Appeal from an order of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, granting a petition for a writ of habeas corpus requiring the United States Immigration and Naturalization Service to hold a hearing on appellee's claim for political asylum although appellee had been summarily excluded from the country as a danger to United States security.
Friendly, Oakes, and Winter, Circuit Judges. Friendly, Circuit Judge, concurring in result in part and dissenting in part.
This case raises a novel question concerning the relationship between section 235(c) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1225(c) (1982) ("Act"),*fn1 and the procedures provided applicants for political asylum pursuant to the Refugee Act, 8 C.F.R. § 208 (1985). The Immigration and Naturalization Service (INS) summarily excluded Yakoub Rattib Azzouka from this country under section 235(c) for being a threat to "the public interest" or the "welfare, safety, or security of the United States." 8 U.S.C. § 1182(a)(27). Nevertheless, Azzouka filed an application for political asylum, which the INS in turn summarily denied, claiming that the exclusion determination under section 235(c) barred Azzouka from seeking asylum as a "danger to the security of the United States," 8 C.F.R. § 208.8(f)(1)(vi), and that Azzouka was not entitled to an asylum hearing before an immigration judge. The United States District Court for the Southern District of New York, Leonard B. Sand, Judge, then granted Azzouka's petition for a writ of habeas corpus requiring the INS to allow an immigration judge to hold a hearing on Azzouka's claim for political asylum, relying on our decision in Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir. 1983). We reverse and remand.
Azzouka, a Yemenese national of Palestinian extraction carrying a valid Yemenese passport, arrived in the United States on September 8, 1984, and sought to enter the country pursuant to a legitimate nonimmigrant visitor's visa. Azzouka told INS officials that he intended to visit a cousin living in Virginia for a month and then to return to Yemen. He made no mention at that time of his desire to seek asylum here. When his belongings were examined, however, INS officials found various false documents including two fraudulent passports. Moreover, they discovered that he had no return ticket to Yemen. Although the passport and visa he was using were valid, the officials decided to refuse entry under section 235(b) of the Act, 8 U.S.C. § 1225(b), considering Azzouka an alien not "clearly and beyond a doubt entitled to land." They determined that Azzouka might well be excludable under sections 212(a)(19), 8 U.S.C. § 1182(a)(19) (procuring visa by fraud), and 212(a)(20), id. § 1182(a)(20) (immigrant without valid immigration visa). Azzouka then surrendered himself to INS custody and elected to appear before an immigration judge on the issue of excludability.
Before that hearing could take place, Azzouka was charged on September 12 in the Eastern District of New York with violating 18 U.S.C. § 1543 (1982), which proscribes the "willful use" of false passports. The Government, however, soon amended its theory of criminal liability and instead indicted Azzouka for three violations of 18 U.S.C. § 545 (1982), the smuggling statute, which prohibits passing false papers through the customhouse. After moving to dismiss the indictment on the ground that section 545 does not apply to false travel documents, cf. United States v. Borello, 766 F.2d 46, 53 (2d Cir. 1985) (suggesting that under section 545 "the importation of goods would necessarily be involved"), Azzouka entered into an agreement to talk with the FBI concerning his knowledge about the Palestine Liberation Organization (PLO), for which Azzouka had apparently worked as clerk, messenger, and driver for two years prior to his departure from Yemen in September. In exchange, the Government dropped all criminal charges in January 1985.
On February 5, 1985, INS cancelled the exclusion proceedings begun in September and placed Azzouka under the more restrictive category of temporary exclusion pursuant to section 235(c). See supra note 1. In response Azzouka submitted a four-page letter to the Regional Commissioner, the INS official charged with making the exclusion determination under section 235(c).*fn2 The letter described Azzouka's relationship with the PLO and asserted that Azzouka did not constitute a "hazard to the nation's security." At the same time, counsel stated that Azzouka would be filing an application for asylum and that under our decision in Chun, "Mr. Azzouka is entitled to a hearing on the merits of his asylum claim notwithstanding the fact that he may be otherwise excludable without a hearing under section 235(c)." Azzouka based his application on a claim of well-founded fear of persecution by the PLO, alleging that if he returned to the Middle East he "would be severely punished and possibly executed by the PLO because [he] deserted that organization for political reasons."*fn3 In his brief before this court, counsel states that this asylum request had been planned for some time before February but that Azzouka's inability to find adequate immigration counsel postponed the filing of the application.*fn4
On February 27, the Regional Commissioner found Azzouka summarily excludable under section 235(c) as an alien deemed excludable under section 212(a)(27) of the Act, 8 U.S.C. § 1182(a)(27), which applies to aliens whose conduct "would be prejudicial to the public interests or endanger the welfare, safety, or security of the United States." The Regional Commissioner made no determination as to what part of paragraph (27) Azzouka fell under. The Regional Commissioner held that his decision was "based upon confidential information, the disclosure of which would be prejudicial to the public interest, safety or security of the United States." As a result, pursuant to section 235(c), Azzouka was excluded without a hearing before an immigration judge.
Shortly thereafter, on March 5, Azzouka filed a petition for habeas corpus in federal district court to enjoin his deportation until he received a hearing before an immigration judge on his asylum claim and to force the District Director -- the INS official charged with making the determination about asylum claims -- to make a decision. The next day the District Director denied Azzouka's application for asylum on the basis that the Regional Commissioner had already determined that Azzouka was excludable under section 1182(a)(27), and that he was therefore ineligible for asylum under 8 C.F.R. § 208.8(f)(1)(vi): "there are reasonable grounds for regarding the alien as a danger to the security of the United States," thus mooting Azzouka's second claim. Azzouka maintained, however, that as a bona fide asylum applicant subject to exclusion he was entitled under Chun to a hearing before an immigration judge on his asylum claim, including a hearing on whether he constitutes a danger to national security. The Government countered that Chun was distinguishable as not involving security risks and that Azzouka could only directly challenge the Regional Commissioner's discretionary section 235(c) determination.
The district court granted Azzouka's habeas petition, remanding to INS "for a hearing at which petitioner will be entitled to renew his request for asylum." The court found Chun controlling. According to the district court, Chun held that all asylum applicants must be given a hearing regardless of their status. The court noted that granting the petition would not be "a futile exercise" in light of the "significant difference in procedure and level of review, depending upon whether the summary exclusion or asylum procedures are followed." This appeal followed.
In 1952, Congress enacted section 235(c),*fn5 to turn back aliens who pose "a menace to this Nation's security," Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 219, 97 L. Ed. 956, 73 S. Ct. 625 (1953) (Jackson, J., dissenting). Under section 235(c) and the accompanying regulation, 8 C.F.R. § 235.8 (1985), when an INS official concludes that an alien may be excludable under paragraphs (27), (28), or (29) of section 212(a) of the Act, 8 U.S.C. § 1182(a), no proceedings are to be held until after the case is reported to the Regional Commissioner together with such statements of information that the alien desires to submit. Section 212(a), in turn, lists classes of excludable aliens. The class most relevant to this case is described in paragraph (27) as
aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or ...