race or group or to depart without rational explanation from established policies" -- the determination of the district director may not be disturbed by a reviewing court. Id.
Here, the petitioner argues that insofar as she prevailed at "a detention hearing in District Court, [she] was found not to be either a danger to the community or a flight risk, since bond was in fact set, and posted." Affidavit or Jack Sachs P 7. She argues that her present detention by the INS "virtually contradicts the conditions established by a U.S. Magistrate Judge." Id. Thus, it appears to be her argument that, because a magistrate judge has determined pursuant to 18 U.S.C. § 3142 that conditions other than pretrial detention would "reasonably assure" her presence at trial and would not "endanger the safety of ay other person or the community", any determination by the district director that she should be denied parole would be in tension with that judicial determination and would, therefore, constitute an abused of his discretion.
The argument of the petitioner, however, completely ignores the different standards of 18 U.S.C. § 3142 and of 8 C.F.R. § 212.5. Under Section 3142, a criminal defendant may be released on bond if a judicial officer determines that she presents neither a risk of flight nor a danger to the community. As noted above, Section 212.5 sets forth three categories of aliens for the consideration of the district director in his parole determinations. The petitioner does no argue that she comes within the scope of the first category (aliens "who have serious medical conditions") or within the scope of the second category (aliens whose release would be "strictly within the public interest" by virtue of certain specified factors). Rather, she argues that she falls within the third category -- that of "aliens subject to prosecution in the United States."
But the standards for granting parole to aliens in this third category do not indicate that a district director must consider whether the petitioner is a risk of light or a danger to the community. Instead, Section 212.5(a)(3) provides that these aliens may be paroled into the United States when they are "needed for the purposes of such prosecution." Thus, a denial of parole under Section 212.5(a)(3) is tantamount to a determination that an alien "subject to prosecution in the United States" is not, at the time of the denial, "needed for purposes of such prosecution" and that, accordingly, the grant of parole would not be "strictly in the public interest." There is nothing inconsistent between a determination of that nature and a determination by a judicial officer that a particular alien does not pose either a risk of flight or a danger to the community. It cannot be the case, then, that a denial of parole under Section 212.5(a)(3) is necessarily an abuse of the parole discretion simply because a magistrate judge has set a bond in a criminal case. Thus, because Section 212.5(1)(3) does not implicate the factors considered by the judicial officer under Section 3142, the petitioner may not attack the exercise of discretion by the district director on the bare fact of her pretrial release.
Rather, she must otherwise demonstrate to this court that the denial of parole in her case is "irrational" and not based on a "facially legitimate and bona fide reason." Here, however, the district director indicated to the petitioner (after this petition was filed with the court) that her application for parole was denied because of the "seriousness" of the criminal charges against her and because she has "no relief from exclusion available to her." Letter from Edward J. McElroy to Sachs dated 6/16/92. The second of these stated bases for the denial of parole to the petitioner has been elsewhere approved by the Second Circuit as a factor on which the district director may rely in the exercise of his parole discretion. Bertrand, 684 F.2d at 214-17 ("likelihood of success of . . . alien's political asylum application" is "neither irrational nor unreasonable" as factor in parole determination). Because the petitioner has not shown that the first factor (the seriousness of the charges against her) constitutes such an irrational basis for a parole determination as to negate the legitimacy of the second factor, the petitioner has presented no basis on which this court could conclude that the district director has abused his discretion.
Finally, the petitioner has not even endeavored to argue that the district director has somehow abused his discretion in determining that she is not a present "needed for purposes" of her criminal prosecution. That is, the petitioner has not argued that the district director violated the standard set out on the face of Section 212.5(a)(3) -- the provision under which she seeks parole. Nor has she raised a constitutional argument that her detention has interfered with her rights to confer with counsel or to assist in the preparation of her defense. Indeed, on the one occasion thus far when she was "needed for purposes" of her criminal prosecution -- her arraignment before the magistrate judge - the petitioner was in fact paroled into the United States under Section 212.5(a)(3). She has not demonstrated to the court that the district director, either on that occasion or on any other, has failed to observe the parameters of Section 212.5(a)(3).
For the reasons indicated above, the application for a writ of habeas corpus is denied.
Dated: Brooklyn, New York
June 24, 1992
I. Leo Glasser, U.S. D. J.
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