Bedredin v. Sava, 85 Civ. 8627 (GLG).

• Citation: 627 F. Supp. 629
• Decision Date: 30 January 1986
• Docket Number: No. 85 Civ. 8627 (GLG).,85 Civ. 8627 (GLG).
• Parties: Hadi BEDREDIN (A27 493 336), Samira Bekit (A27 493 337), and Lucia Kabakoulak (A27 491 390), Petitioners, v. Charles C. SAVA, District Director, Immigration and Naturalization Service, New York, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

627 F. Supp. 629

Hadi BEDREDIN (A27 493 336), Samira Bekit (A27 493 337), and Lucia Kabakoulak (A27 491 390), Petitioners, v. Charles C. SAVA, District Director, Immigration and Naturalization Service, New York, New York, Respondent.

No. 85 Civ. 8627 (GLG).

United States District Court, S.D. New York.

January 30, 1986.

Omar Z. Ghobashy, New York City, for petitioners.

Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., New York City (Jorge Guttlein, Sp. Asst. U.S. Atty., of counsel), for respondent.

GOETTEL, District Judge:

The petitioners are being held in detention by the respondent pursuant to section 235(b) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1225(b) (1982) (the "Act"). All have applied for parole pending exclusion proceedings and adjudication of their applications for political asylum. The respondent has denied their requests for parole and the petitioners now seek review of that decision by writ of habeas corpus pursuant to 28 U.S.C. §§ 2242 & 2243 (1982).

I. BACKGROUND

Although all three petitioners request the same relief, the facts underlying their situations differ.

A. Hadi Bedredin and Samira Bekit

Petitioners Hadi Bedredin and Samira Bekit are, respectively, husband and wife. They are natives of Ethiopia who were refugees in Sudan. On September 19, 1985, they attempted to enter the United States with fraudulent travel documents¹ and without valid immigrant visas. They were detained by the Immigration and Naturalization Service ("INS") pursuant to section 235(b) of the Act.² On September 20, 1985, their attorney wrote to the INS requesting parole for Bedredin and Bekit, noting that they were applying for political asylum. By letter dated October 2, 1985, Benjamin Perlitsch, Deputy Assistant Director of INS in New York, denied parole stating,

The petitioners arrived in the United States on September 19, 1985 and presented altered travel documents. In view of the extraordinary means by which these aliens sought entry into this country and that there are no emergent reasons nor would it be in the public interest to parole them, your request is denied.

Respondent's Return and Declaration, Exhibit E.

Bedredin and Bekit challenge this decision. They claim that the respondent's denial of their request for parole will unlawfully subject them to an extended period of incarceration pending determination of their admissibility into the United States. They state that even if they are ordered excluded, they cannot be returned to the country from which they came and would thus be incarcerated indefinitely, in violation of their constitutional rights. Petitioner Bekit has recently added the claim that she is pregnant and that, under the applicable parole guidelines, she should be paroled.

B. Lucia Kabakoulak³

Petitioner Kabakoulak is a native of Syria who lived most of her life in Lebanon. On September 13, 1985, she arrived in the United States with her mother and younger sister. All three were denied admission into the country because they were attempting to enter with invalid immigrant visas.⁴ Kabakoulak's sister is a minor and was paroled pending exclusion hearings. See 8 C.F.R. § 212.5(a)(2)(ii) (1985). There being no adult relative not in detention to supervise the paroled minor child,⁵ Kabakoulak's mother was paroled to accompany the young girl. See 8 C.F.R. § 212.5(a)(2)(ii)(B) (1985). Kabakoulak, however, was held in detention.

Kabakoulak was afforded an exclusion hearing at which she was represented by counsel. At that time, she made no request for political asylum, and, on October 4, 1985, the immigration court issued a final order of exclusion and deportation. On October 25, 1985, Kabakoulak, represented by different counsel, moved to reopen her exclusion proceeding based upon her application for political asylum dated October 23, 1985. Counsel also asked that she be paroled. On November 1, 1985, Deputy Assistant Director Perlitsch, acting for the respondent, denied Kabakoulak's parole request because she had attempted to enter the country using altered travel documents and because she was then under a final order of exclusion. Respondent's Return and Declaration, Exhibit T. On November 14, 1985, Immigration Judge Francis J. Lyons granted Kabakoulak's motion to reopen her exclusion proceedings in order to consider her belated application for political asylum.⁶

Kabakoulak has renewed her request for parole but the respondent has declined to parole her at this time. Kabakoulak challenges that decision and claims entitlement to parole because of ill health and the fact that her father, an alien admitted to the United States on a visitor's visa, has applied for permanent resident alien status and political asylum and has included his entire family in his petition. She also contends that, if excluded, she cannot be returned to her native country and will thus be subjected to incarceration for an indeterminate time in violation of her constitutional rights.

As discussed below, the broad discretion granted to the respondent and the limited scope of judicial review of parole decisions mandate the dismissal of the instant petition as to all three petitioners.

II. DISCUSSION

A. Detention and Parole Standards

Section 235(b) of the Act provides that every alien seeking entry into the United States who does not appear to be clearly and beyond a doubt entitled to be admitted shall be detained pending an exclusion hearing. 8 U.S.C. § 1225(b) (1982). Pursuant to 8 C.F.R. § 235.3(b) (1985), any alien who arrives with documentation that appears on its face to be false or altered shall be detained.

The Attorney General has broad discretion to temporarily parole aliens detained pursuant to section 235.3(b) of the regulations. 8 U.S.C. § 1182(d)(5) (1982). The Attorney General has delegated this authority to the local INS district directors. See 8 C.F.R. § 212.5 (1985). However, temporary parole is the exception to rule of detention. Ledesma-Valdes v. Sava, 604 F.Supp. 675, 680 (S.D.N.Y.1985) (Weinfeld, J.). An unadmitted alien has no constitutional right to parole. Id.; see Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) (an alien seeking admission into the United States has no constitutional rights regarding his application). The district director may grant temporary parole "for emergent reasons or for reasons deemed strictly in the public interest." 8 U.S.C. § 1182(d)(5)(A) (1982).

The Code of Federal Regulations state that "the parole of aliens who have serious medical conditions in which continued detention would not be appropriate would generally be justified by `emergent reasons.'" 8 C.F.R. § 212.5(a)(1) (1985). The regulations then define five groups that would "generally come within the category of aliens for whom the granting of the parole exception would be `strictly in the public interest', provided that the aliens present neither a security risk nor a risk of absconding." 8 C.F.R. § 212.5(a)(2) (1985). The first four groups are (1) pregnant women; (2) juveniles, including, in certain circumstances, an adult accompanying a juvenile; (3) certain aliens who have close relatives in the United States; and (4) aliens who will be witnesses in official proceedings in the United States. The fifth category simply allows parole of "aliens whose continued detention is not in the public interest as determined by the district director." 8 C.F.R. § 212.5(a)(2)(v) (1985).

The petitioners argue that, pending exclusion proceedings and adjudication of their applications for political asylum, they are eligible for parole under the guidelines of 8 C.F.R. § 212.5. The respondent's decision to deny them parole was, they assert, an abuse of discretion.

B. Judicial Review of Parole Decisions

The case of Bertrand v. Sava, 684 F.2d 204 (2d Cir.1982), provides the standard for judicial review of INS discretionary decisions in this circuit. In considering a challenge to the district director's denial of parole, the Second Circuit held that federal courts have the power to review INS decisions to deny parole to unadmitted aliens through the mechanism of habeas corpus petitions. Id. at 210. However, this power is narrowly circumscribed because of the legislature's plenary power over the admission of aliens. Id. at 211-12; see Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972). In considering an alien's habeas corpus petition,

the Attorney General's exercise of his broad discretionary power must be viewed at the outset as presumptively legitimate and bona fide in the absence of strong proof to the contrary. The burden of proving that discretion was not exercised or exercised irrationally or in bad faith is a heavy one and rests at all times on the unadmitted alien challenging denial of parole.

Bertrand v. Sava, supra, 684 F.2d at 212-13.

In the instant case, the stated reason for denying parole was that the petitioners attempted to enter the United States with improper (i.e., fraudulent) visas or travel documents. As Judge Leisure recently noted in Singh v. Nelson, 623 F.Supp. 545 (S.D.N.Y.1985), "By refusing to parole undocumented excludable aliens, the Service is attempting to discourage people from entering the United States without permission and serves notice that aliens will not be able to circumvent the procedures governing lawful immigration to this country." Id. at 556. This goal provides a rational basis for denying parole to aliens such as the petitioners who attempt to side-step the procedures for legal admission to this country. The petitioners contend, however, that the district director abused his discretion by failing to find "emergent reasons" or "reasons strictly in the public interest" that warrant their parole.

C. The Petitioners' Claims

1. Eligibility For Parole Under 8 C.F.R. § 212.5.

The petitioners assert that they qualify for parole under the guidelines of 8 C.F.R. § 212.5, which...