Rios v. INS

324 F.3d 296, 2003 WL 734159

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 5, 2003
• Docket: 02-40766
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40766 Summary Calendar

MARIO JIMENEZ RIOS,

Petitioner-Appellant,

versus

IMMIGRATION AND NATURALIZATION SERVICE; JONATHON DOBRE, Warden,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas -------------------- January 28, 2003

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:

Mario Jimenez Rios, an excludable alien who arrived in the

United States in the 1980 Mariel boatlift from Cuba, appeals the

denial of his 28 U.S.C. § 2241 habeas corpus petition, in which

he challenges his continued detention by the Immigration and

Naturalization Service ("INS"). INS took Rios into custody in

1998 following his state conviction and sentence for attempted

indecency with a child, the latest conviction in his extensive

criminal history within the United States. The record shows that

he has received parole review but has been repeatedly denied No. 02-40766 -2-

release on account of his criminal history and disciplinary

record.

Relying on Zadvydas v. Davis, 533 U.S. 678 (2001), Rios

contends that his continued detention violates his constitutional

rights. The district court did not err in determining that Rios

is not entitled to relief. See Gisbert v. U.S. Atty. Gen., 988

F.2d 1437, 1439 (5th Cir. 1993), amended by Gisbert v. U.S. Atty.

Gen., 997 F.2d 1122 (5th Cir. 1993). Although Zadvydas held that

a deportable alien may contest his continued detention in a 28

U.S.C. § 2241 proceeding, the Court distinguished the status of

deportable aliens from that of excludable aliens like Rios. See

Zadvydas, 533 U.S. at 682, 692-94. Rios's petition is governed

by Gisbert.

AFFIRMED.