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April 19, 1994



The opinion of the court was delivered by: JOHN E. SPRIZZO


 Third-party plaintiff Ceskoslovenske Aeroline ("CSA") brings this third-party action to recover the costs associated with the detention of an illegal stowaway during the pendency of his application for political asylum. Third-party defendants Eugene McNary, Commissioner of the United States Immigration and Naturalization Service ("INS") and William P. Barr, Attorney General of the United States of America, move to dismiss CSA's amended third-party complaint for failure to state a cause of action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motion to dismiss the amended third-party complaint is granted.


 Third-party plaintiff CSA provides world-wide transportation services for passengers, mail and cargo, including connections from Prague, Czechoslovakia to New York City. Amended Third-Party Complaint ("ATP Complaint") P 4. On May 4, 1992, Mr. Victor Mirjanov arrived in the United States on CSA's flight OK600 without proper documentation, as defined by 8 U.S.C. § 1182(a)(7), and as a stowaway, within the meaning of 8 U.S.C. § 1182(a)(6)(D). *fn1" Id. P 7. Upon his arrival, Mr. Mirjanov exercised his legal rights under the Immigration and Nationality Act (the "INA"), as amended in 1980, 8 U.S.C. § 1101 et seq. (1993), by applying for political asylum pursuant to 8 U.S.C. § 1158. Id. P 9. Consistent with its policy and practice, the INS ordered the detention of Mr. Mirjanov in the New York City area, at CSA's expense, until a decision was rendered on his application. *fn2" Id.

 At the request of CSA, plaintiff Argenbright Security, Inc. ("Argenbright"), a Georgia corporation with offices and facilities at John F. Kennedy International Airport, provided security services during Mr. Mirjanov's period of detention. Complaint P 21-22. Thereafter, despite due demand by Argenbright, CSA refused to tender payment for the services rendered. Id. P 26, 32. On or about September 14, 1992, Argenbright commenced the instant action against CSA, seeking the costs of detaining Mr. Mirjanov in the United States from on or about May 4, 1992 to June 26, 1992.

 On October 23, 1992, CSA then filed the instant third-party complaint alleging, inter alia, that the costs of detaining an excludable alien stowaway, such as Mr. Mirjanov, must be borne by the INS. On or about January 29, 1993, CSA paid Argenbright the sum of $ 26,100 in consideration for Argenbright's agreement to dismiss its complaint against CSA, with prejudice. *fn3" ATP Complaint P 10. On April 16, 1993, the INS moved to dismiss CSA's third-party complaint for failure to state a cause of action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.


 For purposes of a Rule 12(b)(6) motion, a complaint may not be dismissed unless relief cannot be granted under any set of facts alleged. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Thus, at this stage of the litigation, the Court must accept plaintiff's factual allegations as true, see Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1983), while reaching its own conclusions of law. See United States v. Bonanno Organized Crime Family, 879 F.2d 20, 27 (2d Cir. 1989). In order to facilitate the ensuing analysis, the statutory scheme governing immigration and asylum will be covered briefly.

 The INA, and the regulations promulgated thereunder, govern the handling of individuals entering the country from abroad. In order to separate aliens, possibly subject to exclusion, from U.S. nationals, immigration officials may inspect all individuals entering the United States. 8 U.S.C. § 1225(a). This inspection may be conducted either on board the vessel or elsewhere, at a designated time and place. Id. To facilitate this process, individuals may be required to disclose information relevant to their status, and whether they fall within an excluded class. Id. If, upon preliminary inspection, an alien is not clearly entitled to land, he must be detained for additional examination by a special inquiry officer. Id. at § 1225(b). This additional examination is, in effect, an exclusion hearing before an immigration judge which, absent an appeal, conclusively determines an alien's immigration status.

 The Refugee Act of 1980, 8 U.S.C. Pub.L. No. 96-212, 94 Stat. 102 (codified at 8 U.S.C. § 1157(a) et seq. (1993)), provides that aliens may seek political asylum in the United States, "irrespective of . . . status." 8 U.S.C. § 1158(a). *fn4" In accordance with that statutory directive, courts have uniformly held that stowaways, despite their status, have a right to seek political asylum in this country. See Yiu Sing Chun v. Sava, 708 F.2d 869, 876 (2d Cir. 1983); Garcia v. Smith, 674 F.2d 838, 839-40 (11th Cir. 1982); Fang-Sui Yau v. Gustafson, 623 F. Supp. 1515, 1521-23 (C.D.Cal. 1985). However, because a stowaway may not be deported while an application for asylum is pending, an application for asylum is treated as a request for withholding of deportation. See Adebisi v. Immigration & Naturalization Service, 952 F.2d 910, 912-13 (5th Cir. 1992). In addition, INS regulations provide that, pending the adjudication of the asylum claim, the INS may parole the stowaway into the custody of the carrier. See 8 C.F.R. § 253.1(f)(3).

 Historically, the maintenance expenses incident to the inspection, examination, and detention of aliens were borne, pursuant to section 1223, by the commercial carriers responsible for transporting such aliens into this country. See 8 U.S.C. § 1223 (repealed Pub. L. No. 99-500, 100 Stat. 1783-56 (1986)). In 1986, however, Congress repealed section 1223 and introduced, in its place, the Immigration User Fee Statute (the "User Fee Statute"), Pub.L. No. 99-591, 100 Stat. 3341-53 (codified as part of 8 U.S.C. § 1356(d) (1988)), which shifted the financial responsibility for the detention and deportation costs of excludable aliens to the INS. *fn6" To defray these expenses by the INS, Congress imposed a five dollar fee from each passenger arriving in the United States aboard a commercial aircraft or vessel, and provided that the funds so collected should be deposited in a separate account at the United States Treasury entitled the "User Fee Account." See 8 U.S.C. § 1356(h). Under section 1227, however, the cost of maintaining an "excluded" alien prior to deportation, including detention expenses, remains upon the carrier responsible for transporting such alien into this country. Id. at § 1227(a).

 The INA does not explicitly define an "excluded" alien; however, it does enumerate the classes of excludable aliens, ineligible to secure a necessary visa, who will be excluded from admission. See 8 U.S.C. § 1182(a); Graham v. Immigration & Naturalization Service, 998 F.2d 194, 195 (3rd Cir. 1993). Under section 1182, these classes include, inter alia, those who lack proper documentation, those likely to become a public charge, those who suffer from physical or mental disease, those who have committed a crime involving moral turpitude or controlled substances, or those who may be an illegal entrant into the country. See 8 U.S.C. § 1182(a)(1)-(6). With regard to this last class in particular, the statute specifically provides that "any alien who is a stowaway is excludable." Id. at § 1182(a)(6)(D). ...

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