126. Detainees who are approved for parole by the Associate Commissioner or by a Departmental Panel are released after a suitable sponsorship or placement has been found for them. This may include placement by the U.S. Public Health Service, the U.S. Community Relations Service in an approved halfway house or community project, or placement with a close relative who is a lawful permanent resident or a citizen of the United States. Paroled detainees are required to abide by any special conditions that may have been placed on their parole, and a Departmental panel may, in its discretion, withdraw its approval for parole of any detainee prior to release when, "in its opinion, the conduct of the detainee, or any other circumstance, indicates that parole would no longer be appropriate." According to the State, the sponsorship placement requirement and conditions placed on parole are intended to minimize dangers to public safety and order and to maximize the chance that the detainee will successfully integrate into the community.
The State also advises that INS panel members are given two days of
intensive training in carrying out their roles under the Cuban Review Plan
and are provided with guidance in the conduct of interviews.
Observations on Admissibility and Merits
With respect to the petitioners' legal claims, the State has
requested that the Commission find the petition inadmissible, for two
principal reasons. First, in its March 22, 1999 observations, the State
has contended that the petition should be found inadmissible on the basis
that the petitioners have failed to exhaust their remedies under domestic
law, because review processes have been and remain available to all
detained Mariel Cubans at regular intervals in the form of the Status
Review Plan and/or the Cuban Review Plan. Second, the State claims that
the petition is inadmissible for the reason that it does not state facts
that constituted a violation of rights referred to in the Declaration.
Further in this regard, the State presented two principal
submissions in its January 19, 1988 observations: (1) that a state has
absolute sovereign authority to detain and exclude excludable aliens,
which authority is not restricted or otherwise the subject of rights or
obligations under the American Declaration; and (2) that in any event the
detention of the Mariel Cubans has not violated the norms of the American
Absolute Authority of the State to Detain and Remove
With respect to the first point in its January 18, 1988
observations, the State contends that the detention of the Mariel Cubans
at various times has not reflected a violation of the State’s
international obligations, but rather was “necessitated by Cuba’s
refusal to accept the return of the detainees, contrary to its obligations
under international law–detention is imposed not as punishment but as a
necessary immigration measure”. In addition, the State argues that
because the Mariel Cubans have no substantive right under international
law to be free of detention pending their deportation, they necessarily
have no procedural rights regarding review of their cases.
Nevertheless, the State “reinstituted” a special review plan to
examine in each case whether release is appropriate, namely whether they
are not a “danger to the community or a threat to the public safety or
the national security”.
More particularly, the State argues that no person has a right to
any particular procedure unless the state is depriving him or her of
something. In the case of the Mariel Cubans, the State contends that they
do not have a substantive right not to be detained in the United States
and have no right to be at liberty in the United States, and therefore
that they have no right to any particular procedures in respect of their
Rather, according to the U.S., states have a largely unlimited
authority to forbid the entrance of foreigners within their dominions,
subject perhaps only to limited exceptions in the non-refoulement
provisions of the U.N. Convention on the Status of Refugees, to which, the
State notes, only a third of the world’s states have agreed. Even in the
latter instance, the State notes that under Article 33 of the Refugee
Convention, the commitment does not exist if a refugee is a danger to
security or, having been convicted by a final judgment of a particularly
serious crime, is a danger to the community. Moreover, the State claims
that states have stopped short of agreeing to give up their prerogatives
to decide whether to allow refugees to enter their territory or to provide
them with legal status in the form of asylum.
As a corollary to this, international law has, according to the
State, always insisted on the obligation of all states to accept the
return of their own nationals, to protect individuals and to avoid
violating the rights of the states that may be left with unwanted aliens
as a result.
In the State's view, this obligation is “interdependent” with
the right of states to exclude aliens, and therefore that to accept the
petitioners' submission that excludable aliens should be released unless
they are considered “dangerous” would “allow states to exile their
unwanted-but-not-dangerous nationals knowing that they would have to be
released into the communities of other states regardless of their legal
status as excludables.” The
State claims that the present case is a precise illustration of this
Further in this connection, the State argues that the authority to
exclude aliens includes the right to detain them pending expulsion,
and cites instances of state practice in support of the “broad
recognition of the right to detain excludable aliens…even with respect
to refugees”. In
particular, the State refers to situations in which countries, including
Mexico, Honduras and Costa Rica, have detained refugees in camps
"indefinitely" until they return home or to a third country,
because the host country is unable or unwilling to resettle them.
The State asserts in this regard that the international community
has not questioned the legal right of states to control the presence of
refugees in this way, nor has it suggested that such detention is a
violation of basic human rights norms. In its July 2, 1988 observations,
the State also referred in this respect to the situation of Vietnamese
refugees in Hong Kong, who at that time had, according to the State, been
held in "closed camps" since 1982. The State cited in particular an announcement of Hong Kong's
intention to place all incoming Vietnamese boat people whom it determined
not to qualify for refugee status in a close camp under austere
conditions, with no entitlement to apply for third-country resettlement or
to enter Hong Kong society. The
State claims in this regard that although some have criticized Hong Kong's
decision on policy grounds, there was no suggestion that it violated
Also in support of its allegedly unlimited authority under
international law to detain excludable aliens, the State refers to the
Executive Committee of the U.N. High Commissioner for Refugees as
recognizing a “wide and flexible set of reasons that might justify
detention of refugees–including the very broad grounds of ‘public
order’, and explicitly distinguished between refugees as defined in
relevant international instruments and other aliens, who have less
The State therefore contends that its treatment of the Mariel
Cubans is a record of generosity, not of human rights abuses. The State
also indicates in this regard that it has not received protests from any
other states regarding the treatment of the Mariel Cubans, and that the
U.N. ECOSOC Resolution. 1503 communication relating to the Mariel Cubans
was ultimately not referred to the minorities sub-commission.
The State notes that the petitioners have referred to Article
5(1)(f) of the European Convention on Human Rights
as the only international authority addressing the detention of
“ordinary” aliens for immigration purposes, and submits that this
provision actually supports the lawful arrest or detention of such an
alien 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”.
In interpreting this provision, the State claims that the term
“lawful” is found to be subject to domestic, not international,
standards. It also observes that there is no time-limiting language
applicable to Article 5(1)(f), that "exclusion" under the
provision is not subject to the “with a view to” qualification
applicable to deportation and extradition and therefore may not require
continuing pursuance of exclusion, and that in any event the U.S.
government has continuously attempted to return the Mariel Cubans.
Consequently, the State contends that the European Convention sets time
limits on the deportation of aliens but not their exclusion, and in this
respect is similar to U.S. domestic law and, indeed, supports the State's
practice in this regard.
Finally, the State argues with respect to its first position that
there is no or insufficient evidence of a customary norm of international
law that limits the detention of excludable aliens,
but rather that state practice recognizes “absolute state sovereignty”
in this respect.
Absence of a Violation of the Norms of the American Declaration
With regard to its second argument noted above, the State contends
in its January 19, 1988 observations that the “right of states to detain
aliens in the exercise of their right to exclude them is so firmly
established that it would be extraordinary to find in the American
Declaration some other governing principle.”
The State emphasizes in this regard the fact that the Declaration
was adopted before instruments such as the European Convention and the
U.N. Refugee Convention, which themselves do not prohibit the detention of
More particularly, the State claims that there is nothing in the
provisions of Articles I, XVII, XXV or XXVI of the American Declaration
which provides aliens with the right to be at liberty in any country he or
she chooses or to any country to which his own government unlawfully
expels him, and argues that these provisions must be read in light of a
state’s competing right to restrain an individual’s liberty in
“appropriate circumstances”. In
particular, the State argues that Article XXV of the Declaration does not
appear to contemplate proceedings other than those of a criminal nature,
such as immigration proceedings, and in any event cannot be said to have
been violated in respect of the Mariel Cubans.
The State claims further that Article XXVI of the Declaration is
even more clearly concerned with the rights of accused criminals and is
inapposite to detaining immigrants. According
to the State, this is partly because there is no presumption that an alien
is admissible, and their detention is predicated on their immigration
status and does not constitute punishment for a crime.
Accordingly, the State claims that Article XXVI of the Declaration
does not apply to the situation of the Mariel Cubans.
The State proceeds in its January 19, 1988 observations to suggest
that a broader range of reasons, in practice and in law, may justify the
long-term detention of refugees and aliens, and that these reasons are not
just limited to dangerousness. Rather,
in the State's view, long-term detention of aliens may be justified on the
basis that a state cannot absorb them into its economy or society, if the
state does not wish to or cannot afford to incur associated social welfare
costs, or if the state disapproves of the alien's behavior.
According to the State, this authority is based on the right of a
state to exclude an alien for any reason, such that “whether and under
what circumstances to allow an alien to be at large in the community
involves policy judgments that only the state is entitled to make.”
Similarly, in its July 2, 1988 observations, the State refutes the
petitioners' contention that detention of excludable aliens is justifiable
only if it is a temporary measure pending exclusion or resettlement or if
the detainee is dangerous or a threat to public safety.
Further, the State argues that the Declaration does not prescribe
the modalities of immigration detention; for example, it does not dictate
that a state may only detain excludable aliens in camps where they can
live with families or that states must permit such aliens to hold jobs or
generally circulate in the larger society, nor does the Declaration
explicitly prohibit the detention of excludable aliens in penal
The State also rejects the suggestion that it is required to apply
more limited rules under U.S. law of detention of deportable aliens to
excludable aliens, and indeed, suggests that States Parties to the
European Convention on Human Rights appear to make a similar distinction
between deportable and excludable aliens in their immigration detention
In summary, the State contends that the U.S. practice with respect
to the detention of Mariel Cubans has been reasonable and more generous
than the requirements of the American Declaration or the usual practice of
states in similar mass influx situations. The State claims that it has
given those in detention extensive opportunities for review of their
suitability for parole, including habeas corpus proceedings and the
standing INS parole procedures, as well as different versions of the
Mariel Cuban Review Plans that prescribe procedures over and above those
available to other excludable aliens.
The State also contends in this respect that the detention of
Mariels has never been indefinite, in that the U.S. has never ceased
trying to return detainees with serious criminal records or mental
illnesses, or refused to let detainees go elsewhere, such as admission to
a third country. Indeed, the State argues that the unwillingness of third
countries to accept the Mariel Cubans further illustrates the
reasonableness of the U.S. decision not to release all of them into U.S.
Finally, in its March 22, 1999 observations, the State refutes any
suggestion by the petitioners that their immigration parole has been
revoked for insubstantial reasons such as minor traffic violations.
Rather, the State contends that the petitioners who were detained at that
time all appear to have engaged in serious, violent or repeated criminal
conduct when paroled into the State.
Their cases are nonetheless reviewed every year to determine if
they can again be paroled into the community.
In light of their criminal conduct when previously released,
however, including such offenses as manslaughter, assault, drug offenses,
and sexual crimes against children, the State argues that the revocation
or denial of immigration parole pending repatriation to Cuba or further
reconsideration for release into the United States in a year's time in
these cases is "eminently proper".
Fairness of the State's Detention Review Procedures
Specifically with respect to the petitioners' challenge to the
fairness of the procedures available to Mariel Cubans, the State contends
in its July 2, 1988 observations that the Declaration does not require
that detainees be given adversarial hearings before judges to determine
whether they should be released on parole into U.S. society.
The State reiterated in this regard that there is no evidence that
Article XXV of the Declaration was intended to apply to immigration
detention, and that, even if it were, the U.S. has complied fully with its
In particular, the States notes that the Mariel Cubans' detention
has been "according to the procedures established by pre-existing
law", namely the INA, that their detention is on account of the
detainees' lack of a right to be admitted to the U.S. and their failure to
abide by criminal statutes and the terms of their conditional release, and
that they are entitled under U.S. law to judicial review of the legality
of their detention through habeas corpus proceedings. With regard to this
last point, the State indicates that the Mariel Cubans have taken full
advantage of the right to seek habeas corpus, and that U.S. courts have
determined that their detention is legal.
Consequently, according to the State, a right to challenge the
legality of detention of the Mariel Cubans is available, and any further
decision whether to release Mariel Cubans notwithstanding the legality of
their detention is a matter of discretion for the United States.
Also in its July 2, 1988 observations, the State specifically
argues that the provisions of the Cuban Review Plan refute the
petitioners' allegations that the procedures available to Mariel Cubans
are inadequate. The State
contends that the procedures are more than adequate to arrive at a
reasonable and fair determination whether a detainee should be released
into U.S. society. Indeed,
the State indicates that the Cuban Review Panel procedures are modeled on
those for parole of persons convicted of federal crimes in the United
States, and notes that the INS has approved for release on parole
detainees in three individual cases in which the petitioners have alleged
INS bias against the detainees. The State adds in its January 19, 1988
observations that the Status and Cuban Review Plans have given Mariel
Cubans the benefit of special procedures for annual review for parole over
and above those available to other excludable aliens.
The State also indicates in this connection that the U.S.
Government has attempted to expedite the process of arranging sponsorships
and other placements, but emphasizes that verifying relationships and
financial guarantees requires time, and that placement in halfway houses
and other specialized settings are judged necessary for the successful
integration of many detainees into society.
According to the State, such placements must be carefully evaluated
and facilities are not always immediately available.
The State therefore claims that even assuming the Declaration was
applicable, these review procedures go "well beyond" the minimum
norms stated in Article XXV of the American Declaration, such that only
those with the most serious criminal records or mental illnesses have been
detained continuously in the public interest.
In this connection, the State suggests that it has struck the
correct balance of assuring basic fairness through minimal procedures,
considering that the Mariel Cubans have no right to be in the United
States, and that the United States is both obligated and entitled to
protect the public welfare and has an absolute sovereign right to control
the presence of aliens in its territory. The State also reiterates that procedures that are judicial
in nature are not required in addressing the detention of excludable
aliens, but rather that administrative review is adequate and appropriate.
Furthermore, in its March 22, 1999 observations, the State
emphasizes the fact that a vast majority of the petitioners are not now
detained by the State, and therefore no longer have a basis for complaint.
The State claims that its conduct in this regard has been
"extraordinarily generous", given that the 120,000 Cuban
nationals in the 1980 boatlift were "uninvited and undocumented"
and that none of them arrived through legal orderly immigration, but
nevertheless virtually every person who came in the boatlift was paroled
in to the U.S. at least once and given an opportunity to become a full
member of society on condition that they did not pose an unacceptable risk
to the community. The State
argues that the petitioners in this case are among the minority of Mariel
Cubans who violated the conditions under which the State released them
from custody by committing serious and violent crimes in the U.S.
With respect to the availability to the Mariel Cubans of habeas
corpus to challenge their detentions, the State in its March 22, 1999
observations refutes the petitioners' claims that domestic courts have
dismissed the Mariel Cubans' petitions for writs of habeas corpus for lack
of jurisdiction. Rather, the State says that the Mariel Cubans have not
been denied access to the courts of the United States, and have not lacked
for meaningful consideration of their claims by the courts, and that the
petitioners simply disagree with the outcome of those proceedings. The
State contends further that the petitioners' allegation of lack of access
to habeas corpus relief is refuted by the sheer volume of cases that have
been litigated or are pending in the courts of the United States. The
State estimated there to have been approximately 5,289 petitions for writs
of habeas corpus filed in District Courts by Mariel Cubans since 1980,
challenging their admission and removal or their detention pending
repatriation. Another 176 such cases have been taken to the courts of
appeals, which includes a class action of several years' duration in the
U.S. District Court for the Northern District of Georgia and the Court of
Appeals for the Eleventh Circuit.
In any event, the State contends that neither domestic nor
international law guarantees any individual a remedy for which there is no
legal, constitutional or other basis, as neither domestic nor
international law guarantees any alien the right alleged here, namely to
illegally enter or remain in the United States in violation of its
The State confirms in this regard that in most cases, the U.S.
courts have found that the aliens are not illegally detained, and
consequently they have declined to grant writs of habeas corpus, not for
lack of subject matter jurisdiction, but because the petitions have lacked
merit. In particular, they have not stated any cognizable legal or factual
ground for the relief sought, in that they have not proved the
petitioners' claim that they are entitled to admission to the United
States or that discretionary release is warranted under domestic
immigration parole legislation.
Moreover, the State noted in its March 22, 1999 observations that
the courts have also thoroughly reviewed the petitioners' various
challenges to the administrative process afforded them and have found that
sufficient procedures are in place for excluded Mariel Cubans who seek
release in the United States pending continued efforts to repatriate them
to Cuba. Accordingly, under neither domestic nor international law do
aliens illegally present in the United States enjoy an "unhampered
right to liberty".
Finally, the State reiterates that a trial or full-blown
adversarial hearing is not required to determine whether discretionary
immigration parole is warranted in an individual case. Rather, the State
argues that aliens such as the petitioners seek a favorable exercise of
discretion. According to the State, their desire to be returned to
American society, despite their lawful exclusion from the United States or
the crimes that they have committed when previously released, "is at
best a privilege, and not under any theory a right or entitlement."
In summary, the State's view is that the American Declaration does
not restrict the State's discretion to detain aliens who enter the United
States illegally, pending their deportation, and that the review
procedures in place have properly ensured that Cuban detainees who do not
pose a threat to the community will be released.
Statistical Information on Mariel Cuban Detention Reviews
Also in connection with its submissions respecting the propriety of
the Mariel Cuban review processes, the State provided statistical data
concerning the processing of the Mariel Cubans under these processes.
For example, in its October 9, 1987 observations, the State
indicated that, as of September 25, 1987, all but approximately 3,625 of
the approximate 125,000 Mariel Cubans had been released on parole. Of these 3,625, all but 212 had been paroled from detention
at one time or another and re-detained due to violations of their parole,
with the remaining 212 having been held in detention continuously since
arriving in the United States in 1980. Moreover, according to the State,
all 212 of the continuous detention cases either had been reviewed or were
in the process of being reviewed under the Cuban Review Plan.
Subsequently, in its January 19, 1988 observations, the State
indicated that a review of INS records subsequent to the State's October
1987 observations suggested that the number of Mariel Cubans in continuous
detention was in fact between
100 and 150. The State
contended in this regard that determining the exact number was
complicated, because a Mariel Cuban convicted of committing a crime, such
as assault, while in immigration detention may have been transferred to a
criminal detention facility and returned to immigration detention after
serving his criminal sentence. According
to the State, its estimate of 100 to 150 inmates in continuous detention
attempts to count all Mariel Cubans who have never been released on
parole, and may include some whose immigration detention has been
interrupted by one or more periods of criminal detention.
Further, in its July 2, 1988 observations, the State indicated that
from May 1987 to July 28, 1988, the INS conducted parole determination
reviews of approximately 4,227 Mariel Cubans, of which approximately 2,436
had been conducted following disturbances that occurred in 1997 in certain
facilities in which Mariel Cubans had been incarcerated. During this time,
the INS approved approximately 2,612 detainees, with approximately 60
detainees awaiting a decision at that time.
Thus, the State indicated that at that time, the overall approval
rating for the release of detained Mariel Cubans was over 60%.
Of those approved for release, approximately 1,976 had actually
been released, and 79 of those had subsequently had their parole revoked.
The State indicated further that all of the Mariel Cubans who were
in INS custody as of December 28, 1987 had then had parole reviews, as had
a large number of those who entered INS custody since that time.
In addition, in its March 22, 1999 observations, the State
reiterated that the Cuban Review Plan process was available at regular
intervals to all detained Mariel Cubans and had up to that time resulted
in the release of more than 6,700 of them.
Moreover, the State claims that as of March 22, 1999, every one of
the Mariel Cubans on whose behalf the petition was lodged was paroled into
the United States at some time since his or her arrival on the 1980
boatlift. The State therefore
argues that there is no merit to the claim by the petitioners'
representatives that some of the petitioners have been detained since
Finally, in its March 22, 1999 observations, the State claimed that
as of that date, 252 of the 335 petitioners were not in custody but had
been released or re-released within the State since 1988 under the
immigration parole review procedures for Mariel Cubans.
A further 62 could be or had been repatriated to Cuba under the
1984 repatriation agreement with Cuba and the remaining 21 who were
detained were excludable Mariel Cubans whose repatriation to their country
of nationality had been refused by the Government of Cuba.
Of these, all had been paroled into the U.S. since 1980 and 3 were
at the time approved for immigration parole and were to be released upon
successful completion of the substance abuse program for Mariel Cubans in
Englewood, Colorado and or placement with an appropriate sponsor. 14 of
the remaining 18 had been released or re-released since 1988, some of them
for the third time, and most recently returned to immigration custody
between 1994-1998 after engaging in further unlawful conduct.
As of March 22, 1999, these 14 individuals continued to receive
consideration for further immigration parole in accordance with the
immigration parole review procedures for Mariel Cubans.
The remaining 4 detainees had not been released since 1988.
Information on Individual petitioners
In its October 9, 1987, July 2, 1988 and March 22, 1999
observations, the State provided specific information respecting the
status at these times of 29 of the petitioners.
The State subjected its provision of this information to a caveat,
namely that it did so "in an effort to be informative and to
demonstrate the pitfalls of attempting to second guess discretionary
decisions based on many complex factors" and without prejudice to its
position that the petitioners had failed to assert arguable violations of
the American Declaration or to exhaust domestic remedies.
i. October 9, 1987
The State provided information regarding the following petitioners
in its October 9, 1987 observations:
Jorrin-Alfonso was re-paroled from the Oakdale facility on September 8,
1987 to the Community Relations Service Halfway House in Detroit,
Michigan, where he was then residing.
Perez-Fernandez had, according to the State, admitted to convictions in
Cuba of assault with a deadly weapon and disorderly conduct. Since his
arrival in the United States, he had been the subject of numerous
“incident reports”, including: assaults on INS staff, threatening with
bodily harm, fighting, stealing, refusing to obey orders, encouraging a
work stoppage and unexcused absence from work. In addition, a Public
Health Service psychological evaluation conducted on March 1, 1983
indicated that Mr. Perez-Fernandez suffered from an intermittent explosive
disorder and a passive-aggressive personality disorder. His detention was
reviewed in July 11, 1984 and continued detention was recommended, based
upon his violent behavior. On June 16, 1987, Mr. Perez-Fernandez was
interviewed under the Cuban Review Plan, and again continued detention was
recommended. At the time of its submission, the State indicated that he
would be scheduled for re-interview within one year of his last interview.
July 2, 1988 Observations
The State provided information regarding the following petitioners
in its July 2, 1988 observations:
Casalis-Noy, Sergio Sanchez-Medina and Jorge Cornel-Labrada
inmates were approved for release on parole pursuant to the procedure
under the Cuban Review Plan.
Ferrer-Mazorra was paroled into the U.S. in July 1980. He was subsequently
convicted in 1983 by the State of Illinois on three counts of delivery of
heroin and cocaine and sentenced to two years probation on each count. On
March 21, 1984, Mr. Ferrer-Mazorra was again arrested after allegedly
failing to report to his probation officer for two consecutive months.
Rather than prosecute the parole violation claim, the State asked the INS
to revoke his immigration parole and take him into custody.
Consequently, on March 22, 1984, the INS revoked Mr. Ferrer-Mazorra's
immigration parole based upon his convictions and placed him in
administrative detention. On June 7, 1984, Mr. Ferrer-Mazorra was
interviewed under the Attorney General's Status Review Plan but was not
recommended for parole at that time, based upon his recent criminal
history. He was interviewed again on April 7, 1988 under the Cuban Review
Plan, and at the time of the State's observations had been approved for
release due to his excellent institutional record, the fact that he was
married to a U.S. citizen who could sponsor him, and his credibility and
candor during the interview.
Alfonso-Arenciba was convicted in 1984 of possession of cocaine and
carrying a loaded fire arm, and served a six-month prison term for these
crimes. His subsequent period of criminal parole was then cut short in
December 1984, when the INS revoked his immigration parole based upon his
convictions. Although he had relatives offering to sponsor and employ him,
the review panel was unconvinced of the bona fides of the offer, and,
taking into account his past criminal record, his associations with
narcotics, and the evasiveness of his responses, the panel felt unable to
conclude that he was unlikely to commit any criminal offenses following
his release, and recommended continued detention. The Associate
Commissioner for Enforcement subsequently ordered Mr. Alfonso-Arenciba
continued in detention on November 24, 1987.
its July 2, 1988 observations, the State indicated that Mr.
Gonzalez-Machado was detained at St. Elizabeth's hospital in Washington
D.C. Previously, during an October 26, 1987 interview before an INS panel,
the panel found that he was unable to keep events in sequence, and in
particular responded incoherently to questions about his allegedly having
stabbed a man in December 1982. Consequently, the panel was unable to
conclude that Mr. Gonzalez-Machando was likely to remain non-violent or
unlikely to commit a criminal offense following his release, and the
Associate Commissioner for Enforcement ordered him continued in detention
on November 23, 1987.
Cruz-Montoya was convicted in 1983 of sodomy with a minor under 16 years
of age, oral copulation with a minor under 16, and carrying a loaded
weapon. On January 10, 1985, his immigration parole was revoked due to
these convictions and he was subsequently placed in INS custody. He was
subsequently interviewed by the Cuban Review Panel on November 11, 1987,
and, based on his criminal record and a psychiatric evaluation, the panel
members were not convinced that he would remain non-violent or was
unlikely to commit a criminal offense following his parole. Consequently,
the Associate Commissioner for Enforcement ordered him continued in
detention on November 25, 1987.
Remagne-Herrera was convicted of burglary, grand theft and possession of
cocaine in 1983. His immigration parole was subsequently revoked, and he
was detained at the Atlanta Federal Penitentiary. His record indicated
that he had worked for only three months during his initial immigration
parole, and that he did not avail himself of language or vocational
training while in detention. Following an interview on October 15, 1987,
an INS panel was unable to conclude that he was unlikely to commit any
criminal offenses following his release, and the Associate Commissioner
for Enforcement ordered him continued in detention on November 25, 1987.
Prior-Rodrigues was re-paroled from the Oakdale detention facility on
August 3, 1987 to the Public Health Service Halfway House in Kansas City,
Missouri, where he was then residing.
Prior-Rodriguez's re-parole was, however, subsequently revoked on November
4, 1987 due to his disruptive and abusive behavior at that facility, which
caused the facility to withdraw its sponsorship. The State indicated that
Mr. Prior-Rodriguez suffers from alcoholism, and that his previous period
of parole ended due to his involvement in a fight, which entailed the loss
of an eye for which a special prosthesis had to be fitted, and due to his
unwillingness to continue participating in an alcohol treatment program
that was deemed necessary to his reintegration into the community. Mr.
Prior-Rodriguez was again approved for parole on June 30, 1988 and
attempts were being made at the time of the State's July 2, 1988
observations to arrange an appropriate placement.
March 22, 1999 Observations
169. The State provided information regarding the following petitioners in its March 22, 1999 observations:
Alvarez-Gamez had been detained by INS since 1994. He was last released on
immigration parole by way of a halfway house program in 1994, but violated
the conditions of immigration parole through cocaine use, absconded, and
was subsequently convicted of assault and possession of a controlled
substance. His immigration parole had also previously been revoked in 1988
following his conviction for similar crimes. According to the State, Mr.
Alvarez-Gamez's institutional record since his return to immigration
custody included disciplinary reports for possession of intoxicants and
drugs or drug items.
Pascual Cabrera-Benitez was last released from detention in 1988, but
while paroled was convicted of trespass in 1989, resisting a law
enforcement officer with violence in 1993, and aggravated assault in 1995.
In addition, while in custody he was cited in May 1997 for possessing
contraband and razor blades.
Gallo-Labrada was paroled to a halfway house program in November 1993, but
was removed to county jail after she assaulted a staff member, and was
subsequently transferred to immigration authorities in June 1994. She was
last denied immigration parole in March 1998 after she refused to be
interviewed by a parole review panel.
Gonzalez-Arozarena was released from immigration custody in 1989 to a
halfway house program, from which he absconded after seven months. While
released from immigration custody, he was arrested in 1991 for second
degree burglary, and in 1992 for violating the terms of his release from
criminal custody. Mr. Gonzalez-Arozarena did not return to immigration
custody until 1994.
Gonzalez-Ferrer was returned to immigration custody in September 1997, and
was last paroled to a family sponsor in 1988. In 1994, he was sentenced to
5 years for burglary, resisting arrest and theft, and his record reflects
5 prior arrests between 1991 and 1993 for charges ranging from possession
of cocaine and resisting arrest to aggravated assault with a deadly weapon
and sale, purchase and delivery of cocaine.
Gonzalez-Gonzalez was approved for immigration parole and released to a
halfway house program in Ohio in 1988. 5 months later he was arrested and
sentenced to a year in jail for possession and sale of cocaine. Mr.
Gonzalez-Gonzalez returned to immigration custody in 1989, was again
approved for immigration parole in 1994, and was unsuccessfully released
to a halfway house program in 1994.
Hernandez-Cala was approved for immigration parole in 1988, but was
subsequently arrested for cocaine possession and sentenced to 1 1/2 to 4
years in prison. He was returned to immigration custody in 1994, was again
approved for immigration parole in 1998, and was released to a halfway
house program in Florida. He was removed from the program, however, after
he tested positive for drug use, namely cocaine, and was returned to
immigration custody in September 1998.
Lanz-Terry was last approved for immigration parole by a Department of
Justice review panel in 1990. He was paroled to a halfway house program in
Kansas City, but in 1993 was arrested for second degree assault after he
attacked his wife with a hammer, for which he was sentenced to five years
in prison. He was returned to immigration custody in 1996.
O'Farrill-Lamas was last paroled in 1988 through a halfway house program.
He was arrested in 1989 for a drug trafficking offense and convicted in
1993 of voluntary manslaughter. He has been detained by INS since January
Paz-Landa was scheduled to return to immigration custody in September
1998. He was twice granted immigration parole since 1988, first to an
individual sponsor in February 1988, and again in August 1993 to a halfway
house program. In 1989, he was convicted of burglary of a dwelling with a
knife and grand theft, and in 1994 was sentenced to three years in prison
plus probation for a drug offense.
Rosabal-Ortiz had been detained by the INS since July 1996. He had
previously been paroled from immigration custody in 1988, was briefly
jailed and sentenced to criminal probation in 1992 for burglary, and in
1993 was sentenced to three years for residential robbery and kidnapping.
Sanchez-Mendez had been detained by INS since July 1986. He was last
paroled in 1988, and in 1990 was convicted of grand larceny and related
offenses, unauthorized use of a motor vehicle, and jumping bail.
Subsequently, in 1992 he was convicted of burglary of a dwelling. State
and federal institutional records include infractions for sexual offenses,
fighting, and weapon possession.
Urquiaga-Rodriques was last released from detention in 1990, but while
paroled into the United States he was sentenced to 1 to 3 years for
possession of cocaine in 1991, sentenced to 2 1/2 to 5 years for
possession of heroin in 1994, and arrested in 1995 after he absconded from
a temporary release program. He had been detained by the INS since
September 1997. While in detention, he had been cited for refusals to obey
orders resulting in disruptions of security.
Vergara-Peraza had been in INS custody since 1986. In 1988, he was paroled
through a halfway house program, but his immigration parole was revoked in
1994 after he was convicted and incarcerated for drug trafficking. In
1996, Mr. Vergara-Peraza was again released unsuccessfully to another
halfway house program, and since returning to custody has been reported
for possessing drugs or drug items and gambling.
170. In its March 22, 1999 observations to the Commission, the State also provided information respecting the following four petitioners who, at that time, had not been released from detention since 1988.
Machado-Santana was arrested in 1981 for rape, indecent assault, indecent
exposure, false imprisonment, aggravated assault and simple assault. He
was subsequently convicted in 1983 of rape, aggravated assault and simple
assault, and sentenced to 2 1/2 to 10 years in prison. He was transferred
to immigration custody in 1985. Mr. Machado-Santana has been described as
a “management problem”, and his disciplinary record while detained
reflects 29 incident reports for charges ranging from assault, fighting,
and death threats, to possession of marijuana and possession of
intoxicants. In one incident, he was disciplined for injuring another
detainee whom he assaulted with a pool stick. On four occasions, in 1991,
1992, 1995 and 1996, Mr. Machado-Santana refused to be interviewed by an
immigration parole panel, although he has been reconsidered or afforded
the opportunity of review for parole annually since his return to
Soris-Marcos was paroled into the United States from 1980 to 1987, during
which time he served brief sentences in 1980 for shoplifting and for
possession of marijuana and resisting an officer. In 1981, he was arrested
for aggravated assault, which charge was subsequently dismissed, for
burglary of an occupied residence and assault, and sentenced to one year
for breaking and entering an unoccupied building. In 1982, he was arrested
for sexual assault and burglary, but fled the state of Florida when he was
released. He was a fugitive until 1983, when he was finally arrested for
flight, found guilty of the sexual assault charge and sentenced to 5 years
probation. Mr. Soris-Marcos was subsequently arrested in 1983 for
trespassing and possession of marijuana, and in 1984 for aggravated
assault and possession of a knife. In 1985, he was charged with aggravated
arson and sexual assault and convicted on his plea of arson.
Artilles-Arcia was returned to immigration custody in 1987 following his
conviction in 1985 for a sexual offense against a child. According to the
State, records reflect a prior arrest on similar charges, namely lewd and
lascivious acts involving a child, but there was no disposition. Mr.
Artilles-Arcia was again approved for immigration parole in 1988 but the
decision was ultimately rescinded because no sponsorship or halfway house
program could be found that was willing to accept placement.
Medina-Aguilar had been in INS custody since 1987. In 1986, while he was
paroled into the United States, he was convicted and sentenced to two
years in prison for sexual offenses involving two young children, ages six
and seven years. He has undergone extensive reconsideration for
immigration parole since 1988 but no panel has recommended his release.
The petitioners claim that the State has violated their rights
under Articles I, XVII, XVIII, XXV and XXVI of the American Declaration of
the Rights and Duties of Man. The State is a Member of the Organization of
American States that is not a party to the American Convention on Human
Rights, as provided for in Article 51 of the Commission's Regulations, and
deposited its instrument of ratification of the OAS Charter on June 19,
The events raised in the petitioners' claim occurred subsequent to
the State's ratification of the OAS Charter. The petitioners are natural
persons, and the petitioners’ representatives were authorized under
Article 26 of the Commission's Regulations to lodge the petition on behalf
of the petitioners. The
Commission therefore has jurisdiction ratione temporis and jurisdiction ratione personae to examine this petition.
172. Also in connection with the Commission's competence in this matter, the State has raised the question of whether the petitioners' detentions by the State are subject to the rights prescribed under the American Declaration or are exclusively a matter of state sovereignty over the entry and removal of aliens to and from its territory.
The Commission considers that this issue relates at base to the
jurisdiction ratione materiae
and the jurisdiction ratione loci
of the Commission to interpret and apply the American Declaration in the
circumstances of the complaints raised by the petitioners. Accordingly,
the Commission will address the State's observations in this regard at
this stage of the Commission's analysis.
In this connection, the State has argued that the detention of the
petitioners is not governed by the rights under the American Declaration,
but rather is exclusively a matter of state sovereignty.
The State has argued in this respect that states have absolute
sovereign authority to detain and remove excludable aliens, and that this
authority is not restricted by or otherwise the subject of rights or
obligations under the American Declaration. The State refers, for example,
to instances of state practice, such as the detention of Vietnamese
refugees in Hong Kong, as evidence of a broad recognition of the right on
the part of state to control the presence of aliens in its territory. It
also refers to international authorities, such as the Executive Committee
of the U.N. High Commissioner for Refugees, which are said to recognize a
wide and flexible set of reasons that might justify detention even in the
context of refugees under the U.N. Convention for the Protection of
Correspondingly, the State contends that the petitioners, and
aliens generally who are "excludable" under U.S. law, have no
substantive rights under international law to be at liberty in U.S.
territory pending their deportation, and correspondingly cannot be said to
have a right to be free from detention, nor can they be said to have any
procedural rights respecting their detention, under the American
Declaration or otherwise. More particularly, the State claims that there
is nothing in the provisions of the American Declaration that provides
aliens with the right to be at liberty in any country that he or she
chooses or to any country to which his government unlawfully expels him or
that prescribes the modalities of detention of aliens such as the Mariel
Cubans, and therefore suggests that nothing in the American Declaration
gives rise to a right that the State could be said to have violated by
detaining the petitioners in this case.
The State claims in particular that neither Article XXV nor Article
XXVI of the American Declaration appear to contemplate proceedings of a
non-criminal nature, such as those governing the detention of aliens due
to their immigration status, and therefore that these provisions are
inapplicable in the petitioners' circumstances.
In addressing this first issue, the Commission accepts that states
have historically been afforded considerable discretion under
international law to control the entry of aliens into their territory. This does not mean, however, that this discretion need not be
exercised in conformity with states' international human rights
obligations. Indeed, the
Commission considers that the State's assertions on this first issue fail
to appreciate the fundamental nature and scope of human rights protections
provided for in international instruments such as the American
In particular, the American Declaration, as a modern human rights
instrument, must be interpreted and applied in such a way as to protect
the basic rights of individual human beings irrespective of their
nationality, both against the State of their nationality and all other
States for which the instrument constitutes a source of international
This basic precept in turn is based upon the fundamental premise
that human rights protections are derived from the attributes of a
person’s personality and by virtue of the fact that he or she is a human
being, and not because he or she is the citizen of a particular State.
This principle is explicitly recognized in the preamble to the
American Declaration, which declares that the "American States have
on repeated occasions recognized that the essential rights of man are not
derived from the fact that he is a national of a certain state, but are
based upon attributes of his human personality."
Other provisions of the American Declaration similarly reflect this basic
tenet, including in particular Article II, which provides that the rights
and duties under the Declaration apply to all persons "without
distinction as to race, sex, language, creed or any other factor",
and Article XVII, which specifically provides for the right of every
person "to be recognized everywhere as a person having rights and
obligations, and to enjoy basic civil rights."
It is evident that these basic human rights protections under the
Declaration, as with international human rights protections generally,
constitute obligations that states of the Americas, including the United
States, must guarantee to all persons within their authority and control
and are not dependent for their application upon such factors as a
person's citizenship, nationality or any other factor, including
immigration status. It is notable in this regard that one of the
objectives in formulating the Declaration was to assure as fundamental the
“equal protection of the law to nationals and aliens alike in respect to
the rights set forth in the Declaration.”
Contrary to this construction of the Declaration, however, the
State appears to suggest in its proposed interpretations of Articles I,
XVII, XXV and XXVI of the Declaration that the Commission must find
language in the American Declaration explicitly extending the application
of its provisions to persons, such as the petitioners, who are deemed
under a particular state's domestic law as not entitled to be present in
the state’s territory notwithstanding that the that the individual may
in fact be present in the territory of or otherwise under the authority
and control of that state.
The Commission considers, however, that the language of the
Declaration, as well as prevailing international human rights principles,
compel the opposite conclusion: that OAS Member States are obliged to
guarantee the rights under the Declaration to all individuals falling
within their authority and control, with the onus falling upon the State
to prove the existence of a provision or permissible reservation
explicitly limiting or excluding the application of some or all of the
provisions of the instrument to a particular class of individuals, such as
No such provision or reservation has been identified or proven by the
State in the present case.
There is no question based upon the record in this case that as a
matter of fact, the petitioners, and the Mariel Cubans generally, have
fallen fully within the State’s authority and control. Not only have
they been physically present within U.S. territory since 1980, they have
been the subject of extensive judicial and administrative proceedings
within the State’s justice system, paroled into the general U.S.
population, and have been subjected to detention at various facilities
throughout the State's territory. It is therefore clear that the State is
obliged to afford the petitioners the rights provided for under the
American Declaration, including those rights regulating when and under
what conditions the State may deprive persons of their liberty.
In the interests of completeness, the Commission also wishes to
recall the fundamental principle in international law according to which
states may not invoke the provisions of their internal law as
justification for their failure to perform a treaty.
As a consequence of this principle, the fact that the courts in the
United States may consider "excludable aliens" such as the
petitioners in the present case as having never entered the State's
territory for the purposes of domestic law cannot serve as a justification
for any failure on the part of the State to guarantee the rights under the
Declaration to such persons if they have, as a factual matter, fallen
within the State's authority and control.
Consequently, the Commission considers that the rights prescribed
under the American Declaration apply to the petitioners, and that the
State became the guarantor of those rights when the petitioners came
within the State's authority and control in 1980. The State's treatment of
the petitioners, including their detention, is therefore not exempt from,
but rather must be in accord with, the provisions of the Declaration.
This is not to say that the immigration status of individuals such
as the petitioners might not constitute an appropriate factor to consider
in evaluating the manner in which the State may properly give effect to
the rights under the Declaration; it may not, however, serve to exempt the
petitioners from the fundamental protections under the Declaration.
Accordingly, the Commission is competent to address the
petitioners' complaints, which competence includes jurisdiction ratione materiae and jurisdiction ratione
1. Duplication of
The petitioners have acknowledged that a communication was filed
with the United Nations pursuant to ECOSOC Resolution 1503 (XLVIII)
in May 1986, in relation to the situation of the Mariel Cubans.
They claim, however, that this should not be considered to render
their claim before the Commission inadmissible, for three reasons: the
communication was filed by human rights and religious organizations other
than the petitioners; the U.N. communication applies to a broader
population of the Mariel Cubans than the petition before the Commission;
and the U.N. procedure would not involve an examination of the specific
facts stipulated in the petition before the Commission and would not lead
to an effective settlement of the violations denounced.
The State has not disputed the admissibility of the petition on the
ground of duplicity. Indeed, in its January 19, 1988 observations, the
State indicated that the U.N. communication relating to the Mariel Cubans
was ultimately not referred to the Sub-commission on Prevention of
Discrimination and Protection of Minorities by its Working Group on
Given the State's indication that the ECOSOC Resolution 1503
communication relating to the Mariel Cubans ultimately did not proceed
through the United Nations mechanism, the Commission finds that the
subject of the petitioners' petition cannot be said to be pending
settlement in another procedure under an international governmental
organization of which the State concerned is a member, or that it
essentially duplicates a petition pending or already examined and settled
by another intergovernmental organization of which the State is a member.
Accordingly, the Commission finds no bar to the admissibility of the
petition under Article 39 of the Commission's Regulations.
2. Exhaustion of
187. The petitioners have argued that they have exhausted their domestic remedies, as required under Article 37 of the Commission's Regulations. In particular, the petitioners indicate that they have pursued remedies before the domestic courts in the United States, including a petition for a writ of certiorari before the U.S. Supreme Court, which was dismissed on October 14, 1986. The petitioners have argued further that applications for writs of habeas corpus do not constitute effective domestic remedies for the detention of the Mariel Cubans, because the U.S. federal courts have determined that excludable aliens are not entitled to protection under the Fifth and Sixth amendments to the U.S. Constitution and therefore that the Executive may detain the Mariel Cubans indefinitely. Similarly, the petitioners claim that review of their cases under the Cuban Review Plan does not constitute an effective domestic remedy, because the procedures under the Plan fall below the minimum requirements of due process under the American Declaration and under international law.
The State has not denied that the petitioners have pursued
applications for writs of habeas corpus and appeals therefrom without
success, up to and including certiorari applications before the U.S.
Supreme Court, although it has disputed the petitioners’
characterization of the grounds upon which the courts have denied their
habeas applications. The
State has, however, argued that domestic remedies remain for the
petitioners to exhaust, in light of the fact that the petitioners have in
the past and continue to benefit from regular reviews under the Status and
Cuban Review Plans.
Based upon the parties’ observations, the Commission finds that
the petitioners have pursued and exhausted domestic remedies before the
U.S. courts to the extent that they have been available.
With respect to the State's objection to the admissibility of the
case based upon the potential review of the petitioners' cases under the
Cuban Review Plan, the Commission observes that one of the central issues
raised by the petitioners on the merits of the present case is whether the
Cuban Review Plan and its predecessor, the Status Review Plan, constitute
adequate mechanisms for reviewing the legality of the petitioners'
detentions, for the purposes of Articles I, II, XVII, XVIII, XXV and XXVI
of the American Declaration. Given the interplay between the adequacy of
these administrative procedures for the purposes of exhaustion of domestic
remedies and the very violation of human rights at issue in the case, the
Commission considers that the question of the prior exhaustion of these
remedies must be taken up with the merits of the case.
Accordingly, the Commission will join this aspect of the exhaustion of
domestic remedies question to the merits of the case.
The Commission therefore finds that the petitioners' petition is
not barred by Article 37 of the Commission's Regulations, subject to its
evaluation under the American Declaration of the State's procedures in the
Status Review Plan and the Cuban Review Plan in the merits of the case.
The record in this case indicates that the petitioners' petition
was lodged with the Commission on April 10, 1987, and therefore within six
months from the October 14, 1986 dismissal by the U.S. Supreme Court of
the petition for the writ of certiorari in the Ferrer-Mazzora
v. Meese matter. The State has not contested the admissibility of the
petition on the ground of timeliness. Accordingly, the Commission finds
that the petition is not barred from consideration under Article 38 of the
4. Colorable Claim
The State has urged the Commission to find the petitioners'
petition to be inadmissible, for the reason that it does not state facts
that constitute a violation of rights referred to in the American
Declaration. Having reviewed
the extensive observations filed on behalf of both parties in the present
case relating to compliance with Articles I, II, XVII, XVIII, XXV and XXVI
of the American Declaration, as summarized in Part III of this Report, and
given the Commission's findings respecting its competence to entertain the
case, the Commission cannot conclude that the petition is manifestly
groundless or inadmissible, on the basis of any statements made by the
petitioners or the State or otherwise. Consequently, the Commission does
not consider the petitioners' petition to be inadmissible under Article 41
of the Commission's Regulations.
In accordance with the foregoing analysis of the requirements of
the applicable provisions of the Commission’s Regulations, the
Commission decides to declare as admissible the claims presented by the
petitioners with respect to Articles I, II, XVII, XVIII, XXV and XXVI of
the Declaration, and to proceed to examine the merits of the case.
1. Summary of
Issues and Factual Circumstances
As indicated previously, the parties' observations in this case
have raised two principal issues: whether the detentions of the
petitioners by the State are subject to the rights prescribed under the
American Declaration; and if so, whether the State has complied with the
rights under the Declaration in the manner in which it has detained the
In Part IV(A) of this report, the Commission answered the first
issue in the affirmative, clarifying that the State became the guarantor
of the petitioners' rights under the Declaration when the petitioners came
within the State's authority and control in 1980.
Prior to addressing the second issue noted above, the Commission
first considers it necessary to articulate its understanding, based upon
the record in the case, of the circumstances under which the petitioners
have been detained by the State, including in particular the lengths of
time for which and the general conditions under which they appear to have
198. In this regard, with the exception of limited information provided by the State in relation to 29 petitioners, the Commission has not been provided with clear or consistent information from either the petitioners' representatives or the State as to precise circumstances of release and detention of each of the 335 petitioners alleged to have been included in the initial petition. Consequently, in examining the merits of the present case, the Commission has found it necessary to rely upon information pertaining to the detention of the 29 individuals referred to above, as well as information provided by the State and the petitioners pertaining to the detention of the Mariel Cubans more generally, even if that information might not necessarily be shown to pertain specifically to one of the petitioners. This latter information includes in particular a January 1995 Report prepared by the U.S. Bureau of Prisons on the "Detention of Mariel Cubans", which summarized generally the history and status of the population of detained Mariel Cubans at that point in time. This information is summarized below.
199. Between April and September 1980, approximately 125,000 Cubans arrived in the United States as part of the Mariel "Freedom Flotilla." Although most of the Mariel Cubans were not properly documented in accordance with U.S. immigration law, approximately 117,000 were released essentially immediately into the broader U.S. community. The remaining 8,000 Mariel Cubans were sent to resettlement camps for immigration screening, and when this process was completed in mid-1981, approximately 6,200 of the 8,000 had been released. The remaining 1,800 individuals continued to be detained, because they had been disruptive in resettlement camps, because of their suspected or admitted criminal background that would render them ineligible for admission to the United States under domestic law, or because they had serious mental or psychiatric problems. It appears from the State's observations that decisions respecting who to detain, as well as who to release, was at this stage based essentially upon what the individual Cubans told U.S. immigration officials about their backgrounds, as the Cuban Government provided the U.S. with no records on the Mariel Cubans.
Id., Section 212.13(h).
State’s July 2, 1988 Observations, p. 10.
State's January 19, 1988 Observations, p. 8, citing,
inter alia, 1977 Annual Report of the IACHR, at 86-88, 1 G. Schwarzenberger,
International Law 360-61 (3d ed. 1957).
Id., p. 9, citing
Study of the Right of Everyone to be Free from Arbitrary Arrest, Detention,
and Exile, U.N. Doc. E/CN.4/826/Rev.1 (1964), at 180-81, paras. 741, 742.
Id., p. 10, citing Note on Accession to International Instruments and the
Detention of Refugees and Asylum-Seekers (submitted by the High
Commissioner) at 12, EC/SCP/44 (1986), Report of the Sub-Committee of the
Whole on International Protection (11th mtg.) at 78-9,
A/AC.96/685 (1986), and Report of the Thirty-Seventh Session of the
Executive Committee of the High Commissioner's Programme at 29-30,
Id., p. 12.
European Convention, supra, Article 5(1)(g) (providing:
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: (g) 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.
State's January 19, 1988 Observations, p. 13, citing
Eur. Comm. H.R., Caprino case, 21 Y.B. Eur. Conv. 284, 290.
Id., pp. 14-15, citing,
inter alia, North Sea Continental Shelf (FRG v. Denmark, Netherlands)
1969 I.C.J. 1.
Id., p. 15, citing
Universal Declaration of Human Rights, European Convention on Human Rights,
U.N. Convention on the Protection of Refugees, and indicating that none of
these instruments provides for a right of an alien to enter a country or
prohibit their detention for immigration control purposes, and indeed, that
one, the European Convention, explicitly authorizes the right to detain in
order to exclude.
State's January 19, 1988 Observations, p. 19.
The State observes in this regard that the only authority cited by the
petitioners for this proposition is a note from the UNHCR indicating that
the detention of refugees and asylum seekers should not be unduly prolonged.
Report on the Thirty-Seventh Session of the Executive Committee of the High
Commissioner's Programme at 29-30, A/AC.96/688 (1986).
Garcia-Mir v. Smith, 766 F.2d
1478, 1484 (11th Cir., 1985) (finding that “deportable” aliens, unlike
“excludable” aliens, have succeeded in either legally or illegally
entering the U.S. and that “[e]xcludable aliens have fewer rights than do
deportable aliens, and those seeking initial admission to this country have
the fewest of all.”).
State's January 19, 1988 Observations, p. 21, citing
European Commission on Human Rights, Case 8081/70, reported
in 1 Digest of Strasbourg Case L. Relating to the European Convention on
Human Rights 437 (1984).
State’s March 22, 1999 Observations, p. 14.
The State also provided information respecting the status of petitioners
Pedro Prior-Rodriguez and Rafael Ferrer-Mazorra, in both its October 9, 1987
observations and in its July 2, 1988 observations. The information on these
two petitioners is therefore discussed in the section relating to the
State’s July 2, 1988 observations.
The State indicated in this regard that for budgetary and other reasons,
U.S. states sometimes request the INS to take custody over aliens who have
committed serious crimes, even though the individual's state sentence or
period of criminal parole have not yet been served. The INS also frequently
places aliens in immigration detention after completion of their criminal
sentence or parole.
The Inter-American Court of Human Rights and this Commission have previously
determined that the American Declaration of the Rights and Duties of Man is
a source of international obligation for the United States and other OAS
Member States that are not parties to the American Convention on Human
Rights, as a consequence of Articles 3, 16, 51, 112, and 150 of the OAS
Charter. See I/A Court H.R.,
Advisory Opinion OC-10/89 Interpretation
of the American Declaration of the Rights and Duties of Man Within the
Framework of Article 64 of the American Convention on Human Rights, July
14, 1989, Ser. A
Nº 10 (1989), paras. 35-45;
I/A Comm. H.R., James Terry Roach and Jay Pinkerton v. United States, Case 9647,
Res. 3/87, 22 September 1987, Annual Report 1986-87, paras. 46-49. See
also Statute of the Inter-American Commission on Human Rights, Art. 20.
I/A Court H.R., Advisory Opinion OC-2/82
of September 24, 1982, The Effect of Reservations on the Entry into
Force of the American Convention on Human Rights (Arts. 74 and 75), Ser. A
Nº 2 (1982), para. 29
(holding that the object and purpose of modern human rights treaties is to
protect the basic rights of individual human beings "irrespective of
their nationality, both against the State of their nationality and all other
See American Declaration, Preamble.
See similarly Charter of the
Organization of American States, Article 3(l) (reaffirming among the
principles under the Charter for the American States the proclamation of the
"fundamental rights of the individual without distinction as to race,
nationality, creed or sex.").
The Commission has specifically held in the context of the American
Declaration that each American State is obliged to uphold the protected
rights of any person subject to its jurisdiction, and that, "[i]n
principle, the inquiry turns not on the presumed victim's nationality or
presence within a particular geographic area, but on whether, under the
specific circumstances, the State observed the rights of a person subject to
its authority and control." See
IACHR, Case 10.951, Annual Report of the IACHR 1999, p. 1283, para. 37
(hereinafter the "Coard Case"). See
similarly International Covenant on Civil and Political Rights, Art.
2(1) (requiring each State Party to the Covenant to "respect and to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status"); American Convention on Human Rights, supra,
Art. 1(1) (specifying that the States Parties to the Convention
"undertake to respect the rights and freedoms recognized herein and to
ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms"); European Convention on Human
Rights, supra, Article 1 (providing that the High Contracting Parties
"shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section 1 of this
Convention"); Eur. Comm. H.R., Cyprus v. Turkey, 18 Y.B. Eur. Conv.
Hum. Rgts. 83 (1975) at 118 (finding in respect of Article 1 of the European
Convention on Human Rights that "[i]t is clear from the language, in
particular of the French text, and the object of this article, and from the
purpose of the Convention as a whole, that the High Contracting Parties are
bound to secure the said rights and freedoms to all persons within their
actual authority and responsibility, whether that authority is exercised
within their own territory or abroad."). See
also Body of Principles for the Protection of all Persons Under Any Form
of Detention or Imprisonment, Adopted by U.N. General Assembly Resolution.
43/173 (9 December 1988), A/RES/43/173, 76th plen. mtg.,
Principle 5(1) (providing that “these principles shall be applied to all
persons within the territory of any given State, without distinction of any
kind, such as race, colour, sex, language, religion or religious belief,
political or other opinion, national, ethnic or social origin, property,
birth or other status.”).
See Inter-American Juridical
Committee, “Draft Declaration of the International Rights and Duties of
Man and Accompanying Report” (1946), p. 55.
Article 5 of the European Convention on Human Rights, for example,
specifically prescribes the unauthorized entry of a person into a High
Contracting Party or the deportation or extradition of a person as
circumstances which may justify the deprivation of a person's liberty. It
does not, however, exempt individuals in these circumstances from protection
under the Convention. To the contrary, the European Court has specifically
acknowledged that, while State Parties have a right to control aliens' entry
into and residence in their territory, this right might be exercised in
accordance with the provisions of the Convention, including Article 5 (art
5). Amuur Case, supra, para. 41.
Vienna Convention on the Law of Treaties, Art. 27 (providing that a party to
a treaty "may not invoke the provisions of its internal law as
justification for its failure to perform a treaty."). See
also I/A. Court H.R., International Responsibility for the Promulgation
and Enforcement of Laws in Violation of the Convention (Articles 1 and 2 of
the American Convention on Human Rights), Advisory Opinion OC-14/94 of 9
December 1994, Ser. A
Nº 14 (1994), para. 35
(recognizing that "[p]ursuant to international law, all obligations
imposed by it must be fulfilled in good faith; domestic law may not be
invoked to justify nonfulfillment. These rules may be deemed to be general
principles of law and have been applied by the Permanent Court of
International Justice and the International Court of Justice even in cases
involving constitutional provisions.").
U.N. Economic and Social Council, Resolution 1503 (XLVIII), 1693rd
Plenary Meeting (27 May 1970), "Procedure for dealing with
communications relating to violations of human rights and fundamental
freedoms." The Resolution authorizes the Sub-Commission on Prevention
of Discrimination and Protection of Minorities to appoint a Working Group
consisting of not more than five of its members to meet once a year in
private meetings to consider all communications , including replies of
Governments thereon, received by the Secretary-General under Council
resolution 728(XXVIII) of 30 July 1959. The purpose of this review is to
bring to the attention of the Sub-Commission those communications, together
with replies of Governments, if any, which appear to reveal a
"consistent pattern of gross and reliably attested violations of human
rights and fundamental freedoms within the terms of reference of the
Sub-Commission." If a particular situation is referred by the Working
Group to the Sub-Commission, it may be made the subject of a study by the
Commission and a report and recommendations thereon to the Council in
accordance with paragraph 3 of Council resolution 1235(XLII), or may be made
the subject of an investigation by an ad hoc committee to be appointed by
the Commission. The latter approach can be taken only with the express
consent of the State concerned and conducted in "constant cooperation
with that State and under conditions determined by agreement with it."
State’s January 19, 1988 Observations, p. 12.
See similarly I/A Court H.R.,
Velasquez Rodriguez Case, Preliminary Objections, Judgment of June 26, 1989,
Nº 1 (1994), para. 94.