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AMERICAN IMMIGRATION LAWYERS ASS'N v. RENO

August 20, 1998

AMERICAN IMMIGRATION LAWYERS ASSOCIATION, et al., Plaintiffs,
v.
JANET RENO, Attorney General of the United States, Defendant. LIBERIANS UNITED FOR PEACE AND DEMOCRACY, et al., Plaintiffs, v. JANET RENO, Attorney General of the United States, et al., Defendants. ELBA DIGNA WOOD, et al., Plaintiffs, v. JANET RENO, Attorney General of the United States, et al., Defendants.



The opinion of the court was delivered by: SULLIVAN

MEMORANDUM OPINION & ORDER

 EMMET G. SULLIVAN, United States District Judge.

 Plaintiffs, including ten immigrant assistance organizations and numerous individual aliens, commenced these three separate lawsuits against Attorney General Janet Reno, Commissioner of the Immigration and Naturalization Service ("INS") Doris Meissner, and Director of Immigration Review Executive Office Anthony Moscato, to challenge the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), as well as the regulations, policies, and practices implemented under the new statute. *fn1" The Court has consolidated these cases for the purpose of resolving in one Opinion the related issues raised by the parties.

 In their complaints, plaintiffs assert the following claims: that the Interim Regulations implementing IIRIRA violate the intent of IIRIRA; that the INS fails to follow the Interim Regulations; and that IIRIRA and the Interim Regulations violate due process, equal protection, International Law, and the First Amendment.

 Pending before the Court are defendants' motions to dismiss all of plaintiffs' claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon careful consideration of the pleadings, relevant statutes, case law, and the record herein, defendants' motions to dismiss are GRANTED.

 I. STATUTORY FRAMEWORK

 The complexity and intricacy of IIRIRA, the Interim Regulations, and plaintiffs' challenges compel the Court to explain in detail the statutory framework of IIRIRA, prior to discussing and resolving the claims of the individual and organizational plaintiffs.

 A. Prior System

 These consolidated lawsuits challenge the statutory provisions governing the admittance of aliens arriving at this country's borders. Prior to the implementation of IIRIRA, aliens arriving at a United States port of entry were required to establish to an immigration inspector's satisfaction that they were entitled to enter the United States. If an immigration inspector was doubtful of an alien's right to enter, the inspector referred the alien to a process known as "secondary inspection." During secondary inspection, an immigration inspector briefly interviewed the alien. At that time, the alien could withdraw her application for admission voluntarily. In the event the alien chose not to withdraw her admission application, the alien was entitled to an exclusion hearing. An exclusion hearing was held before an immigration judge, a decision-maker independent of INS. The alien had a right to counsel and was given a list of persons providing free legal services. An alien was then entitled to present evidence and to challenge the government's evidence. If needed, foreign language interpretation was provided by the government. The alien was then entitled to appeal an adverse decision of the immigration judge to the Board of Immigration Appeals.

 B. New System

 1. Purpose of IIRIRA

 IIRIRA substantially amended the Immigration and Nationality Act of 1952 ("INA") and established a new summary removal process for adjudicating the claims of aliens who arrive in the United States without proper documentation. The decision to adopt an "expedited removal" system was prompted by Congress's finding that "thousands of aliens arrive in the U.S. at airports each year without valid documents and attempt to illegally enter the U.S." H.R. Rep. No. 104-469, pt. 1, at 158 (1996). As noted in the conference report for IIRIRA, the purpose of the new removal procedures

 
is to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted . . . , while providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed by officers with full professional training in adjudicating asylum claims.

 H.R. Conf. Rep. No. 104-828, at 209 (1996).

 2. The Inspection Process

 To understand the "expedited removal" system which IIRIRA and its implementing regulations establish for certain aliens seeking initial entry into the United States, it is first necessary to understand the system for the admission of aliens in general.

 Under the statutory scheme, an alien (a person not a citizen or national of the United States) is deemed to be seeking "entry" or "admission" into the United States if she "arrives" at a port of entry (such as an airport) and has not yet been admitted by an immigration officer. See INA § 235(a)(1), 8 U.S.C. § 1225(a)(1); 8 C.F.R. § 1.1(q). Upon her arrival, the alien is subject to "primary inspection," and potentially to "secondary inspection" as well. The INS has explained these procedures in the "Supplementary Information" accompanying IIRIRA's implementing regulations:

 
All persons entering the United States at ports-of-entry undergo primary inspection. . . . In FY 96, the Service conducted more than 475 million primary inspections. During the primary inspection stage, the immigration officer literally has only a few seconds to examine documents, run basic lookout queries, and ask pertinent questions to determine admissibility and issue relevant entry documents. . . . If there appear to be discrepancies in documents presented or answers given, or if there are any other problems, questions, or suspicions that cannot be resolved within the exceedingly brief period allowed for primary inspection, the person must be referred to a secondary inspection procedure, where a more thorough inquiry may be conducted. In addition, aliens are often referred to secondary inspection for routine matters, such as processing immigration documents and responding to inquiries.

 62 Fed. Reg. 10312, 10318 (1997).

 If the immigration officer determines during secondary inspection that the alien is inadmissible either because she possesses fraudulent documentation (INA § 212(a)(6)(C), 8 U.S.C. § 1182 (a)(6)(C)) or no valid documentation (INA § 212(a)(7), 8 U.S.C. § 1182(a)(7)), the alien becomes subject to expedited removal. INA § 235(b)(1)(A)(i), 8 U.S.C. § 1225(b)(1)(A)(i). If the alien is found to be inadmissible for some other reason, she is referred for "regular," non-expedited removal proceedings conducted under INA § 240. See INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A).

 In order to avoid expedited removal once an inspecting immigration officer has determined that the alien is inadmissible under either INA § 212(a)(6)(C) (fraudulent documentation) or § 212(a)(7) (no valid documentation), an alien must either show that she is a bona fide refugee seeking asylum or that she can claim a valid status as a U.S. citizen, permanent resident, previously admitted parolee, or previously admitted asylee.

 Finally, IIRIRA provides that

 
judicial review of any determination made under section 235(b)(1) is available in habeas corpus proceedings, but shall be limited to determinations of-
 
(A) whether the petitioner is an alien,
 
(B) whether the petitioner was ordered removed under such section, and
 
(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 207 [ 8 U.S.C. § 1157], or has been granted asylum under section 208 [ 8 U.S.C. § 1158], such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 235(b)(1)(C).

 INA § 242(e) (2), 8 U.S.C. § 1252(e)(2). Further,

 
in determining whether an alien has been ordered removed under section 235(b)(1), the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.

 INA § 242(e)(5), 8 U.S.C. § 1252(e) (5).

 The habeas court "may order no remedy or relief other than to require that the petitioner be provided a ["regular," non-expedited removal] hearing in accordance with [INA] section 240." INA § 242(e)(4), 8 U.S.C. § 1252(e)(4).

 C. The Implementing Regulations

 The Interim Regulations enacted in April 1997 to implement IIRIRA's new expedited removal system regulate how the inspecting officer is to determine the validity of travel documents, how the officer should provide information to and obtain information from the alien, and how and when an expedited removal order should be reviewed.

 1. Determining the Validity of Documents

 In ascertaining the validity of travel documents, the inspecting officer shall "obtain forensic analysis, if appropriate." INS Inspector's Field Manual ("Inspector's Manual"), ch. 17.15(b)(5) (Wood Defs.' Mot. Ex. 3). The officer is not permitted "to 'rush to judgement', or . . . to expeditiously remove an alien based on incomplete evidence." Id. Rather, "if forensic analysis is required to establish that the alien is inadmissible, such analysis must be obtained before the Form I-860 [Notice and Order of Expedited Removal] is executed." Id. Additionally,

 
all officers should be especially careful to exercise objectivity and professionalism when refusing admission to aliens under this [expedited removal] provision. Because of the sensitivity of the program and the potential consequences of a summary removal, you must take special care to ensure that the basic rights of all aliens are preserved . . . . Since a removal order under this process is subject to very limited review, you must be absolutely certain that all required procedures have been adhered to and that the alien has understood the proceedings against him or her. . . . All officers should be aware of precedent decisions and policies relating to the relevant grounds of inadmissibility. . . . It is important that . . . any expedited removal be justifiable and non-arbitrary.

 Id., ch. 17.15(a), (b); see also Mem. from INS Deputy Comm'r Chris Sale, "Implementation of Expedited Removal," Mar. 31, 1997, at 1 (AILA Defs.' Mot. Ex. 2) ("Sale Memo") ("Every officer must adhere strictly to required procedures to ensure that the rights of aliens are protected. . . .").

 2. Providing Information

 The Interim Regulations state that "in every case in which the expedited removal provisions will be applied and before removing an alien from the United States," the inspecting immigration officer will create a "Record of Sworn Statement" using "Form I-867A/B," titled "Record of Sworn Statement in Proceedings Under Section 235(b)(1) of the [Immigration and Nationality] Act." 8 C.F.R. § 235.3 (b)(2)(i). Specifically, in every case in which the expedited removal procedures will be applied, the inspecting officer is to read to the alien all the information contained on Form I-867A, record the alien's responses to the questions contained on Form I -867B, and have the alien make any necessary corrections and sign the statement. Id. Although the statute does not require it, the regulations provide that during the foregoing process, "interpretive assistance shall be used if necessary to communicate with the alien." Id.

 a. Form I-867A/B

 Form I -867Aì is to be used in every case in which expedited removal procedures will be applied. Form I-867Aì indicates that aliens undergoing expedited removal procedures are to be given information concerning the asylum interview, regardless of whether they have yet articulated any fear of persecution or intent to apply for asylum. The form, which the inspecting officer must read to the alien in a language the alien understands, explicitly states:

 
U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country. If you fear or have a concern about being removed from the United States or about being sent home, you should tell me so during this interview because you may not have another chance. You will have the opportunity to speak privately and confidentially to another officer about your fear or concern. That officer will determine if you should remain in the United States and not be removed because of that fear.

 Form I-867A (AILA Defs.' Mot. Ex. 1).

 If upon being read the information and asked the questions in Form I-867A/B, the alien does not indicate any fear of persecution on return to her home country, or any intention to apply for asylum, the inspecting officer shall order the alien removed.

 b. Form I-860

 The Interim Regulations further state that the inspecting officer "shall advise the alien of the charges against him or her on Form I-860, Notice and Order of Expedited Removal, and the alien shall be given an opportunity to respond to those charges in the sworn statement." 8 C.F.R. § 235.3(b)(2)(i). On the Form I-860 (Wood Defs.' Mot. Ex. 2), the inspecting officer must "check the appropriate ground(s) of inadmissibility under which the alien is being charged . . . and insert a narrative description of each charge." Inspector's Manual, ch. 17.15(b)(3). Any response by the alien to the charges "must be recorded either in the sworn statement or as an addendum to the statement." Id.

 Although the statute does not require it, the regulations provide that "interpretive assistance shall be used if necessary to communicate with the alien." 8 C.F.R. § 235.3(b)(2)(i). The inspecting officer must "read and explain the charges to the alien in the alien's native language or in a language the alien can understand," and use an interpreter if "required to ensure that the alien understands the allegations and the removal order." Inspector's Manual, ch. 17.15(b)(3).

 3. Review

 Under the regulations, any removal order by an inspecting officer "must be reviewed and approved by the appropriate supervisor before the order is considered final." 8 C.F.R. § 235.3(b)(7). "Such supervisory review shall not be delegated below the level of the second line supervisor, or a person acting in that capacity" who "may request additional information from any source and may require further interview of the alien." Id. "The supervisory review shall include a review of the sworn statement," id., and "the approving authority must be properly advised of all facts in the case in order to make an informed decision." Inspector's Manual, ch. 17.15(b)(3). The supervisory review is another calculated protection that the regulations provide, even though IIRIRA does not require it. See 62 Fed. Reg. at 10314.

 II. FACTUAL BACKGROUND

 A. Organizational Plaintiffs

 The stated objective of three of the organizational plaintiffs is to assist refugees from particular countries in seeking asylum in the United States and to ensure that these refugees receive fair asylum hearings. *fn2" Six other organizational plaintiffs are based in particular localities and provide representation to immigrants from various countries as well as to legal residents of the United States who are afraid to travel abroad because of the new provisions of IIRIRA. *fn3" The remaining organization, the American Immigration Lawyers Association ("AILA"), is a national bar association of over 4,500 attorneys who practice immigration law. All of these organizations, however, share a common objective: they work to ensure that representation and assistance are provided to immigrants arriving in the United States.

 B. Individual Plaintiffs

 In addition to the organizations, numerous individual plaintiffs have also commenced these proceedings. The vast majority of these individuals' claims are barred because they did not arise within 60 days of the implementation of IIRIRA, i.e. prior to May 31, 1997. See infra Section III.A for further discussion; see also INA § 242(e)(3)(B), 5 U.S.C. § 1252(e)(3)(B). *fn4" The Court, therefore, addresses those claims not barred by this 60-day statutory deadline.

 Plaintiff Perlina Perez, a 70-year-old citizen of the Dominican Republic, and Plaintiff Flor Aquino de Pacheco, a 44-year-old citizen, also of the Dominican Republic, were summarily removed from the United States on or about May 3, 1997. Both Ms. Perez, who was coming to the United States to visit her ill daughter and grandchild, and Ms. Aquino de Pacheco possessed valid tourist visas. In addition to not being provided food or access to restroom facilities, and being detained for an extended period of time, nineteen hours in the case of Ms. Perez, both plaintiffs were denied access to counsel, family, and friends. The complaint also alleges that the plaintiffs were not advised of the reasons for their inadmissibility to the United States and were deprived of any meaningful opportunity to contest the charges against them. In addition, both women were ordered to sign a form in English, a language they neither read nor write. Because of the removal orders entered against them under INA § 235(b), both women are now barred from returning to the United States for five years, resulting in significant hardship and separation from U.S. family members. See Wood Am. Compl. PP 12-13, 58-59.

 C. Procedural Background

 Under INA § 242(e)(3)(D), courts must expeditiously consider cases brought challenging the validity of the new system established by IIRIRA. *fn5" As the following chronology shows, this Court has taken Congress's mandate seriously while carefully considering plaintiffs' numerous and evolving claims regarding the new statute and the system it has ...


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