Opinion
Case No. 04CV1939-LAB (LSP).
October 27, 2005
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
Petitioner, Ahilan Nadarajah, is a refugee from Sri Lanka who seeks political asylum in the United States. He is detained at the Otay Detention Facility. He filed a Verified Petition for a Writ of Habeas Corpus ("Petition"), requesting his release from immigration custody on bond pending final determination of his asylum application. The government filed a response, and Petitioner filed a traverse. After close of briefing, the Court granted Petitioner's request to submit voluminous additional evidence. For the reasons which follow, the Petition is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
On October 27, 2001, United States immigration officials apprehended Petitioner when he attempted to illegally enter United States from Mexico, and detained him at the Otay Detention Facility. Petitioner indicated he intended to apply for political asylum.
Petitioner is a native and citizen of Sri Lanka, and a member of the its Tamil ethnic minority. Sri Lanka has been subject to civil unrest for many years, resulting from the ethnic tensions between the Tamil minority and the Sinhalese majority, which controls Sri Lankan government. An insurgent group known as the Liberation Tigers of Tamil Eelam ("LTTE") has been in armed conflict with the Sri Lankan government in an effort to establish an independent Tamil state. In this conflict, many families, including Petitioner's family, have been displaced and young Tamils, including Petitioner, have been the target of human rights violations committed by the Sri Lankan military.
Specifically, in May 1997 Petitioner was detained by the Sri Lankan army on the accusation he was an LTTE member. The army attempted to exact a confession from Petitioner to that effect by means of torture. After four months, Petitioner's parents were able to secure his release by bribing an army official. In October 2000, Petitioner was detained by the Elam People's Democratic Party ("EPDP"), a paramilitary group working with the Sri Lankan army, again on the accusation of LTTE membership. After one month, Petitioner's parents again secured his release. In July 2001, Petitioner was again detained and tortured by the Sri Lankan army based on the same accusations, and was again tortured. After four weeks, Petitioner's parents secured his release by bribing an army officer. However, an officer warned Petitioner if they found him again, they would kill him. Accordingly, Petitioner's family arranged to have him smuggled out of the country.
When Petitioner was apprehended at the United States border with Mexico and indicated he intended to apply for asylum, an immigration officer interviewed him, found him to have a credible fear of persecution, and referred him for removal proceedings before an Immigration Judge to rule on his application for political asylum.
Petitioner's removal proceedings began in November 2001. At the commencement, the United States Immigration and Customs Enforcement ("ICE") issued a decision it would release Petitioner on parole if he posted a twenty-thousand dollar bond. However, Petitioner was unable to post the bond, and therefore remained detained.
"Parole" in the immigration context means permission to temporarily enter the United States. Mason v. Brooks, 862 F.2d 190, 191 (9th Cir. 1988); 8 U.S.C. § 1182(d)(5).
Petitioner's application for political asylum was based on his Tamil ethnicity and imputed political opinion. In opposition, the government presented an affidavit of a special agent of the Department of Homeland Security's Joint Terrorism Task Force based on the statements of a confidential informant that Petitioner was an LTTE member. The Immigration Judge found for Petitioner and, on April 21, 2003, granted him political asylum and withholding under the Convention Against Torture. Shortly thereafter, Petitioner requested his release from custody based on the asylum, but it was denied by the ICE.
On April 25, 2003, the government moved to reopen the removal proceedings. The motion was ultimately granted by the Board of Immigration Appeals, and additional hearings were held before the Immigration Judge in 2004. During these proceedings, Petitioner was able to obtain the funds to post the bond, however, when he attempted to post the bond, the ICE refused to accept the money and release him, claiming the 2001 decision was "stale." On August 13, 2004, the ICE issued a decision reversing the 2001 determination of release upon posting bond, stating Petitioner no longer met the criteria for parole.
At the reopened hearings, the government presented additional testimony by the special agent, and Petitioner presented rebuttal evidence, including expert testimony. Upon weighing the evidence, on September 1, 2004, the Immigration Judge again granted asylum. Petitioner then requested the ICE to reconsider his parole based on the September 1 asylum decision. On September 20, 2004, the ICE again denied parole because, among other reasons, Petitioner posed a threat to national security due to his "close ties to a terrorist organization." The ICE also indicated it intended to appeal the grant of asylum, and Petitioner's removal proceedings therefore remained pending.
Shortly thereafter, Petitioner filed the instant Petition. He claims his continued detention violates the Fifth Amendment Due Process Clause, the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. ("INA"), and its implementing regulations, and the International Covenant on Civil and Political Rights and the Convention Relating to the Status of Refugees.
DISCUSSION
Aliens such as Petitioner, who seek admission into the United States, are subject to inspection by immigration officials. 8 U.S.C. § 1225(a)(3). As was the case here, inadmissible aliens who indicate fear of persecution or an intent to apply for asylum are interviewed by asylum officers. See id. § 1225(b)(A)(ii). If the asylum officer determines the alien has a credible fear of persecution, the alien is detained for further consideration of his asylum application. Id. § 1225(b)(B)(ii). Aliens like Petitioner, who are detained pursuant to this provision, may be paroled only as provided in 8 U.S.C. § 1182(d)(5)(A) and its implementing regulation, 8 C.F.R. § 212.5(b). 8 C.F.R. 235.3(c). Under section 1182(d)(5)(A), the Attorney General has discretionary authority to
This authority has been delegated to field office directors, among others. 8 C.F.R. § 212.5(a). In the instant case, the operative September 20, 2004 decision was issued by Ronald J. Smith, Field Office Director, San Diego, CA. (Petition Ex. 15.)
parole 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, but such parole 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.
The regulations implementing this statute further elaborate in pertinent part as follows:
The parole of aliens within the following groups who have been or are detained in accordance with § 235.3(b) or (c) of this chapter would generally be justified only on a case-by-case basis for "urgent humanitarian reasons" or "significant public benefit," provided the aliens present neither a security risk nor a risk of absconding:
(1) Aliens who have serious medical conditions in which continued detention would not be appropriate; [¶] . . . or
(5) Aliens whose continued detention is not in the public interest as determined by [the Attorney General].8 C.F.R. § 212.5(b). Accordingly, Petitioner has no entitlement to parole, although it is within the Attorney General' discretion to grant it.
The Attorney General's exercise of discretion to deny parole pursuant to these provisions is subject to limited judicial review pursuant to 28 U.S.C. § 2241. Gutierrez-Chavez v. INS, 298 F.3d 824, 827 (9th Cir. 2002) as amended at 337 F.3d 1023 (9th Cir. 2003).
[O]ne who is in custody may file a habeas petition if he or she alleges that such custody violates the constitution or federal law (or treaties). However, § 2241 does not say that habeas is available to challenge purely discretionary (yet arguably unwise) decisions made by the executive branch that do not involve violations of the Constitution or federal law.Id. Consistently, habeas review is available when the immigration officials "somehow failed to exercise discretion in accordance with federal law or did so in an unconstitutional manner." Id. at 828. However, in the absence of constitutional or statutory error, habeas review does not allow for judicial second-guessing of the manner in which the Attorney General chooses to exercise his statutory discretion. Id. at 827. The deferential nature of habeas review of immigration agency decisions is also mandated because the "power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention" is exceptionally broad. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972); see also id. at 765.
Petitioner relies on Marczak v. Greene, 971 F.2d 510, 516-17 (10th Cir. 1992), which applied the "facially legitimate and bona fide" benchmark in a habeas review of parole denial, and the government appears to concede this point. However, the Ninth Circuit apparently does not apply this standard in the context of habeas corpus review, see Gutierrez-Chavez, 298 F.3d at 827-28 and 831-32 (McKeown, J., concurring), although it applies it on direct review of immigration orders, see Mason v. Brooks, 862 F.2d 190, 194 (9th Cir. 1988).
I. The Immigration and Nationality Act
Petitioner contends his continued custody is based primarily on the Attorney General's unsupported determination of close ties to LTTE, a group designated by the State Department as a terrorist organization, and therefore arbitrary and in violation of the pertinent provisions of the INA. The operative determination denying parole explains the decision as follows:
Section 212(d)(5) of the Immigration and Nationality Act (INA) provides for discretionary parole on a case-by-case basis for urgent humanitarian reasons or significant public benefit. Your client has failed to demonstrate that either basis is applicable. . . . [The ICE] intends to appeal the Immigration Judge's decision to grant asylum to your client because the government believes that the Immigration Judge erred in his decision. The government further asserts that your client has close ties to a terrorist organization and therefore poses a threat to the national security of the United States. Also, the judge noted in his decision, testimony was presented that your client plotted to kill an informant with another Tamil individual. Your client therefore poses a threat to the community.
(Petition Ex. 15.) Petitioner argues this decision ignored evidence of his urgent humanitarian need, and the claim of close ties to a terrorist organization was based on unverified, inaccurate and facially implausible secret evidence, which was rejected by the Immigration Judge when he granted asylum.
The Court disagrees. In reaching the conclusion to deny parole, the Attorney General exercised discretion as required by section 1182(d)(5)(A) and its implementing regulations, and the record supports his conclusions. The Court is therefore precluded from second-guessing the decision to deny parole. See Gutierrez-Chavez, 298 F.3d at 827-28.
Petitioner contends he is entitled to parole based on "urgent humanitarian reasons," which is more specifically defined as a "serious medical condition." 8 C.F.R. § 212.5(b)(1). The record, however, supports the Attorney General's determination that no urgent humanitarian reasons necessitated parole. In support of his claim, Petitioner submitted to the ICE a psychiatrist's assessment that his depression would improve if he were released from custody:
[Petitioner], with symptoms significant for [post-traumatic stress disorder], also suffers from chronic depression from the current prolonged detention. He would benefit from being released from detention and being treated with psychotherapy and other means such as medication to facilitate his rehabilitation to society. In my opinion, prolonged detention would worsen his psychological condition.
(Petition Ex. 14; see also Ex. 13.) The Attorney General apparently concluded this was insufficient to establish "urgent humanitarian reasons." ( Id. Ex. 15.) This conclusion is not arbitrary, since the psychiatrist's assessment does not on its face support a finding of a "serious medical condition" or an emergency. See 8 C.F.R. § 212.5(b)(1). Petitioner also argues his continued detention is not in the public interest. This is negated, however, by the Attorney General's finding Petitioner is a threat to national security. ( See Petition Ex. 15.)
Even if Petitioner could show either "urgent humanitarian reasons" or "significant public benefit," parole is not justified if he presents a security risk. 8 C.F.R. § 212.5(b). Accordingly, to properly exercise his discretion under 8 U.S.C. § 1182(d)(5)(A) and 8 C.F.R. § 212.5(b), Attorney General had to consider this factor. It is evident he did, since he denied parole based on his conclusion Petitioner presented a threat to national security and community. (Petition Ex. 15.)
The record supports this conclusion, thus suggesting the decision to deny parole was neither arbitrary, irrational nor unreasonable. After the case was reopened, in his September 1, 2004 order granting asylum, the Immigration Judge discussed at length the special agent's testimony. The judge noted the agent
testified that, according to information provided to him by a reliable confidential informant, employed by the Royal Canadian Mounted Police, [Petitioner] is an active member of [LTTE]. In fact, according to the government witness, the informant claimed that [Petitioner] has taken part in a telephone call from the detention facility, where [Petitioner] is currently detained, planning the death of the informant with another Tamil individual, a female also in removal proceedings and allegedly a principal in the [LTTE] smuggling ring. [The special agent] also testified that he had tested the reliability of the confidential informant in the past against information given in removal hearings by other Tamil respondents.
(Petition Ex. 10 at 59-60.) The agent also testified, and Petitioner admitted, that Petitioner initially lied about how he reached Mexico from Sri Lanka together with a large group of Tamils. ( Id. at 61, 64.) Although the Immigration Judge noted Petitioner presented rebuttal evidence, and ultimately determined Petitioner met his burden of proof regarding asylum, he expressly found the agent a credible witness. ( Id. at 68-69; cf. id. at 69.) For example, he noted the agent's testimony that the Canadian authorities had vouched for the informant's reliability, and that the agent had previously verified some of the data provided by the informant. ( Id. at 68-69). The Immigration Judge's ultimate decision to find for Petitioner notwithstanding the agent's testimony is currently on appeal.
Since the Attorney General exercised his discretion by considering the factors enumerated in 8 U.S.C. § 1182(d)(5)(A) and 8 C.F.R. § 212.5(b), and his exercise of discretion was neither unreasonable nor arbitrary, the Court does not second-guess the decision to deny parole. Even if the Court might reach a different conclusion were it to review the issue de novo, this would not justify granting the Petition. See Gutierrez-Chavez, 298 F.3d at 827.
Petitioner also relies on the ICE internal policy favoring release of aliens where the Immigration Judge grants asylum and the ICE appeals that determination. (Petition Ex. 12.) The Attorney General's determination that Petitioner poses a threat to national security and the community ( see Petition Ex. 15) precludes the favorable treatment afforded by the policy, since the policy expressly excludes from favorable treatment aliens who present "national security issues or danger to the community" ( see Petition Ex. 12).
Petitioner's argument that he met his burden of proof for asylum is unavailing in part because the grant of asylum is being appealed and is therefore not final. Furthermore, Petitioner cites no authority, and the Court's own research has located none, to support his contention that the Immigration Judge's non-final determination that he met his burden per se precludes the Attorney General from concluding Petitioner may be a threat to national security or the community. If Petitioner's argument were correct, every alien whose asylum application was granted by an immigration judge would automatically have to be paroled pending appeal. Petitioner provides no support for this outcome and the Court has not been able to locate any by its own research. In fact, all authority is to the contrary. See 8 C.F.R. § 235.3(c) and discussion below.
Last, Petitioner argues that because the Attorney General initially granted parole but later reversed that decision demonstrates some irregularity in the process by which parole was ultimately denied. Petitioner attributes undue significance to this fact because, after granting parole, the Attorney General retains discretion to revoke it. See 8 U.S.C. § 1182(d)(5)(A); Wong v. United States, 373 F.3d 952, 968 (9th Cir. 2004) (§ 1182(d)(5)(A) "makes clear that whether and for how long temporary parole is granted are matters entirely within the discretion of the Attorney General"). This is reasonable especially because new information may become available or circumstances may change during parole. See Marczak, 971 F.2d at 521. Since as of September 20, 2004 the Attorney General's decision to deny parole was within his discretion and supported by the record, the Court does not find it material that parole was granted at an earlier time but later revoked.
For the foregoing reasons, the Court finds without merit Petitioner's argument that habeas relief should be granted because his parole was denied in violation of the INA.
II. The Fifth Amendment
Petitioner next contends the denial of parole violated his Fifth Amendment substantive and procedural due process rights because it lacks all support, and is therefore punitive and arbitrary. Petitioner's argument is unavailing because he overstates the scope of Fifth Amendment protections available to aliens like himself, who have not entered the United States and are awaiting final resolution of removal proceedings, and because, as discussed above, the Court finds the decision to deny parole was not arbitrary. The Court notes the decision was not punitive, since removal proceedings are civil and not criminal in nature. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (removal proceedings are civil and not criminal, "and we assume that they are nonpunitive in purpose and effect"); Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991).
"[A]n alien seeking admission has not `entered' the United States, even if the alien is in fact physically present." Wong, 373 F.3d at 971. Accordingly, an alien who presents himself at the border without valid entry documents has not entered the United States even while detained in the United States by the immigration authorities and even if granted parole pending the final resolution of his removal proceedings. Id.; see also Shaughnessy v. United States ex re. Mezei, 345 U.S. 206, 213, 215 (1953).
Although aliens are entitled to some Fifth Amendment protections, the scope of those protections is not the same as it is for United States citizens. Demore v. Kim, 538 U.S. 510, 521-22 (2003). Long-standing Supreme Court precedent unequivocally establishes that "any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of republican form of government," and the Supreme Court "has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens." Id. (internal citations and quotation marks omitted).
Furthermore, the limited scope of Fifth Amendment protection available to aliens in immigration proceedings differs materially between the aliens who entered the United States and those, like Petitioner, who were stopped at the border before entering or obtaining admission. See Zadvydas, 533 U.S. at 693 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213, 215 (1953)); see also id. at 682.
The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But once the alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.Zadvydas, 533 U.S. 693 (internal citations omitted).
This distinction is highlighted by two Supreme Court cases. In Zadvydas, after his entry into the United States, the habeas petitioner was found deportable based on a criminal conviction. A final order was entered for his removal, and he was awaiting deportation. Id. at 684. Due to his background prior to entry into the United States, no country agreed to accept him, and he continued to be detained by the immigration authorities in the United States for years, still awaiting removal. Id. at 684-85. The Court held under the Fifth Amendment his detention could not be indefinite but only for the period reasonably necessary to secure removal. Id. at 699. "[O]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id., see also at 701.
Removal proceedings of admitted aliens are referred to as deportation proceedings, while removal proceedings involving non-admitted aliens such as Petitioner are referred to as exclusion proceedings. See Reno v. Flores, 507 U.S. 292, 296 n. 2 (1993). Similarly, admitted aliens are deported, while non-admitted aliens are excluded.
In Mezei, on the other hand, the habeas petitioner had not entered the United States, but, like Petitioner in this case, was detained at the border before he was granted admission. 345 U.S. at 208, 215. Subsequently, the Attorney General made a final removal determination; however, removal did not occur because no other country agreed to accept the petitioner. Id. at 208-09, 216. The petitioner therefore became stranded indefinitely in immigration custody. Id. at 216. The court held neither his continued detention nor the Attorney General's refusal to temporarily parole him into the United States on bond, violated his Fifth Amendment rights. Id. at 215; see also at 207. The determining factor was that the petitioner had not entered the United States, thus never acquiring the Fifth Amendment protection available to United States residents. Id. at 212-13.
Since Petitioner in this case has not entered the United States, his case is more analogous to Mezei than to Zadvydas. Accordingly, the scope of Fifth Amendment protection available to him is limited:
It is true aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a different footing; Whatever the procedure authorized by Congress is, it is due process as far as that alien denied entry is concerned.Mezei, 345 U.S. at 212 (internal citations and quotation marks omitted). Based on Mezei, Petitioner's Fifth Amendment rights are not being violated by his continued detention.
The scope of Fifth Amendment protection is further limited depending on whether the detention is taking place, as in this case, before a final order of removal or after. See Demore, 538 U.S. at 527-28. Detention pending finality of the removal proceedings is not unconstitutional. For example, in a case involving an admitted alien in deportation proceedings, the alien filed a habeas petition challenging the statutory framework permitting his detention without bail pending finality of those proceedings. Id. at 517. The Supreme Court held the detention did not violate his Fifth Amendment rights because of the "longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings." Id. at 526; see also at 523, 531 ("[d]etention during removal proceedings is a constitutionally permissible part of that process").
The instant case is analogous because Petitioner is being detained pending finality of his exclusion proceedings. As discussed above, the Fifth Amendment rights of non-admitted aliens such as Petitioner are narrower than those of admitted aliens. If no Fifth Amendment violation results from detention without bail pending final deportation of admitted aliens, a fortiori, no violation results from detention without bail of non-admitted aliens during the pendency of exclusion proceedings. This principle is demonstrated in Wong, which involved detention of a non-admitted alien pending finality of her exclusion proceedings. As a non-admitted alien, Wong was granted temporary parole pending determination of her adjustment of status application. 373 F.3d at 957-59, 967. Before deciding her application, the Attorney General revoked parole without a hearing, and placed her in detention. Id. at 958-59, 967. When she raised a due process claim in a Bivens action, the court held she had no "substantive liberty or property interest . . . in temporary parole status. . . ." Id. at 968. Specifically, after extensively referring to 8 U.S.C. § 1182(d)(5)(A), the court found:
The INA does not create any liberty interest in temporary parole that is protected by the Fifth Amendment. Rather, the statute makes clear that whether and for how long temporary parole is granted are matters entirely within the decision of Attorney General.Id.
While non-admitted aliens enjoy some constitutional protections, such protections do not include a right to parole or to be free from immigration detention, even for an extended period of time, during the pendency of exclusion proceedings. Id. at 917-73 (citing Berrera-Echevarria, 44 F.3d 1441, 1449-50 (9th Cir. 1995)). As discussed above, in denying parole in this case, Attorney General exercised his discretion as provided by law. Petitioner's argument that the denial of parole pending finality of his exclusion proceedings violates his Fifth Amendment rights is therefore unavailing.
III. International Law
Last, Petitioner argues his continued detention violates his rights under the Convention Relating to the Status of Refugees and the International Covenant on Civil and Political Rights because it is arbitrary and punitive. This contention is based on the same facts as the arguments that the decision to deny parole is arbitrary and punitive for lack of evidentiary support and therefore violates the INA and the Fifth Amendment. For the reasons discussed above, the Court disagrees. Accordingly, Petitioner's argument based on international law is also unavailing.
CONCLUSION
For the foregoing reasons, the Petition is DENIED. Petitioner's request for parole pending the disposition of the instant Petition is DENIED as moot.
IT IS SO ORDERED.