and placed in exclusion proceedings who could present a nonfrivolous claim for adjustment of status under section 210 would not be excluded." Id.
Plaintiffs ask the Court to follow the reasoning of Judge Karlton and submit that the precedent shows a probability of success on the merits. Plaintiffs assert that the statutory provisions in question neither explicitly nor impliedly grant legislative power to the INS or the Attorney General. The Court has a duty, according to plaintiffs, to interpret the provisions. The plaintiffs assert that the plain language of the statute is clear and unambiguous, but they extensively cite to the legislative history in support of their arguments. The statute on its face does not impose an entry cutoff date for applying for SAW benefits within the United States. According to plaintiffs, the cutoff date also violates section 210(d)(2), which prohibits the Attorney General from deporting or excluding or denying employment authorization to any alien who has filed a nonfrivolous application for SAW status. The legislative history specifically rejects a requirement of continuous physical presence in this country as a criterion of eligibility. See H.R. Conf. Rep. No. 1000, 99th Cong., 2d Sess., reprinted in 1986 U.S. Code, Cong. & Ad. News 5840, 5851. Congress did not limit the benefits under SAW on the basis of an alien's presence, although it has provided such limits in other immigration provisions.
The government argues that plaintiffs have failed to establish the likelihood of success on the merits. The government maintains that the cutoff date was necessary to protect the integrity of the H-2 program in the United States and of the growers who depend on it. As previously noted, the government paints a picture of rotting crops in the fields in the event that harvest labor is not available. If an H-2 worker applies for SAW status, according to the government, the grower may not compel his services in completing the contractual obligations. The SAW worker may seek employment elsewhere.
Defendants also argue that judicial review under the statute involved is limited. The statute provides: "There shall be no administrative or judicial review of a determination respecting application for adjustment of status under this section, except in accordance with this subsection." IRCA § 210(e). Defendants submit that an administrative challenge should have been made or included in an application, rather than a suit filed in court. Judicial review is only available in the courts of appeals upon the order of exclusion or the deportation of an applicant, according to defendants. IRCA § 210(e)(2)(A). A prerequisite to judicial review is the exhaustion of administrative remedies. Finally, defendants argue that the public interest would not be served by injunctive relief, because the entire H-2 program would lose credibility. The effect of an injunction, according to defendants, would require modification of the rule as to all H-2 workers. The government fears that harvest workers all over the United States would walk away from their jobs, if given SAW status. That harm would substantially outweigh the inconvenience to plaintiffs, according to defendants.
The Court concludes that plaintiffs have shown a likelihood of success on the merits. This Court agrees with the California District Court's order that the plain language of the statute, as well as its legislative history, reflect no intent on the part of Congress to limit the applications filed in the United States to those aliens who entered the country prior to June 26, 1987, a date that government counsel conceded to be "a little arbitrary." The Court is persuaded that the regulation imposing the cutoff date is without authority under the statute, and that it is arbitrary.
Although Courts often defer to the expertise of agencies in interpreting statutes that they administer, it is for the courts to determine whether an agency's interpretation of a statute is inconsistent with the intent of Congress. The statutory limitation on judicial review that defendants argue precludes this Court from exercising jurisdiction over this case does not apply here. The Supreme Court has stated that "'the judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear Congressional intent.'" INS v. Cardozo-Fonseca, 480 U.S. 421, 55 U.S.L.W. 4313, 4320, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Counsel, 467 U.S. 837, 843 n.9, 81 L. Ed. 2d 694, 104 S. Ct. 2778 n.9 (1984)). In other words, the Court will never defer to the expertise of an agency in interpreting a statute where the agency has made an interpretation contrary to the statute.
In reaching its conclusion, the Court finds that the plain meaning of the statute is clear and unambiguous. The statute provides for the filing of applications in the United States or in American consulates. The filing provision imposes no limitations on filing, except the following criteria of eligibility: (1) that the applicant has resided and worked for at least 90 days in certain crops in this country during the twelve-month period prior to May 1, 1986; (2) that the applicant is admissible as an immigrant; and (3) that the applicant files a nonfrivolous application prior to December 1, 1988.
As the California Court found, this Court is persuaded that, although the section permits applications to be filed at consulates in Mexico, there is nothing in the statute that requires aliens to apply either inside or outside of the United States, depending on their date of entry. The Court cannot conclude from the statute's sparse legislative history that Congress intended to impose any physical presence requirement. Indeed, part of the legislative history reflects the specific rejection by Congress of a requirement of continuous physical presence in the United States as a prerequisite for filing an application for SAW status or for the benefits conferred under the SAW program. H.R. Conf. Rep. No. 1000, 99th Cong., 2d Sess., reprinted in 1986 U.S. Code, Cong. & Ad. News 5840, 5851.
The Court further finds that in the case at hand, the stated purpose of the cutoff date - controlling illegal immigration - will not be served by its imposition on plaintiffs. See 52 Fed. Reg. 28660, 28662-63 (July 31, 1987). Plaintiffs are legally present in the United States and may lawfully remain upon filing their nonfrivolous SAW applications. The Court is unpersuaded that plaintiffs will abandon their obligations to the Virginia tobacco growers. Indeed, that harvest has almost been completed. Thus, the imposition of the arbitrary cutoff date on plaintiffs serves no purpose that the Court can determine, other than to force plaintiffs to leave this country without allowing them to make their SAW applications here.
This is a preliminary injunction. The Court finds that, according to the standards stated by the United States Court of Appeals for the District of Columbia Circuit, plaintiffs have shown that without a preliminary injunction they will be irreparably harmed. The Court further finds that plaintiffs have demonstrated a likelihood of success on the merits. Finally, the Court finds that the issuance of an injunction will harm neither defendants nor the public interest. The plain language of the statute, which Congress presumably passed in the public interest, suggests that Congress did not intend to limit applications filed in the United States to those aliens physically present in the United States prior to June 26, 1987. Congress required only that applications be filed prior to December 1, 1988, which is the cutoff date of the application period.
Date: October 2nd, 1987
ORDER - October 5, 1987, Filed
Upon consideration of plaintiffs' motion for a preliminary injunction, defendants' opposition thereto, the oral arguments presented by counsel in open court, the entire record herein, and for the reasons stated in the accompanying memorandum, it is by the Court this 2nd day of October, 1987,
ORDERED that Defendants Edwin Meese, III, as Attorney General of the United States, and the United States Immigration and Naturalization Service ("INS"), and all persons acting by, through, or under them, or subject to their control or supervision, be and hereby are enjoined as follows:
1. From refusing to accept or marking as invalid or requiring insistence by the applicant, or taking adverse action on any nonfrivolous application for adjustment of status under section 210 of the Immigration and Nationality Act ("I&NA"), filed by any plaintiff in the above captioned case, who is present in the United States and who last entered with a temporary visa issued pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii) or its current codification at 8 U.S.C. § 1101(a)(15)(H)(ii)(a) ("H-2" and "H-2A" aliens) to work in the Virginia tobacco harvest, on the basis of the alien's last date of entry in the United States on June 26, 1987 or thereafter.
2. From failing to accord to plaintiffs who entered to work in the Virginia tobacco harvest and who file nonfrivolous applications for adjustment of status under section 210 of the I&NA, on the basis of the date of their last entry into the United States, all of the rights and benefits under the immigration laws and under INS policies to which an individual who has filed a nonfrivolous application is entitled, including employment authorization and immunity from deportation or exclusion pending adjudication of the application.
3. From failing to consider as eligible to file applications for adjustment of status under section 210 of the I&NA within the United States, plaintiffs who last entered the United States on June 26, 1987 or thereafter to work in the Virginia tobacco harvest.
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