Marincas v. Lewis

Decision Date09 August 1996
Docket NumberNo. 95-5424,95-5424
Citation92 F.3d 195
PartiesMircea MARINCAS, Appellant, v. Warren LEWIS, District Director of the United States Immigration and Naturalization Service; U.S. Department of Justice; Immigration and Naturalization Service; Janet Reno, Attorney General; Doris Meissner, Commissioner; John Lima, Director of Esmor Detention Facility; Sea-Land Services, Inc.
CourtU.S. Court of Appeals — Third Circuit

Robert A. Perkins (argued), Robert A. Perkins & Associates, Chicago, IL, for appellant.

Daniel J. Gibbons (argued), Assistant U.S. Attorney, Faith S. Hochberg, United States Attorney, Newark, NJ, for appellees.

Judy Rabinovitz (argued), Lucas Guttentag, Ann Parrent, Immigrants Rights Project, American Civil Liberties Union Foundation, New York City, for amici curiae, Marsha Wenk, American Civil Liberties Union of New Jersey, Newark, NJ, of counsel.

Before: BECKER, McKEE and McKAY, * Circuit Judges.


McKAY, Circuit Judge.

Petitioner-Appellant Mircea Marincas, an alien with stowaway status, applied for and was denied political asylum by the Immigration and Naturalization Service (INS). The Board of Immigration Appeals (BIA) affirmed the denial of his application. Mr. Marincas then sought judicial review of the BIA decision by filing a petition for a writ of habeas corpus and a complaint for injunctive and declaratory relief. The district court denied relief. We reverse.

I. Factual and Procedural Background

Petitioner is a former soldier in the Romanian Army. He claims that he expressed opposition to and questioned the legitimacy of the new Romanian government installed after the overthrow of the Communist-totalitarian government of Nicolae Ceausescu. Mr. Marincas asserts that he was arrested, severely beaten, and threatened by Romanian authorities after he criticized the new government, which is apparently comprised almost entirely of former members of the old Communist regime. He claims that he fled Romania when he realized that he could not be safe in his homeland.

Mr. Marincas eventually arrived in the United States as a stowaway with a group of Romanian nationals on April 14, 1994, aboard a ship called the M/V Innovation. Mr. Marincas requested asylum immediately upon his arrival in the United States, claiming he fled Romania because of political persecution. He was detained as an excludable alien because of his stowaway status, and the INS required the owner of the M/V Innovation, Sea Land Services, Inc., to keep him in physical custody. 1

Mr. Marincas completed his first application for political asylum on April 17, 1994. At that time he was not informed of his right to be represented by counsel in his asylum interview or of the availability of free legal services. An INS official interviewed Petitioner, and his asylum claim was denied. Petitioner appealed to the BIA, which affirmed the INS's denial of asylum.

Petitioner then filed a habeas corpus petition seeking a stay of his deportation. The petition was dismissed after the INS conceded the inadequacy of the first proceeding and remanded the case for new proceedings. In November 1994, Petitioner was interviewed by the same asylum officer who had previously denied his claim. Petitioner was represented by counsel at the second interview, but his counsel was only allowed several minutes to question Petitioner and to advocate on his behalf. A third interview was conducted by another asylum officer after Petitioner's counsel objected to the INS about the second interview being conducted by the same asylum officer. Also, Petitioner submitted a supplemental statement in support of his application and numerous exhibits that allegedly documented the persecution he suffered in Romania. His application was again denied.

On April 7, 1995, Petitioner filed another appeal with the BIA and requested time in which to file a brief. On May 4, 1995, the BIA denied the appeal without having accepted Petitioner's brief. The BIA entered a final order of deportation for Mr. Marincas. Petitioner then initiated this action. The district court reviewed the deportation order pursuant to 8 U.S.C. § 1105a(a)(10), which permits habeas review of deportation orders. Petitioner asserted that he was denied meaningful administrative review of his application because his application was considered by an INS official instead of a neutral immigration judge and that the BIA improperly affirmed the denial of his asylum without giving him an opportunity to submit a brief. The district court denied Mr. Marincas' petition for a writ of habeas corpus. Deferring to the BIA's interpretation of the applicable immigration statutes, the district court found Mr. Marincas was provided all of the process due him on his claim for asylum. The court also found that reasonable evidence supported the INS's denial of Mr. Marincas' asylum application.

We have appellate jurisdiction to review a final order of deportation. 28 U.S.C. § 1291. Petitioner is currently in INS custody at York County Prison in York, Pennsylvania. We have not issued a formal order staying Petitioner's deportation, but the Department of Justice has agreed to comply with our request not to deport Petitioner during the pendency of this appeal.

II. United States Treaty Obligations

The United States is a signatory to the United Nations Protocol Relating to the Status of Refugees (U.N.Protocol), which incorporated the 1951 Convention Relating to the Status of Refugees. The U.N. Protocol provides:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.

United Nations Protocol Relating to the Status of Refugees, art. 33(1), Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577. Refugees are defined as "a person who owing to well-founded fear of being persecuted for reason of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." Id. art. 1.

The purpose of the Refugee Act of 1980, which amended the Immigration and Nationality Act, was "to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States." Pub.L. 96-212, tit. I, § 101(b), 94 Stat. 102 (1980). Also, the Refugee Act brought the domestic laws of the United States into conformity with its treaty obligations under the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577. See INS v. Stevic, 467 U.S. 407, 421, 427, 104 S.Ct. 2489, 2496, 2499, 81 L.Ed.2d 321 (1984). In response to the urgent needs of those subject to persecution in their homelands, the Refugee Act revised and regularized the procedures governing the admission of refugees into the United States. Pub.L. No. 96-212, tit. I, § 101, 94 Stat. 102 (1980). In this respect, the Supreme Court explained:

Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. In enacting the Refugee Act of 1980 Congress sought to "give the United States sufficient flexibility to respond to situations involving political or religious dissidents and detainees throughout the world."

INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987) (citation omitted). Thus, the Refugee Act was enacted to fulfill our treaty obligations under the U.N. Protocol for the benefit of aliens, such as Mr. Marincas in this case, who claim to be fleeing persecution in their homelands.

III. The Meaning of the Refugee Act of 1980

The district court, deferring to the BIA's interpretation of the Immigration and Nationality Act and the Refugee Act of 1980, concluded that the stowaways are not entitled to immigration court hearings on their asylum claims. We reverse the district court because the BIA's construction of the applicable immigration statutes are contrary to clear and unambiguous congressional intent.

A. The Immigration and Nationality Act and the Refugee Act of 1980

Aliens who arrive in the United States but are refused entry by an immigration officer are generally entitled to an exclusion hearing under the Immigration and Nationality Act (INA). Act of June 27, 1952, tit. II, ch. 4, § 235, 66 Stat. 198 (codified at 8 U.S.C. § 1225(b) (1988)). At the hearing, an immigration judge decides whether or not the alien should be admitted. 8 U.S.C. § 1226(a). If the alien asserts an asylum claim, he is entitled to an asylum hearing before an immigration judge. 8 C.F.R. § 236.3(c).

Stowaways, however, have a distinct status. Under the INA they are excludable aliens who are not entitled to an exclusion hearing. The INA states, "Any alien who is a stowaway is excludable." 8 U.S.C. § 1182(a)(6)(D). The INA further provides that stowaways are not entitled to an exclusion hearing. 2 8 U.S.C. § 1323(d). Section 1323(d) states, "The [exclusion hearing] provisions ... shall not apply to aliens who arrive as stowaways and no such alien shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to such regulations as the Attorney General may prescribe for the ultimate departure or removal or deportation of such alien from the United States." While stowaways are not entitled to an exclusion hearing, the statute permits stowaways to land in the United States pursuant to regulations prescribed for the ultimate departure, removal or deportation of the alien.

The Refugee Act mandated for the first time that uniform procedures be...

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