Yiu Sing Chun v. Sava

• Decision Date: 19 May 1983
• Docket Number: No. 912,D,912
• Citation: 708 F.2d 869
• Parties: YIU SING CHUN and Jee-Chiu Shan, Appellants, v. Charles C. SAVA, District Director, Immigration and Naturalization Service, New York District, and Kevin Doyle, Deputy Assistant District Director for Detention and Deportation, Immigration and Naturalization Service, New York District, Appellees. ocket 82-2368.
• Court: U.S. Court of Appeals — Second Circuit

Page 869

708 F.2d 869

YIU SING CHUN and Jee-Chiu Shan, Appellants, v. Charles C. SAVA, District Director, Immigration and Naturalization Service, New York District, and Kevin Doyle Deputy Assistant District Director for Detention and Deportation, Immigration and Naturalization Service, New York District, Appellees.

No. 912, Docket 82-2368.

United States Court of Appeals Second Circuit.

Argued Feb. 16, 1983.

Decided May 19, 1983.

Robert F. Belluscio, (Chu, Chung, & Chiu, New York City), for appellants.

Thomas B. Roberts, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellees.

Before OAKES and NEWMAN, Circuit Judges, and TENNEY, District Judge. ^*

OAKES, Circuit Judge:

This case presents the question whether aliens who are stowaways seeking political asylum are entitled to a hearing before an immigration judge after their applications for asylum have been denied by an Immigration and Naturalization Service (INS) District Director. After holding that the INS District Directors had not abused their discretion in denying Yiu Sing Chun and Jee-Chiu Shan, two young men from the People's Republic of China, asylum status under the Refugee Act of 1980, 8 U.S.C. Secs. 1158(a), ¹ 1101(a)(42)(A), ² the United States District Court for the Eastern District of New York, Joseph M. McLaughlin, Judge, 550 F.Supp. 90, held that they were not entitled to an exclusion hearing because they were stowaways and, as such, denied procedural rights by 8 U.S.C. Sec. 1323(d). ³ We reverse the second holding and remand to the agency for a hearing at which Chun and Shan will be entitled to renew their request for asylum.

BACKGROUND

The facts may be briefly stated. Yiu Sing Chun and Jee-Chiu Shan illegally left the People's Republic of China by swimming from Canton to Hong Kong and then stowed away on the "American Lark" bound for Oakland, California, and New York. When they were discovered after the vessel was underway, or as they state, when they presented themselves to the crew, they identified themselves as refugees seeking political asylum. The Captain placed them in detention and notified INS. When the ship arrived in California, each filed a Form I-589 applying for asylum. A Chinese-speaking employee of the shipping line, who neither was a lawyer nor spoke English well, helped Chun and Shan complete the forms. Chun's form indicated that he would face a jail sentence because of his illegal departure and that he had been "persecuted" at school after speaking out "against the working class condition during political class discussion, and compare [sic] them with the Western Free world"; it also noted that his father was a businessman, a social class "generally oppressed and sneered upon." Shan's I-589 claimed he could not tolerate the Communist society, and that having spoken out against the Communist system he had been sent "to the farms for hard labor"; and that since his grandparents were property owners, "we belong to a social class that is generally oppressed and sneered upon." The INS San Francisco District Director, in accordance with the asylum application regulations, ⁴ referred the applications to the Asylum Division, Bureau of Human Rights and Humanitarian Affairs, Department of State (BHRHA), which took the view that the applicants "had not established a well-founded fear of persecution within the meaning of the United Nations Protocol Relating to the Status of Refugees." The BHRHA gave the following reason for its conclusion The applicant has not been persecuted in the past in the People's Republic of China (PRC). PRC officials have adopted a rather permissive attitude toward emigration, legal and illegal. The typical penalty imposed for violations of Article 176, Section 6 of Chinese Criminal Law (illegal departure) is fifteen days detention. The maximum penalty, in serious cases, is one year which, in the unlikely event it were imposed, would constitute prosecution and not persecution.

The District Director denied the requests for asylum. His written decision of July 20, 1982, noted no allegations in the application form of prior persecution of the men or their families, and no credible testimony of a well-founded fear of persecution in the interviews by an immigration officer. ⁵ He concluded that neither Chun nor Shan qualified as a "refugee" under 8 U.S.C. Sec. 1101(a)(42)(A), note 2 supra, and found them statutorily ineligible for asylum. Further, because they did not apply for refugee status at the office of the American Consulate General in Hong Kong, he found them unworthy of a favorable exercise of the Attorney General's discretion.

While their applications were considered the petitioners were confined on the "American Lark," en route to New York by way of Panama and Savannah, Georgia, where Chun and Shan were served with the San Francisco District Director's decision. Two days after the New York arrival, with the assistance of counsel, both Chun and Shan filed new applications for asylum and supporting documents which are perhaps inconsistent in two or three particulars with the first application, but which elaborate extensively their reasons for leaving the People's Republic and what they fear would happen to them if they returned. ⁶ Petitioners were taken off the "American Lark" and placed in the Immigration Detention Facility in Brooklyn. INS forwarded the updated applications to the BHRHA for a second advisory opinion, but did not conduct a second interview. The State Department recommendation merely reiterated the recommendation made to the INS District Director in San Francisco. We note that the petitioners, contrary to applicable regulations, ⁷ apparently had no opportunity to rebut at a hearing the points made by the BHRHA. The District Director in New York, adopting the State Department's recommendation, denied the second applications for asylum without elaboration and ordered the petitioners excluded. Upon receipt of notice of the New York District Director's decision, Chun and Shan filed habeas corpus petitions challenging INS procedures in the adjudication of their asylum applications, as well as the INS denial of temporary parole status.

After Judge McLaughlin upheld the INS Director's discretionary denial of asylum and parole, Chun and Shan brought a contempt motion to require the INS to provide an exclusion hearing at which the men could renew their applications for asylum before a Special Inquiry Officer, to whom we shall refer as an immigration judge. 8 C.F.R. Sec. 1.1(1). Judge McLaughlin concluded that the jurisdiction of the immigration judge was statutorily circumscribed by 8 U.S.C. Sec. 1323(d)'s explicit denial of exclusion hearings to stowaways, and that the hearing requirement of the asylum regulations did not apply to stowaways. ⁸ We granted a stay of removal and repatriation to the People's Republic of China pending our decision in the appeal from both of Judge McLaughlin's orders.

DISCUSSION

The Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (1980), was a response to the urgent needs of those subject to persecution in their homelands. Id. Sec. 101(a). We have characterized the Act as "the end product of an evolutionary process in the law of asylum." Stevic v. Sava, 678 F.2d 401, 404 (2d Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 1249, 75 L.Ed.2d 479 (U.S.1983). In Stevic we traced the origins of the Refugee Act in pre-1968 asylum law, id. at 404-05, the United Nations Protocol Relating to the Status of Refugees, id. at 405-06, and asylum law from 1968 to 1980, id. at 406-07, and the Refugee Act of 1980 itself, id. at 407-08. So far as is pertinent we will assume familiarity with the Stevic opinion. ⁹ Of concern to us here is Congress's direction to the Attorney General to establish "a new uniform asylum procedure" that would be consistent with treaty obligations. H.Conf.Rep. No. 781, 96th Cong., 2d Sess. 20 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News. 160, 161. Thus, the Act required the Attorney General to "establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum." See supra note 1. The question before us is whether, under the statute and the Attorney General's regulations delineating "a procedure ... to apply for asylum," the petitioners, arriving at a port of entry as stowaways, are entitled to a hearing before an immigration judge on the issue whether they are refugees within the meaning of the Act, and therefore entitled to asylum. ¹⁰

The asylum procedure adopted by the Attorney General pursuant to the directive of the Refugee Act of 1980 is set forth in 8 C.F.R. Part 208. There are five steps in the asylum procedure: preparation and filing of the application for asylum, ¹¹ examination in person by an immigration officer or judge, ¹² an advisory opinion from BHRHA, ¹³ a written decision of the District Director, which may not be appealed, ¹⁴ and renewal of the denied asylum request before an immigration judge in exclusion or deportation proceedings. ¹⁵ With just the foregoing in mind it would be plain that because the refugee asylum procedure applies, in the words of the statute, "irrespective of such alien's status," and because the regulations promulgated by the Attorney General under the Act do not differentiate a stowaway from any other "applicant for admission," petitioners are to be "placed under exclusion proceedings" where they may renew their requests for asylum before an immigration judge.

But the Government argues that, unlike other excludable aliens under 8 U.S.C. Sec. 1182(a), stowaways are not entitled to procedures provided other excludable aliens. ¹⁶ The Government cites 8 U.S.C. Sec. 1323(d), which provides in part that "the provisions of section 1225 ... for detention of aliens for examination before special...