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DIAZ v. SCHILTGEN

April 11, 1996

NELSON OMAR DIAZ, Petitioner,
v.
THOMAS J. SCHILTGEN, Respondent.



The opinion of the court was delivered by: SMITH

 Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking review of the Immigration and Naturalization Service ("INS") District Director's denial of petitioner's request for parole. Petitioner seeks parole pending his appeal before the Board of Immigration Appeals ("BIA") from the Immigration Judge's ("IJ") denial of his request for asylum. The issue before the Court is whether the District Director had facially legitimate and bona fide reasons for the denial of petitioner's request for parole.

 Background

 Petitioner is a native and citizen of El Salvador. He has resided in the United States since 1983, when he apparently entered the country illegally. He is married to a permanent lawful United States resident and has two children who are United States citizens.

 On January 15, 1992, petitioner was granted Temporary Protected Status pursuant to 8 U.S.C. § 1254(a), which was later changed to Deferred Enforced Departure to allow him to remain in the country. On March 16, 1993, petitioner requested that the INS place him in deportation proceedings so that he could apply for suspension of deportation. On July 30, 1993, the INS issued an Order to Show Cause to the petitioner with respect to his deportation, and on May 2, 1994, petitioner filed an application for suspension of deportation.

 In July 1994, prior to the adjudication of petitioner's application for suspension of deportation, petitioner applied for advance parole for the purpose of returning to El Salvador to visit his ill mother. The INS requested that the petitioner provide additional information, which petitioner was unable to obtain. Petitioner nevertheless went to El Salvador to visit his mother, who died the day he arrived.

 On August 11, 1994, after petitioner was unable to secure permission to return to the United States, he attempted to re-enter the United States at the San Francisco International Airport ("SFO") by presenting a false passport. Petitioner was detained pursuant to 8 U.S.C. § 1225(b); he was placed into custody and exclusion proceedings. Petitioner remains in detention to date, and he is currently detained in the Santa Rita jail in Dublin, California. The length of his detention now exceeds twenty months.

 Shortly after petitioner's arrival at SFO, the INS served him with a Form I-122, which alleged that he was excludable pursuant to 8 U.S.C. §§ 1182(a)(6)(C) and 1182(a)(7)(A)(i)(I) (attempted entry with false or insufficient documentation). Petitioner timely filed with the INS a filed a Request for Asylum in the United States.

 On January 31, 1995, petitioner appeared before the IJ for an asylum hearing. The IJ orally denied petitioner's asylum application. Petitioner appealed the IJ's decision; this appeal remains pending before the BIA.

 On March 2, 1995, petitioner made a written application to respondent for parole, as provided by 8 U.S.C. § 1182(d)(5) and 8 C.F.R. § 212.5. After several months, respondent denied petitioner's parole application in June 22, 1995. In the denial letter, respondent stated that petitioner failed to meet his burden of showing that his parole would be strictly in the public interest. The District Director also stated that the denial was made as a matter of his discretion, which was exercised on the grounds that petitioner (1) attempted entry into the United States by fraud; (2) lacked close family relatives who could file a visa petition on his behalf; (3) was not a juvenile; and (4) did not have any emergent medical problems. Respondent also noted in that letter that the "public . . . has a strong interest in discouraging abuse of our immigration laws. . . . It is not in the public interest to permit facile circumvention of the procedures governing lawful immigration into this country."

 On November 27, 1995, the INS granted petitioner's wife, Maria Diaz, suspension of deportation. Ms. Diaz filed a Petition for Alien Relative on January 2, 1996 on petitioner's behalf; this petition remains pending. If the petition is granted, it will result in petitioner being admitted to the United States.

 Based on this change of circumstances and the continued delay of his BIA appeal, on January 18, 1996 petitioner filed a renewed request for parole. The District Director denied petitioner's request by letter on February 12, 1996, finding again that petitioner had failed to meet his burden of showing that his parole would be strictly in the public interest. The letter is substantially identical to the first denial letter, except for the reference to the absence of close family members who could file a visa petition on petitioner's behalf, which was changed to read: "Although [petitioner] now can benefit by a visa petition filed on his behalf by a close family member, he still could not warrant an early priority date on his petition to receive benefit at this time."

 By this habeas petition, petitioner seeks judicial review of this final parole denial. Petitioner has exhausted ...


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