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PIERRE v. UNITED STATES INS

June 24, 1992

MARIE MARCALLE PIERRE, Petitioner, against UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, BY ITS DISTRICT DIRECTOR AT NEW YORK, NEW YORK, Respondent


The opinion of the court was delivered by: I. LEO GLASSER

  GLASSER, United States District Judge:

 The petitioner, an alien currently subjected to exclusion proceedings, is under detention by the Immigration and Naturalization Service ("INS"). She has applied to this court for a writ of habeas corpus. For the reasons indicated below, her application is denied.

 FACTS

 The petitioner, Marie Marcalle Pierre, is a citizen of Haiti. On November 29, 1988, the Attorney General of the United States granted her the status of "an alien lawfully admitted for temporary residence" pursuant to 8 U.S.C. § 1255a(a). She has not since applied for adjustment of her status to that of "an 8 U.S.C. § 1255a(b). On March 31, 1991, the petitioner was notified by the INS that her status as a temporary resident alien would be terminated under 8 U.S.C. § 1255a(b)(2) if she did not apply for status as a permanent resident alien. Although she did not make such an application, it does not appear that the Attorney General has yet revoked her temporary resident alien status.

 The Attorney General initially paroled the petitioner into the United States for the purpose of prosecution, but he revoked her parole on May 13, 1992. The INS has now initiated exclusion proceedings against the petitioner on the grounds that she had admitted to the commission of an offense "relating to a controlled substance" (8 U.S.C. § 1182(a)(2)(A)(i)(II)), that she is a "trafficker" of a "controlled substance" (8 U.S.C. § 1182(a)(2)(C)), and that she "is likely . . . to become a public charge" (8 U.S.C. § 1182(a)(4)). Affidavit of Scott Dunn P 5. On May 27, 1992, the petitioner applied to INS Assistant District Director Edward McElroy for parole into the United States. That application informed McElroy that the petitioner is a "temporary resident . . . [and] a . . . citizen of Haiti" who was "apprehended a [John F. International Airport] and charged with importation of cocaine." Letter of Jack Sachs to McElroy dated 5/27/92. On June 16, 1992 (after this order to show cause was presented to this court), McElroy denied the petitioner's application for parole. He determined that because of the "seriousness and gravity of the charges against Ms. Pierre, as well as the fact that there is no relief from exclusion available to her, it has been decided to maintain custody of Ms. Pierre at this time." Letter of Edward J. McElroy to Sachs dated 6/16/92. The Assistant District Director indicated that the "release of Ms. Pierre is not in the public interest." Id.

 The petitioner now seeks a writ of habeas corpus from this court. She argues that there should be "a burden upon the branch of the government now detaining petitioner (the INS) to show why petitioner should not be released, or rather paroled in to [sic] the United States for purposes of her prosecution, and why the Attorney General is to abusing his discretion in keeping petitioner detained under these circumstances." Affidavit of Jack Sachs P 8.

 DISCUSSION

 Section 1182 of Title 8 of the United States Code provides that certain classes of aliens "shall be excluded from admission into the United States." To the end of determining whether particular applicants for admission into this country may be excludable, 8 U.S.C. § 1225(a) provides that "all aliens arriving at ports of the United States shall be examined by one or more immigration officers . . . ." Furthermore, under 8 U.S.C. § 1225(b), "every alien . . . who may not appear to the examining officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry . . . ." However, the Attorney General may under 8 U.S.C. § 1182(d)(5)(a), "in his discretion parole into the United States temporarily" any alien who seeks admission into the United States. Section 1182(d)(5)(A) provides that such parole must be "for emergent reasons or for reasons deemed strictly in the public interest . . . ."

 Under 8 C.F.R. § 212.5(a), the Attorney General delegates his authority to make such parole determinations to INS district directors. That section of the regulations further provides that, in making such determinations, the district direct "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 ...


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