Soroa-Gonzales v. Civiletti, Civ. A. No. C80-1356A.

• Decision Date: 04 June 1981
• Docket Number: Civ. A. No. C80-1356A.
• Citation: 515 F. Supp. 1049
• Parties: Genaro SOROA-GONZALES, Plaintiff, v. Benjamin R. CIVILETTI, Secretary of the Department of Justice; Edmund Muskie, Secretary of State Department; Norman A. Carlson, Director, Bureau of Prisons; Jack Hanberry, Warden, United States Penitentiary; and Tyrus E. Minnix, District Director of Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — Northern District of Georgia

515 F. Supp. 1049

Genaro SOROA-GONZALES, Plaintiff, v. Benjamin R. CIVILETTI, Secretary of the Department of Justice; Edmund Muskie, Secretary of State Department; Norman A. Carlson, Director, Bureau of Prisons; Jack Hanberry, Warden, United States Penitentiary; and Tyrus E. Minnix, District Director of Immigration and Naturalization Service, Defendants.

Civ. A. No. C80-1356A.

United States District Court, N. D. Georgia, Atlanta Division.

May 21, 1981.

Supplemental Order June 4, 1981.

COPYRIGHT MATERIAL OMITTED

Deborah Ebel and Barbara Twine, Atlanta Legal Aid Society, Atlanta, Ga., for plaintiff.

Douglas Roberto, Asst. U. S. Atty., Atlanta, Ga., for defendants.

ORDER

SHOOB, District Judge.

Is it fair or reasonable for the President of the United States to invite refugees from Cuban oppression to this country and then detain one of them indefinitely in a maximum security federal prison on the sole ground that he, like 130,000 other Cuban refugees who are now free on parole, arrived without proper entry papers? The answer is no. It is neither fair, reasonable nor humane. Can this Court do anything about it? This Court concludes that it can.

Petitioner, presently incarcerated at the Atlanta Federal Penitentiary, is a Cuban refugee who arrived in the United States approximately one year ago as part of the "Freedom Flotilla." He brings this habeas corpus action to challenge the legality of his detention under both domestic and international legal principles. It is unfortunate that petitioner must do so. The problems posed by the sudden arrival of 130,000 Cubans within a short period of time are best dealt with by the other branches of government. But in the absence of action by either the legislative or executive branch,¹ this Court is required to perform the traditional function of a court petitioned to issue the Great Writ. For the reasons set forth in this order, the Court concludes (1) that it has jurisdiction over this habeas petition, (2) that the district director of the Immigration and Naturalization Service abused his discretion in revoking petitioner's parole and refusing to reinstate parole, and (3) petitioner is entitled to relief. The Court emphasizes that its conclusions are limited to the particular facts before it, the facts concerning Genaro Soroa-Gonzales, the petitioner, and his incarceration. The Court intimates no opinion concerning the legality of detention of the remaining 1,700 Cuban refugees at the Atlanta Federal Penitentiary.

FACTS

Counsel for the parties arrived at the following ten stipulations of fact concerning petitioner.

1.

Genaro Soroa-Gonzales arrived on the shores of the United States of America on May 18, 1980. Soroa-Gonzales came to America as part of the freedom flotilla from Cuba.

2.

On May 18, 1980, upon arrival at Key West, Florida, Soroa-Gonzales was granted temporary parole by the Attorney General or his designated agent. Said temporary parole was granted pursuant to 8 U.S.C. § 1182(d)(5).

3.

After his initial detention by INS at Key West, Florida, Soroa-Gonzales was transferred to a camp at Fort Indian Town Gap, Pennsylvania. On or about May 22, 1980, Soroa-Gonzales filed his request for political asylum.

4.

On May 24, 1980, Soroa-Gonzales gave a statement to an INS agent about his activities in Cuba. INS interpreted his statement to be that he was arrested and convicted in Cuba of a serious non-political crime involving drugs.

5.

On or about May 28, 1980, Soroa-Gonzales was incarcerated in the Atlanta Federal Penitentiary, and has been and continues to be held there at the behest of respondents.

6.

On or about May 29, 1980, INS revoked Soroa-Gonzales' parole status, and on June 11, 1980, advised him that a further inspection and hearing would be conducted pursuant to § 236 of the Immigration and Naturalization Act to determine if he was admissible to the United States. The grounds for the revocation of his parole, and the grounds upon which INS believed Soroa-Gonzales to be excludable were those grounds found at 8 U.S.C. § 1182(a)(23), and (20), to wit: he was an alien who the Immigration officers knew or had reason to believe was an illicit trafficker in narcotic drugs or marijuana; and he was an alien who was not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry documents.

7.

On July 15, 1980, an exclusionary hearing was held In The Matter of Soroa-Gonzales to determine whether he was admissible. The Administrative Law Judge found during that hearing that Soroa-Gonzales did not commit any serious nonpolitical crimes (including therein that the government failed to establish that he was a trafficker in illicit drugs). The INS further found that detention should continue because Soroa-Gonzales did not have proper entry documents and because there was insufficient evidence to justify political asylum.

8.

On July 15, 1980, Soroa-Gonzales appealed, to the Board of Immigration Appeals, the decision rendered by the ALJ. The alien's appeal from an oral decision of an ALJ must be made there and then at the conclusion of the exclusion hearing. 8 C.F.R. § 236.7. The Appeal Form does not require that an alien specify exactly which Findings of Fact or Conclusions of Law are appealed from. Rather, the alien who appeals the decision, is merely requested to briefly state the general reasons for the appeal, which was done in this case. Soroa-Gonzales generally appealed all the unfavorable findings made by the ALJ.

9.

A Notice of Appeal was also filed by the INS trial attorney on July 15, 1980.

10.

The Board of Immigration Appeals has not rendered any decision on the matters before it.

Stipulations, August 22, 1980. The parties reached additional stipulations to certain general matters. Among them are the following.

All those recent Cuban refugees who have been temporarily paroled into the United States, and who are excludable solely on the basis of lack of proper entry documents, are presently living in camps, and are being processed by INS.

The processing consists of finding sponsors for those Cubans. Once sponsors are found, those Cubans are being released from the camps to the sponsors.

Id. Further,

Subsequent to the Petitioner's exclusionary hearings the Immigration and Naturalization Service has refused and continues to refuse to reinstate Petitioners' parole status.

No specific written Order denying Petitioner's readmittance to parole is in existence. However, Immigration and Naturalization Service has in fact refused to reinstate Petitioners' parole, and the original written orders revoking Petitioners' parole remain in full force and effect.

Immigration and Naturalization Service has refused, by written notice dated August 5, 1980, to release Petitioners on bond.

Supplemental Stipulations of Fact, September 25, 1980.^1.5

STATEMENT OF THE CASE

This habeas corpus action was filed in forma pauperis on August 6, 1980. All proceedings were conducted before a United States Magistrate until October 16, 1980. On that date, Magistrate Feldman issued his lengthy Report and Recommendation. The Magistrate recommended that the petition be dismissed without prejudice, since the Court lacked jurisdiction to review the district director's revocation of petitioner's parole. This Court declines to adopt the Report and Recommendation and concludes that it has jurisdiction over this habeas corpus petition and that the stipulations of fact and other facts appearing from the record are sufficiently clear to enable the Court to grant appropriate relief in this case. In doing so, this Court stresses the precise nature of this action: it is a habeas corpus action brought by a person incarcerated to review the legality of his detention. Petitioner is detained by virtue of the revocation of his parole on May 29, 1980 by the District Director of the Immigration and Naturalization Service (INS) and by the District Director's refusal to reinstate petitioner to parole. Petitioner does not in this action challenge the Administrative Law Judge's determination that petitioner is excludable; that decision is not reviewable by a court until the administrative process is completed by a final decision of the Board of Immigration Appeals.²

JURISDICTION

It is clear that there is no specific provision which grants federal district courts the power to review the INS District Director's decision whether or not to grant parole to an alien determined by an ALJ to be excludable. Nor is there any specific provision barring review. The question of this Court's subject matter jurisdiction must be answered by reference to more general provisions. Petitioner argues that at least three general grants of jurisdiction permit this Court to exercise its power over this controversy: 8 U.S.C. § 1329; 28 U.S.C. § 1331; and 28 U.S.C. § 2241. For the reasons set out below, each of these provisions is an adequate jurisdictional basis.

A. 8 U.S.C. § 1329 provides as follows.

§ 1329. Jurisdiction of district courts The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this title. It shall be the duty of the United States attorney of the proper district to prosecute every such suit when brought by the United States. Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under section 275 or 276 8 USCS §§ 1325, 1326 may be apprehended. No suit or proceeding for a violation of any of the provisions of this title shall be settled, compromised, or discontinued without the consent of the court in which it is pending and any such settlement, compromise, or discontinuance shall be entered of record with the reasons therefor.

"This title" refers to Title II of the Act of June 27, 1952, 8 U.S.C. § 1151 et seq. The Attorney General's authority ...