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AHMANULLAH ROSHAN v. SMITH

August 6, 1985

AHMANULLAH ROSHAN, et al., Plaintiffs
v.
WILLIAM FRENCH SMITH, et al., Defendants



The opinion of the court was delivered by: HOGAN

 HOGAN, U.S. District Judge

 The named plaintiffs in this action include twenty-three individuals currently being detained at various Immigration and Naturalization Service facilities throughout the United States who are potentially excludable or deportable aliens, as well as seventeen attorneys and twelve advocacy and service organizations that represent and counsel detainees in immigration proceedings. The plaintiffs seek declaratory and injunctive relief that would prevent the completion and operation of an Alien Detention Center (ADC) presently under construction in Oakdale, Louisiana, and scheduled to open in October 1985. The Oakdale ADC is intended to be a 1,000 bed facility for housing individuals detained by the INS until their status is adjudicated -- the largest such facility in the United States. The ADC is also intended to include an emergency expansion site for temporarily housing an additional 2,000 to 3,000 individuals in the event of a sudden influx of illegal aliens.

 The detainee-plaintiffs have brought claims on behalf of themselves as well as other persons whom they assert may be detained as alleged excludable or deportable aliens at the Oakdale ADC. *fn1" The plaintiffs maintain that because of the Oakdale ADC's size and rural location detainees will be unable to obtain attorneys willing to represent them on a pro bono basis, thereby denying them constitutional and statutory rights to counsel and to meaningful access to the adjudicatory process. The detainee-plaintiffs also allege that the final Environmental Impact Statement (EIS) prepared for the project was deficient, in violation of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., and that incarceration at the Oakdale ADC will subject detainees to adverse environmental impacts.

 With respect to the attorney plaintiffs and organization-plaintiffs, the amended complaint alleges that the operation of the Oakdale detention center would interfere with their First Amendment rights to continue representation of present clients who may be transferred to Oakdale, as well as to solicit and advise prospective clients.

 This case is presently before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment. Upon consideration of defendants' motion, the plaintiffs' opposition thereto, as well as the amended complaint, this Court concludes that all claims raised in the amended complaint must be dismissed.

 I.

 The detainee-plaintiffs maintain that incarceration at the Oakdale ADC will violate the rights of detainees housed there to counsel and to meaningful access to the adjudicatory process as guaranteed under the Immigration and Nationality Act, 8 U.S.C. § 1362, the Administrative Procedure Act, 5 U.S.C. § 555(b), and the Due Process Clause of the Fifth Amendment.

  The Immigration and Nationality Act provides that "in any exclusion or deportation proceeding . . . the person concerned shall have the privilege of being represented (at no expense to the government) by such counsel . . . as he shall choose." 8 U.S.C. § 1362. *fn2" The plaintiffs assert that because detained aliens are generally indigent but have no right to appointed counsel, they must almost exclusively depend on free legal services from charitable organizations or pro bono private counsel. The plaintiffs further maintain that even in urban areas with large concentrations of practicing lawyers, considerable effort is required to obtain legal representation for detained aliens in the area. Therefore, the detainee-plaintiffs allege, because the Oakdale ADC is under construction in a remote rural area with relatively few practicing attorneys compared to the number of aliens to be detained there, the detainees will have no realistic opportunity to exercise their statutory right to be represented by counsel.

 The defendants have raised both standing and ripeness challenges to the detainee-plaintiffs' right to counsel claims. The standing doctrine considers whether the party seeking to invoke jurisdiction has alleged "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues. . . ." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982), the Supreme Court enumerated three requirements of standing. The Court held that Article III's requirement of a "case and controversy" requires at a minimum that the plaintiff establish (1) that he "personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant" and (2) that the injury "fairly can be traced to the challenged actions," and (3) "is likely to be redressed by a favorable decision." Id. at 472 (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979), and Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S. Ct. 1917, 48 L. Ed. 2d 450(1976)).

 The ripeness doctrine considers whether the "conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Railway Mail Association v. Corsi, 326 U.S. 88, 93, 89 L. Ed. 2072, 65 S. Ct. 1483 (1945). The ripeness doctrine therefore requires the Court to "balance its interest in deciding the issue in a more concrete setting against the hardship to the parties caused by delaying review." Webb v. Dept. of Health & Human Services, 225 U.S. App. D.C. 19, 696 F.2d 101, 106 (D.C. Cir. 1982) (discussing Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967)); see also Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475, 1480 (D.C. Cir. 1984). In doing so, the Court must consider the reality and imminence of injury to the plaintiff and the adversariness of the parties' positions. KVUE, Inc. v. Moore, 709 F.2d 922, 927 (5th Cir. 1983).

 Therefore, as a general matter the standing and ripeness doctrines are directed to different concerns, with standing considering who may bring an action challenging alleged unlawful activity, and ripeness considering when such an action may be brought. See 13A C. Wright, A. Miller & A. Cooper, Federal Practice and Procedure, § 3531.12, at 50 (2d ed. 1984). However, to the extent that the justiciability challenge focuses on the sufficiency versus remoteness of the alleged injury, ripeness and standing concerns merge. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 81, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978) (conclusion through standing analysis that sufficient immediate injury alleged satisfies ripeness concerns); Kerr-McGee Chemical Corp. v. Department of the Interior, 709 F.2d 597, 600 (9th Cir. 1983) (standing and ripeness issues merge into consideration of whether plaintiff-appellee injured by federal agency's action); KVUE, Inc. v. Moore, 709 F.2d 922, 927-28 (5th Cir. 1983) (standing doctrine closely related to ripeness "case or controversy" requirement by necessity of personal stake in outcome of controversy); Spencer v. Honorable Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880, 882 & n.1 (E.D. Pa. 1984) ("ripeness" doctrine subsumed within standing's "threatened injury" requirement); see also C. Wright, A. Miller & E. Cooper, § 3531.12 (2d ed. 1984). Thus, in Kerr-McGee, supra, the court stated:

 
Both standing and ripeness require some demonstration of injury. Standing requires that the plaintiff show that the challenged action has caused it threatened or actual injury. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [60 L. Ed. 2d 66, 99 S. Ct. 1601] . . . (1979).
 
To determine ripeness, the court assesses the appropriateness of the issue for judicial resolution and the hardship that will result from the denial of relief at this stage. Toilet Goods Association v. Gardner, 387 U.S. 158, 162 [18 L. Ed. 2d 697, 87 S. Ct. 1520] . . . (1967). Even when the . . . action challenged is "final" and the issues raised are purely legal, a case is not ripe for ...

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