REPORT Nº 51/01
FERRER-MAZORRA ET AL.
The petition in the present case was lodged with the Inter-American
Commission on Human Rights (hereinafter the “Commission”) against the
United States of America (hereinafter the "State" or the
"United States") on April 10, 1987 by six organizations: the
Washington, D.C. law firm of Covington and Burlington; the Atlanta Legal
Aid Society; Southern Minnesota Regional Legal Services; the International
Human Rights Law Group; the American Civil Liberties Association; and the
Lawyers Committee for Human Rights (hereinafter the “petitioners’
letter dated July 23, 1999, the International Human Rights Law Group
informed the Commission that they had decided to discontinue their
participation in this case.
The petition was filed on behalf of nationals of the Republic of
Cuba who were part of the Mariel “Freedom Flotilla” to the United
States in 1980 (hereinafter the "Mariel Cubans"). At the time of
the filing of the petition in April 1987, approximately 3,000 Cubans were
said to have been detained in the United States due to their irregular
entry into the country. In their original petition, the petitioners'
representatives purported to lodge the petition on behalf of approximately
335 of these Cubans, named as Rafael Ferrer-Mazorra and others, who were
at that time detained at 10 federal, state or local detention centers
across the United States (hereinafter the “petitioners”).
In their initial petition and subsequent observations, the
petitioners alleged violations of Articles I, II, XVII, XVIII, XXV and
XXVI of the American Declaration of the Rights and Duties of Man
(hereinafter the "American Declaration" or the
"Declaration"), in connection with the length of time for which
the petitioners had been detained in the United States, as well as the
alleged absence of proper mechanisms to review the legality of the
In the present Report, the Commission decided to admit the case in
relation to Articles I, II, XVII, XVIII, XXV and XXVI of the Declaration.
In addition, after considering the merits of the case, the
Commission found the State responsible for violations of Articles I, II,
XVII, XVIII and XXV of the American Declaration, in connection with the
deprivation of the petitioners’ liberty.
PROCEEDINGS BEFORE THE COMMISSION
By note dated April 15, 1987, the Commission transmitted the
pertinent parts of the petitioners’ petition to the State, and requested
that the State deliver information that it considered pertinent to the
complaint within 90 days as prescribed by the Commission’s Regulations.
By communication dated July 21, 1987, the Commission subsequently
granted the State an extension of time until October 12, 1987 within which
to respond to the petitioners’ petition.
By communication dated October 9, 1987, the State responded to the
petitioners’ petition. By
note dated October 14, 1987, the Commission transmitted the pertinent
parts of the State's response to the petitioners, with a response
requested within 45 days.
By communication dated November 24, 1987, the Commission made a
request of the State for additional information concerning an apparent
agreement between the United States and Cuba involving the deportation of
approximately 2,600 Cubans from the United States.
In a letter dated December 1, 1987, the petitioners requested an
extension of time to January 6, 1988 within which to respond to the
State's October 9, 1987 observations, which the Commission granted by
communication dated December 1, 1987. Subsequently, in a letter dated
January 4, 1988 the petitioners requested a further extension of time to
March 6, 1988, which the Commission granted by communication dated January
The State delivered to the Commission a Supplementary Submission in
a note dated January 19, 1988, which provided further obscurations
respecting the petitioners’ petition and responded to the Commission's
November 24, 1987 letter. By
letter dated January 20, 1988, the Commission transmitted the pertinent
parts of the State's Supplementary Submission to the petitioners, with a
response requested within 45 days.
In a communication dated March 7, 1988, the petitioners delivered a
response to the State's observations on their petition.
The Commission transmitted the pertinent parts of the petitioners'
response to the State in a communication dated March 8, 1988, with a
response requested within 60 days.
By note dated May 19, 1988, the petitioners delivered to the
Commission Spanish language copies of their original petition and their
reply brief of March 7, 1988.
The State, by letter dated June 10, 1988, requested an extension of
time within which to respond to the petitioners' March 7, 1988
observations, which the Commission granted in a communication dated June
By note dated July 2, 1988, the State transmitted to the Commission
a Second Supplemental Submission in the case.
The Commission communicated the pertinent parts of the State's
Second Supplemental Submission to the petitioners by communication dated
August 16, 1988, with a response requested within 45 days.
In a letter dated August 31, 1988, one of the petitioners’
representatives, the law firm of Covington and Burlington, indicated that
it had just received the State's Second Supplementary Submission and
argued, inter alia, that the
State's submission was not made in a timely manner. Subsequently, by
letter dated September 29, 1988, Covington and Burlington, on behalf of
the petitioners, provided further written observations on the State’s
Second Supplemental Submission. These
observations essentially replicated the petitioners' previous submissions
and were added to the Commission's file.
By communication dated January 10, 1989, the petitioners delivered
additional observations to the Commission in this case, and the
Commission, by note dated February 6, 1989, transmitted the pertinent
parts of the petitioners' observations to the State, with a response
requested within 60 days.
Following a March 5, 1999 hearing convened by the Commission in the
case, the Commission, by communications dated March 18, 1999 to the State
and the petitioners, confirmed that upon completion of the March 5
hearing, the Commission had requested that the parties submit to it any
additional information that they deemed pertinent to the case within 15
days of the hearing, and that any such information would then be forwarded
to the opposite party within 30 days of receipt.
In a note dated March 22, 1999, the State delivered to the
Commission a post-hearing brief, in accordance with the Commission’s
request at its March 5, 1999 hearing.
The Commission subsequently transmitted the pertinent parts of the
State’s post-hearing brief to the petitioners by letter dated April 8,
1999, with a response requested within 30 days.
By communication dated April 2, 1999, the petitioners delivered to
the Commission a post-hearing brief, in accordance with the Commission’s
request of its March 5, 1999 hearing.
The Commission subsequently transmitted the pertinent parts of the
petitioners’ post-hearing brief to the State, with a response requested
within 30 days.
On May 17, 1999, the petitioners requested a further 20 days within
which to respond to the State’s post-hearing brief, which the Commission
granted. Subsequently, by communication dated June 8, 1999, the
petitioners delivered a response to the State’s March 22, 1999
post-hearing brief. By note
dated July 28, 1999, the Commission transmitted the pertinent parts of the
petitioners’ June 8, 1999 observations to the State for informational
Among the supplementary documents provided by the petitioners at
various stages of the proceedings in this matter were the following:
a Report by the U.S. House of Representatives, Committee on the
Judiciary, Subcommittee on Court, Liberties and the Administration of
Justice, on the Atlanta Federal Penitentiary, 99th Congress, 2nd
Session (April 1986);
a copy of a 29 May 1986 communication under ECOSOC Resolutions 728F
(XXVIII) and 1503 (XLVIII) relating to the Mariel Cubans;
copies of various legal decisions by U.S. courts, disposing of
petitions for writs of habeas corpus brought by or on behalf of Mariel
Cubans in relation to their detentions. These decisions included in
particular: Garcia-Mir v. Smith 766 F.2d 1478 (11th Cir., 1985),
cert. Denied 106 S. Ct. 1213 (1986); In
re Mariel Cuban Habeas Corpus petitions, 822 F. Supp. 192 (7 May 1993)
(U.S. Dist. Ct. - Penn); and Barerra-Echavarria
v. Rison, 44 F.3d (9th Cir. En banc, 1985);
Report of the Minnesota Lawyers International Human Rights
Committee on "The Freedom Flotilla Six Years Later: From Mariel to
Minnesota", dated November 1986;
an analysis of the Cuban Review Plan prepared by the Coalition to
Support Cuban Detainees, dated 29 June 1987;
f) Report of the Minnesota Lawyers
International Human Rights Committee on the First Year of Operation of the
Oakdale Detention Center, dated July 1987;
I.N.S. Ruling 59 FR 13868-01 of 24 March 1994 regarding Mariel
Cuban Parole Determinations, clarifying and expanding the discretionary
authority of the I.N.S. under the Cuban Review Plan to withdraw parole
approval for excludable Mariel Cubans.
Among the supplementary documents provided by the State at various
stages of the proceedings in this matter were the following:
U.S. Code of Federal Regulations, Title 8 (8 C.F.R.), sections
Attorney General's Status Review Plan and Procedures, dated 28
Cuban Review Plan, adopted May 1987;
I.N.S. Ruling 52 FR 48799 dated 28 December 1987, establishing a
separate immigration parole review process for Mariel Cubans
Copy of a 6 June 1988 memorandum attaching "Special
Instructions Regarding Information Availability to Representatives of
Mariel Cubans in the Parole and Repatriation Programs";
State's "Information Availability Policy", provided with
the State's Second Supplementary Submissions of July 2, 1988;
Sample "Letter of Intent to Deny Parole" to Mariel Cuban,
in English and in Spanish;
Sample I.N.S. Parole Denial in English and in Spanish issued in
respect of a 13 November 1987 panel review hearing, providing a summary of
facts and reasons for denial;
lists of Mariel Cuban detainees held at certain federal facilities
that were visited by the Commission during its on-site visits, described
in Part II.C of this Report;
A Report to the U.S. Attorney General on the Disturbances at the
Federal Detention Center, Oakdale, Louisiana and the U.S. Penitentiary,
Atlanta, Georgia, U.S. Department of Justice, Federal Bureau of Prisons (1
U.S. Department of Justice, Federal Bureau of Prisons, Report on
the Federal Detention of Mariel Cubans, dated January 1995.
Hearings before the Commission
By note dated March 3, 1988, the Commission informed the State that
the petitioners had requested a hearing before the Commission in the
present case, and that the Commission decided to convene a hearing in the
matter on March 22, 1988 at the Commission's Headquarters in Washington,
The State, in a communication dated March 8, 1988, requested a
postponement of the hearing. By
note dated March 15, 1988, the Commission informed the State that the
Commission had considered the State's request and decided to proceed with
the hearing, which the Commission indicated would be of a strictly
informative nature. The Commission subsequently held a hearing in the case on
March 22, 1988.
By letter dated November 25, 1998, the petitioners requested a
further hearing before the Commission in the matter.
By letters dated February 2, 1999 to the petitioners and to the
State, the Commission informed the parties that a further hearing on the
admissibility and merits of the matter had been scheduled for March 5,
1999, during the Commission’s 102nd Period of Sessions.
In a note dated February 25, 1999, the State objected to the
convening of a hearing in the case, on the basis, inter
alia, that the notice of the hearing was practically insufficient,
that due process was not properly respected in scheduling the hearing, and
that there appeared to be no reason for a further hearing.
The Commission, in a responding letter dated March 1, 1999,
informed the State that the Commission had considered the State’s
representations, and that the hearing would nevertheless proceed as
By communication dated March 3, 1999, the State reiterated its
objection to the convening of the hearing in the case, and repeated its
request that the Commission cancel the hearing and rule the petition
inadmissible. By letter dated
March 4, 1999, the Commission informed the State that it had reaffirmed
its decision to conduct a hearing into the matter as previously announced.
On March 5, 1999, a hearing into the petitioners’ complaint was
convened, during which both parties made representations respecting the
current status of the Mariel Cubans and the issues in the petitioners'
complaint. At the conclusion
of the hearing, the Commission requested that the parties submit any
additional information that they deemed pertinent in the case to the
Commission within 15 days of the hearing, and indicated that any such
information would be forwarded to the opposite party within 30 days of
receipt by the Commission.
By letter dated July 9, 1994 to the Commission, the petitioners'
representatives requested that the Commission conduct on-site visits at
centers in which Mariel Cubans were being detained, and that the
Commission ask for information from the State pertinent to this request.
At the invitation of the State, the Commission subsequently
undertook on-site visits to four locations at which Mariel Cubans were
held: Lompoc, California; Leavenworth, Kansas; Allenwood, Pennsylvania;
and various facilities in Louisiana.
From May 3 to May 5, 1995, the Commission conducted an on-site
visit to the U.S. Penitentiary at Lompoc, California.
The Commission’s delegation was comprised of Commissioner John
Donaldson, Assistant Executive Secretary David Padilla, Staff Attorney and
Human Rights Specialist Relinda Eddie, and Interpreter Janet Pahlmeyer-Davies.
During the site visit to Lompoc, the Commission benefited from the
cooperation of numerous officials, including: Jim Zangs, Administrator of
the Detention and Naturalization Service Branch of the U.S. Department of
Justice, Bureau of Prisons; John Castro of the Immigration and
Naturalization Service, Cuban Review Panel; Patrick Keohane, Warden and
Joe Henderson, Acting Executive Assistant to the Warden, U.S. Penitentiary
at Lompoc; Juan Muñoz, INS Liaison Officer with the Bureau of Prisons at
Lompoc; Michael Purdy, Warden and John Nash, Associate Warden of Programs
at the Federal Correctional Institute at Lompoc; and other staff at the
U.S. Penitentiary and the Federal Correctional Institute at Lompoc.
On May 30, 1995, the Commission conducted an on-site visit to the
U.S. Penitentiary at Leavenworth, Kansas.
The Commission's delegation was comprised of Commission Members
John Donaldson and Patrick Robinson, Staff Attorneys and Human Rights
Specialists Relinda Eddie and Milton Castillo, and Interpreters Marjorie
Buergenthal and Ronnie Rodríguez.
During its visit to Leavenworth, the Commission benefited from the
cooperation of several officials, including: Jim Zangs, Administrator of
the Detention and Immigration Branch of the U.S. Department of Justice,
Bureau of Prisons; John Castro of the Immigration and Naturalization
Service, Cuban Review Panel; Willie Scott, outgoing Warden of the U.S.
Penitentiary, Leavenworth; Paige True, in-coming Warden of the U.S.
Penitentiary, Leavenworth; and other staff members at the institution.
On April 26, 1996, the Commission conducted an on-site visit to the
U.S. Penitentiary in Allenwood, Pennsylvania. The Commission's delegation
was comprised of Commission Members John Donaldson, Alvaro Tirado Mejía
and Jean Joseph Exumé, Assistant Executive Secretary David Padilla, Staff
Attorney and Human Rights Specialist Relinda Eddie, Commission Secretariat
staff members Henry MacDonald and Tania Hernández, and interpreters
Michel Valeur and Miriam Deutsch.
During its visit to Allenwood, the Commission benefited from the
cooperation of several officials, including: Jim Zangs, Administrator of
the Detention and Immigration Branch of the U.S. Department of Justice,
Bureau of Prisons; Amy Dale, Assistant Administrator of the Federal Bureau
of Prisons; John Castro of the Immigration and Naturalization Service,
Cuban Review Panel; J.T. Holland, Warden of the U.S. Federal Penitentiary
(High Security); R.L. Hamm, Executive Assistant; Margaret Harding, Warden
of the Federal Correctional Complex (Medium Security); Laurie M. Rule,
Executive Assistant; Michael V. Pugh, Warden of the Federal Correctional
Complex (Low Security); Ken Arnold, Executive Assistant; and staff members
at these institutions.
From December 9 to December 12, 1996, the Commission conducted an
on-site visit to various detention facilities in the State of Louisiana,
including the prisons of Avoyelles Parish in the City of Marksville and
Orleans Parish in New Orleans. This visit was also conducted in
conjunction with the Commission's Working Group on Prisons and Prison
Conditions in the Americas. The
Commission's delegation was comprised of Commission Members John
Donaldson, Alvaro Tirado Mejía and Jean Joseph Exumé, Assistant
Executive Secretary David Padilla, Staff Attorneys and Human Rights
Specialists Relinda Eddie and Bertha Santoscoy, and Commission Secretariat
staff member Tania Hernández.
The purpose of the Commission’s various on-site visits, as
particularized above, was to assess the general conditions of detention of
the Mariel Cubans detained at these various institutions, and the
Commission received information in this regard from State officials and
from inmates with whom it spoke.
The principal issues discussed by the Commission during its visits
included the medical facilities and services available to Mariel Cubans,
housing accommodation for Mariel Cubans; educational, recreational and
vocational programs available to Mariel Cubans, methods of discipline, and
visiting difficulties alleged to have been experienced by distant
relatives of the inmates. The
Commission also inquired into the arrangements for annual review of
detention for post-sentence detainees and the availability of legal
counsel for inmates.
In the course of its on-site visits, the Commission observed in
particular that Mariel Cubans are, as a consequence of their status as
administrative detainees, at a significant disadvantage in several
respects compared to detainees who are serving criminal sentences. As
administrative detainees, the Mariel Cubans are not, for example, entitled
to the benefits of programs of reform and rehabilitation, such as
continuing education and work experience, that characterize the criminal
incarceration process. As a consequence, many Mariel Cubans expressed
frustration with having few constructive endeavors to fill their time,
which was amplified by the uncertainty over the length of their periods of
Also in connection with the conditions of detention of the Mariel
Cubans in the United States, information provided by the parties, as well
as reports in the public media, indicate that several major disturbances
have occurred at various institutions in which Mariel Cubans have been
incarcerated since their arrival in the United States. In particular,
between November 21 and December 4, 1987, two major disturbances occurred
at the Oakdale, Louisiana and Atlanta, Georgia facilities of the Federal
Bureau of Prisons. In these disturbances, rioting inmates, largely Mariel
Cubans, took substantial control of the facilities, held hostages, and
destroyed property. Other disturbances included an incident in May 1986 in
which 125 Mariel Cubans rioted at the Krome Detention center in Florida,
which is said to have been the fourth major disturbance in one year at
that facility, and an incident in August 1991 at FCI Talladega, in which
hostages were held for 10 days.
In addition to these disturbances, there have been several
"hunger strikes" convened by Mariel Cubans at various
facilities, including a hunger strike in December 1999 and January 2000 by
Mariel Cubans held at the detention facility at New Roads, Louisiana.
POSITIONS OF THE PARTIES
Position of the petitioners
The petitioners have contended since lodging their petition in
April 1987 that the present case is admissible before the Commission. In
this regard, they have claimed that the Commission has jurisdiction to
consider alleged violations of the American Declaration as against the
United States, by reason of its status as a Member State of the
Organization of American States.
In addition, the petitioners argue that the facts set out in their
petition, if true, tend to disclose violations of, inter
alia, Articles I, XVII, XXV and XXVI of the Declaration in relation to
the detention of the Mariel Cubans by the State. In particular, they claim
that the Mariel Cubans have effectively been subjected to indeterminate
detention without proper mechanisms to ascertain the legality of their
The petitioners have also contended that they have exhausted all
domestic remedies in relation to their complaints before the Commission.
The petitioners claim in this regard that they have pursued
challenges to their detentions in the U.S. District Court, the U.S. Court
and, finally, a petition to the U.S. Supreme Court for a writ of
certiorari, which was ultimately denied by that Court in an order dated
October 14, 1986.
Also in this connection, the petitioners argue that the petition
was filed in compliance with the limitation period prescribed under
Article 38(1) of the Commission’s Regulations, namely within 6 months
from the October 14, 1986 rejection of their petition to the U.S. Supreme
Finally, with respect to duplicity, the petitioners claim in their
original petition that the matters raised therein were not at that time
barred from consideration by the Commission under Article 39 of the
Commission's Regulations as pending before another international forum for
settlement. The petitioners recognized in this respect that a
communication had been filed under U.N. ECOSOC Resolution 1502 in May 1986
in relation to the detention of the Mariel Cubans. They contended,
however, that this did not preclude consideration of the petitioners’
claim by the Commission, for three reasons: the U.N. procedure did not
examine the specific facts of the petition submitted to the Commission;
the U.N. procedure would not lead to an effective settlement of the
violations denounced; and the U.N. communication was filed by human rights
and religious organizations other than the petitioners' representatives
and on behalf of a broader population of the Mariel Cubans than the
petition before the Commission.
In their original petition, the petitioners provided background
information concerning the manner in which they and other Mariel Cubans
arrived in the United States. According to the petitioners, the Mariel
Cuban detainees belong to a group of approximately 125,000 Cubans who fled
to the United States in 1980 from the port of Mariel in Cuba. The
situation developed after an incident in April 1980 when a group of Cubans
sought refuge in the Peruvian Embassy in Havana, Cuba. Cuban leader Fidel
Castro allowed the emigration to the United States of some of the members
of this group, and then announced on April 20, 1980 that any Cubans
wishing to leave the country could depart through the port of Mariel.
According to the petitioners, U.S. President Jimmy Carter stated in a
speech that these Cubans would be greeted in the United States “with
open hearts and open arms”. The
result was a large influx of Cubans into the United States who were
seeking to escape from Cuba.
The petitioners further claim that prior to the arrival of the
Mariel Cubans, aliens seeking admission into the United States had been
liberally granted parole.
Mariel Cubans, on the other hand, were detained upon their arrival in the
U.S., and the sheer number of Mariel Cubans led to procedural difficulties
with the U.S. Immigration and Naturalization Service (hereinafter the
"INS"), the federal authority principally responsible for
immigration and naturalization matters. Subsequently, some of the Mariel
Cubans were released from detention on parole, although they were still
considered to be excludable aliens subject to INS proceedings as to
whether they should be granted asylum or otherwise permanently admitted
into the United States.
Certain Mariel Cubans, however, were never released from custody,
but rather were refused parole based upon their mental condition or
because they were known or suspected of having Cuban criminal records. At
the time of filing their original petition in April 1987, the petitioners
estimated the total number of Mariel Cubans continuously detained since
their arrival in the United States to be approximately 300.
These Cubans had been placed into various federal prison facilities
in the United States, and eventually most incarcerated in the U.S. federal
penitentiary in Atlanta, Georgia.
In addition, the petitioners claim that many Mariel Cubans who were
initially released on parole were returned to detention, in most cases for
parole violations, such as contravening the rules at halfway houses, as
well as for offenses such as driving under the influence of alcohol.
The petitioners also indicate that some Mariel Cubans were detained
simply for having been charged with a crime, even though they had not been
convicted. Moreover, the petitioners allege that parole was revoked for
some Mariel Cubans because they pleaded guilty to lesser drug offenses
based on assurances given by lawyers, often public defenders, that this
would result in probationary sentences, but apparently without realizing
that a guilty plea could lead to further detention by the INS.
As a consequence of this continued or renewed detention of the
Mariel Cubans, the petitioners claim that the Mariel Cubans face
indefinite detention in the United States, without adequate evaluation in
each individual case of the necessity for their continued imprisonment.
This class of detainees includes those Mariel Cubans who were never
released based upon their known or suspected criminal records in Cuba or
their mental health, or who were initially released on parole but were
subsequently detained for both serious and minor parole violations.
Further in this regard, the petitioners claim that at the time of
filing their petition, the only mechanism for reviewing the Mariel
Cubans’ detentions was the INS’s “Status Review Plan”. The
petitioners claim that this mechanism was “sketchy and inadequate”
because, for example, it relied primarily upon a review of each Cuban’s
file. In addition, according to the petitioners, the Status Review Plan
was discontinued in 1985, following a tentative agreement between the
United States and Cuba whereby Cuba agreed to accept the return of 2,746
Mariel Cubans, which agreement was subsequently broken.
The petitioners also claim that no procedures for review of
individual cases had been put into place since 1985 by the legislative or
executive branches or granted by the Courts in the United States, as a
consequence of which the State had failed to review in any meaningful way
the status of the Mariel Cubans. According
to the petitioners, the State’s policy provided that Cuban detainees
could be released only to halfway houses preliminary to their full parole
in to the community, despite the fact that sufficient positions were not
available in halfway houses.
Consequently, the petitioners claim that at best the State conducted only
sporadic and inconsistent reviews of individual cases of incarcerated
Mariel Cubans, and any criteria applied by the INS in releasing some
detainees and not others were not clear.
With respect to the applicable law in the United States, the
petitioners indicate that the parole of excludable aliens is entirely in
the discretion of the INS, as provided for under section 1182(d)(5)(A) of
8 U.S.C., that “[t]he Attorney General may… in his discretion parole
into the United States temporarily under such conditions as he may
prescribe for emergent reasons or for reasons deemed strictly in the
public interest…” Hence, the petitioners claimed at the time of filing
their petition that the law provided little hope that their cases would
ever be meaningfully reviewed by the INS or that the Cuban detainees would
ever be eligible for release.
In addition, the petitioners claim that the U.S. courts have
considered Cuban detainees, as excludable aliens, to have never entered
U.S. territory and therefore that they do not enjoy the same due process
guarantees available to others in the U.S. According to the petitioners,
the Courts have also held that international law has been displaced by
controlling acts of the executive and judicial branches and therefore may
not be relied upon by the Mariel Cubans in challenging their detentions.
The petitioners contend further that disparities exist in the
circumstances of the Cubans being detained, and therefore that individual
hearings in each case are necessary in order to properly determine whether
they should be detained. In particular, the petitioners indicate that at
the time of filing their petition, there was evidence that many of the
Mariel Cubans had strong claims for release on parole and yet had not been
given opportunities to present their cases.
They cite as an example the case of petitioner Pedro
Prior-Rodriguez, who was attacked and beaten by three men while walking to
his halfway house, resulting in the loss of one of his eyes.
According to the petitioners, Mr. Prior-Rodriguez was sent to a
hospital for treatment for his injuries and soon thereafter his parole was
revoked because his “medical condition required a treatment not
available.” Further, the petitioners indicate that in November 1983, Mr.
Prior-Rodriguez was approved for release under the Status Review Plan but
was nevertheless kept in detention and had remained in custody as of the
date of the petition.
In respect of detention conditions, the petitioners claim that the
tensions in federal facilities were high, due to the “futile”
situation in which Mariel Cubans considered themselves as well as
overcrowding and outdated facilities in the federal penitentiaries. Such
conditions led to a riot in the U.S. penitentiary in Atlanta in 1984, and
according to a 1986 Congressional Report on the incident, the living
conditions of Mariel Cubans at the Atlanta penitentiary were
“intolerable considering even the most minimal correctional
Based upon their description of the Mariel Cubans’ detention, the
petitioners claim that the State is responsible for violations of Articles
I, XVII, XXV and XXVI of the American Declaration. In particular, the
petitioners argue that these articles, and international law more
generally, recognizes the right of an individual not be deprived of his or
her liberty without due process to determine the reasonableness of the
The petitioners also rely upon past reports of the Inter-American
Commission, in which the Commission has criticized deprivations of liberty
for prolonged or indefinite periods of time without due process or formal
charges, including detentions that are carried out under executive
authority and are not subject to judicial review.
The petitioners emphasize in this connection that none of them was
serving a criminal sentence at the time the petition was filed. The petitioners indicate further that, while they recognize
that detention may be proper in some cases, for example if the person is a
danger to society, there must be a fair hearing in each such case to
determine whether the detainee is in fact dangerous.
According to the petitioners, the State has made “sweeping”
determinations of dangerousness “unilaterally and arbitrarily” without
due process, and therefore claim that the State’s determinations in this
regard are invalid.
The petitioners also contend that the State cannot rely upon the
uncertain immigration status of detainees to justify their continue
detention. To the contrary,
they argue that international authorities which speak to the detention of
aliens seeking to enter the territory of a state make such detention
provisional and temporary in nature, and in support of this
proposition cite, inter
alia, Article 5(1)(g) of the European
In the present case, the petitioners argue that a seven-year
detention with no foreseeable termination is no longer proportionate to
the limited government interests that justify it and constitutes a failure
to respect the rights to liberty of the detainees. They also claim that
such detention cannot be justified under international law pursuant to the
authority of states to control illegal immigration, but rather that
hearings are necessary to resolve each detainee's case.
In this regard, the petitioners note that Article XVII of the
Declaration guarantees every individual the right to be recognized
everywhere as a person having rights and obligations and to enjoy basic
civil rights, and that the preamble to the Declaration provides that the
essential rights of man are derived from the attributes of his personality
and not the fact that he is a national of a certain state.
Accordingly, given that all of the Mariel Cubans are in fact in the
United States, the petitioners argue that “irrespective of the failure
of domestic United States law to afford the Cuban detainees fundamental
protections and irrespective of the uncertain immigration status of the
Cuban detainees, the United States Government is obligated by the American
Declaration to afford the Cuban detainees their rights to due process.”
According to the petitioners, proper hearings would involve fair
and reliable procedures that afford an individual detainee the opportunity
to be heard before an impartial tribunal, to have such assistance of
counsel as is necessary and appropriate, to present evidence on his or her
own behalf, and to challenge adverse evidence. This would also require the
cases of those Cuban detainees who continue to be detained after an
initial adverse decision to be re-examined on a regular basis, so as to
ensure that no person is held beyond the time that he or she presents a
threat to the community.
The petitioners therefore request that the Commission find
violations of their rights under the Declaration, recommend that the State
grant fair hearings to the Mariel Cubans to determine each detainee's
case, or alternatively release them on parole, and conduct a full on-site
investigation of the Mariel Cubans’ detention by the United States.
In their subsequent observations of August 31, 1988, September 29,
1988, April 2, 1999 and June 8, 1999, the petitioners provided additional
information and arguments in support of their petition, and responded to
the various observations made on behalf of the State.
In their August 31, 1988 and September 29, 1988 observations, the
petitioners suggest that the State's position on the interpretation of the
Declaration would essentially mean that there are no limits whatsoever on
the U.S. Government's actions, such that it would justify uncontrollable
discretion over excludable aliens. The
petitioners claim conversely that the American Declaration should be
interpreted to prohibit indefinite imprisonment without fair processes to
determine whether such imprisonment is necessary.
The petitioners also dispute the State's claim that entitlement to
judicial review through habeas corpus is available to the Mariel Cubans.
Rather, the petitioners claim that U.S. courts have withheld from the
Mariel Cubans any right whatsoever under U.S. law to judicial review of
their individual detention. The
petitioners also contend that the existence of disputes between them and
the State over the particulars of their cases illustrates the need for
such disputes to be resolved through fair and equitable hearings with a
full right to present evidence.
In their April 2, 1999 and June 8, 1999 observations, the
petitioners provided further up-dated information respecting the status of
the detained Mariel Cubans, as well as additional responses to the
More particularly, in their April 2, 1999 written submission, the
petitioners note that for 11 years following the March 1988 hearing before
the Commission, diplomatic efforts to return the Mariel Cubans to Cuba had
apparently failed, legislative efforts to prevent continued administrative
detention of Cubans had been abandoned, and the State had not unilaterally
authorized the release of the Mariel Cubans.
The petitioners also note that at that time, the State had
acknowledged that approximately 2,000 Mariel Cubans were incarcerated
under INS’s discretionary authority, and that some of these detainees
had been held since their initial arrival in the U.S. 19 years prior.
With respect to the admissibility of their petition, the
petitioners reiterated that the Mariel Cubans have exhausted all of their
domestic remedies, and submitted that under the Commission’s
Regulations, the crucial determination is not whether each detainee has
the right to apply for habeas corpus relief, but rather whether potential
remedies still exist under U.S. law. In this connection, the petitioners
claim that potential remedies do not exist in the United States, but
rather that in the circumstances of the Mariel Cubans a petition for a
writ of habeas corpus is an empty gesture. In particular, the petitioners
claimed that since 1981, all petitions by detained Mariel Cubans seeking
relief by way of writ of habeas corpus had been rejected, with the
exception of one in 1981. According to the petitioners, these petitions
have failed because U.S. domestic law clearly gives the INS discretionary
authority to administratively detain Mariel Cubans, and the courts have
rejected the claims of the detainees under U.S. constitution, statutory
law and international law.
In particular, according to the petitioners, the U.S. courts have
held that detainees are not entitled to habeas relief from administrative
detention based upon violation of the due process clause of the Fifth
amendment to the U.S. Constitution, or the right to a fair trial under the
Sixth amendment, since detention is administrative rather than criminal in
nature. According to the
petitioners, the courts had also held that there is no limit to the length
of time for which an individual can be detained under U.S. law, and that
regardless of whether the indefinite detention of Mariel Cubans violates
international law, this law is not recognized because a petition for
habeas corpus applies only U.S. law.
Consequently, given the INS’s discretion to indefinitely detain
aliens like the Mariel Cubans, the petitioners claim that the only
judicable question that a court will consider in a petition for habeas
corpus is whether the INS followed its procedures applicable to the parole
of the Mariel Cubans, which since 1987 were governed by the Cuban Review
Plan. According to the
petitioners, the test applied by the domestic courts only requires that
the responsible person acting under the authority of the Attorney General
gives a “facially legitimate and bona fide reason for his [or her]
Based upon these submissions, the petitioners claim that the right
to submit a petition for habeas corpus is “nothing more than a
mirage”, and accordingly that all remedies in the U.S. have been invoked
and exhausted in relation to their complaint.
Further, the petitioners argue that their petition is not premature
in light of the fact that their cases may be reviewed under the Cuban
Review Plan, because the procedures under that Plan fall below the minimum
requirements of due process under the Declaration and under international
law. Consequently, they claim that there is a ripe issue as to whether the
Mariel Cubans’ rights to due process have been violated.
Finally, the petitioners submit in relation to exhaustion of
domestic remedies that in any event, the burden of proof should lie on the
State to prove that meaningful remedies continue to exist for detained
Mariel Cubans, and claim that it would be “futile” for the State to
attempt to discharge this onus.
On the merits of their claim, the petitioners reiterate their
position that the indefinite detention of the Mariel Cubans violates the
Declaration. In this regard,
the petitioners claim that they accept that the U.S. is a sovereign nation
possessing the right to protect its borders and determine those people who
may enter its territory, and also accept that they and other Mariel Cubans
are classified as “excludable aliens”.
They argue, however, that the detention of the Mariel Cubans
constitutes a violation of the Declaration, for two principal reasons.
First, they claim that the Cubans have been subjected to administrative
detention, which in turn cannot be more than a very short time and
certainly not indefinite.
They therefore complain that they have been the subject of indefinite
detention under poor conditions in violation of the Declaration.
Second, the petitioners claim that the Cuban Review Plan, as the
only procedure to which the detainees are, according to U.S. courts,
entitled, violates the detainees’ rights to due process, for several
reasons. First, the INS may, in its discretion, grant parole to a detained
Mariel Cuban “for emergent reasons or for reasons deemed strictly in the
public interest”, which in turn creates a presumption of detention and
places the onus on the detainee to provide that his release is in the
public interest. Second, the
panel of INS employees that reviews detainee’s cases are authorized to
make “findings” that are “no more than subjective speculation
regarding the future behavior of a detained Mariel Cuban", cannot be
proved, require no specific justification for the conclusions reached, and
are “essentially incapable of judicial review”.
Third, if a detainee is denied parole, he or she is not entitled to
a right of impartial review, but rather is reviewed by the same panel at a
time set at the discretion of the Director of the Plan, and is given an
inadequate opportunity to attend and make submissions to the panel. For
example, the detainee has no right to paid assistance of an attorney and
no right to reschedule the hearing.
Also in this connection, the petitioners emphasize the
discretionary nature of a detainee’s release, as illustrated by a 1994
amendment to the Cuban Review Plan that permitted the Associate Commission
for Enforcement at the INS to withdraw approval for parole based upon the
conduct of the detainee or any other “circumstance” that indicates
that parole would no longer be appropriate.
The withdrawal can be effected without a hearing and without
notice, and does not require a written decision.
The petitioners further submit that apart from habeas corpus, the
only available review of a decision not to permit parole is a decision by
a panel of employees of the Department of Justice.
A detainee is only permitted one such appeal upon 30 days notice.
The detainee is permitted to hire an attorney at his own cost to prepare a
written statement of “any factors that he deems relevant to the parole
consideration”, but is not informed in advance of what factors the panel
may deem relevant or the basis on which the INS panel denied a previous
Finally, the petitioners argue that the detention of the Mariel
Cubans is indefinite and that the U.S. courts have recognized this
Correspondingly, the petitioners contend that the rights under the
American Declaration “do not allow indefinite detention regardless of
the alien status of an individual”, and that the United States may not
“shift the blame” to the failure of the Republic of Cuba to accept the
Mariel Cubans into their territory. In
this regard, the petitioners note that the U.S., and not Cuba, caused the
Mariel Cubans to be detained in prisons over the past 18 years.
In their most recent written observations of June 8, 1999, the
petitioners principally responded to the submissions contained in the
State’s March 22, 1999 post-hearing brief. In so doing, the petitioners
emphasize that the issue in the case is whether the actions of the State
violate the rights guaranteed by the American Declaration, not U.S.
domestic law, and suggest that the State has failed to adequately address
In this connection, the petitioners refute what they characterize
as the State's position, namely that the Declaration presumes that
detention is acceptable unless one can prove his right to be set free.
They also note the State's acknowledgement that the liberty of the
Mariel Cubans is not being deprived for any violation of law, but because
the Mariel Cubans cannot "demonstrate that their release will not
endanger other persons or property."
In countering this contention, the petitioners say that the
Declaration guarantees the right to liberty, and places the burden on the
Government to prove that this or other guaranteed rights may be abrogated,
a burden that the petitioners say the State has failed to meet in this
With respect to the State's discussion of particular detainees in
its post-hearing brief, the petitioners claim that the State’s
observations are "irrelevant" because the petition and
subsequent submissions were made on behalf of the class of Mariel Cubans
who continue to be detained under the State's administrative authority,
and were not limited to a list of 335 individuals.
The petitioners further say that, in any event, the State has
provided inadequate information as to the reasons for the detention of
each Mariel Cuban.
Finally, the petitioners emphasize that the standards under the
Declaration should be considered to apply to all persons equally, and
should not be considered to create a double standard, one for persons who
have never committed a crime and one for persons who have been accused of
crimes. Nor, say the petitioners, should basic human rights standards
be considered different for those who are considered excludable aliens
rather than citizens, and therefore administrative detention should not be
considered permissible merely for these categories of persons.
Based upon their submissions, the petitioners seek relief, in the
form of a decision that the Mariel Cubans’ rights under the Declaration
have been violated, a recommendation of the immediate release of all
Mariel Cubans detained under the authority of the Attorney General of the
United States or the INS, and “monetary reparations to all Mariel Cubans
who were detained under the discretionary authority of the INS at least
the implementation of the Cuban Review Plan.”
Position of the State
In its original response to the petitioners' petition, as well as
in its first and second supplemental observations and its March 22, 1999
post-hearing brief, the State presented several arguments relating to the
admissibility and merits of the complaint. In addition, the State provided
detailed information respecting the operation of the mechanisms available
to review the Mariel Cubans' detentions, and supplied particulars
regarding the background and status of several of the individual
1. Background to
the Mariel Cuban Situation
In its initial October 9, 1987 observations to the Commission, the
State provided particulars concerning the background to the Mariel Cuban
situation in the United States. According to the State, the petitioners'
petition was submitted on behalf of a subgroup of approximately 125,000
Cubans who came to the U.S. in 1980 as part of a mass exodus from Mariel,
Cuba. All of the members of this subgroup were detained in various
facilities in the U.S. at the time the petition was filed with the
The State indicates that the exodus of Cubans from Mariel was
triggered by the occupation of the Peruvian Embassy of over 10,000 Cubans
who desired to leave Cuba. In
connection with that incident, on April 14, 1980, the President of the
United States authorized the admission to the U.S. as refugees of up to
3,500 of those Cubans in the Peruvian Embassy, provided that they
satisfied the requirements of the applicable U.S. immigration and refugee
The State claims, however, that the orderly transport of these
individuals by air was halted almost immediately by the Cuban government,
which, on April 20, 1980, announced that all Cubans wishing to go to the
United States were free to board boats at the port of Mariel.
Consequently, individuals in Miami at once began to shuttle back
and forth between Florida and Cuba to transport the Cubans waiting at
Mariel to the United States. According to the State, the U.S. government
called for the immediate cessation of this activity, and on April 23, 1980
the U.S. Coast Guard and Customs Service began issuing warnings in English
and Spanish that participation in the growing flotilla was illegal and
that the INS would act to stop those who were attempting to bring Cubans
into the U.S. without valid visas. Similarly, between April 23 and 27,
1980 the U.S. Department of State, the U.S. Interest Section in Havana and
the Vice-President of the U.S. reiterated publicly the illegality of
bringing undocumented aliens into the U.S., urged a halt to the boat lift,
and called for compliance with U.S. immigration law.
Eventually unable to stem the growing number of boats transporting
Cubans to the United States, the State indicates that the U.S. Navy and
Coast Guard undertook rescue operations and began channeling inbound
vessels to Key West, Florida in an effort to keep control over the
arriving Cubans. Further, the U.S. President used his authority under the
Migration and Refugee Assistance Act of 1962 to make $10 million available
for processing, transporting and caring for the arriving Cubans.
The State claims further that, in the midst of these events, it
became known that the Cuban government had intermingled common criminals
and persons with serious mental health problems with those who were
leaving Cuba. As a consequence, the White House announced that very
careful screening of arrivals would be conducted, and that individuals
with records of criminal activity who represented a threat to the country
or whose presence would not be in the best interests of the United States
would be subject to arrest, detention and deportation to their countries.
The uncontrolled flow of Cubans to the United States continued
through late September 1980. Throughout
that time, the State contends that its government repeatedly called for a
halt to the illegal entries and warned that immigration laws would be
enforced, which included the seizure of vessels and criminal prosecutions,
and the Coast Guard began attempting to intercept vessels.
At the same time, the U.S. President announced that for
humanitarian reasons the U.S. would accept prescreened escapees from Cuba,
specifically those who had sought refuge in the U.S. Interest Section or
in the Peruvian Embassy in Havana, certain political prisoners, and close
family members of permanent residents of the U.S.
In this regard, the State accuses the petitioners of “grossly
misrepresenting” the statement by the President that the U.S. would
greet the Cubans with “open hearts and open arms”, and contends that
this statement by the President must be read in the context of other
statements made during the Mariel boatlift. The State claims further that,
in any event, comments of this nature made by the U.S. President cannot
support the suggestion that immigration laws were suspended for the
benefit of all 125,000 Cubans who eventually came to the United States.
The State stresses in this respect that the U.S. President
consistently emphasized the need to uphold immigration laws, while at the
same time attempting to act humanely in light of the circumstances of the
Moreover, the State claims that the President expressed his
intention to address the criminal element alleged to have been included in
the boatlift, and in June 1980 directed that “Cubans identified as
having committed serious crimes in Cuba are to be securely confined” and
ordered that “exclusion proceedings…be started against those who have
violated American law while waiting to be reprocessed or relocated.”
The boatlift continued until September 26, 1980, when Cuban
President Castro closed Mariel Harbor and ordered all boats awaiting
passengers to depart. According to the State, in the end more than 125,000
visaless Cubans arrived in the U.S. during the Mariel boatlift.
Of these, over 23,000 admitted to having a prior criminal record in
Cuba. When the initial screening process ended in August 1981,
approximately 1,800 remained in detention because of suspected or admitted
criminal background that would make them ineligible for admission to the
U.S. and possibly a danger to the community. The State also acknowledged that a number of other Mariel
Cubans were detained because of serious medical or psychiatric problems.
The State further noted that approximately 123,000 of the total of
125,000 Mariel Cubans had been released under the Attorney General’s
parole power notwithstanding their lack of any immigration documentation
or right to enter the United States. Indeed, according to the State,
“all of the decisions on whom to release and who to detain were made
essentially on the basis of what the Cubans told the U.S. immigration
officials about themselves, since the Cuban government supplied no
In its October 9, 1987 observations, the State also confirmed that
some of those Mariel Cubans who were initially released began committing
crimes in the United States, and some of their sponsorship arrangements
broke down. Consequently, on
November 12, 1980, the INS issued parole revocation guidelines, providing
for revocation of parole in sponsorship breakdown cases “if the alien
has no means of support, no fixed address and no sponsor” and, in
criminal cases, if “an alien is convicted of a serious misdemeanor or
felony.” According to the
State, these guidelines were twice revised, so that in March 1983 parole
of any Mariel Cuban would be revoked if he had been “convicted in the
United States of a felony or a serious misdemeanor and … completed the
imprisonment portion of [his] sentence” or if he “presents a clear and
imminent danger to the community or himself.”
The State further argues that throughout this time, the Government
of Cuba refused to take back any of its own nationals who were excluded
from the United States and held in detention. Since this created the
possibility that the excluded Cubans would be held indefinitely, the
Attorney General adopted a Status Review Plan and Procedure in July 1981
(hereinafter the "Status Review Plan"), which was revised from
time to time, and which in 1984 provided that Department of Justice panels
would make parole recommendations based upon past criminal histories,
disciplinary infractions while in detention, and progress in institutional
work and vocational programs. The
Status Review Plan operated approximately from July 1981 to December 1984,
and according to the State over 2,000 Cubans were approved for parole
under the plan to suitable halfway houses or sponsors.
Particulars of the Status Review Plan are described in Part III(B)(2)
of this Report.
Subsequently, according to the State, the U.S. government and the
Government of Cuba entered into an agreement in 1984 that provided for the
return of 2,746 named excluded Mariel Cubans to Cuba and the resumption of
normal immigration from Cuba to the United States.
As a consequence, the U.S. Attorney General cancelled the Status
Review Plan on February 12, 1985, in the expectation that the Cubans in
detention would be returned to Cuba shortly.
By that time, approximately 2,040 detained Cubans had been paroled
under the Status Review Plan.
The State further claims that in May 1985, the Cuban Government
unilaterally and, in the State's view, improperly, suspended
implementation of the repatriation agreement, after only 201 excludable
Cubans had been returned. The
Cuban government apparently claimed that the suspension of the agreement
was due to a change in programming on the Voice of America, and indicated
that it would resume implementation of its obligations if the Voice of
America ceased its revised programming. According to the State, however,
broadcasting was a matter wholly unrelated to the substance of the
migration agreement or to Cuba’s international legal obligation to
accept return of its nationals, and moreover, the Cuban Government had in
fact known of the change in programming before the migration agreement was
concluded. The implementation
of the 1984 agreement had thus been suspended since 1985. The State adds
that the Government of the United States and the Government of Cuba have
discussed the reinstatement of the agreement, and that both governments
continue to “endorse the concept” of resuming implementation.
The State has also indicated that notwithstanding events concerning
the repatriation agreement, 1,294 Mariel Cubans were paroled under the
normal INS parole procedures between September 1985 and September 1987. Apart from the regular parole procedures, however, there was
no mechanism in force during this time to release Cuban detainees from
federal authority, until the State's Cuban Review Plan was adopted in May
1987 to provide particular detention review procedures for the Mariel
In its October 1987 observations, the State described its Cuban
Review Plan, the particulars of which are discussed in Part III(B)(2) of
this Report. As of the date of its October 1987 observations, the State
confirmed that the Cuban Review Plan had been in operation for four months
and that the cases of 891 Mariel Cubans had been reviewed and 570 were
recommended for parole. Also
at that time, an additional 310 individuals were recommended for further
detention and in interviews had resulted in split decisions, and as of the
same date, the Central Office Review Committee had concurred in 557
release decisions and 210 detention decisions.
The balance of the Cuban Review Plan recommendations were in the
Central Office at that time for concurrence. In addition, 42 Cubans had
been paroled to half-way house projects and 34 had been paroled to family
members, for a total of 76 individuals paroled.
Further, as of the date of their October 9, 1987 observations, the
State indicated that 3,625 Mariel Cubans were in detention, and that the
U.S. government expected that “the pattern of granting and revoking
parole depending upon the conduct and circumstances of each individual
Mariel Cuban to continue until the Cuban Government agreed to honor its
obligations under international law and under the Mariel patriation
agreement to accept back those Cubans who are excludable from the United
According to the State's January 19, 1988 observations, on November
20, 1987, the Governments of the United States and Cuba announced that
they were immediately resuming implementation of the 1984 migration
agreement establishing regular migration procedures between the two
countries. The State therefore claimed that with the resumed agreement,
normal migration procedures would again exist, and Cuba had agreed to
accept the return of the 2,746 excludable Mariel Cubans identified by the
U.S. to Cuba.
At that time, independent of the migration agreement, the U.S.
Attorney General decided that every Mariel Cuban destined for return under
the agreement would have his or her case reviewed by a special Justice
Department review panel before a final decision of return was made.
Additionally, in its March 22, 1999 observations, the State
delivered to the Commission a copy of a February 4, 1999 declaration from
Michael E. Ranneberger, Coordinator, Office of Cuban Affairs, Department
of State, concerning the status of discussions with the Government of Cuba
about the return of Cuban Nationals such as the petitioners, who were
excluded from the United States for conviction of serious crimes and
ordered excluded, deported or removed from the United States.
The declaration indicated in part that:
For almost two decades, the United States has been discussing with
Cuban authorities the issue of return of excludable Cubans.
In 1984, the United States and Cuba reached an agreement for the
return of 2,746 criminal Cubans who had arrived in the United States
during the Mariel outflow. Almost
1,400 of those Cubans named on the 1984 list have been returned to Cuba. At the time the 1984 agreement was reached, it was clear that
the names did not constitute a definitive list and that additional
excludables would be identified in the future
Over the past several years U.S. officials have met periodically
with the Government of Cuba to discuss pending immigration matters,
including the return of Cuban nationals who have been convicted of serious
crimes and ordered excluded, deported or removed from the United States.
In an effort to normalize the migration relationship between the
two countries, the United States and Cuba concluded further agreements on
September 9, 1994 and May 2, 1995, respectively, to promote safe, legal
and orderly migration and to deter dangerous boat voyages across the
Florida Straits. In addition, the September 1994 agreement expressly stated
that the United States and Cuba "agreed to continue to discuss the
return of Cuban nationals excludable from the United States."
Delegations from the two countries have continued to meet
periodically to discuss migration issues, including this subject.
The latest round of talks took place on December 4, 1998 in Havana.
The U.S. delegation is led by the Department of State and includes
officials of the Immigration and Naturalization Service. I cannot go onto
the substance of the sensitive diplomatic exchanges in a public forum. I
can confirm that the return of Cuban nationals excludable from the United
States for conviction of serious crimes and orders excluded, deported or
removed remains under discussion between the two governments.
Detention and Review of Excludable Aliens and the Mariel Cubans
under the U.S. Immigration and
Naturalization Act, the Status Review Plan and the Cuban Review Plan
In its January 19, 1988 and subsequent observations, the State
provided a review of those aspects of U.S. immigration and naturalization
law which it considered relevant to the situation of the Mariel Cubans. It also provided particulars of the two principal
administrative procedures developed by the State to review the detention
of the Mariel Cubans, the Status Review Plan and the Cuban Review Plan.
Naturalization Act and Related Jurisprudence
Under U.S. immigration and naturalization law, which is governed
principally by the U.S. Immigration and Naturalization Act
("INA"), “excludable aliens” are those who fall into one of
thirty-three specific classes of aliens “excluded from admission into
the United States.”
under section 212(a) of the U.S. Immigration
and Nationality Act (“INA”), 8 U.S.C. §1182(a). These categories pertain to, inter
alia, health-related grounds, criminal and related grounds, security
and related grounds, and the absence of required documentation.
Excludable aliens are normally required to depart immediately and
are detained for immigration control purposes, at the border if possible,
until they do.
Such aliens are entitled to have the legality of their detention
reviewed upon writ of habeas corpus to the federal judiciary, but the INA
does not limit the period that they may be detained.
The Attorney General releases excludable aliens from immigration
detention and permits their physical presence in the United States through
the use of its “parole” authority.
The use of this authority is limited by statute, however, to cases
where there are “emergent reasons” or where release is “strictly in
the public interest”.
In addition, the authority to parole is discretionary and gives an
excludable alien no legal entitlement.
The parole authority can be used not only to release an excludable
alien from immigration detention pending his return to his country, but
also to allow an excludable alien to remain in the United States
indefinitely for compelling humanitarian reasons, such as to ensure family
unity. Where the purposes of the grant of parole have been served,
however, the grant of parole is revoked and the alien is returned to
custody and treated like any other applicant for admission to the United
Grants of parole are also typically conditioned upon, for example,
the alien’s good behavior or the posting of bond, and are regularly
terminated when the conditions are broken.
111. As a legal matter, parolees are not considered to be “admitted” to the United States. Rather, “[c]onceptually, they stand always at the border, seeking admission, and their physical presence within the United States does not change their status as excludable aliens." According to the State, this doctrine and its implications are important for the flexible and humanitarian administration of the immigration laws because, "by allowing the Attorney General to grant an alien’s request for parole without giving up his authority to exclude the alien, it facilitates a more generous parole policy.”
If a paroled excludable alien violates the conditions of his or her
parole or commits a crime and is incarcerated by federal, state or local
authorities, the INS is normally notified. Using a screening process, the
INS then normally reviews the criminal history of the alien and, if it is
believed that the alien's parole is contrary to public interest, places
detainers on the alien's release. As
a consequence, once such an alien completes all, or in some cases part, of
his or her sentence, he or she is returned to the INS and is detained by
either the INS or the federal Bureau of Prisons.
With respect to the situation of the Mariel Cubans in particular,
the State indicated in its January 19, 1988 observations that virtually
all of the Cubans who arrived in the Mariel boatlift were excludable under
section 212(a) of the INA for lack of proper documentation, and that some
of the Mariel Cubans who were detained also had histories of criminal
behavior or serious mental illnesses.
In this regard, the State clarified in its January 19, 1988
observations that, with the exception of approximately 100 to 150 Mariel
Cubans who have been detained continuously since their arrival in the
United States in 1980, all of the Mariel Cubans who were then in
immigration detention were there because they committed crimes while free
on parole or otherwise violated their parole conditions.
Finally, the State notes that in general, parolees are unable to
become permanent resident aliens or United States citizens. It also
claims, however, that the vast majority of the 125,000 Mariel Cubans who
arrived in 1980 are able to become permanent residents or citizens of the
U.S. because of a special law passed in 1966, and which remains in effect,
that permits Cuban nationals physically present in the United States for
two years or more to adjust their status.
The State notes further that this law generally does not permit
adjustment of status by those Cubans who are excludable because of serious
mental health problems or because they have committee crimes.
Thus, according to the State, many Mariel Cuban detainees who are
paroled out of detention will in all probability remain in parole status
for as long as they are permitted to remain in the United States, assuming
that they do not again violate the conditions of their parole, and that as
they will remain excludable, they will as a legal matter always remain
subject to return to Cuba.
Status Review Plan
As indicated previously, in light of the Government of Cuba’s
refusal to accept the return of the excludable Mariel Cubans and the
resultant possibility that these aliens might be detained indefinitely,
the Attorney General adopted a Status Review Plan and Procedure in July
1981, which remained in place until approximately December 1984. This Plan
was revised from time to time, and in 1984 provided that Department of
Justice panels would make parole recommendations based upon past criminal
histories, disciplinary infractions while in detention, and progress in
institutional work and vocational programs.
Under the Status Review Plan, release was recommended only if the
panel agreed that: 1. The detainee was presently a non-violent person; 2.
The detainee was likely to remain non-violent; and 3.
The detainee was unlikely to commit any criminal offense following
The Status Review Plan also provided that “[d]isturbing doubts
are … to be resolved against the detainee as he has the burden to
convince review participants that he qualified for release…”.
Further, actual parole of a detainee required both approval by the
Commissioner of the INS or his representative,
and sponsorship to a halfway house.
Moreover, parole could be revoked if the alien violated parole
conditions, such as possession of weapons or drugs, halfway house curfew
violations or failures to participate in treatment programs, or if the
Panel "discovers adverse information pertaining to the detainee which
was not available to the Panel during its review process."
Cuban Review Plan
In its July 2, 1988 observations, the State also provided
particulars respecting the operation of the U.S. Cuban Review Plan, based
upon the relevant Federal Regulations and INS Instructions, which are
described below. The State
contended, however, that it provided this overview for informational
purposes only because, in its view, the American Declaration does not
mandate review proceedings such as those under the Plan.
In December 28, 1987, the U.S. Department of Justice issued
Regulations on Mariel Cuban Parole Determinations
that set out the framework of the Cuban Review Plan. According to the Plan, in case of a detainee whose parole has
been revoked, the review process is ordinarily to begin within three
months of revocation of his or her previous parole.
For those detainees whose cases have previously been reviewed and
who have remained in detention, a subsequent review is to commence within
one year of a refusal to grant parole.
In addition, the Director of the Cuban Review Plan may schedule a
review of a detainee at any time he deems such a review to be warranted.
With respect to the procedure followed under the Cuban Review Plan,
the parole review begins with a review of the detainee's file by the
Director or by a panel consisting of two ISN officers.
If the director or the INS panel recommends that the detainee be
released on parole following the file review, a written recommendation,
including a brief statement of the factors which were deemed material to
the recommendation, is transmitted to the Associate Commissioner for
Enforcement or his designee, who then decides whether to exercise his or
her discretion to grant parole.
Prior to recommending release, the panel must conclude that: (i) the
detainee is presently a non-violent person; (ii) the detainee is likely to
remain nonviolent; (iii) the detainee is not likely to pose a threat to
the community following his release; and (iv) the detainee is not likely
to violate the conditions of his parole.
In reaching their conclusions, panels are directed to weigh such
factors relating to the detainee as disciplinary infractions committed
while in detention, past history of criminal behavior, psychiatric and
psychological reports, participation in work, educational and vocational
programs while in detention, ties to the United States, the likelihood the
detainee will abscond, and "any other information which is probative
of whether the detainee is likely to adjust to life in a community, is
likely to engage in future acts of violence, is likely to engage in future
criminal activity, or is likely to violate the conditions of his
If the Director or the Panel recommends against parole based upon
the record review, the detainee is, at the discretion of the Director,
scheduled for a personal interview before the panel.
During the interview, the detainee may be accompanied by a person
of his or her choice who is able to attend at the time of the scheduled
interview, to assist in answering any questions.
Thirty days in advance of the scheduled interview, the detainee is
given notice specifying the date and time for the interview and explaining
the interview process. The notice also asks the detainee to specify whether he or
she wishes to have a representative assist at the hearing. In the case of
detainees who indicate that they do wish such representation but do not
specify a name, the Director provides them with a list of attorneys
willing to assist the detainees pro
bono, at least two weeks in advance of the interview.
The INS “instructions” on the Cuban Review Plan, which were
provided by the State with its July 2, 1988 observations, provide that a
detainee’s file should be made available to him and his personal
representative in a timely fashion, no later than five days prior to the
interview. All of the
information in the file may be inspected, subject to some exceptions,
including information, which would reveal the name or identity of
informants, which pertains to an ongoing law enforcement investigation, or
which the investigative agency has requested not be released. An
interpreter must be present for each interview.
During the interview, the INS panel asks the detainee questions
about his criminal record, his prison record, his ties to the United
States, and other factors relevant to deciding whether to recommend the
detainee for parole according to the standards under the Cuban Review
Plan. A recommendation for or
against release is then made to the Associate Commissioner for Enforcement
or his designee, who decides whether to grant parole in the exercise of
discretion. Those detainees
who are denied release are first given a notice of intent to deny, and
then a longer and more specific statement of the reasons for the denial.
Detainees who receive denials and who were in INS detention as of
December 28, 1987 are automatically given a one-time review of the denial
by a Departmental Panel established by the U.S. Associate Attorney
General, which is comprised of three persons within the Department of
Justice, one of whom is an attorney, and one of whom is from the Community
INS employees are not to be represented on the Departmental Panels,
and these Panels have the power to grant parole in their discretion.
In the case of such reviews, the detainee is given a notice that he
is about to receive further review by the Departmental Panel and has 30
days to submit a written statement setting forth any factors he believes
relevant to the parole consideration.
The Departmental Panels may decide on the paper record, or may
schedule an interview with the detainee.
Commission Member Professor Robert Goldman did not take part in the
discussion and voting on this case, pursuant to Article 19(2) of the
In determining the present case, the Commission has relied in particular
upon the circumstances of 29 petitioners in respect of whose status the
State provided detailed information: J. Jorrin-Alfonso; Marcelino
Perez-Fernandez, Manuel Casalis-Noy, Sergio Sanchez-Medina; Jorge Cornel-Labrada;
Rafael Ferrer-Mazorra; Reuben Alfonso-Arenciba; Roberto Gonzalez-Machado;
Jose Cruz-Montoya; Jorge Remagne-Herrera; Pedro Prior-Rodriguez; Daniel
Alvarez-Gamez; Pascual Cabrera-Benitez; Lourdes Gallo-Labrada; Marcelino
Gonzalez-Arozarena; Domingo Gonzalez-Ferrer; Alfredo Gonzalez-Gonzalez; Juan
Hernandez-Cala; Sixto Lanz-Terry; Lazaro O'Farrill-Lamas; Guillermo Paz-Landa;
Jorge Rosabal-Ortiz; Enengio Sanchez-Mendez; Luis Urquiaga-Rodriguez;
Armando Vergara-Peraza; Santiago Machado-Santana; Humberto Soris-Marcos;
Lazaro Artilles-Arcia; and Agustin Medina-Aguilar.
U.S. Bureau of Prisons, January 1995 Report on Federal Detention of Mariel
Cubans, p. 12.
In this respect, the petitioners cite the U.S. Court of Appeals for the
Eleventh Circuit as finally disposing of the petitioners' claims in 1986 as
both the government and the appellees concede, with today's decision we have
reached the point in this longstanding controversy where we have rejected
all legal theories, constitutional and otherwise, advanced by the appellees.
They have exhausted all claims for relief available in the federal court
system at all levels save that of the Supreme Court. Accordingly, it is our
judgment that, unless the appellees elect to seek, and the United States
Supreme Court elects to grant, a petition for a writ of certiorari, these
cases have reached the terminal point and shall be dismissed.
10 April 1987 petition, pp. 6-7, citing
Garcia-Mir v. Meese, 788 F.2d
1446, 1455 (11th Circuit 1986).
Id., p. 7, citing Ferrer-Mazorra
v. Meese, 107 Sup. Ct. 289 (1986).
Petition dated April 10, 1987, p. 11, citing a statement by the U.S. Supreme
Court that the parole of aliens seeking admission to the United States is
“simply a device through which needless confinement is avoided while
administrative proceedings are conducted…Certainly this policy reflects
the humane qualities of an enlightened civilization.” Leng
May Ma v. Barber, 357 U.S. 185, 190 (1958).
Petition dated April 10, 1987, p. 16, citing
a February 10, 1987 letter from Assistant Attorney General John Bolton to
U.S. Congressman Robert Kastenmeier, which indicated that there were only
approximately 350 spaces per year available at half-way houses for the
Petition dated April 10, 1987, p. 27, citing
Universal Declaration of Human Rights, G.A. Res. 217 (III) of Dec. 10, 1948,
U.N. GAOR, 3rd Sess., Res. A/810, p. 71, Arts. 3, 9; European
Convention for the Protection of Human Rights and Fundamental Freedoms, 213
U.N.T.S. 221, E.T.S. 5 as am., Art. 5; American Convention on Human Rights,
Treaty Series Nº 36, OAS Off. Rec. OEA/SerK/XI/1.1, Arts. 5, 7, 8.
Petition dated April 10, 1987, p. 28, citing
I/A Comm. H.R., Annual Report 1980-81, at 119 (October 16, 1981).
Petition of April 10, 1987, at pp. 29-30, citing,
inter alia, European Convention, supra, Art. 5(1), which provides as follows:
Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
the lawful detention of a person after conviction by a competent
the lawful arrest or detention of a person for non-compliance with
the lawful order of a court or in order to secure the fulfillment of any
obligation prescribed by law;
the lawful arrest or detention of a person effected for the purpose
of bringing him before the competent legal authority on reasonable suspicion
of having committed an offence or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after having done so;
the detention of a minor by lawful order for the purpose of
educational supervision or his lawful detention for the purpose of bringing
him before the competent legal authority;
the lawful detention of persons for the prevention of the spreading
of infectious diseases, of persons of unsound mind, alcoholics or drug
addicts or vagrants;
the lawful arrest or detention of a person to prevent his effecting
an unauthorized entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
petitioners’ April 2, 1999 observations, p. 17, citing
Eur. Court H.R., Amuur v. France,
(1996) E.H.R.R. 533.
petitioners’ April 2, 1999 observations, p. 23, citing
v. Rison, 44 F.3d at 1445; In re
Mariel Cuban, 822 F.Supp. at 196.
State’s January 19, 1988, pp. 2-4, citing
8 U.S.C. 1182(a).
8 U.S.C. §1225(b), 1227.
8 U.S.C. § 1225(b), 1227, Mayet Palma v. Verdeyen, 676 F.2d 100, 104 (4th
Cir., 1982), 8 U.S.C. § 1182(d)(5)(A), cf. 8 U.S.C. § 1252(c), (d).
Id., p. 20, citing
8 U.S.C. § 1182(d)(5)(A), 8 C.F.R. § 212.5
8 U.S.C. § 1182(d)(5)(A).
Id., p. 3, citing
Singh v. Nelson, 623 F.Supp. 545, 552-54, 558 (S.D.N.Y., 1985).
8 U.S.C. § 1182(d)(5)(A).
Id., citing 8 U.S.C. §
1182(d)(6), 8 C.F.R. § 212.5(c).
Id., p. 4, citing
8 U.S.C. § 1182(c)(5)(A); Shaughnessy
v. Mezei, 345 U.S. 206, 212 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953); Garcia-Mir
v. Smith, 766 F.2d 1478, 1483-84 (11th Cir. 1985), cert.
denied, 106 S.Ct. 1213, 89 L.Ed. 325 (1986).
U.S. Bureau of Prisons, January 1995, Report on the Federal Detention of
Mariel Cubans, at 16.
State's January 19, 1988 Observations, p. 2., citing
8 U.S.C. § 1182(a)(20), 8 U.S.C. 1182(a)(1)-(5), (7), (9), (10), (23)).
Id., p. 4, citing
Cuban Adjustment Act of 1966, Pub. L. Nº 89-732, § 1, 80 Stat. 1161
Status Review Plan, July 1981, Part II.C.2.
Id., Part III.C.2.e.
Id., Part III.E.2.
Id., Part III.E.3.
Id., Part III.E.4.
52 F.R. 48799. 8 C.F.R. 212.12, 212.13.
Id., Section 212.12(g).
Id., Section 212.12(d)(4)(i).
Id., Section 212.12(b)(1), (d)(1)
Id., Section 212.12(d)(2)
Id., Section 212.12(d)(3).
Id., Section 212.12(d)(4)(ii).
State’s July 2, 1988 Observations, p. 9.
Id., Section 212.13(a), (b), (c).
Id., Section 212.13(e).