admitted that he was an alien and that he was previously deported from the United States in 1976. He also admitted that he had been living and working in the United States without authority since 1983.
On the basis of this information, the INS commenced an exclusion proceeding against petitioner. He was charged as being inadmissible to the United States as an alien who attempted to enter the United States by fraud and as an immigrant not in possession of an immigrant visa or other required entry document. Petitioner was detained by the INS on June 20, 1996, pending resolution of the exclusion proceedings. The INS subsequently discovered that petitioner had previously been convicted in the United States for possession of marijuana.
In a letter request dated June 26, 1996, petitioner's counsel in the exclusion proceeding requested that the INS grant petitioner indefinite parole so that he could: (1) marry his fiancee, a citizen of the United States, and thereafter pursue an application for adjustment of status to that of a lawful permanent resident alien on the basis of that marriage; and (2) continue to support and visit his two United States citizen children from a prior marriage. The parole request explained that, on June 20, 1996, petitioner was employed as a project engineer for a company located in Michigan, and was traveling on business with his employer from Michigan to Tonawanda, New York via Canada. According to petitioner, his employer was unaware of his illegal immigration status and he was afraid to inform the employer of it. Petitioner offers this reason for initially misrepresenting his citizenship status to INS authorities upon his attempt to reenter the United States.
In petitioner's parole request, petitioner's counsel indicated that, after being deported in 1976, petitioner returned to the United States in 1977 on a visitor's visa. Counsel also indicated that petitioner made another entry into the United States in the Fall of 1982 on a visitor's visa and that he lived in the United States thereafter until the present time. Counsel further indicated that petitioner returned to Germany in 1991 for several months and was readmitted to the United States under a visa waiver procedure.
Petitioner's counsel did not mention petitioner's previous drug conviction in his initial parole request.
Counsel for petitioner made a second parole request in a letter dated July 1, 1996, in which he again requested that petitioner be paroled indefinitely to permit him to marry his fiancee and to continue employment in the United States to support his two United States citizen children from a prior marriage. In the second parole request, counsel indicated that he learned after the first parole request that petitioner had previously been convicted of marijuana possession in the United States.
Petitioner's counsel made a third parole request in a letter dated July 12, 1996. In the third parole request, petitioner sought temporary parole for a period of 90 days to enable counsel to obtain copies of his entire drug conviction record and those portions of the INS file relating to petitioner that would be deemed releasable by INS to counsel.
On July 12, 1996, petitioner commenced the instant action for a writ of habeas corpus. The parties appeared before the Court on July 15, 1996. At that time, counsel for the INS furnished petitioner's counsel and the Court with a letter dated July 15, 1996, in which the INS denied petitioner's third parole request. On July 17, 1996, the INS issued a superseding decision denying petitioner's parole request. It is the July 17, 1996, denial of parole that is to be reviewed by the Court in this case.
On July 18 and 19, 1996, an exclusion hearing was conducted before an IJ in Buffalo, New York. At the hearing, petitioner testified that he was convicted for possession of marijuana in Michigan in 1974 and was deported from the United States in 1976. Petitioner also testified that he has lived and worked in Michigan from 1983 until the present. He further testified that he made trips outside the United States in 1991 and 1995. Counsel for petitioner indicated that petitioner's German passport has been missing for years.
At the conclusion of the hearing, the IJ ordered petitioner excluded and deported from the United States as an alien who attempted to enter the United States by fraud and as an alien who was inadmissible as an immigrant not in possession of an immigrant visa or other required entry document. The IJ's exclusion order was not based on petitioner's prior drug conviction.
The INS filed a motion with the IJ requesting that the IJ add as a grounds for exclusion petitioner's drug conviction. In an order dated August 5, 1996, the IJ denied the INS's motion.
Petitioner has appealed the IJ's order of exclusion to the BIA. At oral argument, counsel for the INS stated that it is the INS's intention to ask the BIA to review also the IJ's refusal to add petitioner's drug conviction as a ground for exclusion.
Under 8 U.S.C. § 1182(d)(5)(A), an alien subject to exclusion may be provisionally admitted into 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 to the United States ...
The Attorney General has delegated responsibility for making such decisions to the respective INS district directors pursuant to 8 C.F.R. §§ 100.2(d)(2)(i) and 212.5. Section 212.5(a) narrowly defines the terms of the statute:
In determining whether or not aliens who have been or are detained . . . will be paroled out of detention, the district director should consider the following: