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XIN-CHANG ZHANG v. SLATTERY

January 6, 1994

XIN-CHANG ZHANG, A72-762-145, Petitioner,
v.
WILLIAM SLATTERY, INS District Director for Detention and Deportation, ROSEANNE SONCHIK, INS Acting Assistant District Director for Deportation, and CHARLENE MONROE, INS Immigration Officer, Respondents.



The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P. PATTERSON, JR., U.S.D.J.

 Xin-Chang Zhang petitions for a writ of habeas corpus on the grounds that he is being unlawfully detained as a result of his not being granted parole by the Immigration and Naturalization Service ("INS") pending the outcome of his application for asylum. For the reasons stated below, Mr. Zhang's petition is denied and his application for parole is remanded to the District Director of the INS.

 BACKGROUND

 This case arises from the running aground of the ship Golden Venture off the beaches of Rockaway, Queens, on June 6, 1993, and the swimming ashore of Petitioner Xin-Chang Zhang, a national of the People's Republic of China. By arrangement with smugglers, Mr. Zhang had made a $ 5,000 down payment on a $ 25,000 fee for passage to the United States. After fleeing the city of Fu Zhou and travelling with twenty or thirty other refugees by motor boat, Mr. Zhang boarded the Golden Venture in February 1993.

 When the Golden Venture ran aground, Mr. Zhang had been living aboard with approximately 300 other Chinese refugee-passengers for several months. Along with many other passengers, Mr. Zhang jumped into the water and swam about one-hundred meters to the shore, arriving without any documentation. Upon reaching the beach, Mr. Zhang was assisted by rescue teams and later taken into custody and placed in detention at the Immigration and Naturalization Service processing facility at 201 Varrick Street, New York, New York, where he has been held continuously to the present.

 Shortly after he was taken into custody, the INS commenced exclusion proceedings against Mr. Zhang. On July 16, 1993, Mr. Zhang's motion to terminate exclusion proceedings was denied by Immigration Judge Alan Page, and Zhang applied for asylum in the United States. His asylum application asserts that he was driven into hiding by the Chinese government's attempts to force him to undergo a sterilization procedure and that, if he were returned to China, he would face persecution for his political opinion against China's policy limiting families to one child and for his illegal flight from China.

 On August 13, 1993, Mr. Zhang applied to Respondent William Slattery for parole from detention pending the adjudication of his asylum claim. He filed the application pursuant to the "Parole Project for Asylum Seekers," a program established by INS Commissioner Gene McNary by Memorandum to INS District Directors and other personnel, dated April 20, 1992 (the "Parole Project Memorandum" or "Memorandum"). See Suh Aff., Exh. 10. Although the memorandum was not promulgated as a formal regulation and published in the Code of Federal Regulations, it appeared in Interpreter Releases, a newsletter. See 69 Interpreter Releases 526 (April 27, 1992).

 The Parole Project Memorandum lists five criteria for INS district directors to apply to parole applications by detainees and establishes a process for evaluating detainees' claims. *fn1" It provides that "pre-screening interviews will be conducted" for the interviewer to determine whether to recommend parole for each asylum applicant. In determining whether to recommend parole, "the interviewer will determine if the [enumerated] criteria have been met." The Memorandum further provides:

 Suh Aff., Exh. 10 at 528. In support of his application for parole, Zhang submitted two letters and supporting documents arguing that he satisfied the Parole Project criteria. *fn2"

 By letter dated August 20, 1993, Respondent Roseanne Sonchik, INS Acting Assistant District Director for Deportation, denied Zhang's application for parole. The letter denial stated that Zhang's application was considered under the criteria set forth in 8 C.F.R. ┬ž 212.5. It did not mention the Parole Project or independently address the criteria listed in the April 20, 1992, Memorandum.

 DISCUSSION

 Petitioner claims that he is being detained unlawfully because Respondents abused their discretion in denying Petitioner's application for parole. Specifically, Petitioner claims that Respondents abused their discretion by (1) failing to comply with the requirements of the Parole Project; (2) failing to make an individualized determination of Mr. Zhang's ...


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