Chung v. Reno

• Decision Date: 16 May 1995
• Docket Number: Civ. A. No. 1:CV-93-1702.
• Citation: 886 F. Supp. 1172
• Parties: Sing Chou CHUNG (A-72-761-978), Petitioner, v. Janet RENO, Attorney General of the United States, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

886 F. Supp. 1172

Sing Chou CHUNG (A-72-761-978), Petitioner, v. Janet RENO, Attorney General of the United States, et al., Respondents.

Civ. A. No. 1:CV-93-1702.

United States District Court, M.D. Pennsylvania.

May 16, 1995.

COPYRIGHT MATERIAL OMITTED

Ann Carr, Lancaster, PA, for petitioner.

Robert R. Long, Jr., Asst. U.S. Atty., Lewisburg, PA, Lauri Stephen Filppu, Philemina McNeill Jones, Office of Immigration Litigation, Washington, DC, for respondent George Maugans.

Robert R. Long, Jr., Asst. U.S. Atty., Lewisburg, PA, Lauri Stephen Filppu, Philemina McNeill Jones, Office of Immigration Litigation, Alexander H. Shapiro, Dept. of Justice, Civ. Div., Washington, DC, for respondent David L. Milhollen.

Lauri Stephen Filppu, Philemina McNeill Jones, Office of Immigration Litigation, Alexander H. Shapiro, Dept. of Justice, Civ. Div., Washington, DC, for respondent J. Scott Blackman.

Lauri Stephen Filppu, Philemina McNeill Jones, Office of Immigration Litigation, Washington, DC, for respondents Richard J. Sharkey et al.

Joseph J. Terz, Harrisburg, PA, Robert R. Long, Jr., Asst. U.S. Atty., Lewisburg, PA, Kristin A. Cabral, John J. Andre, Norah Ascoli Schwartz, David M. McConnell, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondents.

MEMORANDUM

RAMBO, Chief Judge.

Before the court is the habeas petition of Sing Chou Chung, a citizen of the People's Republic of China. Petitioner Chung has filed a motion for partial summary judgment on the narrow issue of whether he "entered" the United States within the meaning of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1101(a)(13). Briefs have been filed on both sides and the motion is ripe for disposition.

I. Background

The instant action arises out of the detention and attempted exclusion by the Immigration and Naturalization Service ("INS") of certain Chinese citizens. The alien at issue was among those arrested and detained after the grounding of the Golden Venture in New York Harbor in June 1993. Of the approximately 300 aliens on the vessel when it ran aground, nearly half were subsequently transferred to the York County Prison, a facility located in the Middle District of Pennsylvania. Petitioner Chung was one among many of the detainees who filed a claim for asylum. At the prison, exclusion proceedings under 8 U.S.C. § 1226(a) were instituted against the detainees, including Petitioner. He moved to terminate the exclusion proceedings on the ground that he had "entered" the United States and was therefore entitled to a deportation hearing pursuant to 8 U.S.C. § 1252. (Administrative Record ("A.R.") at 350-60.) The immigration judge ("IJ") denied the motion in a one sentence order, (A.R. at 355), and Chung appealed the decision to the Board of Immigration Appeals ("BIA"). (A.R. at 167-69.) On January 13, 1994, the Board affirmed the IJ's determination that Chung had not entered the United States and was thus appropriately placed in exclusion proceedings. (A.R. at 12.) It is that issue which is presently before the court on appeal.

In Matter of G-, Int.Dec. 3215, at 5-7 (BIA 1993), the BIA announced its general findings of fact regarding the arrival of the Golden Venture. In disposing of Petitioner's appeal on the entry issue, the Board relied upon that statement of facts, (A.R. at 12), and thus the court will set forth portions of it in some detail.

The grounding took place 100 to 200 yards offshore of the Fort Tilden military reservation located on the Rockaway Peninsula in the Gateway National Recreation Area of Queens, New York.

According to the record, at about 1:45 a.m. on that Sunday, two officers of the United States Department of Interior Park Police were patrolling the Gateway National Recreation Area when they observed the distressed ship and a number of its passengers swimming in the water or running on the beach. The officers spotted life preservers bobbing in the water and heard people yelling.¹ At 1:58 a.m., the officers placed an emergency call for help to the New York City Police Department and other authorities and then proceeded to assist several of the ship's passengers out of the water.

The Coast Guard dispatched boats and helicopters to the scene of the reported ship wreck to observe and rescue persons aboard the disabled vessel.

Matter of G-, Int.Dec. 3215, at 5. At approximately 2:19 a.m., officers from the New York City Police Department arrived on the beach, and along with the Park Police and the Coast Guard, waded into the water to help people to shore. Id.

During these early morning hours, a portion of the Fort Tilden beach — about ¼- to ½-mile-long and extending 600 yards inland from the water line — was ultimately cordoned off and controlled by enforcement officers of these various organizations to prevent passengers who reached shore from leaving the area.

According to newspaper accounts of several passengers interviewed, pandemonium erupted on board when the ship grounded. Passengers began spewing out of the cargo hold of the ship, where they had been forced to stay during their 3-month-long voyage. They crowded the ship's deck, only to be told by the ship's crew to jump overboard.

Over the next hours as rescue personnel assembled in the area, about 200 passengers fled the ship by leaping blindly into the surf or descending a ladder on the side of the boat. Ignoring police and Coast Guard pleas to remain on the vessel, many swam and waded to shore clutching plastic bags of belongings while others used plastic jugs as makeshift floats.

An armada of small vessels, rafts, and cutters fished many of these 200 out of the 53-degree waters and brought them to shore.² Other passengers managed to reach dry land on their own only to be apprehended on the beach or within the perimeter of the cordoned-off area. Many of the ship's occupants who swam to shore suffered from hypothermia and simply collapsed on reaching the beach. A few, however, eluded capture by fleeing through the thick-brushed dunes into the surrounding neighborhoods.

....

More than 100 passengers, however, remained on board and awaited the arrival of rescue personnel.

....

By the evening of June 6, 1993, 273 of the 300 passengers reported to have been aboard the vessel had been accounted for while some 30 remained at large. Law enforcement authorities took the captain of the freighter and his crew of 12 off the ship and arrested them pending criminal prosecution on smuggling charges.³

Id. at 6-7.

Petitioner Chung was among the passengers who jumped overboard and swam to shore. (A.R. at 391.) Upon reaching shore, he collapsed from exhaustion (probably hypothermia⁴). Id. He lay on the beach for approximately 30 minutes before being approached by someone in a uniform, who wrapped a blanket around him. Id. Chung was later examined by medical personnel on the beach, transported to a hospital by police, and detained at a Red Cross facility pending immigration processing. (A.R. at 391-92.)

II. Standard of Review

Factual determinations by the Board will be upheld "if supported by reasonable, substantial, and probative evidence on the record considered as a whole...." 8 U.S.C. § 1105a(a)(4). To reverse a factual finding by the Board, the court must not only find that the evidence supports a contrary conclusion, but that it compels one. Immigration and Naturalization Service v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 815 n. 1, 117 L.Ed.2d 38 (1992). Issues of law are reviewed de novo. Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2nd Cir.1994). However, the court should defer to reasonable BIA interpretations of the INA. Fatin v. INS, 12 F.3d 1233, 1239 (3rd Cir.1993).

III. Entry

An alien is entitled to deportation rather than exclusion proceedings only if he or she "entered" the United States within the meaning of the INA. The advantages of deportation proceedings are significant. The Second Circuit has noted:

Deportation proceedings are generally more favorable to the alien than exclusion proceedings. Rights available in deportation but not exclusion include advance notice of the charges, a burden of proof placed on the government, direct appeal to the Court of Appeals, and the right to designate the country of destination if the alien is ultimately deported.

Correa v. Thornburgh, 901 F.2d 1166, 1171 n. 5 (2nd Cir.1990). The INA defines "entry" as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntary or otherwise...." 8 U.S.C. § 1101(a)(13). Over the years, courts have given more specific content to the meaning of entry, and have settled on the following three part definition:

(1) a crossing into the territorial limits of the United States, i.e. physical presence; (2)(a) an inspection and admission by an immigration officer or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint.

Correa, 901 F.2d at 1171 n. 5 (quoting Matter of Pierre, Int.Dec. 2238 (BIA 1973), 1973 WL 29484 at *2; Matter of Ching and Chen, Int.Dec. 2984, at 3 (BIA 1984)). The BIA applied this definition to Petitioner's claim and concluded that he did not accomplish entry because, despite having satisfied the first two prongs, he was never free from official restraint.

A. Crossing Into United States Territory

United States territory extends three miles seaward from the coast. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 209, 106 S.Ct. 2485, 2487, 91 L.Ed.2d 174 (1985); United States v. Chaparro-Almeida, 679 F.2d 423, 426 n. 9 (5th Cir.1982). With respect to the entry issue, the Third Circuit has expressly held that an alien crosses into United States territory when he or she reaches our territorial waters. United States v. Vasilatos, 209 F.2d 195, 197 (3rd Cir.1954); see Lazarescu v. United States, 199 F.2d 898, 900 (4th Cir.1952); Xin-Chang v. Slattery, 859 F.Supp. 708, 713 (S.D.N.Y...