The opinion of the court was delivered by: PAUL L. FRIEDMAN
Most of the facts relevant to this case have previously been set forth in the opinion of the United States Court of Appeals for the District of Columbia Circuit in Legal Assistance for Vietnamese Asylum Seekers ("LAVAS") v. Department of State, 310 U.S. App. D.C. 168, 45 F.3d 469, 470-71 (D.C. Cir. 1995). For the sake of clarity, the Court shall briefly recount the relevant facts of this case and the current posture of LAVAS, a case closely related to this action.
Since 1975, when Saigon was captured by the North Vietnamese, hundreds of thousands of Vietnamese have fled Vietnam and have sought asylum in Hong Kong. Until 1988, Vietnamese asylum-seekers were accorded presumptive refugee status and placed in detention camps for processing and resettlement in other countries, the United States among them. When the number of people fleeing Vietnam increased in the late 1980's, the Hong Kong government announced that it was revoking the presumptive refugee status previously accorded those immigrants. The Hong Kong government instead began individually screening Vietnamese arrivals to determine whether those individuals qualified as refugees under the 1951 Refugee Convention.
Nearly 50 countries, including the United States, adopted the new policy of the Hong Kong government at an international conference in Geneva in 1989; the policy was set forth in a Comprehensive Plan of Action ("CPA"). The CPA provides that those Vietnamese who are screened-out by the Hong Kong government (that is, those found not to qualify for refugee status) should return to Vietnam and seek resettlement through Vietnam's Orderly Departure Program ("ODP"). The CPA contemplates both voluntary and involuntary repatriation of screened-out Vietnamese immigrants. The Hong Kong government has begun forcibly repatriating Vietnamese immigrants, and the most recent forced-repatriation flight from Hong Kong took place in late May of this year.
Despite the CPA, the United States Consulate in Hong Kong continued to process the visa applications of certain screened-out Vietnamese -- namely, those Vietnamese with spouses or other close relatives in the United States who already possessed approved immigrant visa ("IV") petitions.
In April 1993, however, the United States Department of State changed its policy and directed the U.S. Consulate in Hong Kong to cease processing visa applications of this class of screened-out Vietnamese. Under that new policy, the Consulate refused to process the visa applications of any screened-out Vietnamese and began instructing those persons that they were required to return to Vietnam for processing through the ODP.
B. LAVAS v. Department of State
In February 1994, a nonprofit group, Legal Assistance for Vietnamese Asylum Seekers ("LAVAS"), and several named individual plaintiffs (Vietnamese detainees in Hong Kong and spouses of those detainees legally residing in the United States) filed suit against the Department of State and moved for a temporary restraining order and preliminary injunction against the Department. Plaintiffs alleged in LAVAS that the Department's policy change violated the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1152(a)(1) (1995), because the Department's policy discriminated against immigrant Vietnamese on the basis of their country of origin. Plaintiffs in LAVAS also moved for certification of a plaintiff class consisting of screened-out Vietnamese in Hong Kong camps whose initial petitions to the INS had been accepted and who therefore possessed IV applications, but who were no longer eligible for further processing in Hong Kong.
On the same day that plaintiffs filed suit in LAVAS, the Department reversed its policy and once again began screening non-refugee Vietnamese with IV petitions at the United States Consulate in Hong Kong. This processing continued until December 1, 1994, when the Department again reversed course and refused to process the applications of any non-refugee Vietnamese who had not reported themselves "document-qualified" (in possession of all the relevant documentation for their visa processing) by that date.
On March 2, 1994, Judge Harris denied the LAVAS plaintiffs' motion for a temporary restraining order. The Court of Appeals exercised jurisdiction over an appeal from the denial of plaintiffs' motion for a TRO and granted emergency injunctive relief. Judge Harris then consolidated a hearing on plaintiffs' motion for a preliminary injunction with a hearing on the merits and issued a Memorandum Order on April 28, 1994, granting defendants' motion for summary judgment and denying plaintiffs' motion for class certification as moot. Plaintiffs appealed.
On February 3, 1995, a panel of the Court of Appeals issued an opinion holding that the Department's policy of refusing to process non-refugee Vietnamese immigrants' visa applications in Hong Kong discriminated against those persons on the basis of their place of origin, in violation of the INA, 8 U.S.C. § 1152(a)(1), which provides that "no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person's . . . nationality . . . or place of residence." LAVAS v. Department of State, 45 F.3d 469, 473 (D.C. Cir. 1995). The court concluded that "Congress has unambiguously directed that no nationality-based discrimination shall occur" and that there was "no room" for the INS' interpretation of the statute. Id. The court therefore found that the Department's policy was in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because it was not implemented "in accordance with law." Id. at 474.
The Department subsequently petitioned the D.C. Circuit for rehearing, arguing, inter alia, that the case had become moot. On May 11, 1995, the Court of Appeals issued an order holding defendants' petition for rehearing in abeyance and remanding LAVAS to this Court for a determination of mootness. Judge Harris ordered the parties to brief the issue; the matter is not yet fully briefed and ripe for adjudication. The mandate from the Court of Appeals in LAVAS has not issued.
C. Facts Specific To This Action
The specific facts of this case are as follows: Plaintiff Vo Van Chau ("Mr. Vo") is an American citizen living in the United States. His wife, plaintiff Le Thi Thanh Xuan ("Mrs. Le"), is a screened-out Vietnamese immigrant currently detained at High Island, a Hong Kong detention center. She has been detained in the Hong Kong camps since she fled Vietnam in 1988. See Pls.' Mot. for Prelim. Inj. at 2-4. Mrs. Le and Mr. Vo were married in Hong Kong in December 1991. Decl. of Le Thi Thanh Xuan ("Le Decl.") at 2.
Mr. Vo filed a petition with the INS for an immigrant visa for Mrs. Le in January 1992, and the INS granted the petition. Mr. Vo subsequently became a citizen of the United States. Mrs. Le's petition became current in April 1995. Since Mrs. Le's petition did not become current until after the Department had reinstituted its policy of refusing to process IV applications of screened-out Vietnamese immigrants, the Department has informed Mrs. Le that ...