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February 19, 1982

William GILROY, William O'Neill, James Kelly, Edward Howell, and Michael Weir, Petitioners,
Benedict FERRO, District Director, Immigration & Naturalization Service, Respondent

The opinion of the court was delivered by: CURTIN

This case presents for decision the novel question of whether a district court may review a decision of the District Director of the Immigration and Naturalization Service to deny parole with an appropriate bond or other conditions to aliens detained for investigation pursuant to 8 U.S.C. § 1225.

Petitioners, four individuals who are not citizens of the United States, *fn1" sought entry into the United States on February 6, 1982, at the Rainbow Bridge, Niagara Falls, New York. They were refused admission by the Immigration and Naturalization Service (INS), of which the named respondent is the District Director. Upon the order of the respondent, petitioners were taken into custody pending exclusion proceedings.

 Petitioners are Irish nationals. Messrs. O'Neill, Gilroy, and Kelly are residents of Canada, and Mr. Howell was staying in Canada under a lawful visa which expired during his detention here. Mr. O'Neill has permanent resident's status in Canada. He resides in St. Catherines, Ontario, with his wife and three children and has a steady job at Abel Waco, a Canadian firm. Mr. Kelly is a landed immigrant who has lived in Canada with his family for the past 12 years. He is employed as a sheet metal engineer by E. S. Fox, Inc. Mr. Gilroy is also a resident of St. Catherines, Ontario, and is employed there at Ontario Hydro. He was previously convicted of a crime in 1975 but has served his sentence and his parole term. Mr. Howell resides with his family in Ireland, where he is employed as the editor of a magazine. He is desirous of returning to them as soon as possible.

 Criminal complaints were filed on February 9, 1982, against the individuals, charging them with attempting to enter into the United States by the use of false passports. Petitioners appeared before United States Magistrate Edmund F. Maxwell, and bail was set for each of them in the amount of a $ 10,000 signature bond.

 On February 16, 1982, when the petitioners appeared before Magistrate Maxwell for a preliminary hearing, the government moved to dismiss the criminal charges. Because they were still being detained by the respondent, all the petitioners remained in custody after the charges were dismissed. Later that day, a federal grand jury returned indictments against the petitioners, again charging them with unlawful attempted entry and with an unlawful conspiracy to bring aliens into the country. At arraignment on the indictments on February 18, 1982, bail was set by Magistrate Maxwell for each in the amount of $ 10,000 cash or surety bond.

 The INS has refused to set bail or to parole the men upon the filing of an appropriate bond.

 In the usual case, aliens want to enter and remain in the United States. This is an exceptional case. These men do not want to stay here. They want to be released from custody and excluded from the country.

 Gilroy, Kelly, and O'Neill are willing to waive their rights to an exclusionary hearing and will accept an order excluding them for a year under 8 U.S.C. § 1182(a)(20). As they are Canadian residents, they have an understandable interest in being able to travel into the United States at some future date and will contest a permanent exclusion order. But, while a hearing on the permanent exclusion is pending, they want to be paroled with an appropriate bond so that they can return to their homes and their families.

 Mr. Howell does not want to return to this country at all. He has stated that he will agree to an order excluding him for life in return for his release.

 The INS will not accept these concessions and will not exclude or parole the men. The government contends that these individuals present a danger to the public safety and should be excluded for life under 8 U.S.C. § 1182(a)(27), (28). The INS supports this contention with vague and conclusory allegations of "subversive activities." Until the government decides it has sufficient information to substantiate its charges, the petitioners, including Mr. Howell, are being held in custody. The INS will not exclude the men and will not set a bond for their temporary release.

 The petitioners filed this application for a writ of habeas corpus, alleging that the decision of the District Director to hold them in custody without parole is arbitrary and capricious and is an abuse of his discretion. The application was brought on by an order to show cause on February 12, 1982, after petitioners had been held in custody for nearly one week. A brief hearing was held at that time. Because of the nature of the application, I scheduled a second hearing for Tuesday, February 16, at 2 p.m. During these proceedings, the positions of the parties were brought forward.

 The parties concede that the United States Attorney General has the statutory authority to detain aliens pending exclusion hearing. 8 U.S.C. § 1225(b). The Attorney General does have the authority under the statute to parole aliens into the United States temporarily, 8 U.S.C. § 1182(d)(5), (6). The Attorney General has delegated this authority to the District Director of the INS in charge of a port of entry. 8 C.F.R. § 212.5(a).

 The District Director's discretion in the exercise of his parole power is very broad. The position of petitioners, however, is that it is not unlimited and that, by his refusal to set any bond or other conditions of parole under the facts of this case, the District Director has gone beyond the boundaries of his discretion.

 The position of the INS is clear. The respondent has consistently stated that this court is without jurisdiction to entertain the application. It is the INS' contention that the statute gives the Attorney General, and from him the District Director, absolute discretion and authority with regard to this issue. During the hearings, the attorney for the INS stated that, to the extent respondent has complied with the court's orders, he has done so as a courtesy to the court and to the parties and not from recognition of the authority of the court to entertain the application. The INS relies upon the cases of In re Cahill, 447 F.2d 1343 (2d Cir. 1971); Shaughnessy v. Mezei, 345 U.S. 206, 73 S. Ct. 625, 97 L. Ed. ...

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