The opinion of the court was delivered by: RAMBO
On January 24, 1996, the court issued an order denying Petitioners' motion for an evidentiary hearing on the claim that the adjudication of their exclusion proceedings was prejudiced by political interference and ex parte communications. This memorandum is issued in support of that order.
The instant action arises out of the detention and attempted exclusion by the Immigration and Naturalization Service ("INS") of certain citizens of the People's Republic of China ("PRC"). The aliens at issue were among those arrested and detained after the grounding of the Golden Venture in New York Harbor in June 1993.
When the Golden Venture ran aground, several hundred aliens being smuggled into the United States jumped overboard in an attempt to reach land. Several drowned and nearly three hundred were arrested and detained by the INS. Approximately 145 of those individuals subsequently were transferred to the York County Prison, a facility located in the Middle District of Pennsylvania. Many of the detainees, including the individual Petitioners in this action, filed claims for asylum. At the prison, exclusion proceedings under 8 U.S.C. § 1226(a) were instituted against the detainees. Ultimately, immigration judges ("IJs") heard and rejected the asylum claims of the instant Petitioners. Petitioners appealed to the Board of Immigration Appeals ("BIA") and, after the BIA dismissed their appeals, filed the present habeas actions.
On November 15, 1993, this court ordered the consolidation of the individual actions because the individual petitions appeared to present substantially similar claims. All related claims now are proceeding under the captioned case and later-filed petitions have been included in the interim relief provided by this court.
Petitioners contend that in the summer of 1993 there were improper contacts between personnel of the Executive Office for Immigration Review ("EOIR") and officials of the Department of Justice ("DOJ") and the National Security Counsel ("NSC"). EOIR, a subagency of DOJ, consists in part of IJs and the BIA, whose responsibilities include adjudicating requests for asylum under the Immigration and Nationality Act. Petitioners maintain that the alleged improper contacts caused the IJs and the BIA to be biased against them in the adjudication of their asylum claims. Respondents acknowledge that DOJ and NSC staff had contact with EOIR personnel regarding Petitioners' exclusion proceedings. However, they deny that DOJ or NSC staff communicated with EOIR adjudicators regarding the merits of Petitioners' claims or otherwise adversely affected the outcome of Petitioners' proceedings. The record developed in this case is voluminous, and in reviewing the evidence the court will focus upon what it considers to be most relevant.
The central figure in the EOIR contacts with DOJ and the NSC in the summer of 1993 was Gerald Hurwitz, then Counsel to EOIR Director David Milhollan. At that time, Milhollan held both the positions of EOIR Director and Chairman of the BIA. Hurwitz described his responsibilities as Counsel to EOIR Director as defending EOIR in litigation, writing regulations, providing legal advice to employees of the agency, and attending meetings and acting as liaison with agencies or organizations both inside and outside DOJ. (Hurwitz Dep. at 9, Respondent's Exhibit 2.) Hurwitz further stated that he acted as a "buffer" for IJs and the BIA by responding to "outside inquiries, particularly press inquiries," regarding matters before EOIR adjudicators. (Id. at 10.) Counsel to EOIR Director is not an EOIR adjudicator.
A. Hurwitz' Contacts With Coven Regarding Expediting The Golden Venture Proceedings
A few days after the Golden Venture ran aground, Phyllis Coven, then an Assistant to the Attorney General, contacted Hurwitz and asked that he prepare a plan to expedite the exclusion proceedings of the Golden Venture passengers. Hurwitz was initially told that this request originated with the Attorney General, and he subsequently learned "that it was part of a larger plan that came from the White House." (Hurwitz Dep. at 159-60, Petitioners' Exhibit 3.) Hurwitz drafted a proposed plan to expedite the hearings and gave it to Coven, who in turn provided it to staff members of the NSC and the Domestic Policy Counsel ("DPC"). (Petitioners' Exhibits 14-17.) The final version of this plan indicates that EOIR mobilized its resources in an attempt complete the hearing process for Golden Venture passengers, through administrative appeal, in 120 days. In the plan, Hurwitz stated that he would "pay particular attention to time savings in administrative areas, such as preparation of transcripts, transmission of files and tapes, immediate scheduling of initial proceedings and transmission of applications for review by the State Department . . . ." (Petitioners' Exhibit 17 at 3.) Following an outline of the proposed expedited hearing process in the memorandum, Hurwitz stated:
It should be stressed that the above-referenced time lines constitute an estimate of a best case scenario in which everything runs smoothly. If matters become complicated by legal issues, administrative problems, unavailability of counsel, illness of the parties or other unforeseen circumstances, time frames could run longer. We will do everything possible consistent with due process to reach the above-referenced goal.
It would also be helpful for the Attorney General, or the Associate Attorney General, in writing, to advise and direct that the above-referenced smuggled alien cases are to be treated as emergency matters and that everything must be done expeditiously to complete them consistent with due process. This will give both our IJs and the BIA additional authority in which to act in a most expeditious fashion. It will make clear the emergency nature of these proceedings in the event that they are attacked in court as being handled differently than other cases.
I understand that there are a number of final orders of exclusion/deportation which have already resulted in earlier similar cases. It is my understanding that few, if any, of these individuals have actually been deported. This can be verified by INS. If the Department wishes to make an immediate impact on the situation [regarding the influx of Chinese smuggled aliens], the Department may wish to consider executing these final orders of deportation. That is something that can be done immediately and will have a significant impact without waiting for the group of case in question to be completed.
B. Hurwitz' Attendance At Border Security Working Group Meetings
Hurwitz was invited by Coven to attend meetings of the Boarder Security Working Group ("BSWG"), which included representatives of the NSC, DPC, INS and numerous other federal agencies. Hurwitz attended several BSWG meetings at which there was discussion concerning the development of policy to deal with the problem of alien smuggling, and some conversation about the Golden Venture cases in particular. Hurwitz testified that the reason he attended the meetings was to appraise BSWG attendees of the status of Petitioners' cases, to learn of any developments which may affect EOIR operations, and, if necessary, to inform other agencies of what those effects would be. He stated that part of his function as Counsel to EOIR Director was to attend such meeting since it would be inappropriate for EOIR adjudicators to do so. (Hurwitz Dep. at 99, 151, Respondents' Exhibit 3.)
It is of particular concern to Petitioners that at these meetings Hurwitz was exposed to discussion of the concept of a "magnet effect." He testified that he understood this to mean "that if people come to the United States and are allowed to stay here . . . more will come." (Hurwitz Dep. at 76., Petitioners' Exhibit 9.) Furthermore, Grover Rees, former General Counsel of INS, testified that during some BSWG meetings the view was expressed that allowing asylum on the basis of China's coercive family planning policy tends to attract asylum applications based upon false claims. (Rees Dep. at 297-98, 673-74, Petitioners' Exhibit 4.) Rees stated that, "to the best of [his] recollection," Hurwitz attended at least one such meeting. (Id. at 674.) Rees also testified that at some BSWG meetings it was asserted that the United States' "relatively generous asylum policy towards Chinese applicants" caused a magnet effect and aggravated the alien smuggling problem. (Id. at 915.) While it is not clear precisely what information Hurwitz was exposed to at the BSWG meetings, it is evident that he understood that the Clinton Administration was pursuing a policy to deter alien smuggling and wanted the Golden Venture hearings expedited in furtherance of that policy. (Hurwitz Dep. at 54, Petitioners' Exhibit 3.)
C. Schwartz' Telephone Call To Hurwitz
Hurwitz testified that sometime during Petitioners' proceedings he received a telephone call about the cases from Eric Schwartz, a staff member of the NSC. With regard to the call, Hurwitz stated:
he requested that the cases be expedited. And I told him that we were already expediting the cases and we had to do it -- I made it very clear that we had to do it consistent with due process and he agreed very readily to that. He said, of course I wouldn't want to not have it done consistent with due process.
No. This is the only time that I can think of. But I will also say that we didn't do anything special in reaction to that. As a matter of fact, we didn't do ...