199 F.3d 1352 (D.C. Cir. 2000), 98-5463, Am. Immigration Law Ass'n v. Reno

Docket Nº:98-5463 Consolidated with Nos. 98-5464 & 98-5466
Citation:199 F.3d 1352
Party Name:American Immigration Lawyers Association, et al.,Appellants v. Janet Reno, Attorney General of the United States, et al.,Appellees
Case Date:January 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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199 F.3d 1352 (D.C. Cir. 2000)

American Immigration Lawyers Association, et al.,Appellants


Janet Reno, Attorney General of the United States, et al.,Appellees

No. 98-5463 Consolidated with Nos. 98-5464 & 98-5466

United States Court of Appeals, District of Columbia Circuit

January 11, 2000

Argued September 17, 1999

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Appeals from the United States District Court for the District of Columbia(97cv00597)(97cv01229)(97cv01237)

J.J. Gass argued the cause for appellants. With him on the briefs were Judy Rabinovitz, Roderic V.O. Boggs, Robert Rubin, Robert E. Juceam, David I. Gelfand, and Karen T. Grisez. Adelia S. Borrasca and Jerome G. Snider entered appearances.

Nancy L. Perkins was on the brief for amicus curiae The Lawyers Committee for Human Rights.

Michele E. Beasley was on the brief for amicus curiae Women's Commission for Refugee Women and Children.

Linda S. Wendtland, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the briefs were David W. Ogden, Acting Assistant Attorney General, Donald E. Keener, David J. Kline, Ellen Sue Shapiro, and Teresa A. Wallbaum, Attorneys.

Before: Ginsburg, Henderson, and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, established a system for expediting the removal of aliens who arrive at the border but are not eligible for admission. Congress permitted judicial review of the new system, but set a deadline: all actions had to be "filed no later than 60 days after the date the challenged section, regulation, directive, guidance, or procedure ... is first implemented."1 8 U.S.C. § 1252(e)(3)(A)-(B).Ten organizations and twenty aliens, some added after the deadline expired, brought constitutional, statutory, and international law challenges after the Attorney General issued regulations under the new law. The district court disposed of the cases mainly on jurisdictional grounds, although it did reject the claims of two of the alien plaintiffs on the merits. See American Immigration Lawyers Ass'n v. Reno, 18 F.Supp.2d 38 (D.D.C. 1998). We hold that the organizational plaintiffs lacked standing to litigate the rights of aliens not parties to the lawsuits and that the judgment of the district court should be affirmed in all other respects.



Every person who arrives at a United States port of entry undergoes primary inspection during which immigration officers review the individual's documents. In fiscal year 1996, the Immigration and Naturalization Service conducted 475 million primary inspections. 62 Fed. Reg. 10,312, 10,318 (1997). Returning citizens produce their passports; aliens must show a valid visa or other entry document. If the immigration officer is unable to verify an alien's admissibility, the alien is referred to secondary inspection for a more thorough examination of eligibility to enter.

Before IIRIRA, if immigration officials could not verify an alien's admissibility at secondary inspection, the alien was entitled to defend his eligibility at an exclusion hearing before an immigration judge. See 8 U.S.C. §§ 1225(b), 1226(a) (1994). The alien had the right to counsel at the hearing, id. § 1362(a), could examine witnesses, id., and was provided with a list of persons providing free representation, 8 C.F.R.

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§ 236.2(a) (1994). If the ruling were adverse, the alien could appeal to the Board of Immigration Appeals and, ultimately, federal court. See 8 U.S.C. §§ 1105a(b), 1226(b) (1994).

IIRIRA reformed the secondary inspection process in order to "expedite the removal from the United States of aliens who indisputably have no authorization to be admitted...."H.R. Conf. Rep. No. 104-828, at 209 (1996). To that end, the statute provides that "if an immigration officer determines that an alien ... is inadmissible" because the alien possesses fraudulent documentation, see 8 U.S.C. § 1182(a)(6)(C), or has no valid documentation, see id. § 1182(a)(7), "the officer shall order the alien removed from the United States without further hearing or review...." Id. § 1225(b)(1)(A)(i). An alien removed for these reasons is barred from reentry for a period of five years. Id. § 1182(a)(9)(A)(i).

The statute exempts from immediate removal aliens who "indicate[ ] either an intention to apply for asylum ... or a fear of persecution." Id. IIRIRA directs immigration officers to refer such aliens to an interview with an asylum officer. See id. § 1225(b)(1)(A)(ii). If the asylum officer "determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States...." Id. § 1225(b)(1)(B)(iii)(I).2 Upon the alien's request, an immigration judge will review the removal decision. See id. § 1225(b)(1)(B)(iii)(III). The alien is given an opportunity to be heard and questioned in an expedited proceeding: "the review shall be concluded ... to the maximum extent practicable within 24 hours, but in no case later than 7 days after the [asylum officer's] determination...."Id. If the immigration judge overturns the asylum officer's finding, the alien is given a hearing under 8 U.S.C. § 1229a.If the immigration judge affirms the asylum officer's finding, the alien is subject to summary removal.3


The Attorney General issued Interim Regulations, effective April 1, 1997, setting forth procedures implementing the summary removal system. See, e.g., 8 C.F.R. §§ 208.30, 235.This started the statutory time limit for judicial review running. Any action challenging the statute or the Interim Regulations had to be filed no later than sixty days after April 1. See 8 U.S.C. § 1252(e)(3)(B). Organizations who represent and assist aliens seeking to enter the United States filed two complaints challenging IIRIRA and the Interim Regulations as they apply to asylum-seeking aliens.4 The cases--American Immigration Lawyers Ass'n (AILA) and Liberians United for Peace and Democracy (LUPD)--were consolidated. A few of the same organizations joined with the Dominican American National Foundation (Miami area) and aliens to assert claims against the summary removal system as it applied to non-asylum seekers. This third case--Wood--focused on determinations, at the secondary inspection stage, that aliens lacked proper documentation.The AILA and LUPD complaints challenged the same stage of summary removal, but also focused on the "fear of persecution" determination

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and the procedures available to asylum seekers. In the Wood case, an amended complaint filed on August 28 added individual plaintiffs who were removed after the sixty-day deadline. The district court consolidated the Wood and AILA/LUPD cases.

The complaints raised a host of contentions. Some plaintiffs claimed that IIRIRA violated the due process and equal protection rights of aliens seeking to enter the United States, that the Attorney General's regulations were not consistent with IIRIRA, and that summary removal violated international treaties protecting children and refugees. Plaintiffs rested their due process and statutory claims on the following allegations: the summary removal procedures banned communication with family, friends, or attorneys; failed to notify aliens of the reasons for removal and the procedures available for challenging removal; failed to provide adequate language interpretation; and limited review of removal decisions. Plaintiffs also challenged the procedures as applied to specific individual plaintiffs, claiming that immigration officials were not following IIRIRA or the Interim Regulations. The only claim asserted on behalf of the organizations in their own right was that the First Amendment entitled their members to have access to persons subject to summary removal procedures.

The district court dismissed each of the complaints. With respect to individuals who missed the statutory deadline, the court dismissed for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Two remaining individual plaintiffs--Perlina Perez and Flor Aquino de Pacheco, both non-asylum seekers--filed within the sixty-day window, but the court dismissed their claims for failure to state a cause of action, under Federal Rule of Civil Procedure 12(b)(6).5 See 18 F.Supp.2d at 46-47, 52-60. The court found that the Attorney General's regulations actually provided more procedural safeguards than the statute required, id. at 52-57, that the individuals did not have sufficient contacts with the United States to invoke due process rights, id. at 58-60, and that they failed to make the prima facie case of discrimination necessary for their equal protection challenge, id. at 60.6With respect to the validity of the regulations "as applied" to these plaintiffs, the court held that IIRIRA provided review only for written procedures and thus there was no jurisdiction to challenge the particular practices of immigration officials.7 Id. at 57-58 (citing 8 U.S.C. § 1252(e)(3)(A)).

As to the organizational plaintiffs, the district court recognized, and the government conceded, standing for their First Amendment claim. See 18 F.Supp.2d at 50. The court rejected that claim on its merits. See id. at 60-62 (citing Ukranian-American Bar Ass'n, v. Baker, 893 F.2d 1374 (D.C. Cir. 1990)). With regard to the other claims, the court found that the organizations alleged "speculative" injuries and did "not meet the causation and redressability requirements" of Article III standing. See 18 F.Supp.2d at 49-50.



As the cases now stand, we have appeals by the individual aliens...

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