Sannon v. United States, 74-428-CIV-JLK

• Decision Date: 15 February 1977
• Docket Number: No. 74-428-CIV-JLK,75-2124-CIV-JLK.,74-428-CIV-JLK
• Citation: 427 F. Supp. 1270
• Parties: Marie SANNON et al., Plaintiffs, v. UNITED STATES of America et al., Defendants. Ketley JEAN-BAPTISTE et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

427 F. Supp. 1270

Marie SANNON et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

Ketley JEAN-BAPTISTE et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

Nos. 74-428-CIV-JLK, 75-2124-CIV-JLK.

United States District Court, S. D. Florida.

February 15, 1977.

Donald I. Bierman, Neil R. Sonnett, Bierman, Sonnett, Beiley & Osman, P. A., Miami, Fla., and Eric M. Lieberman, Rabinowitz, Boudin & Standard, New York City, for plaintiffs.

Patricia Jean Kyle, Asst. U. S. Atty., Miami, Fla., for defendants.

MEMORANDUM OPINION

JAMES LAWRENCE KING, District Judge.

Petitioners in these cases seek judicial review of proceedings by which the Immigration and Naturalization Service (INS) determined that they were excludable aliens and were not entitled to political refugee status. The issue presented is whether the immigration judges who presided over the petitioners' exclusion hearings erred in refusing to consider their claims for political asylum.

The amended complaints in both cases allege jurisdiction under several statutes.¹ The court has jurisdiction under 28 U.S.C. Section 2241 et seq., (habeas corpus) to review final orders of exclusion. See Pierre v. United States, 525 F.2d 933, 936 (5th Cir. 1976). See also 8 U.S.C. Section 1105a(b).²

The petitioners, numbering some 300, are citizens of Haiti. They were intercepted at various times and location at the border of the United States and were paroled into the country pursuant to 8 U.S.C. Section 1182(d)(5).³ They were subsequently interviewed by members of the Travel Control Section who represent the District Director of the INS. The information from these interviews was forwarded for advice to the State Department's Office of Refugee and Migration Affairs. Based on the interviews and the advice from the State Department, the District Director denied each petitioner's claim for political asylum.

At subsequent hearings to determine the excludability of the petitioners, immigration judges, representing the quasi-judicial branch of INS, ruled that petitioners were excludable aliens because they lacked visas or other required documents enumerated in 8 U.S.C. Section 1182(a)(20).⁴ The judges refused to hear evidence proffered by petitioners concerning their claims of political persecution and their requests for asylum under the United Nations Convention and Protocol Relating to the Status of Refugees⁵ (hereinafter Protocol). The government's position is that the judges had no jurisdiction to do so.

Petitioners appealed the immigration judges' findings that they were excludable aliens to the State Department's Board of Immigration Appeals. The appeals were denied.

The petitioners complain that they were never afforded a fair hearing by INS on their refugee claims. The initial interviews, they assert, were conducted in a summary fashion within twenty-four hours after they had reached the border. They allege that the interviews were conducted without counsel even though INS was well aware of the availability of counsel who were ready, willing and able to be present at the interviews. Additionally, they claim that they were interviewed without explanation or understanding of what was at issue, without opportunity to be apprised of or to respond to adverse evidence, and in a most precipitous and biased manner.

They allege further that they were given only two and one-half hours prior notice of the subsequent exclusion hearing and that their attorneys were given only one day prior notice. Finally, they complain that at the exclusion hearing they were not permitted to offer evidence relating to their refugee claims. They argue that the procedures by which the refugee claims were denied violated the due process clause of the Fifth Amendment and the regulations and statutes of the United States. The court does not reach the constitutional issue because it holds that petitioners were statutorily entitled to present their asylum claims at the exclusion hearings, and thus that the immigration judges erred in refusing to hear these claims.

At the outset, the court notes that there is little guidance available to assist the court in resolving this difficult issue. No court has passed upon the issue of whether claims for political asylum can be presented by a paroled alien at an exclusion hearing. Therefore, the court must review the statutory scheme together with the Attorney General's applicable regulations⁶ de novo.

Before further analysis, one must recognize a distinction in the posture of aliens within and without the United States. The statutes and regulations distinguish between "excludable" and "deportable" aliens.⁷ The former are aliens who have not effected entry into the United States; the latter are aliens who have successfully entered, whether legally or illegally. The parties agree that petitioners are excludable, and not deportable aliens. This is so even though they are in fact physically present, because the authorities concur that those who enter through parole or temporary harborage are considered still "standing at the gates."⁸

I STATUTORY AND REGULATORY FRAMEWORK

United States Code Chapter 12 of title 8 governs "Aliens and Nationality."⁹ 8 U.S.C. Section 1225 provides that all persons seeking admission to the United States shall first be inspected by immigration officers who operate under authority of the District Director of INS. It is stipulated that petitioners were in fact interviewed by these officers. If the District Director concludes that the applicant for admission is not "clearly and beyond a doubt entitled to land" the applicant is detained for a "further inquiry" before a special inquiry officer (immigration judge).¹⁰ This "further inquiry" is an exclusion hearing. Section 1226 provides that the immigration judge "shall have authority in any case to determine whether an arriving alien . . . shall be excluded."¹¹ Such exclusion hearing "shall be the sole and exclusive procedure for determining admissibility . .".¹² Immigration judges are empowered to "administer oaths and to . . . consider evidence . . . touching the privilege or any alien . . . to enter . . the United States."¹³ The decision of the immigration judge may be appealed to the Board of Immigration Appeals.¹⁴

In deciding whether an alien is excludable, immigration judges must, except for other provisions in the chapter, utilize the tests of 8 U.S.C. Section 1182: "Excludable aliens — general classes." One such general class is found at Section 1182(a)(20): "Immigrant(s) . . . not in possession of a valid unexpired immigrant visa, . . . border crossing identification card, or other valid entry document . . .."¹⁵ It is stipulated that the immigration judges found that petitioners did not have in their possession the required documents.

Thus were it not for the Protocol, petitioners would have no grounds for objecting to their exclusion. Article 33 of the Protocol provides in pertinent part that "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."¹⁶

To receive protection under the Protocol, however, an alien must first establish that he is a "refugee" within the meaning of that document, i. e. that he has a well-founded fear of persecution.

Because the Protocol was adopted some sixteen years after the Immigration and Nationality Act became law, the Act is silent on the procedures that an alien must follow to establish that he is a "refugee" and thus entitled to protection under the Protocol. The Attorney General has enacted a regulation, however, that purports to delineate how aliens may request political asylum, including that offered by the Protocol. This regulation, 8 C.F.R. Part 108, directs that application for asylum must be made to the District Director of INS, who "may approve or deny the application in the exercise of discretion."¹⁷ The "decision shall be in writing and no appeal shall lie therefrom."¹⁸ A limited exception in this part permits claims under the Protocol to be made again at subsequent "expulsion hearings."¹⁹ The Attorney General has interpreted this exception to apply to deportable aliens only.²⁰ Thus, Part 108 directs that for excludable aliens asylum claims under the Protocol are adjudicated in a summary, non-evidentiary, final, non-appealable interview with the District Director. The government relies upon Part 108 in its contention that the immigration judges who presided over petitioners' exclusion hearing lacked authority to hear their asylum claims because those claims had been finally adjudicated by the District Director. For reasons discussed below, the court finds that Part 108 has either been misconstrued or is invalid, because there exists no justification either in the Act, in the Protocol, or in logic to deny excludable aliens the right to assert asylum claims at an exclusion hearing.

II JUSTIFICATION IN THE ACT

8 U.S.C. Section 1226 provides a comprehensive procedure for determinations of admissibility for excludable aliens, including initial interview by an examining officer, a hearing before an immigration judge, and appeal to the board of immigration appeals.²¹

At the hearing mandated by Section 1226, the immigration judge is authorized "to take and consider evidence of or from any person touching the privilege of any alien . . . to enter . . . or reside in the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service . . .."²² This language contemplates a broad and not a limited scope at the exclusion hearing. Certainly, a claim of political asylum under the Protocol is an assertion of a privilege to enter and reside in the United States. Such a claim is also material and relevant to the...