544 F.3d 427 (2nd Cir. 2008), 06-3493, Rajah v. Mukasey

Docket Nº:06-3493-ag, 06-3811-ag, 06-4102-ag, 06-5390-ag.
Citation:544 F.3d 427
Party Name:Mohamed RAJAH, Said Najih, Saade Benjelloun, Samer Emile El Zahr, Petitioners, v. Michael B. MUKASEY, Attorney General of the United States,[*] Michael Chertoff, Secretary of the Department of Homeland Security, Peter Smith, Special Agent in Charge of the New York District of U.S. Immigration and Customs Enforcement,[**] Respondents.
Case Date:September 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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544 F.3d 427 (2nd Cir. 2008)

Mohamed RAJAH, Said Najih, Saade Benjelloun, Samer Emile El Zahr, Petitioners,


Michael B. MUKASEY, Attorney General of the United States, [*] Michael Chertoff, Secretary of the Department of Homeland Security, Peter Smith, Special Agent in Charge of the New York District of U.S. Immigration and Customs Enforcement, [**] Respondents.

Nos. 06-3493-ag, 06-3811-ag, 06-4102-ag, 06-5390-ag.

United States Court of Appeals, Second Circuit.

September 24, 2008

Argued in Tandem: Nov. 21, 2007.

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Ana C. Pottratz and Wnyong Austin, Lutheran Social Services of New York, New York, NY, for Petitioners.

Tom Dupree, Deputy Assistant Attorney General for Peter D. Keisler, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C. (Song E. Park on the brief for Mr. Rajah, James A. Hunolt on the brief for Mr. Najih, Leslie McKay on the brief for Mr. El Zahr, Jesse M. Bless on the brief for Mr. Benjelloun; M. JocelynLopez Wright of counsel for Mr. Rajah and Mr. Najih, Linda S. Wernery of counsel for Mr. El Zahr, David V. Bernal of counsel for Mr. Benjelloun) for Respondents.

Lynn M. Kelly, Executive Director, Justice Center, New York City Bar Association, New York, N.Y. (Linda Marie Kenepaske, Alice Morey, and Myriam Jaidi on the brief), for Amicus Curiae New York City Bar Association.

Before: WINTER, WALKER, and CALABRESI, Circuit Judges.

WINTER, Circuit Judge:

Mohamed Rajah, Said Najih, Saade Benjelloun, and Samer Emile El Zahr petition for review of deportation orders issued by the Board of Immigration Appeals (“ BIA" ).1 Each petitioner responded to a Special Call-In Registration Program (“ Program" ), after the terrorist attacks of September 11, 2001. The Program required non-immigrant alien males over the age of 16 from designated countries to appear for registration and fingerprinting. Following their registration, each petitioner was placed in deportation proceedings and ordered deported. They challenge the deportation orders principally on the grounds that: (i) the Program lacks statutory authorization; (ii) the Program is invalid as a matter of administrative law; (iii) the Program violates equal protection; (iv) evidence obtained during the Program should be suppressed under the Fourth and Fifth Amendments; and (v) regulatory violations in the course of the Program require the vacating of their deportation orders. Two petitioners make other claims specific to their cases. With the exception of Rajah, we reject their arguments and deny the petitions for review for the reasons stated below. We remand Rajah's case to the BIA on the grounds

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discussed by Judge Calabresi, in an opinion filed concurrently with this. See Rajah v. Mukasey, 544 F.3d 449 (2d Cir.2008).


After the terrorist attacks of September 11, 2001, the Attorney General instituted the National Security Entry-Exit Registration System (“ NSEERS" ). NSEERS required the collection of data from aliens upon entry and periodic registration of certain aliens present in the United States. Its purpose was to enhance the monitoring of aliens and the enforcement of immigration laws.2 The Special Call-In Registration Program was part of NSEERS. It required alien males from certain designated countries who were over the age of 16 and who had not qualified for permanent residence to appear for registration and fingerprinting and to present immigration related documents.3 Individuals who did not appear for required registrations were threatened with possible arrest. The affected countries were Muslim majority states and North Korea. The Program did not include citizens of these countries who were women, were under the age of 16, or were qualified to be permanent residents in this country. For those individuals whose immigration status was in order, registration generally had no special consequences. But for those individuals, such as the petitioners, whose immigration status was not in order, registration led to deportation proceedings.4

Although the experiences of the petitioners varied to some extent, they followed the same general pattern, deviations from which will be noted where relevant. Their experiences typically consisted of a registration day and an interrogation day.5 On

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their registration days, petitioners appeared at the then-INS 6 facility at 26 Federal Plaza in New York City, filled out a few forms, and presented documentation or information, such as passports, immigration forms, or alien registration numbers. At the end of the registration day, they were instructed to return on a subsequent day on which they were interrogated. On their interrogation days, the petitioners were generally taken to the 10th floor of 26 Federal Plaza and subjected to questioning. This questioning was frequently preceded by a pat-down search and often occurred in a closed room while the petitioners were seated on a chair that had shackles attached, although none of the petitioners were shackled. At some point, petitioners received a Notice to Appear for removal proceedings. Some were then placed in holding cells for a period of time.

In the removal proceedings, the petitioners argued, inter alia, that the Program was not authorized by statute and was unconstitutional. They also contended that their hearings should be terminated without prejudice to renewal due to various alleged regulatory violations committed by the then-INS, discussed in detail infra. Immigration Judges (“ IJs" ) declined to rule on the ultra vires and constitutional claims as outside their adjudicatory powers. Although the IJs' opinions differed in some respects, they also held that any regulatory violations that may have occurred did not require termination of the proceedings or suppression of any crucial evidence. The IJs then found the petitioners removable based on the information presented in the course of their registration and interrogation. The BIA upheld the IJs' decisions in their essential respects.

These petitions for review followed.


Petitioners mount a variety of legal challenges to the Program and the deportation proceedings brought against them. However, no claim is made that they were, or are, in the country legally or entitled to asylum or withholding of removal; it is therefore undisputed that they are deportable.

Their challenges, then, claim that their deportation proceedings were so tainted by the Program and associated events that we should, for prophylactic purposes, either prevent their deportation altogether, suppress evidence of their deportability collected in the course of the Program, or require that the deportation proceedings be rerun.

a) Legality of the Program

1) Statutory Authorization

Petitioners argue that the Attorney General had no statutory authority to enact the Program. If the Program was in fact simply rogue conduct by immigration authorities, some remedy, the dimensions of which we need not address, would be called for. Cf. Montilla v. INS, 926 F.2d 162, 169 (2d Cir.1991) (noting that agencies that exhibit carelessness in complying with their own rules undermine public confidence).

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However, statutory authorization for the Program is abundant.

Title 8 U.S.C. § 1303(a)7 grants the Attorney General broad power to prescribe regulations for “ registration and fingerprinting" of certain classes of aliens. Among the enumerated classes of aliens subject to such rules is a catch-all provision including “ aliens of any other class not lawfully admitted to the United States for permanent residence." 8 U.S.C. § 1303(a). This language facially authorizes the Program, which prescribed registration for a class of aliens who had not qualified for permanent residency. See Kandamar v. Gonzales, 464 F.3d 65, 73 (1st Cir.2006) (noting that 8 U.S.C. § § 1305 and 1303(a)“ give[ ] the Attorney General great latitude in setting special registration requirements" )

Petitioners note that the Program classifies on the basis of nationality. They then argue that, because national-origin classifications are often disfavored, see, e.g., 42 U.S.C. § 2000a(a) (forbidding discrimination in public accommodations based on national origin), Section 1303(a) should be construed to avoid such classifications. However, immigration regulation differs fundamentally from the legal contexts relied upon because classifications on the basis of nationality are frequently unavoidable in immigration matters. See, e.g., Romero v. INS, 399 F.3d 109, 112 (2d Cir.2005) (discussing and upholding NACARA, a statute granting preferential immigration treatment to Cubans and Nicaraguans); Narenji v. Civiletti, 617 F.2d 745 (D.C.Cir.1979) (discussing and upholding registration requirements targeting Iranian nationals). Given the importance to immigration law of, inter alia, national citizenship, passports, treaties, and relations between nations, the use of such classifications is commonplace and almost inevitable. Indeed, the very concept of “ alien" is a nationality-based classification.

In arguing for their proposed construction of the statute, petitioners rely upon the cannon of ejusdem generis. Ejusdem generis is “ an aid to statutory construction problems suggesting that where general words follow a specific enumeration of persons or things, the general words should be limited to persons or things similar to those specifically enumerated." United States v. Turkette, 452 U.S. 576, 581, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Petitioners assert that, because the other...

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