Daniel Benitez, a Mariel refugee in indefinite detention, wants the U.S. Supreme Court to order his release.

BY ALFONSO CHARDY

DENVER - Daniel Benitez may well become a figure in U.S. legal history when the Supreme Court rules on his case this year.

Benitez, a former Miami resident, is one of two cases the high court will review in October to decide whether immigration authorities can detain foreign nationals indefinitely, including Cuban Mariel inmates whose government refuses to take them back.

Benitez, 46, sums up his predicament simply.

''Let me go free or send me back to Cuba,'' he said in a recent interview at a federal prison near Denver.

Benitez argued in his October petition to the Supreme Court that there is no valid reason to keep him in detention because he has served his sentence and the high court itself has ruled against indefinite detention.

If the justices agree, the decision will have a wide impact -- likely resulting in the immediate release of about 900 Mariel detainees at various federal facilities nationwide.

''This case presents an opportunity for the court to redress a long standing injustice,'' said Judy Rabinovitz of the American Civil Liberties Union who has been at the forefront of the issue.

Though the Supreme Court ruled in 2001 that foreign nationals cannot be detained indefinitely, it did not resolve the question of whether Mariel detainees like Benitez can go free. The reason: the court said foreigners who had technically not gained entry into the country ''would present a very different question'' from those lawfully admitted or snuck in. Mariel detainees are considered stopped at the border, thus unadmitted.

The Bush administration interpreted the Supreme Court ruling as exempting Mariel detainees, but not everyone agrees with that analysis. Since the ruling, federal appeals courts have been split, some favoring release; others not.

2 DIFFERENT CASES

The high court chose two radically different Mariel cases to settle the issue: Benitez, whose appeals court in Atlanta refused release, and Sergio Suarez Martinez, whose appeals court in San Francisco ordered supervised release. Benitez's rap sheet is long. He was first convicted in 1983 and was sentenced to three years probation for grand theft in Dade County. He got convicted again in 1993, also in Dade, for armed robbery, aggravated battery and unlawful possession of a firearm. He was sentenced to 20 years, but served eight.

SWEEPING LAW

But when Benitez was about to be released early in 2001, immigration authorities took him into custody. A sweeping 1996 law authorizes detention of foreign nationals convicted of felonies pending deportation -- even if the conviction occurred prior to passage of the law.

He started writing legal briefs, asking federal courts to release him, after the Supreme Court ruled that foreign nationals could not be detained indefinitely.

A North Florida federal court rejected his petition. He appealed to the 11th Circuit Court of Appeals in Atlanta, which appointed Jacksonville attorney John Mills to the case. But the 11th Circuit also refused to release him.

Mills then appealed to the Supreme Court asking that it clarify whether its 2001 ruling applies to foreign nationals stopped at the border.

''The statute that Congress enacted to authorize detention of an alien after removal only authorizes temporary detention,'' Mills said. ``The only question is whether the same statute should be interpreted more harshly for Mariel Cubans.''

Benitez was at a federal facility in Terre Haute, Ind., when the Supreme Court agreed to take his case. ''I was watching TV and heard my name,'' Benitez recalled, his eyes filling with tears. ``I was so excited that I cried.''

Benitez has spent time in various federal prisons -- including a medium-security facility near Denver, where he talked about his case, and his life, during a two-hour interview. Divorced, he has no children.

Born in Havana in 1958, Benitez was largely raised by his mother after his father died of a heart attack when he was 10. At age 15, he said, Cuban police arrested him after he and a friend held up a market, stealing money, chickens and a sack of rice.

''My family needed food,'' Benitez says. ``I wanted to bring food to the house. In Cuba, we didn't get anything from the government.''

JEHOVAH'S WITNESS

He said the government denied assistance to his family because his mother is a Jehovah's Witness. Many followers of the religion in Cuba have complained of persecution.

Benitez was still in jail when Mariel happened in 1980. Benitez, then 22, and other prisoners were put aboard a boat whose captain had gone to Mariel to pick up relatives. The Cuban government loaded thousands of criminals on the boats.

Benitez said he fondly recalled his first memory of Key West -- a speedboat whizzing by with a topless woman waving at the refugees.

''It looked like paradise,'' said Benitez. ``Then we were given a speech by a military officer who said `welcome to the United States, the land of the free where you will be free.''

The day after his arrival, Benitez was shipped to the Krome processing center, where a relative signed him out. A week later he had a job as a busboy at restaurant. His family now wants him home.

''We are hoping the Supreme Court will order his release because there is no greater violation of human rights than to keep someone in detention when he has served his sentence,'' said Roberto Benitez, 52, Daniel's older brother in Hialeah.

''He's a very talented man,'' said Emilio de la Cal, a Miami attorney who represented Benitez in South Florida and whose wife is a cousin of Benitez. ``He came from Cuba, with no schooling, and no English and now he speaks English and writes very well.''

Benitez says he regrets having committed crimes, but should not be kept detained forever.

''I made mistakes,'' he said. ``But I have paid my debt to society and I should be free.''