Ilchert

ORDER

This matter concerns the issue of whether an alien stowaway is entitled to have his application for asylum considered by an immigration judge after denial by the Immigration and Naturalization Service District Director. This Court adopts the reasoning of the Second Circuit in Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir.1983) and of the Central District of California in Fang-Sui Yau v. Gustafson, 623 F.Supp. 1515 (D.C.Cal.1985) in holding that petitioner is entitled to appeal his case to an immigration judge.

It appears that 8 U.S.C. section 1323 (d) of the Immigration and Nationality Act restricting the right of stowaways to appeal is in conflict with the procedures established pursuant to the Refugee Act of 1980 allowing renewal of a denied asylum request before an immigration judge. While the stowaway provisions provide for orderly processing of stowaways, the Refugee Act establishes uniform procedures for handling asylum claims consistent with this nations’ international treaty obligations. This Court finds that this conflict can be harmonized as it was by the Second Circuit in Chun. Any other analysis would distort the concept of the Refugee Act. The government argues…