Waldei v. INS
| Decision Date | 12 September 1996 |
| Docket Number | Civil Action No. 94-CV-2510. |
| Parties | Mikeli WALDEI v. IMMIGRATION AND NATURALIZATION SERVICE & Legalization Appeals Unit. |
| Court | U.S. District Court — Eastern District of Louisiana |
Thomas Perrill Adams, New Orleans, LA, for petitioner.
Doris R. Piper, Francesco Isgro, U.S. Attorney's Office, New Orleans, LA, for respondent.
ORDER AND REASONS
This matter comes before the Court as a Petition for Habeas Corpus with Stay of Deportation, Declaratory Judgement and Injunction Relief. Mikeli Weldei ("Weldei") seeks: (1) judicial review of the decision of the Legalization Appeal Unit ("LAU") denying his application for adjustment of status pursuant to 8 U.S.C. § 1255a and 8 C.F.R. 245a.4; (2) judicial review of the decision of the Immigration and Naturalization Service ("INS") District Director's denial of his application for asylum under 8 U.S.C. § 1158; and (3) issuance of a writ of habeas corpus to enjoin his deportation as a result of an administratively final order of exclusion. Having considered the record, the memoranda of counsel and the law, the Court has determined that all claims set forth in the motion for Habeas Corpus should be DISMISSED.
The petitioner is an Ethiopian native and citizen who was a stowaway aboard the M/V George Whyte on August 31, 1980. He was denied permission to land at the port of New York and was detained aboard ship. After New York, the ship made stops in New Jersey and Miami, finally arriving in New Orleans on September 11, 1980. At that time, Waldei informed the immigration inspector who boarded the vessel of his intent to apply for asylum. The INS contacted the Bureau of Human Rights and Humanitarian Affairs ("BHRHA") at the Department of State regarding Waldei's asylum application. BHRHA informed the INS that Waldei appeared to have a valid claim to seek asylum and Waldei was immediately paroled into the United States pending adjudication of his asylum application. This initial parole was extended on November 13, 1981.
In the application for asylum, Waldei stated that he feared persecution by communists if returned to Ethiopia because he was an active member of an anti-communist organization and his uncle had been killed by the communist party. However, the record from the administrative proceedings does not reflect that Waldei ever submitted any documentation or declaration1 in support of his asylum claim.
On August 6, 1982, the BHRHA advised the INS that the applicant had not established a "well-founded fear of persecution" if returned to Ethiopia. On September 25, 1982, the INS District Director notified Waldei of his intent to deny his asylum application. Waldei was given thirty days to rebut the findings and to submit additional documents. He failed to provide the information requested or any other evidence in rebuttal. Hence, on November 19, 1982, the District Director denied his request for asylum and subsequently revoked his parole. Approximately four months later on March 14, 1983, the INS instituted exclusion proceedings against him as a stowaway under 8 U.S.C. § 1182(a)(18).
Subsequently, Waldei sought review of the INS' denial of his application for asylum during his exclusion hearing. In the published decision, Matter of Waldei, 19 I & N Dec. 189 (BIA 1984) the immigration judge stated that he lacked jurisdiction to hear the underlying exclusion case because of Waldei's status as a stowaway. Additionally, absent such jurisdiction "he was without authority to consider the applicant's renewed request for asylum" Id., at 190. The Board of Immigration Appeals ("BIA") agreed that an entrant stowaway was not entitled to an exclusion hearing before an immigration judge because the exclusionary procedures providing the jurisdictional basis for the exclusion hearing do not apply to stowaways such as Waldei.
Following the termination of the exclusion proceedings in 1983 and BIA's decision of October 1984, the INS still did not enforce Waldei's removal from the country. Waldei was permitted to remain in the United States under the Extended Voluntary Departure ("EVD") program from July 17, 1985 through July 17, 1988.
On March 15, 1988, Waldei applied for temporary resident status (legalization/amnesty) under the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1101, et seq. On March 1, 1989, the Southern Regional Processing Facility denied Waldei's application for temporary resident status because of his statutory ineligibility resulting from his stowaway status. He appealed the decision to the LAU. On July 9, 1993, the LAU dismissed the appeal based on Waldei's parole status as a stowaway. The LAU also found that Waldei was not eligible for EVD adjustment because of his status as a stowaway.
Subsequently, Waldei filed this habeas corpus petition. No issue regarding the timeliness of the habeas corpus petition has been raised. Apparently, this is Waldei's first petition for habeas corpus relief and the Court will entertain it.
The government claims that this Court lacks jurisdiction to review LAU decisions denying applications for adjustment of status.
The Constitution of the United States contains no express provision authorizing the exclusion and deportation of persons found in the country without proper documentation. The authority has been determined to be inherent in the sovereign power of the government. See Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893).
The United States Supreme Court defers to Congress on immigration issues and has deemed "plenary" Congress' power over matters of exclusion and deportation, Kleindienst v. Mandel, 408 U.S. 753, 769, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972), a power that is "absolute and unqualified," Fong Yue Ting, 149 U.S. at 707, 13 S.Ct. at 1019-20. In Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477-78, 52 L.Ed.2d 50 (1977), the Supreme Court admonished that the scope of judicial review of immigration law is "limited." "Over no conceivable subject is the legislative power of Congress more complete."2Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909).
In determining the limits of judicial review, the federal courts must examine the plain language of the relevant legislative enactments and relevant jurisprudence. "To preclude judicial review ... a statute ... must upon its face give clear and convincing evidence of an intent to withhold it." Abbott Laboratories v. Gardner, 387 U.S. 136, 140 n. 2, 87 S.Ct. 1507, 1511 n. 2, 18 L.Ed.2d 681 (1967). The district courts have jurisdiction to review an order of exclusion by habeas corpus proceeding under 8 U.S.C. § 1105a(a). Delgado-Carrera v. INS, 773 F.2d 629, 630 (5th Cir.1985).
With respect to Waldei's challenge to the LAU decision denying his legalization application, the government presents two arguments: (1) this Court lacks subject matter jurisdiction because exclusive jurisdiction belongs to the Courts of Appeals; and (2) if the district court has jurisdiction, it should find that Waldei's applications for legalization and EVD were properly denied. In support of its jurisdictional argument, the government contends that the Congressional scheme permits judicial review of a denial of an application to adjust status only in connection with an order of deportation, pursuant to § 106 of the INA, 8 U.S.C. § 1105a.3
The government's contention is correct. "Under section 106(a) of the INA, 8 U.S.C. § 1105a(a) (1976), the courts of appeals are vested with exclusive jurisdiction to review `all final orders of deportation.'" Haitian Refugee Center v. Smith, 676 F.2d 1023, 1032 (5th Cir.1982). In Reno v. Catholic Social Services, Inc., 509 U.S. 43, 53-55, 113 S.Ct. 2485, 2493-94, 125 L.Ed.2d 38 (1993), the Supreme Court stated:
Id. (footnotes omitted). Hence, Waldei, was a stowaway4 at the time he applied for legalization on March 15, 1988, and was a stowaway when his application for adjustment of status was denied.
Although physically inside the United States, Waldei has never been determined to have made statutory entry by virtue of his status as a stowaway. Instead, he is considered legally detained at the border, "thus subject to exclusion rather than deportation." Fragedela v. Thornburgh, 761 F.Supp. 1252, 1253 n. 1 (W.D.La.1991) (citing Garcia-Mir v. Smith, 766 F.2d 1478,...
To continue reading
Request your trial
-
Suero v. U.S. Dep't of Homeland Sec.
...aliens . . . ." Argenbright Sec. v. Ceskoslovenske Aeroline, 849 F. Supp. 276, 281 (S.D.N.Y. 1994); see also Waldei v. I.N.S., 938 F. Supp. 362, 370 (E.D. La. 1996). The fact that Pineda was paroled into the United States also does not alter his legal status as a stowaway. See Leng May Ma v......
- Scarberry v. Peoples Sec. Life Ins. Co.