Theck v. Warden, I.N.S., CV97-6206-JSL(RC).
| Decision Date | 23 July 1998 |
| Docket Number | No. CV97-6206-JSL(RC).,CV97-6206-JSL(RC). |
| Citation | 22 F.Supp.2d 1117 |
| Court | U.S. District Court — Central District of California |
| Parties | Park THECK, aka Theck Park, aka Lee Jee Young, Petitioner, v. WARDEN, IMMIGRATION AND NATURALIZATION SERVICE, Respondents. |
Lawrence E. Kole, Asst. U.S. Atty., Los Angeles, CA, for Respondents.
Petitioner Park Theck, aka Theck Park, aka Lee Jee Young, attempted to enter the United States at John F. Kennedy International Airport on November 19, 1994, using a fraudulent Canadian passport. Return, Exhs. 1-2 at 19-23. He was detained and charged with being an excludable alien under the Immigration and Naturalization Act ("INA"), Sections 212(a)(6)(C)(I),1 212(a)(7)(A)(I)(I),2 and 212(a)(7)(B)(I)(I) and 212(a)(7)(B)(I)(II).3 Petitioner was subsequently paroled into the United States, and an exclusion hearing was eventually set for October 16, 1995. Return, Exh. 4 at 25, Exh. 20 at 45.
On October 12, 1995, petitioner boarded a Korean Airlines flight to Korea; however, he was denied entry to the Republic of Korea because he did not have valid travel documents. Return, Exhs. 5, 10, 21 at 26, 33, 47. Petitioner arrived in San Francisco on October 13, 1995. Return, Exhs. 5, 9 at 26, 31. At that time, petitioner again was charged with being an excludable alien under Sections 212(a)(7)(A)(I)(I), 212(a)(7)(B)(I)(I) and 212(a)(7)(B)(I)(II) of the INA, and he was detained pending an exclusion hearing. Return, Exhs. 5-6 at 26-28.
On October 16, 1995, the exclusion hearing was held in New York on the original charges against petitioner, and he was ordered excluded and deported from the United States.4 Return, Exh. 8 at 30. Another exclusion hearing on the new charges was held in San Francisco on October 27, 1995, and petitioner was ordered to be excluded and deported to Korea. Return, Exh. 7 at 29. Petitioner appealed the latter order to the Board of Immigration Appeals ("BIA"), which dismissed his appeal on July 2, 1996.5 Return, Exh. 20 at 45. Petitioner subsequently sought review in the United States District Court for the Northern District of California; however, the court dismissed the petition for lack of jurisdiction. Theck v. INS, 1997 WL 37565 (N.D.Cal.). The INS continues to detain petitioner, who has been in custody since October 13, 1995. Return, Exhs. 11-25 at 36-56.
On August 19, 1997, petitioner Park Theck filed the instant habeas corpus petition challenging his ongoing detention by the Immigration and Naturalization Service ("INS").6 The plaintiff claims that INS has violated (1) international law, (2) the Constitution and (3) its own rules by detaining him for over six months after a final deportation order was entered.7 Petition, at 4-5. Furthermore, petitioner claims that the INS has violated his civil rights by preventing him from marrying his girlfriend, Susana Gonzalez, a Spanish citizen, Petition, at 5, and his property rights by repeatedly searching his suitcase, which has now disappeared. Petition, at 5-6.
On November 4, 1997, respondent filed its answer, in which it argues that the court lacks jurisdiction over the petitioner's claims under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "Act"). Additionally, respondent asserts that petitioner, who is an excludable alien, is lawfully detained and there is no merit to his marriage and property claims. The petitioner filed a traverse on December 31, 1997.
On April 27, 1998, the parties were ordered to file briefs addressing whether this case is governed by Hose v. Immigration & Naturalization Serv., 141 F.3d 932, (9th Cir. 1998). Respondent filed a memorandum of points and authorities on May 11, 1998; however, petitioner did not respond to the court's order.
The respondent asserts that Section 242(g) of the INA8 deprives this court of jurisdiction over petitioner's claims through habeas corpus review, as well as review of its decisions under mandamus and the Administrative Procedure Act. Although the Ninth Circuit concluded in Hose that the Act withdrew a district court's jurisdiction to entertain a habeas corpus petition challenging a final removal order, Hose, 141 F.3d at 934, petitioner, here, is not challenging the INS's removal order. Instead, he is challenging his ongoing, and potentially indefinite, detention, claiming it is unconstitutional. Thus, petitioner's constitutional claims do not come within 8 U.S.C. § 1252(g), and the court has the jurisdiction to address them.
Even if some of petitioner's constitutional claims arise from a decision or action coming within 8 U.S.C. § 1252(g), the court still has jurisdiction to consider petitioner's constitutional claims. See Ramallo v. Reno, 114 F.3d 1210, 1214 (D.C.Cir.1997) (), petition for cert. filed, 66 USLW 3264 (Sept. 24, 1997); Yang v. Immigration & Naturalization Serv., 109 F.3d 1185, 1195-96 (7th Cir.) (), cert. denied, ___ U.S. ___, 118 S.Ct. 624, 139 L.Ed.2d 605 (1997). Therefore, the court will address the merits of petitioner's constitutional claims.
The immigration laws create two types of proceedings in which aliens can be denied the hospitality of the United States: deportation and exclusion hearings.9 Landon v. Plasencia, 459 U.S. 21, 25, 103 S.Ct. 321, 325, 74 L.Ed.2d 21 (1982). Deportation refers to the removal from the country of aliens who already are physically in the United States, and exclusion refers to keeping undesirable aliens from entering the United States. See 8 U.S.C. §§ 1182, 1251; Landon, 459 U.S. at 25, 103 S.Ct. at 325; Alvarez-Mendez v. Stock, 941 F.2d 956, 961 n. 4 (9th Cir.1991), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). Since petitioner was detained while seeking admission into the United States, he is considered an excludable alien. See 8 U.S.C. § 1182; Landon, 459 U.S. at 25, 103 S.Ct. at 325; Alvarez-Mendez, 941 F.2d at 961 n. 4.
Even though petitioner was paroled10 into the United States pending his initial exclusion hearing, by virtue of the "entry fiction," he is still considered an excludable alien. See 8 U.S.C. § 1182(d)(5); Alvarez-Mendez, 941 F.2d at 961 n. 4; Yuen Sang Low v. Attorney General, 479 F.2d 820, 823 (9th Cir.), cert. denied, 414 U.S. 1039, 94 S.Ct. 539, 38 L.Ed.2d 330 (1973). The "entry fiction" provides that even if an excludable alien is physically present in the United States, legally he is considered to have been detained at the border and, therefore, has never effected entry into this country. See Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir.1995) (en banc), cert. denied, 516 U.S. 976, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995).
The Attorney General possesses the statutory authority to detain such an alien for a prolonged period. See Barrera-Echavarria v. Rison, 44 F.3d at 1447-8. "[Over] a century ago, the [Supreme] Court recognized the validity of detaining excludable aliens pending deportation." Id. 44 F.3d at 1449. Detention, even when prolonged, is valid "`as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens....'" Id. (quoting Wong Wing v. United States, 163 U.S. 228, 235, 16 S.Ct. 977, 980, 41 L.Ed. 140 (1896)). Excludable aliens, such as petitioner, have no right to be admitted into the United States, "even if the only alternative is prolonged detention." Id. 44 F.3d at 1450. However, because the justification for such prolonged detention presumes a lack of alternatives, when a viable alternative presents itself, continued detention may become unreasonable.
Petitioner claims, inter alia, that the INS has violated his constitutional rights by refusing to allow him to marry his girlfriend Susana Gonzalez, a Spanish citizen. Petitioner also claims that, by violating his constitutional right to marry, the INS also has violated his Fourth Amendment right to be free from unreasonable seizures. Here, it appears that petitioner's current detention is justified only because the INS has yet to find another country who will take him. Petitioner argues that if he is allowed to marry Ms. Gonzalez, as is his constitutional right, he would be deportable to Spain. Petitioner's continuing detention becomes an unreasonable seizure, therefore, when he is unconstitutionally denied the ability to change his status in such a way that would free him from detention.
It is undisputed that the petitioner is an excludable alien who, by virtue of the "entry fiction," is not considered to have been admitted into the United States. This legal fiction, however, generally is applied only in connection with immigration and deportation proceedings and "does not limit the right of excludable aliens detained within United States territory to humane treatment." Lynch v. Cannatella, 810 F.2d 1363, 1373 (5th Cir.1987). Although it is "clear that excludable aliens have no procedural due process rights in the admission process, the law is not settled with regard to nonprocedural rights." Barrera-Echavarria v. Rison, 44 F.3d 1441, 1449 (9th Cir.1995) (en banc), cert. denied, 516 U.S. 976, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995). The courts have recognized that excludable aliens are entitled to some constitutional protections. See Plyler v. Doe, 457 U.S. 202, 211-12, 102 S.Ct. 2382, 2391-92, 72 L.Ed.2d 786 (1982) (); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (...
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