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YIU SING CHUN v. SAVA

October 25, 1982

YIU SING CHUN and JEE-CHIU SHAN, Petitioners,
v.
CHARLES C. SAVA, District Director, Immigration and Naturalization Service New York District, and KEVIN DOYLE, Deputy Assistant Director for Detention and Deportation, Immigration and Naturalization Service, New York District, Respondents


McLaughlin, District Judge.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1976). The petition was filed on behalf of two Chinese nationals who have been denied political asylum in this country. Petitioners are currently detained at the United States Immigration Detention Facility in Brooklyn, New York pending arrangements by Respondent for their deportation.

 Petitioners challenge the legality of their detention on the ground that the District Director's decision to deny political asylum was "arbitrary, capricious, and an abuse of discretion." Petition Para. 3. They also allege that Respondent's decision to deny them parole pending resolution of their asylum applications was an abuse of discretion.

 Jurisdiction is invoked under 28 U.S.C. § 2241 (1976). Respondent argues that this Court lacks authority to entertain the petition because of jurisdictional limitations inherent in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. Resolution of the jurisdictional issue, however, requires an understanding of the factual background accompanying these petitions.

 FACTS

 In May, 1982 Petitioners emigrated illegally from the People's Republic of China ("PRC") to Hong Kong. On June 28, 1982 Petitioners stowed away aboard the S.S. American Lark without the knowledge of its Captain and without documentation permitting them to enter the United States. Several hours out of Hong Kong, the crew of the American Lark discovered Petitioners, who identified themselves as "Chinese refugees" seeking asylum in the United States. They were placed in custody aboard the ship and the United States Immigration and Naturalization Service ("INS") was notified.

 When the American Lark made port in Oakland, California on July 14, 1982, Petitioners formally applied to the San Francisco District Director of the INS for political asylum. Because neither Petitioner speaks English, each was assisted in the completion of his application (INS Form I-589: "Request For Asylum In the United States") by a Chinese-speaking employee of U.S. Lines, the owner of the American Lark. Petitioners' Form I-589's indicate that they were subsequently interviewed by an INS officer with the help of an interpreter. The INS ordered them to remain in detention aboard ship pending review of their applications by the District Director.

 Before their applications could be decided, the American Lark departed Oakland, bound for New York via the Panama Canal. En route, the ship called at ports in California, Panama, and Georgia where, on July 30, 1982, Petitioners were served with the decision of the San Francisco District Director denying their applications for asylum.

 A few days later, the ship arrived in New York. Petitioners, with the assistance of counsel, completed new Form I-589's and submitted them to the New York District Director of the INS for reconsideration. Pending review of their applications, Petitioners were removed from the ship and detained at the Immigration Detention Facility in Brooklyn. The New York District Director ultimately denied Petitioners' applications for asylum on September 17, 1982. This petition for habeas corpus followed. The United States Attorney has agreed to stay deportation proceedings pending this Court's review of the petition for a writ of habeas corpus.

 JURISDICTION

 Under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., aliens who are categorized as "stowaways" are afforded only limited substantive protections. Although Petitioners argue that they should not be viewed as stowaways, I find their argument unpersuasive given the circumstances of their passage to this country.

 The papers before the Court indicate that Petitioners concealed themselves aboard the S.S. American Lark in order to obtain passage to the United States without the knowledge or permission of the ship's Captain and without passports, travel documents, or immigration visas. See In re Krajcirovic, 87 F. Supp. 379 (D. Mass. 1949). There is no indication that Petitioners anticipated paying for their passage. As soon as their presence aboard ship was discovered, Petitioners were placed in detention for the duration of the voyage. Their assertion that they were refugees seeking political asylum does not affect their classification as stowaways.

 Although I accept the Government's characterization of the Petitioners as stowaways, I do not agree with the Government's conclusion that this Court lacks subject matter jurisdiction to review habeas corpus petitions submitted by stowaways seeking political ...


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