context: The court agrees with Petitioner that in the absence of any post-Clark modifications to the applicable regulations, the Cerda Memorandum provides no legal footing for Respondent; however, the procedure prescribed by the memorandum is consistent with the few cases decided after Clark that have addressed the continued detention of Mariel Cubans.
citation_a.signal: see also
citation_a.identifier: 412 F.3d 1088, 1089
citation_a.parenthetical: noting that Zadvydas and Clark "invite doubt as to the constitutionality of the current Cuban Review Plan" under SS 212.12
citation_a.sentence: See Castro-Morales v. Ebbert, 331 Fed.Appx. 191, 192 (3rd Cir.2009) (petitioner initially detained under 8 C.F.R. § 212.12, and detention continued, post-Clark, under 8 C.F.R. § 241.14(f)); Sanchez v. Attorney General, U.S., 146 Fed.Appx. 547, 548 (3rd Cir.2005) (petitioner detained, pre-Clark, pursuant to 8 C.F.R. § 212.12, and released, post-Clark, after a “repatriation review” pursuant to 8 C.F.R. § 241.13 determined “no likelihood of removal and that petitioner is not a special category alien”); see also Armentero v. I.N.S., 412 F.3d 1088, 1089 (9th Cir.2005) (Ferguson, J., concurring) (noting that Zadvydas and Clark “invite doubt as to the constitutionality of the current Cuban Review Plan” under § 212.12). In fact, there are no reported cases in the five-year period since Clark was decided upholding the continued detention of Mariel Cubans under 8 C.F.R. § 212.12. While this is undoubtedly dúe, in part, to the fact that Clark mandated the release of most Mariel Cubans then-remaining in detention, it is also unquestionably true that Clark removed the distinctions among the three categories of aliens identified in 8 U.S.C. § 1231(a)(6), at least insofar as post-removal order detention is concerned. Those distinctions appear to have served the basis for the separate treatment of Mariel Cubans under § 212.12, and that basis is no longer viable.
citation_b.signal: see
citation_b.identifier: 331 Fed.Appx. 191, 192
citation_b.parenthetical: petitioner initially detained under 8 C.F.R. SS 212.12, and detention continued, post-Clark, under 8 C.F.R. SS 241.14(f
citation_b.sentence: See Castro-Morales v. Ebbert, 331 Fed.Appx. 191, 192 (3rd Cir.2009) (petitioner initially detained under 8 C.F.R. § 212.12, and detention continued, post-Clark, under 8 C.F.R. § 241.14(f)); Sanchez v. Attorney General, U.S., 146 Fed.Appx. 547, 548 (3rd Cir.2005) (petitioner detained, pre-Clark, pursuant to 8 C.F.R. § 212.12, and released, post-Clark, after a “repatriation review” pursuant to 8 C.F.R. § 241.13 determined “no likelihood of removal and that petitioner is not a special category alien”); see also Armentero v. I.N.S., 412 F.3d 1088, 1089 (9th Cir.2005) (Ferguson, J., concurring) (noting that Zadvydas and Clark “invite doubt as to the constitutionality of the current Cuban Review Plan” under § 212.12). In fact, there are no reported cases in the five-year period since Clark was decided upholding the continued detention of Mariel Cubans under 8 C.F.R. § 212.12. While this is undoubtedly dúe, in part, to the fact that Clark mandated the release of most Mariel Cubans then-remaining in detention, it is also unquestionably true that Clark removed the distinctions among the three categories of aliens identified in 8 U.S.C. § 1231(a)(6), at least insofar as post-removal order detention is concerned. Those distinctions appear to have served the basis for the separate treatment of Mariel Cubans under § 212.12, and that basis is no longer viable.