we must consider initially plaintiffs' assertions regarding the supposed nonconstitutional grounds for section 214.5's invalidity.
The first of these is their charge that the rule should be declared void because the Attorney General has not complied with the "notice and comment" provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 553(b)(B), which require that notice of a proposed regulation and time for comment on its contents be afforded the public unless there is an agency finding that good cause exists for waiver of the requirement because such a procedure would be "impracticable, unnecessary, or contrary to the public interest." To justify the waiver of notice and comment on the basis that it would be "impracticable, unnecessary, or contrary to the public interest," the instant regulation states that it was "issued in the course of, and in response to, the international crisis created by the unlawful detention of American citizens in Tehran." Nevertheless, plaintiffs argue that the Court should find the waiver improper since defendants' general invocation of the Iranian crisis does not explain precisely why it is impracticable or contrary to the public interest to comply with the notice and comment requirement.
Defendants counter that these regulations were the result of rulemaking involving a "foreign affairs function of the United States" and thus are exempt from the notice and comment requirements under section 553(a)(1) of title 5 and that the reasons given in the regulation are sufficient to support its exemption from the provisions for notice and comment. As to the former argument, although a foreign event may have provoked the promulgation of section 214.5, this in and of itself cannot exempt it from the Administrative Procedure Act, especially in light of the recognized application of the APA to deportation proceedings, Wong Yang Sung v. McGrath, 339 U.S. 33, 51, 70 S. Ct. 445, 94 L. Ed. 616 (1950). While the Supreme Court's ruling in that instance subsequently was legislatively overruled, Supplemental Appropriations Act of 1951, Pub.L. No. 81-843, 64 Stat. 1048, there was no indication by Congress that its action was motivated by any intent to reassert a foreign affairs exemption. Hou Ching Chow v. Attorney General, 362 F. Supp. 1288, 1290 & n.7 (D.D.C.1973). The validity of the theory of Wong Yang Sung therefore endures and will not allow the executive to invoke the foreign affairs exemption to control a matter that essentially involves naturalization and deportation. Id. at 1290.
Turning then to an examination of the rationale given in the regulation itself for its exemption from the notice and comment requirement, while the reasons expressed are perhaps not as explicit as they might have been, they nonetheless are sufficiently set forth to demonstrate that good cause for a waiver existed. Assuming for the moment that the regulation at issue is valid, certainly any delay in its promulgation and effective date would proportionately weaken any effect it might have upon the grave crisis that triggered its creation, thereby rendering the notice and comment requirement impracticable and contrary to the public interest. See DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp.Emer.Ct.App.), Cert. denied, 419 U.S. 896, 95 S. Ct. 176, 42 L. Ed. 2d 141 (1974). Defendants' waiver of notice and comment was not in violation of section 553(b)(B).
Plaintiffs also challenge the validity of certain specific provisions of section 214.5, to wit, its requirement that when reporting, Iranian students must bring their passport and Form I-94 alien registration statement, evidence of enrollment from their school, a letter from school officials showing they are maintaining the proper number of credit hours, and evidence of current address, 8 C.F.R. § 214.5(a)(1)-(5), as well as its statement that failure to appear will constitute a violation of the conditions of the students' stay, subjecting them to deportation proceedings. Putting aside the constitutional issues involved in the enforcement of section 214.5, the Court finds its requirements and conditions to be proper as within the latitude given the executive under section 1184(a) "to insure that . . . upon failure to maintain status under which he was admitted . . . such alien will depart from the United States." The various documents the students are required to bring obviously are relevant to the question of whether they are maintaining their status and, therefore, within the intent of Congress in this regard. The noncriminal, regulatory nature of immigration proceedings likely precludes any assertion that a constitutional violation might be thought to arise because of the compulsory production of the documents in question. See United States v. Campos-Serrano, 430 F.2d 173, 176 (7th Cir. 1970), Aff'd on other grounds, 404 U.S. 293, 92 S. Ct. 471, 30 L. Ed. 2d 457 (1971). Similarly, the requirement that failure to report will be considered a violation of status comes within the Attorney General's power to insure that nonimmigrant aliens who are out of status will leave this country. While it is quite unlikely, in light of the proalien, antideportation policy of Congress as recognized by the federal courts, that an inadvertent failure to appear would be held to be sufficient grounds for deportation, See Mashi v. INS, 585 F.2d 1309, 1315-17 & n.15 (5th Cir. 1978), the need to insure that those called will indeed respond obviously effectuates the congressional purpose inherent in section 1184(a).
Their nonconstitutional arguments failing, plaintiffs next rely on the due process clause of the fifth amendment, asserting that the regulation in question is unconstitutional because it constitutes a violation of that amendment's guarantee of equal protection of the laws. By focusing only upon those nonimmigrant students who are citizens of the Islamic Republic of Iran, plaintiffs contend, the defendants have promulgated a regulation the effectiveness of which is dependent on the individual's national origin, an impermissible basis for such a rule.
Plaintiffs are quite correct in their assertions that the classification in this instance is one founded upon national origin and that the constitutional guarantee of equal protection can be invoked in most circumstances to protect against the government's invocation of such a standard, even in its dealings with aliens. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). Further, it has been long acknowledged that distinctions based on ancestry or national origin are "odious to a free people whose institutions are founded upon the doctrine of equality," Hirabayashi v. United States, 320 U.S. 81, 100, 63 S. Ct. 1375, 1385, 87 L. Ed. 1774 (1943); Accord, e.g., Oyama v. California, 332 U.S. 633, 644-46, 68 S. Ct. 269, 92 L. Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194 (1944), and will be cause to signal the type of strict judicial scrutiny afforded a "suspect" classification in order to determine whether it is proper as based upon a compelling governmental interest.
Acknowledging these established principles of constitutional law, defendants nonetheless seek to avoid their application by asserting that they simply are not relevant in this instance. In support of this theory, they point to what they claim is equally well-established precedent regarding the entitlement of the Congress and the executive to deal with the immigration and naturalization of aliens.
The power of Congress over naturalization and immigration arises from clause 4 of section 8 of article 1 of the Constitution, which provides for congressional authority "(to) establish an uniform Rule of Naturalization . . . ." The United States Supreme Court has recognized that "as firmly imbedded in the legislative and judicial tissues of the body politic as any aspect of our government" is the principle that responsibility for the formulation of "policies pertaining to the entry of aliens and their right to remain here . . . is entrusted exclusively to Congress." Galvan v. Press, 347 U.S. 522, 531, 74 S. Ct. 737, 743, 98 L. Ed. 911 (1954). It is not surprising then that the Supreme Court has also declared that "over no conceivable subject is the legislative power of Congress more complete than it is over" the immigration and naturalization of aliens. Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S. Ct. 671, 676, 53 L. Ed. 1013 (1909); Accord, e.g., Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972). Congressional power to act in such matters is so broad as to entitle Congress to "make rules that would be unacceptable if applied to citizens." Mathews v. Diaz, 426 U.S. 67, 80, 96 S. Ct. 1883, 1891, 48 L. Ed. 2d 478 (1976).
In its role as policy maker, Congress is aided by various executive branch officials, most particularly the Attorney General, who have the responsibility for insuring that the statutory policies of Congress concerning immigration are implemented and enforced. In analyzing the scope of the power of the two branches, as well as the relationship between them, in matters dealing with immigration and naturalization, Justice Gray nearly one hundred years ago stated:
The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the constitution, to intervene.