Ali v. Reno, 93 Civ. 4661 (CLB) and 93 Civ. 4683 (CLB).

Decision Date16 August 1993
Docket NumberNo. 93 Civ. 4661 (CLB) and 93 Civ. 4683 (CLB).,93 Civ. 4661 (CLB) and 93 Civ. 4683 (CLB).
PartiesOmar Ahmed ALI, Petitioner, v. Janet RENO, as Attorney General of the United States, and Rick M. Reish, Warden, Federal Correctional Facility, Otisville, New York, Respondents. Omar Ahmed ALI, Petitioner, v. Janet RENO, as Attorney General of the United States, Respondent.
CourtU.S. District Court — Southern District of New York

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Barbara Nelson, Nelson & Turkhud, New York City, for petitioner.

Mary Jo White, U.S. Atty., Gabriel Gorenstein, Diogenes Kekatos, Asst. U.S. Attys., New York City, for respondents.

MEMORANDUM & ORDER

BRIEANT, District Judge.

On July 9, 1993, Petitioner Omar Ahmed Ali, an Egyptian cleric being detained by Immigration and Naturalization Services at the Federal Correctional Institution in Otisville, New York, in this district filed a Petition for a Writ of Habeas Corpus pursuant to Section 2241, 28 U.S.C. § 2241. The Petitioner seeks review of the July 2, 1993 Order of James W. Pomeroy, District Director of the Immigration & Naturalization Service, in which the Petitioner's parole was revoked pursuant to Regulation 212.5(d)(2)(i) of Chapter 8 of the C.F.R.

On July 12, 1993, Petitioner filed a second Petition for a Writ of Habeas Corpus to review an Order of the Board of Immigration Appeals dated July 9, 1993 that dismissed an appeal from a decision of Immigration Judge Daniel J. Meisner dated March 16, 1993. Certified Record, at 1-8.1 In the March 16, 1993 decision, the Immigration Judge decided that he lacked jurisdiction to review District Director Pomeroy's March 6, 1992 Order rescinding Petitioner's permanent resident status. The Immigration Judge also denied Petitioner's application for political asylum or the withholding of deportation to Egypt and found that there were reasonable grounds for regarding the Petitioner as a danger to the security of the United States. Record, at 92-116.

On July 15, 1993, this Court held a joint case management conference for both cases. At this conference, Petitioner presented the Court with a proposed Order to Show Cause, to be issued pursuant to Section 2243 of Title 28, 28 U.S.C. § 2243, directing the respondent(s) to show cause why a writ of habeas corpus should not be granted setting aside the final order of exclusion and the District Director's rescission of Petitioner's status as a lawful permanent resident. See Court File No. 93 Civ. 4683, Doc. No. 4. The Order to Show Cause was issued and made returnable on July 23, 1993.2 The return date was later adjourned on consent until August 2, 1993 and the parties agreed that deportation would be stayed until ten days after a decision by this Court on the Order to Show Cause. See Court File No. 93 Civ. 4661, Doc. No. 6; Court File No. 93 Civ. 4683, Doc. No. 7. At the case management conference, the Petitioner and the Government agreed that the petitions for a Writ of Habeas Corpus present issues of law only, which can be resolved on the administrative record developed below. See July 15, 1993 Transcript, 2-3, 4.

On August 2, 1993, this Court held a hearing, and after oral argument, the Court reserved decision. The following constitutes this Court's decision on all of the issues presented in the petitions for a Writ of Habeas Corpus filed on July 9, 1993 and July 12, 1993, respectively.

As a preliminary matter, the Court notes that it has subject matter and in personam jurisdiction to review the order terminating parole pursuant to Section 1329 of Title 8, 8 U.S.C. § 1329 (1970 & Supp.1993)3 and Section 2241 of Title 28, 28 U.S.C. § 2241 (1971 & Supp.1993), insofar as the Petitioner is in custody pursuant to the Immigration & Nationality Act and such custody allegedly is in violation of the Constitution, the Act and the regulations promulgated thereunder. See Bertrand v. Sava, 684 F.2d 204, 209 (2d Cir.1982) (federal courts may exercise habeas corpus jurisdiction to review allegations that an INS District Director has abused his discretion in making parole decisions). The statutory authority for this Court's exercise of jurisdiction over the petition for review of the final order of exclusion is found in Section 1105a(b) of Title 8, 8 U.S.C. § 1105a(b) (1970 & Supp.1993).4 Venue is proper in both cases because the Petitioner is confined at a federal facility within this District. 28 U.S.C. § 2241(d).

Our consideration of the issues raised by the Petitioner requires a brief review of the relevant uncontested facts and the prior administrative proceedings had herein. On December 16, 1990, the Petitioner, a 55 year old citizen of Egypt who is blind, entered the United States as a non-immigrant visitor. Record, at 104, 174-75. On January 31, 1991, Petitioner applied for an adjustment of his immigration status from that of a visitor to that of an alien lawfully admitted for permanent residence. Record, at 407-409 (Form I-485, Application for Status as a Permanent Resident). On April 8, 1991, the Immigration and Naturalization Service granted the Petitioner's application for lawful permanent resident status as a "minister of religion." Record, at 407. See 8 U.S.C. § 1101(a)(27)(C)(ii)(I).

In June of 1991, the Petitioner left the United States and went on a Haj, or religious pilgrimage, to Saudi Arabia. Record, at 23. On July 31, 1991, Petitioner presented himself to immigration inspectors at J.F.K. International Airport and sought to be readmitted into the United States as a returning resident alien. Instead, Petitioner's inspection was deferred and he was paroled into the United States pending completion of his inspection. See Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 1.

After several interviews and by notice dated ___, 1992 (probably January 16, 1992 but the date is illegible on the copy of the document submitted to this Court), the District Director advised the Petitioner of the Immigration and Naturalization Service's intent to rescind Petitioner's special immigrant status on the ground that the Petitioner, at the time the adjustment of status was made originally, was excludable from admission to the United States under (1) Section 212(a)(11), 8 U.S.C. § 1182(a)(11), as a polygamist or one who practices polygamy5; (2) Section 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C), based on misrepresentations of material facts, e.g., failure to disclose marital status; (3) Section 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A)6, as a result of a December 8, 1987 conviction for a crime of moral turpitude, namely falsification of a private note "Cheque;" and (4) Section 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C), based on misrepresentations of material facts, e.g., failure to disclose his prior arrest and conviction. See Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 2; Record at 286-287. The Notice further advised the Petitioner that he had 30 days within which to submit "an answer in writing under oath setting forth reasons why such rescission should not be made" or "within the time allowed, to request a hearing before an Immigration Judge in support of, or in lieu of, a written answer." Id. Finally, Petitioner was advised that he had the right to assistance of counsel in preparation of the answer or in connection with a hearing. Id. See 8 C.F.R. § 246.1 (notice of intent to rescind and right to counsel provision); 8 C.F.R. § 3.16 (general right to counsel at no expense to the Government).

By letter dated January 17, 1992, Zeinab Aly Massoud, a privately retained attorney for the Petitioner, requested "60 days to respond to the District Directors sic notice" and a copy of the documents supporting the allegations. See Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 3. This request was never acted upon nor acknowledged. By letter dated February 25, 1992, some five weeks later, and after expiration of the time initially allowed for a response to the notice, Attorney Massoud wrote the INS that she no longer represented Mr. Ali. See Court File No. 93 Civ. 4683, Doc. No. 1, Ex. 4.

By Order dated March 6, 1992, District Director Pomeroy rescinded Petitioner's status of permanent resident alien due to his failure to respond within 30 days to the allegations contained in the January 16, 1992 Notice pursuant to Section 246 of the Immigration and Nationality Act, 8 U.S.C. § 1256, and Regulation 246.2 of Chapter 8 of the Code of Federal Regulations. Petitioner was advised of this decision by letter dated March 6, 1992. Record, at 288-89. Based on the rescission, Petitioner was given notice that there would be an exclusion hearing on April 30, 1992 at 8:30 AM before an Immigration Judge to determine whether or not he should be excluded and deported pursuant to Section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid immigrant visa or other documentation permitting entry into the United States. Record, at 248.

At the April 30, 1992 exclusion hearing, Petitioner appeared with new counsel, Vincent Agresti, Esq. who requested an adjournment. Record, at 123-24. The hearing was adjourned until May 14, 1992. On the adjourned date, counsel conceded that Petitioner was properly in exclusion proceedings and was excludable under Section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid immigrant visa or other documentation permitting entry into the United States. Record, at 122. Counsel also conceded that the Petitioner was served with the notice of intent to rescind but failed to "file a proper answer within the required time." Record, at 121-122. Counsel noted, however, that a motion to reopen the rescission proceeding had been filed. Id.

By letter dated June 10, 1992, the firm of Nelson & Turkhud requested of the Immigration Judge by letter that they be substituted as counsel for the Petitioner. New counsel also moved before the Immigration Judge to vacate the District Director's rescission...

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