Opinion
Civ. No. 03-3064 (JNE/RLE).
January 4, 2005
ORDER
Charles Geach filed a petition for writ of habeas corpus against the above-named defendants (collectively, the Government) arguing that it was unconstitutional to preclude him from applying for a suspension of deportation in his exclusion proceeding. The case is before the Court on the Government's objections to a Report and Recommendation issued by the Honorable Raymond L. Erickson, United States Magistrate Judge, on July 2, 2003. For the reasons set forth below, the Court declines to adopt the recommendation that Geach's petition be granted.
Because proceedings in this case began prior to April 1, 1997, the removal proceeding provisions of the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. § 1229a(a)(3) (2000), do not apply. Instead, the transitional provisions of the IIRIRA apply to this petition, and the Court therefore applies the former provisions of the Immigration and Naturalization Act (INA) to the merits of this case. See 8 U.S.C. § 1101.
I. BACKGROUND
The facts and procedural history are more fully recited in the Report and Recommendation and are adopted herein. Briefly, Geach, a citizen of the United Kingdom, has two foreign convictions for possession of marijuana. He entered the United States on September 7, 1984, with a visitor's visa. On September 15, 1984, he married Elizabeth Dolan, a citizen of the United States. Geach and Dolan are still married and together have four children. After his marriage, Geach filed an Application to Adjust Status, seeking permanent residency. In 1985, 1986, and 1991, Geach traveled to the United Kingdom for short visits, and prior to each trip, he applied for "advance parole" before leaving the United States. See Assa'ad v. United States Attorney General, 332 F.3d 1321, 1326-27 (11th Cir. 2003) (explaining advance parole).
On November 24, 1992, the Immigration and Naturalization Service (INS), now known as the Department of Homeland Security, placed Geach in exclusion proceedings and charged him with being excludable under § 212(a)(2)(A)(i)(II) of the INA because he is an alien who has been convicted of a controlled substance violation. On March 24, 1994, an Immigration Judge (IJ) terminated the exclusion proceedings upon Geach's request that he be placed in deportation proceedings. The INS appealed that decision to the Board of Immigration Appeals (BIA), and the BIA concluded that Geach was indeed excludable and that he was not entitled to apply for a suspension of deportation. On December 6, 1999, the IJ held an exclusion hearing and ordered Geach excluded from the United States. Geach appealed that decision, and the BIA affirmed the IJ's decision on April 29, 2003. Later, Geach filed a petition for writ of habeas corpus in this Court, contending that he was deprived of due process and equal protection by being precluded from applying for a suspension of deportation in his exclusion proceeding.
II. DISCUSSION
A district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which an objection is made." See 28 U.S.C. § 636(b)(1). A court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
The Report and Recommendation recommends that Geach's petition for writ of habeas corpus be granted based on the conclusion that 8 C.F.R. § 245.2(a)(4)(ii) (1994), which provides that "[n]o alien granted advance parole and inspected upon return shall be entitled to a deportation hearing," is unconstitutional on equal protection grounds. The Government raises two substantive objections with respect this conclusion. In response, Geach argues that the Government's use of advance parole creates an injustice and unequal treatment among noncitizens without a rational basis.
The Report and Recommendation also concludes that Geach's arguments with respect to the due process clause, equitable estoppel, and notice are without merit. The Court agrees.
It is well-settled law, and not disputed by the parties, that aliens, as lawful residents of the United States, are persons entitled to protections under both the Fifth and Fourteenth Amendments. Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Although the Fifth Amendment does not contain the words equal protection, "the concept of equal justice under law is served by the Fifth Amendment's guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment." Id. The Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protections of the laws." See U.S. Const. amend. XIV.
Generally, the Equal Protection Clause requires the Government to treat similarly situated people alike. Klinger v. Dep't of Corr., 31 F.3d 727, 731 (8th Cir. 1994). It does not, however, require dissimilarly situated persons to be treated similarly. Barket, Levy Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237, 242 (8th Cir. 1994). In cases such as this that do not involve a suspect class, a court must review an equal protection challenge under a rational basis standard. Moreland v. U.S., 968 F.2d 655, 660 (8th Cr. 1992). Under that standard of review, Geach prevails if (1) persons who are similarly situated are treated differently by the Government, and (2) the Government fails to provide a rational basis for the dissimilar treatment. Id.
A. Equal Treatment
The Government objects to the Report and Recommendation's conclusion that Geach was treated differently than similarly situated aliens. Relying on Francis v. Immigration and Naturalization Serv., 532 F.2d 268 (2d Cir. 1976), the Report and Recommendation asserts that Geach would have been able to apply for a suspension of deportation "but for his travel abroad." Report and Recommendation at 31. Therefore, the Report and Recommendation concludes that "[a]s such, similarly situated aliens, who do not apply for advance parole, are treated differently than [Geach]." Id. at 32.
In Francis, the Second Circuit Court of Appeals recognized "the power of the Congress to create different standards of admission and deportation for different groups of aliens." Francis, 532 F.2d at 273. Nonetheless, the court found that the BIA had violated the Equal Protection Clause by permitting one group of aliens in deportation proceedings to apply for a waiver of deportation but precluding another group of aliens in deportation proceedings from making a similar application for the sole reason that those aliens had never left the United States. Id. at 272. Therefore, the focus of Francis concerned two groups of aliens in deportation proceedings that "were identical in every respect except for the fact that members of one class have departed and returned to this county at some point after they became deportable." Id.
In this case, Geach is in exclusion, not deportation, proceedings, and there is no assertion that the Government allowed one group of aliens in exclusion proceedings to apply for a suspension of deportation while at the same time preventing another group of aliens in exclusion proceedings from applying for suspension of deportation. Nonetheless, Geach asserts that the Government violated the Equal Protection Clause because it did not treat him as it treats other aliens who choose not travel abroad. Essentially, because the Government gave him "permission" to travel abroad pursuant to advance parole, Geach argues that he should have been placed in deportation proceedings and treated as aliens who do not travel abroad. Geach's reliance on Francis, however, is misplaced because he is not comparing himself to other excludable aliens.
The distinction between excludable and deportable aliens arises from the law in place prior to IIRIRA, and it depends on whether the alien has made successful entry into the United States. See Sale v. Haitian Ctr. Council, 509 U.S. 155, 174-76 (1993). An excludable alien is an alien at the border who seeks entry into the United States. See Landon v. Plasencia, 459 U.S. 21, 25-26 (1982). A deportable alien is one who is in the United States past the point of entry and who is physically present in the county. Id. The law affords more rights and privileges to deportable aliens than it does to excludable aliens. See Leng May Ma v. Barber, 357 U.S. 185, 187 (1958). Excludable aliens may be paroled into the United States pending completion of exclusion proceedings. Id. at 188-90. However, parole does not constitute admission into the United States, and it does not alter the status of excludable aliens. Id. Instead, the law considers paroled excludable aliens to have been detained at the border, having never effected entry into the United States. See, e.g., Gisbert v. United States Attorney General, 988 F.2d 1437, 1440 (5th Cir. 1993).
Geach fails to acknowledge the distinction between excludable and deportable aliens, and he fails to explain how similarly situated excludable aliens were treated differently than he. Instead, he asks the Court to ignore the fact that he voluntarily traveled to the United Kingdom and voluntarily applied for advance parole. Geach benefited from advance parole by gaining easy readmission into the United States and by having his application to adjust status continued. See Dimenski v. Immigration and Naturalization Serv., 275 F.3d 574, 578 (7th Cir. 2001) (listing benefits of advance parole and stating that the Constitution does not require the Government to give legal advice about the consequences of using advance parole). These key distinctions render Francis inapposite. Without more, the Court finds that Geach was not treated differently than similarly situated excludable aliens.
B. Rational Basis
Next, assuming arguendo that Geach was treated differently than similarly situated excludable aliens, the Court addresses the Government's second objection. The Government objects to the Report and Recommendation's conclusion that 8 C.F.R. § 245.2(a)(4)(ii) requires, without rational basis, aliens who apply for advance parole to subject themselves to exclusion proceedings. Report and Recommendation at 32-35. The Government argues that 8 C.F.R. § 245.2(a)(4)(ii) is part of a regulatory scheme that is rationally related to the Government's legitimate interest in controlling entry at the its borders. In response, Geach argues that there is no rational basis for 8 C.F.R. § 245.2(a)(4)(ii) because it provides non-citizens who enter the United States illegally greater protections that those non-citizens who enter legally.
As the court in Francis acknowledged, "[t]he authority of Congress and the executive branch to regulate the admission and retention of aliens is virtually unrestricted." Francis, 532 F.2d at 273. In this case, Congress promulgated rules to deal with aliens in different manners based on their status of entry into the United States. The Court concludes that these rules are rationally related to the efficient administration of immigration matters at the United States' borders. See, e.g., Plasencia, 459 U.S. at 34-35 (discussing Congress' interest in administration of immigration laws).
III. CONCLUSION
Based on a de novo review of the record and for the reasons stated above, the Court finds Geach's argument that 8 C.F.R. § 245.2(a)(4)(ii) is unconstitutional on equal protection grounds to be without merit. Accordingly, the Court adopts the July 2, 2004 Report and Recommendation [Docket No. 34] with respect to its conclusions concerning due process, equitable estoppel, and notice. The Court declines to adopt the July 2, 2004 Report and Recommendation with respect to its conclusion that 8 C.F.R. § 245.2(a)(4)(ii) is unconstitutional or that Geach's petition should be granted. Therefore, IT IS ORDRED THAT:
1. Geach's Petition for Writ of Habeas Corpus [Docket No. 1] is DENIED.
2. This case is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.