Amanullah v. Nelson, s. 86-1604

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation811 F.2d 1
Docket Number86-1625 and 86-1635,Nos. 86-1604,s. 86-1604
PartiesAMANULLAH & Wahidullah, Plaintiffs, Appellants, v. Alan C. NELSON, Charles T. Cobb, and Anne Frank, Defendants, Appellees. Mohammed OSMAN MOHIBI, Plaintiff, Appellant, v. Alan C. NELSON, Etc., et al., Defendants, Appellees. Ziaullah SADDOZAI, Plaintiff, Appellant, v. Alan C. NELSON, Commissioner of the Immigration and Naturalization Service, et al., Defendants, Appellees.
Decision Date04 February 1987

Marjorie Heins, Massachusetts Civil Liberties Union Foundation, with whom Richard C. Csaplar, Jr., Margaret H. Marshall, Kerry J. Tucker, Csaplar & Bok, Boston, Mass., Regina F. Lee, The Legal Services Center, Jamaica Plain, Mass., Arthur C. Helton, Lawyers Committee for Intern. Human Rights, New York City, and Margaret Bruer were on brief, for plaintiffs, appellants.

Michael P. Lindemann, Office of Immigration Litigation, with whom Richard K. Willard, Asst. Atty. Gen., and Thomas W. Hussey, Asst. Director, Office of Immigration Litigation, Washington, D.C., were on brief, for defendants, appellees.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The petitioners in these consolidated appeals are four Afghanistanis who are currently being detained by the federal Immigration and Naturalization Service (INS) pending final resolution of exclusion proceedings against them. Having been denied parole from detention, they filed a total of three petitions for writs of habeas corpus in the United States District Court for the District of Massachusetts. 1 These applications were assigned to different district judges, but with uniform results: each petition was summarily denied without an evidentiary hearing. Appeals were taken across the board. Because of the resemblance among the cases, we consolidated the appeals for briefing and oral argument.


There are some similarities in the bittersweet tales of these four young men, all of whom claim to have fled to American shores in consequence of the unsettled--and dangerous--political situation in their homeland. And, there are some idiosyncratic wrinkles as well. We briefly inspect their circumstances (but, inasmuch as the merits of their asylum applications are not before us, we discuss the facts only to the extent necessary to facilitate an understanding of the issues presented by these appeals).

Mohammed Osman Mohibi arrived at Kennedy Airport in New York on October 17, 1985. He carried no passport, ticket, boarding pass, or other documentation. Initially, the INS could not determine who he was or from whence he had come. Mohibi was detained and, later, questioned. He thereafter admitted using fraudulent documents to facilitate his travel to New York. The INS determined that Mohibi was excludable from the United States on a plethora of grounds: as a stowaway, as an "intending immigrant" who lacked valid papers, and as an undocumented nonimmigrant. Accordingly, Mohibi's detention was prolonged pending further exclusion proceedings.

Ziaullah Saddozai arrived via Trans-World Airlines from Bombay, India on November 16, 1985. He likewise landed at Kennedy without travel documents or identification. During the interrogation which ensued, Saddozai confessed that he had paid $2000 to a smuggler for false papers and a berth on the aircraft. Saddozai's detention, on much the same grounds as Mohibi's, followed apace.

Amanullah and Wahidullah arrived together at Kennedy on November 23, 1985, aboard a flight from Bombay. They claimed to be in transit to a Canadian destination. Both had used counterfeit Netherlands passports to get as far as New York. They acknowledged paying some $1500 each to a document procurer in India for the bogus paperwork. An INS inspector advised them that they could not enter the United States bearing ersatz documents, even as temporary visitors in transit. They were, however, offered the chance to withdraw their applications for admission and to return to India. But, they chose to remain in the United States and were taken into custody.

As the government notes, these young men in each case fled immediately from India or Pakistan, rather than from Afghanistan itself. There is no question but that, although life in such a venue avoided the physical danger and threat of persecution which was present in their homeland, it was far from idyllic. The situation faced by Amanullah and Wahidullah is illustrative. In India, their existence was marginal at best. Afghanistanis are not, as a rule, given formal refugee status there. Without such standing, they had no legal right to work. Unable to work, they subsisted on the meager stipends proffered by the United Nations High Commission on Refugees (hardly enough to cover rent, electricity, and water for a small room in New Delhi). Amanullah and Wahidullah credibly claim that they were forced to go without meals on occasion in order to meet the rent. And, poverty was not the only problem: some refugees lived in fear of informers and Afghanistani government agents. Saddozai and Mohibi fared little better in their layovers between Afghanistan and the United States.

All four of the petitioners were detained pending the resolution of exclusion proceedings directed at them. All four have since applied for political asylum under 8 U.S.C. Sec. 1158 (1982) and for withholding of deportation pursuant to 8 U.S.C. Sec. 1252(h) (1982). The exact status of these various applications is not directly germane to the matter before us; it suffices to say that, to this date, the petitioners have neither received meaningful relief nor abandoned their efforts to find sanctuary in this country. While awaiting the outcome of their exclusion/entry proceedings, each petitioner requested that he be released on parole. The INS district director, Charles Cobb, refused. These habeas petitions ensued.

During their months in custody, the appellants have been in residence at a variety of INS detention centers. Such confinement has not been unduly onerous. In Boston, for example, they were confined to two rooms--but not without some amenities (e.g., television, table tennis, telephones). Although custody of any kind is limiting and presumptively unpleasant, the circumstances of the appellants' detention cannot be described as oppressive in any way.


It is helpful to begin our sojourn with a review of the legal principles, statutes, and regulations which govern the admission, exclusion, detention, and parole of aliens.

A. Statutory Framework

Congress, of course, has plenary power to admit aliens to the United States or, conversely, to bar them. Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). The Supreme Court has "long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). The Court has repeatedly emphasized that, as respects the admission vel non of aliens, "over no conceivable subject is the legislative power of Congress more complete." Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977), quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). As Justice Harlan wrote almost a century ago,

[t]he 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 offices, without judicial intervention, is settled by our previous adjudications.

Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895).

By statutory enactment, Congress has delegated its unusually broad dominion in the immigration field to the Attorney General. Thus, 8 U.S.C. Sec. 1103 (1982) provides in pertinent part that:

[t]he Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as [power may be delegated to other executive officials] ... Provided, however, that determination and ruling by the Attorney General with respect to all questions of law shall be controlling.... (emphasis in original)

The Attorney General is ceded the "power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens ...," id., and is directed to "establish such regulations ... as he deems necessary for carrying out" these grants of authority. Id. In short, it is readily apparent that Congress has invested the Attorney General with vast discretion anent immigration matters.

Congress, speaking generally, has defined those conditions which render aliens excludable from the United States. See 8 U.S.C. Sec. 1182 (1982). The statute provides, inter alia, that the

... following classes of individuals ... shall be excluded from the United States:

* * *

* * *

... (18) Aliens who are stowaways;

(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact;

(20) ... any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document ..., and a valid, unexpired passport, or other suitable travel document, or document of identity and nationality ...

* * *

* * *

(26) Any nonimmigrant who is not in possession of (A) a [proper] passport ... and (B) at the time of application for admission, a valid nonimmigrant visa or border crossing identification card....

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