house. He is the only person who is qualified to drive the truck, and he is in danger of failing to meet his payments. If he cannot do this, he will lose both the truck and his business.
In response, the INS maintains (1) that this court has no jurisdiction to entertain Mr. Mersereau's claims since, it contends, he has failed to exhaust his administrative remedies; (2) that Mr. Mersereau's claim that he is entitled to parole into the United States pending resolution of his status has been rendered moot, because on January 4, 1995, the INS Northern Service Center rejected his waiver application on the grounds that he was not eligible to file that application as a former conditional resident who had departed the United States; (3) that Mr. Mersereau has not made the requisite showing of irreparable harm to warrant a preliminary injunction, because irreparable harm cannot be shown by submitting to an agency proceeding (here, the exclusion proceeding); (4) that Mr. Mersereau cannot demonstrate a likelihood of success on the merits with regard to his claim for admission, because he cannot show that his waiver application would be likely to be accepted and approved by the INS; and (5) that he cannot demonstrate a likelihood of success on the merits with regard to the denial of parole, because District Director Ingham's discretionary decision was based upon a facially legitimate and bona fide reason -- that his conditional permanent resident alien status expired on April 12, 1991.
Mr. Mersereau has been placed under exclusion proceedings pursuant to §§ 235(b) and 236 of the INA, 8 U.S.C. §§ 1225(b) and 1226. He concedes that he is an alien seeking admission or readmission into the United States, so it is beyond dispute that an exclusion proceeding is the proper vehicle for determining his admissibility. 8 U.S.C. §§ 1225(a), 1226(a); Landon v. Plasencia, 459 U.S. 21, 27-28, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982). Under § 106(c) of the INA, "an order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations . . . ." 8 U.S.C. § 1105a(c). Mr. Mersereau maintains that the INS erred in placing him into exclusion proceedings, and that exhaustion should not, therefore be required. This argument is to no avail. Xiao v. Barr, 979 F.2d 151 (9th Cir. 1992) ("even when as alien is not, strictly speaking, seeking to attack a final order of exclusion, judicial review is precluded if the alien has failed to avail himself of all administrative remedies, one of which is the exclusion hearing itself," Id at 153). See also, Rafeedie v. I.N.S., 279 U.S. App. D.C. 183, 880 F.2d 506, 510-518 (D.C.Cir. 1989). It is clear that this court has no jurisdiction to adjudicate Mr. Mersereau's claim that he should be admitted into the United States.
Section 212(d)(5)(A) of the INA provides, in pertinent part, that "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 to the United States . . ." 8 U.S.C. § 1182(d)(5)(A). Responsibility for making parole decisions has been delegated to INS District Directors. 8 C.F.R. §§ 100.2(e) and 212.5. Such decisions are subject to judicial review by the federal district courts. Bertrand v. Sava, 684 F.2d 204, 210-211 (2d Cir. 1982); Zhang v. Slattery, 840 F. Supp. 292, 294 (S.D.N.Y. 1994). It is plain enough that this court has jurisdiction to review the claim that District Director Ingham wrongfully denied parole to Mr. Mersereau.
B. Preliminary Injunction
1. The Applicable Standard
A party seeking preliminary injunctive relief against governmental action taken in the public interest pursuant to a statutory or regulatory scheme must demonstrate (1) that it is likely that he will suffer irreparable harm if equitable relief is denied, and (2) a likelihood of success on the merits. Able v. United States, 44 F.3d 128, 1995 WL 4928 (2d Cir. 1995); Borey v. National Union Fire Insurance Co. of Pittsburgh, Pennsylvania, 934 F.2d 30, 34 (2d Cir. 1991); Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989).
2. Likelihood of Success on the Merits
Because this court has no jurisdiction to review Mr. Mersereau's claim that he should be admitted into the United States, he may obtain preliminary injunctive relief in this action only if he can demonstrate a likelihood of success on the merits of his claim that he was wrongfully denied parole by District Director Ingham.
The Second Circuit has stated that the scope of review of the discretionary decisions of INS District Directors to parole unadmitted aliens is "necessarily narrow." Bertrand v. Sava, 684 F.2d at 211. The Bertrand court held that decisions under 8 U.S.C. § 1182(d)(5) must be made "'on the basis of a facially legitimate and bona fide reason.'" Id. at 212 (quoting Kleindienst v. Mandel, 408 U.S. 753, 770, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972)). However, the court made it clear that exercise of the discretionary power "must be viewed at the outset as presumptively legitimate and bona fide in the absence of strong proof to the contrary. The burden of proving that discretion was not exercised or was exercised irrationally or in bad faith is a heavy one and rests at all times on the unadmitted alien challenging denial of parole." Id. at 212-13.
More recently, the Second Circuit has noted that "the cases that establish the principle of substantial deference [to the discretionary decisions of executive agencies] have involved questions concerning the admittance or exclusion of aliens who have never been lawfully admitted to the United States." Etuk v. Slattery, 936 F.2d 1433, 1443 (2d Cir. 1991) (emphasis added) (citing Kleindienst v. Mandel, 408 U.S. at 770, and Bertrand v. Sava, 684 F.2d at 211). Where a plaintiff has been lawfully admitted into the United States, his legal status has been altered and his rights enhanced, and the exercise of the INS's discretionary power may be subject to more intense judicial scrutiny. Id. at 1443-44. This raises the question of whether the highly deferential standard of review set out in Bertrand v. Sava is the proper one to apply in a case like the present one, in which the status of the plaintiff falls somewhere between that of an alien who has never been lawfully admitted to the country and one who is currently, indisputably, a lawful permanent resident.
I find that there is at least a likelihood that Mr. Mersereau can show that District Director Ingham abused his discretion in making his parole decision, even under the deferential standard of review of Bertrand v. Sava. In his letter of December 7, 1994, to Mr. Mersereau's attorney, Mr. Ingham indicated that parole was being denied because Mr. Mersereau's conditional permanent resident status had been terminated -- i.e., because Mr. Mersereau was an excludable alien. There is a strong argument to be made that apparent excludability does not in itself constitute a "facially legitimate and bona fide reason" for denying parole. Hamaya v. McElroy, 797 F. Supp. 186, 193 (E.D.N.Y. 1992).
To regard the fact of apparent excludability -- a fact necessarily common to every detained alien seeking parole under section 212 -- as a reason for denying release is to turn logic on its head. It would deprive the regulation of all meaning, creating an administrative Catch-22 in which no release could ever qualify as "strictly in the public interest."