Bertrand v. Sava

• Citation: 684 F.2d 204
• Decision Date: 25 June 1982
• Docket Number: No. 1237,82-2110,82-2123,1237
• Parties: Joseph BERTRAND, et al., Petitioners-Appellees, v. Charles SAVA, et al., Respondents-Appellants. Laissez-Moi VIGILE, et al., Petitioners-Appellees, v. Charles SAVA, et al., Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 204

684 F.2d 204

Joseph BERTRAND, et al., Petitioners-Appellees, v. Charles SAVA, et al., Respondents-Appellants.

Laissez-Moi VIGILE, et al., Petitioners-Appellees, v. Charles SAVA, et al., Respondents-Appellants.

No. 1237, 82-2110, 82-2123.

United States Court of Appeals,

Second Circuit.

Argued April 30, 1982.

Decided June 25, 1982.

Harriet Rabb, New York City (Susan D. Susman, Immigration Law Clinic, Steven R. Shapiro, New York Civ. Liberties Union, Stanley Mailman and Arthur C. Helton, Mailman & Ruthizer, New York City, on the brief), for petitioners-appellees.

Harvey J. Wolkoff, New York City (John S. Martin, Jr., U. S. Atty., S. D. N. Y., Michael H. Dolinger, Asst. U. S. Atty., and Thomas H. Belote, Sp. Asst. U. S. Atty., New York City, on the brief), for respondents-appellants.

Before MANSFIELD and KEARSE, Circuit Judges, and CABRANES, District Judge. ^*

JOSEE A. CABRANES, District Judge:

The questions presented arise from judicial review of discretionary decisions by a District Director of the Immigration and Naturalization Service ("INS") to deny parole to unadmitted aliens ¹ who are detained pending the completion of proceedings to consider their applications for political asylum and their exclusion. The INS District Director for the New York area, Charles Sava, denied the parole requests of fifty-three unadmitted Haitian aliens. On petitions for the writ of habeas corpus, the United States District Court for the Southern District of New York (Robert L. Carter, Judge ) held that the INS District Director had abused his discretion in denying the requests and ordered their release "under reasonable release conditions." 535 F.Supp. 1002 (S.D.N.Y.1982); 535 F.Supp. 1020 (S.D.N.Y.1982).

We reverse.

INTRODUCTION

The original petitioners are eight unadmitted aliens detained since their arrival in Florida from Haiti in makeshift boats in the summer of 1981. Forty-five other similarly-situated Haitian aliens became parties to this action when the trial court certified a class of fifty-three persons. Upon their arrival in the United States, the petitioners were detained by the INS at Camp Krome in Miami, Florida. On July 18, 1981, the Procedures for determining the admissibility of unadmitted aliens are found in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and regulations promulgated thereunder. The statute provides that any alien "who (upon arrival in the United States) may not appear to (an INS) examining officer ... to be clearly and beyond a doubt entitled to land" is to be detained for examination by a special inquiry officer or immigration judge of the INS. 8 U.S.C. §§ 1225(b) and 1226(a); see 8 C.F.R. § 236.1. The immigration judge decides whether to admit formally or to exclude and deport the arriving alien. Id. An excluded alien is immediately returned to the country from which he came "unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper." 8 U.S.C. § 1227(a). A decision by an immigration judge to exclude an arriving alien may be appealed to the Board of Immigration Appeals ("BIA"), 8 C.F.R. § 236.7, the decision of which is appealable to the United States Court of Appeals for the relevant circuit. 8 U.S.C. § 1105a. The Attorney General may, in his discretion, "for emergent reasons or for reasons deemed strictly in the public interest," parole an alien into the United States pending the outcome of exclusion hearings. However, a paroled alien is not regarded as having been "admitted" into the United States. 8 U.S.C. § 1182(d)(5)(A). ³ The Attorney General has delegated to INS District Directors his discretionary authority to act on requests for parole by unadmitted aliens detained in their respective districts. 8 C.F.R. § 212.5. ⁴

INS transferred them to the Service Processing Center ("SPC") in Brooklyn, New York, where they have been detained until now. In August 1981 the INS began proceedings to consider both the exclusion of the fifty-three from the United States (pursuant to 8 U.S.C. §§ 1225, 1226 and 8 C.F.R. § 236.2) and their applications for political asylum (pursuant to 8 U.S.C. §§ 1158, 1226 and 8 C.F.R. §§ 108, 236.3). ²

PRIOR PROCEEDINGS

At the start of the INS exclusion hearings, each petitioner requested that counsel On November 25, 1981, the original eight petitioners commenced these habeas corpus proceedings. 28 U.S.C. § 2241. They challenged Sava's denial of their parole requests and their continued detention on the grounds, inter alia, that (1) Sava had either failed to exercise the discretion delegated to him by the Attorney General or, in the alternative, had abused that discretion by invidiously discriminating against the petitioners because of their race or national origin; and (2) Sava had violated the United Nations Convention and Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, 6259, T.I.A.S. 6577 (collectively, the "Protocol"). ⁶ In bringing these habeas corpus actions the petitioners did not claim the right to remain in the United States. Their claims to political asylum and their resistance to exclusion and deportation are the The original eight petitioners sought and obtained a prompt evidentiary hearing on their claims in these actions. At the hearing held on January 22 and January 26, 1982, the petitioners called four witnesses and the Government called three. The principal Government witness was Sava, who attempted to explain generally how decisions involving parole applications are made, and, in particular, how he had made the decisions to deny the petitioners' requests.

be appointed to assist him in the pursuit of his claims. To comply with these requests the hearings were temporarily adjourned. In September and October 1981, after the appointment of counsel, each petitioner filed an application for political asylum. At about the same time, each of the eight original petitioners filed requests to be released on parole with Charles Sava, the District Director of the INS for the New York area. In the fall of 1981 Sava denied each of the eight applications for parole, in the asserted belief that the petitioners would abscond if temporarily permitted to enter the country. ⁵ subject of separate proceedings and do not concern us at this time.

In its first ruling, issued on March 5, 1982, the trial court held that it could review for abuse the INS District Director's discretionary decisions on requests for parole. In addressing the merits of the petitioners' claims, the court found that Sava knew little about "the individual characteristics" of the petitioners but was well versed in the detail of the files of certain comparable non-Haitian applicants and that all the petitioners had received identical form letters informing them of the fact that their requests had been denied. On the basis of these findings it concluded that Sava had improperly failed to exercise any discretion in reviewing petitioners' requests.

Assuming arguendo that some discretion had been exercised by Sava, the District Court turned to the alternative question of whether Sava had abused that discretion. It considered whether Sava had made parole decisions concerning non-Haitians in similar circumstances and, if so, whether those decisions were consistent with Sava's decisions on petitioners' applications. The court found that there were twelve unadmitted non-Haitian aliens who had applied to Sava for parole and whose circumstances were "indistinguishable" in relevant respects from those of the eight petitioners. ⁷ The only differences between the two assertedly "comparable" groups of parole applicants, the court held, were (1) that the petitioners were Haitians and black while the members of the group of twelve were neither Haitians nor black and (2) that Sava had denied all of the petitioners' requests for parole while he had granted all twelve of the requests from the group of twelve non-Haitians.

Based on this comparison, the District Court concluded that Sava had abused his discretion. In the court's view, the only reason that petitioners' requests for parole were denied was "because (the petitioners) were black and/or because they were Haitians." Accordingly, it ordered the INS either to release the eight petitioners on parole within 10 days or, in the alternative, to "show cause in writing, supported by affidavit, reasons for believing that any or all of (the petitioners) pose a risk of absconding."

The INS declined to release any of the petitioners and sought to comply with the court's alternative directive. On March 15, 1982, Sava filed with the court an affidavit which attempted to demonstrate that the eight petitioners were different in relevant respects from the group of twelve non-Haitians identified by the court for comparison purposes; that the petitioners posed "extremely significant" risks of absconding; and that the denial of the petitioners' parole requests was justified.

On March 10, 1982, the petitioners filed a motion for leave to amend their petitions to add class allegations and include forty-five other unadmitted Haitian aliens detained at the SPC as part of a defined class of fifty-three persons, a motion to certify this class and a motion for summary judgment in favor of the class.

The District Court issued a second ruling on April 5, 1982. In the ruling, the court refused to accept the arguments or consider the information presented in Sava's March 15, 1982 affidavit. It held that the Sava affidavit of March 15, 1982 contained a series of "(p)ost-hoc rationalizations" of Sava's original decisions and constituted an improper attempt to "re-open the record" that had been closed at the end of the evidentiary hearing in January. The court also granted the three motions filed by the petitioners on March 10, 1982 and ordered the Government to release all fifty-three members of the newly-certified class. The Government appealed, 28 U.S.C. §...