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OMAR AHMED ALI v. RENO

August 16, 1993

OMAR AHMED ALI, Petitioner,
v.
JANET RENO, as Attorney General of the United States, and RICK M. REISH, Warden, Federal Correctional Facility, Otisville, New York, Respondents. OMAR AHMED ALI, Petitioner, v. JANET RENO, as Attorney General of the United States, Respondent.



The opinion of the court was delivered by: CHARLES L. BRIEANT

 Brieant, J.

 On July 9, 1993, Petitioner Omar Ahmed Ali, an Egyptian cleric being detained by Immigration and Naturalization Services at the Federal Correctional Institution in Otisville, New York, in this district filed a Petition for a Writ of Habeas Corpus pursuant to Section 2241, 28 U.S.C. § 2241. The Petitioner seeks review of the July 2, 1993 Order of James W. Pomeroy, District Director of the Immigration & Naturalization Service, in which the Petitioner's parole was revoked pursuant to Regulation 212.5(d)(2)(i) of Chapter 8 of the C.F.R.

 On July 12, 1993, Petitioner filed a second Petition for a Writ of Habeas Corpus to review an Order of the Board of Immigration Appeals dated July 9, 1993 that dismissed an appeal from a decision of Immigration Judge Daniel J. Meisner dated March 16, 1993. Certified Record, at 1-8. *fn1" In the March 16, 1993 decision, the Immigration Judge decided that he lacked jurisdiction to review District Director Pomeroy's March 6, 1992 Order rescinding Petitioner's permanent resident status. The Immigration Judge also denied Petitioner's application for political asylum or the withholding of deportation to Egypt and found that there were reasonable grounds for regarding the Petitioner as a danger to the security of the United States. Record, at 92-116.

 On July 15, 1993, this Court held a joint case management conference for both cases. At this conference, Petitioner presented the Court with a proposed Order to Show Cause, to be issued pursuant to Section 2243 of Title 28, 28 U.S.C. § 2243, directing the respondents to show cause why a writ of habeas corpus should not be granted setting aside the final order of exclusion and the District Director's rescission of Petitioner's status as a lawful permanent resident. See Court File No. 93 Civ. 4683, Doc. No. 4. The Order to Show Cause was issued and made returnable on July 23, 1993. *fn2" The return date was later adjourned on consent until August 2, 1993 and the parties agreed that deportation would be stayed until ten days after a decision by this Court on the Order to Show Cause. See Court File No. 93 Civ. 4661, Doc. No. 6; Court File No. 93 Civ. 4683, Doc. No. 7. At the case management conference, the Petitioner and the Government agreed that the petitions for a Writ of Habeas Corpus present issues of law only, which can be resolved on the administrative record developed below. See July 15, 1993 Transcript, 2-3, 4.

 On August 2, 1993, this Court held a hearing, and after oral argument, the Court reserved decision. The following constitutes this Court's decision on all of the issues presented in the petitions for a Writ of Habeas Corpus filed on July 9, 1993 and July 12, 1993, respectively.

 As a preliminary matter, the Court notes that it has subject matter and in personam jurisdiction to review the order terminating parole pursuant to Section 1329 of Title 8, 8 U.S.C. § 1329 (1970 & Supp. 1993) *fn3" and Section 2241 of Title 28, 28 U.S.C. 2241 (1971 & Supp. 1993), insofar as the Petitioner is in custody pursuant to the Immigration & Nationality Act and such custody allegedly is in violation of the Constitution, the Act and the regulations promulgated thereunder. See Bertrand v. Sava, 684 F.2d 204, 209 (2d Cir. 1982) (federal courts may exercise habeas corpus jurisdiction to review allegations that an INS District Director has abused his discretion in making parole decisions). The statutory authority for this Court's exercise of jurisdiction over the petition for review of the final order of exclusion is found in Section 1105a(b) of Title 8, 8 U.S.C. § 1105a(b) (1970 & Supp. 1993). *fn4" Venue is proper in both cases because the Petitioner is confined at a federal facility within this District. 28 U.S.C. § 2241(d).

 Our consideration of the issues raised by the Petitioner requires a brief review of the relevant uncontested facts and the prior administrative proceedings had herein. On December 16, 1990, the Petitioner, a 55 year old citizen of Egypt who is blind, entered the United States as a non-immigrant visitor. Record, at 104, 174-75. On January 31, 1991, Petitioner applied for an adjustment of his immigration status from that of a visitor to that of an alien lawfully admitted for permanent residence. Record, at 407-409 (Form I-485, Application for Status as a Permanent Resident). On April 8, 1991, the Immigration and Naturalization Service granted the Petitioner's application for lawful permanent resident status as a "minister of religion." Record, at 407. See 8 U.S.C. § 1101(a)(27)(C)(ii)(I).

 In June of 1991, the Petitioner left the United States and went on a Haj, or religious pilgrimage, to Saudi Arabia. Record, at 23. On July 31, 1991, Petitioner presented himself to immigration inspectors at J.F.K. International Airport and sought to be readmitted into the United States as a returning resident alien. Instead, Petitioner's inspection was deferred and he was paroled into the United States pending completion of his inspection. See Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 1.

 After several interviews and by notice dated , 1992 (probably January 16, 1992 but the date is illegible on the copy of the document submitted to this Court), the District Director advised the Petitioner of the Immigration and Naturalization Service's intent to rescind Petitioner's special immigrant status on the ground that the Petitioner, at the time the adjustment of status was made originally, was excludable from admission to the United States under (1) Section 212(a)(11), 8 U.S.C. § 1182(a)(11), as a polygamist or one who practices polygamy; *fn5" (2) Section 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C), based on misrepresentations of material facts, e.g., failure to disclose marital status; (3) Section 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A), *fn6" as a result of a December 8, 1987 conviction for a crime of moral turpitude, namely falsification of a private note "Cheque;" and (4) Section 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C), based on misrepresentations of material facts, e.g., failure to disclose his prior arrest and conviction. See Court File No. 93 Civ. 4683, Doc. No.1, Ex. 2; Record at 286-287. The Notice further advised the Petitioner that he had 30 days within which to submit "an answer in writing under oath setting forth reasons why such rescission should not be made" or "within the time allowed, [to] request a hearing before an Immigration Judge in support of, or in lieu of, a written answer." Id. Finally, Petitioner was advised that he had the right to assistance of counsel in preparation of the answer or in connection with a hearing. Id. See 8 C.F.R. § 246.1 (notice of intent to rescind and right to counsel provision); 8 C.F.R. § 3.16 (general right to counsel at no expense to the Government).

 By letter dated January 17, 1992, Zeinab Aly Massoud, a privately retained attorney for the Petitioner, requested "60 days to respond to the District Directors [sic] notice" and a copy of the documents supporting the allegations. See Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 3. This request was never acted upon nor acknowledged. By letter dated February 25, 1992, some five weeks later, and after expiration of the time initially allowed for a response to the notice, Attorney Massoud wrote the INS that she no longer represented Mr. Ali. See Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 4.

 By Order dated March 6, 1992, District Director Pomeroy rescinded Petitioner's status of permanent resident alien due to his failure to respond within 30 days to the allegations contained in the January 16, 1992 Notice pursuant to Section 246 of the Immigration and Nationality Act, 8 U.S.C. § 1256, and Regulation 246.2 of Chapter 8 of the Code of Federal Regulations. Petitioner was advised of this decision by letter dated March 6, 1992. Record, at 288-89. Based on the rescission, Petitioner was given notice that there would be an exclusion hearing on April 30, 1992 at 8:30 AM before an Immigration Judge to determine whether or not he should be excluded and deported pursuant to Section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid immigrant visa or other documentation permitting entry into the United States. Record, at 248.

 At the April 30, 1992 exclusion hearing, Petitioner appeared with new counsel, Vincent Agresti, Esq. who requested an adjournment. Record, at 123-24. The hearing was adjourned until May 14, 1992. On the adjourned date, counsel conceded that Petitioner was properly in exclusion proceedings and was excludable under Section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid immigrant visa or other documentation permitting entry into the United States. Record, at 122. Counsel also conceded that the Petitioner was served with the notice of intent to rescind but failed to "file a proper answer within the required time." Record, at 121-122. Counsel noted, however, that a motion to reopen the rescission proceeding had been filed. Id.

 By letter dated June 10, 1992, the firm of Nelson & Turkhud requested of the Immigration Judge by letter that they be substituted as counsel for the Petitioner. New counsel also moved before the Immigration Judge to vacate the District Director's rescission order and terminate the exclusion proceedings. New counsel also enclosed with the letter an Application for Political Asylum and withholding of Deportation, Form I-589, *fn7" which it described as a "last resort" in the event the rescission order were not vacated. Record, at 251-52, 264-70; Petitioner's Memorandum, at 5.

 On June 12, 1992 and again on September 1, 1992, the Immigration Judge's Clerk forwarded a copy of the application for political asylum and withholding of deportation to the U.S. Department of State, Bureau of Human Rights and Humanitarian Affairs for comment pursuant to 8 C.F.R. 208.11. Record, at 263, 271. See 8 C.F.R. §§ 208.11, 236.3(b).

 In a four page opinion letter dated October 23, 1992, Roger Denkert, the Director of the Office of Asylum Affairs for the Bureau of Human Rights and Humanitarian Affairs describes the Petitioner, who is "known in Egypt as Omar Ahmed ABDEL RAHMAN", as "one of the best known figures in Egypt's Islamic fundamentalist movement. He is the spiritual guide and founder of the extremist Al-Gama'a al-Islamiyya." Record, at 282. The letter explains that the Petitioner's "adherents . . . have been responsible for conducting several spectacular terrorist incidents, including the assassinations of President Anwar El-Sadat (1981) and the Speaker of the People's Assembly (1990), Rifa't Al-Mahgoub . . ., and attacks against Egypt's Christian Coptic community and on symbols of the Egyptian Government. Id. The letter then describes some of the hundreds of "violent incidents provoked" by the Al-Gama'a al-Islamiyya between July of 1988 and June of 1992. Although recognizing that the Petitioner had been under house arrest in the past and that "house arrest may await him upon return" to Egypt, the Director concluded that the Petitioner's "activities [in Egypt] should make him ineligible for the grant of asylum." Record, at 282, 285. The Director concluded his letter by noting that "this advisory opinion is accompanied by a classified letter . . . which summarizes information available to the U.S. concerning the continuing involvement of Abdul Rahman in terrorist activities which would have detrimental foreign policy consequences for the U.S. Government." Record, at 285.

 The exclusion hearing resumed on October 27, 1992. At this time, counsel for the Petitioner urged the Immigration Judge to review the March 6, 1992 order rescinding Petitioner's permanent resident status. The Immigration Judge told counsel to file a brief and resented decision on the issue. Record 135-136. The exclusion hearing was continued and concluded on January 20, 1993.

 In a decision dated March 16, 1993, Immigration Judge Daniel J. Meisner found the Petitioner excludable under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid immigrant visa or other documentation permitting entry into the United States, a fact conceded by prior counsel at the May 14, 1992 exclusion hearing. Record, at 92-116. The Immigration Judge concluded that he lacked jurisdiction to review the March 6, 1992 Order rescinding Petitioner's permanent resident status. The Immigration Judge denied the application for asylum and withholding of exclusion pursuant to Sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158, 1253(h), and found that there were reasonable grounds for regarding the Petitioner as a danger to the security of the United States. Record, at 116.

 In the meantime, on June 10, 1992, counsel filed an application with the District Director to reopen for reconsideration, the March 6, 1992 Order of rescission of permanent resident status. By letter dated May 28, 1992, the District Director denied the application stating that:

 
. . . In this case the service [of notice of intent to rescind] was by hand by an officer of this Service in the presence of the applicant's attorney and an interpreter. . . . The notice submitted by the subjects [sic] prior attorney, although timely, neither admits or contests the allegations or requests a hearing, but requests an additional 60 days for a response and copies of documentation. Such a request is not permitted by regulation nor does such a request serve to stay the issuance of a rescission order. . . .
 
The fact that the subject's prior counsel withdrew from the case subsequent to the final notice or that there was lack of communication between the subject and counsel is not relevant to this proceeding. *fn8"

 See Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 7.

 By letter dated July 2, 1993 and addressed to the Petitioner, District Director Pomeroy advised the Petitioner that his parole was revoked pursuant to Section 212.5(d)(2)(i) of Chapter 8 of the C.F.R. This section provides:

 
(d) Termination of Parole -
 
(2)(i) On notice. In cases not covered by paragraph (d)(1) of this section, upon accomplishment of the purpose for which parole was authorized or when in the opinion of the District Director in charge of the area in which the alien is located neither emergency nor public interest warrants the continued presence of the alien in the United States, parole shall be terminated upon written notice to the alien and he or she shall be restored to the status which he or she had at the time of parole. Any further inspection or hearing shall be conducted under section 235 [ 8 U.S.C. § 1225] or 236 [ 8 U.S.C. § 1226] of the Act and this chapter, or any order of exclusion and deportation previously entered shall be executed. If the exclusion order cannot be executed by deportation within a reasonable time, the alien shall again be released on parole unless in the opinion of the District Director the public interest requires that the alien be continued in custody.

 On July 9, 1993, the Board of Immigration Appeals affirmed the Immigration Judge's March 16, 1993 decision and entered a final order of exclusion against the Petitioner. Record, at 2-8.

 Petitioner seeks review of this July 9, 1993 decision, as well as the March 16, 1993 decision of Judge Meisner and the July 2, 1993 Order of District Director Pomeroy in which the Petitioner's parole was revoked. Petitioner argues that the administrative bodies considering his case erred in the following respects: (1) that the Board of Immigration Appeals, in reviewing the Immigration Judge's decision, erred in concluding that it lacked jurisdiction to review and/or vacate the District Director's March 6, 1992 Order of Rescission; (2) that the District Director had no authority to commence rescission proceedings during the deferred inspection period and, that in doing so, the District Director violated the Immigration and Naturalization Service's own regulations which constitutes reversible error under Montilla v. I.N.S., 926 F.2d 162 (2d Cir. 1991) and its progeny; (3) that the District Director, in rescinding Petitioner's permanent residence status, violated the Act and Immigration & Naturalization Service's own regulations regarding the right to assistance of counsel and the right to a hearing before an Immigration Judge; (4) that the Board of Immigration Appeals, in reviewing the Immigration Judge's decision, erred in denying Petitioner's application for asylum and withholding of deportation pursuant to Sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158(a), 1253(h); (5) that the Immigration Judge's consideration of classified material, which he represented to counsel he would not consider, deprived Petitioner of a fair hearing and due process; (6) that the Immigration Judge erred in not permitting the Petitioner to take discovery, including interrogatories and document discovery, concerning matters contained in the classified documents; and (7) that the District Director erred in terminating Petitioner's parole on July 2, 1993 without a pre-termination hearing, allegedly in violation of INS's own administrative procedures as provided in Regulation 212.5.

 However, the "core" issue, Petitioner contends, and this Court agrees, is whether the March 6, 1992 Order of District Director Pomeroy rescinding Petitioner's lawful resident status is valid. It is argued that the validity of the exclusion order and the detention related thereto, are conditioned upon the validity of the rescission order which deprived Petitioner of permanent resident status. Petitioner's Reply Memorandum, at 2-3; August 2, 1993 Transcript, at 10-12, 14, 37. This is true, because if the District Director's rescission of Petitioner's permanent resident status was invalid for want of jurisdiction or otherwise, then there would have been no basis for the Immigration Judge to exclude Petitioner under Section 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of documentation permitting entry into the United States, or for the District Director to terminate his parole without a hearing pursuant to Regulation 212.5(d)(2)(i).

 The Court first considers Petitioner's argument that the Board of Immigration Appeals erred in affirming the Immigration Judge's denial of Petitioner's application to vacate the District Director's rescission of the Petitioner's lawful permanent resident status and to terminate the exclusion proceedings. Petitioner contends that the Immigration Judge and Board of Immigration Appeals concluded improperly that they lacked jurisdiction to review the District Director's Order of rescission dated March 6, 1992.

 Regulation 246.1 provides that a Notice of Intention to Rescind shall inform the permanent resident alien that "he may submit, within thirty days from the date of service of the notice, an answer in writing and under oath setting forth reasons why such rescission shall not be made, and that he may, within such period, request a hearing before a special inquiry officer in support of, or in lieu of his written answer." 8 C.F.R. § 246.1 (emphasis added). Regulation 246.2 provides, in relevant part, that:

 8 C.F.R. § 246.2 (emphasis added). The language of the Regulation is compulsory -- If no answer is filed or no hearing is requested, the District Director shall rescind Petitioner's lawful resident status. There can be no appeal from a decision to rescind made pursuant to Regulation 246.2.

 Petitioner contends that former counsel's letter dated January 17, 1992, without more, was a "proper answer." Petitioner's Memorandum, at 16. The District Director determined that the it was not and, therefore, rescinded Petitioner's lawful residence status. Once this was accomplished, Petitioner had no right to appeal the District Director's Order. The Immigration Judge and the Board of Immigration Appeals, in turn, determined that they lacked appellate jurisdiction to review the Order of Rescission because of the empress language of Regulation 246.2.

 The Immigration Judge and the Board of Immigration Appeals determined that they lacked appellate jurisdiction pursuant to Regulation 3.1(d)(1-a)(i)(B) as well. Regulation 3.1(d)(1-a)(i)(B) provides as follows:

 
The Board may summarily dismiss any appeal or portion of any appeal in any case in which:
 
(B) The only reason for the appeal specified by the party concerned involves a finding of fact or a conclusion of law that was conceded by ...

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