Gutierrez v. Ilchert

• Decision Date: 19 August 1988
• Docket Number: No. C-88-0585 EFL.,C-88-0585 EFL.
• Citation: 702 F. Supp. 787
• Court: U.S. District Court — Northern District of California
• Parties: Jesus GUTIERREZ, Petitioner, v. David ILCHERT, District Director, Immigration and Naturalization Service, Respondent.

702 F. Supp. 787

Jesus GUTIERREZ, Petitioner, v. David ILCHERT, District Director, Immigration and Naturalization Service, Respondent.

No. C-88-0585 EFL.

United States District Court, N.D. California.

August 19, 1988.

Walter Rafael Pineda, San Francisco, Cal., for petitioner.

George C. Stoll, Asst. U.S. Atty., San Francisco, Cal., for respondent.

MEMORANDUM DECISION

LYNCH, District Judge.

On March 28, 1988, after hearing argument in this habeas corpus action, the Court remanded the case to respondent District Director for reconsideration of the decision to deny parole to petitioner Gutierrez. When the District Director again denied parole, Gutierrez renewed his petition in this Court. On May 6, 1988, the Court granted Gutierrez's request for a writ of habeas corpus and ordered the District Director to release Gutierrez on parole into the United States. The present opinion will serve to explain the reasons for the Court's decision.

BACKGROUND

Since this Court detailed the underlying facts of this case in its March 28 order, it is unnecessary to repeat them in full here. A brief summary will suffice. Gutierrez, who is presumably a Mexican national, resided in this country for nine years, apparently without documentation. He was gainfully employed and started a family during that time. He is now the father of two United States citizens.

In May 1987, Gutierrez departed the United States to visit his ailing mother in Mexico. Approximately three weeks later, he attempted to reenter this country using counterfeit documentation. The Immigration and Naturalization Service ("INS") apprehended him and took him into custody.

While exclusion and deportation proceedings were pending, Gutierrez repeatedly applied for parole, partly on the ground that he intended to seek amnesty under the Immigration Reform and Control Act ("IRCA"). The District Director denied all the requests. In rejecting Gutierrez's application for amnesty as a basis for parole, the District Director concluded that Gutierrez was not eligible for amnesty due to his three week absence from the United States. He reached this conclusion largely on the basis of INS regulations interpreting IRCA's "brief, casual and innocent departure" exception to the continuous physical presence requirement normally applied to amnesty applicants.

Gutierrez petitioned for a writ of habeas corpus.¹ This Court concluded that the regulation relied upon by the District Director was inconsistent with IRCA and therefore invalid. See Gutierrez v. Ilchert, 682 F.Supp. 467 (N.D.Cal.1988).² Accordingly, the Court remanded the case to the District Director, allowing him two weeks to reconsider the parole decision in light of the Court's ruling that the relevant INS regulation was invalid. Under the terms of the remand, Gutierrez was to be released if the District Director did not reach a decision within the two-week period.

Two weeks after issuance of the decision, the parties submitted a stipulation in which the District Director agreed to release Gutierrez on $1,000 bond if the Court would withdraw its opinion striking the INS regulation. The Court refused to withdraw the opinion, but granted the District Director three more days to reconsider his parole decision. Three days later, the District Director issued a 21-page decision, again denying parole. Gutierrez renewed his habeas corpus petition, arguing that the District Director (1) failed to comply with this Court's order; and (2) failed to supply a facially legitimate reason for his decision. For the reasons stated below, this Court agrees.

DISCUSSION

A. Standard of Review

As this Court noted in its earlier opinion, the proper standard of review in judicial challenges to immigration parole decisions is unsettled. Some circuits review such decisions for an abuse of discretion, see Moret v. Karn, 746 F.2d 989 (3d Cir.1984); Ahrens v. Masferrer Rojas, 292 F.2d 406 (5th Cir.1961), while others apply the more deferential standard requiring only a "facially legitimate and bona fide reason" for the decision, see Amanullah v. Nelson, 811 F.2d 1, 10 (1st Cir.1987); Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982). The issue is open in the Ninth Circuit.

While this Court is uncertain whether the two standards are meaningfully different, the reasoning adopted in Bertrand, calling for greater deference, is persuasive. Bertrand looked to Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972), for guidance on this issue. Bertrand, 684 F.2d at 212. In Kleindienst, the Court considered the appropriate level of judicial scrutiny of a Justice Department decision to deny a discretionary waiver of a particular ground of exclusion. Kleindienst noted that the Attorney General, when acting pursuant to discretion committed to him by Congress, exercises some part of Congress' plenary power to make policies and rules in connection with the exclusion of aliens. Id. Consequently, the Court concluded the exercise of this power should not be overturned if it rests on a "facially legitimate and bona fide reason." Id. 408 U.S. at 770, 92 S.Ct. at 2585.

Although the discretion exercised here is not identical to that at issue in Kleindienst, it is analogous in the important respect that it was a delegation of Congress' power to make policies and rules in connection with the exclusion of aliens. Accordingly, this Court, like the Bertrand court, concludes that the appropriate standard is the "facially legitimate and bona fide reason" standard applied in Kleindienst.

B. The Merits

As the District Director points out, section 1225(b) of U.S.C. Title 8³ requires that the INS detain "for further inquiry" any individual suspected of attempting to enter the country unlawfully. Section 1182(d)(5), however, provides that the INS may, in its discretion, parole a detainee into the United States "for emergent reasons or for reasons strictly in the public interest...." The "emergent reasons" basis for parole appears to require urgency, and Gutierrez does not actively assert this as the focus of his request for release. The more appropriate basis for parole in this case appears to be the "public interest" ground.

INS regulations implementing the public interest portion of the statute set forth categories of individuals who would "generally" qualify for release, provided the individual is not a security or flight risk. See 8 C.F.R. § 212.5(a)(2). The final grouping is a "catchall" category, allowing release of aliens whose continued detention is not in the public interest. Id. at § 212.5(a)(2)(v).

Thus, the INS regulations, as they apply here, establish a two-step analysis for determining whether an alien should be paroled. First, the District Director should determine whether the applicant's release would be in the public interest, either for one of the enumerated reasons, or for some other reason. Second, even if the applicant would otherwise qualify, the District Director should not parole the applicant if he or she is a flight or security risk.

1. Public Interest

Although the District Director did not frame his decision in terms of the two step analysis outlined above,⁴ he did segregate his discussion of whether Gutierrez is a flight risk in a footnote. The Court therefore assumes that the text of the decision refers exclusively to the threshold question whether parole here would be in the public interest.

The District Director began his discussion of the applicable law by repeatedly emphasizing that the statutory rule is detention, and that the exception is parole. This statement, while technically true, is of no assistance in determining whether the District Director provided a facially legitimate and bona fide reason for his decision. Indeed, it is somewhat misleading in that it implies that the statutory language itself mandates a practice of granting parole only in rare and extreme cases. As the Supreme Court has acknowledged, the INS granted parole applications as a matter of course until 1981, when it reversed its policy.

For almost 30 years before 1981, the INS had followed a policy of general parole for undocumented aliens arriving on our shores seeking admission to this country. In the late 1970's and early 1980's, however, large numbers of undocumented aliens arrived in South Florida, mostly from Haiti and Cuba. Concerned about this influx of undocumented aliens, the Attorney General in the first half of 1981 ordered the INS to detain without parole any immigrants who could not present a prima facie case for admission. The aliens were to remain in detention pending a decision on their admission or exclusion. This new policy of detention rather that parole was not based on a new statute or regulation.

Jean v. Nelson, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (emphasis added).

It seems unlikely that for 30 years the INS was misinterpreting the statute to permit a liberal policy toward parole. Rather, as the Supreme Court indicated in Jean, it appears that the statute commits broad discretion to the Attorney General (and through him, to the INS) to set policy on when to grant parole. In other words, contrary to the District Director's implication, the statute itself does not mandate a harsh approach to parole, but leaves it largely up to the Attorney General.

To support his restrictive view of the parole provisions, the District Director relies heavily on the First Circuit's decision in Amanullah v. Nelson, 811 F.2d 1 (1987). The Amanullah court concluded that the legislative history demonstrated "beyond cavil that Congress consistently visualized parole as an indulgence to be granted only occasionally, in the case of rare and exigent circumstances, and only when it would plainly serve the public interest." Id. at 6. This Court cannot agree.

Indeed, the Amanullah court's conclusion that parole may be granted only when both emergency and public interest circumstances are present flies in the...