Three distinct factors must be considered: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of the interest through procedures currently used and the extent the risk could be lessened with additional safeguards; and (3) the government's interest in maintaining existing procedures. Id. at 335. The private interest at stake is Mr. Ekekhor's liberty, which is one of the most precious interests an individual has under our Constitution.
Further, the risk of erroneous deprivation is particularly high given the current procedures in place. Presently, the district director has the sole authority to make parole determinations. As the St. John court noted, "due to political and community pressure, the INS, an executive agency, has every incentive to continue to detain aliens with aggravated felony convictions, even though they have served their sentences, on the suspicion that they may continue to pose a danger to the community." 917 F. Supp. at 251. The risk of erroneous deprivation is particularly stark in the instant case where an impartial immigration judge, after careful consideration of the evidence, determined Mr. Ekekhor should be paroled. (Pet. Ex. A at 3-4). Contrarily, Mr. Aljets rejected Mr. Ekekhor's parole petition with a six sentence letter that indicates very little consideration of the fact Mr. Ekekhor has been a lawful permanent resident since 1985, that Mr. Ekekhor's probation officer thought the criminal act committed by Mr. Ekekhor was aberrant behavior and that Mr. Ekekhor was a model probationer, that Mr. Ekekhor has been attending college at Roosevelt University and will soon graduate, that Mr. Ekekhor has a full-time job for a division of Kodak, and that Mr. Ekekhor is active in church and volunteer organizations. (Pet. Ex. A at 3). Mr. Ekekhor further notes that Mr. Aljets is in the conflicted position of deciding the parole petition while simultaneously appealing Mr. Ekekhor's victory on the merits of the waiver of exclusion.
The St. John court found the current parole structure "creates a powerful potential for bias against aliens in the INS's parole determinations." 917 F. Supp. at 251. A parole determination before an impartial immigration judge would significantly lessen the likelihood of an erroneous deprivation of Mr. Ekekhor's constitutionally protected liberty interest. Id. at 251; see also Alba, 1996 WL 695811, at *3 (finding impartial adjudicator will provide an unbiased view of the merits of parole petition); Thomas, 1996 WL 487953, at *3 (same); Cruz-Taveras, 1996 WL 455012, at *7 (same).
The third factor to be considered is the INS's interest in maintaining its current procedures. While there is no doubt the INS has some interest and convenience in maintaining current procedures, it does not outweigh Mr. Ekekhor's liberty interest. See Alba, 1996 WL 695811, at *3 (finding INS's interest does not outweigh liberty interest); Thomas, 1996 WL 487953, at *4 (same); Cruz-Taveras, 1996 WL 455012, at *7 (same); St. John, 917 F. Supp. at 251.
There is no reason to believe that a parole hearing before an immigration judge will significantly burden the INS.
An immigration judge determined Mr. Ekekhor should be paroled on bond pending the determination of his exclusion proceedings. The INS appealed that decision, questioning the immigration judge's authority to make a parole decision. I have determined that the immigration judge did have the authority to make the parole determination and that the judge properly exercised such authority. Accordingly, I lift the stay on the immigration judge's determination that Mr. Ekekhor may be released on bond.
The writ of habeas corpus will issue.
Elaine E. Bucklo
United States District Judge
Dated: September 17, 1997
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the petitioner's petition for a writ of habeas corpus is granted. Accordingly, the stay on the immigration judge's determination that Mr. Ekekhor may be released on bond is hereby lifted. The writ of habeas corpus will issue. Judgment is, therefore, entered in favor of the petitioner and against the defendant.
September 17, 1997