Caporali v. Whelan

• Decision Date: 16 March 1984
• Docket Number: Civ. A. No. 84-683-K.
• Citation: 582 F. Supp. 217
• Parties: Pablo CAPORALI, Petitioner, v. Timothy A. WHELAN, Acting District Director for the U.S. Department of Justice, Immigration and Naturalization Service, Respondent.
• Court: U.S. District Court — District of Massachusetts

582 F. Supp. 217

Pablo CAPORALI, Petitioner, v. Timothy A. WHELAN, Acting District Director for the U.S. Department of Justice, Immigration and Naturalization Service, Respondent.

Civ. A. No. 84-683-K.

United States District Court, D. Massachusetts.

March 16, 1984.

Lory Rosenberg, Harvey Kaplan, Law Office of Harvey Kaplan, Boston, Mass., for petitioner.

Jeffrey R. Martin, Asst. U.S. Atty., Boston, Mass., for respondent.

Memorandum and Order

KEETON, District Judge.

This is a civil action in which the "plaintiff," a citizen of Argentina, seeks some form of order that will effect his release from detention by the "defendant," Acting District Director for the United States Department of Justice, Immigration and Naturalization Service, pending resolution of his Petition for Review of Deportation Order filed in the United States Court of Appeals for the First Circuit on March 6, 1984.

The exact nature of this civil action is not immediately apparent, and may be more obscured than clarified by the terminology used in the "complaint" and other documents filed by the parties. With the purpose of identifying the nature of the action and the body of constitutional, statutory, and decisional law that is to be applied in resolving it, I begin with an inquiry as to jurisdiction over the subject matter.

"Plaintiff" asserts jurisdiction under 28 U.S.C. § 1331 ("federal question"); 8 U.S.C. § 1105a(a)(9) (Immigration and Nationality Act), 8 U.S.C. § 1329 (Immigration and Nationality Act) and 5 U.S.C. § 701 (Administrative Procedure Act). The "complaint" is phrased as if this were a civil action invoking the general equity powers of this court to enjoin violations of rights guaranteed to the "plaintiff" by the Fifth Amendment to the Constitution of the United States. In response to inquiries of the court at oral hearing, however, counsel for the parties appeared to agree that this court's jurisdiction is limited to judicial review of the administrative action of the "defendant" in denying the application of "plaintiff" for release from detention on reasonable conditions pending determination of his Petition for Review of Deportation Order by the Court of Appeals for the First Circuit. It is undisputed that under 8 U.S.C. § 1105a(a)(3), the filing of the Petition for Review automatically stayed deportation of the "plaintiff."

In these circumstances, the first issue I must consider is whether this court has jurisdiction, either by way of review or in de novo hearing, to set aside the Acting District Director's denial of the request for an order setting reasonable conditions for release from detention pending the First Circuit's determination of the Petition for Review that is pending before it.

The detention of an alien pending deportation is authorized by 8 U.S.C. § 1252(c), which states in part:

When a final order of deportation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States, during which period, at the Attorney General's discretion, the alien may be detained, released on bond in an amount and containing such conditions as the Attorney General may prescribe, or released on such other condition as the Attorney General may prescribe.

Jurisdiction to review the denial of discretionary relief, where deportability itself is at issue, if at all, only in a separate proceeding, is conferred on the United States District Courts in a statutory provision for consideration of petitions for habeas corpus. 8 U.S.C. § 1105a(a)(9); Daneshvar v. Chauvin, 644 F.2d 1248, 1251 (8th Cir.1981). I therefore treat the "complaint" as a petition for a writ of habeas corpus. Hereafter the parties will be referred to as "petitioner" and "respondent."

Respondent's decision to detain petitioner without bail is subject to judicial review for abuse of discretion. E.g., United States ex rel. Yaris v. Esperdy, 202 F.2d 109, 112 (2d Cir.1953); Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049 (N.D. Ga.1981). The district court applies a deferential standard of review, Bartholomeu v. District Director, Immigration, Etc., 487 F.Supp. 315, 321 (D.Md.1980), and the decision to detain an alien can be overridden only if it was "without reasonable foundation" in fact. United States ex rel. Barbour v. District Director of I. & N.S., 491 F.2d 573, 577-78 (5th Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974).

Although the statute authorizing detention of deportable aliens at the Attorney General's discretion does not mandate an adversary proceeding to be held as a prerequisite to the exercise of this discretion, 8 U.S.C. § 1252(c), the decision to detain an alien is subject to judicial review. 8 U.S.C. § 1105a(a)(9). Implicit in the statutory scheme is a requirement that the Attorney General exercise his or her discretion in such a manner as to permit principled judicial review. That is, the Attorney General must make a reasoned determination, disclosing the facts on which this determination was based and the source of these facts.

Also, the decisionmaking process must afford the petitioner an opportunity to respond to adverse evidence. The record before the court on review must show that evidence, and inferences therefrom, set forth by the petitioner were considered by respondent. This conclusion is supported by the rationale of the Court in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (opinion by Justice Frankfurter), discussing the duty of a Court of Appeals when reviewing orders of the National Labor Relations Board. The Court stated that "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Id. at 488, 71 S.Ct. at 464. In providing for judicial review...