The opinion of the court was delivered by: LACEY
At the outset, I shall address defendant's claim that judicial review of the challenged agency determination cannot be had in this court because plaintiffs seek review of proceedings that are part and parcel of the deportation hearing authorized by Section 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252 (1970), judicial review of which is exclusively vested in the Court of Appeals, 8 U.S.C. § 1105a (1970); Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964); Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963). I conclude that this court can consider the issues raised by the parties in that the proceedings herein are ancillary to the statutory deportation hearing and therefore may be reviewed by this court. See 8 U.S.C. § 1329 (1970); Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968); Ming v. Marks, 367 F. Supp. 673 (S.D.N.Y.1973); Kan Kam Lin v. Rinaldi, 361 F. Supp. 177 (D.N.J.1973), aff'd, 493 F.2d 1229 (3d Cir.), cert. denied, 419 U.S. 874, 95 S. Ct. 136, 42 L. Ed. 2d 113 (1974); Buckley v. Gibney, 332 F. Supp. 790 (S.D.N.Y.), aff'd, 449 F.2d 1305 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S. Ct. 946, 30 L. Ed. 2d 789 (1972); Cheng Ho Mui v. Rinaldi, 262 F. Supp. 258 (D.N.J.1966), aff'd, 408 F.2d 28 (3d Cir.), cert. denied, 395 U.S. 963, 89 S. Ct. 2101, 23 L. Ed. 2d 748 (1969).
Both plaintiffs departed from China in 1961 (Pffs' Memorandum, 1), allegedly because of communist persecution, going first to Hong Kong and thereafter to the United States. Cplt., para. 7; Coven Affidavit, para. 9. Plaintiffs are or were seamen and had been issued a Hong Kong Seaman's Identity Book, permitting them at will to enter, leave or stay in Hong Kong. Friess Affidavit, paras. 4(viii) and 5(vii).
Lai On Cheng surreptitiously entered the United States in 1970 from Canada, and therefore illegally. 8 U.S.C. § 1251(a)(2) (1970). Yan Wo Cheng was permitted to enter the United States in December 1971 at Los Angeles, California, as a non-immigrant crewman, while his ship was in port, for a period not to exceed 29 days. 8 U.S.C. § 1282 (1970). After entry he left his ship, and remained in the United States beyond the authorized period. Thus his presence here became illegal in January 1972.
Deportation proceedings were commenced against both plaintiffs on February 16, 1973, culminating in a hearing and the Special Inquiry Officer's March 30, 1973 decision ordering deportation, subject to voluntary departure, as plaintiffs requested, on or before May 15, 1973. 8 U.S.C. § 1252 (1970). At the hearing, where plaintiffs and three other Chinese aliens were represented by plaintiffs' counsel herein, plaintiffs admitted their illegal status and conceded deportability. See Appendix A. They saw fit to refrain from requesting asylum at that juncture, for reasons about which we can only speculate. They accepted Hong Kong as a place to which they would voluntarily depart. They disclaimed any intention of seeking deferment of deportation because of political persecution there. They sought no review of the Special Inquiry Officer's determination.
Cf. 8 C.F.R. § 242.21 (1974); Kan Kam Lin v. Rinaldi, 361 F. Supp. at 187 n. 9.
Predictably, plaintiffs did not voluntarily depart on May 15, 1973. There is nothing to suggest that plaintiffs voluntarily brought their failure to do so to the attention of INS. In November 1974, a year and one-half later, INS wrote both plaintiffs to report on December 3, 1974 for deportation to Hong Kong.
. . . That I was born in Foochow, China and that I fled from China because of the Communist control of my "home country". That it is my belief that China is my "home country" and I am, therefore, entitled to a stay of deportation based upon the Operations Instructions 108.1 and 108.2. That China is the country of my birth and nationality and I have not become firmly resettled in any other country.
By letter of December 4, 1974 to Yan Wo Cheng, the application was denied:
Reference is made to your request for political asylum and temporary refuge in the United States pursuant to the terms of the Treaty "Protocol relating to the Status of Refugees", and the Policy Statement of the Secretary of State of January 4, 1972.
It is noted that you are unlawfully in the United States because you entered solely as a crewman for shore leave and remained longer than 29 days or the period your vessel remained in the United States.
Because of the foregoing it has been concluded after due hearing that you are deportable from the United States and it is not proposed to deport you to any other country where you would be in danger of persecution; it is proposed to deport you to Hong Kong. You have failed to establish that you have not been firmly resettled in Hong Kong.
After careful consideration and general guidelines from the Department of State, it has been concluded that you should not be exempt from regular immigration procedures since you have failed to establish pursuant to Article 1(a)(2) and Article 32(1) of the Treaty, that you are a refugee lawfully in the United States and that you would be persecuted on account of race, religion, nationality or membership of a particular social group, or political opinion, if returned to Hong Kong. Therefore your request for a stay of deportation (Form 1-246) has been denied.
If you desire not to withdraw your request for political asylum, you may file a motion to reopen your deportation proceedings to continue your request under Section 243(h) of the Immigration and Nationality Act.
To the extent that this case involves nothing more than the issue of asylum founded upon the aforesaid provisions of the Treaty Protocol and the State Department Policy Statement, it is controlled by Kan Kam Lin, supra. Thus, since plaintiffs are in the United States unlawfully, they are not entitled to asylum under those provisions.
Plaintiffs' counsel, however, with affirmance of Kan Kam Lin, supra, by the Court of Appeals, abandoned in this case the approach taken in that case
and in Ming v. Marks, supra. Instead, he claims for his clients here the right of asylum allegedly created by certain Operations Instructions [hereinafter sometimes referred to as OI]
of the Immigration and Naturalization Service. For the reasons hereinafter set forth, I find that these create no right of asylum, but simply set forth instructions for implementing the right of asylum granted by the Act's § 243(h), 8 U.S.C. § 1253(h) (1970),
and State Department Policy Statement and Treaty Protocol.
Administration and enforcement of immigration and naturalization laws lie with the Attorney General of the United States. 8 U.S.C. § 1103(a) (1970). His authority enables him to promulgate rules and regulations affecting the processing of aliens:
He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter. . . .
Pursuant to § 1103(a), and authority delegated to him, 8 C.F.R. § 2.1 (1974); Buckley v. Gibney, supra, the aforesaid Operations Instructions have been promulgated by the Commissioner of Immigration and Naturalization. They are found in an INS publication entitled: "CURRENT LAWS; TITLE 8, CODE OF FEDERAL REGULATION; OPERATIONS INSTRUCTIONS; AND INTERPRETATIONS" [hereinafter cited as CURRENT LAWS].
Some of the instructions are not available to the public, others are. See 8 C.F.R. § 103.9 (1974); CURRENT LAWS General Explanation, para. 2.
The specific instructions plaintiffs rely upon were adopted July 26, 1972. CURRENT LAWS, at p. 618.11. Instructions 108.1(f) et seq. pertain to "Aliens within the United States". There are three subsections under this Heading: (1) Asylum request prior to deportation hearing;
(2) Asylum request during course of deportation hearing;
and (3) Asylum request after completion of deportation hearing.
When an asylum request is submitted prior to a deportation hearing, both the District Director and the Office of Refugee and Migration Affairs of the State Department review the application. If the District Director denies the application but the state Department recommends it, the case is thereafter reviewed by the INS Regional Commissioner. If he agrees with the District Director's adverse determination, the case proceeds to further review before the Office of Travel Control of INS. Instruction 108.1(f)(1) also requires that, where the decision is adverse to the alien, he should be advised that he may apply to the Special Inquiry Officer during his deportation hearing for asylum and withholding of deportation pursuant to § 243(h) of the Act, 8 U.S.C. § 1253(h) (1970).
If application for asylum is made after the deportation hearing, as here, the District Director is also required to present the case to the Office of Refugee and Migration Affairs. OI 108.1(f)(3). This subsection then provides:
No further action shall be taken until the views of that office have been received and considered by the district director. If the district director then finds adversely in the case and the alien does not withdraw his request for asylum, he shall be advised that he may, if he so desires, request reopening of his hearing before a special inquiry officer for the purpose of introducing an application to withhold deportation under section 243(h) of the Act.
On February 14, 1973, by internal agency memorandum, INS advised its District Directors that the State Department had announced that it would no longer entertain asylum requests from aliens who had left Communist China and resided for a substantial period of time in Hong Kong before arriving in the United States.
Thus the Operations Instructions provisions for review by the Office of Refugee and Migration Affairs were made inoperative. The same memorandum, it should be noted, expressly indicated that the new State Department policy did not otherwise affect the asylum procedures of Instruction 108.1(f).
Plaintiffs, in claiming a substantive right to asylum under the Operations Instructions, do not assert a deprivation of procedural due process as to the aforesaid State Department policy revision. Instead they contend simply and without elaboration that the District Director's decision was arbitrary and capricious. Nevertheless I shall analyze this policy change in the light of due process requirements.
The Administrative Procedure Act (APA) provides for the publication in the Federal Register of certain proposed rule-making by administrative agencies. 5 U.S.C. § 553(b) (1970); cf. International Telephone and Telegraph Corp. v. Local 134, IBEW, 419 U.S. 428, 95 S. Ct. 600, 42 L. Ed. 2d 558 (1975). Excepted is proposed rule-making involving "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice . . . ." 5 U.S.C. § 553(b) (1970). The Operations Instructions are nothing more than intra-agency guidelines for the disposition by the INS of requests for asylum. The February 14, 1973 memorandum was both a statement of policy and an alteration of rules of procedure well within the aforesaid exception to the publishing requirement. Since Instructions 108.1(f) et seq. create no substantive rights (and indeed were not themselves deemed subject to the APA publication requirement by INS), INS could properly issue an unpublished intra-agency directive revising these instructions by directing District Directors not to submit the details of certain requests for asylum to the State Department in view of the blanket policy announced by the latter in so-called Hong Kong cases. Cf. Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972); Hou Ching Chow v. Attorney General, 362 F. Supp. 1288 (D.D.C. 1973).
Moreover, the petitioner for asylum under the instructions as revised continues to have State Department views imparted to the District Director, albeit in advance, in those cases which are within the category designated by the February 14, 1973 memorandum. Thus the procedural revision does not amount to a deprivation of due process.
Reverting to plaintiffs' contention that Operations Instructions 108. 1(f) et seq. are the source of their right to asylum, as I have stated, I can only conclude from my close review that these are instructions to INS personnel for processing requests for asylum as provided by § 243(h) and Treaty Protocol and State Department Policy Statement.
While the label which an agency attaches to its regulations is not necessarily dispositive, Lewis-Mota v. Secretary of Labor, 469 F.2d at 481-482, INS, it is noted, considers its Operations Instructions to be "internal directives". CURRENT LAWS, General Explanation, para. 1. This view is in accordance with recent judicial analysis. In Buckley v. Gibney, 332 F. Supp. at 796, the court concluding that the Operations Instructions were merely procedural, stated:
Buckley is not being deported . . . under any Operations Instructions; he is being deported under the statute, 8 U.S.C. § 1251(a)(2), because he is illegally in the country. These Operations Instructions affect Buckley only insofar as they serve as a guide in considering his request for voluntary departure . . . .
See also Fan Wan Keung v. Immigration and Naturalization Service, 434 F.2d 301 (2d Cir. 1970); United States ex rel. Fen v. Esperdy, 423 F.2d 6 (2d Cir. 1970).
Accordingly, plaintiffs' endeavors to evade the rule of Kan Kam Lin are futile. They are here illegally; therefore, they are not entitled to claim a right to the asylum created by the Treaty Protocol and the Policy Statement. Their application was properly rejected. It follows that their claim that the District Director's decision was arbitrary and capricious falls.
While this opinion might well end here, it is appropriate that, in contemplation of possible appellate review, I express my views on plaintiffs' position, if arguendo the Operations Instructions create substantive rights. Then this court could not review the deportation proceedings conducted to date. Contrary to plaintiffs' complaint, they have not exhausted their administrative remedies; therefore, they are not entitled to judicial review of the District Director's decision. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638 (1938). See also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974); McKart v. United States, 395 U.S. 185, 194-195, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969); Diapulse Corp. v. FDA, 500 F.2d 75, 77-78 (2d Cir. 1974); Waddell v. Alldredge, 480 F.2d 1078 (3d Cir. 1973); Bristol-Myers Co. v. FTC, 469 F.2d 1116 (2d Cir. 1972).
The exhaustion doctrine has achieved statutory recognition in the field of immigration law:
An order of deportation or exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations . . . .
8 U.S.C. § 1105a(c) (1970). The failure to exhaust administrative remedies available in deportation proceedings has been uniformly held to preclude judicial review. See, e.g., Forster v. Immigration and Naturalization Service, 452 F.2d 418 (9th Cir. 1971); Favela v. Immigration and Naturalization Service, 420 F.2d 575 (9th Cir. 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1705, 26 L. Ed. 2d 70 (1970); Arias-Alonso v. Immigration and Naturalization Service, 391 F.2d 400 (5th Cir. 1968); Arrias v. Immigration and Naturalization Service, 386 F.2d 191 (9th Cir. 1967); Samala v. Immigration and Naturalization Service, 336 F.2d 7 (5th Cir. 1964); Rodriguez-De Leon v. Immigration and Naturalization Service, 324 F.2d 311 (9th Cir. 1963); Kassab v. Immigration and Naturalization Service, 322 F.2d 824 (9th Cir. 1963), cert. denied 376 U.S. 910, 84 S. Ct. 665, 11 L. Ed. 2d 608 (1964); Murillo-Aguilera v. Immigration and Naturalization Service, 313 F.2d 141 (9th Cir. 1963). Accordingly, the failure to exhaust administrative remedies warrants dismissal of an action seeking judicial review of a District Director's determination. In Ja Kim v. Immigration and Naturalization Service, 403 F.2d 636 (7th Cir. 1968).
Lack of exhaustion is evident. During the deportation hearing before the Special Inquiry Officer, plaintiffs herein could have presented their claim for asylum pursuant to Instruction 108.1(f)(2) to the District Director, and if his decision was adverse, by moving before the Special Inquiry Officer for withholding of deportation under § 243(h) of the Act. 8 C.F.R. § 242.17(c), (d) (1974). Thereafter, review by the Board of Immigration Appeals would have been available, if application was made within ten days of the decision of the Special Inquiry Officer. 8 C.F.R. §§ 3.1(b); 242.21 (1974); Fan Wan Keung v. Immigration and Naturalization Service, 434 F.2d at 302.
Instead of timely pursuit of the above remedies, MacCaud v. United States, 354 F. Supp. 872 (D.Conn.1972), aff'd, 500 F.2d 355 (2d Cir. 1974), plaintiffs, after expressly declining the opportunity for a § 243(h) application before the Special Inquiry Officer, waited until long after the conclusion of the deportation hearing and then instituted a separate proceeding before the District Director for a stay of deportation and asylum. His adverse determination was not the last word administratively. As his decision letter to them stated, plaintiffs next had available the reopening of their deportation hearing for presentation of their asylum claim and for withholding of deportation under § 243(h) of the Act. OI ...