El-Werfalli v. Smith, 82 Civ. 5849 (ADS).

• Decision Date: 16 September 1982
• Docket Number: No. 82 Civ. 5849 (ADS).,82 Civ. 5849 (ADS).
• Citation: 547 F. Supp. 152
• Parties: Ahmad EL-WERFALLI, Petitioner, v. William French SMITH, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

547 F. Supp. 152

Ahmad EL-WERFALLI, Petitioner, v. William French SMITH, et al., Respondents.

No. 82 Civ. 5849 (ADS).

United States District Court, S. D. New York.

September 16, 1982.

Wasserman, Orlow, Ginsberg & Rubin, New York City, for petitioner.

John S. Martin, Jr., U. S. Atty., S.D.N.Y. by Thomas E. Moseley, Sp. Asst. U. S. Atty., New York City, for respondents.

MEMORANDUM AND ORDER

SOFAER, District Judge.

Petitioner, a Libyan national, seeks a writ of habeas corpus ordering his release from custody of the Immigration and Naturalization Service ("INS"). He was detained when attempting to enter the United States on August 20, 1982. His purpose in entering was to continue studying at the Spartan School of Aeronautics in Tulsa, Oklahoma. He is being trained at Spartan as a specialist in spare parts for aircraft, under a contract between the school and the government-owned Libyan Arab Airlines ("LAA") for which he works. At the time he entered the country he held a nonimmigrant visa as a student, which had been issued at Madrid in August 1981. He had previously entered this country and studied at Spartan from 1981-82, and had visited Libya and England during the summer of 1982. When detained, he was accompanied by his wife and child, both of whom have nonimmigrant visas as the spouse and child of a student holding a student visa. See 8 U.S.C. §§ 1101(a)(15)(F)(i) and (ii).

When petitioner presented himself for inspection on arrival in the United States he was informed that his visa had been cancelled. The cancellation was ordered on that day by Louis P. Goelz, Deputy Assistant Secretary for Visa Services, Bureau of Counsular Affairs, Department of State, who is authorized by law to invalidate nonimmigrant visas. 22 C.F.R. § 41.122(f)(1). Mr. Goelz also invalidated the visas of Mr. El-Werfalli's wife and child, since their entitlement derived from Mr. El-Werfalli's visa. Mr. Goelz has given the following unclassified reasons for his action (Affidavit, ¶ 4):

I was further informed that Mr. El-Werfalli's purpose in seeking entry into the United States was to continue a course of study at the Spartan School of Aeronautics, Tulsa, Oklahoma. That school offers operational courses in flight operations and aircraft maintenance. On the basis of intelligence information of a classified nature regarding the uses to which Libya has put its civilian and military aircraft, I concluded that Mr. El-Werfalli's purpose in seeking entry involved activities which would be prejudicial to the public interest, and endanger the welfare or security of the United States within the meaning of section 212(a)(27) of the Immigration and Nationality Act, as being contrary to United States foreign policy objectives.

Petitioner was served with notice of temporary exclusion on August 25 after which the matter was referred to the Regional Commissioner. The Regional Commissioner, after receiving petitioner's submissions, ruled on September 2 that petitioner was inadmissible under 8 U.S.C. § 1182(a)(27) in that his entry would be prejudicial to the public interest or endanger the welfare, safety or security of the United States. The decision was based on classified information the disclosure of which the Regional Commissioner found would be prejudicial to the public interest, safety and security of the United States. That decision is final under 8 C.F.R. § 235.8(c).

Petitioner challenges the revocation of his visa and the conclusion that he is inadmissible for security reasons. He alleges that he is a young man trying to learn a trade and thereby make a living to support his growing family. He says he is not and has never been involved in politics and feels he is an innocent victim of the poor relations that have developed between Libya and the United States. He also protests that the Government has moved to exclude him, while allowing several other Libyan classmates to return unmolested to their studies at Spartan. The Spartan School confirms this latter point, and has provided INS with affidavits from a few Libyan students who were permitted recently to return to the United States.

The Government argues that, once a reviewing court has found that 8 U.S.C. § 1225(c) was properly invoked, the court should refrain from any further review of the finding that petitioner is excludable. Government Brief at 13. Section 1225(c) provides the procedural mechanism for exclusion of aliens found to be threats to national security. It expressly eliminates the need for any further inquiry by a Special Inquiry Officer once the Attorney General (or by delegation the Regional Commissioner) concludes, on the basis of information the disclosure of which would be prejudicial to the public interest, safety, or security, that an alien is inadmissible under 8 U.S.C. § 1182(a)(27). The statute does not, however, expressly eliminate the very limited judicial review traditionally applied in this area. In any event, the Government has not pressed its claim that exclusion decisions under section 1225(c) are unreviewable; rather, it has supplied the Court with unclassified and classified information, and argues that the information proves the...