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BALBEER SINGH v. NELSON

December 12, 1985

BALBEER SINGH, SINGH MOHAN, MOHAMMED DAWOOD, ARSALAIE RAZIQ, IBADULLAH SARWARY, NASRULLAH, MOHAMMED AKBAR SHAH, ABDUL WAHID, MOHAMMAD AMMER ETIMADY, ABDUL BARI RAFIQI, FOUZIA MASOUD, ABDUL GHAFOOR MASSOUD, FAHIMA SIDDIQI, MOHAMMAD KABIR, MOHAMMAD DAUD AHMADZAI, ABDUL SAMAD MOMEN, ABDUL RASHID, AZATULLAH NASSERY, SUNIL KUMAR KHANNA, CHARAN JEET KUCHAR, RAM NARAIN KAKAR, MOHAMMAD OMAR DILDAR, DIN MOHAMMAD ZAHRE, AGHA MOHAMMAD RAFIQI, HEMRAQ AHUJA, SHAH MAHMOOD DILDAR, SAYED MOHAMMAD SALEH, NAJEEBULLAH WOUDOOD, RAHIMULLAH WOUDOOD, EZATULLAH NASSERY and FREIDON HOBBI, Petitioners,
v.
ALAN C. NELSON, as Commissioner of the Immigration and Naturalization Service, CHARLES C. SAVA, as District Director of the New York District of the Immigration and Naturalization Service, and JOANNE WHITTAKER, as Deputy Assistant District Director for Detention and Deportation of the New York District of the Immigration and Naturalization Service, Respondents.



The opinion of the court was delivered by: LEISURE

LEISURE, District Judge :

Petitioners are refugees from Afghanistan held in detention in the custody of the Immigration and Naturalization Service ("INS" or "Service") at the Service Processing Center, 201 Varick Street, New York, New York ("SPC"), pending the completion of exclusion proceedings to determine their admissibility to the United States. *fn1" Pursuant to 28 U.S.C. § 2241(c) (1982), they challenge the legality of their continued detention under domestic and international law. The parties have agreed that there is no need for discovery or an evidentiary hearing, since all the relevant facts have been presented to the Court by way of affidavits and other documents.

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

 According to petitioners, they are opponents of the Soviet-backed regime governing Afghanistan. They have actively assisted the Mujahedeen or "freedom fighters" who are resisting the Soviets and the Afghan government. Many were imprisoned and tortured because of their opposition. They fled Afghanistan fearing further persecution. Initially some travelled to Pakistan, then continued to India. In Pakistan and India they were threatened and attacked by agents of the Afghan government and Pakistani Communists. Those who applied, pursuant to 8 U.S.C. § 1157 (1982), for asylum and refugee status at United States embassies in India and Pakistan in order to gain admission to the United States were unsuccessful in such efforts, apparently because they did not have sufficiently close ties to the United States. Applicants abroad who are denied visas are entitled to no further hearing. 8 C.F.R. § 207.4 (1985). See Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir.), cert. denied, 439 U.S. 828, 58 L. Ed. 2d 121, 99 S. Ct. 102 (1978).

 In desperation they purchased plane tickets and travel documents from people in Pakistan and India and made their way to the United States. At various times from July 10, 1984 to March 20, 1985, petitioners arrived in the United States at John F. Kennedy International Airport from England, Holland, Romania, Pakistan and India. Some had travelled through several countries after leaving Afghanistan. Following their arrival here they were inspected pursuant to 8 U.S.C. § 1225 (1982) (Section 235 of the Immigration and Nationality Act ("Act")) to determine whether they were eligible for admission. The inspections revealed "in each case that either, one, they were not in possession of any documents with which to enter the United States or, two, those that did present documents in connection with their applications for admission presented obviously fraudulent ones." Affidavit of J. Scott Blackman, Assistant District Director for Detention, Deportation and Parole of the INS, New York District P 4 ("Blackman Aff."). Several petitioners have admitted in sworn statements that they had used the services of professional smugglers to aid them in their journeys to this country.

 After this inspection, each petitioner was deemed excludable pursuant to one or more of the categories set forth in 8 U.S.C. §§ 1182(a)(19), (20) or (26) (1982), as having attempted to enter the United States by means of fraud and willful misrepresentation; as immigrants not in possession of valid unexpired immigrant visas; or as nonimmigrants not in possession of proper documents with which to enter the United States. As a result, each was found to be not clearly admissible under 8 U.S.C. § 1225(b). Section 1225(b) mandates that every alien seeking entry to the United States who does not appear to be "clearly and beyond a doubt" entitled to be admitted shall be detained pending an exclusion hearing. Exclusion hearings are evidentiary hearings held pursuant to 8 U.S.C. § 1226 (1982), from which district court judicial review may be sought pursuant to 8 U.S.C. § 1105a(b) (1982). The district court's decision ultimately may be appealed to the Supreme Court. See generally Louis v. Nelson, 544 F. Supp. 973, 978 (S.D. Fla. 1982), rev'd and remanded sub nom. Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (en banc), aff'd, 472 U.S. 846, 105 S. Ct. 2992, 86 L. Ed. 2d 664 (1985).

 Upon arrival in the United States, petitioners applied, pursuant to 8 U.S.C. § 1158(a) (1982), for political asylum on the grounds that they were refugees and would be persecuted in their home countries. Contrary to petitioners' version of events, the government claims that none of the petitioners applied for asylum until they arrived in the United States.

 Following receipt of the asylum claims, advisory opinions on those claims were sought from the Department of State, Bureau of Human Rights and Humanitarian Affairs, pursuant to 8 C.F.R. § 208.10(b) (1985). These regulations provide that hearings before an immigration judge should be held after the State Department renders an opinion. In the cases of at least nineteen petitioners, the State Department and the immigration judges have determined that petitioners had a well-founded fear of persecution or even death upon their return to Afghanistan. Petition PP 28-36, 38-41, 43-48. On that basis deportation was withhheld, but the political asylum applications have been denied as a matter of discretion. Id. PP 28-36, 38-41, 47-48, 58. *fn2"

 An alien has the right to appeal a decision of an immigration judge to the Board of Immigration Appeals ("BIA"). 8 C.F.R. §§ 3.1(b)(1) and 236.7 (1985). A BIA decision may be appealed directly to the Circuit Court pursuant to 8 U.S.C. § 1105a(a) or, if the alien is in detention, reviewed by the district court by way of a habeas corpus petition. 8 U.S.C. § 1105a(b). An undocumented excludable alien who chooses to exhaust his right to appeal conceivably could remain in detention for several years. The INS has represented, however, that it is doing whatever is possible to "insure the expeditious conclusion of these proceedings." Blackman Aff. PP 8 & 9.

 On March 5, 1985, the Afghans detained at the SPC pending exclusion proceedings began a hunger strike with the objective of obtaining release from custody. The hunger strike ended on March 14, 1985. As a result of this incident, the INS reviewed the files of the detainees to consider parole requests on a case-by-case basis and determined that three individuals had been released from custody, two had been deported, and the others appeared ineligible for parole release. The District Director withheld his final decision for fifteen days to allow the submission of supplemental information, which was never received. A second hunger strike occurred during the month of September 1985.

 APPLICABLE STATUTES AND REGULATIONS

 Petitioners are being detained by authority of the following statutory provisions, regulations and administrative guidelines. Section 235(b) of the Act, 8 U.S.C. § 1225(b), provides that every alien seeking entry to the United States, who does not appear to be clearly and beyond a doubt entitled to be so admitted, shall be detained pending an exclusion hearing. The only exception to detention is through the exercise of the parole authority set forth in 8 U.S.C. § 1182(d)(5) (1982). As set forth in the margin, § 1182(d)(5) permits the Attorney General to parole anyone for emergent reasons or for reasons in the public interest, "but such parole of such alien shall not be regarded as an admission of the alien." *fn3" A grant of parole therefore does not mean that an excludable alien who is paroled has technically entered the United States. Aliens who have entered the country, even illegally, are considered "deportable" aliens and have greater and different rights than aliens such as petitioners, who, because they were stopped at the airport before they entered the country, are considered "excludable" aliens. In Jean v. Nelson, supra, the Eleventh Circuit thoroughly discussed the so-called "entry doctrine fiction" that draws a distinction between the legal status of excludable aliens as compared to the legal status of deportable aliens. 727 F.2d at 967-75.

 Criteria for the exercise of the parole authority are set forth by 8 C.F.R. §§ 235.3(b)&(c) and 212.5(a) (1985), and the Service's Detention Policy Guidelines of June 27, 1983. Section 235.3(b) provides in relevant part:

 
Aliens with no documentation or false documentation. Any 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 section 235(b) of the Act. Parole of such aliens shall only be considered in accordance with § 212.5(a) of this chapter.

 According to 8 C.F.R. § 235.3(c), an alien who appears to be inadmissible, but who has valid documentation may be detained, paroled, or paroled for deferred inspection. "In determining whether or not an alien shall be detained, paroled or paroled for deferred inspection, the inspecting officer shall consider the likelihood that the alien will abscond or pose a security risk." Id.

 Section 212.5(a) provides that in determining whether to parole an alien, the district director should consider the following:

 
(1) The parole of aliens who have serious medical conditions in which continued detention would not be appropriate would generally be justified by "emergent reasons";
 
(2) The parole of aliens within the following groups would generally come within the category of aliens for whom the granting of the parole exception would be "strictly in the public interest", provided that the aliens present neither a security risk nor a risk of absconding:
 
(i) Women who have been medically certified as pregnant;
 
(ii) Aliens who are defined as juveniles . . .;
 
(iii) Aliens who have close family relatives in the United States . . .;
 
(iv) Aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States;
 
(v) Aliens whose continued detention is not in the public interest as determined by the district director.
 
(3) Aliens subject to prosecution in the United States who are needed for the purposes of such prosecution may be paroled to the custody of the appropriate responsible agency or prosecuting authority.

 Certain of these categories are based upon the parole statute's legislative history and the administrative experience of the INS. 47 Fed. Reg. 30,044-45 (1982). For example, the House Report that accompanied passage of the Act described the discretionary ...


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