Fang-Sui Yau v. Gustafson

• Decision Date: 19 December 1985
• Docket Number: No. CV 84-9509 AWT (T).,CV 84-9509 AWT (T).
• Citation: 623 F. Supp. 1515
• Court: U.S. District Court — Central District of California
• Parties: FANG-SUI YAU, Petitioner, v. Ernest E. GUSTAFSON, Jr., Respondent.

623 F. Supp. 1515

FANG-SUI YAU, Petitioner, v. Ernest E. GUSTAFSON, Jr., Respondent.

No. CV 84-9509 AWT (T).

United States District Court, C.D. California.

December 19, 1985.

Yee-Jen Shuai, Alhambra, Cal., for petitioner.

Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div., Lawrence W. Chamblee, Sp. Asst. U.S. Atty., Los Angeles, Cal., for respondent.

MEMORANDUM ORDER ADOPTING MAGISTRATE'S RECOMMENDATIONS

TASHIMA, District Judge.

This is a petition for writ of habeas corpus by a stowaway who is under immediate threat of deportation. This Court has jurisdiction under 8 U.S.C. § 1105a(a)(9) and (b), which respondent does not challenge. Before the Court for review, pursuant to 28 U.S.C. § 636(b)(1), are the Magistrate's report and recommendation (the "initial report") and supplemental report and recommendation, copies of which are appended hereto. I have reviewed the file herein, including the certified administrative record of the Immigration and Naturalization Service ("INS"), and have made a de novo determination of those portions of the initial report to which objection has been made. Because I agree with the Magistrate's reliance on and analysis of Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir.1983), I approve and adopt her recommendation that the writ issue.¹ I add only the following.

In his objections to the Magistrate's initial report, respondent argues, in essence, that a stowaway's right to apply to the INS district director for asylum, a procedure in effect prior to the enactment of the Refugee Act of 1980, see INS v. Stanisic, 395 U.S. 62, 89 S.Ct. 1519, 23 L.Ed.2d 101 (1969), is sufficient to fulfill the purposes and provisions of the Refugee Act. In addition to the observations made in the Magistrate's supplemental report, with respect to this contention, the Court notes that the INS' own regulations do not support this contention:

As we have noted above, INS regulations promulgated under the Refugee Act do not distinguish between stowaways and other aliens in providing for an exclusion hearing after the District Director has denied an asylum application, 8 C.F.R. 208.9, 208(f)(3), nor, read as a whole, does the agency's asylum procedure make any distinction among applicants for asylum. Nor do internal INS procedures ("Operations Instructions") qualify in any way the generalization that an "alien shall be informed of his/her right to renew the asylum request ... in subsequent exclusion or deportation proceedings." INS O.I. 208.14, reprinted in 4 C. Gordon & H. Rosenfeld, Immigration Law and Procedure 23-156.20 (rev. ed. 1982).

Yiu Sing Chun, 708 F.2d at 875 (footnote omitted). In the omitted footnote, the Second Circuit observed that:

Stowaway status is not one of the reasons for denying an asylum application listed in the Federal Register notice or the regulations. Id. 45 Fed.Reg. at 37,392; 8 C.F.R. 208.8(f)(i)-(vi).

Id. at 875 n. 19 (emphasis in the original).

As noted in the Magistrate's initial report, petitioner claimed that as a stow-away-asylee he was entitled to a due process hearing on his asylum claim. The contention rests primarily on the analysis in Yiu Sing Chun of the requirement of a due process hearing "to determine whether applicants for asylum are, in fact, refugees within the meaning of the Act." 708 F.2d at 877 (footnote omitted). Here, although petitioner was given a hearing before an immigration judge ("IJ") and found to be a refugee, the Board of Immigration Appeals ("BIA") concluded that the IJ was without jurisdiction and ordered all proceedings terminated.

In his objections to the Magistrate's initial report, respondent insists that a stowaway has no constitutional right to due process. Respondent arrives at that position by relying first on the holding in Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892), that with respect to unadmitted aliens, "the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law." (Citation omitted.) Accord, Shaughnessy v. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953). Next, respondent distinguishes Landon v. Placencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982), which held that constitutional due process applies to an exclusion proceeding. The distinction is bottomed on the Immigration and Nationality Act's provisions that stowaways have no right to a hearing under that Act. See 8 U.S.C. §§ 1225(b) and 1323(d). This argument, however, completely ignores rights granted to refugees under treaty and by the Refugee Act. Giving effect to these enactments, I agree with the Second-Circuit that both treaty and statutory rights grant to an asylee-refugee a protectible interest which is sufficient to trigger procedural due process requirements. See Yiu Sing Chun, 708 F.2d at 876-77 and nn. 25-27.

Petitioner's rights under the Refugee Act are limited to those expressly provided for in that Act. The IJ found that petitioner was a "refugee" — that he had a "well-founded fear of persecution." 8 U.S.C. § 1101(a)(42)(A). On the other hand, he also concluded that this was not a proper case in which the discretion to grant asylum should be exercised in favor of petitioner. Both sides appealed to the BIA. As indicated earlier, the BIA vacated the decision of the IJ and ordered the exclusion proceedings terminated for lack of jurisdiction. It did not reach the merits. Therefore, the matter must be remanded for the two questions to be resolved on the merits: (1) Is petitioner a "refugee" within the meaning of the Refugee Act; and (2) If so, how should the Attorney General exercise his discretion as to whether or not to grant petitioner asylum under § 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158(a). See, e.g., Garcia-Ramos v. INS, 775 F.2d 1370, 1373 (9th Cir.1985); Yiu Sing Chun, 708 F.2d at 876.

IT IS ORDERED that the writ of habeas corpus issue and that the matter be remanded for further proceedings not inconsistent with this Order and the Magistrate's reports and recommendations.

REPORT AND RECOMMENDATION OF MAGISTRATE

October 8, 1985

VENETTA S. TASSOPULOS, United States Magistrate.

This Report and Recommendation is submitted pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and General Order No. 194 of the United States District Court for the Central District of California.

On December 13, 1984, petitioner filed two petitions for writs of habeas corpus, civil case numbers 84-9509-AWT(T) and 84-9510-Kn(T). Also on that date, petitioner filed an ex parte application for a temporary restraining order. No opposition being offered by defense counsel, the Magistrate heard petitioner's motion and signed an order to show cause and stay of deportation in the case. The Magistrate also found that petitioner's counsel had not exhausted his administrative remedies with the Board of Immigration Appeals. Counsel was advised to voluntarily dismiss one of his writs of habeas corpus and to file an amended petition for writ of habeas corpus no later than January 7, 1985.

Petitioner voluntarily dismissed civil action number 84-9510-Kn(T) on December 28, 1984. Thereafter, the government submitted its Return to petitioner's habeas corpus petition, and petitioner filed his traverse. Oral argument regarding petitioner's order to show cause and stay of deportation was set for hearing on February 19, 1985.

After the hearing, the Magistrate ordered additional briefing on the petitioner's entitlement to a hearing before an immigration judge. The matter was thereafter deemed submitted.

BACKGROUND

Petitioner, Fang-Sui Yau, arrived at the port of Los Angeles on the vessel Sealand Developer on September 1, 1983. (Administrative Record, hereinafter "A.R.," 80). By petitioner's own admission, his presence on the vessel was that of a "stowaway." (A.R. 116).

Upon arrival in the United States, petitioner was detained by the Immigration and Naturalization Service (hereinafter "INS") and afforded an exclusion hearing before an immigration judge. (A.R. 90-233). Petitioner requested political asylum, claiming that he would be persecuted if returned to his native land, the People's Republic of China. Petitioner based his claims of persecution on allegations that he was discriminated against in China due to his status as a member of a landowner class family and the son of an anti-revolutionary. (A.R. 103-105). Hearings were held between March 6, 1984 and April 30, 1984. (A.R. 90-94, 95-117, 118-130, 131-140, 141-165, 166-190 and 191-233). Petitioner also claimed to have engaged in several anti-government activities, including assistance to several individuals who successfully escaped mainland China. (A.R. 109-110, 189-190). Petitioner testified that he had attempted to escape China before, unsuccessfully, and that such an attempt resulted in his imprisonment for one year. (A.R. 112-113).

Petitioner's second attempt to escape China was successful. He fled to Hong Kong where he resided underground for more than a year. (A.R. 114-117, 199). Petitioner explained that he did not seek to apply for political asylum at the United States Consular Office in Hong Kong because he was not aware that such an office existed and because he feared the Hong Kong authorities would capture him and would return him to China. (A.R. 116, 194). After residing in Hong Kong without legal status, petitioner stowed away on the Sealand Developer with the intent of applying for political asylum upon entry into the United States. (A.R. 200).

After the hearings and due consideration of the evidence presented, the immigration judge issued a decision finding petitioner excludable as a stowaway. (A.R. 80-89). While finding that the petitioner was excludable and subject to deportation, the immigration judge also found that petitioner had established a well founded fear of persecution if returned to the People's...