                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 03-12231                 ELEVENTH CIRCUIT
                           Non-Argument Calendar                 May 6, 2005
                         ________________________            THOMAS K. KAHN
                                                                  CLERK
                    D.C. Docket No. 03-00004-CV-AAA-2

GUILLERMO PEREZ-AQUILLAR,

                                                         Petitioner-Appellant,

     versus

JOHN ASHCROFT,
D. L. HOBBS, Warden,

                                                  Defendants-Appellees.
                        __________________________

              Appeal from the United States District Court for the
                         Southern District of Georgia
                        _________________________

                                 (May 6, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before ANDERSON, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     This case is before the Court for consideration in light of Clark v. Martinez,
--- U.S. ----, 125 S. Ct. 716, --- L. Ed. 2d ---- (2005). Appellant Perez-Aquillar is a

Mariel Cuban who was paroled into the United States in 1980 but whose parole

was later revoked based upon his criminal convictions. We previously affirmed

the district court’s denial of this 28 U.S.C. § 2241 habeas corpus petition, in which

he argued that his continued detention violated his due process rights. See

Perez-Aquillar v. Ashcroft, Case No. 03-12231, 88 Fed. Appx. 382 (11th Cir. Nov.

13, 2003) (Table). In affirming the denial of habeas relief, we held that

inadmissible aliens, such as Perez-Aquillar, do not have “constitutional or

statutory rights to be free from indefinite detention. Thus, the district court did not

err in dismissing Perez-Aquillar’s § 2241 petition.” Id., slip op. at 3.

      In Zadvydas v. Davis, 533 U.S. 678, 689, 121 S. Ct. 2491, 150 L. Ed. 2d

653 (2001), the Supreme Court interpreted 8 U.S.C. § 1231(a)(6) to authorize the

continued detention of legal permanent aliens beyond the mandated 90-day

removal period, but only for as long as “reasonably necessary” to effectuate

removal from the country. The Court explained that “once removal is no longer

reasonably foreseeable, continued detention is no longer authorized.” Id. at 699.

“[T]he presumptive period during which the detention of an alien is reasonably

necessary to effectuate his removal is six months; after that, the alien is eligible for

conditional release if he can demonstrate that there is ‘no significant likelihood of

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removal in the reasonably foreseeable future.’” Clark, 125 S. Ct. at 722 (quoting

Zadvydas, 533 U.S. at 701).

      In Clark, the Court extended its interpretation of § 1231(a)(6) to

inadmissible aliens, such as Perez-Aquillar. The Court also vacated and remanded

for reconsideration our decision in Benitez v. Wallis, 337 F.3d 1289 (11th Cir.

2003), in which we had affirmed the denial of § 2241 habeas relief to an

inadmissable Cuban alien. On remand, we explained that under Clark, an

inadmissible alien can no longer be detained beyond statutory 90-day removal

period of 8 U.S.C. § 1231(a)(1), where there was no significant likelihood of

removal in the reasonable foreseeable future. Benitez v. Wallis, --- F.3d ----, 2005

WL 564136 (11th Cir. Mar. 11, 2005). As we stated:

      Clark effectively ends this case. There is no contention that
      conditions in Cuba have changed so that Benitez’s removal to Cuba is
      reasonably foreseeable. Therefore, until this Country’s relationship
      with Cuba changes so that removal is reasonably foreseeable or
      Congress amends 8 U.S.C. § 1231(a)(6) to distinguish between
      resident aliens and inadmissible aliens, Clark dictates that Benitez is
      entitled to be released and paroled into the country. See Clark, 125 S.
      Ct. at 727 (“Both Martinez and Benitez were detained well beyond
      six months after their removal orders became final. The Government
      having brought forward nothing to indicate that a substantial
      likelihood of removal subsists despite the passage of six months
      (indeed, it concedes that it is no longer even involved in repatriation
      negotiations with Cuba); and the District Court in each case having
      determined that removal to Cuba is not reasonably foreseeable; the
      petitions for habeas corpus should have been granted.”); id. at 721 n.

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      3 (noting that Benitez was subject to the conditions of release and 8
      U.S.C. § 1253 authorized his detention if he violated the conditions of
      release); see also Clark, 125 S. Ct. at 728 (O’Connor, J., concurring)
      (“[A]ny alien released as a result of today's holding remains subject to
      the conditions of supervised release . . . . And, if he fails to comply
      with the conditions of release, he will be subject to criminal
      penalties--including further detention.” (citations omitted)).

2005 WL 564136, at *2.

      In short, the instant case, which is factually indistinguishable and raises the

same legal issues, is controlled by our decision in Benitez. Accordingly, we

vacate our November 13, 2003 decision, affirming the denial of Perez-Aquillar’s

§ 2241 petition. We VACATE the district court’s denial of the § 2241 petition

and REMAND this case to the district court with instructions to grant the § 2241

petition and order Perez-Aquillar’s parole and release subject to “(1) the

restrictions set forth in his release, and (2) a change in the reasonable

foreseeability of his removal to Cuba so that detention becomes necessary to

effectuate removal.” Benitez, 2005 WL 564136, at *2.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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