Posada Update

The deportation hearing for Luis Posada Carriles took yet another fascinating turn yesterday when Mr. Posada withdrew his request for asylum in the United States.^[1] The goal for Mr. Posada at this point seems to be merely preventing his return to Venezuela, where he maintains he will be tortured.^[2]

Mr. Posada’s attorney, Matthew Archambeault, told Immigration Judge Abbott that Posada withdrew his asylum request to avoid embarrassing the US government, because having to explain some aspects of Mr. Posada’s background “may step in areas sensitive to the US government and other … governments.”^[3]

Venezuela is thought to be where Mr. Posada will be deported, but lawyers for the DHS have requested that they receive more information before they decide whether to oppose that decision.^[4] A hearing for that determination is scheduled for September 26.^[5]

The strategy now is to resist being sent to Venezuela by finding a third country to which Mr. Posada could be deported.^[6]

In the event that a suitable country cannot be found, Mr. Posada cannot be detained indefinitely. In the 2001 US Supreme Court case Zadvydas v. Davis,^[7] two individuals were ordered to be deported but a suitable country could not be found.^[8] They were then kept in detention beyond the 90-day period authorized for removal.^[9] 8 U.S.C. § 1231(a)(6) states that an alien which cannot be deported, and can’t be granted asylum, can be detained beyond the removal period. However, the Supreme Court held that the statute “read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States. It does not permit indefinite detention.”^[10]

The ruling was explained a little more in the 2005 Supreme Court case Clark v. Martinez.^[11] Martinez stated that the question was whether the holding in Zadvydas, that an alien detained beyond a reasonable time might be eligible for conditional release, could apply to detainees who had been ruled inadmissible under 8 U.S.C. § 1182.^[12] Mr. Posada might fall under this category.^[13] The court held that the answer “must be yes.”^[14]

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[1] Alicia Caldwell, Cuban Militant Withdraws Request for Asylum, Associated Press, Aug. 31, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] 533 U.S. 678 (2001).
[8] Id. at 684-86.
[9] Id.
[10] Id. at 689.
[11] 125 S. Ct. 716 (2005).
[12] Id. at 722.
[13] See 8 U.S.C. § 1182(a)(3)(B)(i)(I) (anyone who has engaged in terrorist activity is inadmissible).
[14] Martinez at 722.