3d 1213, 1216 (10th
Cir. 2001). The INS denied Sierra parole in 1992 because of
his “tendency to engage in criminal activities as reflected by
[his] extensive criminal record.” Id. On April 15, 1994, the
INS released Sierra to a halfway house, but six months
later revoked his parole by reason of his failure to abide by
the conditions of his release. Thus, he was returned to the
custody of the INS. Id. The INS denied Sierra parole in
1995, 1996, and 1997. Id. While detained in prison, he has
been disciplined for numerous incidents, such as insolence,
refusing an order, threatening others, and minor assaults.
Id.
  On July 28, 1998, a Cuban Review Panel recommended
Sierra’s parole to a halfway house, noting that he had not
been involved in any disciplinary incidents in 1998. Id. That
decision, however, was revoked due to Sierra’s involvement
in a fight. JA 8. A panel conducted an interview on March

6. In order to recommend that a detainee be paroled, the panel members,
two members of the INS professional staff, must conclude that the
detainee is presently non-violent, likely to remain non-violent, and not
otherwise likely to violate any conditions in the event of his parole.
Chavez-Rivas v. Olsen, 207 F. Supp. 2d 326, 329 (D.N.J. 2002). There is
a list of seven, apparently non-exclusive, factors to guide a Cuban
Review Panel in reaching its determinations. Id. If a Cuban Review Panel
cannot recommend parole based solely on the detainee’s paper record, it
must interview the detainee. Id.
                                   6


18, 1999, following which it declined to recommend parole,
finding that Sierra was “violent and [would] remain violent
if released.” Id. Though a Cuban Review Panel interviewed
Sierra again on September 13, 2000, and recommended
him for parole, this recommendation was withdrawn on
May 13, 2002, after Sierra was disciplined for disruptive
behavior in October 2001. See JA 157.
   Prior to filing his current petition for a writ of habeas
corpus, Sierra had filed several other petitions seeking
habeas relief. While he was incarcerated in Florence,
Colorado, he filed an action in the United States District
Court for the District of Colorado, challenging the Cuban
Review Panel’s 1998 withdrawal of parole based on the
fighting incident. See JA 9. The district court, however,
dismissed the action by an order dated August 9, 1999,
and in August 2001, the Court of Appeals for the Tenth
Circuit affirmed the district court’s order. Sierra, 258 F.3d
at 1220. On January 7, 1997, Sierra filed a petition for a
writ of habeas corpus in the United States District Court
for the Northern District of Alabama challenging his
detention claiming that he had not committed an
aggravated felony, his incarceration with felons violated his
rights, and the Cuban Review Panel had refused to release
him from custody. See JA 108. Sierra filed a similar action
in the United States District Court for the District of
Columbia on March 24, 1998. See JA 9. The District of
Columbia court transferred that action to the Northern
District of Alabama which consolidated it with the case
pending before it and then dismissed both cases.7 See JA 9.
The Court of Appeals for the Eleventh Circuit affirmed the
order of the district court in an unpublished memorandum
on July 17, 2002. Sierra v. Sivley, No. 00-12508, 46 Fed.

7. The district court adopted the findings and conclusions of a
magistrate judge who recommended that the court dismiss Sierra’s
petition for lack of jurisdiction pursuant to section 242(g) of the
Immigration and Nationality Act, 8 U.S.C. § 1252(g), because “[d]etention
of aliens pending repatriation constitutes an ‘action by the Attorney
General’ incident to the execution of removal orders” and thus is barred
from judicial review. JA 115. Alternatively, the magistrate judge
recommended dismissal on the merits, concluding that, as an excludable
alien, Sierra “has no right to be set free in this country.” JA 118.
                                    7


App. 617, 2002 WL 1798861 (11th Cir. July 17, 2002)
(table).
  Sierra filed the present petition for a writ of habeas
corpus on May 15, 2000, in the Middle District of
Pennsylvania. See JA 6. In his petition Sierra maintained
that the INS improperly denied him visits with his family
and improperly denied him parole. See JA 9. In proceedings
before the district court Sierra argued that he was being
detained in violation of the Fifth and Sixth Amendments of
the Constitution, contentions he has abandoned,8 and that
the Supreme Court’s then recent decision in Zadvydas v.
Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), which we
describe at length below, prohibited his potential indefinite
detention. See JA 10-11. In an order dated July 9, 2001,
the district court ordered the parties to file supplemental
memoranda of law addressing the lawfulness of Sierra’s
imprisonment in light of Zadvydas. JA 4-5. In a
memorandum dated May 17, 2002, the district court held
that Sierra’s imprisonment was lawful and that the
restrictions Zadvydas established with respect to detention
of resident aliens were not applicable in his case.
Nevertheless, the district court ordered the INS to review
his parole status within 30 days. See JA 12-17. In a
memorandum and order dated June 18, 2002, the court
revoked its earlier requirement that the INS review Sierra’s
parole status in 30 days as the INS provided the court with
evidence that it had made periodic parole reviews of Sierra’s
status. JA 18-21. On June 27, 2002, Sierra filed a timely
notice of appeal from the June 18, 2002 order which appeal
also encompasses the May 17, 2002 order. JA 1.

                          II.   DISCUSSION
  A. Jurisdiction and Standard of Review
  The district court had jurisdiction under 28 U.S.C.

8. See Reply Br. of appellant at 1 (“this case is about the application of
a statute as interpreted by the Supreme Court and not Constitutional
law”). Nor does Sierra currently maintain that he improperly is being
denied visits with his family or that his continued detention violates
international law.
                                    8


§ 2241 and we have jurisdiction under 28 U.S.C. §§ 1291
and 2253. We exercise plenary review over the district
court’s legal conclusions and ordinarily would review its
findings of fact under a clearly erroneous standard. See
Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). Here,
however, inasmuch as the relevant facts are undisputed,
our entire review is plenary.
  B. The Statutory Basis for Sierra’s Current Detention
   The parties dispute the statutory authority for Sierra’s
current detention.9 Sierra argues that “8 U.S.C. § 1231(a)(6)
is the statute authorizing [his] current imprisonment.” Br. of
appellant at 14. The government maintains that former 8
U.S.C. §§ 1226(e), 1225(b), 1227(a) and 1182(d)(5)(A) (1994)
and not current section 1231(a)(6) govern his detention. Br.
of appellee at 20.
  Congress enacted 8 U.S.C. § 1231(a)(6) (hereinafter
“section 1231(a)(6)”) as part of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996).
Although IIRIRA had a general effective date of April 1,
1997, see IIRIRA § 309(a) (codified at 8 U.S.C. § 1101 note
(2000)), a transition section specifies that certain of its
provisions do not apply “in the case of an alien who is in
exclusion or deportation proceedings before [April 1, 1997].”
Id. § 309(c)(1) (hereinafter “section 309(c)(1)”).10 According to
the government, section 309(c)(1) of IIRIRA precludes this
court from applying IIRIRA to Sierra, an unadmitted,

9. The district court did not address this issue.
10. The general rule of inapplicability in section 309(c)(1) of IIRIRA
provides as follows:
    (c) TRANSITION FOR CERTAIN ALIENS. —
      (1) GENERAL RULE THAT NEW RULES DO NOT APPLY. —
    Subject to the succeeding provisions of this subsection, in the case
    of an alien who is in exclusion or deportation proceedings before
    [April 1, 1997,] —
      (A) the amendments made by this subtitle shall not apply, and
      (B) the proceedings (including judicial review thereof) shall
      continue to be conducted without regard to such amendments.
                                    9


inadmissible alien ordered excluded and deported prior to
its effective date.
  In contrast Sierra contends that IIRIRA does apply and
that section 1231(a)(6) governs this action because: (1) the
most natural reading of section 309(c)(1) is that it applies
only to matters at issue through the pendency of
proceedings and not to post-final-order detention
determinations; (2) in Zadvydas the Supreme Court applied
section 1231(a)(6) to a petitioner who had been placed in
deportation proceedings and ordered deported prior to April
1, 1997; and (3) in Zadvydas, as well as in other cases, the
INS has argued that section 309(c)(1) only applies to aliens
in pending deportation or exclusion proceedings, not to
post-final-order detention determinations.
  As we will discuss in more detail below, several courts of
appeals have found that section 1231(a)(6) governs the
detention of aliens in procedural circumstances similar to
those of Sierra.11 See Martinez Vazquez v. INS, No. 03-
35026, ___ F.3d ___, 2003 WL 22244774, at *3 (9th Cir.
Oct. 1, 2003); Rosales-Garcia v. Holland, 322 F.3d 386,
401-03 (6th Cir.) (en banc), cert. denied, 123 S.Ct. 2607
(2003); Zadvydas v. Underdown, 185 F.3d 279, 286-87 (5th
Cir. 1999), vacated sub nom. on other grounds, Zadvydas v.
Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001).
  (a) The language of section 309(c)(1)
  IIRIRA’s transition provision, section 309(c)(1), surely is
ambiguous. Uncertainty arises from its present tense
language describing an alien who “is” in proceedings
“before” April 1, 1997. As the Court of Appeals for the Fifth
Circuit stated in Zadvydas v. Underdown, “[t]he problem is

11. In Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir. 1999), we faced the
question of whether section 1231(a)(6) applied to an alien who, like
Sierra, was ordered excluded and deported several years before IIRIRA’s
effective date. Noting that the “adoption of the AEDPA and IIRIRA by
Congress in 1996, together with the IIRIRA Transitional Rules that
expired in October 1998, have created a complex assortment of amended
and repealed provisions that is frequently baffling,” we expressly reserved
judgment on the question based on our conclusion that the petitioner’s
detention was authorized regardless of which statutory regime applied.
Id. at 395 n.5.
                                   10


created by the statute’s usage of ‘before,’ which might be
read to imply that the statute only affects those that were
free of any involvement in deportation [or exclusion]
proceedings prior to the effective date.” 185 F.3d at 286
n.7.
   As originally enacted, the transition rule in section
309(c)(1) applied “in the case of an alien who is in exclusion
or deportation proceedings as of [April 1, 1997].” (Emphasis
added.)12 But 11 days after IIRIRA’s enactment, a technical
amendment struck and replaced the term “as of ” with the
term “before.” See Extension of Stay in the United States for
Nurses Act, Pub. L. No. 104-302, § 2, 110 Stat. 3656
(1996). The government argues that this technical
amendment “made clear that IIRIRA’s provisions do not
apply to aliens who were placed in administrative
proceedings before IIRIRA’s general effective date of April 1,
1997.” See Br. of appellee at 24. It is not clear, however,
that Congress intended the amendment to have that broad
effect, though we acknowledge that if Congress had not
substituted “before” for “as of ” it would be clearer that
section 1231(a)(6) would apply in cases such as this one
completed before IIRIRA’s effective date. As the Court of
Appeals for the Fifth Circuit explained in Zadvydas v.
Underdown, “[t]he confusing ‘before’ was . . . the product of
what was labeled as a ‘technical’ amendment established by
the Hatch-Kennedy amendment to the H-1A Nursing Bill
. . . . Nothing indicates what the goal of this amendment
was, and the failure of the amendment to change the
surrounding language makes its intended purpose unclear.”
185 F.3d at 287 n.7 (internal citation omitted).
  The Court of Appeals for the Sixth Circuit’s en banc
decision in Rosales-Garcia and the Court of Appeals for the
Fifth Circuit’s decision in Zadvydas v. Underdown support
Sierra’s position that section 309(c)(1) applies only to

12. Originally the title of section 309(c) of IIRIRA read “Transition For
Aliens In Proceedings.” Section 203(a)(2) of the Nicaraguan Adjustment
and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat.
2193, 2198 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644
(1997), changed the title to its current form which is “Transition For
Certain Aliens.”
                                    11


matters relating to ongoing deportation or exclusion
proceedings and not to post-final-order detention
determinations so that section 1231(a)(6) is applicable in
this case.13 Rosales-Garcia involved Mariel Cubans who, like
Sierra, were unadmitted aliens ordered excluded and
deported before IIRIRA’s effective date. The court of appeals
found that the present tense language of section 309(c)(1)
and the Supreme Court’s language in INS v. St. Cyr, 533
U.S. 289, 121 S.Ct. 2271 (2001), and other cases indicated
that section 309(c)(1) applies only to proceedings pending
on April 1, 1997. Rosales-Garcia, 322 F.3d at 402-03.
Accordingly, the court rejected the government’s argument
that pre-IIRIRA law should apply and instead concluded
that section 1231(a)(6) governed appellants’ imprisonment
because neither of their “exclusion proceeding[s] was
pending on April 1, 1997.”14 Id. at 403. In Zadvydas v.
Underdown, the Court of Appeals for the Fifth Circuit, while
noting that the statute “is not a model of clarity” with
respect to its application to an alien ordered deported prior
to the IIRIRA’s effective date, agreed with the parties that
IIRIRA applies to all aliens who are not “in proceedings” on
the statute’s effective date. See 185 F.3d at 286-87.15
  In support of his argument that IIRIRA applies unless the
immigrant in question was in pending immigration
proceedings on April 1, 1997, Sierra also points to St. Cyr

13. In Zadvydas the Supreme Court did not reverse the court of appeal’s
determination that section 1231(a)(6) was the applicable statute. Indeed,
without addressing the issue, the Supreme Court assumed in Zadvydas
that section 1231(a)(6) was applicable.
14. The dissenting judges in Rosales-Garcia did not accept the
government’s argument that section 1231(a)(6) was inapplicable. See
Rosales-Garcia, 322 F.3d at 416-21 (Boggs, J., dissenting).
15. Though the Supreme Court applied IIRIRA in Zadvydas, it did not
explain why it did so. See Rosales-Garcia, 322 F.3d at 401. Inasmuch as
the Court in Zadvydas did not discuss the application of IIRIRA to
Zadvydas, we cannot simply assume that such application is appropriate
for all aliens ordered deported or excluded before April 1, 1997. Id.
However, there are other reasons that IIRIRA is the appropriate statute.
Most significantly, this is the best interpretation of section 309(c)(1). In
addition, as we will discuss in more detail below, the government until
recently endorsed this interpretation.
                                   12


in which the Supreme Court noted that “[s]ection 309(c)(1)
is best read as merely setting out the procedural rules to be
applied to removal proceedings pending on the effective
date of the statute.” 533 U.S. at 318, 121 S.Ct. at 2289. In
Rosales-Garcia the court quoted this language and pointed
out that “The St. Cyr Court also noted that ‘the Conference
Report expressly explained “[section 309(c)] provides for the
transition to new procedures in the case of an alien already
in exclusion or deportation proceedings on the effective
date.” 322 F.3d at 402 (citations omitted). The court of
appeals concluded that “[i]n other words, according to the
Supreme Court, § 309(c) provides only that IIRIRA does not
apply to removal proceedings that were pending on April 1,
1997.” Id.; see also Reno v. American-Arab Anti-
Discrimination Comm., 525 U.S. 471, 487, 119 S.Ct. 936,
945 (1999) (referring to “§ 309(c)(1)’s general rule” that
IIRIRA’s provisions “do not apply to pending cases”).
   Section 309(c)(1)(B), which provides that “the proceedings
(including judicial review thereof) shall continue to be
conducted without regard to such amendments,” i.e., under
pre-IIRIRA law, also supports this interpretation of section
309(c)(1). As amicus American Civil Liberties Union
(“ACLU”) points out, the focus on “proceedings” and
“judicial review thereof ” in section 309(c)(1)(B) confirms
that section 309(c)(1) governs issues relating to the
determination of excludability or deportability, not post-
final-order detention that occurs thereafter and is unrelated
entirely to the proceedings. See Br. of amicus at 12-13.
  (b) INS’s shifting position on the applicable law
  In its brief the government argues that “the INS has
consistently taken the position that, pursuant to section
309(c)(1) of IIRIRA, the pre-IIRIRA law applies to the
detention of excludable aliens whose immigration
proceedings were initiated prior to April 1, 1997.” Br. of
appellee at 27. In addition, according to the government, “to
the extent this Court finds IIRIRA § 309(c) ambiguous, it
should accord Chevron[16] deference to the INS’s
interpretation.” Br. of appellee at 28.

16. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
843-44, 104 S.Ct. 2778, 2782 (1984).
                                  13


   Contrary to the government’s contention that it
“consistently [has] taken the position that, pursuant to
§ 309(c)(1) of IIRIRA, the pre-IIRIRA law applies to the
detention of excludable aliens whose immigration
proceedings were initiated prior to April 1, 1997,” the
government previously has argued that IIRIRA, not pre-
IIRIRA law, applies to the detention of excludable aliens
whose immigration proceedings were initiated and
concluded prior to April 1, 1997. Most significantly, in
Sierra’s prior litigation challenging the parole revocation
process, the government acknowledged before the Court of
Appeals for the Tenth Circuit that IIRIRA applied. See
Sierra, 258 F.3d at 1216-17 n.2 (“The parties agree that
IIRIRA applies to this case, and for purposes of this appeal
we assume it does, although the matter is not free from
doubt.”); see also Benitez v. Wallis, 337 F.3d 1289, 1293
n.13 (11th Cir. 2003) (In a case involving a Mariel Cuban
found excludable and deportable prior to IIRIRA’s effective
date, “in the district court proceedings, the government
relied on IIRIRA, did not assert that pre-IIRIRA rules
applied, and did not dispute (in any way) the district court’s
application of IIRIRA.”).
   In addition, the INS has argued in cases involving
deportable aliens that section 309(c)(1) applies only when
proceedings are in progress. The government advanced this
exact reason before the court of appeals in Zadvydas v.
Underdown to justify application of section 1231(a)(6) to the
petitioner, who had been placed in proceedings prior to
April 1, 1997. In that case the government argued that the
“exception in section 309(c)(1) . . . only applies to
‘proceedings’ in progress. Because Mr. Zadvydas already
has a final deportation order and his administrative
proceedings have been concluded, the exception found in
309(c)(1) does not apply to his case, and the effective date
provision of § 309(a) governs.”17 See Respondents-

17. The government attempts to explain the position it took in Zadvydas
v. Underdown by arguing that because of an alleged ambiguity created
by the various statutory changes, both the pre-1996 and post-1996
detention statutes governed Zadvydas’ imprisonment. See Br. of appellee
at 22. As the ACLU points out, this argument is not persuasive. See Br.
                                    14


Appellants’ Supplemental Brief in Zadvydas v. Underdown
at 10, No. 97-31345 (5th Cir.) (filed Apr. 22, 1999) (copy
attached to amicus brief as Exh. A); see also Zadvydas v.
Underdown, 185 F.3d at 286-87 (agreeing with the
government’s position that IIRIRA governed Zadvydas’
detention); In re Nai Meng Saelee, 22 I. & N. Dec. 1258 n.61
(2000).
   As the ACLU also points out, following the Supreme
Court’s decision in Zadvydas the government continued to
advance the same interpretation of section 309(c)(1) to
justify application of section 1231(a)(6) to an alien placed in
deportation proceedings prior to IIRIRA’s effective date and
ordered deported thereafter. See Br. of amicus at 16. The
government argued before the Court of Appeals for the
Eleventh Circuit that section 309(c)(1) did not govern the
alien’s detention because he was subject to a final order
and no longer was in deportation “proceedings.” See Brief
for respondent/appellees in Al Najjar v. Ashcroft at 13-14,
No. 02-11153-JJ (11th Cir.) (filed May 21, 2002) (copy
attached to amicus brief as Exh. B). In further support of
its position, the government argued that Congress intended
that the same detention rules would apply to individuals
subject to final orders regardless of the date of those
orders, stressing that: “[B]ecause custody decisions are
necessarily prospective, it is logical that Congress intended
one set of detention rules to apply to all aliens with final
orders awaiting deportation or removal.”18 Id. at 14. Though

of amicus at 17-22; see also Chavez-Rivas v. Olsen, 207 F. Supp. 2d
326, 332-33 (D.N.J. 2002) (“At oral argument, counsel for the
Respondents claimed that the INS’s position in Zadvydas applied only to
deportable criminal aliens. I fail to see the relevance of that distinction
here, and, in any event, the INS has nothing at all to distinguish its
position in Sierra, wherein the petitioner was, like Chavez-Rivas,
inadmissible. Nor is there any evidence that the INS’s conclusion is
based on underlying policy concerns, or indeed, on reasoned deliberation
of any kind.”) (citation omitted).
18. The ACLU also points out that the government has maintained that
the newly enacted “reinstatement” of removal provision, IIRIRA
§ 241(a)(5), applies to aliens in proceedings before IIRIRA’s effective date
because those aliens were no longer in ongoing proceedings and section
                                     15


the procedural posture of Al Najjar differs from that here
inasmuch as in that case the deportation order was entered
after IIRIRA’s effective date, the government’s position in Al
Naijar is somewhat inconsistent with its position here.
   Notwithstanding its position in these cases, the
government recently has abandoned this interpretation of
section 309(c)(1) and now contends that IIRIRA has a more
limited application. Thus, before the Court of Appeals for
the Sixth Circuit in Rosales-Garcia, the government argued
that section 309(c)(1) precludes application of section
1231(a)(6) in all cases of aliens excluded prior to IIRIRA’s
effective date. See 322 F.3d at 401 (noting that “[a]ccording
to the government, § 309(c)(1) of IIRIRA precludes [the
court] from applying IIRIRA to an alien excluded prior to
the statute’s effective date.”).19
  We do not suggest that a governmental agency may not
change its interpretation of a statute and, indeed, we
recognize that ordinarily it should make such a change if it
believes that its prior interpretation was incorrect. Thus, we
have no intention of discouraging agencies from
reevaluating their positions regarding the meaning of
statutes.

309(c)(1) is therefore inapplicable. See Br. of amicus at 17 (citing Brief
for respondent in Castro-Cortez v. INS at 38-39, No. 99-70267 (9th Cir.)
(filed Mar. 27, 2000) (referencing section 309(c)(1) and arguing that
“[u]nless an alien is in deportation or exclusion proceedings when the
INS attempts to reinstate the alien’s prior order, section 241(a)(5) applies
to the alien.”) (copy attached to amicus brief as Exh. C)). Relatedly, in St.
Cyr the INS argued that “Congress’ comprehensive establishment of a
new immigration framework . . . shows its intent that, after a transition
period, the provisions of the old law should no longer be applied at all.”
St. Cyr, 533 U.S. at 317, 121 S.Ct. at 2288 (quoting Br. of INS at 33-34).
19. None of the judges of the en banc court in Rosales-Garcia accepted
the government’s argument. We also note that, as Sierra points out, the
government’s petition for a writ of certiorari in Rosales-Garcia did not
ask that the Supreme Court review the court of appeal’s holding that
section 1231(a)(6) applies to Mariel Cubans who, like Sierra, were in
immigration proceedings prior to IIRIRA’s effective date. See Reply Br. of
appellant at 2.
                                    16


   Nevertheless an agency’s interpretation is entitled to
deference in accordance with the “ ‘thoroughness evident in
[the agency’s] consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control.” EEOC v. Arabian Am. Oil Co., 499 U.S.
244, 257, 111 S.Ct. 1227, 1235 (1991) (internal quotation
marks and citations omitted). In view of the government’s
shifting position that we have set forth, we accord little
deference to its contention here. First, the government
appears to have advocated only in litigation the application
of pre-IIRIRA law to petitioners whose cases are
procedurally similar to Sierra’s. See Rosales-Garcia, 322
F.3d at 403 n.22. “An interpretation contained in a brief—
like interpretations contained in opinion letters, policy
statements, agency manuals, and enforcement guidelines—
lacks the force of law and therefore is not entitled to
Chevron deference.” Id.; see also Chavez-Rivas v. Olsen, 207
F. Supp. 2d 326, 332 (D.N.J. 2002). Second, as discussed
above, the government’s position has been inconsistent and
is therefore unpersuasive.20 Rosales-Garcia, 322 F.3d at
403 n.22 (“In a number of other cases in which excluded,
deported, or removed aliens challenged the legality of their
continued detention, the government argued that IIRIRA
should apply to alien petitioners who had been excluded or
deported prior to April 1, 1997.”) (citations omitted); see
also Chavez-Rivas, 207 F. Supp. 2d at 332 (“The INS’s
interpretation, I am sad to report, appears to be no more
than an ad hoc judgment offered for no greater purpose or
policy than that it is advantageous to advance the INS’s
position in this particular litigation.”).21

20. As the court of appeals noted in Rosales-Garcia, “[i]nasmuch as
shifting agency interpretations issued in regulations are accorded less
deference under the highly deferential Chevron standard, we see no
reason why we should respect shifting agency interpretations expressed
in briefs.” 322 F.3d at 403 n.22 (internal citations omitted).
21. Our quotation from Chavez-Rivas should not be taken as a signal
that we are critical of the government with respect to its attempt to apply
IIRIRA temporally as the statute surely is not clear. See Chi Thon Ngo v.
INS, 192 F.3d 390, 395 n.5 (3d Cir. 1999).
                                  17


   In conclusion, because the best interpretation of section
309(c)(1) as adopted by several courts of appeals is that
IIRIRA applies unless the petitioner was in deportation
proceedings pending on April 1, 1997, we will interpret
IIRIRA that way. In the circumstances, inasmuch as
Sierra’s proceedings were concluded in 1992 and therefore
no longer were pending on April 1, 1997, section 1231(a)(6)
governs his current detention and we will apply that statute
here.
  C. Construction of Section 1231(a)(6) as Applied to Sierra
   In view of our conclusion that section 1231(a)(6) governs
Sierra’s detention,22 we must determine whether the
Supreme Court’s holding in Zadvydas, reading into section
1231(a)(6) a temporal limit on post-removal detention for
resident aliens, also applies to the detention of an
unadmitted, inadmissible alien such as Sierra. The district
court held that Zadvydas was not applicable because,
unlike the petitioners in Zadvydas, Sierra “never
effectuated an entry into the United States.” JA 12. Sierra
argues that the district court’s “opinion reflects an incorrect
reading of Zadvydas, which construed the statute which
authorizes imprisonment of all immigrants pending
deportation, whether or not they have affected a legal entry
into the United States.” Br. of appellant at 6. Sierra claims
that the district court erred, “because it is well-established
that a statutory interpretation rendered by the Supreme
Court, even on the basis of the Constitutional avoidance
doctrine, is binding in all applications of the statute.” Br. of
appellant at 10.

22. If we had concluded that the government is correct that pre-IIRIRA
law governs the detention, we would have held that the Attorney General
has the authority to detain Sierra indefinitely pending his deportation
and thus we would have affirmed the denial of his petition for a writ of
habeas corpus. See Chi Thon Ngo v. INS, 192 F.3d 390, 395 (3d Cir.
1999). While the ACLU argues to the contrary, see Br. of amicus at 24-
27, the government is correct in its contention that the Supreme Court’s
decision in Zadvydas did not undermine Ngo’s holding in this respect,
and Sierra does not argue otherwise. See Rios v. INS, 324 F.3d 296, 297
(5th Cir. 2003).
                             18


  (a) Section 1231(a)(6)
   After an alien, such as Sierra, is ordered removed from
the United States, the Attorney General must attempt to
secure his removal within 90 days. See 8 U.S.C.
§ 1231(a)(1) (the “removal period”). Moreover, “[u]nder no
circumstance during the removal period shall the Attorney
General release an alien who has been found inadmissible
. . . .” 8 U.S.C. § 1231(a)(2). Congress, however, recognizes
that securing an alien’s actual removal within 90 days is
not always possible. Consequently section 1231(a)(6)
authorizes the Attorney General to detain aliens beyond the
90-day removal period, as it provides:
    An alien ordered removed who is inadmissible under
    section 1182 of this title, removable [for violations of
    nonimmigrant status or entry conditions, violations of
    criminal laws, or threats to national security] or who
    has been determined by the Attorney General to be a
    risk to the community or unlikely to comply with the
    order of removal, may be detained beyond the removal
    period and, if released, shall be subject to the terms of
    supervision in paragraph (3).
The INS has detained Sierra because his conduct shows
that he is a risk to the community.
  (b) Zadvydas v. Davis
  In Zadvydas the Supreme Court considered whether the
government’s authority under section 1231(a)(6) to detain
two legal permanent residents beyond the 90-day removal
period allowed it to detain them indefinitely. There two legal
permanent residents were ordered removed by reason of
their criminal convictions. The government, however, could
not remove them because no country would accept them.
  In evaluating the legality of indefinite detention in
Zadvydas, the Supreme Court considered whether
indefinite detention of resident aliens, if authorized by
section 1231(a)(6) as the government contended was the
case, would present constitutional problems. In making its
determination the Court predicated its decision on its
recognition that the two resident alien petitioners in
Zadvydas     enjoyed   certain   constitutional  privileges
                               19


associated with individuals who have gained entry into the
United States. 533 U.S. at 692-93, 121 S.Ct. at 2500. The
Court explained, however, that Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625 (1953),
permits the indefinite detention of unadmitted aliens the
government is unable to send elsewhere, but noted that
Mezei “differs from the present cases [in Zadvydas] in a
critical respect” in that the alien in Mezei was “ ‘treated,’ for
constitutional purposes, ‘as if stopped at the border.’ ”
Zadvydas, 533 U.S. at 693, 121 S.Ct. at 2500 (quoting
Mezei, 345 U.S. at 213, 215, 73 S.Ct. at 630, 631). Thus,
the Court in Zadvydas explained that the distinction
between aliens who have gained entry and those stopped at
the border “made all the difference” in its earlier decision
that Mezei’s indefinite detention did not violate the
Constitution. Id. at 692-93, 121 S.Ct. at 2500.
  In Zadvydas the Court further stressed that “[t]he
distinction between an alien who has effected an entry into
the United States and one who has never entered runs
throughout immigration law.” Id. at 693, 121 S.Ct. at 2500.
The Court also emphasized that “[i]t is well established that
certain constitutional protections available to persons
inside the United States are unavailable to aliens outside of
our geographic borders.” Id., 121 S.Ct. at 2500. “But once
an alien enters the country, the legal circumstance
changes, for the Due Process Clause applies to all ‘persons’
within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or
permanent.” Id., 121 S.Ct. at 2500.
   After an extended discussion of the serious constitutional
problems of permitting the indefinite detention of legal
permanent residents as opposed to unadmitted aliens, the
Court in Zadvydas saved section 1231(a)(6) from possible
unconstitutionality in the context of a resident alien by
limiting the post-removal-period detention to a length of
time reasonably necessary to bring about the actual
removal of the resident alien. Id. at 694-99, 121 S.Ct. 2501-
03. The Court then recognized six months as a
presumptively reasonable time of post-removal-period
detention for resident aliens, though the time may be
extended if there is a significant likelihood of removal in the
                             20


foreseeable future. Furthermore, a release may be made
subject to conditions a violation of which may justify a
return of the alien to custody. Id. at 699-702, 121 S.Ct.
2503-05.
  (c) Courts of Appeals split post-Zadvydas
   There is a division of opinion among the courts of appeals
as to whether Zadvydas limits only the government’s
authority to detain resident aliens or whether it applies to
all categories of aliens. Compare Borrero v. Aljets, 325 F.3d
1003, 1007 (8th Cir. 2003) (concluding “that Zadvydas’s
six-month presumption of reasonableness is inapplicable to
inadmissible aliens”), Benitez v. Wallis, 337 F.3d at 1301
(concluding that “[T]he government has the authority under
§ 1231(a)(6) to detain inadmissible aliens indefinitely and
Zadvydas’s six-month presumption of reasonableness is
inapplicable to inadmissible aliens.”), Rios v. INS, 324 F.3d
296, 297 (5th Cir. 2003) (concluding that Zadvydas
“distinguished the status of deportable aliens from that of
excludable aliens”), and Hoyte-Mesa v. Ashcroft, 272 F.3d
989, 991 (7th Cir. 2001), cert. denied, 537 U.S. 846, 123
S.Ct. 185 (2002) (concluding that an inadmissible alien’s
“continued detention does not violate due process”), with
Rosales-Garcia, 322 F.3d at 410-15 (applying the
reasonableness limitation that the Supreme Court read into
section 1231(a)(6) in Zadvydas to inadmissible aliens), and
Xi v. INS, 298 F.3d 832, 837-39 (9th Cir. 2002) (same); see
also Martinez Vazquez, 2003 WL 22244774, at *3. But
notwithstanding this conflict among the courts of appeals,
the Supreme Court has denied certiorari in cases
representing both viewpoints. See Benitez, 337 F.3d at
1295-96.
   Inasmuch as the Supreme Court has not resolved the
issue we are constrained to reach a conclusion on the
question of whether in the light of Zadvydas the
government may detain an unadmitted alien indefinitely
under section 1231(a)(6) if it is unable to send the alien to
any other country. In this process we first will discuss why
Sierra remains an inadmissible alien and then examine
whether the reasonableness component, as read into
section 1231(a)(6) by the Supreme Court in Zadvydas,
                                   21


applies to inadmissible aliens. See Benitez, 337 F.3d at
1296.
  (d) Sierra is an unadmitted alien
   Although Sierra has been present physically in the
United States for more than 20 years, the government never
formally has admitted him and inasmuch as he was
excludable when he arrived he is, as we explained above,
an inadmissible alien. See supra note 3 and accompanying
text. We reiterate that when Sierra arrived in the United
States as part of the Mariel boatlift he was stopped at the
border and paroled into this country. He was paroled
because Congress has recognized that it is often
appropriate to permit arriving aliens, such as Sierra, to
make a temporary, unofficial entry into the United States
pending the resolution of their applications. See Benitez,
337 F.3d at 1296; see also 8 U.S.C. § 1182(d)(5)(A)
(granting authority to Attorney General to parole an alien
seeking admission into the United States, but providing
that such parole does not constitute an admission of the
alien). But the Supreme Court has rejected claims that the
parole or detention of an unadmitted alien has any effect on
the alien’s status under the law. See Leng May Ma v.
Barber, 357 U.S. 185, 78 S.Ct. 1072 (1958).23 Because
detention or parole does not alter an alien’s legal status it
is clear that Sierra is an inadmissible alien in a legal
position similar to that of any other alien who has not
gained entry and has been stopped at this country’s border.
See Benitez, 337 F.3d at 1296. Thus, legally, though Sierra
is physically in the United States, he has not been admitted

23. In Leng May Ma, the 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.” 357 U.S. at 188,
78 S.Ct. at 1074. Likewise, the Court explained 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, 78
S.Ct. at 1075; see also Mezei, 345 U.S. at 215, 73 S.Ct. at 631 (alien
permitted to enter pending decision on admissibility “is treated as if
stopped at the border”).
                                    22


to this country. In short, he is both inadmissible and
unadmitted.
   Any discussion of Sierra’s rights in the immigration
context also must recognize the fundamental difference in
the legal status of (1) unadmitted aliens such as Sierra and
(2) resident aliens who have effected “entry” into the United
States, whether illegally or legally. See id. Zadvydas
recognized this critical distinction which has been a
hallmark of immigration law for more than a hundred
years. Id. For example, in Leng May Ma the Supreme Court
emphasized 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, 78 S.Ct. at 1073. The Court 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 Mezei, 345 U.S. at 212, 73 S.Ct. at 629).24
  (e) Zadvydas’s temporal limitation on detention does not
  apply to Sierra
  Although Sierra does not argue that he has a
constitutional right precluding his continued detention, he
does argue that he has a statutory right under section
1231(a)(6), post-Zadvydas, prohibiting indefinite detention.25
See Br. of appellant at 17. We reiterate that there is a split
of opinion among the courts of appeals regarding the
breadth of Zadvydas’s holding. The Courts of Appeals for
the Sixth and Ninth Circuits have held that Zadvydas

24. The Court further has explained that aliens seeking admission, such
as Sierra, have no constitutional rights regarding their applications for
admission. See Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329
(1982) (“[A]n alien seeking initial admission to the United States requests
a privilege and has no constitutional rights regarding his application, for
the power to admit or exclude aliens is a sovereign prerogative . . . .
[H]owever, once an alien gains admission to our country and begins to
develop the ties that go with permanent residence his constitutional
status changes accordingly.”) (internal citations omitted).
25. The government does not contend that repatriation by Cuba of Sierra
is reasonably foreseeable.
                                  23


applies to all aliens regardless of their legal status. See
Rosales-Garcia, 322 F.3d at 405-06; Xi, 298 F.3d at 835-
36. However, the Courts of Appeals for the Fifth, Seventh,
Eighth, and Eleventh Circuits have concluded that
Zadvydas does not affect the government’s long-standing
authority to detain indefinitely unadmitted aliens. See
Benitez, 337 F.3d at 1298-1301.26
   The Courts of Appeals for the Eighth and Eleventh
Circuits have addressed in some detail the issue of whether
the Zadvydas Court’s construction of section 1231(a)(6) as
containing a “reasonableness” component must apply
categorically to all aliens, regardless of the aliens’ legal
status. Borrero, 325 F.3d at 1005-07; Benitez, 337 F.3d at
1298-1301. Both courts applied Zadvydas as limiting the
detention period of only those aliens whose continued
confinement raises serious constitutional doubt and both
courts expressly rejected the argument that the same
statutory construction of section 1231(a)(6) must apply
categorically to all future cases whether or not their
circumstances raise the same constitutional questions.
These courts thoroughly have set forth reasons which
convince us to reject Sierra’s argument about how section
1231(a)(6) must be read post-Zadvydas.
   First, in Borrero the court explained that Zadvydas
limited “the detention only of those aliens whose detention
raises serious constitutional doubt — admitted aliens.”
Borrero, 325 F.3d at 1007. Second, it emphasized that
“Zadvydas itself does not mandate uniform application of
§ 1231(a)(6) to all aliens.” Id. The court reached this
conclusion based, in part, on the Supreme Court’s notation
that “ ‘terrorism or other special circumstances’ may justify
greater deference to Congress and the Executive.” Id.
(quoting Zadvydas, 533 U.S. at 696, 121 S.Ct. at 2502).
Third, the court of appeals stressed how Zadvydas
“expressly distinguished Mezei on the grounds that Mezei

26. Various district courts have come to the same conclusion. See, e.g.,
Gonzalez v. Ashcroft, No. 03-2290 (JLL), ___ F. Supp. 2d ___, 2003 WL
22012599 (D.N.J. Aug. 26, 2003); Napoles v. INS, No. 3:02CV2116
(PCD), ___ F. Supp. 2d ___, 2003 WL 21999003 (D. Conn. July 22,
2003).
                                  24


had not made an entry into the United States.” Borrero, 325
F.3d at 1007. Based on these reasons, the court concluded
that “Zadvydas’s six-month presumption of reasonableness
is inapplicable to inadmissible aliens.” Id.
   In Benitez the court of appeals stated that it found the
Borrero court’s reasoning persuasive and therefore adopted
it. See Benitez, 337 F.3d at 1299. In addition, the Benitez
court set forth several other reasons for reaching its
conclusion. First, according to Benitez “Zadvydas reads like
an as-applied constitutional challenge where the Supreme
Court repeatedly stated that its holding would not
necessarily apply to other situations.” Id. Because
Zadvydas was qualified in so many respects and reads like
an as-applied decision, the court of appeals concluded that
the Supreme Court left the law and the statutory scheme
intact with respect to inadmissible aliens who never have
been admitted into the United States. Id.
  Second, the court of appeals in Benitez, adopting the
reasoning of the dissent in Xi, stated that it takes “the
Supreme Court at its word: while indefinite detention raises
serious constitutional questions in the case of aliens who
have been admitted to the United States, ‘[a]liens who have
not yet gained initial admission to this country would
present a very different question.’ ” Id. (quoting Xi, 298 F.3d
at 840 (Rymer, J., dissenting) (quoting Zadvydas, 533 U.S.
at 682, 121 S.Ct. at 2495)). In Zadvydas the Supreme
Court expressly declined to overrule Mezei.27 Zadvydas, 533

27. Notwithstanding Zadvydas, Mezei plainly remains good law. See
Hoyte-Mesa, 272 F.3d at 991. As the dissent in Rosales-Garcia reminded,
the
    Supreme Court has recently and emphatically instructed us that we
    should leave the overruling of Supreme Court precedents to that
    Court, even if we believe, or divine, that the Court should, or will,
    overrule them. Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct.
    1997, 2017 (1997). No matter how much the court may disagree
    with the distinction between excludable and deportable aliens, it
    simply cannot be disputed that the controlling Supreme Court
    precedent makes that distinction and holds that excludable aliens
    do not have a constitutional right to be permitted to remain in the
    United States at liberty if their removal cannot be seasonably
    obtained.
322 F.3d at 418 (Boggs, J., dissenting).
                                    25


U.S. at 693, 121 S.Ct. at 2500. The court of appeals in
Benitez also rejected the argument that Zadvydas leaves
courts with little choice but to apply section 1231(a)(6)
uniformly to all aliens.28 337 F.3d at 1299. Quoting Judge

28. Sierra relies on three cases to support his position that once the
Supreme Court interpreted section 1231(a)(6), that interpretation applies
to all immigrants: Rosales-Garcia and Xi, both of which held that
Zadvydas’s holding applies to excludable/inadmissible aliens, and
Chmakov v. Blackman, 266 F.3d 210, 214-15 (3d Cir. 2001), in which we
confronted the question of whether the Supreme Court’s determination
in St. Cyr that IIRIRA did not revoke federal habeas jurisdiction for aliens
with no other avenue of review applied equally to aliens who had other
review available. We do not find these cases to be persuasive in the
context here. To start with we are satisfied that the reasoning in Rosales-
Garcia and Xi is not as persuasive as that in Benitez and Borrero. With
respect to Chmakov, Sierra suggests that in that case “this Court held
that statutory interpretations based on the doctrine of Constitutional
avoidance, like Zadvydas, apply in all applications of the statute.” See
Reply Br. of appellant at 5. The court in Chavez-Rivas explained why
Chmakov does not stand for this proposition. “It appears . . . that
Chmakov was based, not on the view of the avoidance canon that
[petitioner] argues, but rather on the common-law notion that statutes
repealing jurisdiction are not favored.” 207 F. Supp. 2d at 334. As the
court in Chavez-Rivas further explained,
    [n]or does some of the broad-sweeping language of Chmakov point to
    a contrary conclusion . . . . This language . . . is part of the court’s
    analysis of whether or not IIRIRA ‘clearly’ withdraws habeas
    jurisdiction. The INS had claimed that the very language in IIRIRA
    that the Supreme Court found insufficiently clear in St. Cyr could
    nonetheless be clear enough to withdraw habeas jurisdiction for
    Chmakov. The Chmakov court, in rejecting that argument, simply
    concluded that what the Supreme Court had already found unclear
    could not magically become clear. The reference to the ‘background
    or pedigree of the petitioner’ likely is meant only to emphasize the
    fact that the standard for statutory clarity is the same regardless of
    whether the clear statement rule is supplied by the avoidance canon
    or by common law principles.
Id. at 334-35 (internal citation omitted).
  The ACLU cites two cases in an attempt to support its argument that
a Supreme Court interpretation based on the avoidance canon
necessarily binds all subsequent interpretations of the statute, Food
Chemical News v. Young, 900 F.2d 328, 332-33 (D.C. Cir. 1990), and
Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929, 936 n.36 (D.C. Cir.
                                    26


Rymer’s dissent in Xi, Benitez stated that, “[w]e do have a
choice because the Court’s interpretation was discrete as to
admitted aliens” and “[i]t was driven by the need to avoid
constitutional problems that pertain to those who are
admitted—but that do not pertain to those who are not
admitted.” Id. (citation omitted). The court further agreed
with Judge Rymer that “[t]he result is a nuanced
interpretation of § 1231(a)(6) that keeps it from being
applied unconstitutionally but otherwise leaves it alone.
When a statute has different applications, it is not
necessary to say that it is categorically infirm; it is only the
constitutionally problematic aspects which are subject to
the construction that avoids the problem.” Id. (citation
omitted).
   Third, as the Benitez court explained, the ability to
exclude aliens from this country at its borders is a duty
entrusted to the Executive Branch so that it may protect
the citizens and residents of this country from all manner
of nameless dangers. See id. at 1300. In Zadvydas, the
Supreme Court emphasized that the cases before it did not
require it to consider the political branches’ authority to
control entry into the United States and therefore the court
was not leaving an “unprotected spot in the Nation’s
armor.” Zadvydas, 533 U.S. at 695-96, 121 S.Ct. at 2502
(citation omitted). “Creating a right to parole for unadmitted
aliens after six months would create an unprotected spot in
this country’s defense of its borders.” Benitez, 337 F.3d at
1300. For example, the government may not be able to
determine what potential dangers a particular unadmitted

1995). However, as the court in Chavez Rivas explained, these cases do
not support the ACLU’s argument. “Food Chemical News . . . never even
mentions the avoidance canon. Instead, it seems to conclude that the
Supreme Court would have reached the same result based on ordinary
principles of statutory interpretation, such that the existence or not of a
constitutional issue in later cases would not matter . . . . Thus, when the
D.C. Circuit subsequently relied on Food Chemical News to apply the
Supreme Court’s narrow definition [in Sofamor Danek], it had no
occasion to decide whether the Supreme Court’s avoidance rationale
required that interpretation.” 207 F. Supp. 2d at 335 (internal citations
omitted).
                             27


alien might pose. See id. “In such a situation, the
government historically has enjoyed broad latitude in
detaining those aliens until their security threat can be
fully ascertained. Removing this important tool from the
government’s arsenal undoubtedly would subject the
residents of this nation to greater security risks.” Id.
   Fourth, the court of appeals in Benitez reiterated that
“Congress has given the Attorney General the discretion to
detain or parole persons who are not admitted into this
country and whose own country will not take them back.”
Id. In light of the fact that the Supreme Court in Zadvydas
went to such great lengths to distinguish inadmissible
aliens from aliens who have gained entry, courts should not
fetter that discretion by presumptively requiring their
release into this country after six months. Id.
   Fifth and finally, in Benitez the court of appeals stated
that “reading § 1231(a)(6) as creating a right to parole into
this country after six months for inadmissible aliens is
undoubtedly a drastic expansion of the rights of
inadmissible aliens, who have never gained entry into this
country.” Id. Moreover, as the Benitez court indicated, “[i]t
is without question that Congress had a contrary intention
when enacting IIRIRA: it sought to tighten immigration
regulations. As the very language of IIRIRA mandates,
courts are not to construe IIRIRA to ‘create any substantive
or procedural right or benefit that is legally enforceable.’ 8
U.S.C. § 1231(h).” Benitez, 337 F.3d at 1300. The court
went on to indicate that “[i]t is also clear that Congress
intended the use of the term ‘inadmissibility’ to subject
removable aliens to the same potential for indefinite
detention—if they could not be removed after the
commission of a serious crime—to which excludable aliens
had been subject both statutorily and constitutionally for
years.” Id.
   The Benitez court further explained that inadmissible
aliens who never have been admitted into the United States
never truly have resided in this country free from restraint.
See id. at 1301. “Rather, Congress has bestowed on them
the luxury of parole while their immigration applications
and status are finalized. To pervert this gift from Congress
into a right after six months not only would distort
                              28


Congress’s intent and potentially create grave security
concerns for the people of the United States, but also would
create needless difficulties in how the INS processes aliens.”
Id.
  We have considered the precedents on both sides of the
Zadvydas issue and have made an independent analysis of
the parties’ arguments with respect to the case’s
application. From these examinations we have concluded
that inasmuch as Zadvydas’s holding is qualified in so
many regards, and there is no need to construe section
1231(a)(6) to avoid constitutional due process concerns for
inadmissible aliens who never have been admitted into the
United States, the Attorney General has the authority
under section 1231(a)(6) to detain Sierra indefinitely and
Zadvydas’s six-month presumption of reasonableness is
not applicable to him. Accordingly, the district court
properly denied his petition for a writ of habeas corpus.

                     III.   CONCLUSION
  In summary, we agree with the courts of appeals that
have held section 1231(a)(6) is applicable in cases in
procedural postures similar to this case but we hold that
Sierra is not entitled to relief under that section as it
permits his indefinite detention. Accordingly, we will affirm
the orders of May 17, 2002, and June 18, 2002, denying
his petition for a writ of habeas corpus.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
