Edmond v. Nelson, Civ. A. No. 82-5973.

• Citation: 575 F. Supp. 532
• Decision Date: 27 October 1983
• Docket Number: Civ. A. No. 82-5973.
• Parties: Louisa EDMOND, et al. v. Alan NELSON, Commissioner, Immigration and Naturalization Service, et al.
• Court: U.S. District Court — Eastern District of Louisiana

575 F. Supp. 532

Louisa EDMOND, et al. v. Alan NELSON, Commissioner, Immigration and Naturalization Service, et al.

Civ. A. No. 82-5973.

United States District Court, E.D. Louisiana.

October 27, 1983.

Daniel Frazier, New Orleans, La., for plaintiffs.

Charles E. Hamilton, III, Washington, D.C., for defendants.

OPINION

ROBERT F. COLLINS, District Judge.

I. INTRODUCTION

This petition for review of a Board of Immigration Appeals' order presents three major questions: whether petitioners had effected an entry into the United States and, therefore, were improperly subjected to exclusion hearings; whether denial of petitioners' motion to undertake discovery of person(s) responsible for rendering an advisory opinion on the application of asylum at the Bureau of Human Rights and Humanitarian Affairs of the Department of State resulted in petitioners being denied a full and fair hearing; and whether petitioners have met their burden of establishing that they qualify for asylum under the Immigration and Naturalization Act (hereinafter the Act), 8 U.S.C. § 1101(a)(42)(A), for withholding of exclusion under the Act, 8 U.S.C. § 1253(h).

II. STATEMENT OF THE FACTS

The petitioners in this action, all natives and citizens of Haiti, are Louisa Edmond (age 24; Edmond fille A.R. 278);¹ Louisamond Edmond (age 52; Edmond pere A.R. 98, 261); Germaine Lumaine (age 33; G. Lumaine A.R. 193); Iranese Lumaine (age 25; I. Lumaine A.R. 201); Frank Verne (age 30; Verne A.R. 327, 329); Marie LaGuerre (age 24; LaGuerre A.R. 218); Odette Baptiste (age 31; Baptiste A.R. 88); and Lomaine Fidogene (age 17; Fidogene A.R. 26, 173). They, along with seventeen other Haitians, departed from Haiti by boat in late June, 1981. Their destination was Miami, Florida. (G. Lumaine A.R. 132-136, 194, 208). After accidental landings in Cuba and Grand Cayman where they obtained provisions and repairs, the petitioners were later picked up in the Caribbean by the crew of the M/T AMOCO VOYAGER and brought to the port of New Orleans on July 17, 1981. (G. Lumaine A.R. 137-138, 205-208).²

While on the M/T AMOCO VOYAGER, the petitioners were locked in the infirmary and kept under guard the entire time. Upon arrival at New Orleans, the ship's master notified the Immigration and Naturalization Service (hereinafter the INS), which immediately dispatched officers to the ship. All twenty-five aliens, including these petitioners, were inspected on board and immediately removed by the INS officers. (LaGuerre A.R. 145-146; G. Lumaine A.R. 41-42, 66). Since they had no entry documents, the petitioners were immediately detained. (G. Lumaine A.R. 229).

The petitioners filed applications for admission to the United States and later for asylum in the United States or, concomitantly for withholding of deportation to Haiti under the provisions of § 208(a)³ and § 243(h)(1)⁴ of the Act, 8 U.S.C. § 1158(a) and 8 U.S.C. § 1253(h)(1). (A.R. 31). Shortly after the M/T AMOCO VOYAGER docked, on September 3, 1981, these applications were denied by INS's District Director at New Orleans. (G. Lumaine A.R. 238). Exclusion hearings for the petitioners, held between October 16 and October 20, 1981, resulted in final orders of exclusion and deportation as well as denial of all the asylum applications. (G. Lumaine A.R. 699; Verne A.R. 679); Edmond fille A.R. 751; Edmond pere A.R. 848; I. Lumaine A.R. 697; LaGuerre A.R. 823; Baptiste A.R. 680; Fidogene A.R. 547).

Petitioners brought an action for declaratory and injunctive relief in this Court on October 20, 1981. This action was dismissed on October 28, 1981. (G. Lumaine A.R. 659). Appeals from the orders of exclusion and deportation were returned by the Board of Immigration Appeals (hereinafter BIA) for lack of jurisdiction on January 20, 1982. (G. Lumaine A.R. 697).

On January 28, 1982, petitioners filed a petition for review in the United States Court of Appeals for the Fifth Circuit. This was dismissed without prejudice on February 16, 1982. (G. Lumaine A.R. 656, 668).

Motions to reopen the exclusion proceedings to have the previously denied asylum applications reconsidered, filed on or about February 3, 1982, were denied by the immigration judge on February 16, 1982. (G. Lumaine A.R. 680, 682). Upon a second appeal to the BIA, the proceedings were reopened and remanded on March 5, 1982. (G. Lumaine A.R. 678).

Reopened exclusion hearings, held before a different immigration judge, resulted in the denial of petitioners' asylum applications and in the rendering of final orders of exclusion and deportation, pursuant to § 236(a) of the Act, 8 U.S.C. § 1226(a). These orders, dated June 15, 1982, were issued by an immigration judge after evidentiary hearings held during late March and early April, 1982. Each order was affirmed on November 18, 1982 by the BIA pursuant to § 236(b) of the Act, 8 U.S.C. § 1226(b). All eight petitioners, by this habeas corpus proceeding, now jointly seek judicial review of these orders of exclusion and deportation under § 106(b) of the Act, 8 U.S.C. § 1105a(b).

III. DISCUSSION

A. Exclusion Hearing

The petitioners allege that they had gained "entry" into the United States and, therefore, were improperly subjected to an exclusion hearing. The Court does not agree. In reaching this conclusion, the Court finds that the petitioners never effected an entry into the United States.

"Entry" into the United States under the Act means "any coming of an alien into the United States, from a foreign port or place ... whether voluntary or otherwise ...." 8 U.S.C. § 1101(a)(13). In In re Phelisna, 551 F.Supp. 960, 962 (E.D.N.Y.1982), the Court held that:

quite patently the statute cannot be read to mean that mere presence in the United States is enough to show an entry. The inspection stations at which the United States determines whether aliens are admissible are per force sic inside the nation's borders. Congress could not have meant that an alien had come "into" the United States when he arrived at one of the usual points where the government is prepared to process applications for admission.

All eight of the alien petitioners claim to have effected entry into the United States because they entered United States waters aboard the M/T AMOCO VOYAGER and proceeded to the port of New Orleans. However, while aboard the M/T AMOCO VOYAGER, petitioners were, at all times, under lock and key detention by the ship's master. When the ship docked in New Orleans, the petitioners were turned over to INS's inspection officials. Quite simply, this is not entry for immigration law purposes.

In addition to the "... any coming ..." standard quoted above from the statute, "entry" also means "... freedom from governmental restraint, not merely going ashore or crossing the border ...." Klapholz v. Esperdy, 201 F.Supp. 294, 297 (S.D.N.Y.1961), aff'd, 302 F.2d 928 (2d Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 183, 9 L.Ed.2d 124 (1962). See also Leng May Ma v. Barber, 357 U.S. 185, 188, 78 S.Ct. 1072, 1074, 2 L.Ed.2d 1246 (1958), where the Supreme Court held that:

for over a half century, this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.

Clearly, the petitioners were under restraint when they arrived in the United States. (See, e.g. LaGuerre A.R. 145-146). Petitioners were placed under lock and key because the immigration laws require it. It can be presumed from his actions that the ship's master knew the law and was determined to obey it. Because the law requires the ship's master to detain aliens under circumstances like those here, his detention of these aliens does not differ from "governmental restraint" or "custody." Specifically, Section 271(a) of the Act states that:

it shall be the duty of every person, including the owners, masters, officers, and agents of vessels ... bringing an alien to, or providing a means for an alien to come to, the United States ... to prevent the landing of such alien in the United States at a port of entry other than as designated by the Attorney General .... Emphasis supplied.

8 U.S.C. § 1321(a). The Act then provides that, "all aliens arriving at ports in the United States shall be examined by one or more immigration officers ...." 8 U.S.C. § 1225(a). The purpose of this inspection and any hearings pursuant thereto is to determine whether the inspected alien is excludable. Ibid. Failure of the alien to present himself "at the time and place designated by the immigration officers shall be prima facie evidence" that the persons designated in Section 271(a), supra, of the Act have violated that Section. 8 U.S.C. § 1321(b). Such violation can impose a liability of $1,000 per violation—up to $25,000 in this instance—enforceable, among other ways, by a lien against the vessel which may be "libeled therefor." 8 U.S.C. § 1321(a).

While the petitioners were not under "official restraint," in that they were not under arrest or in the custody of the INS, it is clear that they were under a restraint required by the statute that governs entry of aliens, a statute that contemplates that law-abiding ship's masters will act as did this ship's master. For this reason, entry was never effected.

In making its determination as to the "entry" issue, the Court notes that it is merely affirming the decision of the BIA below. Petitioners maintain that they were never afforded an opportunity to be heard on the "entry" issue. The Court finds that this is not correct. The petitioners had a hearing at which they presented evidence, much of which related to the question of whether entry was effected. The transcripts of the immigration judge's proceedings below are replete with questions by the petitioners' counsel, the immigration judge, and the INS attorney, together with answers that relate to the question of entry. (See, e.g., G. Lumaine A.R. 87-227, passim; Verne A.R....