Sabino v. Reno, CIV. A. H-97-3884.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtLake
Citation8 F.Supp.2d 622
PartiesRicardo Abastillas SABINO, Petitioner, v. Janet RENO, U.S. Attorney General, et al., Respondents.
Docket NumberNo. CIV. A. H-97-3884.,CIV. A. H-97-3884.
Decision Date01 June 1998
8 F.Supp.2d 622
Ricardo Abastillas SABINO, Petitioner,
v.
Janet RENO, U.S. Attorney General, et al., Respondents.
No. CIV. A. H-97-3884.
United States District Court, S.D. Texas, Houston Division.
June 1, 1998.

Page 623

Imran B Mirza, Attorney at Law, Houston, TX, for Petitioner.

Howard E Rose, Office of U.S. Attorney, Houston, TX, for Respondents.

OPINION AND ORDER

LAKE, District Judge.


Ricardo Sabino, a citizen of the Phillippines who became a legal resident of the United States in 1983, filed this application for writ of habeas corpus on November 26, 1997, to challenge an order of the Immigration and Naturalization Service (INS) excluding him from the United States. Sabino is married to a legal resident and has three children who are United States citizens. Sabino was convicted of a drug offense during a 1991 trip to Japan, which customs officials discovered upon his return to the United States in 1992. The Attorney General and the District Director of the INS have moved to dismiss the case for lack of subject matter jurisdiction. The motion to dismiss raises a number of complex jurisdictional issues.

I.

United States immigration law has traditionally distinguished between the exclusion of aliens who arrive at our shores seeking admission and the deportation of aliens who are physically present within the United States, whether they entered with permission or illegally. See Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 1073, 2 L.Ed.2d 1246 (1958). In the Immigration and Nationality Act (INA) of 1952, which provided the basic framework for immigration proceedings until 1996, the grounds for exclusion were broader than those for deportation. For example, when Sabino returned from Japan in 1992 an alien could be excluded — but not deported — because of poor health, present or past membership in Communist and other totalitarian political parties, the immigration officer's determination that the alien was likely to become a public charge, and other reasons. Compare 8 U.S.C. § 1182 (1994)1 with id. § 1251 (1994). But see id. § 1251(a)(1) (1994) (providing that an alien is deportable if he was excludable under any of the grounds listed in § 1182 at the time of

Page 624

his entry). In addition, aliens in deportation proceedings had procedural protections and other privileges that were not available in exclusion proceedings. See Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21 (1982).

Exclusion and deportation have always been considered civil rather than criminal proceedings, and no jury trial is required. See Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 533, 96 L.Ed. 547 (1952); Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 1028-29, 37 L.Ed. 905 (1893). Early Supreme Court cases established that Congress has broad, plenary power over immigration policy and procedures. See, e.g., Fong Yue Ting, 13 S.Ct. at 1020; Lem Moon Sing v. United States, 158 U.S. 538, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895); Nishimura Ekiu v. United States, 142 U.S. 651, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892). In Lem Moon Sing the Court stated:

The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.

15 S.Ct. at 970. Congress's power to determine the grounds for excluding and deporting aliens has never been successfully challenged. See Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972) ("The Court without exception has sustained Congress' `plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.'") (citation omitted). By 1911, however, the Supreme Court had established that resident aliens in deportation proceedings were entitled to the protection of the Due Process Clause. See Kwock Jan Fat v. White, 253 U.S. 454, 40 S.Ct. 566, 567, 64 L.Ed. 1010 (1920) (holding that agency decision "is final, and conclusive upon the courts, unless it be shown that `authority was not fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law,'") (citing Tang Tun v. Edsell, 223 U.S. 673, 32 S.Ct. 359, 363, 56 L.Ed. 606 (1912)); Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 477, 97 L.Ed. 576 (1953) ("It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law."). Aliens seeking initial admission into the United States, on the other hand, have virtually no constitutional protections. See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950) ("Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.").

The differences between exclusion and deportation proved troublesome with respect to the class of aliens to which Sabino belongs — lawful permanent residents returning from a trip abroad. In United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298 (1933), the Supreme Court held that a resident alien's return to the United States after a brief visit to Cuba constituted an "entry" within the meaning of the Immigration Act of 1917. The alien was found excludable on a ground that would probably not have made him deportable. Id. at 667. Later the Court created an exception to Volpe for aliens who depart the country unintentionally. See Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 12, 92 L.Ed. 17 (1947) (holding that alien's return from Cuba was not an entry because merchant ship on which he was sailing was torpedoed by German submarine, resulting in alien being rescued and taken to Cuba temporarily). In the 1952 INA Congress adopted both the Volpe Court's understanding of reentry and the exception in Delgadillo. See 8 U.S.C. § 1101(a)(13) (1994) (stating that "entry" means "any coming of an alien into the United States," but not the return from an unintended, unexpected, or involuntary departure to a foreign country). In Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), however, the Supreme Court broadly construed the § 1101(a)(13) exception and held that a resident alien's return from an "innocent, casual and brief" excursion

Page 625

to another country does not constitute an "entry." Id. at 1812. For many years it was unclear whether a returning resident had due process rights. In Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), the Court held that a resident alien could "invoke the Due Process Clause on returning to this country, although we do not decide the contours of the process that is due ...." Id. at 329.

In the recently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 545, Congress merged exclusion and deportation into a single process called "removal." See 8 U.S.C. § 1229a. Congress preserved, however, the broader substantive grounds for denying aliens admission to the United States in 8 U.S.C. § 1182, changing the term "excludable" to "inadmissible." See 8 U.S.C. § 1182(a). Generally, aliens are no longer classified according to whether they are physically present in the United States, but by whether they have been lawfully admitted into the United States. An alien who has never been admitted is "removable" if found to be "inadmissible" under § 1182. See 8 U.S.C. § 1229a(e)(A); id. § 1101(a)(13)(A) (defining "admitted" as lawfully admitted after inspection and authorization by an immigration officer and eliminating the definition of "entry" in the old 8 U.S.C. § 1101(a)(13)(1994)). Aliens who have been admitted must be found "deportable" under the narrower grounds in 8 U.S.C. § 1227 (a recodified version of the old 8 U.S.C. § 1251 (1994)) in order to be removed from the United States. See 8 U.S.C. § 1229a(e)(B). The special category of the returning resident alien remains, however. An alien who has once been admitted may be regarded as an "applicant seeking admission" if he leaves the country for more than 180 days, engages in illegal activity while he is gone, or has committed an offense identified in 8 U.S.C. § 1182(a)(2). See 8 U.S.C. § 1101(a)(13)(C).

Although exclusion and deportation proceedings under the 1952 INA had a number of differences, several basic principles and procedures were common to both, and many of those remain applicable in the new removal proceedings. The Attorney General enforces immigration laws through the INS, a division of the Department of Justice. Johns v. Department of Justice, 653 F.2d 884, 889 (5th Cir.1981). An alien attempting to enter (or reenter) the United States who "may not appear to the examining officer at the port of arrival to be clearly and beyond a doubt entitled to land" is detained for further inquiry. 8 U.S.C. § 1225(b) (1994). The INS can "parole" the alien into the United States pending outcome of the inquiry without changing his status. See 8 U.S.C. § 1182(d)(5)(A) (1994); Leng May Ma, 78 S.Ct. at 1074 (holding that such parole does not entitle entering alien to deportation proceedings). A "special inquiry officer," commonly called an immigration judge, conducts a hearing to determine whether an alien such as Sabino is excludable. See 8 U.S.C. § 1226(a) (1994). Cf. 8 U.S.C. § 1252(b) (1994) (special inquiry officer also presides in deportation proceedings).2 The immigration judge is an officer of the Department of Justice but independent of the INS. Rafeedie v. INS, 880 F.2d 506, 507 (D.C.Cir.1989).

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