Loa-Herrera v. Trominski

• Decision Date: 31 October 2000
• Docket Number: No. 99-40122,99-40122
• Citation: 231 F.3d 984
• Parties: (5th Cir. 2000) Julio Loa-Herrera, Ramiro Cantu-Gracia, Juana Guzman-Ascencio, Efrain Merino, Arturo Lozano-Lopez, Alejandra Gutierrez, Juan Sanchez-Salinas, and Adelita Cantu de Cabrera, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, v. E.M. Trominski, Immigration and Naturalization Service District Director, Janet Reno, United States Attorney General, and Immigration and Naturalization Service, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 984

231 F.3d 984 (5th Cir. 2000) Julio Loa-Herrera, Ramiro Cantu-Gracia, Juana Guzman-Ascencio, Efrain Merino, Arturo Lozano-Lopez, Alejandra Gutierrez, Juan Sanchez-Salinas, and Adelita Cantu de Cabrera, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees,
v.
E.M. Trominski, Immigration and Naturalization Service District Director, Janet Reno, United States Attorney General, and Immigration and Naturalization Service, Defendants-Appellants. No. 99-40122 IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT October 31, 2000

Page 985

Copyrighted Material Omitted

Page 986

Appeal from the United States District Court for the Southern District of Texas

Before SMITH and DENNIS, Circuit Judges, and HARMON,^* District Judge.

JERRY E. SMITH, Circuit Judge:

The plaintiff class is comprised of lawful permanent residents ("LPR's") faced with pending deportation or exclusion proceedings¹ in which no final order of deportation or exclusion has yet been entered, who are not presently held in detention, and whose immigration documents have been confiscated by the Harlingen, Texas, office of the Immigration and Naturalization Service ("INS"). Plaintiffs object to INS's practice of seizing an LPR's laminated Form I-151 or I-551 ("green card")² and other government documents and issuing, in their place, an I-94 "Temporary Evidence of Lawful Permanent Resident" form containing extraneous information announcing the holder's pending removal proceedings. They additionally claim that LPR's are entitled to notice and a hearing to determine whether they should be paroled within the United States pending a final determination in their removal proceedings.

The district court granted the plaintiffs' request for injunctive relief. Its final order, dated January 13, 1999, regulates the seizure of an LPR's green card and issuance of temporary documents pending removal proceedings, requires the INS to hold a hearing before determining whether an LPR should be paroled into the United States pending a final order of removal, and guarantees LPR's the right not to have their other lawfully issued documents confiscated unless those documents constitute bona fide evidence of unlawful conduct.³

Page 987

The government presents a series of procedural and substantive objections to the order. With respect to the seizure of green cards and issuance of temporary documents, we conclude that the order was too sweeping in light of 8 C.F.R. § 264.5(g), which is cited by neither party nor the district court. In addition, we conclude that federal courts have no jurisdiction to review parole decisions of the Attorney General. Finally, we decide that remand is appropriate to ensure that the government has ample opportunity to press its factual and legal contentions before the district court.

We therefore vacate the order and remand for any further proceedings that may be required. We also vacate an earlier, preliminary order benefiting an individual who is not a member of the plaintiff class.

I.

The government claims the plaintiffs lack standing.⁴ "[T]he critical standing question is whether the plaintiff has demonstrated a personal, distinct, and palpable injury-in-fact that is fairly traceable to the defendant's allegedly unlawful conduct, and that such an injury is likely to be redressed by a favorable judicial decision." National Treasury Employees Union v. United States Dep't of Treasury, 25 F.3d 237, 241 (5th Cir. 1994). In identifying an injury that confers standing, courts look exclusively to the time of filing. See Pederson v. Louisiana State Univ., 213 F.3d 858, 870 (5th Cir. 2000).

We reject the government's contention that the plaintiffs lack standing, for want of injury, to challenge their denial of immigration documentation. Green cards "play a significant role in the day-to-day lives of LPRs."⁵ And although the I-94 forms issued in place of the green cards do evidence LPR status, they additionally state:

Warning--A nonimmigrant who accepts unauthorized employment is subject to deportation.

Important--Retain this permit in your possession; you must surrender it when you leave the U.S. Failure to do so may delay your entry into the U.S. in the future.

You are authorized to stay in the U.S. only until the date written on this form. To remain past this date, without permission from immigration authorities, is a violation of the law.

As plaintiffs adequately allege, inadequate immigration documents result in a greater degree of harassment by the INS and diminished employment opportunities. Indeed, the government admits that aliens who hold only temporary I-94 forms are "more likely to be more closely inspected" than are holders of green cards. Although the government argues that plaintiffs fail to identify a single LPR who has actually suffered such injury, actual injury is not constitutionally required.

Page 988

Mere threatened injury is sufficient,⁶ and the threat in this case is real. For example, according to the plaintiffs, "[a]s a result of INS' arbitrary confiscation of his I-551, Loa [a former plaintiff, now deceased] endured almost two hours of detention at the border, and an unreasonable search, causing 'inconvenience, and public humiliation.'" Plaintiffs therefore have asserted sufficient injury to confer standing.

More troubling is the government's contention that the district court failed to give the government an opportunity to present argument before issuing its order. Because of our rulings on the government's substantive claims, which we discuss below, we do not address these allegations. Instead, we vacate the order and remand for further proceedings, during which the INS assuredly will have ample opportunity to press any additional legal or factual arguments it wishes to make and thereby to cure any procedural defects regarding the order.

II.

The government's substantive objections to the order regard the issuance and confiscation of immigration documents. LPR's are authorized to work in the United States.⁷ Even "LPRs who are placed in deportation proceedings do not lose the status of lawful residents and its attendant benefits until . . . a final deportation order [has been] issued." Etuk, 936 F.3d at 1447. Until deported or excluded, LPR's are fully entitled to remain in the United States and seek employment, for "[t]he fact that an alien is subject to deportation proceedings does not affect his status as a permanent resident alien. A permanent resident alien's status terminates only when the order of deportation is affirmed by the BIA or otherwise becomes administratively final." Molina v. Sewell, 983 F.2d 676, 680 (5th Cir. 1993).

In addition, federal law guarantees LPR's certain rights of documentation they can use to prove, to potential employers and others, their right to be in the United States. How that right is protected in practice, however, is within the express discretion of the Attorney General.⁸

In granting the plaintiffs injunctive relief on the question of LPR documentation, the district court relied substantially on a 1990 internal INS policy clarification (the "McNary Memorandum"),⁹ which directed

Page 989

the INS not to seize green cards absent individualized circumstances and must "be followed until appropriate regulations and operations instructions are published." The district court erred in relying on the McNary Memorandum, for an agency's internal personnel guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may rely." Fano v. O"Neill, 806 F.2d 1262, 1264 (5th Cir. 1987). The memorandum...