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CONCEIRO v. MARKS

June 25, 1973;

Carlos CONCEIRO, Petitioner,
v.
Sol MARKS, Respondent


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a petition for the writ of habeas corpus (28 U.S.C. § 2241) by Conceiro, an alien; Conceiro is a Cuban national.

 Conceiro arrived from Rome at Kennedy Airport in New York City on December 17, 1972. He had no United States visa of any kind.

 A special inquiry officer, after an inquiry proceeding which ended on December 28, 1972, made an order of exclusion on that date. 8 U.S.C. § 1226(a). It was an "oral decision" but a written transcript was made and signed. This order, as will later appear, has become final. 8 U.S.C. § 1226(c).

 Judicial review of an order of exclusion is obtained by habeas corpus proceedings. 8 U.S.C. § 1105a(b).

 Conceiro is plainly excludable as an immigrant who has no visa, immigrant visa or otherwise. 8 U.S.C. § 1182(a)(20). This was conceded by him at the inquiry (SM 30) and is conceded by his counsel on this petition.

 The claim here is that Conceiro should have been given parole status under 8 U.S.C. § 1182(d)(5) which reads as follows:

 
"The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States."

 The Attorney General has delegated his "discretion" under this parole statute to the "district director [of the Immigration and Naturalization Service] in charge of a port of entry". 8 CFR § 212.5(a).

 On December 28, 1972, the special inquiry officer made the order of exclusion, to which reference has already been made.

 1.

 The inquiry had begun before the special inquiry officer on December 18, 1972.

 During the inquiry and on December 26, 1972, counsel for Conceiro asked for parole as a "refugee" (SM 39). Counsel for the Immigration and Naturalization Service (INS) replied at once that "orally . . . political asylum is denied" (SM 39).

 On December 27, 1972, the inquiry resumed and INS counsel then advised Conceiro and his counsel that INS was sending a letter which then was purportedly read. The letter as so read was a notice to Conceiro from the District Director that "political asylum was denied . . . on the ground that you have failed to establish that you cannot return to the countries whence you came i.e. Spain and Italy without fear of persecution." (SM 41). Presumably the denial of "political asylum" was a careless expression of denial of parole under 8 U.S.C. § 1182(d)(5). In fact, no letter of parole denial ...


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