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MASAKI HAMAYA v. MCELROY

July 2, 1992

MASAKI HAMAYA, Petitioner,
v.
EDWARD J. McELROY, Assistant District Director, Deportation, Immigration and Naturalization Service, New York District Office, Respondent.



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

 GLASSER, United States District Judge:

 Petitioner Masaki Hamaya, age 31, is a citizen of Japan. He has resided in the United States since 1983, and received permanent resident status here in 1987. In February 1989, Hamaya was convicted in South Carolina of possession of one tablet containing mescaline -- a misdemeanor under S.C. Code Ann. § 44-53-370 -- and received an alternative sentence of two months' imprisonment or a $ 200 fine.

 Hamaya departed the United States for a business trip to Japan in late April 1991, and returned on March 7, 1992. On attempting to re-enter the United States, Hamaya was detained as an alien excludable on the basis of a drug-related offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Hamaya then obtained counsel, who made a written application for release on parole to respondent McElroy, the Assistant District Director for the Immigration and Naturalization Service (INS) charged with rendering decisions concerning discretionary release. By letter dated April 3, McElroy denied Hamaya's request on the grounds of risk of flight.

 Hamaya now petitions this court for relief from the INS denial of parole. While Hamaya's petition appears at certain points to request an order compelling the INS to release him on security bond, *fn1" the thrust of the petition is that due process entitles him to a hearing on the issue of parole. In so arguing, Hamaya relies primarily on the argument that his resident alien status entitles him to due process protection comparable to that accorded to aliens subjected to deportation from within the United States. Because this court agrees that Hamaya is entitled to a hearing as a matter of due process, the petition is granted.

 I. The Statutory and Regulatory Framework

 An alien admitted to the United States is subject to "deportation" under section 242 of the Immigration and Naturalization Act of 1952 ("the Act"), codified at 8 U.S.C. § 1251. By contrast, an alien --whether a returning permanent resident or a first-time arrival -- who seeks admission to the United States at the border is subject to "exclusion" *fn2" under section 212 of the Act, 8 U.S.C. § 1182.

 The distinction between deportation and exclusion is significant, as "deportation proceedings are generally more favorable to the alien than exclusion proceedings." Correa v. Thornburgh, 901 F.2d 1166, 1171 n.5 (2d Cir. 1990). An alien subject to deportation, as opposed to one facing exclusion, enjoys a panoply of statutorily guaranteed rights, including the right to advance notice of the charges, the imposition of the burden of proof on the government, direct appeal of an adverse determination to the circuit court, and the right to designate the country of destination. Id.; see also Landon v. Plasencia, 459 U.S. 21, 25-27, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982); Maldonado-Sandoval v. INS, 518 F.2d 278, 280 n.3 (9th Cir. 1975).

 Among the differences between deportation and exclusion proceedings is the provision for release pending resolution on the merits. Under 8 U.S.C. § 1182(d)(5)(A), an alien subject to exclusion may be provisionally admitted to the United States:

 
The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission. . . .

 The Attorney General has delegated responsibility for making such decisions to the respective district directors, pursuant to 8 C.F.R. §§ 100.2(e) and 212.5. Section 212.5 narrowly defines the terms of the statute:

 
(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 (parent, spouse, children, or siblings who are United States citizens or lawful permanent resident aliens) who are eligible to file, and have filed, a visa petition on behalf of the detainee;
 
(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 ...

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