Marczak v. Greene

• Decision Date: 23 July 1992
• Docket Number: Nos. 90-1023,90-1024,s. 90-1023
• Citation: 971 F.2d 510
• Parties: Roman MARCZAK and Ryszard Kowalczyk, Petitioners-Appellees, v. Joseph R. GREENE, District Director of U.S. Immigration and Naturalization Service, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 510

971 F.2d 510

Roman MARCZAK and Ryszard Kowalczyk, Petitioners-Appellees, v. Joseph R. GREENE, District Director of U.S. Immigration and Naturalization Service, Respondent-Appellant.

Nos. 90-1023, 90-1024.

United States Court of Appeals, Tenth Circuit.

July 23, 1992.

Emily Anne Radford, Atty., Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Civil Div., and Lauri Steven Filppu, Deputy Director, Dept. of Justice, Washington, D.C., James W. Winchester, Asst. U.S. Atty., Denver, Colo., with her on the briefs), for respondent-appellant.

Daniel M. Kowalski of Denver, Colo., for petitioner-appellee Marczak.

Thomas R. Orr of Holland & Hart, Colorado Springs, Colo. (Timothy C. Kingston and Daniel W. Patterson of Holland & Hart, Denver, Colo., with him on the brief), for petitioner-appellee Kowalczyk.

Before SEYMOUR, HOLLOWAY, and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.

Donald H. Russell, District Director of the United States Immigration and Naturalization Service, appeals the district court's order granting Roman Marczak's and Ryszard Kowalczyk's (petitioners) petitions for writ of habeas corpus and ordering that they be paroled pending final disposition of the exclusion proceedings. We reverse.

I.

On August 15, 1989, a Danish air charter landed in Anchorage, Alaska, carrying a number of Polish seaman who were en route from Poland to a fishing vessel owned and operated by the Polish national government. Sometime before arriving in the United States, several of the crewmembers decided to seek asylum in this country, and they reported to INS officials in Anchorage to request entry. Among the nine sailors who appeared before immigration officials at that time were appellees Kowalczyk and Marczak. ¹

When he filed this appeal, Mr. Kowalczyk was thirty-two years old, with a wife and two children still in Poland. Mr. Marczak, who was twenty-five years old and unmarried when he arrived, has since married an American woman. Both men are members of Fighting Solidarity, a radical political opposition group that resists any cooperation with the former communists in Poland, and that is distinct from the now legal Solidarity Party. They claim that as a result of their political activities, they have been repeatedly jailed, beaten, and interrogated, and that their own and their families' safety is in continuing jeopardy in Poland. Consolidated Answer Brief at 6 n. 5; Rec., vol. I, doc. 15 at ex. L. If they were to return to Poland, they claim, they would be subject to similar levels of persecution and physical abuse.

Mr. Kowalczyk and Mr. Marczak were not the first of the nine sailors to speak to immigration officials when they arrived in Anchorage. Four others presented travel documents for inspection and were formally "admitted" into the United States. Once admitted, they were immediately invested with the constitutional and legal rights attaching to those who have already "entered" the country. Accordingly, when the admitted sailors requested asylum, they were detained and placed in deportation proceedings pursuant to 8 U.S.C. § 1252 (1988). ²

The immigration authorities apparently guessed that the next five men would also request asylum, and they refused to stamp their travel documents. Thus, although Mr. Kowalczyk and Mr. Marczak had obtained in Poland valid C-1 "in-transit" visas permitting them to travel "in immediate and continuous transit through the United States" for the purpose of boarding their ships, id. at § 1101(a)(15)(C), they were detained along with the remaining three men, and placed in exclusion proceedings pursuant to 8 U.S.C. §§ 1225-1226. ³ All nine were taken to Wackenhut detention center in Aurora, Colorado.

Through retained counsel (presumably paid for by the local Polish community), petitioners subsequently requested parole pending the determination of their immigration status. See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5. The district director, Donald Russell, denied parole in both cases. In a letter dated September 8, the same day as Mr. Marczak's request for parole, Mr. Russell responded simply, "Your request to parole Mr. Marczak is denied." Addendum to Consolidated Answer Brief for Petitioners Jacek Kisielewski and Ryszard Kowalczyk (hereinafter Addendum), doc. 6. On October 2, Mr. Russell responded in more detail to Mr. Kowalczyk's September 20 request, and denied parole on the grounds that "[p]arole is meant to be the exception and not the rule in exclusion cases," and that "there is a possibility that [he] will abscond to avoid being returned to [his] home country of Poland." Addendum, doc. 8. Mr. Russell also noted Mr. Kowalczyk's lack of family ties in this country and Russell's own belief that the asylum claim would not prove meritorious, and stated that "the continued detention ... is in the public interest." Id. An identical letter was sent the same day to Roman Marczak's attorney. Rec., vol. I, doc. 15 at ex. C.

Petitioners filed writs of habeas corpus in district court contesting the denial of parole and alleging that Mr. Russell unlawfully discriminated against them. Following an evidentiary hearing, the district court granted the writs and ordered appellees released on $3,500 bond. The court held that the District Director abused his discretion because he failed to make an individualized determination in each case before denying parole. Although the court found no evidence of discrimination, it concluded that appellees did not pose a risk of flight, and that the public interest favored parole over further incarceration. Rec., vol. II, at 81. On appeal, the government contends the court acted outside its authority in holding an evidentiary hearing, applied an incorrect legal standard, and improperly overrode the INS's parole decision. ⁴

II.

Congress has exercised its power over immigration in the Immigration and Naturalization Act, codified at 8 U.S.C. §§ 1101 et seq. Its authority in this area is exceptionally broad: "over no conceivable subject is the legislative power of Congress more complete." Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 765-67, 92 S.Ct. 2576, 2583-84, 33 L.Ed.2d 683 (1972). This power is in turn entrusted to the Attorney General, 8 U.S.C. § 1103, whose decisions are accorded a high degree of judicial deference. Palma v. Verdeyen, 676 F.2d 100, 104 (4th Cir.1982).

An alien arriving in this country is subject to immediate assessment by the INS. "Every alien ... who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry." 8 U.S.C. § 1225(b). Excludable aliens applying for asylum appear before an immigration judge who initially determines whether exclusion is appropriate. That decision may be appealed, first to the Board of Immigration Appeals (BIA), 8 U.S.C. § 1226(b); 8 C.F.R. §§ 103.3, 236.7, and then to the Court of Appeals for the circuit in which the administrative proceedings were held, 8 U.S.C. § 1105a(a)(2). Pending a final decision on the merits of the asylum claim, an alien either remains in detention or, in the District Director's discretion, is paroled into the community. Id. at § 1182(d)(5)(A); 8 C.F.R. 212.5. Appellees Marczak and Kowalczyk went through precisely this process. Once they were found by the Port Director in Anchorage to be apparently excludable under what was then 8 U.S.C. § 1182(a)(20) ⁵ for failure to possess adequate documentation, they were detained under section 1225(b) and placed in exclusion proceedings. They applied for parole pending the resolution of those proceedings.

A.

The government contends Congress has always intended that parole be the exception in exclusion cases, and that a recent INS policy directive finally gives effect to that purpose. Consolidated Brief for Appellant at 27, 30. On its face, however, the statute displays no preference for either detention or parole, leaving the matter instead to the discretion of the Attorney General. 8 U.S.C. § 1182(d)(5)(A). ⁶ Normally, our inquiry into the meaning of a statute would end with its language. See United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2803, 115 L.Ed.2d 976 (1991) (if statute is unambiguous and result not irrational, plain language controls).

The government nonetheless cites the House Report that accompanied the original act in 1952.

The Committee believes that the broader discretionary authority is necessary to permit the Attorney General to parole inadmissible aliens into the United States in emergency cases, such as the case of an alien who requires immediate medical attention before there has been an opportunity for an immigration officer to inspect him, and in cases where it is strictly in the public interest to have an inadmissible alien present in the United States, such as, for instance, a witness or for purposes of prosecution.

H.R.Rep. No. 1365, 82d Cong., 2d Sess., reprinted in 1952 U.S.C.C.A.N. 1653, 1706; see also Amanullah v. Nelson, 811 F.2d 1, 6 (1st Cir.1987). Despite the apparent clarity of the quoted language, the Supreme Court observed only six years later that "[p]hysical detention of aliens is now the exception, not the rule, and is generally employed only as to security risks or those likely to abscond." Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1075, 2 L.Ed.2d 1246 (1958) (emphasis added). It is true, as the government argues and as we discuss below, that the parole regulations have been rewritten since Leng May Ma. The relevant provisions of the statute, however, remain intact, and a change in agency policy can obviously not affect statutory intent. At the very least, the government must concede that the policy was once different than it is now, and that the Supreme Court, given the...