UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
March 5, 1982
Laissez-Moi VIGILE, et al., Plaintiffs,
Charles SAVA, District Director of the Immigration and Naturalization Service, Defendant. Joseph BERTRAND and Pierre Baptiste, Plaintiffs, v. Charles SAVA, District Director of the Immigration and Naturalization Service, Kevin Doyle, Deputy Assistant District Director of Detention and Deportation of the New York District of the Immigration and Naturalization Service, Defendants
The opinion of the court was delivered by: CARTER
These consolidated petitions for writ of habeas corpus were filed by eight Haitians who arrived in Florida between June and early July 1981. Along with 78 of their countrymen and women, petitioners were transferred from the Immigration and Naturalization Service ("INS") Krome Avenue facility in Miami to the Service Processing Center ("SPC"), an immigration detention facility in Brooklyn, New York. They have been incarcerated at the SPC to the present date.
All eight petitioners have applied for political asylum in this country. All have been subject to exclusion proceedings since early August. Between August 12 and October 9, requests for parole pending final adjudication of the asylum claims were made on behalf of all petitioners. Defendant Charles C. Sava, INS District Director for the New York District, has the authority to grant or deny those requests. See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5. In all eight cases, Sava refused to exercise his discretion in favor of parole.
The stated reason for the two earliest parole denials was that the "information presented in (the) request(s) ... are (sic) insufficient to warrant a change in the alien's custody status." Joint Exhibit ("JE")
17, 24. The six early December denials restated the above rationale and added one of two additional justifications. Two responses noted that the Department of State had yet to reply to the asylum applications and that a final decision on custody status would not be made until Sava received such information. JE 19, 23. The remaining four decisions expressly took into consideration Department of State recommendations "in which they stated that the subject has failed to establish a well-founded fear of persecution upon return to Haiti." JE 20, 21, 22, 25.
The habeas corpus petitions allege that Sava has abused his discretionary release authority by acting arbitrarily, capriciously and in sharp contrast to established parole policy. In addition, petitioners contend that Sava's treatment of Haitian "boat people" has been discriminatory in violation of the due process clause of the fifth amendment and the United Nations Convention and Protocol Relating to the Status of Refugees ("Protocol"), a treaty to which the United States is a party. See 19 U.S.T. 6223, T.I.A.S. No. 6557. The government opposes the petitions as both substantively and procedurally infirm. It argues that the court lacks jurisdiction to review the District Director's parole decision, that petitioners have presented the wrong standard for parole determinations, that defendant Sava properly exercised his discretion, that these aliens have no rights under the Constitution or the Protocol and that, in any event, neither the Protocol nor the Constitution has been violated.
Petitioners assert that jurisdiction is grounded in 28 U.S.C. § 2241, insofar as they are in custody pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and such custody allegedly is in violation of the Constitution, the Immigration and Nationality Act, the regulations of the INS, 8 C.F.R. § 1.1 et seq., and the Protocol. Respondent asserts that jurisdiction under the habeas statute is limited to review of the basis of petitioners' incarceration and does not permit, in the absence of a more specific jurisdictional grant, review of parole determinations involving unadmitted aliens.
The habeas writ "lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him." Fay v. Noia, 372 U.S. 391, 430-1, 83 S. Ct. 822, 844-5, 9 L. Ed. 2d 837 (1963). Habeas relief is available to aliens detained on our shores after being found excludable by immigration authorities. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213, 73 S. Ct. 625, 629, 97 L. Ed. 956 (1953) (conceding that an excluded alien housed on Ellis Island pending admission to another country "may by habeas corpus test the validity of his exclusion"); see also Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1390 (10th Cir. 1981). Habeas jurisdiction is properly exercised to stay exclusion orders when the relief sought "inhere(s) in the question of custodial restraint upon liberty." Pierre v. United States, 525 F.2d 933, 936 (5th Cir. 1976). Petitioners, clearly meeting the criteria of the habeas statute, cannot be denied review of the propriety of their detention on the basis of their immigration status.
Respondent's argument confuses jurisdictional issues with those relevant to whether a complaint states a claim upon which relief can be granted. If the statutes and regulations relied upon by petitioners permit the actions complained of, the petition must be denied on the merits, not for want of jurisdiction. See Fogel v. Chestnutt, 668 F.2d 100 at 105-07 (2d Cir. 1981) (discussing the tendency to confuse jurisdictional and pleading requirements). The precise, restricted nature of jurisdictional concerns, see id., is illustrated by the cases cited by respondent. No explicit mention of the term "jurisdiction" can be found in any decision declining review of exclusion determinations. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S. Ct. 309, 312, 94 L. Ed. 317 (1950); Leng May Ma v. Barber, 357 U.S. 185, 78 S. Ct. 1072, 2 L. Ed. 2d 1246 (1958); Petition of Cahill, 447 F.2d 1343 (2d Cir. 1971). Habeas petitions in these cases were denied as "without merit." Petition of Cahill, supra at 1344; see also Pierre v. United States, 547 F.2d 1281, 1290 (5th Cir.), vacated 434 U.S. 962, 98 S. Ct. 498, 54 L. Ed. 2d 447 (1977), vacated and remanded, 570 F.2d 95 (5th Cir. 1978).
The arguments that parole denials are unreviewable, that aliens are unprotected by either the Constitution or the Protocol and that Sava's conduct conformed with all applicable standards all go to the merits of this habeas action. To those contentions, the court must now turn its attention.
STANDARD OF REVIEW
The Attorney General may in his discretion parole into the United States "for emergent reasons or for reasons deemed strictly in the public interest" any alien applying for admission. 8 U.S.C. § 1182(d)(5)(A). This authority has been delegated by regulation to INS district directors. 8 C.F.R. § 212.5. The government contends that courts in the Second Circuit are without the power to review the discretionary denial of parole. This position derives from Petition of Cahill, supra, in which an alien was denied parole pending a five day adjournment of his exclusion hearing. 447 F.2d at 1343. Despite allegations that such denial was arbitrary and capricious, the court found review barred "as long as (the Attorney General) has exercised discretion under §§ 1182(d) (5) and (6) to deny parole." Id. at 1344; see also Man Chung Lam v. Immigration and Naturalization Service, 79 Civ. 181 (S.D.N.Y.1979) (Lasker, J.) (no judicial power to review revocation of parole of alien physically in the country for thirteen years).
Nonreviewability of parole decisions stems from the long accepted doctrine that the determination to exclude aliens is the province of the political branch of the government. See United States ex rel. Knauff v. Shaughnessy, supra 338 U.S. at 543, 70 S. Ct. at 312. Since neither detention on United States territory nor parole alters an alien's excludable status, Leng May Ma v. Barber, supra 357 U.S. at 188, 78 S. Ct. at 1074, it is not illogical to extend this judicial hands-off policy to parole decisions made in the course of proceedings testing admissability.
Parole adjudications, however, are not completely akin to final exclusion orders. On the most obvious level, the former merely determine the setting and character of an alien's existence until such time as the latter permanent decisions can be reached. Judicial review of the parole process, therefore, does not impinge upon the political judgment to exclude or accept nor interfere with the executive and legislative power to control our borders. It only insures that parole status, which Congress has determined does not necessarily interfere with such control, is conferred by district directors within the bounds anticipated by the delegation of discretion. A determination which governs the treatment of aliens while they await the possibility of admission cannot be left completely to unelected officials. Congress' unlimited authority to exclude does not necessarily imply the district directors' absolute, unreviewable discretion to decide what aliens may and what aliens may not be accorded parole status.
Most of the decisions found establish that parole in the exclusion context will be reviewed, even in this Circuit, in the proper circumstances. Petition of Cahill itself implies a scope of review sufficient to insure that the statutory discretion was in fact exercised. 447 F.2d at 1344. In United States v. Murff, 260 F.2d 610 (2d Cir. 1958), the Court of Appeals took a more active role in dealing with a Hungarian refugee paroled into this country from Austria. Despite the broad discretion granted the Attorney General to revoke parole, 8 U.S.C. § 1182(d)(5), the court ruled that due process could not be satisfied without a hearing to "give assurance that the discretion of the Attorney General shall be exercised against a background of facts fairly contested in the open." Id. at 615. In light of the unique facts underlying the alien's parole, the court was willing to depart from a broad reading of the parole authority, id. at 613, even though its ruling would lead to the temporary, and perhaps permanent, admission of an alien found inadmissible in an exclusion proceeding. See id. at 612.
In Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y.1973) (Wyatt, J.), habeas corpus relief was denied because the court could find no abuse of discretion in the district director's denial of parole to an excludable political asylum applicant. Id. at 457. Abuse of discretion was defined as a decision made "without a rational explanation," in marked, unexplained contradiction of established policy or resting "on an impermissible basis such as an invidious discrimination against a particular race or group." Id.; see also Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 719 (2d Cir. 1966) (same standard applied to discretionary denial of application to suspend deportation); Soroa-Gonzales v. Civiletti, 515 F. Supp. 1049, 1058 (N.D.Ga.1981) (same standard applied in habeas proceeding challenging a district director's revocation of parole); Pierre v. United States, supra, 547 F.2d at 1289. Similarly, in Massoud v. Attorney General of the United States, 459 F. Supp. 672, 677 (W.D.Mo.1978), respondent's denial of advance parole was approved because "a rational basis existed ... for the denial."
These decisions indicate that review for abuse of parole discretion is the norm. While displaying total restraint on issues of exclusion, federal courts have examined the treatment of aliens awaiting that final order. The summary disposition in Man Chung Lam cannot support nonreviewability in light of this series of rulings.
The three-pronged abuse of discretion standard set forth in Wong Wing Hang, supra, is appropriate in the case at bar. Although Petition of Cahill argues for an inquiry limited to whether discretion was exercised, its facts posed no serious problem of discrimination and no special circumstances. The alien seeking parole merely had his hearing delayed five days on his own request and sought parole during that time. Where petitioners faced long-term detention, Soroa-Gonzales, supra, possible discrimination by national origin, Conceiro, supra, or other problems unique to their immigration status, Murff, supra, parole decisions were reviewed under the abuse of discretion standard.
These Haitian petitioners have been incarcerated in substandard facilities for approximately eight months, allegedly pursuant to a program applicable to them alone. Their claims merit use of the stricter analysis. Therefore, defendant Sava will be found to have abused his authority if he failed to exercise his discretion, did so without a rational explanation, inexplicably departed from prior practice or discriminated against Haitians qua Haitians.
a) Parole policy. The indicia of abuse of discretion cannot be identified without a clear understanding of the manner in which such discretion is usually exercised. Since Sava is vested with full authority over parole decisions, his description of the relevant criteria is highly probative. Of course, Sava's explanation must be tested against, and interpreted in light of, his parole determinations and any official policies which suggest a different formula.
We are told that parole applications are given individual attention and are resolved on a case-by-case basis. Sava affidavit at P 6. In each case, the application is reviewed by an immigration case officer, a recommendation is made by that officer and final action is taken by Sava or a delegate. Id. Three major themes pervade Sava's lengthy explanation of the factor analysis performed at the final action stage. Sava determines whether the applicant poses a risk to the community if released, id. at P 7, is likely to abscond, or presents a particularly compelling case for release. Id.
The perceived threat that petitioners would not return for exclusion hearings if paroled is the focus of the instant action. Sava conceded that petitioners pose no threat to the community, Transcript ("Tr.") at 458,
and concluded that none possess "humanitarian factors" sufficient to warrant parole. Id. at 406.
Finally, he stated that "getting the people to those hearings ... is really the judgment that is being made along the line." Id. at 408. Of the many factors mentioned by Sava as relevant to the parole process, most advance the inquiry into an alien's likelihood of absconding.
An alien's documentation is important to estimate the absconding threat insofar as documented aliens have been through a screening process at a United States consular office abroad and have had their identities and histories examined and verified. Tr. at 402. Extensive screening is performed on aliens applying for both immigrant and non-immigrant visas, see 8 U.S.C. §§ 1201, 1202, but is not required of aliens being transported through the United States as transients without visa ("TWOV" or "TROV"). See 8 C.F.R. § 212.1(e). Thus, "documented" aliens have passports and immigrant or non-immigrant visas while "undocumented" aliens have no documents, false documents, passports without visas or passports with TROV status. See Tr. at 385 (describing as "undocumented" Afghans travelling with "a passport and no visa or some counterfeit documents").
In some respects, Sava's lack of confidence in the identities of undocumented aliens has led him to consider them greater absconding risks. See Tr. at 459.
Sava believes that a paroled alien's future cooperation with INS is determined in part by the conditions of release. Release can be secured through the posting of a bond, an offer of sponsorship or on one's own recognizance. Sava prefers the former approach because it gives greater "leverage" over the parolee. Tr. at 408. He also claims that relatives are preferred over organizations as sponsoring entities. Tr. at 407. The advantage that relatives enjoy over church and civic groups is difficult to explain or to credit. They do not differ in their ability to provide food, shelter and clothing, id., but, according to Sava, are more reliable in their "tracking" capabilities because organizations are responsible for many people. Id. This distinction demonstrates a misunderstanding or misrepresentation of organizational sponsors. Such sponsors, used for many years by INS to help settle refugees, see Pszyk deposition at 8, place each alien in a separate home environment much the same as direct placement with family. See Tr. at 72, 89 (testimony of Livingston Chrichlow); Pszyk deposition at 23-6 (large organization only does initial processing, then local churches place persons and arrange for their sustenance). Thus, rather than risking diffusion of responsibility and rendering tracking less likely, these organizations appear better structured than individual families to provide information needed by INS and to act as liaison between INS and the parolee.
Other factors relevant to parole decisions are an alien's financial condition and job skills, prior immigration history, criminal record and the likelihood that his or her immigration applications will meet with success. Financial condition and past employment are relevant to the extent they vitiate the need for a sponsor to feed, clothe and house the alien. Tr. at 455. Prior immigration history is taken into account when the alien has made a prior entry and complied with all applicable immigration regulations. Id. at 459. A criminal record obviously reduces drastically the Director's confidence in the alien's future appearances and may indicate dangerousness. Sava's review of political asylum documents is limited to determining whether they are frivolous, for inadequate or non-serious papers might indicate a state of mind conducive to absconding. Id. at 414-5.
The parties disagree as to how these various factors and themes coalesce as Sava's parole policy. Petitioners view the record as indicating that "physical detention of aliens is ... the exception, not the rule, and is employed only as to security risks or those likely to abscond." Leng May Ma, supra 357 U.S. at 190, 78 S. Ct. at 1075. Respondent contends that policy never was formulated in those terms,
but puts forth no coherent alternative. Sava's testimony implies that he doesn't stray far from the Leng May Ma standard. He indicates more of a focus on the statutory language in his search for "emergent reasons" and compelling humanitarian factors favoring parole. He manifests, however, a willingness to grant parole in the absence of such public policy justifications if no threat to the community or risk of absconding would result. When an alien's file is such that Sava does not fear these negative consequences, parole is granted.
b) Parole Determinations. In order to determine whether Sava employed the above standards abusively with respect to petitioners, his resolution of comparable parole requests must be studied. If those granted parole do not possess more of the determinative factors than petitioners, abuse of discretion might be implied.
Petitioners based their fact presentation on file sheets for 183 aliens who arrived in the New York district in 1981 and were subject to exclusion proceedings. They compared the treatment of those 183 aliens with that of the 86 Haitians who were transferred from Miami in July. Sava based his explanations of parole policy and past results on this same sample. However, both sides err in their reliance on the 183 files.
Sava assumed his present position on July 6, 1981. Tr. at 378. Although he analyzed parole determinations made by his predecessors during 1981, he could testify from first-hand knowledge about only those applications on which he acted. Id. at 401. Post-hoc rationalizations of decisions to which he was not a party cannot be accepted as evidence of Sava's parole policy or the even-handedness of its application. Only testimony as to the reasons for Sava's parole choices can be considered " "supplementary articulations of the reasoning behind the original decision'." Massoud, supra at 675.
Ninety-nine of the 183 sheets constituting JE 68 represent aliens whose date of arrival or date of parole indicates that Sava was responsible for the final action taken. This group is still not fairly comparable to petitioners and the other detained Haitians because it includes nine individuals who never applied for political asylum and/or parole or who withdrew their applications and acceded to return to their country of origin.
Thus, Sava acted upon 90 parole requests other than those of petitioners and their peers.
All of the 90 non-Haitian parole applicants were successful in avoiding detention pending final resolution of their exclusion hearings. Yet, many were paroled for reasons clearly not applicable to petitioners. For example, 78 of the 90 excludable aliens had characteristics which qualified them as compelling cases according to Sava's guidelines. Current State Department policy, as interpreted by Sava, foreclosed exclusion hearings for the 65 Afghans in the group for at least one year after their arrival. See JE 66; Tr. at 385-8. These aliens, facing indeterminate periods of detention if not paroled, were released. Tr. at 387 (Sava deemed their situation a "compelling emergency").
Eight humanitarian parolees were aliens arriving in nuclear family groups that included minor children. INS does not detain children, Tr. at 391, and, given his reluctance to fracture families, Sava considers such units "compelling cases for parole." Id. at 398. As cases involving emergent reasons for parole, these did not require the normal inquiry into security or risk of absconding. Thus Sava's conduct with respect to these applications has limited relevance to the instant lawsuit.
By the same token, five Iraqi nationals are not comparable to petitioners. These 5 "had approved applications for service benefits pending" as a result of petitions by relatives in this country able to pass derivative immigration benefits to aliens. Tr. at 396-7.
Sava foresaw difficulties in sustaining the government's burden of proof in exclusion hearings concerning these aliens, especially those who arrived from third countries.
Id. Both potential immigration benefits and anticipated delays in exclusion proceedings are compelling reasons for parole. Thus, these five aliens were not subject to the risk of absconding factor analysis.
Twelve of the 90 parolees were released pursuant to Sava's factor analysis and, thus, are particularly instructive in examining petitioners' claims. Of these, six were Iraqis,
three Iranians, one Dominican, one Lebanese and one Pole. The vital information from their file sheets will be summarized to aid the comparative analysis to follow.
None of the six Iraqis listed any employment status (with the exception of one student), none posted any bond and none were formally sponsored. All six did state specific United States addresses on their papers, and all had some relatives in this country. They were undocumented aliens, possessing valid passports and transients without visa status.
Only one had a prior immigration history, and that was without incident. Three of the six received negative State Department responses to their political asylum applications (after they were paroled), and the others were not responded to.
The status of the three Iranians is less clear from the file sheets. All had passports, and two had temporary non-immigrant visas while the third was travelling without a visa. Although none of the three formally requested parole,
it appears that all were released on their own recognizance within a day of their arrival. All three had close relatives in this country, none of whom had any permanent immigration status. Each claimed political asylum, but the files were silent as to the State Department determination on these claims. Two had no employment listed and no prior immigration history while the third was a business trader who had entered this country once before.
As for the remaining three aliens, the Dominican had valid non-immigrant documents, made applications for both asylum and parole, received no State Department reply, posted a $ 2,000 bond, had an uncle and aunt living in New York (United States citizens) and showed no employment or prior immigration experience. The Pole had similar documentation and pending applications, but had received a negative response from the State Department, posted only a $ 500 bond, had no relatives here or prior immigration status and was a motor mechanic. Finally, the Lebanese had fraudulent papers, both parole and political asylum applications, no State Department reply, a $ 1,000 bond, a brother with permanent status in New York, skill as a handbag maker and no prior entries.
Sava viewed petitioners as without sufficient ties to the community to assure their appearance at hearings, unlikely to succeed on their immigration applications, undocumented, lacking relatives able to pass benefits to them, illiterate, indigent, farmers without prior entries. Tr. at 406, 527. The immigration files reveal more individual detail. While all but one lived on a farm in Haiti, five claim to have been involved in some degree in a trade other than farming.
Only three are illiterate, the others having between three and eight years of schooling in Creole and some French. Six claim to have some relatives in this country-one has a citizen uncle in New York, two have refugee relatives at various locations known and unknown, two have relatives of unknown status and address and one has a paroled brother at a known address in New York. None have relatives able to petition for special status for the alien. Sava's other descriptions seem to be uncontradicted by the files.
These descriptions make clear that, with respect to the factors identified by Sava as relevant to the parole inquiry, petitioners are indistinguishable from aliens paroled by Sava. Like eight of the twelve most similar applicants, petitioners are undocumented. As for the conditions of release, nine of the twelve were paroled on their own recognizance (without bond or formal sponsors), while only three posted bond. Petitioners all have prospective sponsors and none offered bond because Sava never indicated that bond was desired.
Unlike the Haitians who all listed job skills, only three of the twelve similar applicants had such qualities. None of these aliens, Haitian or non-Haitian, exhibited compelling reasons for parole-none travelled with minor children, none had family here able to confer immigration benefits on them
and none faced indeterminate detention due to foreign policy considerations.
The only constant differences in this group of 20 aliens are their race, their national origin and Sava's action on their parole application.
As a preliminary matter, the court must decide whether Sava has indeed exercised his discretion in denying petitioners' parole applications. See Petition of Cahill, supra at 1344. The record renders implausible Sava's representation that the requests of the Haitian petitioners were considered on a case-by-case basis. Rather, the testimony and exhibits indicate that the Haitians at the SPC have always been treated as a group without individual characteristics.
Sava's testimony was riddled with specific recollections of the particular circumstances of many of the aliens he paroled. He was able to recall the religious affiliation and travel history of the Iranians, the Iraqis' country of origin and other facts about individuals and groups of aliens. Many of these facts were not recorded in the exhibits accepted as evidence.
Yet, Sava never spoke about the individual characteristics of any Haitian. It is true that some descriptions are valid for the entire group-undocumented and indigent, for example. A cursory review of their parole and asylum applications reveals, however, that petitioners are not uniform in other ways relevant to Sava's decisional matrix. Petitioners vary markedly in their literacy levels, their job skills and their ties to this country through relatives. Sava apparently is ignorant of these differences in qualities admittedly relevant to a parole application and of which he had specific knowledge with respect to other, non-Haitian aliens.
This lack of familiarity with the particulars is especially puzzling given the extensiveness of petitioners' applications. Since many parole requests are made orally, see n.16 supra, and most were granted within several days, Sava probably had more information about petitioners than any other alien with whom he dealt.
The Haitian rejection letters themselves indicate a failure to give attention to each parole request as a distinct entity. Each denial, five of which were issued on the same day, contained the same language concerning the insufficiency of the information presented in the parole requests. Both the wording and the timing of these responses indicate that denial was a foregone conclusion, not a decision reached through independent review and analysis of each file.
While the last six denials also cited State Department inaction or negative action as reasons for denial, inclusion of this rationale was disingenuous in two ways. First, the timing and content of Sava's letters indicate that he delayed action until hearing from the State Department.
This makes a mockery of his claim that processing time is an important consideration in determining whether to release an alien, and contradicts his testimony as to how political asylum applications affect parole determinations. His review of such applications is limited to whether the alien's claim is frivolous, but does not anticipate, let alone depend upon, the State Department's final decision as to the legitimacy of the alien's fear of persecution if returned to his or her home nation. Tr. at 413-5.
Moreover, Sava admitted that petitioners have submitted serious, non-skeletal asylum applications. Id. at 440. Finally, a review of the 12 parole grants given to non-"humanitarian" aliens reveals that seven received no State Department recommendation and five failed to demonstrate a well-founded fear of persecution. See n.20 supra. In none of these 12 cases did Sava deny parole or put off decision pending State Department action, nor did he revoke the parole of the five aliens whose requests were denied soon after their release. Sava's improper consideration of State Department recommendations in denying petitioner's parole applications may, in and of itself, make the determinations defective. See Siang Ken Wang v. Immigration and Naturalization Service, 413 F.2d 286, 287 (9th Cir. 1969); Soroa-Gonzales, supra at 1060 (reliance on one impermissible factor refutes the contention that discretion was exercised rationally).
Assuming arguendo that Sava actually exercised his discretion, petitioners must meet an extremely heavy burden to show abuse thereof or arbitrary or capricious behavior by the Director. Soroa-Gonzales, supra at 1058. They must prove that the parole decisions were made without reasonable foundation, that they were "without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group." Id.
Is there a rational explanation for Sava's parole decisions concerning the eight petitioners? A two-fold justification was offered for their continued detention. First, and foremost, Sava implied that the Haitians were a risk to abscond. He reached this conclusion by observing that none of the parole requests offered to post a bond, and all sought release to organizational sponsors rather than family or friends. Tr. at 406. Furthermore, he stated that no petitioner had documents, and claimed that none had any education or job skills. Second, no Haitian presented a compelling case for release. Sava anticipated no delays in getting State Department recommendations or final exclusion decisions, and found no relatives able to pass derivative benefits to petitioners. Id. at 405-6.
Given Sava's overriding concern about "getting the people to those (exclusion) hearings," Tr. at 408, the rationality of his explanation is questionable. To the extent that he developed legitimate fears of absconding by petitioners, those fears arose by analyzing their applications differently from those of non-Haitians. This indicates discriminatory decision-making.
Documentation and release conditions are the two main indicia of absconding relevant to the instant case.
Lack of documentation alone cannot justify a parole denial. Tr. at 459. Similarly, Sava did not deny any parole application because he "wasn't satisfied with the sponsorship." Tr. at 531. Nonetheless, he made clear his preferences for bond over sponsorship, see Tr. at 407, and family sponsors over organizations. Id. at 529-30. The validity of these opinions is questionable. See pp. 12-13 & n.8, supra.
Neither factor being independently sufficient to justify parole denial, Sava's determination must have been based on a combination thereof. Nothing in the record shows that Sava was more than slightly uneasy about granting parole to non-Haitian aliens not manifesting the preferred documentation and release condition traits. He made no effort to explain how these two noncontrolling factors became controlling in combination, and no rational explanation is evident. It is particularly unclear how a visa or a $ 500 bond would significantly change petitioners' likelihood of reappearing. INS, through petitioners' own applications, has detailed information about each petitioner, making reliance on lack of documentation even less rational than Sava thought. See Tr. at 460 (Q: "Do you know whether your predecessor ... concurred in your view that undocumented persons are absconding risks ...? A: .... I didn't know until you mentioned it that I had that view."). Furthermore, after Sava admitted that he never studied the proposed sponsors' experience with undocumented aliens, he did not attempt to explain how a $ 500 bond would assure the aliens' attendance at hearings if their sponsors could not. Sava's stated fears that petitioners were absconding risks were not based in reasons communicated to the court.
Examination of Sava's other parole decisions supports this conclusion and shows that his treatment of Haitians inexplicably departed from his own established policies. The record discloses no formal family sponsorship for any of the 12 non-Haitians paroled by Sava. The exhibits merely document the extent of an alien's family here. Furthermore, nine of the 12 were released on their own recognizance. Only the Dominican, the Pole and the Lebanese were forced to post bond as a condition of release. These bonds ranged from $ 500 to $ 2,000 and, in the case of the Polish alien, seemed to result from a process in which INS requested the bond and the alien negotiated the amount down from the sum demanded. See n.18 supra.
The documentation factor is equally revealing. Of the 12 aliens most like petitioners, seven were TROVs, one had falsified documents, and four had visas inappropriate for immigration.
Of the eight undocumented persons in this group, only the Lebanese with falsified papers posted a bond.
While the seven others were released on their own recognizance, the eight petitioners in the same situation were all denied parole in large part for their failure to offer bond money. This discrepancy indicates, at the least, a clear, unexplained departure from prior parole policy.
This data suggests that Sava's actions were motivated by a desire to discriminate against Haitian aliens. Petitioners can invoke no fifth amendment protection against exclusion from the United States on the basis of their race or national origin. Rodriguez-Fernandez, supra at 1386; see generally, United States ex rel. Knauff v. Shaughnessy, supra 338 U.S. at 542-4, 70 S. Ct. at 312-3. Even though Congress may employ race or national origin as criteria in determining which aliens to exclude from the country, a district director may not apply neutral regulations to discriminate on such grounds. Wong Wing Hang, supra at 719; see also Washington v. Davis, 426 U.S. 229, 241, 96 S. Ct. 2040, 2048, 48 L. Ed. 2d 597 (1976) ("A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race"). Such invidious racial or national origin based discrimination constitutes abuse of discretion when insinuated into a neutral grant of decision-making authority. Wong Wing Hang, supra at 719.
The parole results during Sava's tenure as New York District Director demonstrate a gross maldistribution of releases. Of 86 Haitians whose applications he received, Sava paroled five, all pregnant women whose condition was an obvious compelling factor. Of 91 non-Haitian applicants, 90 were released and the other returned to his country of origin after withdrawing the parole request. These numbers imply more than coincidence, especially since they are paralleled in the population of 12 applicants most like petitioners. A prima facie case of discrimination may be made out by a showing of highly disproportionate impact, see Washington v. Davis, supra 426 U.S. at 242, 96 S. Ct. at 2049, especially when a "clear pattern, unexplainable on grounds other than race, emerges" from actions taken pursuant to facially neutral legislation. Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 266, 97 S. Ct. 555, 564, 50 L. Ed. 2d 450 (1977). Impact alone is not determinative, however, except in rare cases exhibiting stark patterns of unequal impact.
Impact could not be more disproportionate than that involved here. Sava does not parole Haitians unless pregnant, but paroles all non-Haitians who press their application. This statistical pattern is so extreme as to meet the strictest impact-based standards and render unnecessary inquiry into whether discriminatory intent motivated Sava's actions. See Village of Arlington Heights, supra at 266 & n.13, 97 S. Ct. at 564 & n.13. The Supreme Court, in Village of Arlington Heights, set forth Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960) as examples of cases in which impact alone is determinative. In the former, the Court deemed unconstitutional discriminatory application of a zoning ordinance which resulted in denials of laundry licenses to 200 Chinese aliens while permitting 80 non-Chinese to "carry on the same business under similar circumstances." 118 U.S. at 374, 6 S. Ct. at 1073. Gomillion involved a legislative attempt to redefine local boundaries in such a way that all but five of 400 black voters would be ineligible to vote in the city while all whites would remain residents. 364 U.S. at 341, 81 S. Ct. at 127. Sava's parole determinations fall into a pattern indistinguishable from these two cases.
Thus, the burden of proof rests with respondent to rebut the presumption of invalidity by showing that the results were reached through racially neutral criteria. Washington v. Davis, supra 426 U.S. at 241, 96 S. Ct. at 2048. For the reasons detailed above, Sava has not met this burden. His purported rational explanations could not justify all the parole decisions, nor overcome the strong inference that Haitians did not merit his usual pro-parole point of view.
Where impact alone is insufficient to justify a finding of discrimination, other evidence such as the historical background of the decision and departures from normal procedures must be examined. Village of Arlington Heights, supra 429 U.S. at 267, 97 S. Ct. at 564. History, both related to these petitioners and to INS treatment of other Haitians in recent years, is instructive on the existence of discriminatory intent. Sava's handling of these parole applications evidenced callousness towards the claims. Petitioners' requests, for the most part, went unanswered until the State Department issued asylum applications, a procedure not used for any other alien, not relevant to Sava's stated decision-making formula and resulting in delays in responding unmatched during his period as Director. Tr. at 439-40. After such inordinate delay in responding, Sava issued denial letters in bulk, using near identical language and completely devoid of rational, legitimate bases for his action. While there is no persuasive evidence that past or present INS policies led to Sava's abuse of his discretion with respect to these aliens,
it is not irrelevant that Sava was involved in the formulation of the "Haitian program" found unconstitutionally discriminatory insofar as it prejudged all Haitian political asylum claims. See Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 511, 513-5 (S.D.Fla.1980) (a Sava authored memo on means of deterring Haitian immigration set forth policies which indicated "a predetermination that none of the Haitians could deserve asylum") (emphasis in original). Such a finding echoes the finding here that Sava prejudged Haitian parole applications by determining that none could meet his release criteria.
Along with this suspect history, it is also clear that Sava departed both procedurally and substantively from his normal treatment of parole requests. He altered the sequence of events leading up to disposition of parole applications by waiting for State Department action on petitioners' political asylum claims. The failure to give the same individual attention to Haitians resulted, moreover, in his overlooking of factors favoring release which led to release in other cases. See Village of Arlington Heights, supra 429 U.S. at 267, 97 S. Ct. at 564. The most poignant example of such inconsistency is the near identity of pertinent characteristics among some of the petitioners and some of the paroled Iraqi and Iranian nationals. The conclusion, therefore, is inescapable that Sava denied parole to petitioners because they were black and/or because they were Haitians.
Petitioners also claim that Sava's actions violated the Protocol, a treaty adopted by the United States effective November 1, 1968. 19 U.S.T. 6257. The Protocol provides in Article 1 that except for certain technical alterations:
The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention (relating to the Status of Refugees) to refugees as hereinafter defined.
Its provisions are designed to aid those persons who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, (etc.) ... (are) outside the country of (their) nationality and (are) ... owing to such fear, ... unwilling to return to it." Article 1, A(2) of the Convention. Petitioners seek to vindicate rights allegedly granted them by Articles 3 and 31 of the Convention. Article 31 protects unlawful aliens from the imposition of penalties on account of their illegal presence and from unnecessary restrictions on their movements. Article 3 provides that all aspects of the treaty are to be applied without discrimination as to race or national origin. Respondent contends that the Protocol does not create a private right of action and, if it does, those rights are incorporated by existing statutes and regulations governing immigration matters.
"The history of the adoption of the Protocol by this country makes clear that all the individuals and institutions involved in that process had a continuing belief that the Convention would not alter or enlarge the effect of existing immigration laws, chiefly because it was felt that our immigration laws already embodied the principles of the Convention." Ming v. Marks, 367 F. Supp. 673, 677 (S.D.N.Y.1973) (Carter, J.), aff'd, 505 F.2d 1170 (2d Cir. 1974), cert. denied, 421 U.S. 911, 95 S. Ct. 1564, 43 L. Ed. 2d 776 (1975); see also Pierre v. United States, supra, 547 F.2d at, 1287-8 (discussing legislative history and reaching the same conclusion).
However, the Protocol and Convention have not been rendered meaningless by their infusion into pre-existing regulations. Several courts have construed vague or broad immigration statutes and regulations so as to incorporate rights declared in the treaty. See, e.g., Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976) (statute providing for exclusion of certain aliens seeking to work in this country cannot apply to refugees because it would "render the Convention meaningless as a practical matter"); Sannon v. United States, 427 F. Supp. 1270, 1274-7 (S.D.Fla.1977), vacated and remanded, 566 F.2d 104 (5th Cir. 1978) (regulation barring immigration judges from hearing asylum claims of excludable aliens invalid as inconsistent with the Protocol and the Immigration and Nationality Act). Thus, regulations promulgated pursuant to unspecific statutory provisions must be interpreted consistent with the Protocol as well as the overall intent of the Act.
The language of the Protocol can be viewed as creating rights separate from those embodied in the regulations. See, e.g., Kashani v. Immigration and Naturalization Service, 547 F.2d 376, 379 (7th Cir. 1977) (independent review of the two sources indicated that the Protocol and the Act required the same standard of proof of refugee status); Ming v. Marks, supra, 505 F.2d at 1172 (Article 31 of the Protocol directly benefits refugees).
An individual's standing to invoke the Protocol has often depended upon his or her success in attaining refugee status. See, e.g., Pierre v. United States, supra, 547 F.2d at 1289; Sannon v. United States, supra at 1270. When parole could not be considered until INS and the State Department determined affirmatively an alien's refugee status, failure to obtain such status foreclosed challenge of discretion regarding parole. Pierre, supra at 1289.
Parole may now be granted at any time after an alien applies for admission, see 8 U.S.C. § 1182(d)(5), so this procedural obstacle has been removed. "Refugee" is a self-imposed label, not one requiring the imprimatur of the INS. See U.S.C. §§ 1101(a)(42), 1157(c)(4) (Attorney General may remove one's refugee status if it is determined that the provisions of § 1101(a)(42) are not met). Since parole is granted, in part, to avoid lengthy detention pending final exclusion determinations, and since Sava regularly paroles aliens before receiving the State Department's recommendation concerning political asylum, it would be incongruous to hold petitioners powerless to invoke the Protocol in their challenge to parole denials.
To the extent that the Protocol vests petitioners with rights relevant to this case, such rights must emanate from specific, rather than general, treaty language. See Huynh Thi Anh v. Levi, 586 F.2d 625, 629 (6th Cir. 1978) (no right of action maintainable under Article 4 of the Protocol relating to religious freedoms). Petitioners may assert their rights to be free of penalties due to their illegal entry and unnecessary restrictions on their movements while here seeking asylum. These specific Article 31 rights are also violated, according to Article 3, if such penalties or restrictions were imposed based on race or national origin. All of these rights are guaranteed within the detention and parole regulations pertaining to excludable aliens. Therefore, if Sava has abused his discretion under these provisions by withholding from petitioners parole that would ordinarily be granted, he has imposed the type of hardships prohibited by the Protocol.
The Protocol may also establish independent rights for petitioners insofar as Sava's parole policy departs from the Leng May Ma standard. By prohibiting all unnecessary restrictions on movement, the Protocol makes detention the "exception, not the rule, employed only as to security risks or those likely to abscond." Id. 357 U.S. at 190, 78 S. Ct. at 1075. Review of Sava's parole decisions has shown that detention was the rule for Haitians despite the absence of security risk and without serious, commonplace inquiry into likelihood of absconding. The Protocol's emphasis on the necessity of confinement leaves no room for Sava to interpret the vague parole authority as placing the burden on aliens to prove the nonexistence of these dangers. Thus, the parole policy apparently reserved for Haitians might violate the Protocol even if applied in a race and national-origin blind, case-by-case manner. In any event, the Protocol was clearly violated by the abusive and discriminatory way in which these parole requests were handled.
The court having found that respondent Sava failed to exercise properly the discretion given him by the statutes and regulations concerning the parole of excludable aliens, and having discriminated against petitioners because of their race or national origin, the writ of habeas corpus shall issue under the following conditions. Petitioners shall be released on parole or reasonable conditions shall be set therefor
within 10 days from the date of this order unless respondent can show cause in writing, supported by affidavit, reasons for believing that any or all of them pose a risk of absconding. Such proof must contain individual appraisals of each petitioner and must respond to the considerations purportedly used by Sava to conclude that similar aliens did not pose sufficient risk to merit detention. An explanation will be deemed lacking if it does not discuss why bonds and/or sponsorships cannot overcome whatever risks are identified and provide INS with leverage equal to that which sufficed for non-Haitians heretofore paroled by Sava.
IT IS SO ORDERED.