Yi Yang v. Maugans ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
10-24-1995
Yi Yang v Maugans
Precedential or Non-Precedential:
Docket 95-7316
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Recommended Citation
"Yi Yang v Maugans" (1995). 1995 Decisions. Paper 279.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/279
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 95-7316, 7317, 7318,
7319, 7320 and 7321
YOU YI YANG; BONG WON YEE; GUANG FENG LI; CHU-SU CHEN; PIN LIN;
YONG ZHONG PAN, a/k/a Pu Wing Chun; SO GEE DONG; CHANG CHUN LU;
XIN-FEI ZHANG, a/k/a Xin-Fuei Zarang; TONG WAI ZHANG; DAI MIN LU;
SHI CHUN ZHENG; CHUN HUA LIN; XING CHEN; SHUIDI ZHENG;
GUO ZHEN XIE; LI YUN-YOU; MING LONG LIN; DEK FUN LIN;
ZHONG CHEN; WANG CHAO LIN; NAN REN LIN; YENG MING LIN;
CHAN BIN JONG; ZENG HUA ZHENG; YUNG KWON CHENG; RUI QUI HUANG;
SHIMU CHEN; GUI LIN CHENG; REN YAN YANG; YONG ZHENG; KWAI
SUNG CHENG; XUE KIAN CHEN; YI HONG LIN; GOU ZHI LEE;
JIAN LE SHI; WU CHAO; XING-KWONG ZHENG, a/k/a Xing-Ke Zheng;
XUE YAO LIN; JIAN BIN LIN; WING JONG JUNG; BIN HUA ZHENG;
XIANG GUI CAO; ZUOXUN LEE; CHAI KAN CHENG; AI MING WANG;
SING CHOU CHUNG; JAR JIAN WANG; HE PING CAO; ZENG-PING LUI;
KOU ZHANG CHENG; GONG SHI; CAI WAN CHEN; YUE FENG LEE; ZHAO
SHAN ZHAO; FEN-HOU CHEN; CHONG SHENG QU; XUE-DEE CHEN;
MAO-JIANG LIN; WEN-HAO CHEN; JIAN FU CHAI; DE HUI CHEN; JI LI
ZHENG; FU SING ZHENG; YE ZING CHAI; FA YU ZHUANG; SHI J ZHENG;
ZHONG ZHOU; LIAN BING ZHENG; ZHAI YOUNG ZHU; XUE CAN ZOU;
XYE RONG ZHAN; AU ZIA ZHAO; YUE FENG ZHANG; DA HE ZHENG; SHAN
CIEN ZHANG; NAN WEI ZHANG; HUA YI ZHON; YE SONG; GIN GUAN WU; YEE
JAN WONG; XIN CHANG SHANG; ZHONG WU LUO; HUSEH TA TANG; WANG WU
DONG; YOU SHUI WANG; ZIM SHENG WHANG; SI OU; LI TUN CHENG; PAN
SHAO MIN; YOU QUAN LIN; BI SHENG LIU; XU YONG LU; LU TIAN HAO;
GHUAN LI LIU; RUI KAN LIN; XIANG KENG LIN; KONG ZHI LI;
DUAN SHENG KIN; ZHON GUAN LI; JIN LIM FU; ZHE SHUNG JAIN; HYEI
GWOR; WING-HON CHENG; DAI ZI HE; ZHI PING GAO; XIANG NMU GAO; YI
CHENG DONG; EI YOUNG GIANG; SON SHING DONG; JIA RENG DONG;
CHI CHI CHUNG; WOR OI CHIN; ZHU F. CHENG; SON CHING CHENG;
GIN SEN CHENG; TIA SIAN CHEN; KAN GUAN CHEN; KAI Q. ZENG;
GUO CHENG LIN; XIANG GUAN CAI; XIN SING ZHOU; YONG QUI CHI; YONG
GING WU; CIAN GLUAN YONG; CHENG YE WU; MING GUANG LIU;
CHUN LIN JIN; JAN YON CHUNG; ZHEN HUAN WENG; KANG DI WENG;
CHENG XIAO DAI; GUO PING YE; CHANG QING ZHOU; MEI XI CHEN; JIAN
BIAO WENG; DAR HUA WANG; FUI LIN; ZHE SHUNG JAN; ZHONG MING TIAN;
GUAN JUN WANG; JIAN YUN WAN; JIA WEN LIU; BAO JIN LUI; ZHANG SONG
XHONG; XIN BIN ZHENG
v.
GEORGE MAUGANS, District Counsel of the United States
1
Immigration and Naturalization Service - Baltimore
District; DAVID L. MILHOLLEN, Director of the Executive
Office for Immigration Review and Chairman of the Board of
Immigration Appeals; RICHARD J. SHARKEY, District Counsel of
the US Immigration and Naturalization Service -
Philadelphia District; J. SCOTT BLACKMAN, District
Director of the US Immigration and Naturalization Service -
Philadelphia District; UNITED STATES IMMIGRATION &
NATURALIZATION SERVICE; EXECUTIVE OFFICE FOR IMMIGRATION
REVIEW; JANET RENO, Attorney General of the United States;
DORIS MEISSNER, Commissioner of the US Immigration and
Naturalization Service; MARY MAGUIRE DUNNE, Acting Director
of the Executive Office for Immigration Review and Acting
Chairman of the Board of Immigration Appeals
JANET RENO, Attorney General of the United
States; DORIS MEISSNER, Commissioner of the
U.S. Immigration and Naturalization Service;
GEORGE MAUGANS, District Counsel of the U.S.
Immigration and Naturalization Service,
Baltimore District; DAVID L. MILHOLLEN,
Director of the Executive Office for
Immigration Review and Chairman of the Board
of Immigration Appeals; RICHARD J. SHARKEY,
District Counsel of the U.S. Immigration and
Naturalization Service, Philadelphia
District; J. SCOTT BLACKMAN, District
Director of the U.S. Immigration and
Naturalization Service, Philadelphia
District; MARY MAGUIRE DUNNE, Acting Director
of the Executive Office for Immigration
Review and Acting Chairman of the Board of
Immigration Appeals,
Appellants, in 95-7316,
95-7317, 95-7318, 95-7319, 95-7320, 95,7321
(Appeal from matter regarding Dek Fun Lin at D.C. Cv. No. 94-59)
(Appeal from matter regarding Shimu Chen at D.C. Cv. No. 94-192)
(Appeal from matter regarding Chao Wu at D.C. Cv. No. 94-257)
(Appeal from matter regarding Sing Chou Chung at D.C. Cv.
No. 94-435)
2
(Appeal from matter regarding Dar Hwa Wang at D.C. Cv.
No. 94-560)
(Appeal from matter regarding Zhao Shan Zhao at D.C. Cv.
No. 94-601)
On Appeal from the United States District Court for
the Middle District of Pennsylvania
(D.C. Civil No. 93-cv-01702)
Argued: August 25, 1995
BEFORE: GREENBERG, COWEN and SAROKIN
Circuit Judges
(Filed October 24, l995)
Craig T. Trebilcock
Stock & Leader
35 South Duke Street
P.O. Box 5167
York, PA 17405-5167
Frances P. Rayer
Pepper, Hamilton & Scheetz
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103-2799
Beverly J. Points
100 East Market Street
York, PA 17405-7012
Ann Carr
156 East King Street
Lancaster, PA 17602
Robert S. Kitchenoff
David H. Weinstein (ARGUED)
3
Weinstein, Kitchenoff, Scarlato
and Goldman
1608 Walnut Street
Suite 1400
Philadelphia, PA 19103
Kathleen Blanchard
Astra Merck, Inc.
725 Chesterbrook Boulevard
Wayne, PA 19087-5677
Sharon J. Phillips
11 Park Place
New York, New York 10007
Kurt A. Blake
Katherman & Heim
345 East Market Street
York, PA 17403
COUNSEL FOR APPELLEES
Dek Fun Lin
Shimu Chen
Chao Wu
Sing Chou Chung
Dar Hwa Wang
Zhao Shan Zhao
Philemina M. Jones
David M. McConnell
Gary G. Grindler (ARGUED)
United States Department
of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044
COUNSEL FOR APPELLANTS
GEORGE MAUGANS, District Counsel of
of the United States Immigration and
Naturalization Service - Baltimore District
DAVID L. MILHOLLEN, Director of the
Executive Office for Immigration Review
and Chairman of the Board of Immigration
4
Appeals
RICHARD J. SHARKEY, District Counsel
of the United States Immigration and
Naturalization Service - Philadelphia District
J. SCOTT BLACKMAN, District Director
of the United States Immigration and
Naturalization Service - Philadelphia District
IMMIGRATION & NATURALIZATION SERVICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
JANET RENO, United States Attorney General
DORIS MEISSNER, Commissioner of the
United States Immigration and Naturalization
Service
MARY MAGUIRE DUNNE, Acting Director of the
Executive Office for Immigration Review and Acting
Chairman of the Board of Immigration Appeals
OPINION
COWEN, Circuit Judge.
This case involves the issue of whether an "entry" may
be effected pursuant to section 101 of the Immigration and
Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101, merely by
encroaching upon United States territorial waters without being
detected or pursued by authorities. Also at issue is whether the
district court accorded the Board of Immigration Appeals' ("BIA")
construction of section 291 of the INA, 8 U.S.C. § 1361, which is
the statute's burden of proof provision, the deference to which
it was entitled under the standard the Supreme Court set forth in
5
Chevron v. U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).
The related appeals before us arise from the habeas
corpus petitions of six citizens of the People's Republic of
China who are currently being held for deportation by the
Immigration and Naturalization Service ("INS"). Petitioners Sing
Chou Chung ("Chung"), Dek Fu Lin ("Lin"), Shimu Chen ("Chen"), Wu
Chao ("Chao"), Shan Zhoa ("Zhoa") and Dar Hwa Wang ("Wang") set
foot upon a Rockaway, Queens beach on June 6, 1993, after having
traveled for three months in the cargo hold of the "Golden
Venture," an alien smuggling ship carrying over 300 passengers.
None of the petitioners ever left the beach area and all of them
admittedly were arrested within thirty minutes of their arrival.
Chung, Lin, Chen, Chao, Zhoa and Wang all had their
legal claims adjudicated in exclusion proceedings. At their
respective
exclusion proceedings, the six petitioners' applications for
asylum were denied and they were ordered excluded from the United
States. They then filed habeas corpus petitions in the United
States District Court for the Middle District of Pennsylvania,
pursuant to section 106(b) of the INA, 8 U.S.C. § 1105a(b). All
six petitioners proceeded to file motions in the district court
for partial summary judgment on the issue of whether they had
"entered" the United States within the meaning of the INA.1
1
The question whether the petitioners had "entered" the United
States is not merely a matter of semantics. Under the law, once
an alien has "entered" the United States, that individual has
certain rights that can be adjudicated only pursuant to a full
6
On May 16, 1995, the district court held that
petitioner Chung had "entered" the United States as a matter of
law before he had reached dry land. Chung v. Reno, 886 F. Supp.
1172, 1184 (M.D. Pa. 1995). As to the allocation of the burden
of proof under section 291 of the INA, the district court further
held that it was unreasonable for the BIA to place the burden
upon illegal aliens to establish that they were "free from
official restraint." Id. at 1185. On June 6, 1995, the district
court denied the government's motion for reconsideration and
ordered deportation proceedings to commence against Chung within
ten days. The government was ordered to release Chung if
deportation proceedings were not commenced within that time
period. On June 9, 1995, based upon its decision in Chung, the
district court ordered the government to initiate deportation
proceedings against petitioners Lin, Chen, Chao, Zhoa and Wang.
The government appeals the district court's orders granting
partial summary judgment on the issue of entry in the six
petitioners' habeas corpus actions. As the district court
interpreted our decision in United States v. Vasilatos, 209 F.2d
195 (3d Cir. 1954) too broadly and failed to accord the BIA's
interpretation of the INA the required level of deference, we
reverse.
deportation hearing. However, if the individual is found in the
United States but never "entered" within the meaning of section
101 of the INA, the alien can be excluded through the summary
process of an exclusion hearing.
7
I.
A.
These cases arise from the following series of events,
as described in the BIA's decision in Matter of G-, Int. Dec.
3215, at 5-7 (BIA 1993).
In the early morning hours of June 6, 1993, the "Golden Venture"
struck a sandbar 100 to 200 yards offshore of Fort Tilden
Military Reservation, which is located on the Rockaway Peninsula
in the Gateway National Recreation Area in Queens, New York. The
plight of "Golden Venture" first came to the attention of law
enforcement officers at approximately 1:45 a.m. At that time,
two United States Department of the Interior Park Police officers
saw the ship, some of its passengers running on the beach and
others attempting to swim ashore. At 1:58 a.m., the officers
contacted the New York City Police Department ("NYPD") and other
law enforcement agencies for assistance.
A formidable array of law enforcement officers soon
arrived upon the scene. NYPD officers responded to the emergency
call at 2:19 a.m. Soon thereafter a police cordon was set up to
secure the beach area. Also involved in the rescue operation
were police canine units, New York State Police helicopters
equipped with searchlights, Coast Guard boats and helicopters and
personnel from the New York Park Police, the Jacob Riis Park
Police, the New York City Fire Department and the Emergency
Medical Service. INS officials arrived at approximately 3:30
a.m.
8
Over 100 "Golden Venture" passengers remained on the
ship to await the arrival of rescue personnel. Approximately 200
of the passengers, however, decided to hazard the fifty-three-
degree waters and high waves by attempting to swim ashore.
Although it appears that most of the people who ultimately
reached the beach were too exhausted to go farther, about thirty
passengers fled into the surrounding community before the
perimeter of the beach had been sealed off. Others were arrested
on the beach and held in a building on Fort Tilden Military
Reservation. The police escorted passengers who needed medical
attention to local hospitals where, after they received
appropriate medical treatment, were placed in the custody of the
INS.
At York County Prison, exclusion hearings were brought
against the "Golden Venture" detainees, including the six
petitioners. At their respective exclusion proceedings, the
petitioners provided the following accounts of their arrivals:
Chung, Lin and Chen said that they jumped from the ship, swam
ashore and lay down in exhaustion until they were approached by
an officer. Chao also said that he jumped from the ship and swam
ashore. He came up on the beach near a fence, walked about
thirty steps, changed his clothes and waited until some officers
took him away. Zhoa averred that he "almost walked to the
street" before a police officer approached him approximately
thirty minutes after his arrival on the beach. Wang stated that
he jumped into the ocean, swam ashore, changed clothes and sat on
9
the beach. While on the beach he was taken away by the officers
after being given emergency care.
The BIA entered a final exclusion order in each of
petitioners' cases after concluding that the aliens had not
proven that they made an "entry" into the United States within
the meaning of section 101 of the INA. All six petitioners and
many of their "Golden Venture" co-passengers also applied for
political asylum in their exclusion hearings, alleging that they
were being persecuted by China's one-child-to-a-family policy.
Their applications for asylum were all rejected. Presently the
petitioners, along with nearly half the "Golden Venture"
passengers, are being detained at York County Prison in
Pennsylvania.
B.
The BIA addressed the issue of entry in Matter of G-,
which involved the case of petitioner Sing Chou Chung, one of the
"Golden Venture" passengers. Applying well-established law, the
BIA defined "entry" as requiring satisfaction of the following
three elements: "(1) a crossing into the territorial limits of
the United States, i.e., physical presence; (2) (a) inspection
and admission by an immigration officer, or (b) actual and
intentional evasion of inspection at the nearest entry point; and
(3) freedom from official restraint." Id. at 8 (citing Correa v.
Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990); Matter of Patel,
Int. Dec. 3157 (BIA 1991)).
10
Since Chung landed on the beach, the BIA found that he
had satisfied the "physical presence" requirement. The BIA also
found that the second element of the entry test had been met
because "the circumstances under which the Golden Venture landed,
[Chung's] payment of money to a smuggling operation for passage
to the United States, his lack of travel documents entitling him
to enter this country, and his conduct once he came ashore"
suggested that Chung intended to evade inspection at the nearest
entry point. Matter of G-, Int. Dec. 135, at 13.
The determinative factor was whether Chung had
satisfied the third element of the entry test, i.e., whether he
was ever "free from official restraint." The BIA interpreted
section 291 of the INA as placing the burden upon the "Golden
Venture" aliens to establish that they were free from official
restraint. The BIA recognized that "in cases where there is no
clear evidence of the facts determinative of the entry issue,
those cases ultimately must be resolved on where the burden of
proof lies." Id. at 11. The BIA held that Chung did not "enter"
the United States because he had failed to meet this burden. Id.
at 14-15.
C.
Over 100 of the detainees, including the petitioners,
filed habeas corpus petitions in the United States District Court
for the Middle District of Pennsylvania, pursuant to section
106(b) of the INA, 8 U.S.C. § 1105a(b). As these petitions
presented similar issues, the district court consolidated them
11
under the caption Yang You Yi v. Maugans, No. 93-1702. The
consolidation order, entered on November 15, 1993, consolidated
"for all purposes" current and future habeas corpus petitions
from the "Golden Venture" passengers detained at York County
Prison.
After the district court's consolidation order had been
entered, the six petitioners filed individual motions for partial
summary judgment on the issue of whether they had effected an
"entry" into the United States. On May 16, 1995, the district
court granted petitioner Chung's motion for partial summary
judgment, holding that he had entered the United States within
the meaning of the INA. Chung v. Reno, 886 F. Supp. at 1185. The
district court concluded that the BIA had applied the governing
immigration law incorrectly in two areas. First, the court
rejected the BIA's conclusion that all three elements necessary
to establish that an entry into the United States has occurred
must be satisfied while the alien is on "dry land." Id. at 1179.
The district court interpreted our decision in United States v.
Vasilatos, 209 F.2d 195 (3d Cir. 1954), as binding authority,
which led it to conclude that Chung had satisfied all three
elements of the entry test before he reached dry land. Chung, 886
F. Supp. at 1184.
The district court further held that the burden of
proof had not_!
12