Dhine v. District Director, 92 Civ. 2026 (CSH).
| Decision Date | 22 April 1993 |
| Docket Number | No. 92 Civ. 2026 (CSH).,92 Civ. 2026 (CSH). |
| Parties | Lulseged DHINE, Petitioner, v. DISTRICT DIRECTOR and Immigration and Naturalization Service, Respondents. |
| Court | U.S. District Court — Southern District of New York |
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Fried, Frank, Harris, Shriver & Jacobson, Washington, DC (Douglas W. Baruch, of counsel), for petitioner.
Roger S. Hayes, U.S. Atty., New York City (James A. O'Brien, III, Sp. Asst. U.S. Atty., of counsel), for respondents.
Petitioner in this case seeks a writ of habeas corpus pursuant to 8 U.S.C. § 1105a(a)(10) against the Immigration and Naturalization Service ("INS") and the local District Director. He claims that he has been improperly placed in exclusion proceedings, and that the immigration judge and the Board of Immigration Appeals ("BIA") wrongly denied his applications for asylum and withholding of deportation.
The following factual account, based primarily on Dhine's testimony before the immigration judge, is not disputed by the INS.
Petitioner Lulseged Dhine is an Ethiopian Jew, a member of a very small community which the Ethiopians have termed "Falasha", or the "strange ones".
Dhine was born and raised in a village in the Gondar province of Ethiopia, where he lived with his parents, an older brother and three sisters. Dhine's father was a leader of the local community of Jews.
Dhine attended a private religious school, rather than the local public school where Jews did not feel welcome. Dhine faced other restrictions on practicing his religion. He testified that he did not use his religious name (Yosef Abraham) in public because of his fear of persecution, and if he wore a yarmulke, he was forced to cover it with a turban.
The rise of the Mengistu government signalled an increase in the persecution against Jews in Ethiopia. Jewish religious schools were closed and religious materials were confiscated. When villagers refused to surrender their religious materials in exchange for books containing the writings of Chairman Mao, they were often taken away and never seen again.
Dhine personally engaged in protests against the closing of religious schools and the burning of religious materials. Those demonstrations often ended when soldiers on jeeps began spraying machine gun fire into the crowds.
The events which led to petitioner's leaving Ethiopia occurred in or about June 1978, when Mengistu loyalists approached Dhine's father. The loyalists demanded that Dhine's father turn over his land and his religious materials, and accept books that contained the teachings of Chairman Mao. Dhine's father refused. The loyalists then summarily executed Dhine's parents and older brother. When Dhine returned from school where he had been that day, neighbors informed him of what had happened. Fearing for his own safety, Dhine fled the village.
Attempting to reach a neighboring village where some of his cousins lived, Dhine was arrested and held for one week. During this time Dhine was beaten and tortured. He was told upon his release that if he was ever seen in the area again, he would be killed.
Banding together with other Ethiopian Jews, Dhine traveled to the Sudan. In the Sudan, however, he was subject to further persecution because he was a Jew, and he left for Djibouti. There, he contacted the United Nations and initiated the process of classifying himself as a refugee. After a brief stop in Paris, Dhine was admitted to the United States on November 27, 1978 as a conditional entrant refugee pursuant to Section 203(a)(7) of the Immigration and Naturalization Act of 1952 (the "Act"), 8 U.S.C. § 1153(a)(7).
On October 5, 1988, the INS initiated proceedings by Order to Show Cause to deport Dhine. Deportation was sought because Dhine had accrued a number of criminal convictions since entering the United States. Specifically, Dhine was convicted seven times in the District of Columbia between 1982 and 1990: possession of marijuana (1982); receiving stolen property (1983); attempted distribution of marijuana (1988); attempted possession of cocaine (1988); two separate counts of failure to appear (1988, 1989); and possession of cocaine (1990). The Court notes that four of these offenses were drug offenses, one of which involved attempted distribution (of marijuana). Under District of Columbia law, all of these offenses were considered misdemeanors.
The initial Order to Show Cause was superseded in 1989, adding the post-1988 convictions. In September 1990, however, an immigration judge ruled that Dhine was improperly in deportation proceedings as he had never formally entered the country; the INS immediately initiated exclusion proceedings.
On May 22, 1990, as those proceedings were going on, petitioner filed an application for political asylum pursuant to section 208(a) of the Act, 8 U.S.C. § 1158(a), and an application for the withholding of deportation, pursuant to section 243(h) of the Act, 8 U.S.C. § 1253(h).
After extensive proceedings before an immigration judge and the BIA, Dhine was found excludable, and his applications for political asylum and withholding of deportation were denied. A final order of deportation has been issued. Dhine has been held in the custody of the INS since June 1990. He files this writ of habeas corpus alleging errors in the proceedings below.
Essentially, Dhine alleges three significant errors: (1) that he was improperly in exclusion proceedings, as he had entered the country and was entitled to the procedural protections available in deportation hearings; (2) that he was improperly denied political asylum; and (3) that he was improperly denied withholding of deportation.
In September 1990, the INS revoked Dhine's conditional entrant status and placed him in exclusion proceedings under section 236 of the Act, 8 U.S.C. § 1226, on the grounds that his narcotics convictions rendered him excludable pursuant to section 212(a)(23) of the Act, 8 U.S.C. § 1182(a)(23). That section provides for the exclusion of aliens convicted of violating the narcotics laws.
Dhine argues that he is not subject to exclusion because he has "entered" the country. He contends that the INS must initiate deportation proceedings if it wants to remove him.
The distinction between exclusion and deportation turns on whether an individual has "entered" the country: aliens who have entered the country are subject to deportation rather than exclusion. Individuals in deportation proceedings have due process rights superior to those in exclusion proceedings. See Landon v. Plascencia, 459 U.S. 21, 26, 103 S.Ct. 321, 325, 74 L.Ed.2d 21 (1982). The appropriateness of the exclusion proceedings thus turns on whether Dhine can be deemed to have entered the country.
A determination of entry does not hinge on physical presence or the crossing of a national border; what is critical is the manner in which the alien arrived in this country. Aliens who are stopped at a border point are deemed to have not entered, even if they are later paroled into the country. See Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585 (1925) (). By contrast, aliens physically present in the country without any authority are deemed to have "entered". See Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 1073, 2 L.Ed.2d 1246 (1958).
The INS asserts that because Dhine was a conditional entrant who was never inspected for admissibility pursuant to section 203(g) of the Act, 8 U.S.C. § 1153(g), he never "entered" the country, and thus was properly excludable.
Dhine argues that to find that he never entered is to carry a legal fiction ("entry") to a ludicrous extreme. He notes that he has lived and worked and traveled freely about the country for more than ten years. He argues that it is absurd to equate his position with that of an alien who is detained at a border checkpoint.
Dhine's argument fails because "entry" is not determined by physical presence. Conditional entry in this context is analogous to parole: both permit the alien access into the country, but that access may be summarily terminated if the INS makes an adverse decision on the alien's admissibility. Both allow the alien the benefits of relative freedom rather than waiting in INS custody pending that determination. Yet an alien paroled into the country is not deemed to have entered for the purposes relevant here. That is the holding of Kaplan v. Tod. No persuasive reason is advanced for applying a different rule to conditional entries.
Despite the fact that Dhine lived and worked in this country for a long time, he never completed his application for admission into this country; his status was never changed from that of conditional entrant. Accordingly, he remained a conditional entrant, subject to exclusion if he was deemed inadmissible for any reason.
Dhine next argues that his status as a conditional entrant was adjusted to that of permanent resident approximately two years after he arrived in this country. Dhine relies on section 203(g) of the Act, 8 U.S.C. § 1153(g), which provides:
Dhine does not contend that he was ever inspected and deemed admissible pursuant to this section; he concedes that he never presented himself and demanded to...
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