AMANULLAH AND WAHIDULLAH, Petitioners, Appellees, v. Charles T. COBB, etc., Respondent, Appellant.
No. 87-1695.
United States Court of Appeals, First Circuit.
Heard Feb. 1, 1988. Decided Nov. 22, 1988.
862 F.2d 362
Arthur C. Helton, Lawyers Committee for Human Rights, New York City, with whom Regina Lee, Legal Services Center, was on brief, for petitioners, appellees.
Before COFFIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and PETTINE,* Senior District Judge.
PETTINE, Senior District Judge.
The issue presented on appeal is whether and to what extent the Attorney General has discretion to deport excludable aliens under
* Of the District of Rhode Island, sitting by designation.
Facts1
Appellees are Afghan refugees. In 1983, appellees fled from Afghanistan to New Delhi, India, after they were imprisoned by the Afghan authorities for participating in anti-government demonstrations. Joint Appendix, 139.
In the fall of 1985, appellees were assisted by a “travel agent” with arrangements for them to travel to Canada, where they hoped to be granted political asylum. On November 22, 1985, they departed from the airport in Bombay, India.2 When the plane from Bombay made a stopover in New York en route to Toronto, appellees were detained by the Immigration and Naturalization Service [hereinafter INS] because of the lack of valid travel documents. Appellees were detained initially at the Service Processing Center in New York City and, apparently because of space limitations, they were then transferred to the INS detention facility in Boston. Id. at 139-40.
On December 20, 1985, appellees filed applications before an immigration judge in joint exclusion proceedings for political asylum in the United States under
On September 22, 1986, appellees appealed the immigration judge‘s denial of asylum and withholding to the Board of Immigration Appeals. Id. at 140. In a prior habeas proceeding on unrelated grounds brought by appellees, appellant represented to this court that the government will not return appellees to Afghanistan. Appellant reaffirmed this position in a March 9, 1987 letter to appellees’ counsel. Id. at 140, 149. In reliance upon appellant‘s representation that they would not be returned to Afghanistan, and hoping to gain release, appellees withdrew their appeals to the Board of Immigration Appeals on March 30, 1987, thus rendering administratively final the immigration judge‘s order of exclusion and immediate deportation under
On April 30, 1987, appellant informed appellees’ counsel that a request for “travel facilities” for appellees had been made by the INS to the State Department on April 17, 1987, pursuant to a 1983 INS guideline providing for release on immigration parole in cases where there exist difficulties in enforcing departure to third countries for aliens who are under final orders of exclusion. Id. at 60. However, appellees’ counsel was informed that appellees would be deported to India.
Shortly thereafter, in May 1987, appellant was warned by the United Nations High Commissioner for Refugees [hereinafter UNHCR] that the Indian government would not allow the appellees’ return.3 Id. at 64, 140, 151. According to the UNHCR, Afghan refugees who are returned without advance assurance of the Indian government‘s willingness to accept them are at risk of refoulement to Afghanistan. Id. at 140, 151. In a prior letter to appellees’ counsel dated November 26, 1985, the Commissioner had written:
[It] is unclear whether U.S. authorities are required to ascertain in advance the Indian government‘s willingness to
reaccept a particular refugee before he is, in fact, returned. In the light of what has occurred in the past, UNHCR New Delhi believes this to be essential if the risk of refoulement is to be avoided. Id. at 152-53.
On May 5, 1987, appellees requested appellant to stay their deportation until such time as the INS could obtain advance assurances that the government of India would consent to their admission, and that appellees would not be returned by India to Afghanistan. Id. at 64, 141. Appellees’ request for a stay of deportation was denied on May 11, 1987 by appellant, id. at 141, who at that time planned to return appellees on May 12, 1987 by sending them unescorted on an air carrier to India. Id. at 66. Appellant had not obtained advance assurance of the Indian government‘s willingness to accept appellees.
On May 11, 1987, appellees filed a petition for writ of habeas corpus and a motion for a temporary restraining order. On the same day, the District Court enjoined appellant from deporting appellees to India until appellant obtained prior assurance that India will accept appellees and will not return them to Afghanistan.
Appellees received a letter from UNHCR dated May 13, 1987, informing them that UNHCR had received a second cable from its office in India which reiterated its concern about the possibility of refoulement to Afghanistan. The letter further stated that its office in India had “cited previous cases and noted that UNHCR‘s involvement in the case was unlikely to influence how the case is handled.” Id. at 92.
On May 20, 1987, appellant filed a motion to dismiss the petition for writ of habeas corpus and request for injunctive relief, and a supporting memorandum of law. A.93-132. The District Court heard appellees’ and appellant‘s arguments at a hearing on May 21, 1987 and issued its decision on May 28, 1987. Id. at 138-155. The District Court held that advance assurance of acceptance is required under
We note one further fact not available to the District Court. In a letter dated May 18, 1987, appellant informed Mr. M. Iyer, a Counselor at the Embassy of India in Washington, D.C., of its intention to deport “Wahid Ullah” [sic] and “Aman Ullah” [sic] to India and requested that Mr. Iyer relay this information to his home office in India. Id. at 203. When appellant received no response to this letter from the Indian Embassy, appellant sent another letter to Mr. Iyer, dated July 10, 1987, making reference to the May 18, 1987 letter and again requesting that he relay its portents to his government. In a letter, dated July 23, 1987, to Assistant INS Commissioner Joan C. Higgins, which, having been received after the District Court‘s decision, is not a part of the formal record, N. Kubendran, Second Secretary in the Indian Embassy, Washington, D.C., stated that “[s]ince the above two AFGHAN nationals [Amanullah and Wahidullah] left India on their own volition, Government of India will not be in a position to accept them. We would also like to clarify that Government of India do [sic] not accept the theory of the so called ‘country of first refuge obligation.‘” Appellees’ Brief, Addendum, A-8.
Excludability Under § 1227(a)
Neither Amanullah nor Wahidullah contests their status as excludable aliens under
Section 1227(a) regulates the determination of the location to which the excludable alien may be deported. This subdivision has two parts. Section 1227(a)(1) instructs the Attorney General in relevant part that “[d]eportation shall be to the country in which the alien boarded the vessel or aircraft on which he arrived in the United
The Application of § 1227(a)4
Under
In effect, section 1227(a)(2) limits the permissible deportation of aliens to a country that is willing to accept them. Accordingly, the question arises whether under this provision the Attorney General must receive written verification of a country‘s willingness to accept the excludable alien. The lower court answered this question affirmatively; I agree.
Under a parallel provision for the deportation of deportable aliens,
Given that Congress intended to establish a common procedure for both excludable and deportable aliens, Congress’ requirement of willing acceptance by the country designated in
Congress could not have intended to permit the United States government to engage in the practice of placing refugees in orbit: in flight from country to country, none willing to accept them. As Judge Learned Hand observed in United States ex. rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir.1959), “it would be to the last degree cumbersome and oppressive to shuttle an alien back and forth on the chance of his acceptance, when it was possible to ascer-
Since the lower court‘s opinion, the Indian government has directly addressed the case of Amanullah and Wahidullah. In a letter concerning petitioners to the Department of Justice, the Indian government stated expressly that it did not accept the theory of the so-called “country of first refuge obligation” and that the Indian government will not readmit petitioners if the United States attempts to send them back. See Brief for Appellees, A-8. Because the Indian government has not given the requisite assurance, but instead has expressly written that it will not accept petitioners, Amanullah and Wahidullah must be sent to another country that meets one of the conditions stated in §§ 1227(a)(2)(A), (B), (C) or (D).5 Accordingly, under
Regarding
Section 1253(h), “provide[s] for withholding deportation of aliens to countries where they would face persecution, unless their deportation would be permitted under the U.N. Convention and Protocol Relating to the Status of Refugees ... [or] unless any of four specific conditions [previously set forth] were met.” H.R.Conf.Rep. No. 781, 96th Cong., 2d Sess. 20 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 141, 160, 161. Moreover, as the Senate Report accompanying the Refugee Act of 1980 makes clear, this restriction imposed by § 1253(h) is meant to apply to “the deportation of aliens who seek asylum in exclusion, as well as deportation, proceedings.” S.Rep. No. 256, 96th Cong., 2d Sess. 17 (1979), reprinted in 1980 U.S.Code Cong. & Admin.News 141, 157.
As the Supreme Court notes in I.N.S. v. Stevic, 467 U.S. 407 (1984), “the text of the statute simply does not specify how great a possibility of persecution must exist to qualify the alien for withholding of deportation.” Stevic, 467 U.S. at 421-22. Nonetheless, the Court continues, “[t]o the extent such a standard can be inferred from the bare language of the provision, it appears that a likelihood of persecution is required.” Id. at 422. Thus, as held by the Supreme Court, “[t]he question under that standard is whether it is more likely than not that the alien would be subject to persecution.” Id. at 424.
Because § 1253(h) obviously applies to prevent the Attorney General from deporting petitioners to Afghanistan, neither can the petitioners be deported under
The Application of § 1253(h)
Although the above discussion of § 1227(a) represents only the writer‘s view, the majority of this panel holds that, on the record in this case, the government‘s assurance that it would not deport appellees to Afghanistan effectively prevents their deportation to India pending reinstatement and final disposition of their appeal from an adverse ruling of the immigration judge. As previously observed, the discretion of the Attorney General under
The refoulement of a political refugee to a country from which he has escaped and to which he does not desire to return because of the danger it poses, is beyond doubt an interference with his life and liberty. We note, first, that if the Indian government sent petitioners back to Afghanistan that this would constitute an interference with petitioners’ life and liberty at the very least on account of their nationality and that, therefore, the threat of such interference is a threat within the meaning of
Given that
Conclusion
Under the unique circumstances we conclude that, with the cooperation of the United States, we can bring about an equitable result by retaining jurisdiction subject to the following conditions. If, within
No costs.
COFFIN, Circuit Judge, concurring.
I join in the affirmance of the judgment below, essentially for the reasons expressed in Judge Pettine‘s opinion at pages 367-368.
It is a very difficult question whether and when prior notice is required under
But it is not merely a confusing statute that bedevils us. We are also confronted by confusion on the facts, insofar as we do not know precisely how
None of these options seem particularly appealing or practicable, and the second is plainly unacceptable. The record does not indicate which of these procedures is commonly employed or guaranteed. It is clear that if the alien is unaccompanied on his flight to the foreign country, there is no assurance that he will not be shunted off to another country, rather than accepted in the first country or returned to the United States for implementation of the alternatives listed in
We do not, however, need to resolve this conundrum in the present case where the record is so barren. Given what we know about India‘s posture toward these aliens, I believe that
BAILEY ALDRICH, Senior Circuit Judge, concurring.
Although, for special factual reasons, I concur in the result, I disagree so vigorously with Judge Pettine‘s analysis, partially accepted by Judge Coffin, and the matter being of broad importance, I wish to record my thinking. Judge Pettine would, seemingly, impose upon the Attorney General the same precondition for rejecting an excludable alien as he must meet in order to deport one previously admitted. This, I believe, disregards both the substantive difference, and interests, between refusing admission to an illegal alien, and expelling one that is already here, and, what Judge Coffin refers to as a “detail,” the fact that there are separate statutes, differently worded. That an alien, once here, should be afforded certain rights before expulsion makes a great deal of sense. That the Attorney General should be obliged to confer these same rights on one whose sole claim is that he has succeeded in presenting himself at the border, uninvited, and with no basis for entry, seems much less desirable, or needed. Rather than noting the substantive difference between the two types of aliens, and their circumstances, as well as the normal implication of differing statutory provisions, Judge Pettine seems at pains to achieve identical results. I think this a serious mistake.
Prior to the 1981 amendment to the exclusion statute,
The return of aliens who seek and who are denied admission into the United States is governed by the exclusion provisions, whereas the deportation of aliens who have already gained admission, whether legally or illegally, is governed by the expulsion provisions of the act....
The very fact that Congress spelled out in section 243(a) [
8 U.S.C. § 1253(a) ] the requirement of consent by the receiving country negates any contention that such requirement be read into section 237(a) [8 U.S.C. § 1227(a) ] as a condition of exclusion.
United States ex rel. Tom We Shung, 176 F.Supp. 253, 256, 259 (S.D.N.Y.1959), aff‘d on opinion below, 274 F.2d 667 (2d Cir.1960). At that time
(a) Any alien (other than an alien crewman) arriving in the United States who is excluded under this chapter, shall be immediately deported to the country whence he came, in accommodations of the same class in which he arrived, on the vessel or aircraft bringing him, unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper. The cost of the maintenance including detention expenses and expenses incident to detention of any such alien while he is being detained, as well as the transportation expense of his deportation from the United States, shall be borne by the owner or owners of the vessel or aircraft on which he arrived, except.... [special exceptions omitted.]
The court now holds that a 1981 addition abolished this found distinction from
The 1981 enactment amended, in matters not presently material, the paragraph previously quoted. It added a further paragraph.
(2) If the government of the country designated in paragraph (1) will not accept the alien into its territory, the alien‘s deportation shall be directed by the Attorney General, in his discretion and without necessarily giving any priority or preference because of their order as herein set forth, either to—
(A) the country of which the alien is a subject, citizen, or national;
(B) the country in which he was born;
(C) the country in which he has a residence; or
(D) any country which is willing to accept the alien into its territory, if deportation to any of the foregoing countries is impracticable, inadvisable, or impossible.
According to the legislative history, this addition was to permit the Attorney General “flexibility” as to what countries the alien could be directed.1 Judge Pettine takes as a “given” that “Congress intended to establish a common procedure for both excludable and deportable aliens.” That this is apparent in particular, obvious, respects does not mean it is true across the board. The effect of Judge Pettine‘s conclusion is that making the Attorney General‘s options more “flexible” has made them more onerous. Section 1227(a)(1) still fails to contain the
inquiry of the targeted country. Here, precisely, is the nub. “Immediately” recognizes the comparative urgency when an alien, seeking admission, is in limbo. The already present alien can remain in status quo, but who is to house the one waiting at the gate while the Attorney General goes through diplomatic channels? Does the court‘s finding a “common procedure” mean that the phrase “shall be immediately deported” is to be read out of section 1227(a)(1)? Certainly, it cannot mean that it is to be imported into
It may be thought that we are talking about a very small matter. It is not to be gainsaid that if the excluded alien is refused entry on his return, the Attorney General has him on his hands; re-entry cannot be compelled. Judge Pettine quotes characteristic language by Judge Learned Hand in Tom Man that “it would be to the last degree cumbersome and oppressive to shuttle an alien back and forth on the chance of his acceptance, when it was possible to ascertain the truth in advance by inquiry,” 264 F.2d ante, at 928, but he was speaking in respect to expulsion,
I may wonder, incidentally, whether the delay that would result from the court‘s “common procedure” of diplomatic negotiations might not induce inadmissible aliens to “go for the ride,” if only to enjoy the stay away from home during the diplomatic procedure. If so, it would be a further objection to watering down the statute‘s requirement for immediate deportment.
In sum, I do not find in the legislative history, or in the very differing circumstances and interests, the intent or the need for the radical change to identical treatment, and, with respect, I see neither reason nor excuse for brushing aside explicit statutory differences as a “detail.” This is not to say, however, that what seems clear to the government may not have the same clarity to reasonable judges. The government should take this case to heart.
I accept the court‘s result because the government obtained petitioner‘s abandonment of their appeal in a prior proceeding upon an agreement that it would not return them to Afghanistan. It now appears, through representations of the government of India and the UNHCR2, that return of petitioners to India would present a serious risk of their return to Afghanistan. The government appears to dispute that these representations are an accurate portrayal of the actual practice of the government of India, but does not dispute their authenticity, nor offer reliable indicia to the contrary. The government should not be permitted to renege, and a ruling in its favor would incur the unnecessary risk of precisely that effect. It is not necessary to demolish a fly with a hammer, however, particularly with what I must believe to be a very wrong blow.
BAILEY ALDRICH
SENIOR CIRCUIT JUDGE