Yiu Sing Chun v. Sava, 82 CIV 2775.

• Decision Date: 25 October 1982
• Docket Number: No. 82 CIV 2775.,82 CIV 2775.
• Citation: 550 F. Supp. 90
• Parties: YIU SING CHUN and Jee-Chiu Shan, Petitioners, v. Charles C. SAVA, District Director, Immigration and Naturalization Service New York District, and Kevin Doyle, Deputy Assistant Director for Detention and Deportation, Immigration and Naturalization Service, New York District, Respondents.
• Court: U.S. District Court — Eastern District of New York

550 F. Supp. 90

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

No. 82 CIV 2775.

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

October 25, 1982.

Chu, Chung & Chiu, New York City (Robert J. Belluscio, New York City, of counsel), for petitioners.

Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y. (Thomas B. Roberts, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for respondents.

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1976). The petition was filed on behalf of two Chinese nationals who have been denied political asylum in this country. Petitioners are currently detained at the United States Immigration Detention Facility in Brooklyn, New York pending arrangements by Respondent for their deportation.

Petitioners challenge the legality of their detention on the ground that the District Director's decision to deny political asylum was "arbitrary, capricious, and an abuse of discretion." Petition Para. 3. They also allege that Respondent's decision to deny them parole pending resolution of their asylum applications was an abuse of discretion.

Jurisdiction is invoked under 28 U.S.C. § 2241 (1976). Respondent argues that this Court lacks authority to entertain the petition because of jurisdictional limitations inherent in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. Resolution of the jurisdictional issue, however, requires an understanding of the factual background accompanying these petitions.

FACTS

In May, 1982 Petitioners emigrated illegally from the People's Republic of China ("PRC") to Hong Kong. On June 28, 1982 Petitioners stowed away aboard the S.S. American Lark without the knowledge of its Captain and without documentation permitting them to enter the United States. Several hours out of Hong Kong, the crew of the American Lark discovered Petitioners, who identified themselves as "Chinese refugees" seeking asylum in the United States. They were placed in custody aboard the ship and the United States Immigration and Naturalization Service ("INS") was notified.

When the American Lark made port in Oakland, California on July 14, 1982, Petitioners formally applied to the San Francisco District Director of the INS for political asylum. Because neither Petitioner speaks English, each was assisted in the completion of his application (INS Form I-589: "Request For Asylum In the United States") by a Chinese-speaking employee of U.S. Lines, the owner of the American Lark. Petitioners' Form I-589's indicate that they were subsequently interviewed by an INS officer with the help of an interpreter. The INS ordered them to remain in detention aboard ship pending review of their applications by the District Director.

Before their applications could be decided, the American Lark departed Oakland, bound for New York via the Panama Canal. En route, the ship called at ports in California, Panama, and Georgia where, on July 30, 1982, Petitioners were served with the decision of the San Francisco District Director denying their applications for asylum.

A few days later, the ship arrived in New York. Petitioners, with the assistance of counsel, completed new Form I-589's and submitted them to the New York District Director of the INS for reconsideration. Pending review of their applications, Petitioners were removed from the ship and detained at the Immigration Detention Facility in Brooklyn. The New York District Director ultimately denied Petitioners' applications for asylum on September 17, 1982. This petition for habeas corpus followed. The United States Attorney has agreed to stay deportation proceedings pending this Court's review of the petition for a writ of habeas corpus.

JURISDICTION

Under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., aliens who are categorized as "stowaways" are afforded only limited substantive protections. Although Petitioners argue that they should not be viewed as stowaways, I find their argument unpersuasive given the circumstances of their passage to this country.

The papers before the Court indicate that Petitioners concealed themselves aboard the S.S. American Lark in order to obtain passage to the United States without the knowledge or permission of the ship's Captain and without passports, travel documents, or immigration visas. See In re Krajcirovic, 87 F.Supp. 379 (D.Mass.1949). There is no indication that Petitioners anticipated paying for their passage. As soon as their presence aboard ship was discovered, Petitioners were placed in detention for the duration of the voyage. Their assertion that they were refugees seeking political asylum does not affect their classification as stowaways.

Although I accept the Government's characterization of the Petitioners as stowaways, I do not agree with the Government's conclusion that this Court lacks subject matter jurisdiction to review habeas corpus petitions submitted by stowaways seeking political asylum pursuant to the Refugee Act of 1980, 8 U.S.C. § 1158(a).

The Government points out that 8 U.S.C. § 1323(d) effectively denies stowaways the right to exclusion hearings (and appeals therefrom) that are normally afforded to other classes of aliens under 8 U.S.C. §§ 1225 and 1226. The Government argues that because stowaways are not entitled to § 1226 exclusion hearings, they are, therefore, precluded from seeking habeas corpus under 8 U.S.C. § 1105a(b). This simply does not follow. At least one circuit, after analyzing the legislative history of the pertinent subsections, has rejected this argument in a political asylum case. In Garcia v. Smith, 674 F.2d 838, aff'd on panel rehearing, 680 F.2d 1327 (11th Cir.1982), the Court noted that:

Even though 8 U.S.C.A. § 1323(d) may indicate that exclusion of stowaways is not pursuant to Section 1226, the clear intent of Congress in passing Section 1105a(b) was to make petitions for habeas corpus the sole procedure for testing all decisions to exclude aliens, including those who are stowaways.

674 F.2d 838, 840 n. 1, citing H.Rep. No. 1086, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Ad.News 2950, 2974-77.

It is noteworthy that Petitioners do not seek judicial review of a § 1226 exclusion order. There is no such order. Rather, their habeas corpus petitions seek review of the New York District Director's denial of political asylum under the Refugee Act of 1980, 8 U.S.C. § 1158(a) and federal regulations promulgated thereunder. Nothing in § 1158(a) suggests that the asylum applications of stowaways are to be treated differently from applications of other categories of aliens. On the contrary, that subsection directs the Attorney General to "establish a procedure ... irrespective of such alien's status, to apply for asylum...." 8 U.S.C. § 1158(a) (emphasis added).

The argument that § 1323(d) deprives the Court of subject matter jurisdiction in the instant case confuses the admittedly limited nature of a stowaway's substantive rights with the jurisdiction of the district courts to vindicate those substantive rights, however limited they are. See Garcia, supra, 674 F.2d at 840. Accordingly, I find that Petitioners' applications for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 are appropriate methods of challenging alleged procedural infirmities in the District Director's denial of Petitioners' applications for political asylum.

REVIEW OF THE DISTRICT DIRECTOR'S DECISIONS

Whether to grant political asylum lies within the discretion of the Attorney General. Under 8 U.S.C. § 1158(a), "the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of Section 1101(a)(42)(A) of this title." The latter Section defines "refugee" as any person who:

is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of the country of such person's nationality because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A).

The Attorney General's authority in political asylum matters is, in turn, delegated to the various district directors of the INS pursuant to 8 C.F.R. 208.1. Under the pertinent federal regulations, "the district director may approve or deny the asylum application in the exercise of discretion," 8 C.F.R. 208.8(a), and "no appeal shall lie from the decision of the district director." 8 C.F.R. 208.8(c). In addition, "the district director shall deny a request for asylum ... if it is determined that the alien: (i) is not a refugee within the meaning of Section 101(a)(42) of the Act ...." 8 C.F.R. 208.8(f)(1)(i).

In the instant case, both the San Francisco District Director and the New York District Director determined that Petitioners were not "refugees" because Petitioners had not demonstrated a "well-founded fear of persecution on account of ... membership in a particular social group, or political opinion," should they be returned to the P.R.C. 8 C.F.R. 208.5. The sole question remaining for this Court is whether such a determination was an abuse of discretion by the District Directors. I hold that it was not.

In Bertrand v. Sava, 684 F.2d 204 (2d Cir.1982), the court admonished against the substitution by a district court of its own judgment for that of the District Director:

As long as the Attorney General exercises his broad discretion ... his decision may not be challenged on the grounds that the discretion was not exercised fairly in the view of a reviewing court or that it gave too much weight to certain factors ... and too little to

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