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MOHAMED ISHTYAQ v. NELSON

October 4, 1983

MOHAMED ISHTYAQ et alia, Petitioners,
v.
ALAN NELSON, etc., et alia, Respondents



The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

SIFTON, District Judge.

 This is a proceeding seeking the issuance of a writ of habeas corpus instituted by thirty-three Afghan and three Iranian nationals who claim that they are being unlawfully detained by the Immigration and Naturalization Service ("INS"). Petitioners are said to have arrived in the United States from India and Pakistan between January 1982 and May 1983 and, upon arrival, to have applied for political asylum pursuant to 8 U S.C. § 1158(a) on the ground that they are refugees and will be persecuted in their respective home countries if they return them. *fn1" At least thirteen petitioners continue to be detained pursuant to 8 U.S.C. § 1225 *fn2" at the INS Processing Center in Brooklyn pending determination of their applications for political asylum and the conclusion of exclusion proceedings pursuant to 8 U.S.C. §§ 1225 and 1226. Those who continue to be detained seek the issuance of a writ of habeas corpus and their immediate release on the grounds that their detention is violative of the Constitution, the federal immigration laws, the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the "Act"), and the international legal obligations of the United States as reflected in international agreements and general principles of customary international law.

 The matter is currently before the Court on petitioners' motion pursuant to Rule 56 of the Federal Rules of Civil Procedure awarding them summary judgment and the immediate issuance of a writ of habeas corpus. For the reasons to be stated, petitioners' motion is denied.

 BACKGROUND

 It is undisputed for purposes of this motion that petitioners are Afghan and Iranian refugees who fled their respective countries to escape persecution following the Soviet invasion of Afghanistan in December 1979 and the change of government in Iran. They allege that they initially emigrated to either India or Pakistan. After having been denied permission to enter the United States as refugees by American diplomatic officials in India and Pakistan, the petitioners obtained false travel documents in those countries and flew to the United States. They were detained upon arrival at John F. Kennedy International Airport in New York when the INS questioned their travel documents and deemed them inadmissible pursuant to 8 U.S.C. § 1182 (a)(19), (20). Exclusion proceedings were then instituted against them pursuant to 8 U.S.C. §§ 1225 and 1226. Petitioners then applied for political asylum pursuant to 8 U.S.C. § 1158(a). With respect to at least certain of the Afghan petitioners, government officials are said to have agreed that their fear of persecution upon return to Afghanistan is well-founded, but are said to have denied them entry and ordered them deported on the ground that they failed to comply with prescribed procedures for applying for refugee status abroad. Other petitioners are said to still have motions and/or appeals pending with respect to their asylum applications. As for those petitioners for whom final orders of exclusion and deportation have been issued, the INS has been unable to execute those orders in light of the refusal of India and Pakistan to accept those petitioners as deportees and is said to have released them from detention.

 THE PRESENT MOTION

 The standard under which a summary judgment motion is tested requires a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Federal Rules of Civil Procedure 56(c). As the Court of Appeals recently stated:

 "The burden rests on the moving party to demonstrate the lack of genuine fact issue. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). In its search of the record the court should resolve all ambiguities and inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). The possibility that a factual issue may exist will not defeat the motion, rather the party opposing summary judgment must indicate that a genuine dispute as to a material fact does exist. Uncertainty as to the true state of any material fact defeats the motion. Quinn, 613 F.2d at 445."

 United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir. 1982) (Emphasis in original.)

 There is a dispute, albeit legal rather than factual, between the parties as to the precise basis for each petitioner's present detention. Petitioners allege that those among their number who were first detained prior to July 9, 1982, are being detained pursuant to INS internal guidelines first implemented in the New York district of the INS in January 1982. The New York district office is said to have acknowledged the application of these guidelines to these petitioners in several notations in the work files of release requests disclosed by the INS to petitioners. These guidelines are said to have been revised once in April 1982 with respect to the release of juveniles and again on June 27, 1983, to permit INS district directors to consider the release of detainees who have been issued final orders of deportation and whose departure could not be enforced by the INS. Twenty petitioners are said to have already been released pursuant to this policy revision. *fn3"

 Petitioners further allege that those who were first detained after July 9, 1982, are being detained pursuant to inadmissible alien detention and parole regulations published in the Federal Register on that date as an immediately effective "interim rule," 47 Fed. Reg. 30044-46, later adopted with amendments as a final rule on October 19, 1982, 47 Fed. Reg. 46493-94, and now set forth at 8 C.F.R. §§ 212.5, 235.3 (1983).

 Petitioners argue that the detention of those who were first detained prior to July 9, 1982, the date the INS first published its presently effective alien detention regulations in the Federal Register, is unlawful because that detention was originally effected pursuant to agency regulations which were not adopted in conformity with the notice and comment rulemaking provisions of the Act -- an argument to which I now turn.

 Petitioners do not argue that the two sets of regulations are, as applied, substantially different so that detainees have been or are being treated differently depending on which set of regulations provided the basis for their original detention. Nor do they, for purposes of this motion at least, dispute the Government's representation that any alien entitled to release under the currently effective regulations will be released without regard for the basis for his original detention. Rather, they argue that, since the INS internal guidelines pursuant to which pre-July 9, 1982 detentions were effected were defective under the notice and comment rulemaking provisions of the Act, that procedural defect renders their continued detention unlawful.

 On June 18, 1982, Judge Eugene Spellman of the United States District Court for the Southern District of Florida ruled that what was shown to be the government's shift to a "new policy" with respect to the detention and parole of Haitian refugees was a "rule" within the meaning of § 551(4) of the Act not otherwise excepted from the Act's rulemaking provisions and that this policy was, accordingly, unlawfully promulgated and void because the government failed to comply with the notice and comment rulemaking requirements of § 553(b) and (c) of the Act. Louis v. Nelson, 544 F. Supp. 973 (S.D. Fla. 1982). This aspect of Judge Spellman's decision was later affirmed by the Court of Appeals. Jean v. Nelson, 711 F.2d 1455, slip op. at 32-51 (11th Cir. 1983). Assuming arguendo that this holding is equally applicable to the shift in policy said by petitioners to have been adopted in the New York district in January 1982, it is undisputed that, as noted above, the INS, on July 9, 1982, published an immediately effective interim rule, later adopted with amendments as a final rule on October 19, 1982, which superseded the agency's pre-existing internal guidelines first implemented in January 1982 and which from the date of publication forward governed the detention and parole of aliens detained after that date and those detained previously and still in custody. In publishing this rule the INS stated that it was doing so in compliance with Judge Spellman's ruling in Louis v. Nelson, 47 Fed. Reg. at 30044. Assuming that this rule was validly promulgated in conformity with the Act and related regulatory requirements, a point which petitioners also contest and which will be addressed below, the promulgation of this rule served to cure and render moot any complaint petitioners may have had with respect to any invalid promulgation of a new rule with regard to aliens in January 1982, recalling that petitioners make no claim that the two sets of regulations afforded them differing treatment. Compare Brown Express, Inc. v. United States, 607 F.2d 695 (5th Cir. 1979); BASF Wyandotte v. Costle, 582 F.2d 108 (1st Cir. 1978); Pickus v. U.S. Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107 (D.C. Cir. 1974). Whatever rights to participate in the rule promulgation process which petitioners may have been denied as a result of the allegedly invalid promulgation of the INS internal guidelines were cured by the fact that they were offered an opportunity to comment on the rule published on July 9, 1982, as part of the Act's rulemaking process.

 However, as has already been indicated, petitioners also argue that, even as published and finally adopted, the INS' inadmissible alien detention and parole regulations were not validly promulgated in conformity with the Act and related regulatory requirements. Accordingly, I turn to that argument.

 First, petitioners assert that the regulations are "in excess of [the] authority" of the INS and thus invalid under 5 U.S.C. § 706 (2)(C). Second, they assert that the regulations are "arbitrary [or] capricious" and thus invalid under 5 U.S.C. § 706 (2)(A). Third, they assert that the INS has failed to show "good cause" for publishing the regulations on July 9, 1982, as an immediately effective interim rule, as the agency must do in order to justify their publication less than 30 days before their effective date. 5 U.S.C. § 553 (d)(3). Fourth, they assert that publication of the regulations was defective because it failed to include the regulatory flexibility analysis required under 5 U.S.C. § 603 and failed to comply with Executive Order 12291.

 Petitioners' contention that the inadmissible alien detention and parole regulations are not within the statutory authority of the INS is based on their assertion that the regulations prescribe mandatory imprisonment of inadmissible aliens contrary to what is said to be Congress' intent that detention be the exception rather than the rule. However, while the Court has the power under § 706 of the Act to set aside agency action in excess of statutory authority, Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 102 (2d Cir.), cert. denied, 400 U.S. 949, 27 L. Ed. 2d 256, 91 S. Ct. 237 (1970), I do not find that the regulations in question are ultra vires.

 The Immigration and Naturalization Act, as amended, provides that every alien (other than crewmen, stowaways, and security risks who are governed by other provisions) "who [upon arrival in the United States] may not appear to the examining immigration officer at the port of arrival 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). *fn4" The procedures for such inquiry are governed by 8 U.S.C. § 1226. See also 8 C.F.R. § 236.1. That detention of inadmissible aliens is contemplated by the federal immigration laws to be the rule rather than the exception is further indicated by the fact that the Attorney General is expressly authorized temporarily to parole into the United States "under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States...." 8 U.S.C. § 1182 (d)(5). Significantly, the statute further provides:

 "[S]uch parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States."

 Id. These are in fact the statutory provisions on which the INS relied when it first published the regulations in question. See 47 Fed. Reg. at 30044.

 Nor do the regulations provide for "mandatory imprisonment" as petitioners allege. The regulations state, inter alia, that "[a]ny alien who appears to the inspecting officer to be inadmissible and who arrives without documents ... or who arrives with documentation which appears on its face to be false, altered, or to relate to another person ... shall be detained in accordance with [8 U.S.C. § 1225(b)]" and that "[p]arole of such aliens may be considered in accordance with [the provisions of the regulations now set forth at 8 C.F.R. § 212.5(a)]." 8 C.F.R. § 235.3(b). While the provisions of § 212.5(a) limit the availability of parole to aliens who have serious medical conditions, who are pregnant or juveniles, who have had relative petitions filed on their behalf, who will be witnesses in proceedings being or to be conducted by judicial, administrative or legislative bodies in the United States, or whose "continued detention is not in the public interest as determined by the district director," such restrictiveness is not at all inconsistent with Congress' authorization of parole "for emergent reasons or for reasons deemed strictly in the public interest...." 8 U.S.C. § 1182 (d)(5). As the INS noted in its initial publication of the regulations, the legislative history of the Attorney General's parole authority shows a Congressional intent that that authority be exercised restrictively:

 "The drafters of the Immigration and Nationality Act of 1952 gave as examples situations where parole was warranted in cases involving the need for immediate medical attention, witnesses, and aliens being brought into the United States for prosecution. H. Rep. No. 1365, 82nd Cong., 2d Sess. at 52 (1952). In 1965, a Congressional committee stated that the parole provisions 'were designed to authorize the Attorney General to act only in emergent, individual, and isolated situations, such as the case of an alien who requires immediate medical ...


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