                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-1506
                                    ___________

Lazaro D. Borrero,                     *
                                       *
              Appellee,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Curtis J. Aljets, Immigration and      *
Naturalization Service,                *
                                       *
              Appellant.               *
                                  ___________

                              Submitted: December 11, 2002

                                   Filed: April 15, 2003
                                    ___________

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

      Lazaro Borrero is an inadmissible alien subject to a final order of removal.
Because his native country, Cuba, will not accept his return, he was held in the
custody of the Immigration and Naturalization Service (INS) upon his release from
prison on state drug and firearms charges on September 11, 2000. The district court
granted Borrero’s petition for writ of habeas corpus, and he was released from INS
custody on January 4, 2002. The government appeals, arguing that it has statutory
authority to detain inadmissible aliens, indefinitely if necessary, pending deportation.
Our decision in this case turns on the application of Zadvydas v. Davis, 533 U.S. 678
(2001), in which the Supreme Court adopted a narrowing construction of 8 U.S.C. §
1231(a)(6) in order to avoid a serious doubt about its constitutionality as applied to
admitted aliens. Because the detention of inadmissible aliens does not raise the same
constitutional concerns as does the detention of admitted aliens, we conclude that
Zadvydas’s narrowing construction of § 1231(a)(6) does not limit the government’s
statutory authority to detain inadmissible aliens. Accordingly, we reverse.

                                          I.

       The facts underlying this appeal are undisputed. Borrero is a citizen of Cuba
who arrived at the border of the United States in 1980 during the Mariel boatlift. The
Immigration and Naturalization Service (INS) paroled Borrero into the United States
on June 4, 1980. During his parole, Borrero was convicted of simple battery in 1983,
cocaine possession in 1984, and theft from the person in 1987. In 1993, Borrero was
convicted of possession and sale of cocaine and possession of a pistol by a felon.
While Borrero was in state custody on his 1993 convictions, the INS initiated removal
proceedings against him. The immigration judge found Borrero removable and
ineligible for asylum or withholding of removal because of his serious criminal
offenses. The Board of Immigration Appeals affirmed.

       On September 11, 2000, Borrero was released from state custody into the
custody of the INS. On September 19, 2000, the INS revoked Borrero’s immigration
parole, citing his firearms offense and his threat to kill an immigration judge. In
accordance with the parole review procedures for detained Mariel Cubans, 8 C.F.R.
§ 212.12, the INS reviewed Borrero’s parole status in March 2001. On May 1, 2001,
after interviewing Borrero and considering various factors weighing for and against
parole, the Associate Commissioner was unable to conclude that Borrero’s parole
would be in the public interest. The district court determined that the Zadvydas
narrowing construction of § 1231(a)(6) applied uniformly to both admitted and
inadmissible aliens and thus held that, absent a significant likelihood that Borrero

                                         -2-
“actually will be removed from the United States in the reasonably foreseeable
future,” he was entitled to release on parole. As set forth above, the district court
granted Borrero’s petition for writ of habeas corpus on January 4, 2002, and ordered
that he be released subject to such terms and conditions the INS deemed appropriate
pursuant to § 1231(a)(3).

                                         II.

       We review the district court’s interpretation of a federal statute de novo.
Norwest Bank of North Dakota, N.A. v. Doth, 159 F.3d 328, 332-33 (8th Cir. 1998).
We give substantial deference to an agency’s interpretation of the statutes and
regulations it administers. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Vue
v. INS, 92 F.3d 696, 699 (8th Cir. 1996). If the agency interpretation conflicts with
a decision of the Supreme Court, however, we are bound by the Court’s
interpretation. See Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of
Laborers, 861 F.2d 1124, 1140 (9th Cir. 1988).

       This case presents the issue of whether the narrowing construction of §
1231(a)(6) applied to admitted aliens in Zadvydas is in conflict with the construction
of § 1231(a)(6) the INS would have us apply to inadmissible aliens. In Zadvydas, the
Court addressed the government’s statutory authority under § 1231(a)(6) to detain
indefinitely “aliens who were admitted to the United States but subsequently ordered
removed.” 533 U.S. at 682. Ordinarily, “the Attorney General shall remove the alien
from the United States” within ninety days of the date on which the order of removal
becomes final. 8 U.S.C. § 1231(a)(1). However, when an alien’s removal during the
ninety-day removal period is not possible, § 1231(a)(6) provides for continued
detention of that alien:

      An alien ordered removed who is inadmissible under section 1182 of
      this title, removable under section 1227(a)(1)(C), 1227(a)(2), or

                                         -3-
      1227(a)(4) of this title 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 aliens ordered removed in Zadvydas were resident aliens who had been ordered
removed after they had completed sentences for serious crimes. 533 U.S. at 684-85.
Confronted with a statute that placed no time limit on the detention of aliens within
the three specified categories, the Court “interpret[ed] the statute to avoid a serious
constitutional threat,” and “conclude[d] that, once removal is no longer reasonably
foreseeable, continued detention is no longer authorized by statute.” Id. at 699.
Although acknowledging the primacy of the executive branch in foreign policy
matters including immigration and repatriation negotiations, the Court nonetheless
recognized a presumptively reasonable detention period of six months. Id. at 700-01.

       Zadvydas framed the issue presented as “whether this post-removal-period
statute authorizes the Attorney General to detain a removable alien indefinitely
beyond the removal period or only for a period reasonably necessary to secure the
alien's removal.” Id. at 682. The “serious constitutional problem” raised by a statute
that permits indefinite detention stems from the Fifth Amendment’s Due Process
Clause prohibition of government detention except as a result of a criminal
proceeding conducted with adequate procedural safeguards or “in certain special and
‘narrow’ non-punitive ‘circumstances’ where a special justification, such as harm-
threatening mental illness, outweighs the ‘individual’s constitutionally protected
interest in avoiding physical restraint.’” Id. at 690 (citing United States v. Salerno,
481 U.S. 739, 746 (1987); Foucha v. Louisiana, 504 U.S. 71, 80 (1992); Kansas v.
Hendricks, 521 U.S. 346, 356 (1997)). Post-removal detention is civil in nature, not
criminal, and it applies “broadly to aliens ordered removed for many and various
reasons, including tourist visa violations.” Id. at 691. The Court distinguished
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), in which it rejected


                                         -4-
an alien’s due process challenge to indefinite detention, on the grounds that Mezei
had not effected an entry:

      The distinction between an alien who has effected an entry into the
      United States and one who has never entered runs throughout
      immigration law. It is well established that certain constitutional
      protections available to persons inside the United States are unavailable
      to aliens outside of our geographic borders. 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.

533 U.S. at 693 (citations omitted). Whereas an alien within the country is entitled
to the protection of the Due Process Clause, whatever process Congress has
authorized will satisfy the Constitution with respect to an alien requesting admission.
Landon v. Plasencia, 459 U.S. 21, 33-35 (1982) (“[C]ontrol over matters of
immigration is a sovereign prerogative, largely within the control of the Executive
and the Legislature.”); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,
544 (1950) (“Whatever the procedure authorized by Congress is, it is due process as
far as an alien denied entry is concerned.”). The constitutional issue avoided in
Zadvydas is simply not present in the context of aliens who have not effected an entry
into the United States.

       Borrero argues that when the Supreme Court narrowly construes a statute to
avoid constitutional doubt, that construction applies categorically to all future cases
whether or not the circumstances raise the same constitutional questions. Although
Xi v. INS, 298 F.3d 832, 835-36 (9th Cir. 2002), and Rosales-Garcia v. Holland, 322
F.3d 386, 405-06 (6th Cir. 2003) (en banc), take this view, we respectfully disagree.
We interpret Zadvydas as limiting the detention of only those aliens whose detention
raises serious constitutional doubt – admitted aliens. See Xi, 298 F.3d at 841-42 (9th
Cir. 2002) (Rymer, J., dissenting); see also Chavez-Rivas v. Olsen, 207 F. Supp. 2d

                                         -5-
326, 337 (D.N.J. 2002) (paraphrasing Zadvydas’s narrowing construction as “an alien
may be detained beyond the removal period, and, if the alien is not inadmissible, such
detention shall not extend beyond a period reasonably necessary to secure removal.”).
Zadvydas itself does not mandate uniform application of § 1231(a)(6) to all aliens.
Noting that § 1231(a)(6) applies to “terrorists and criminals,” 533 U.S. at 697, the
Court stated that “terrorism or other special circumstances” may justify greater
deference to Congress and the Executive. Id. at 696. In light of the fact that
Zadvydas expressly distinguished Mezei on the grounds that Mezei had not made an
entry into the United States, we conclude that Zadvydas’s six-month presumption of
reasonableness is inapplicable to inadmissible aliens.

       Finding no statutory time limit on the detention of an inadmissible alien, we
turn to Borrero’s constitutional argument. Borrero contends that if § 1231(a)(6)
authorizes indefinite detention of inadmissible aliens, it is unconstitutional under the
Due Process Clause of the Fifth Amendment. However persuasive this argument may
be, we are bound by the Supreme Court’s decision in Mezei, which Zadvydas neither
overruled nor undermined. Rather, the Zadvydas Court stated that “[a]liens who have
not yet gained initial admission to this country would present a very different
question.” 533 U.S. at 682. Like Zadvydas, Mezei involved indefinite detention, but
the critical difference was that Mezei had not effected an entry into the United States.
Although Mezei was physically present on Ellis Island, “he was ‘treated,’ for
constitutional purposes, ‘as if stopped at the border.’ And that made all the
difference.” Id. at 693.

       Mezei involved an alien who, after living in the United States for twenty-five
years, went abroad for nineteen months. 345 U.S. at 208. Upon his return he was
temporarily excluded from the United States by an immigration inspector. Id. On the
basis of confidential information and without a hearing, the Attorney General made
the exclusion permanent. Id. Because no other country would accept him and the



                                          -6-
exclusion order barred him from entering the United States, Mezei faced the prospect
of indefinite detention at Ellis Island. Id. at 208-09.

       Like Mezei, Borrero has not effected an entry into the United States. He is
physically present in the United States only because he was paroled into the country
by the INS. Parole does not constitute an entry. 8 U.S.C. §§ 1101(a)(13)(A)-(B),
1182(d)(5)(A). Borrero refers us to cases supporting the proposition that even aliens
unlawfully present in the United States are guaranteed due process of law. See, e.g.,
Plyler v. Doe, 457 U.S. 202, 210 (1982); Wong Wing v. United States, 163 U.S. 228,
238 (1896). Those cases may support extending certain constitutional protections to
inadmissible aliens accused of crimes, but they do not call into question the power of
the government to detain an alien who is stopped at the border. See Sierra v. INS,
258 F.3d 1213, 1218 (10th Cir. 2001) (holding that an inadmissible alien is legally
considered to be detained at the border and thus has no due process interest in release
on parole); Hoyte-Mesa v. Ashcroft, 272 F.3d 989, 991 (7th Cir. 2001) (per curiam)
(holding that Mezei remains good law after Zadvydas, thus annual parole review
pursuant to the Cuban Review Plan satisfies due process); Barrera-Echavarria v.
Rison, 44 F.3d 1441, 1450 (9th Cir. 1995) (en banc) (“[E]xcludable aliens simply
enjoy no constitutional right to be paroled into the United States, even if the only
alternative is prolonged detention.”).

       Inadmissible aliens are of course not entirely without Fifth Amendment
protection. See Wang v. Reno, 81 F.3d 808, 813 (9th Cir. 1996) (that parolee was
forced to give testimony that would lead to his “near certain execution” upon his
return to China shocked the conscience of the court and violated his substantive due
process rights). We hold, however, that the regulations governing the parole of
Mariel Cubans, 8 C.F.R. § 212.12, are well within the sovereign prerogative of the
executive branch to set immigration policy and do not violate the Fifth Amendment’s
Due Process Clause. There is no contention that the government failed to follow



                                         -7-
these procedures here. Accordingly, the judgment is reversed, and the case is
remanded to the district court with direction to dismiss the petition.

HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. As a result of the majority’s decision, Borrero is
condemned to indefinite detention because he is countryless, despite completing his
time in prison for his criminal acts. This course of action shocks the conscience and
is neither ethical nor constitutional. Moreover, the decision is contrary to other
circuits that have addressed the matter.

       Under 8 U.S.C. § 1231(a)(6), any inadmissible or removable alien may be
detained by the INS beyond the ninety-day removal period. The reasonable length
of detention beyond the ninety-day removal period is six months, unless removal is
likely within the reasonably foreseeable future. Zadvydas v. Davis, 533 U.S. 678,
701 (2001).

       Although the Court concluded that lawfully admitted aliens could not be
indefinitely detained, the majority’s opinion, in dicta, did not extend its holding to
aliens who had not effected entry into the United States, explaining that historically
our nation has not bestowed the same constitutional privileges upon inadmissible
aliens. Id. at 693. Justice Scalia was perplexed by the majority’s distinction: “[w]e
are offered no justification why an alien under a valid and final order of removal –
which has totally extinguished whatever right to presence in this country he possessed
– has any greater due process right to be released into the country than an alien at the
border seeking entry.” Id. at 704. Justice Kennedy noted in his dissent, “Section
1231(a)(6) permits continued detention not only of removable aliens but also of
inadmissible aliens, for instance those stopped at the border before entry. Congress
provides for detention of both categories within the same statutory grant of
authority.” Id. at 710. Justice Kennedy explained that there were only two possible

                                          -8-
consequences of the majority’s holding: (1) the holding applied to both categories
of aliens, or (2) inadmissible and removable aliens can be treated differently. Id. He
found the second option unconvincing: “it is not a plausible construction of §
1231(a)(6) to imply a time limit as to one class but not another. The text does not
admit of this possibility.” Id.

      In fact, two circuits and the district court in the matter before us have agreed
with Justices Kennedy's and Scalia’s position: there is no credible distinction to be
made between the rights conferred to removable and inadmissible aliens in §
1231(a)(6). In Rosales-Garcia v. Holland, 322 F.3d 386, 404-05 (6th Cir. 2003) (en
banc), the court explained:

             On the basis of the plain language of the provision, we find it
      difficult to believe that the Supreme Court in Zadvydas could interpret
      § 1231(a)(6) as containing a reasonableness limitation for aliens who are
      removable on grounds of deportability but not for aliens who are
      removable on grounds of inadmissibility. Section 1231(a)(6) itself does
      not draw any distinction between the categories of removable aliens; nor
      would there be any statutory reason to interpret “detained beyond the
      removal period” differently for aliens who are removable on grounds of
      inadmissibility and aliens who are removable on grounds of
      deportability.

The Ninth Circuit also concluded the Supreme Court’s construction of § 1231(a)(6)
in Zadvydas applied to an inadmissible, formerly excludable alien. Lin Guo Xi v.
INS, 298 F.3d 832, 834 (9th Cir. 2002). It explained that “[s]ection 1231(a)(6) . . .
does not draw any distinction between individuals who are removable on grounds of
inadmissibility and those removable on grounds of deportability.” Id. at 835. The
court noted that:

             In enacting § 1231(a)(6), Congress chose to treat all of the
      categories of aliens the same. The Supreme Court chose to interpret the
      statute to avoid a constitutional collision. We cannot choose to ignore

                                         -9-
      the language of the statute or the holding of the Supreme Court. Should
      Congress decide that differential treatment is in order, it can amend the
      statute, subject to constitutional considerations. But a decision to
      [rearrange] or rewrite the statute falls within the legislative, not the
      judicial, prerogative.

Id. at 839.

      Borrero’s status as a Mariel Cuban provides good reason to believe his removal
order will not be carried out in the reasonably foreseeable future. The INS has
offered no evidence to the contrary. The majority implies that but for Borrero’s
inadmissible status, he would not be subject to potentially permanent confinement.
By manufacturing a distinction between removable and inadmissible aliens–one
which the very statute at issue does not recognize–the majority diverges from
Supreme Court precedent, as well as the Sixth and Ninth Circuits. In my opinion, the
court must extend due process protection to Borrero to prevent his indefinite
detention.

       All aliens are protected by the Due Process Clauses of the Fifth and Fourteenth
Amendments: “[The provisions of the Fourteenth Amendment] are universal in their
application, to all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality; and the equal protection of the laws is
a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U.S. 356, 369
(1886). “Even one whose presence in this country is unlawful, involuntary, or
transitory is entitled to that constitutional protection [of the Due Process Clauses of
the Fifth and Fourteenth Amendments].” Rosales-Garcia, 322 F.3d at 409 (quoting
Mathews v. Diaz, 426 U.S. 67, 75 n.7 (1976)). I agree with the Sixth Circuit that the
Constitution does not permit unlimited government action against anyone, even
inadmissible aliens. Rosales-Garcia, 322 F.3d at 410. I therefore believe that the
indefinite detention of a paroled Mariel Cuban raises the same constitutional concerns
as the indefinite detention of aliens who have lawfully entered the United States

                                          -10-
through other avenues. No matter how unpalatable Borrero’s conduct may have been,
he has served his time for his criminal acts. It is therefore inconceivable that we
would condone the permanent imprisonment of someone simply because his birth
country will not welcome him back. “A life sentence in prison [is] no less
impermissible than the government’s torture or summary execution of these aliens.”
Id. at 413.

      It is worth noting that the case upon which the majority relies in distinguishing
between the rights extended to inadmissible and admitted aliens subject to removal,
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), is not dispositive
here. “[T]he Mezei Court explicitly grounded its decision in the special
circumstances of a national emergency and the determination by the Attorney General
that Mezei presented a threat to national security.” Rosales-Garcia, 322 F.3d at 413-
14. The Court cited The Passport Act of 1918 as support for the Attorney General’s
authority to exclude and indefinitely detain Mezei. Mezei, 345 U.S. at 210. Borrero
poses no such national security concern.

      Section 1231(a)(6) does not permit the INS to indefinitely detain Borrero.
However, under 8 U.S.C. § 1231(a)(3), Borrero is still subject to supervision under
regulations prescribed by the Attorney General. The court below properly explained
that:

      [A] writ of habeas corpus will not make Petitioner a truly free man by
      any means. The INS can still impose terms and conditions of release
      upon him and can still take him back into custody if he violates those
      terms and conditions. In addition, it appears that Petitioner is still
      subject to whatever conditions of supervised release may attend his state
      criminal convictions and sentence. And, of course, Petitioner is still
      subject to removal from the United States whenever the government can
      find some place to send him.



                                         -11-
Borrero v. Aljets, 178 F. Supp.2d 1034, 1044 (D. Minn. 2001) (citations omitted).
I agree with the district court’s proposed course of action because it is ethical,
constitutional, and soundly supported by federal statute, Supreme Court precedent,
and other circuits that have addressed the issue. I would therefore affirm the district
court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -12-
