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TOBIA v. SAVA

September 24, 1982

WISAM TOBIA, NABIL TOBIA, DANYAL SAAD, FARAT RAMOU, SLEWA HABIB, And SHAMER SHAMOO, Petitioners,
v.
CHARLES C. SAVA, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, OR SUCH OTHER PERSON, IF ANY, WHO MAY HAVE CUSTODY OF PETITIONERS, Respondent



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

 MOTLEY, Chief Judge.

 Petitioners, four excludable aliens being detained by the Immigration and Naturalization Service (INS), seek a writ of habeas corpus pursuant to 28 U.S.C. § 2241. *fn1" Petitioners seek release from detention pending their appeals of the denials of their applications for political asylum in this country. Petitioners have all been denied parole by the District Director of the INS.

 This action was commenced by Order to Show Cause on August 4, 1982. A hearing was held before this court on August 13, 1982. The habeas corpus jurisdiction of this court encompasses the jurisdiction to review parole decisions of the District Director of the INS. Bertrand v. Sava, 684 F.2d 204, slip op. at 3575 (2d Cir. 1982). For the reasons given below, petitioners' application for a writ of habeas corpus is denied.

 BACKGROUND

 Petitioners are Christian Iraqi nationals who arrived at John F. Kennedy Airport, New York, in January and February, 1982, with valid Iraqi passports but without visas to enter the United States. All have claimed eligibility for political asylum based upon fear of persecution should they return to Iraq. Iraq is a Moslem country in which Christians are a minority. Petitioners claim that they will be subject to both religious and political persecution if they are returned to Iraq. The assertion has also been made that, in remaining outside their country for longer than allowed, petitioners have placed themselves in jeopardy of being hanged upon their return.

 Petitioners concede that they are all excludable aliens but assert that respondent erred in failing to grant them parole while they await the final determinations on their applications for political asylum.

 Petitioners' factual allegations have been carefully reviewed by this court. The situation in which these men find themselves, incarcerated for over six months for their attempts to enter this country, is doubtless a far cry from that which they anticipated finding upon reaching our shores. Nevertheless, the role of this court, whatever its sympathies, is restricted in cases such as this. It is not the underlying merits of petitioners' claims for asylum which are before the court but, rather, the denial of parole to petitioners pending the appeals of their application for asylum.

 DISCUSSION

 The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. provides that any alien who arrives at our border who "may not appear . . . to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer." 8 U.S.C. § 1225(b). An immigration judge then decides whether the alien should be formally admitted or excluded and deported. 8 U.S.C. § 1226. Appeals from the decisions of an immigration judge may be made to the Board of Immigration Appeals. 8 C.F.R. § 236.7. Throughout the entire process, the alien is held in detention *fn2" unless parole is granted pursuant to 8 U.S.C. § 1182(d) (5). *fn3"

 Under the terms of 8 U.S.C. § 1182(d)(5), the parole of aliens is a discretionary power vested in the Attorney General. The Attorney General has delegated this power to the INS District Directors. 8 C.F.R. § 212.5. The District Directors are assisted in the exercise of this discretion by certain guidelines *fn4" issued by the Commissioner of the INS pursuant to 8 U.S.C. § 1103 and recently published as an interim rule in the Federal Register. 47 Fed. Reg. 30,045 (1982) (to be codified in 8 C.F.R. § 212.5).

 Petitioners challenge the District Director's denial of their parole requests asserting, inter alia, that respondent 1) failed and refused to exercise his discretion or independent judgment, 2) failed to advise petitioners as to the factors he considered and the reasons for the denial of parole, and 3) was motivated by improper considerations and relied upon impermissible factors in determining not to grant petitioners' parole requests.

 1) Petitioners' allegation that respondent, as delegee of the Attorney General's discretionary powers, failed to exercise his discretion must fail. The record in this instance indicates that counsel for three of the petitioners were advised by telephone that petitioners' parole requests had been denied because petitioners did not qualify for parole under the guidelines (Aff. of James Foster dated August 18, 1982, at 6). The fourth petitioner, Mr. Shamoo, was advised in writing that parole was denied because there were no emergent or public interest reasons justifying his release. Where the record includes evidence that the District Director affirmatively acted to deny each petitioner's parole application, and includes evidence of the criteria used in deciding upon those denials, the record "permits no conclusion other than that Sava did exercise his discretion. . . ." Bertrand v. Sava, 684 F.2d at 214.

 2) In Bertrand, the United States Court of Appeals for the Second Circuit set forth the narrow range of inquiry available to this court in reviewing the ...


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