ACLU Urges High Court to Reject Indefinite Detention of "Mariel" Cubans

October 13, 2004 12:00 am

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Court’s Previous Rulings Argue Against Punitive Policy

WASHINGTON – The American Civil Liberties Union today urged the Supreme Court to reject the government’s indefinite detention of “Mariel” Cubans who cannot be deported because Cuba will not allow their return.

“It shocks the conscience that our government would lock people up for life because their countries won’t take them back,” said Judy Rabinovitz, a senior staff attorney with the ACLU Immigrants Rights Project and an author of the ACLU’s friend-of-the-court brief who has successfully argued against such policies in the lower courts. “As the Justices found in a 2001 ruling rejecting the indefinite detention of former legal permanent residents, there are other ways to address the government’s legitimate concerns about our borders that don’t require locking people up for life.”

The case involves the indefinite detention of two Cuban refugees, Daniel Benitez and Sergio Suarez Martinez, who were paroled into the country as part of the “Mariel” boat-lift in 1980 and have lived here ever since. Both are subject to final orders of exclusion from the United States because of crimes they committed in this country, but they cannot be removed because Cuba will not accept their return. The government claims that it is entitled to detain them indefinitely — for the rest of their lives if need be — based on its own unreviewable determination that they should not be released.

In its friend-of-the-court brief, the ACLU argues that the government’s position raises serious constitutional problems and is inconsistent with the Supreme Court’s interpretation of Congress’s indefinite detention statute.

In a 2001 case addressing the indefinite detention law, the Supreme Court ruled in Zadvydas v. Davis that when an immigration detainee’s deportation cannot be carried out within a “reasonably foreseeable” period, defined by the court as six months in most cases, the government generally cannot continue to hold that person.

In the government’s view, that landmark holding has no relevance to the Mariel Cubans and others who were “stopped at the border.” Even though Mariel Cubans have lived in our midst for almost a quarter of a century, the government exploits a technicality called the “entry fiction” to argue that they can be treated by law as if they were still at the border and had never entered. Thus, the government maintains, their due process rights can be severely curtailed.

But as the ACLU argues in its brief, there is no basis in the Court’s precedents for such a radical expansion of the entry fiction. The fiction has never been used to deny fundamental due process rights to immigrants like the Mariel Cubans who were invited to our country as refugees and have since developed significant ties here.

The Court will consider these issues today in two consolidated cases: Benitez v. Rozos (03-7434) (previously known as Benitez v. Mata), and Clark v. Suarez Martinez (03-878) (previously known as Crawford v. Suarez Martinez). In Benitez the 11th Circuit upheld the government’s indefinite detention policy; in Suarez-Martinez, the Ninth Circuit rejected it.

In addition to the ACLU, other groups that filed briefs in today’s cases include, legal scholars, national security experts, religious and refugee organizations, the American Bar Association, the Cuban American Bar Association, and the Cuban American National Foundation.

Go to the ACLU’s briefs and other friend-of-the-court briefs in the case.

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