Gonzalez-Monterrey v. BICE

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 14, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20860 Summary Calendar

EMILIO GONZALEZ-MONTERREY,

Petitioner-Appellant,

versus

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas (H-01-CV-3014) --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Emilio Gonzalez-Monterrey (“Gonzalez”),

immigration detainee number A24787029, appeals the district court’s

denial of his 21 U.S.C. § 2241 habeas petition challenging the

right of the Immigration and Naturalization Service to detain him

indefinitely in light of the Supreme Court decision in Zadvydas v.

Davis, 533 U.S. 678 (2001). Gonzalez is an excludable alien who is

a Cuban national.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. In Zadvydas, the Supreme Court set up a framework in which

a deportable alien could establish the unreasonableness of his

continued detention and obtain his release, albeit supervised, in a

habeas corpus proceeding under 28 U.S.C. § 2241. 533 U.S. at 701.

Gonzalez’s argument that Zadvydas should apply equally to

excludable aliens like himself is foreclosed by our decision in

Rios v. INS, ___ F.3d ___ (5th Cir. Jan. 28, 2003, No. 02-40766),

2003 WL 734159 at *1. Gonzalez’s petition is governed by our

holding in Gisbert v. U.S. Atty. Gen., 988 F.2d 1437, 1440-47 (5th

Cir.), amended by Gisbert v. U.S. Atty. Gen., 997 F.2d 1122 (5th

Cir. 1993), that there are no time limits on the detention of

excluded aliens who have been denied entry. See Rios, 2003 WL

734159 at *1. The district court did not err in denying the

petition.

AFFIRMED.