Bruce v. Slattery, 91 Civ. 5439 (CHT).

• Decision Date: 04 November 1991
• Docket Number: No. 91 Civ. 5439 (CHT).,91 Civ. 5439 (CHT).
• Citation: 781 F. Supp. 963
• Parties: Floyd Murray BRUCE, Petitioner, v. William SLATTERY, District Director of the Immigration & Naturalization Service for the District of New York, Respondent.
• Court: U.S. District Court — Southern District of New York

781 F. Supp. 963

Floyd Murray BRUCE, Petitioner, v. William SLATTERY, District Director of the Immigration & Naturalization Service for the District of New York, Respondent.

No. 91 Civ. 5439 (CHT).

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

November 4, 1991.

Massarro & Livingston (Donn Livingston, of counsel), New York City, for petitioner.

Otto G. Obermaier, U.S. Atty., S.D.N.Y. (James A. O'Brien, III, of counsel), New York City, for respondent.

OPINION

TENNEY, District Judge.

Petitioner Floyd Murray Bruce, who has been held in the custody of the Immigration and Naturalization Service ("INS") at their detention center in New York City for the past twenty-nine months, brings this petition for habeas corpus under 28 U.S.C. § 2241 (1988). For the reasons discussed below, the petition is denied.

BACKGROUND

Petitioner Bruce arrived at JFK International Airport on May 30, 1989 on a flight originating in Lagos, Nigeria. Return in Opposition to the Petition for Writ of Habeas Corpus ("R.") at 132. Bruce presented himself to INS inspectors as an alien transiting the United States without a visa ("TRWOV") and produced both a ticket for a continuing flight to Bermuda and a document issued by the Nigerian government entitled "Emergency Certificate." R. 132. The certificate stated that its holder was a "Burmudian" sic national who had been issued the certificate "to enable him return sic to his country on repatriation." R. 60. Bermudian authorities were contacted, and they informed the INS that Bruce would not be permitted to enter Bermuda with such a document. Bruce was detained for questioning and, consequently, missed his connecting flight to Bermuda.

Bruce's detention by the INS has now stretched into a two and one half year period of confinement while multiple international efforts have been made to determine his nationality in order to facilitate his deportation. Bruce claims that he was born in Hamilton, Bermuda on October 28, 1963. Memorandum of Law in Support of Petition for Writ of Habeas Corpus at 1 ("Pet. Mem."). Petitioner, however, has been unable to produce a birth certificate from Bermuda, and, so far, no one can locate any official record of his birth. Pet. Mem. at 2. Bruce states that he moved to England with his family in 1970. Id. Complicating the efforts to determine Bruce's origins is the fact that Bruce does not have any siblings, and the whereabouts of his father are unknown. Id. In addition, Bruce's mother died in England in 1979. Id.

According to British criminal records, Bruce had two criminal convictions in England: for possession of cannabis resin and obtaining money by false pretenses. R. 93-94. After serving his sentences for these offenses, Bruce was deported from England to Nigeria. R. 30. According to a London Metropolitan Police report, Bruce was "taken into custody" by the Nigerian authorities upon his arrival there. R. 31. Bruce states that he spent a period of eight months in the custody of Nigerian immigration officials who refused to allow him to enter Nigeria because he was not a Nigerian citizen. First Petition for Writ of Habeas Corpus at 1. Bruce contends that the British government refused to issue him a passport while he was in Nigeria and, as a last resort, the Nigerian government issued an "emergency certificate" which was intended to facilitate Bruce's "repatriation" to Bermuda. Pet. Mem. at 3. On other occasions, however, Bruce has said that he was arrested by Nigerian authorities while attempting to leave Nigeria with some heroin. R. 134. He says that he was tortured by the Nigerian authorities while awaiting trial and that a British passport, which he had stolen and altered by substituting his photograph for that of the rightful owner, was taken from him by the Nigerian authorities.

At the time that the INS took Bruce into custody, it notified him that proceedings to exclude him were being commenced. R. 130. Six weeks later, Bruce was informed by the British Consulate-General that, after a full investigation, it had been determined that Bruce was not a Bermudian citizen and, therefore, was not eligible for a British "Dependent Territories — Bermuda travel document." R. 119. Bruce, however, continued to insist that he was born in Bermuda. R. 115-17. On November 20, 1989, the INS received information from the International Criminal Police Organization ("Interpol") in London, England that Floyd Murray Bruce was also known as "Joseph Ekwensi," and that Ekwensi was a Nigerian and had a criminal record in England. R. 93-95. In addition, on November 21, 1989, the British embassy in Washington, D.C. informed the INS that Bruce had called the Embassy and claimed to be Michael Olusagun Oduyoya, born in London, England on November 19, 1965. R. 89.

On or about October 10, 1990, Interpol London informed the INS that Bruce was not welcome in Britain and that Bruce had been granted a Nigerian travel document by the Nigerian High Commission in England, in order to effect his removal from England to Nigeria on October 28, 1988. R. 27, 30. After Bruce had been deported to Nigeria, he apparently remained there until Nigerian authorities unsuccessfully attempted to deport him to Bermuda in May 1989.

Throughout his lengthy INS detention, Bruce has been the subject of multiple exclusion proceedings, appeals, parole applications, and habeas petitions. During this period, the INS's attempts to determine his citizenship have proved fruitless. For example, on April 10, 1990, the INS contacted the Nigerian Embassy to request that travel documents be issued to Bruce to allow his return to Nigeria. R. 74-75. The Nigerian Embassy, however, informed the INS that Bruce was not a Nigerian citizen and that no travel documents would be issued.¹ R. 71. Additionally, in the fall of 1990, the British Consulate-General denied that Bruce was a national of either Britain or Bermuda. Finally, on July 19, 1991, the Nigerian Consulate informed the INS that Bruce "claims not to be from Nigeria. Therefore, `we don't want to get involved.'" R. 153.

Although the INS had not made much progress finding a country willing to accept Bruce, it was making headway in having Bruce formally excluded from the United States. On February 21, 1991, Bruce was ordered excluded and deported from the United States. R. 135. Bruce timely appealed that decision to the Board of Immigration Appeals ("BIA"). R. 138. However, pursuant to an agreement between Bruce and the INS, Bruce agreed to withdraw his appeal to the BIA and his then-pending habeas corpus petition before this court if the INS would give him an opportunity to depart for Bermuda. R. 139-44. On June 5, 1991, Bruce's attorney and the United States Attorney for the Southern District of New York signed a settlement agreement providing that Bruce would be released — with the understanding that he would be given only an opportunity to depart for Bermuda — if he dismissed his BIA appeal and habeas action. R. 139-44; Pet. Mem. at 8-9. On June 13, 1991, Bruce's appeal to the BIA was withdrawn, and the order of exclusion became final. R. 144. See 8 C.F.R. § 3.4 (1991).

On June 20, 1991, Bruce was taken to JFK International Airport by the INS for a flight to Bermuda. R. 145-46, 148. Three days later, he was escorted back to JFK Airport by Bermudian authorities, having been refused entry into Bermuda. R. 147. Once again, Bruce was taken into custody, this time pursuant to his final order of exclusion. R. 147. On July 15, 1991, Bruce requested that he be released from INS's custody, claiming that he was not subject to any exclusion proceedings and should, therefore, be given an opportunity to depart the United States by himself. R. 148-49. That request was denied by the INS on October 7, 1991. In the interim, Bruce brought this second petition for habeas corpus.

DISCUSSION

A. Congressional Power Over the Admissibility of Aliens

No one denies that Bruce's unanticipated detention in the United States has been protracted and unpleasant. However, it must also be recognized, at the outset, that in the sphere of immigration, "Congress regularly makes rules that would be unacceptable if applied to citizens." Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976). Indeed, "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909).

Encompassed within Congress' "plenary power to make rules for the admission of aliens," Boutilier v. Immigration & Naturalization Service, 387 U.S. 118, 123, 87 S.Ct. 1563, 1567, 18 L.Ed.2d 661 (1967), is a comparably broad power "to fix the conditions under which aliens are to be permitted to enter ... this country." Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 1375-76, 4 L.Ed.2d 1435 (1960). Aliens have no constitutional right to be admitted into this country. Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982); Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972). Similarly, as parole is part of the admissions process, its denial does not rise to the level of a constitutional infringement. Fernandez-Roque v. Smith, 734 F.2d 576, 581-82 (11th Cir. 1984); Jean v. Nelson, 727 F.2d 957, 972 (11th Cir.1984) (en banc), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). It is against this background of jurisprudence that Bruce brings this petition for habeas corpus to challenge his detention by the INS.

B. Indefinite Detention of an Excludable Alien

Petitioner Bruce submits that neither the Constitution nor the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (1988) ("Act"), authorizes the indefinite detention of an unadmitted alien. Yet, as pointed out by both petitioner and respondent, the Supreme Court has upheld the indefinite detention of an excludable alien where no...