The opinion of the court was delivered by: LASKER
Salam Paulis, an Iraqi citizen, attempted to enter the United States on January 26, 1982, using a visa which was discovered to be fraudulent. He was detained for an exclusion hearing under 8 U.S.C. § 1225(b) and questioned by an immigration inspector. According to his sworn statement to the immigration officer, he purchased the visa from an Egyptian man in Italy for $2,000. (Record of Sworn Statement in Affidavit Form, Exhibit C to Affidavit of James A. Jasey).
Paulis filed an application for political asylum, which was referred to the Department of State for an advisory opinion. The State Department recommended denial of the application. An exclusion hearing was then scheduled pursuant to 8 U.S.C. § 1226. Prior to the hearing, Paulis requested release on parole. The request was denied by James A. Jasey, the Acting District Director of the Immigration and Naturalization Service ("INS"), by letter dated March 2, 1982. (Exhibit A to Jasey Affidavit).
After a two day exclusion hearing, the Immigration Judge found Paulis excludable and denied his request for political asylum. A notice of appeal has been filed. Pending appeal, Paulis remains in custody.
Paulis now petitions for a writ of habeas corpus, alleging that he is being detained in violation of the law because the rule under which his request for parole was denied was not promulgated in accordance with the requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553. He also contends that even if his detention is legitimate, it is "inhumane" to keep him in custody for over four months pending an appeal, particularly because the delay, he contends, is solely due to the government's tardiness.
Paulis' argument based on the alleged applicability of the APA relies almost entirely on Judge Spellman's recent decision in Louis v. Nelson, 544 F. Supp. 973 (S.D. Fla.1982), stay denied, 683 F.2d 1311, which held that:
when the Government changed its longstanding policy of freely paroling Haitians to a policy of incarcerating them while they litigate their claims for admission to this country, it did so in a procedurally improper way."
Id. at 1004. Judge Spellman ruled that the change in policy constituted rule-making, and that the resulting rule was null and void because the INS had not followed the rule-making requirements of the APA.
The government answers that Louis v. Nelson was wrongly decided, and that, in any event, it is entirely distinguishable from the case at bar. In addition, the government argues that District Director Jasey's decision to deny parole was within his broad discretionary powers, as delineated by Bertrand v. Sava, 684 F.2d 204 (2nd Cir. June 25, 1982). Finally, the government takes the position that the delay in processing Paulis' appeal is at least partly his own fault because he did not request that the appeal be expedited. (Affidavit of Michael DiRaimondo, para. 7).
Since the date of Judge Spellman's opinion, and in response to it, the INS has promulgated a new rule regarding the detention and parole of aliens who seek to enter the United States illegally. 47 Fed. Reg. No. 132 (July 9, 1982). Paulis has not alleged any procedural or substantive defects in the new rule, nor any reason why it is not applicable to him. The new rule sets out factors to be considered by the district director in determining whether or not to grant requests for parole.
The bulk of the government's lengthy brief consists of detailed argumentation concerning the conclusions to the difficult legal questions reached by Judge Spellman. Under the circumstances of this case, it seems pointless to reconsider the same perplexing issues. A new rule has been promulgated, pursuant to procedures which are not challenged. The government contends that the new rule is merely a formal restatement of the policies and practices it has always followed. If that is so, it should be a simple matter for the INS to reconsider Paulis' request for parole in accordance with the standards which are now published in the Federal Register: the facts could hardly have changed in any significant way since the initial parole decision was reached, inasmuch as Paulis has been in detention for the entire period, and the director who is to make the decision will apparently be the same one who familiarized himself with the circumstances of the case in order to make the original decision and in preparation for this litigation.
It may appear a futility to require the director to make a second decision on the same set of facts, utilizing a set of factors which he asserts he has already considered. However, the requirement of reconsideration, under the circumstances, preserves the integrity of the legal and administrative process. Moreover, to the extent that the reconsideration is an empty gesture, the requirement imposes no burden on the government.
The petition is therefore denied on the condition that within thirty days the INS reconsider Paulis' request for parole in accordance with the standards set forth in the INS rule ...