The opinion of the court was delivered by: SPORKIN
STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.
This class action lawsuit is now before this court on plaintiffs' complaint seeking declaratory and injunctive relief. Plaintiffs, who are nonimmigrant aliens and organizations whose prime function is to perform immigration counseling, brought this lawsuit to challenge regulations promulgated by the Immigration and Naturalization Service ("INS") implementing the legalization or "amnesty" provisions of the Immigration Reform and Control Act of 1986 ("IRCA"). Plaintiffs contend that the regulations implementing the statutory requirements for nonimmigrants to establish their eligibility for legalization (or amnesty) "violate the plain meaning of the statute, are unreasonable and unlawfully exclude individual plaintiffs and the class they represent from obtaining legal immigration status." Complaint at para. 1. Plaintiffs specifically take issue with defendants' interpretation of the statutory phrase "unlawful status was known to the Government" prior to January 1, 1982. See 8 U.S.C. § 1255a(a)(2)(B). According to plaintiffs, defendants' regulations unlawfully preclude INS from relying on any other evidence, including Internal Revenue Service records, Social Security Administration records or any other similar federal government records to satisfy the "unlawful status was known to the Government" requirement -- even if those records can irrefutably establish that an alien violated his or her nonimmigrant status prior to January 1, 1982.
It is defendants' position that IRCA requires nonimmigrant aliens who claim eligibility for legalization under the "known to the Government" standard to prove affirmatively that the INS itself knew of his or her unlawful status prior to January 1, 1982. In implementing the statute, the defendants have by regulation interpreted the "known to the Government" standard as meaning "known to the INS." Plaintiffs contend that defendants' interpretative regulation is contrary to the plain meaning of the statute and seek declaratory relief as well as an injunction prohibiting that narrow construction of the statutory language.
I held a hearing on March 25, 1988 on plaintiffs' motion for a preliminary injunction at which I heard testimony from three witnesses. The plaintiffs presented testimony from Father Kevin Farrell, a representative of the Associated Catholic Charities and the Spanish Catholic Center of the Archdiocese of Washington, D.C. and Ms. Konjit Getachew, an immigration case worker for the Ethiopian Community Center. These organizations are "qualified designated entities," which is a special status accorded to certain immigration counseling organizations under IRCA. Both Father Farrell and Ms. Getachew are experienced in immigration counseling and are deeply involved in the legalization program. The Government presented testimony from Terrance O'Reilly, the Deputy Commissioner for Legalization of the Immigration and Naturalization Service. Their testimony was credible and I have credited it. I have also heard oral argument.
In light of the obvious need to make an expeditious decision in this matter, and based on the testimony, the oral argument and the written briefs and exhibits, I make the following findings of fact and conclusions of law:
On November 6, 1986, the President signed into law the Immigration Reform and Control Act of 1986, Pub. L. 99-603. This legislation is the most comprehensive reform of our immigration laws since the enactment in 1952 of the Immigration and Nationality Act ("INA"). The product of intensive Congressional debate, IRCA was crafted carefully to obtain consensus among competing interests and viewpoints. The Act reflects both a national resolve to control illegal immigration and our Nation's concern and compassion for certain aliens who have been residing illegally in the United States. See generally H.R. Rep. No. 682, 99th Cong., 2d Sess., at 46, 49 (1986); 52 Fed. Reg. 16205 (May 1, 1987). IRCA contains provisions that address both of these concerns, including employer sanctions for hiring illegal aliens, prohibitions against certain types of employment discrimination, provisions that strengthen the enforcement capabilities of the Attorney General and INS, and several programs for granting legal status to aliens residing illegally in the United States. This lawsuit concerns one aspect of the legalization program.
The central legalization program in the Act provides for the legalization of aliens who entered the United States prior to January 1, 1982, and who have resided continuously in the United States in an unlawful status since that date. Section 201 of IRCA, codified as INA § 245A, 8 U.S.C. § 1255a. Section 201 of the Act provides that in order to be eligible for legalization, an alien must satisfy four requirements: (1) An alien must make timely application. For the vast majority of plaintiffs, that requirement can only be met by filing an application prior to May 4, 1988; (2) An alien must have been in continuous unlawful residence in the United States since 1982; (3) An alien must have been continuously present in the United States since the enactment of the statute on November 6, 1986; and (4) An alien, with certain exceptions, must be admissible as an immigrant. Section 201 of IRCA, 8 U.S.C. § 1255a(a) (1)-(4). Aliens who meet these four requirements shall be granted the status of an "alien unlawfully admitted for temporary residence." 8 U.S.C. § 1255a(a).
Regarding the second requirement, "continuous unlawful residence since 1982," the meaning of which is at the heart of this case, IRCA provides, in its entirety, as follows:
(2) Continuous unlawful residence since 1982
The alien must establish that he entered the United States before January 1, 1982, and that he has resided continuously in the United States in an unlawful status since such date and through the date the application is filed under this subsection.
In the case of an alien who entered the United States as a nonimmigrant before January 1, 1982, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the Government as of such date.
If the alien was at any time a nonimmigrant exchange alien (as defined in section 1101(a)(15)(J) of this title), the alien must establish that the alien was not subject to the two-year foreign residence requirement of section 1182(e) of this title or has fulfilled that requirement or received a waiver thereof.
8 U.S.C. § 1255a(a)(2) (emphasis added). Aliens who entered the country unlawfully -- that is without permission and without inspection at a border -- are eligible for legalization if they show continuous residence in the United States since 1982. Such residence, because of the manner they entered the country, is by definition unlawful.
Similarly, aliens who entered the country lawfully as nonimmigrants -- that is, entered with the permission of the United States and submitted to inspection at the border -- are eligible for legalization if their status became unlawful prior to January 1, 1982. The Act provides that a nonimmigrant can establish the requisite unlawful status by one of two alternative methods. The alien either must establish that the alien's period of authorized stay -- that is, his or her visa -- expired before 1982 or the alien must establish that the alien violated the terms of his or her visa prior to 1982 and that his or her "unlawful status was known to the Government." The focus of this case is the meaning of that final term -- "unlawful status was known to the Government" prior to January 1, 1982.
On March 19, 1987, INS published a notice of proposed rulemaking on the implementation of the legalization provisions of IRCA in the Federal Register. 52 Fed. Reg. 8752. The proposed rulemaking limited the term "known to the Government" to mean "known to the INS." See 52 Fed. Reg. at 16202 (May 1, 1987) (discussing reaction to proposed eligibility requirements for legalization). In response to the proposed rule, INS received 91 comments which addressed the "known to the government" issue. Id. According to INS, "all of the comments clearly stated that the definition was far too restrictive and should be modified to include all Federal agencies." Id. Many of the responses also suggested that state and local agencies should be included. Id.
On May 1, 1987, INS promulgated final rules implementing the legalization provisions of IRCA. 52 Fed. Reg. 16205 (May 1, 1987) codified at 8 C.F.R. 245a1(d). Despite the public's adverse comments, these regulations provide that in the term "unlawful status was known to the Government," the term "Government" means the Immigration and Naturalization Service. 52 Fed. Reg. at 16206. The regulations provide, in relevant part:
In the term "alien's unlawful status was known to the Government," the term "government" means the Immigration and Naturalization Service. An alien's unlawful status was "known to the Government" only if:
(1) The Service received factual information constituting a violation of the alien's nonimmigrant status from any agency, bureau or department, or subdivision thereof, of the Federal government, and such information was stored or otherwise recorded in the official Service alien file, whether or not the Service took follow-up action on the information received. In order to meet the standard of "information constituting a violation of the alien's nonimmigrant status," the alien must have made a clear statement or declaration to the other federal agency, bureau or department that he or she was in violation of nonimmigrant status; or
(2) An affirmative determination was made by the Service prior to January 1, 1982 that the alien was subject to deportation proceedings . . . .; or
(3) A copy of a response by the Service to any other agency which advised that agency that a particular alien had no legal status in the United States or for whom no record could be found.
8 C.F.R. § 245a.1(d) (May 1, 1987).
On September 22, 1987, the district court for the Northern District of Texas, on a motion for a writ of habeas corpus, held that INS' regulations regarding the "known to the Government" requirement are "inconsistent with the Reform Act and are outside the scope of INS' authority." See generally Farzad v. Chandler, 670 F. Supp. 690 (N.D. Tex. 1987), motion to alter or amend judgment denied, Jan. 11, 1988, motion to dismiss or vacate order denied, Jan. 12, 1988. Defendants have appealed that ruling to the United States Court of Appeals for the Fifth Circuit. In the meantime, the INS has continued to use these regulations, without any modification to accord with the Farzad decision, to process legalization applications pending the resolution of that appeal.
Thus despite the ruling in Farzad v. Chandler, it is clear that an individual, although he was in the United States illegally prior to January 1, 1982, does not qualify for legalization without meeting the very limited INS regulations. Individuals who fall into this category are also aware that in order to become legalized in accordance with INS procedures, they will first have to exhaust their administrative remedies and they will then have to defeat the INS in federal court.
Id. In other words, nonimmigrant aliens realize that obtaining legal status is almost certain to be an expensive, protracted process. Plaintiffs' witnesses have made it clear that INS' stance has deterred many nonimmigrant aliens who would otherwise qualify for legalization from submitting an application.
On November 17, 1987, the INS published an interim final rule that added one additional basis on which an alien's unlawful status could be known to the Government. 52 Fed. Reg. 43843 (November 17, 1987) codified at 8 C.F.R. § 245a.1(d)(4). Pursuant to that amendment, an alien can meet the statutory requirement provided the alien can provide INS with documentation from an approved school wherein the school informed the INS that an alien had violated his nonimmigrant status prior to January 1, 1982. That amendment has been interpreted by INS to mean "that the applicant for legalization can show his or her unlawful status was known to the Government if he or she submits documentation from an appropriate school showing that (1) the school previously reported that the student was in unlawful status, and (2) the previous report was made to the Service prior to January 1, 1982, or, the appropriate school made an 'immediate report' about unlawful status existing prior to January 1, 1982 . . . although the report was received by the Service after January 1, 1982." Defendants' Exhibit 4, Declaration of Terrance M. O'Reilly at 2 (emphasis added).
On March 8, 1988 the five named individual plaintiffs and the four organizational plaintiffs brought this lawsuit. The individual plaintiffs are members of a nationwide class consisting of aliens who would otherwise be eligible for legalization but for the INS' interpretation of the "known to the Government" requirement in IRCA. The organizational plaintiffs devote the majority of their efforts to assisting immigrants and have been actively and extensively engaged in the legalization program created by IRCA. The one year amnesty period during which aliens may apply for legalization expires on May 4, 1988.
Before reaching the merits, I must address defendants' contention that this controversy is not yet justiciable. Defendants raise challenges to the standing of both the individual plaintiffs and the organizational plaintiffs. In addition, defendants assert that the doctrine of exhaustion of remedies precludes judicial review at this time. I have reviewed defendants' arguments and have determined that they are without merit.
In assessing the standing issue, I must assume the truth of plaintiffs' uncontested allegations and construe the complaint in plaintiffs' favor. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979); Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). In any case, defendants have presented no countervailing factual evidence against plaintiffs' standing allegations.
Article III of the Constitution limits this court's jurisdiction to "cases" and "controversies." Diamond v. Charles, 476 U.S. 54, 106 S. Ct. 1697, 1703, 90 L. Ed. 2d 48 (1986). In order to satisfy Article III's "case" or "controversy" requirement, a litigant must "'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant' and that the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision.'" Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (footnote and citations omitted). See also Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984).
The four organizational plaintiffs in this lawsuit -- especially the two which are Qualified Designated Entities ("QDEs") pursuant to IRCA, undoubtedly have standing to bring this lawsuit. These organizational plaintiffs -- which include Ayuda, a non-profit legal services agency that provides immigration counseling for low-income Hispanics in the D.C. area, the Ethiopian Community Center, a non-profit entity organized to provide immigration counseling, the Latin American Youth Center ("LAYC"), a not-for-profit corporation organized for the purpose of assisting Latino youth adjust to the norms and institutions of American life, which has been actively involved in counseling applicants for legalization and disseminating information concerning the eligibility requirements of IRCA, and the Mexican American Legal Defense Fund ("MALDEF"), a non-profit legal advocacy organization which has expended considerable resources in counselling applicants about IRCA's eligibility requirements -- have standing in their own right.
Each of these organizations has placed a high priority on immigration counseling. Two of these organizations, Ayuda and the Ethiopian Community Center, are Qualified Designated Entities pursuant to IRCA. See generally Section 245A(c)(1) - (4) of IRCA; 8 U.S.C. § 1255a(c)(1) - ...