Schoenmetz v. Ingham
| Decision Date | 19 September 1996 |
| Docket Number | No. 96-CV-461A.,96-CV-461A. |
| Parties | Wilhelm SCHOENMETZ, Petitioner, v. John J. INGHAM, District Director, Immigration and Naturalization Service, Respondents. |
| Court | U.S. District Court — Western District of New York |
Robert D. Kolken, Sacks and Kolken, Buffalo, NY, for Petitioner.
James W. Grable, Special Assistant U.S. Attorney, Immigration & Naturalization Service, Buffalo, NY, for Respondent.
DECISION AND ORDER
On July 12, 1996, petitioner, Wilhelm Schoenmetz, filed the instant petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, seeking review of a decision by respondent, John J. Ingham, District Director, Immigration and Naturalization Service ("INS"), denying petitioner's request for parole pending completion of exclusion proceedings against him. Petitioner requests an order from this Court directing his immediate release on parole. Both parties were provided with an opportunity to brief their respective positions and oral argument was held on August 22, 1996. After reviewing the submissions of the parties and hearing argument from counsel, the Court denies petitioner's writ of habeas corpus and dismisses this action.
Petitioner, a native and citizen of Germany, initially entered the United States as a visitor for pleasure on January 11, 1973. He remained in the United States longer than authorized, thereby becoming deportable for that reason. On December 21, 1973, the INS commenced a deportation proceeding against petitioner and charged him with being deportable for having remained in the United States longer than authorized.
On January 21, 1974, petitioner was convicted, after pleading guilty, in the United States District Court for the Eastern District of Michigan for the offense of possession of a controlled substance, i.e., marijuana, in violation of 21 U.S.C. § 844(a). Petitioner was sentenced to probation for a period of two years.
On February 25, 1974, an immigration judge ("IJ") found petitioner to be deportable as charged during a deportation hearing and ordered him deported from the United States to West Germany. The basis for deportation was the fact that petitioner remained in the United States longer than authorized and was not based on his drug conviction. In his decision, however, the IJ did find that petitioner was statutorily ineligible for voluntary departure in lieu of deportation because of the drug conviction.
Petitioner unsuccessfully appealed the deportation order to the Board of Immigration Appeals ("BIA"). He thereafter unsuccessfully pursued judicial review of the deportation order in the Sixth Circuit Court of Appeals.
In the criminal case, petitioner filed a motion to set aside his plea of guilty contending that his plea was made without effective assistance of counsel. He claimed that counsel did not inform him of the immigration consequences of his guilty plea. The sentencing judge denied petitioner's motion and the Sixth Circuit dismissed petitioner's appeal from that denial. Petitioner subsequently made another unsuccessful motion to vacate the conviction on the same grounds.
In his deportation proceeding, petitioner unsuccessfully sought a stay of deportation from the INS on two separate occasions in February 1976, to permit petitioner to seek United States Supreme Court review of the deportation order and to pursue efforts to obtain a court order vacating his drug conviction. Both stay applications were denied. A petition for habeas corpus relief filed in response to the first stay denial was dismissed by the Sixth Circuit. On February 25, 1976, petitioner was deported from the United States to Germany under a warrant of deportation.
On June 20, 1996, petitioner sought entry into the United States at the Lewiston-Queenston Bridge port of entry at Lewiston, New York by claiming to be a citizen of the United States. In primary and secondary inspection, petitioner contended that he was born in New York City. He also produced several documents in support of his claim to United States citizenship. Record checks conducted by the INS disclosed that petitioner was identified in INS records as a previously deportable alien. Petitioner eventually admitted that he was an alien and that he was previously deported from the United States in 1976. He also admitted that he had been living and working in the United States without authority since 1983.
On the basis of this information, the INS commenced an exclusion proceeding against petitioner. He was charged as being inadmissible to the United States as an alien who attempted to enter the United States by fraud and as an immigrant not in possession of an immigrant visa or other required entry document. Petitioner was detained by the INS on June 20, 1996, pending resolution of the exclusion proceedings. The INS subsequently discovered that petitioner had previously been convicted in the United States for possession of marijuana.
In a letter request dated June 26, 1996, petitioner's counsel in the exclusion proceeding requested that the INS grant petitioner indefinite parole so that he could: (1) marry his fiancée, a citizen of the United States, and thereafter pursue an application for adjustment of status to that of a lawful permanent resident alien on the basis of that marriage; and (2) continue to support and visit his two United States citizen children from a prior marriage. The parole request explained that, on June 20, 1996, petitioner was employed as a project engineer for a company located in Michigan, and was traveling on business with his employer from Michigan to Tonawanda, New York via Canada. According to petitioner, his employer was unaware of his illegal immigration status and he was afraid to inform the employer of it. Petitioner offers this reason for initially misrepresenting his citizenship status to INS authorities upon his attempt to reenter the United States.
In petitioner's parole request, petitioner's counsel indicated that, after being deported in 1976, petitioner returned to the United States in 1977 on a visitor's visa. Counsel also indicated that petitioner made another entry into the United States in the Fall of 1982 on a visitor's visa and that he lived in the United States thereafter until the present time. Counsel further indicated that petitioner returned to Germany in 1991 for several months and was readmitted to the United States under a visa waiver procedure.1 Petitioner's counsel did not mention petitioner's previous drug conviction in his initial parole request.
Counsel for petitioner made a second parole request in a letter dated July 1, 1996, in which he again requested that petitioner be paroled indefinitely to permit him to marry his fiancée and to continue employment in the United States to support his two United States citizen children from a prior marriage. In the second parole request, counsel indicated that he learned after the first parole request that petitioner had previously been convicted of marijuana possession in the United States.
Petitioner's counsel made a third parole request in a letter dated July 12, 1996. In the third parole request, petitioner sought temporary parole for a period of 90 days to enable counsel to obtain copies of his entire drug conviction record and those portions of the INS file relating to petitioner that would be deemed releasable by INS to counsel.2
On July 12, 1996, petitioner commenced the instant action for a writ of habeas corpus. The parties appeared before the Court on July 15, 1996. At that time, counsel for the INS furnished petitioner's counsel and the Court with a letter dated July 15, 1996, in which the INS denied petitioner's third parole request. On July 17, 1996, the INS issued a superseding decision denying petitioner's parole request. It is the July 17, 1996, denial of parole that is to be reviewed by the Court in this case.
On July 18 and 19, 1996, an exclusion hearing was conducted before an IJ in Buffalo, New York. At the hearing, petitioner testified that he was convicted for possession of marijuana in Michigan in 1974 and was deported from the United States in 1976. Petitioner also testified that he has lived and worked in Michigan from 1983 until the present. He further testified that he made trips outside the United States in 1991 and 1995. Counsel for petitioner indicated that petitioner's German passport has been missing for years.
At the conclusion of the hearing, the IJ ordered petitioner excluded and deported from the United States as an alien who attempted to enter the United States by fraud and as an alien who was inadmissible as an immigrant not in possession of an immigrant visa or other required entry document. The IJ's exclusion order was not based on petitioner's prior drug conviction.
The INS filed a motion with the IJ requesting that the IJ add as a grounds for exclusion petitioner's drug conviction. In an order dated August 5, 1996, the IJ denied the INS's motion.
Petitioner has appealed the IJ's order of exclusion to the BIA. At oral argument, counsel for the INS stated that it is the INS's intention to ask the BIA to review also the IJ's refusal to add petitioner's drug conviction as a ground for exclusion.
Under 8 U.S.C. § 1182(d)(5)(A), an alien subject to exclusion may be provisionally admitted into the United States:
The Attorney General may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States ...
The Attorney General has delegated responsibility for making such decisions to the respective INS district directors pursuant to 8 C.F.R. §§ 100.2(d)(2)(i) and 212.5. Section 212.5(a) narrowly defines the terms of the statute:
In determining whether or not aliens who have been or are detained ... will be paroled out of detention, the...
To continue reading
Request your trial
-
Haddam v. Reno
...and bona fide reason for denying parole, and some factual basis for that decision in each individual case."); Schoenmetz v. Ingham, 949 F.Supp. 152, 155 (W.D.N.Y.1996) ("The scope of [review of denial of parole], however, is narrow. The district director's decision must be upheld as long as......