                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 26 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    GUILLERMO BORGES-BRINDIS,

                Petitioner-Appellant,

    v.                                                  No. 03-1447
                                                 (D.C. No. 02-MK-990 (CBS))
    J. E. GUNJA, Warden; JOHN                             (D. Colo.)
    ASHCROFT, Attorney General,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner, Guillermo Borges-Brindis, proceeding pro se, appeals the

district court’s dismissal of his petition for writ of habeas corpus brought

pursuant to 28 U.S.C. § 2241.   He challenges the constitutionality of his detention

in immigration custody. We grant his request to proceed in forma pauperis,

and affirm. 1

       Mr. Borges-Brindis is a Cuban national who arrived in the United States in

1980 on the Mariel boat lift. Shortly after his arrival, he was released from

immigration detention on parole. Between 1980 and 1985, he was convicted of

the following crimes: unlawfully possessing a weapon, assault and battery,

selling a controlled substance, and first degree manslaughter. Upon his release

from prison in 1991, his immigration parole was revoked and he was taken into

custody. He was ordered deported in 1991, but has remained in immigration

custody since then because Cuba has refused to receive him. He asserts that his

indefinite detention violates his constitutional rights.

       We review de novo the district court’s decision to dismiss the petition for

writ of habeas corpus. Sierra v. INS, 258 F.3d 1213, 1218 (10th Cir. 2001). As a

Mariel Cuban, Mr. Borges-Brindis is “legally considered to be detained at the

border and hence as never having effected entry into this country.” Id. (quotation


1
      Because Mr. Borges-Brindis is a federal prisoner, a certificate of
appealability is not required to appeal the district court’s decision. Hunnicutt v.
Hawk , 229 F.3d 997, 998 (10th Cir. 2000) (per curiam).

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omitted). Therefore, our review is limited to deciding whether immigration

officials “have articulated some individualized facially legitimate and bona fide

reason for denying parole, and some factual basis for that decision in each

individual case.” Id. at 1219 (quotation omitted).

      We have carefully reviewed the record on appeal, as well as the briefs

submitted by the parties. Applying the standards set out above, we affirm the

dismissal of the habeas petition for substantially the same reasons stated in the

magistrate judge’s June 17, 2003 recommendation and the district court’s final

order dated August 27, 2003.

      Mr. Borges-Brindis’ motion to proceed in forma pauperis is granted. The

judgment of the district court is AFFIRMED. The mandate shall issue forthwith.


                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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