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HOTEL & RESTAURANT EMPLES. UNION, LOCAL 25 v. SMIT

September 25, 1984

HOTEL & RESTAURANT EMPLOYEES UNION, Local 25, et al., Plaintiffs,
v.
WILLIAM FRENCH SMITH, et al., Defendants



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 Before the Court are defendants' two motions for partial summary judgment, along with memoranda in support thereof and in opposition thereto. This case involves two distinct issues relating to the status of the estimated hundreds of thousands of El Salvadoran nationals currently residing illegally in the United States. Defendants' first summary judgment motion involves a decision by the Attorney General not to grant the El Salvadoran nationals "Extended Voluntary Departure", hereinafter "EVD", status, which, according to Count I of plaintiff's Complaint, would have had the effect of a blanket insulation from deportation procedures for all Salvadoran nationals now in the United States until such time as the turmoil in that country subsides. The second of defendants' motions for partial summary judgment relates to Count II of plaintiffs' Complaint and the procedures utilized by the Immigration and Naturalization Service (INS), after considering advisory opinions from the Department of State, in reviewing applications for asylum made by Salvadoran nationals now illegally in the United States.

 Plaintiffs in this case are the Hotel and Restaurant Workers Union, whose membership is largely made up of Salvadoran nationals, and a plaintiff/intervenor, Mauro Hernandez, himself a Salvadoran national, currently residing in this country. They have brought this suit seeking both declaratory judgments and injunctive relief on both the EVD and asylum issues. See 563 F. Supp. 157.

 Plaintiffs claim that Salvadoran nationals are entitled to be granted blanket EVD status. They base this assertion on what they perceive as the controlling "humanitarian" standard for such action, which would require the Attorney General to extend EVD status to Salvadorans. Plaintiffs allege that the result of the Attorney General's denial of EVD is to deprive Salvadoran nationals of the protection of the Due Process Clause of the 5th Amendment to the U.S. Constitution. Defendant argues that this is a matter of the Attorney General's absolute discretion on issues of foreign and prosecutorial policy, and as such finds no basis for judicial review under the Administrative Procedure Act or the Constitution beyond whether the decision was rationally based. The Court agrees. Defendants further argue that EVD is extra-statutory, and as such is not a right or privilege to which due process considerations attach, an argument with which the Court also is in agreement.

 Plaintiffs' second issue involves the procedures for processing and acting upon applications for asylum submitted by Salvadoran nationals. Plaintiffs contend that the existing system is fundamentally unfair and prejudicial to Salvadorans. They claim that applications for asylum by individual Salvadorans are subject to improper guidelines and as a result do not receive the individualized consideration which they claim are due them. Specifically, plaintiffs argue that the training and experience of those in the State Department who prepare advisory opinions used in making asylum determinations are inadequate, and that foreign policy considerations are improperly included in the decision making process. In addition, they contend that it is the practice of the State Department and INS to give only perfunctory consideration, as a matter of policy, to Salvadoran applications on the issue of asylum.

 I) SUMMARY JUDGMENT WILL BE GRANTED FOR THE DEFENDANTS ON THE EVD COUNT SINCE EXTENDED VOLUNTARY DEPARTURE STATUS CANNOT BE CONFERRED BY THE COURTS, AS IT IS EXTRA-STATUTORY, AND A PROPER EXERCISE OF THE ATTORNEY GENERAL'S DISCRETION TO ADMINISTER THE IMMIGRATION ACT

 The first Count involves the decision by the Attorney General not to grant Salvadoran nationals illegally in the United States blanket Extended Voluntary Departure status. Initially, it must be noted that the issue presented in this case, that of judicial review of the Attorney General's determination regarding a grant of EVD, is one of first impression in the Courts. EVD is an extra-statutory form of discretionary relief from the deportation provisions of the Immigration and Nationality Act of 1952, as amended. It is granted to an entire class of persons, usually based upon nationality. It is a term not found anywhere in the Immigration and Nationality Act or in the applicable regulations. Rather, the term Extended Voluntary Departure describes the Attorney General's discretion in determining the circumstances of both foreign and domestic policy which may give rise to a discretionary decision to grant a temporary suspension of deportation proceedings to members of a particular class of illegal aliens. As such, EVD is based on the prosecutorial discretion of the Attorney General after consultation or advice received from the State Department.

 The Constitutional foundation for grants of EVD derives from the Executive's express and inherent authority in the areas of both foreign and prosecutorial policy. The Constitution places responsibility for the conduct of foreign affairs with the Executive branch. U.S. CONST. art. II, § 2 United States v. Pink, 315 U.S. 203, 86 L. Ed. 796, 62 S. Ct. 552 (1942). "Intricately interwoven" with this plenary authority over foreign relations are actions taken in the regulation of aliens. Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 96 L. Ed. 586, 72 S. Ct. 512 (1952). Regulation of immigration is an "inherent executive power." United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 94 L. Ed. 317, 70 S. Ct. 309 (1950).

 The Attorney General's prosecutorial discretion finds its Constitutional basis under Article III, sections 1 and 3, which the Supreme Court has interpreted to mean that discretionary matters, such as in the immigration area, belong to the plenary, if not exclusive authority of the Executive. United States v. Nixon, 418 U.S. 683, 693, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). Specifically, it has been held that a determination "to commence a deportation proceeding or not to do so" is a matter of "prosecutorial discretion." Johns v. Department of Justice, 653 F.2d 884, 893 (5th Cir. 1981); Weisberg v. Department of Justice, 160 U.S. App. D.C. 71, 489 F.2d 1195, 1201 (D.C. Cir. 1973), cert. denied, 416 U.S. 993, 40 L. Ed. 2d 772, 94 S. Ct. 2405 (1974). This Constitutional authority to determine when or on what basis to prosecute a case is strongest when, as here, the matter involves enforcement of immigration laws. Harisiades v. Shaughnessy, supra, 342 U.S. at 596-97; Ludecke v. Watkins, 335 U.S. 160, 164, 92 L. Ed. 1881, 68 S. Ct. 1429 (1948). Further, grants of EVD do not relieve the aliens of individual adjudication and deportation procedures prescribed by the Act and regulations, but merely act to postpone those proceedings. Cf. Attorney General v. Irish People, Inc., 221 U.S. App. D.C. 406, 684 F.2d 928, 984 (D.C. Cir. 1982), cert. denied, 459 U.S. 1172, 74 L. Ed. 2d 1015, 103 S. Ct. 817 (1983). Thus, EVD is an exercise of the Executives "pure enforcement power." Id.

 The statutory basis for the Attorney General's discretionary power to grant or deny EVD is found in the Immigration and Nationality Act of 1952, as amended by the Refugee Act of 1980. 8 U.S.C. § 1101 et seq. The Act provides the framework for the Attorney General's authority over aliens seeking residence or refuge in the United States. The statute charges the Attorney General "with the administration and enforcement of the Act," and empowers him to "establish such regulations . . . and perform such other acts as he deems necessary for carrying out his authority . . .". 8 U.S.C. § 1103(a). See, Jean v. Nelson, 727 F.2d 957, 964-65 (11th Cir. 1984) (en banc). Thus, the Attorney General is vested with discretionary power to take actions and to "develop standards, principles and rules" so long as his actions are based upon "considerations rationally related to the statute he is administering." See Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970). This Circuit has held that the Act "need not specifically authorize each and every action taken by the Attorney General, so long as his action is reasonably related to the duties imposed upon him." Narenji v. Civiletti, 199 U.S. App. D.C. 163, 617 F.2d 745, 747 (D.C. Cir. 1979), cert. denied, 446 U.S. 957, 100 S. Ct. 2928, 64 L. Ed. 2d 815 (1980). Thus, the fact that EVD is extra-statutory in no way effects its validity as a discretionary action under the Act. "The Attorney General may govern the exercise of his discretion by written or unwritten rules." Mak, 435 F.2d at 731. Similarly, there can be no question that EVD is "rationally related to the statute [the Attorney General] is administering." Id. EVD is a tool utilized by the Attorney General, after consultation with the State Department, to respond to emergency situations which might require broad application of his authority under the Act, and which demand a speedy response.

 a) Judicial review does not come within the Administrative Procedure Act since EVD is not made reviewable by statute, and there exists an adequate remedy of appeal in deportation proceedings. There is no basis for the plaintiffs' blanket claims except for an abuse of discretion, which in this case cannot be said to exist.

 The primary issue is whether there exists any basis for judicial review of the Attorney General's decision regarding blanket EVD status for all the Salvadoran nationals illegally in the United States.

 The first step in the analysis is the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Under § 704 of that title, an agency action may only be subject to review if it is "made reviewable by statute or if it is a final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. The Attorney General's decision to deny EVD status to El Salvadorans is not made reviewable by any statute. Nor does the decision denying EVD status to Salvadorans in any way affect their remedies of appeal to the United States Courts of Appeal after exhausting the administrative process in deportation proceedings. The Salvadorans' "adequate remedy in a court" is found in the regulations under the Immigration and Nationalization Act. Salvadorans subject to deportation, irrespective of the denial of EVD, retain the right to a hearing should such deportation proceedings be instituted. 8 C.F.R. Part 242 (1984). Nor does the Attorney General's decision not to grant EVD to Salvadoran nationals affect their right to appeal an adverse result in such a deportation hearing, both to the Board of Immigration Appeals and to the United States Court of Appeals. 8 C.F.R. Part 3 and 8 U.S.C. § 1105(a). Therefore, judicial review of the Attorney General's decision, in this broad claim under the Administrative Procedure Act, is precluded.

 In addition, judicial review of agency actions is precluded when such action is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The legislative history of the Administrative Procedure Act indicates that this is applicable where "statutes are drawn in such broad terms that in a given case there is no law to apply." S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945). Citizens To Preserve Overton Park, Inc v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). In the case of EVD, there is indeed "no law to apply" because of its extra-statutory nature, and these aliens at the case at bar have an adequate remedy in deportation proceedings.

 b) The Attorney General's decision was based on his prosecutorial discretion, was in an area of agency expertise, did not violate any established standards, and involved political, military and foreign policy considerations, constitutionally committed to the executive branch. As such, the decision is not reviewable by this Court under the circumstances of this case.

 The factors involved in determining the propriety of judicial review of an agency's exercise of discretion are the breadth of the discretionary power, the administrative expertise as balanced against judicial competence to evaluate the action at issue, whether there exists meaningful criteria by which a court may evaluate the action, and whether the decision is one based on policies to which a court must defer to the political branches. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 2 L. Ed. 2d 788, 78 S. Ct. 752 (1958); New York v. United States, 331 U.S. 284, 91 L. Ed. 1492, 67 S. Ct. 1207 (1947); Local 2855, AFGE (AFL-CIO) v. United States, 602 F.2d 574, 578-80 (3rd Cir. 1979). Upon weighing these factors, the Court is faced with the inescapable conclusion that the Attorney General's decision is not subject to judicial review.

 It is clear from the discussion, supra, of the Constitutional basis for EVD that the decision here at issue is clearly a matter of the Attorney General's prosecutorial discretion, after his review of the evidence, to suspend, or, as here, not to suspend enforcement of the immigration laws in a specific case. It is well settled that the Executive has "exclusive authority and absolute discretion to decide whether to prosecute a case." United States v. Nixon, 418 U.S. 683, 693, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974), citing, inter alia, The Confiscation Cases, 74 U.S. (7 Wall) 454, 457-58, 19 L. Ed. 196 (1868). The Attorney General was acting in this prosecutorial discretionary capacity when he made his decision in the case at bar, and, therefore, judicial review is inappropriate under this thread of the analysis.

 There is no question that, under our system of separation of powers, matters involving an area such as foreign, military, or diplomatic policy, which has been entrusted exclusively to the Executive or Legislative branches, are subject, at most, to limited judicial review. Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d. 663 (1962). It is also well settled that "any policy toward aliens is vitally and intricately interwoven" with the conduct of this country's foreign affairs. Harisiades v. Shaughnessy, supra, 342 U.S. at 589-90, 72 S. Ct. at 519 (1952). The Supreme Court has recently affirmed that "matters relating 'to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. '" Regan v. Wald, 468 U.S. 222, 104 S. Ct. 3026, 3039, 82 L. Ed. 2d 171 (1984), citing Harisiades v. Shaughnessy, supra, 342 U.S at 589, 72 S. Ct. at 519. This Court cannot claim to have the expertise needed to decide such issues of foreign policy, and will defer to the Executive, to whom this area has been Constitutionally entrusted. U.S. CONST. art. II, § 2; Regan v. Wald, supra; Chicago & Southern Air Lines, Inc. v. Waterman Steamship Co., 333 U.S. 103, 92 L. Ed. 568, 68 S. Ct. 431 (1948); United States v. Pink, 315 U.S. 203, 86 L. Ed. 796, 62 S. Ct. 552 (1942). Only in the case of a clear abuse of discretion may a Court impose its judgment over that of the Executive in a case such as the one at bar. Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1199 (9th Cir. 1975).


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