The opinion of the court was delivered by: ELFVIN
Petitioner, a native and citizen of Ireland, was refused admission into the United States from Canada February 6, 1982 in Niagara Falls, N.Y. by the Immigration and Naturalization Service ("the INS"). Respondent Ferro ordered petitioner taken into custody at that time, pending exclusion proceedings. On February 18, 1982 Ferro informed petitioner by letter (Exhibit A to the Complaint) that Ellis had been "temporarily excluded from admission to the United States under section 235(c) of the Immigration and Nationality Act" (8 U.S.C. § 1225(c)), and that his application for admission into the United States was to be referred to the INS Regional Commissioner together with any written statement or information petitioner desired to submit. Petitioner was also informed that, should he enter the United States while the temporary exclusion order was in effect, he would subject himself to arrest and deportation and possible criminal prosecution.
On February 16, 1982 petitioner was indicted for conspiring to bring aliens into the United States illegally, for using a false passport and for making false statements to a federal agency. Petitioner was arraigned February 18th and bail was set in the amount of $25,000 cash or surety. Petitioner currently is in custody pending disposition of the Indictment.
On February 25, 1982 petitioner submitted to the INS Regional Commissioner his affidavit stating information pertinent to his temporary exclusion and requested a stay of the exclusionary proceedings pending consideration of petitioner's application of that date for asylum. Petitioner also requested disclosure of the information upon which the temporary exclusion order was based, and a hearing on the question of his exclusion should his asylum application be denied. (Complaint Exhibit B.)
On June 17, 1982 Ferro advised petitioner of his intention to deny the asylum request and granted petitioner additional time in which to submit rebuttal evident. Petitioner thereafter submitted certain evidence and requested information and additional rebuttal time for respondent.
On June 15, 1982 petitioner's attorney had written Ferro requesting a hearing to determine the country to which petitioner would be deported pursuant to 8 U.S.C. § 1227,
and further that the INS "Make a bond determination which will allow [petitioner's] release in the event he posts his criminal bail, pending the determination of the country of deportation and his asylum application * * *." (Complaint Exhibit D.) Ferro replied June 23rd noting that petitioner is not entitled to a hearing "since he is under a temporary exclusion order at this time" and that the temporary order "is being referred to the Regional Commissioner for determination as to whether the order should become a permanent exclusion order, pursuant to Title 8 CFR 235.8." Under 8 C.F.R. § 235.8(b) the Regional Commissioner has discretion to direct either further examination of an alien or that he be accorded a hearing. Respondent also informed counsel:
"At such time as your client comes into the custody of the Immigration and Naturalization Service, it is our intention to execute the aforesaid temporary exclusion order. In light of this proposed action, the Service will not consent to the release of your client from Service custody in the United States under a bond as requested in your letter." Complaint Exhibit C.
On July 7, 1982 petitioner instituted this action by filing a Complaint together with a Petition for the Writ of Habeas Corpus.
The Complaint alleges that pursuant to 8 U.S.C. § 1227, set forth in pertinent part in footnote 1 above, should petitioner ultimately be excluded the deportation should be to France, the country from which petitioner departed for Canada. In the language of section 1227 Canada is "foreign territory contiguous to the United States" and thus not proper for petitioner's deportation in that he is not a "native, citizen, subject, or national of, [and] does not have a residence in" Canada. Petitioner alleges that in executing the temporary exclusion order Ferro is expected to deport petitioner to Canada rather than to France and that he would then be deported by the Canadian government to Ireland.
Petitioner bases these expectations in part upon a recently proposed INS regulation which assertedly is contrary to the plain language of 8 U.S.C. § 1227(a) (1) and therefore unlawful, in that it defines "residence in a foreign contiguous territory" for purposes of section 122, as "includ[ing] any physical presence, regardless of intent, in a foreign contiguous territory * * * if the government of such territory * * * agrees to accept the alien" (47 Fed.Reg. 12132 (March 22, 1982)) (to be codified at 8 C.F.R. § 237.6(a) (3)).
Petitioner also alleges that his co-defendants named in the Indictment were ordered temporarily excluded and deported to Canada by Ferro and that Canada subsequently deported one co-defendant to Ireland. Petitioner alleges that if deported to Ireland he will be subjected to political presecution, as he was before departing Ireland, and probably incarcerated and subjected to an unfair trial upon unspecified unfounded and politically motivated criminal charges now pending against him.
In his Complaint petitioner seeks an order granting him a hearing before an Immigration Judge to determine the country to which he would be deported, should he be deported, and the opportunity to seek appellate review of such determination. Petitioner also requests a hearing before an Immigration Judge and appellate review regarding his request for asylum should Ferro deny such request. Also sought is an order enjoining Ferro from deporting petitioner pending a final determination of his excludability, asylum application and the merits of this lawsuit. Finally, petitioner requests that Ferro be directed to set bond for petitioner to allow his release on bail on the pending criminal charges without his immediate deportation to Canada.
In his Petition for a Writ of Habeas Corpus petitioner seeks that he be brought before this court in order to permit inquiry into the cause of his detention. It is also requested that petitioner be ordered discharged from detention and restraint in the event criminal bail is posted and that Ferro be directed to stay exclusion and deportation proceedings against petitioner pending exhaustion of his administrative remedies and judicial review regarding his exclusion, including determination of country and of his asylum application.
Petitioner submitted with his Petition a request for an Order to Show Cause why a writ of habeas corpus should not issue. Upon informal inquiry by the court Ferro agreed to show cause why the writ should not issue without need for an Order and on July 14th oral argument was heard on the merits of the Petition. At that time it was disclosed that Ferro had denied petitioner's asylum application July 7, 1982. On oral argument the parties agreed to an extension of time for the submission of this matter for consideration, to permit both sides to brief issues raised orally by the attorney for Ferro.
On about August 5th the INS Regional Commissioner denied the asylum request and petitioner's request for a hearing and issued a final order of exclusion (see 8 C.F.R. § 235.8(b)) accompanied by a brief memorandum.
Ferro notified petitioner of this final decision by letter dated September 2nd. These developments rendered moot Ferro's contention in opposition to the petition for the writ of habeas corpus that by operation of 8 U.S.C. § 1105a(b)
such petition could not be entertained until the exclusion order was made final.
Issues bearing directly upon the legality of petitioner's custody may be determined on his petition. See, e.g., Sotelo Mondragon v. Ilchert, 653 F.2d Pierre v. United States, 525 F.2d 933, 936 (5th Cir. 1976). In the present posture of this case these issues include the threat of immediate deportation to Canada should petitioner post bail on the criminal charges, and the denial of petitioner's asylum application (See, e.g., Stevic v. Sava, 678 F.2d 401, 404 n.6 (2d Cir. 1982); Sotelo Mondragon v. Ilchert, supra; Stanisic v. United States Immigration and Nat. Service, 393 F.2d 539, 542 (9th Cir. 1968)). The denial of parole pending final determinations of the receiving country and the asylum matters, and Ferro's refusal to stay petitioner's deportation pending the ...