Opinion
No. C 00-2923 CRB
January 22, 2001
MEMORANDUM AND ORDER
In this habeas corpus proceeding petitioner contends that the statute that gives the Immigration and Naturalization Service ("INS") the authority to decide whether he should be released on parole pending completion of his exclusion proceedings is unconstitutional as applied to him. Now before the Court is respondents' motion to dismiss. After carefully considering the papers filed by the parties, and having had the benefit of oral argument, the motion to dismiss is GRANTED.
BACKGROUND
Petitioner is a 42-year-old citizen of India. He is a baptized Sikh and was an attorney and businessman in India. After he became involved with a political organization he was arrested and tortured. As a result of the torture, he fled India for the United States in August 1990. Four months later he applied for asylum. In February 1992 he returned to India after learning that his wife, who was still in India, had become seriously ill. Upon his arrival at the airport in India he was arrested and tortured. He and his wife fled to the United States on May 5, 1993.
A. The initiation of exclusion proceedings
Upon his arrival at JFK Airport, petitioner and his wife were placed in exclusion proceedings. Petitioner and his wife applied for asylum, withholding of deportation, and relief under the Convention Against Torture. While those proceedings were pending, the INS paroled petitioner and his wife into the United States. In November 1997, petitioner appeared for a hearing at the immigration court in San Francisco. At the conclusion of the hearing the INS arrested him and revoked his parole. The parole was revoked on the basis of a confidential Federal Bureau of Investigation ("FBI") memorandum which was not shared with the petitioner. Petitioner has been in INS custody ever since.
B. The immigration judge's decision
In December 1999, Immigration Judge Dana Marks Keener granted petitioner's wife relief from deportation and asylum, and also found her eligible for withholding of deportation and relief under the Convention Against Torture. The judge denied petitioner's application for asylum, but granted his application for withholding of deportation, finding it more likely than not that petitioner would suffer persecution on account of his political opinion if the INS deported him to India. The INS has appealed the granting of petitioner's application for withholding of deportation, and petitioner has appealed the denial of asylum. Those appeals are currently pending before the Board of Immigration Appeals.
C. The request for parole
In March 2000, petitioner's counsel wrote the INS to apply for petitioner's parole pending resolution of his exclusion proceedings. The Attorney General of the United States has discretion to parole an alien involved in exclusion proceedings into the United States. See Barrera-Echavarria v. Rison, 44 F.3d 1441, 1445-46 (9th Cir. 1996) (en banc). The Attorney General has delegated this discretion to the INS; hence, petitioner's request was made to the INS.
The INS denied petitioner's request by letter dated April 27, 2000. The District Director concluded that petitioner's release would not be in the public interest, in part because the INS considers petitioner to be a terrorist threat in the United States (even though the immigration judge found otherwise), in part because of false representations petitioner has made in the past (as found by the immigration judge), in part because petitioner had not demonstrated any urgent need for his release, and in part because the INS considers him to be a flight risk.
D. The habeas corpus petition
Petitioner filed the pending habeas corpus petition on August 14, 2000. He challenges the constitutionality of the Attorney General's delegation to the INS of her authority to decide parole. In particular, he claims that the Attorney General's delegation of the parole decision to the INS violated his due process rights given that the INS is at the same time trying to have petitioner deported on the ground that he is a terrorist threat; the INS will not grant him parole because to do so would undercut its litigation position. He contends further that the INS is denying parole in order to coerce petitioner into withdrawing his application for withholding of deportation. The INS now moves to dismiss the petition.
DISCUSSION
A. Jurisdiction
The INS first argues that the Court does not have jurisdiction to hear the petition. In 1996, Congress enacted the Illegal Immigration and Immigration Responsibility Act ("IIRIRA"). Section 242(a)(2)(B)(ii) of the Act prohibits judicial review of any decision by the Attorney General which is expressly committed to her discretion by statute (with one exception not relevant here). See 8 U.S.C. § 1252 (a)(2)(B)(ii). As is set forth above, the Attorney General is vested with discretion to determine whether an alien should be paroled pending deportation. See 8 U.S.C. § 1182 (d)(5)(A) ("The Attorney General may . . . in his discretion parole into the United States" an alien subject to deportation); see also Reno v. Flores, 507 U.S. 292, 306 (1993) (stating that "Congress eliminated any presumption of release pending deportation, committing that determination to the discretion of the Attorney General"). Thus, argues the INS, you have no jurisdiction to hear the petition.
Petitioner responds that the 1996 amendments do not apply to this case because his exclusion proceedings commenced before April 1, 1997 — the effective date of the 1996 amendments. Section 309(c)(1) of IIRIRA provides that "in the case of an alien who is in exclusion or deportation proceedings before the title III-A effective date — (A) the amendments made by this subtitle shall not apply, and (B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments)." Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 477 n. 5 (1999) (quoting section 309(c)(1)). Petitioner's argument is persuasive, especially since the Supreme Court has indicated that the amendment eliminating judicial review of discretionary decisions does not apply to pending cases. See id. at 486-87 (noting that the amendment of 1252(g) applies to pending cases while the amendment of section 1252(a)(2) does not). This is unsurprising given that the statute plainly provides that the amendments — including the amendment upon which the government relies — do not apply to an alien who was in exclusion proceedings before the effective date of the amendments. The transitional rules, rather than 8 U.S.C. § 1252 (a)(2), thus govern judicial review of discretionary decisions involving the petitioner.
The transitional rules provide that "there shall be no appeal of any discretionary decision under section 212(c), 212(h), 212(i), 244 or 245 of the Immigration and Nationality Act." IIRIRA § 309(c)(4)(E). The provision which gives the Attorney General discretion to grant parole is found at section 212(d); thus, the transitional rules do not appear to bar review. Moreover, the Ninth Circuit has held that the IIRIRA did not eliminate habeas review of constitutional and statutory questions and that 28 U.S.C. § 2241 remains an available remedy. See Magano-Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 1999). Accordingly, the Court has jurisdiction to hear the petition.
B. Whether The Petition States A Claim
The INS next argues that the petition does not state a claim because the Attorney General's delegation to the INS of its discretion to grant petitioner parole while his exclusion proceedings are pending does not violate a statute or the Constitution as a matter of law.
As a preliminary matter, it is necessary to define petitioner's claim. As he stated repeatedly at oral argument, he does not allege that the INS abused its discretion by denying him parole. Rather, he asks whether excludable aliens have a fundamental right to fair procedures in the adjudication of their applications for withholding of deportation (relief that is non-discretionary), and contends that he has been denied due process because his application for parole pending resolution of his application for withholding of deportation was decided by the same "person" — the INS — which is challenging his application for withholding of deportation. Opposition at 6, 12-13. Petitioner claims further that the INS denied his parole request in order to force him to withdraw his application for withholding of deportation. He seeks an order requiring a bond hearing before an immigration judge.
Petitioner does not have a statutory claim. The INS may detain an excludable alien, such as petitioner, while appeals to the Board of Immigration Appeals are pending. See Clark v. Smith, 967 F.2d 1329 (9th Cir. 1992). In Clark, the BIA held that the petitioner was not entitled to asylum but was entitled to withholding of deportation, the same situation as is presented here. The BIA decision, however, was not yet final as there were unadjudicated motions for reconsideration. The Ninth Circuit held that there was no statutory bar to the INS continuing the detention of the petitioner while the appeals were pending. Id. at 1331-32.
Nor does the petition allege a violation of a cognizable constitutional right. The Supreme Court has held that an alien seeking admission into the United States "has only such rights as Congress has granted him."Clark, 967 F.2d at 1332 (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)). In Knauff, for example, the petitioner challenged a regulation passed by the Attorney General that allowed for the summary exclusion of aliens without a hearing where the reasons for the exclusion were contained in confidential information. The Court upheld the regulation:
an alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such privilege is granted to an alien only upon such terms as the United States shall prescribe.Id. at 542-43. The Court concluded: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Id. at 544. In other words, an excludable alien does not have a constitutional right to parole; "the alien has only such rights as Congress has granted." Clark, 967 F.2d at 1332.
Here, the only right Congress has given an excludable alien is the right to ask the Attorney General, or his delegate, to parole the alien pending resolution of his exclusion proceedings. Congress gave aliens that right at the same time it gave the INS the responsibility for prosecuting the exclusion proceedings. Since excludable aliens, such as petitioner, do not have any constitutional rights to release, the fact that the INS may have an incentive not to grant parole, or, to revoke parole already granted, in order to help the prosecution of the exclusion proceedings does not violate the Constitution. Congress could have simply not allowed for the release of excludable aliens at all. See Barrera-Echhavarria v. Rison, 44 F.3d 1441, 48-49 (9th Cir. 1995) (en banc) ("we find that applicable Supreme Court precedent squarely precludes a conclusion that they have a constitutional right to be free from detention even for an extended time"). As the Ninth Circuit has reiterated: "An excludable alien, . . . has no procedural due process rights regarding his admission or exclusion." Id. at 1449 (emphasis added). Thus, petitioner's contention that his due process rights are being violated because the INS is using its parole discretion to prejudice petitioner in his attempt to obtain withholding of deportation and asylum (in some unspecified manner) does not state a constitutional claim.
Petitioner's attempt to distinguish these cases on the ground that they did not involve aliens who claimed to have a non-discretionary right to withholding of deportation is unpersuasive. The Supreme Court has made it abundantly clear that an excludable alien, such as petitioner, has only such procedural rights as are given by Congress: "`Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.'" Ma v. Reno, 208 F.3d 815, 823 (9th Cir. 2000) (citation omitted) (noting that the holding of Barrera-Echhavarria rested on the fact that the petitioner was an excludable alien).
The Court cautions that its ruling is limited to the particular circumstances of this case, namely, an excludable alien seeking parole while his exclusion proceedings are pending. It is not ruling, and does not express an opinion, as to whether petitioner would have a claim for violation of his constitutional rights if the INS continues to detain him even after and if the immigration judge's order of withholding of deportation is affirmed.
CONCLUSION
For the foregoing reasons, respondents' motion to dismiss the petition for habeas corpus is GRANTED.