The opinion of the court was delivered by: WEINFELD
This is an application by a group of aliens who sought to enter the United States illegally for a writ of habeas corpus
to enjoin the District Director of the Immigration and Naturalization Service ("INS" or "Service") from excluding them from the United States and for their release on parole pending a hearing and determination of their applications for political asylum pursuant to § 242(b) of the Immigration and Naturalization Act ("the Act").
Petitioners are 25 of a group of 78 Cuban natives who attempted to enter the United States from Spain at John F. Kennedy Airport on December 21, 1984. The travel documents they presented upon arrival were found to be counterfeit and fraudulent by the INS.
Accordingly, because none of the group was "clearly and beyond a doubt entitled to land," all were detained pending exclusion hearings.
Of the 78 initially detained, 26 single males without family ties to the remainder of the group were taken into immediate custody and transferred to Houston, Texas. The remaining 52 consisted of family groups including adult men and women, and their children. Because there were no available facilities in New York adequate to house these family groups, they were detained in the custody of the airline carriers which brought them here.
The carriers were instructed to present the aliens to the Immigration Court on December 26, 1984 at the Federal Office Building, New York City. However, sometime prior to that date, 13 of the 52 aliens had absconded under "unknown circumstances" from a hotel where the airline carriers had lodged them. Evidently, because of loose security safeguards, the abscondees just walked out of the hotel. All 13 remain at large.
Later, on December 26, 1984, the airlines presented the 39 remaining individuals in their custody to the Immigration Court in New York City. The exclusion hearings were then adjourned to afford them time to obtain counsel and to file applications for political asylum. Two juveniles were paroled into their father's custody in Miami and their proceedings were transferred to Miami.
With this parole of the children, the number of aliens remaining in custody in New York was 37. Within several days thereafter, all detainees were represented by retained counsel or by authorized pro bono publico representatives.
With respect to all pending applications for political asylum, the Immigration Court sought advisory opinions from the Department of State, Bureau of Human Rights and Humanitarian Affairs, as to the merits of the asylum claims,
and pending their receipt, adjourned the exclusion hearings to various dates in late March, April, and early May, 1985. All parole requests were denied because petitioners had failed to meet the requirements as specified in the regulations.
On January 11, 1985, the Service was informed by the airline carriers that a family of four, two adults and two children (represented by petitioners' counsel), also somehow had managed to escape from custody and in this instance, too, the airlines' security personnel were unable to account for the escape. At this point, the total number of absconding aliens was 17, approximately one-third of the original 52 who had been detained upon arrival in New York. Following the latest escape, the District Director's Office determined, in the interests of security, that any remaining adult, not the parent of a child in carrier custody, should be transferred to the New York Service Processing Center ("SPC"). Two individuals were in that category and were transferred to the SPC along with a third, who volunteered to accompany his brother. Thus, 29 still remained at the hotel under the undesirable airline security supervision.
On January 15, 1985, the Service was advised that accommodations adequate to take care of the remaining 29, which included adults and children, were available at El Paso, Texas. Arrangements were made to transfer the group to El Paso by plane scheduled to depart from LaGuardia Airport via Eastern Air Lines on the afternoon of January 16, 1985. Counsel for the respective departees were notified of the proposed transfer. According to the return to this application filed by the Assistant Director of Detention, the group boarded the aircraft no later than 2:30 p.m., the plane left the gate and began taxiing toward the runway between 2:40 p.m. and 2:50 p.m., and departed shortly thereafter, arriving in El Paso, Texas on the evening of January 16, 1985. Remaining behind were two of four adult aliens held in Service custody, including one of the named petitioners in this proceeding.
According to petitioners' counsel, the petition was filed in this Court at approximately 2:15 p.m. on January 16th but was not signed by Judge Goettel until sometime between 2:35 and 2:45 p.m. by which time the plane had already taken off and was somewhere over the state of New Jersey or Pennsylvania with the petitioners still in the control and custody of representatives of respondent.
However, the fact is that Judge Goettel struck a clause in the order to show cause which would have stayed the departure of the petitioners until the hearing and determination of this petition for a writ.
In any event, there are presently in custody at El Paso 31 aliens of the original group. The males, seventeen years and older, are detained at the Service Processing Center, which is owned and operated by the INS. The females and all juveniles are detained at "Alternative House," a nearby facility accommodating family groups, which is a privately owned facility under contract to the United States Marshal's office. "Alternative House" is a former motel that has been converted to a minimum security facility, and is accredited by the American Correctional Association. It has recreational facilities indoors and outdoors, televisions in each room, and available laundry facilities. Mothers and children in the group have not been separated. Finally, the Director's return states that legal services, both private and pro bono publico, are and have been made available to all the detained members of the group.
An amended petition filed on behalf of petitioners by an attorney located in this district alleges that all the aliens are unlawfully detained; that they have been deprived of a right to counsel of their choice authorized by 8 U.S.C. § 1362; and that they have been denied procedural due process rights guaranteed by the Fifth Amendment to the United States Constitution.
A threshold issue raised by the District Director is whether this Court has jurisdiction to hear and determine the claims of petitioners since all (except one who is located within the Southern District of New York and as to whom respondent concedes jurisdiction) are now, and have been since the evening of January 16, 1985, in the custody of immigration officials at El Paso, Texas. In sum, respondent contends that this court lacks jurisdiction over the custodian of the El Paso petitioners and that the issues raised by them must be adjudicated in the United States District Court for the Western District of Texas, the place of their detention. The thrust of the argument is that the petitioners were aboard the plane en route to El Paso at the time of the filing of their petition for relief and the issuance of the order to show cause soon thereafter; and that prior to their transfer, they were being detained within the Eastern District of New York, either earlier in the day at Kennedy Airport or just prior to their departure at LaGuardia Airport. Accordingly, the respondent urges that all issues raised by the El Paso petitioners must be adjudicated in El Paso, the place of their present detention, and that their petitions should be dismissed or transferred to the Western District of Texas pursuant to 28 U.S.C. § 1404(a).
The issue, however, is not where respondent placed the petitioners while they were in his custody, but whether the Court had jurisdiction over respondent as petitioners' custodian at the time the petition was filed and the order to show cause served. "The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody . . . . So long as the custodian can be reached by service of process, the court can issue a writ 'within its jurisdiction' requiring the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction."
There can be no question here that the respondent, the District Director, had custody of the petitioners while he was within the Southern District of New York. He maintains his office here and conducts his official activities, including the detention of those who seek to enter into the United States from the airports adjacent to this District, from his office within this District. The fact that he decides to lodge detainees outside the district where he conducts his activities, or as in this case with airlines that may place them in hotels outside the district, does not deprive the District Director of control and custody over those aliens. So, too, when he decided to transfer petitioners to El Paso, Texas, they remained in his continued custody until his agents, who accompanied them throughout the airplane trip, surrendered custody to the immigration authorities at El Paso. Up to that point, the respondent was capable at all times of giving effect to the terms of any order issued under the application for the writ. In sum, as required by 28 U.S.C. § 2243, the application for the writ was properly "directed to the person having custody of the person detained."
Accordingly, the Court holds that it does have jurisdiction to pass upon the merits of the application which it now considers.
At the outset, it is noted that this action is brought by excludees, aliens seeking to enter the United States, and not by resident aliens whom the government seeks to expel. Excludees, although physically present in the United States, are "treated as if stopped at the border."
It is also important to recognize that the Service is required by statute to detain such unadmitted aliens if they are not clearly entitled to land
and that release on parole is an exception to the requirement of detention.
An unadmitted alien has no constitutional right to parole.
This Court may only review discretionary agency decisions with respect to aliens seeking admission into the United States to determine whether the District Director has exercised his discretion and, if so, whether that discretion has been abused. Abuse may be found where the Service or Director has acted "irrationally or in bad faith" or" invidiously against a particular race or group."