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Nadarajah Viknesrajah,A95-665-546 v. Officer Koson

January 18, 2011

NADARAJAH VIKNESRAJAH,A95-665-546, PETITIONER,
v.
OFFICER KOSON, OFFICER IN CHARGE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Nadarajah Viknesrajah ("Petitioner") is a native and citizen of Sri Lanka , who has been administratively found to be inadmissible to the United States. Petitioner concedes that he is removable, and currently has an application pending before an Immigration Judge ("IJ") for asylum and withholding of removal under the Convention Against Torture ("CAT"). In the meantime, Petitioner has been detained by the Department of Homeland Security ("DHS") since October 3, 2008, pursuant to Immigration and Nationality Act ("INA"), 8 U.S.C. § 1225(b)(1)(B)(ii). Petitioner seeks habeas relief under 28 U.S.C.§ 2241, claiming that Respondents' decision to deny him "parole" from detention pending the resolution of his administrative proceeding was arbitrary and capricious, and that his continued detention violates due process. For the reasons that follow, the petition is denied.

LEGAL STANDARD

Petitioner brings this action pursuant to 28 U.S.C. § 2241(c)(3), which "authorizes a district court to grant a writ of habeas corpus whenever a petitioner is 'in custody in violation of the Constitution or laws or treaties of the United States.'" Wang v.Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3)).

When an inadmissible alien applies for asylum in the United States, U.S. immigration officials interview the alien to determine whether he has "a credible fear of persecution" in his native country, and if so, "the alien shall be detained for further consideration of the application for asylum." 8 U.S.C. § 1225(b)(1)(B)(ii). The U.S. Attorney General may, "in his discretion parole*fn1 into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States." 8 U.S.C. § 1182(d)(5)(A). However, such parole is only for a limited time and a limited purpose:

[P]arole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

Id. To obtain such parole, the alien must demonstrate to the local district director that he qualifies:

Under the regulations promulgated pursuant to [8 U.S.C. § 1182(d)(5)], the Attorney General has vested his discretion whether to grant parole in the district director of the district where the alien is in custody. 8 C.F.R. § 212.5(a).

The regulations limit the class of aliens whose situations meet the "urgent humanitarian reasons" or "significant public benefit" standards to those aliens (1) who have serious medical conditions rendering continued detention inappropriate; (2) who are pregnant women; (3) who are juveniles; (4) who will be witnesses in judicial, administrative, or legislative proceedings in the United States; or (5) whose continued detention is not in the public interest as determined by INS officials. 8 C.F.R. § 212.5(b). Thevarajah v. McElroy, No. 01-CV-3009, 2002 WL 923914 at *2 (E.D.N.Y. Apr. 30, 2002). In addition to showing that he fits within one of the five categories above, the alien must also show that he "present[s] neither a security risk nor a risk of absconding."

8 C.F.R. § 212.5(b). However, before demonstrating the foregoing factors, as a threshold matter the alien must establish his identity and nationality. Wangchuck v. Department of Homeland Security, Immigration, 448 F.3d 524, 528 (2d Cir. 2006) ("[A] petitioner's nationality, or lack of nationality, is a threshold question in determining his eligibility for asylum.") (citation and internal quotation marks omitted); In re O-D- , 21 I. & N. Dec. 1079, 1081, 1998 WL 24904 (BIA Jan. 8, 1998) ("A concomitant to [an asylum] claim is the burden of establishing identity, nationality, and citizenship.").

District courts do not have jurisdiction to consider challenges to discretionary decisions denying parole to aliens seeking asylum. It is true that in Bertrand v. Sava, 684 F.2d 204, 210 (2d Cir. 1982), the Second Circuit determined that federal courts had jurisdiction to review such decisions, and that, as long as the Attorney General exercises his broad discretion under 8 U.S.C. s 1182(d)(5) to determine whether unadmitted aliens may be paroled pending final determination of their applications for admission to the United States, his decision may not be challenged on the grounds that the discretion was not exercised fairly in the view of a reviewing court or that it gave too much weight to certain factors relevant to the risk of abscondence and too little to others. . . . The discretion may not be exercised to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies. Such exercise of the power would not be "legitimate and bona fide" . . . . But the Attorney General's exercise of his broad 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 (citations and footnotes omitted). However, Congress subsequently enacted 8 U.S.C. § 1252(a)(2)(B)(ii), which indicates in pertinent part that "no court shall have jurisdiction to review - . . . any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title." Consequently, this Court lacks jurisdiction to review discretionary decisions concerning parole. See, e.g., Bolante v. Keisler, 506 F.3d 618, 621 (7th Cir. 2007) ("The Attorney General can and often does release the alien on parole, 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5, but his decision to do so is not judicially reviewable. 8 U.S.C. § 1252(a)(2)(B)(ii)."). The Court, though, retains jurisdiction to review constitutional claims and questions of law, pursuant to 8 U.S.C. § 1252(a)(2)(D). See, Serpil v. Gonzales, No. 05-3022-ag, 220 ...


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