Pierre v. U.S.

• Decision Date: 07 March 1977
• Docket Number: No. 75-3975,75-3975
• Citation: 547 F.2d 1281
• Parties: Marie PIERRE et al., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1281

547 F.2d 1281

Marie PIERRE et al., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

No. 75-3975.

United States Court of Appeals, Fifth Circuit.

March 7, 1977.

Rehearing and Rehearing En Banc Denied April 12, 1977.

Eric M. Lieberman, New York City (Michael Krinsky, Dorian Bowman, Ira I. Gollobin, New York City, Neal R. Sonnett, Donald I. Bierman, Miami, Fla., of counsel), for petitioners-appellants.

Robert W. Rust, U. S. Atty., Miami, Fla., Rex L. Young, Atty., Gov. Reg. Sec., James P. Morris, Philip Wilens, Acting Chief, Crim. Div., Dept. of Justice, Washington, D. C., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before AINSWORTH and CLARK, Circuit Judges, and HUGHES, ^* District Judge.

AINSWORTH, Circuit Judge:

This is an immigration case involving the appeal of a number of Haitian aliens who claim asylum in the United States as political refugees. Petitioners, 147 Haitian nationals who admit their excludability under 8 U.S.C. § 1182(a)(20) (lack of appropriate documentation), requested parole into the United States under section 1182(d)(5) as political refugees as defined in the United Nations 1967 Protocol and Convention Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. 6557. The Immigration and Naturalization Service (INS) denied parole and petitioners brought this habeas corpus action in United States District Court. Relief was denied but we remanded the case on motion of petitioners to allow them to provide INS with additional material concerning their status. When none was forthcoming this cause was "returned" to us by the District Court.

On this appeal petitioners assert statutory and constitutional rights which they contend accrue to them by operation of the Protocol; further, they assert a denial of due process by the INS, and argue that INS procedures for considering refugee applications are inadequate and that new procedures should be required. We affirm the District Judge's denial of the habeas corpus petition.

Petitioners were among 216 Haitians who left their country in small groups by boat, during 1972 and early 1973. Upon arriving at United States ports all immediately were taken into the custody of immigration officers without having made "entry." ¹ They were then examined by immigration officers in accordance with section 235 of the Immigration and Nationality Act, 8 U.S.C. § 1225, which provides in pertinent part:

All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. . . . Any person coming into the United States may be required to state under oath the purpose or purposes for which he comes, the length of time he intends to remain in the United States permanently and, if an alien, whether he intends to become a citizen thereof, and such other items of information as will aid the immigration officer in determining whether he is a national of the United States or an alien and, if the latter, whether he belongs to any of the excluded classes enumerated in section 1182 of this title.

Examination by immigration officers of these Haitians revealed that each of the petitioners sought to enter the United States without appropriate entry documents. This lack of documents brought them within the terms of 8 U.S.C. § 1182(a)(20), which provides in pertinent part:

Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

(20) Except as otherwise specifically provided in this chapter, any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General pursuant to section 1181(a) of this title; . . . .

Despite the plain language of the statute the Attorney General or his delegate can exercise discretion to parole excludable aliens into the United States, 8 U.S.C. § 1182(d)(5). ² The parole power has been exercised to grant refuge to aliens who would be subject to persecution on account of race, religion or political opinion if excluded and returned to his country of origin. The asylum policy of the United States is reflected in our accession to the Protocol. Article 33 of the 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 of a particular social group or political opinion.

The Protocol adopts as its definition of "refugee" that contained in the United Nations 1951 Convention Relating to the Status of Refugees, as follows:

A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:

(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

(The Protocol specifically deletes the reference to 1 January 1951.) Department of State Public Notice 351, "Requests for Asylum," 37 F.R. 3447 (Feb. 16, 1972) provides that "A primary consideration in U.S. asylum policy is the 'Protocol Relating to the Status of Refugees,' to which the United States is a party." The Notice also contains the following statement:

Policy. Both within the United States and abroad, foreign nationals who request asylum of the U.S. Government owing to persecution or fear of persecution should be given full opportunity to have their requests considered on their merits. The request of a person for asylum or temporary refuge shall not be arbitrarily or summarily refused by U.S. personnel.

The Haitian petitioners in this case requested asylum in light of this policy, in the form of "applications for refugee status." The administrative regulations in effect at the time of the applications, found at 8 C.F.R. (1974), provide at section 103.1(f) that the Attorney General's authority under the immigration laws to grant or deny "any application or petition submitted to the Service" is delegated to district directors of the INS. ³ 8 C.F.R. § 212.5(a) further provides that district directors "may" parole aliens into the United States, "after a finding of inadmissibility has been made" ⁴ under 8 U.S.C. § 1182(d)(5). Thus, district directors are delegated the Attorney General's discretionary power to parole inadmissible aliens into the United States. Pursuant to this provision petitioners made application to the appropriate district director for discretionary parole, asserting that they were political refugees.

The INS has promulgated "Operations Instructions" which include instructions for handling asylum applications. The then current instructions provide:

108.1 Requests for asylum. (a) General. An alien who requests asylum shall be interviewed by an immigration officer and given an opportunity to fully present his case. In every case, detailed facts, including basis for decision and information concerning any subsequent action in the case shall be included in the subject's "A" file.

(c) Applicants at seaports or airports in the United States. An alien who requests asylum at time of application for admission at a seaport or airport of entry, before or during an exclusion hearing, or subsequent to such a hearing, shall be interviewed by an immigration officer to determine the basis for his request. . . . In any case in which the District Director does not believe that asylum should be granted and the alien does not withdraw his request, the District Director shall furnish full particulars by letter to the Office of Refugee and Migration Affairs, Department of State. Action to enforce departure shall not be taken in the alien's case until the views of that office have been received and considered by the District Director.

This procedure was followed, as appears in the record, and each of the petitioners was notified by the district director that, in his judgment after consultation with the State Department, they were not subject to political persecution upon return to Haiti. Accordingly, political refugee status and "temporary refuge" presumably meaning parole was denied. Each petitioner was then afforded a hearing under 8 U.S.C. § 1226 which provides:

Exclusion of aliens Proceedings

(a) A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses. He shall have authority in any case to determine whether an arriving alien who has been detained for further inquiry under section 1225 of this title shall be allowed to enter or shall be excluded and deported. The determination of such special inquiry officer shall be based only on the evidence produced at the inquiry. No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions. Proceedings before a special inquiry officer under this section shall be conducted in...