had previously been paroled. 941 F.2d at 963. In addition, Mason adopted the "facially legitimate" standard after discussing the reasoning for application of such a standard. 862 F.2d at 193-194. Alvarez-Mendez merely assumed application of the "abuse of discretion" standard without discussion. 941 F.2d at 963.
The above considerations suggest that the "facially legitimate" standard is the more appropriate standard of review. Nevertheless, in this case, each party claims that he should prevail under the standard least favorable to his position. The Court will assume arguendo that the higher "abuse of discretion" standard applies.
Petitioner argues that respondent abused his discretion in denying petitioner's request for parole. Petitioner's written request for parole asserted that it is not in the public interest to continue to detain petitioner at public expense. In denying parole, respondent stated: "I have found no facts demonstrating any emergent cause or circumstance to qualify [petitioner] for parole under 8 CFR 212.5(a)." See Administrative Record at 23.
Petitioner argues that respondent's decision lacks legitimacy because is fails to address the delay in bringing petitioner before an immigration judge. Petitioner argues that the failure to provide a hearing with reasonable dispatch constitutes an "emergent cause or circumstance" qualifying him for parole.
Respondent argues that he properly denied the parole requests because petitioner arrived without documents (8 C.F.R. § 235.3(b)) and petitioner did not state any facts which would justify paroling petitioner for emergent or humanitarian reasons strictly in the public interest.
Petitioner may have legitimate complaints about the delay in bringing him before the Immigration Court for a determination of his exclusion status in the United States. Nevertheless, the administrative record shows that subsequent to the filing of this petition, exclusion proceedings against petitioner have commenced and petitioner has appeared before the Immigration Court. Furthermore, the delay in this case was not so great as to rise to the level of an emergent reason strictly in the public interest requiring parole. Petitioner appeared before the Immigration Court within two months of his arrival in the United States. Within that two month period, petitioner requested a change of venue to San Francisco, which undoubtedly contributed to the delay in scheduling a hearing.
Other than the delay discussed above, petitioner contends no other reasons why parole was erroneously denied. There are no emergent reasons or reasons strictly within the public interest which suggest that parole should be granted. Accordingly, respondent's decision not to parole petitioner does not not constitute an abuse of discretion
For the foregoing reasons, the Court ORDERS as follows:
1. Petitioner Lakhbir Singh's petition for writ of habeas corpus is DISMISSED as moot.
2. Petitioner Deepak Kumar's petition for writ of habeas corpus is DENIED.
IT IS SO ORDERED.
DATED: January 2, 1992.
D. Lowell Jensen
United States District Judge