The opinion of the court was delivered by: ARCARA
On July 12, 1996, petitioner, Wilhelm Schoenmetz, filed the instant petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, seeking review of a decision by respondent, John J. Ingham, District Director, Immigration and Naturalization Service ("INS"), denying petitioner's request for parole pending completion of exclusion proceedings against him. Petitioner requests an order from this Court directing his immediate release on parole. Both parties were provided with an opportunity to brief their respective positions and oral argument was held on August 22, 1996. After reviewing the submissions of the parties and hearing argument from counsel, the Court denies petitioner's writ of habeas corpus and dismisses this action.
Petitioner, a native and citizen of Germany, initially entered the United States as a visitor for pleasure on January 11, 1973. He remained in the United States longer than authorized, thereby becoming deportable for that reason. On December 21, 1973, the INS commenced a deportation proceeding against petitioner and charged him with being deportable for having remained in the United States longer than authorized.
On January 21, 1974, petitioner was convicted, after pleading guilty, in the United States District Court for the Eastern District of Michigan for the offense of possession of a controlled substance, i.e.,, marijuana, in violation of 21 U.S.C. § 844(a). Petitioner was sentenced to probation for a period of two years.
On February 25, 1974, an immigration judge ("IJ") found petitioner to be deportable as charged during a deportation hearing and ordered him deported from the United States to West Germany. The basis for deportation was the fact that petitioner remained in the United States longer than authorized and was not based on his drug conviction. In his decision, however, the IJ did find that petitioner was statutorily ineligible for voluntary departure in lieu of deportation because of the drug conviction.
Petitioner unsuccessfully appealed the deportation order to the Board of Immigration Appeals ("BIA"). He thereafter unsuccessfully pursued judicial review of the deportation order in the Sixth Circuit Court of Appeals.
In the criminal case, petitioner filed a motion to set aside his plea of guilty contending that his plea was made without effective assistance of counsel. He claimed that counsel did not inform him of the immigration consequences of his guilty plea. The sentencing judge denied petitioner's motion and the Sixth Circuit dismissed petitioner's appeal from that denial. Petitioner subsequently made another unsuccessful motion to vacate the conviction on the same grounds.
In his deportation proceeding, petitioner unsuccessfully sought a stay of deportation from the INS on two separate occasions in February 1976, to permit petitioner to seek United States Supreme Court review of the deportation order and to pursue efforts to obtain a court order vacating his drug conviction. Both stay applications were denied. A petition for habeas corpus relief filed in response to the first stay denial was dismissed by the Sixth Circuit. On February 25, 1976, petitioner was deported from the United States to Germany under a warrant of deportation.
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 ...