Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Bureau of Consular Affairs

Decision Date03 February 1995
Docket NumberNo. 94-5104,94-5104
Citation45 F.3d 469
PartiesLEGAL ASSISTANCE FOR VIETNAMESE ASYLUM SEEKERS; Thua Van Le; Em Van Vo; Thu Hoa Thi Dang; Truc Hoa Thi Vo, Appellants v. DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia, No. 94cv00361.

Daniel Wolf, Washington, DC, argued the cause for appellants. With him on the briefs were William R. Stein and Robert B. Jobe, Washington, DC.

Bernadette C. Sargeant, Asst. U.S. Atty., Washington, DC, argued the cause for appellees. With her on the brief were Eric H. Holder, Jr., U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Before EDWARDS, Chief Judge, and SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge RANDOLPH.

SENTELLE, Circuit Judge:

This is an appeal from a grant of summary judgment by a not-for-profit corporation, Legal Assistance for Vietnamese Asylum Seekers, Inc. ("LAVAS"); two detained Vietnamese immigrants in Hong Kong; and their American citizen sponsors, against the United States Department of State and various government officials in their official capacities (collectively "the State Department" or "Department"). Appellants allege the State Department violated its own regulations as well as the Immigration and Nationality Act when refusing to process the visa applications of Vietnamese immigrants, who had not been screened in as political refugees, at the United States Consulate in Hong Kong. Because we find the district court erred in granting summary judgment in favor of appellees, we reverse and remand.

I. BACKGROUND

Since April 1975, when the North Vietnamese captured Saigon, large numbers of refugees have fled Vietnam to Hong Kong. Between June 1979 and June 1988, the treatment of these persons was guided by an informal agreement under which Hong Kong and other nations in the region committed themselves to granting temporary refuge in exchange for a commitment from the United States and other western countries to resettle these immigrants. As part of this agreement, the Hong Kong Government accorded these immigrants presumptive refugee status.

However, due to an increase in the number of persons fleeing Vietnam in the late 1980s, the Hong Kong Government announced it was revoking the presumptive refugee status of the Vietnamese immigrants as of June 15, 1988. Thereafter, all new arrivals would be detained and screened by local immigration authorities to determine whether they individually qualified for refugee status. In June 1989, this approach was adopted throughout the region in the form of a Comprehensive Plan of Action ("CPA"), a joint statement of policy also adopted by the United States. The CPA provides that asylum seekers who are screened out, that is those who do not qualify as refugees under the criteria established in the Refugee Convention, should return to Vietnam. Once returned, those eligible for immigrant visas may apply through the Orderly Departure Program, established to provide for the departure of Vietnamese directly from Vietnam to their resettlement destinations.

The United States permits Vietnamese immigrants, who have as sponsors close relatives who are United States citizens or permanent resident aliens in the United States, to enter as beneficiaries of immigrant visas under the criteria set forth in the Immigration and Nationality Act ("INA"), 8 U.S.C. Secs. 1151-1156 (1988). To obtain a visa, eligible Vietnamese immigrants and their sponsors must complete several steps. First, the sponsor must file a petition with the Immigration and Naturalization Service ("INS"). 8 C.F.R. Sec. 204.1(a) (1994). If the INS approves the petition, the Vietnamese applicant must complete and submit to the United States State Department an application for an immigrant visa. 22 C.F.R. Sec. 42.63(a) (1994). Third, the applicant must provide various documents to a United States consulate, and appear at the consulate for final processing of the visa application. 22 C.F.R. Sec. 42.62(a) (1994).

From June 1979 to April 1993, the State Department processed applications for Vietnamese boat people in Hong Kong at the United States consulate. Although the Department directed its posts in November 1991 to advise screened out applicants to return to Vietnam, the United States consulate in Hong Kong ignored this change in policy. The consulate continued to process the visa applications from screened out Vietnamese. To facilitate this processing, the Consulate General issued letters to the Hong Kong Government requesting that Vietnamese be made available for interviews at the consulate.

In April 1993, however, after an exchange of cables in which the United States consulate in Hong Kong argued it should be permitted to continue processing those immigrants who had been screened out, the Department specifically instructed the consulate to cease such activity. Applicants who had been screened out were thus required to return to Vietnam for visa processing. The United States consulate officially informed the Hong Kong Government of the policy change on September 24, 1993.

On February 25, 1994, appellants brought this action against the State Department and various officials. Appellants sought declaratory and injunctive relief on behalf of a class of Vietnamese nationals desiring to be processed at the United States consulate in Hong Kong, yet who were instructed they would have to return to Vietnam for processing. Appellants also sought such relief on behalf of a class of sponsoring United States citizens and permanent residents who were related to the detained plaintiffs.

Appellants alleged that the State Department's change in policy was in violation of the INA and the regulations promulgated thereunder, the Administrative Procedure Act ("APA"), and the United States Constitution. Following a hearing consolidating appellants' application for a preliminary injunction with the trial of the action on its merits, the district court issued a final order on April 28, 1994, granting the State Department's motion for summary judgment and denying appellants' cross motion for summary judgment.

II. DISCUSSION

As a threshold issue, appellees contend all of the appellants lack standing to bring this action. The APA grants standing to any party who is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. Sec. 702 (1988). See National Fed'n of Fed. Employees v. Cheney, 883 F.2d 1038, 1042 (D.C.Cir.1989). The party must suffer injury in fact, and the interest sought to be protected must arguably be within the zone of interests protected by the statute in question. Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 395-96, 107 S.Ct. 750, 754-55, 93 L.Ed.2d 757 (1987). We first address the issue of whether the sponsoring resident appellants possess standing. Appellants argue these plaintiffs suffer the requisite injury in fact and are within the zone of interest protected by the INA.

We agree. First, as to injury in fact, the State Department's conduct prolongs the separation of immediate family members. The detained appellants must either remain in Hong Kong, where they are denied the opportunity to be processed, or, if they are required first to return to Vietnam, their processing will be further delayed. We have previously found injury in fact where the plaintiffs were far less aggrieved than in the case at bar. See, e.g., Abourezk v. Reagan, 785 F.2d 1043, 1050-51 (D.C.Cir.1986) (holding American plaintiffs possess standing where the State Department denied visas to aliens wishing to visit the United States to attend meetings at the behest of these plaintiffs).

Second, the resident appellants are within the zone of interest protected by the INA. As the Supreme Court held in Clarke, the zone of interest test does not necessarily require a specific congressional purpose to benefit the would-be plaintiff. It is sufficient if the plaintiffs " 'establish that their particular interest[ ]' " falls within the area of interests Congress intended to protect. National Fed'n of Fed. Employees, 883 F.2d at 1047 (quoting Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 812 (D.C.Cir.1987)). The INA authorizes the immigration of family members of United States citizens and permanent resident aliens. 8 U.S.C. Secs. 1151-1156. In originally enacting the INA, Congress "implement[ed] the underlying intention of our immigration laws regarding the preservation of the family unit." H.R.Rep. No. 1365, 82d Cong., 2d Sess. (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1680. Given the nature and purpose of the statute, the resident appellants fall well within the zone of interest Congress intended to protect.

Appellees also contend that neither LAVAS nor the detained appellants in Hong Kong have standing. We need not reach this issue. If one party to an action has standing, a court need not decide the standing issue as to other parties when it makes no difference to the merits of the case. See Railway Labor Executives' Ass'n v. United States, 987 F.2d 806, 810 (D.C.Cir.1993) (per curiam). 1

We now turn to the merits of the appeal. Appellants allege the State Department's refusal to process the visas of the detained appellants in Hong Kong violates 22 C.F.R. Sec. 42.61(a) of the Department's visa regulations. The regulation concerns the circumstances under which an immigrant seeking a visa can have his case processed in a given consular district. The parties dispute the proper interpretation of this regulation, but we need not construe the version of the regulation in effect at the time the dispute arose because it has been rendered moot by 1994 amendments to 22 C.F.R. Sec. 42.61(a). Visa...

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