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ST. FLEUR v. SAVA

August 5, 1985

IN THE MATTER OF THE APPLICATION OF TURNIER ST. FLEUR (A 26 092 896), Petitioner, v CHARLES C. SAVA, District Director, U.S. IMMIGRATION & NATURALIZATION SERVICE, NEW YORK, NEW YORK, Respondent


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER.

HAIGHT, District Judge:

Petitioner Turnier St. Fleur seeks a writ of habeas corpus on the ground that the decision of respondent Charles Sava, District Director of the United States Immigration and Naturalization Service (the "INS" or the "Service"), denying petitioner parole pursuant to Section 212(d)(5) of the Immigration and Nationality Act of 1952, as amended (the "Act"), 8 U.S.C. § 1182(d)(5), was arbitrary, capricious and an abuse of discretion. St. Fleur, an unadmitted Haitian alien, was detained by the INS on May 22, 1985. He seeks release from detention pending adjudication by the Service of his application for political asylum and for a visa based upon his marriage to a United States citizen.

 The matter is before the Court on an Order to Show Cause initially returnable July 2, 1985. After repeated adjournments at the joint request of counsel, oral argument was heard on petitioner's application on July 19, 1985. Decision on the petition was reserved pending submission by petitioner's counsel of further briefs as described infra.

 The INS administrative record reveals that St. Fleur first arrived in the United States on August 26, 1981. He attempted to enter the country by presenting a fraudulent passport to an immigration inspector at Miami International Airport in Miami, Florida, and, as a result, was detained by the INS pursuant to Section 235(b) of the Act. While being held at the INS Krome North Service Processing Center ("Krome") in Miami for deferred inspection and exclusion proceedings, St. Fleur absconded.

 Petitioner states that he then came to New York City where he met Edna Denise Watson, a United States citizen. St. Fleur and Watson were married in Brooklyn, New York on March 7, 1983. A daughter, Sadie Teseane Lawanda St. Fleur, was born of that marriage on October 16, 1983.

 On February 10, 1984, Edna St. Fleur filed an immigrant visa petition (the "I-130 petition") with the INS on her husband's behalf. No decision has yet been made on the I-130 petition.

 On the date that petitioner was apprehended and detained, he filed an application for political asylum (INS Form 559) which is also pending decision. In that application, petitioner alleged that he was beaten, tortured, and imprisoned by the Haitian secret police, ostensibly because his employer had been involved in underground political activities against the Haitian government. Petitioner claims that after his father paid bribe money to obtain his release, he fled the country.

 He explains that he had to use a fraudulent passport to seek entry to the United States because as a political opponent of the Haitian government, he could not obtain a valid one. He also contends that he did not "escape" from the Krome detention center; rather he simply walked out of the facility when the doors were opened by demonstrators. He further contends that ten or fifteen days later, the INS released a large group of Haitian detainees and he asserts that he would have been part of that group.

 Petitioner has properly invoked the habeas jurisdiction of this Court to review the parole decision of the District Director of the INS. Bertrand v. Sava, 684 F.2d 204, 210 (2d Cir. 1982); Abu Laban v. Sava, 564 F. Supp. 30, 31 (S.D.N.Y. 1982). But the scope of judicial review of that decision is necessarily narrow: petitioner must prove that the District Director either failed to exercise any discretion at all in denying parole, or that he exercised his discretion irrationally or in bad faith. Bertrand, 684 F.2d at 213.

 Petitioner concedes that Benjamin Perlitsh, Deputy Assistant District Director of the INS, to whom respondent Sava delegated the authority and discretion to make the parole decision, did exercise that discretion in denying petitioner parole. However, St. Fleur contends that Perlitsh's decision was irrational. I cannot agree.

 By letter dated July 2, 1985, Perlitsh informed petitioner's counsel of the denial of St. Fleur's request for parole and the reasons for that denial. Perlitsh noted that in 1981 when St. Fleur first sought admission to the United States, he had presented a Haitian passport bearing a fraudulent endorsement that he was a lawful permanent resident of this country. Perlitsh also noted that St. Fleur had absconded from the Krome detention center while being held by the INS for further proceedings. Perlitsh concluded: "In view of the means whereby Mr. St. Fleur sought to enter the United States and the fact he absconded from [INS] custody, he does not warrant the exercise of discretion favoring his parole. Your request is denied."

 Petitioner argues that there were mitigating circumstances which justified his actions in 1981, thereby making it irrational for Perlitsh to base his denial of parole on those actions. The argument is unpersuasive.

 While it may be true that petitioner could not obtain a valid passport in order to exit Haiti, he is not excused thereby from seeking to gain admission to the United States with a fraudulent passport. Upon arrival in Miami, petitioner could have explained his situation truthfully to the immigrations inspector and applied immediately for political asylum. Instead, he sought to gain entry deceitfully and waited four years to apply for political asylum. Under these circumstances, it cannot be said that is was irrational ...


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