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Perez v. Lappin

November 30, 2009

JUAN M. PEREZ, PETITIONER,
v.
HARLEY G. LAPPIN, RESPONDENT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This matter is before the Court on respondent's response to the February 6, 2009, order to show cause and his motion to dismiss or transfer the petition for a writ of mandamus. Petitioner, who is currently serving a federal sentence, originally came to the United States from Cuba during the Mariel boatlift in 1980. In this action, he challenges the provisions under which his custody classification and security level are set.*fn1 For the reasons discussed below, the Court will grant respondent's motion and dismiss this action.

I. BACKGROUND

A. Long-Term Detainees in Federal Custody

The Federal Bureau of Prisons ("BOP") has in its custody certain long-term detainees who are no longer serving a sentence but whose "detention is indeterminate [because] they will not, in all probability, be repatriated to their home countr[ies]." P.S. 5100.08, Inmate Security Designation and Custody Classification (9/12/2006) ("P.S. 5100.08"), ch. 3, p. 9. The term "long term detainee" means:

A non-U.S. citizen (alien) who has:

* finished serving a local, state, or federal sentence;

* completed immigration proceedings that have resulted in an order of deportation, exclusion, or other means of removal by either the Executive Office for Immigration Review (EOIR), or the Bureau of Immigration and Customs Enforcement (ICE), formerly the Immigration and Naturalization Service (INS); and[]

* cannot be removed from the country for various reasons.

Id., ch. 2, pp. 2-3. These long-term detainees include "Mariel Cubans . . . who entered the United States during the Mariel boatlift between April 15, 1980 and October 31, 1980[.]" Id., ch. 3, p. 9. Petitioner alleges that he "is a native and citizen of Cuba who came to the United States in June of 1980 in the Mariel-Cuba Boatlift." Pet. ¶ 5.

B. Petitioner's Criminal History

Petitioner alleges that "[h]e was paroled [on] May 22, 1982[,] and has been in that status since then." Pet. ¶ 5. He further alleges that he "is serving a 65 month[] federal sentence imposed for violating Title 18 U.S.C.A. §§ 1341 and [134]2, imposed by the United States District Court for the District of New Jersey." Id. ¶ 3.

Drawing from a prior judicial decision, respondent submits a fuller picture of petitioner's criminal history and current status:

Approximately 125,000 Cubans eventually came to the United States in the [Mariel] Boatlift. Since nearly all of the Mariel Cubans arrived without appropriate entry documentation, most were detained at the border pending a status determination (admission or exclusion). Pending this determination, the vast majority of arrivals were released on immigration parole as ...


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