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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. *fn1"

 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") *fn2" 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.


 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. *fn3"

 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 ...

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