Yassini v. Crosland

• Decision Date: 14 May 1980
• Docket Number: No. 80-4066,80-4066
• Citation: 618 F.2d 1356
• Parties: Abolghasen Osee YASSINI et al., Plaintiffs and Masoud Mahdjoubi, Plaintiff/Appellant, v. David CROSLAND, Acting Commissioner, Immigration and Naturalization Service et al., Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1356

618 F.2d 1356

Abolghasen Osee YASSINI et al., Plaintiffs and Masoud

Mahdjoubi, Plaintiff/Appellant, v. David CROSLAND, Acting Commissioner, Immigration and Naturalization Service et al., Defendants/Appellees.

No. 80-4066.

United States Court of Appeals, Ninth Circuit.

May 14, 1980.

Bill Ong Hing, San Francisco, Cal., for plaintiff-appellant.

Merrick B. Garland, Spec. Asst. to Atty. Gen., Washington, D. C., Peter A. Schey, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before TUTTLE, ^* HUG, and TANG, Circuit Judges.

PER CURIAM:

Masoud Mahdjoubi challenges the directive of David Crosland, Acting Commissioner of the Immigration and Naturalization Service (INS), to revoke the deferred departure dates that the INS had previously granted to Iranian nationals in this country. Mahdjoubi contends that this revocation violated his right to due process and violated the procedural requirements of the Administrative Procedure Act and the Freedom of Information Act. At the heart of these contentions is a sensitive issue: was the Crosland directive an independent, "renegade" act of foreign policy, or merely an implementation of the President's response to the Iranian hostage crisis? ¹ We find that the Crosland directive was within the scope of the President's stated policy, and reject Mahdjoubi's contentions.

Mahdjoubi was admitted into the United States from Iran as a nonimmigrant student with permission to study at Santa Barbara City College until September 10, 1978. On March 22, 1979 the INS took Mahdjoubi into custody after discovering he was in the country in violation of his status and had begun attending California State University at Los Angeles without permission. The District Director denied his requests for an extension of stay and permission to transfer schools. After two continuances were granted so that he could obtain counsel, Mahdjoubi's deportation hearing was scheduled for April 17, 1979.

On April 16, 1979 then Commissioner Castillo of the INS issued a directive to INS district offices that action should not be taken, prior to September 1, 1979, to deport Iranian nationals who indicate an unwillingness to return to Iran because of the instability of the conditions then existing in that country. The directive specified that hearings which had commenced should go forward, although departure should not be enforced prior to September 1, 1979. Nonimmigrant Iranian nationals who accepted deferred voluntary departure would not be reinstated to a nonimmigrant status upon expiration of the departure period.

Apparently, the INS considered Mahdjoubi's case to be one in which a hearing had "commenced" because it had already been scheduled. After one more continuance, Mahdjoubi's deportation hearing was held on May 1, 1979. Mahdjoubi was found deportable because he had overstayed his visa and had transferred schools without permission. ² The immigration judge granted Mahdjoubi voluntary departure until September 15, 1979, two weeks beyond the departure date established by Commissioner Castillo.

On August 9, 1979 the INS, in consultation with the Secretary of State, extended the September 1, 1979 departure date until June 1, 1980. It explained that it granted a nine-month extension because a large proportion of Iranian nationals in the United States were students enrolled in nine-month programs. Accordingly, Mahdjoubi's departure date was extended to June 1, 1980.

On November 4, 1979 Iranian militants invaded the United States Embassy in Tehran and took approximately 65 United States citizens hostage in order to force this country to meet their demands. As part of his response to the crisis, President Carter on November 10, 1979 directed the Attorney General to identify any Iranian students in the United States who were not in compliance with the terms of their entry visas, and to take the necessary steps to commence deportation proceedings against those who have violated applicable immigration laws and regulations. On November 13 the Attorney General issued a regulation, 8 C.F.R. § 214.5, requiring Iranian students to report within 30 days to their local INS office to provide information relevant to their immigration status. ³

Also on November 13, Commissioner Crosland issued a directive rescinding the June 1980 deferred departure. Each Iranian who had received the benefit of deferred departure was to be notified of the revocation and that departure was required on or before 30 days from date of the notice. Mahdjoubi was notified by mail that his deferred departure was revoked and that he was ordered to appear for deportation on November 29. At Mahdjoubi's request, his departure was extended to January 29.

Instead of departing, Mahdjoubi sued, along with several others, to contest the legality of the Crosland directive. The district court certified the Iranian nationals as a class and dismissed the case on the merits. This court vacated the class certification and dismissal, and remanded for proceedings as to the named plaintiffs. Yassini v. Crosland, 613 F.2d 219 (9th Cir. 1980). Mahdjoubi's attempts to reopen his deportation proceeding and to gain reinstatement of voluntary departure were denied, and he was ordered to report for deportation on February 15, 1980. Mahdjoubi moved for a temporary restraining order and a stay of deportation in the district court. After the district court denied relief, Mahdjoubi appealed to this court. The court granted Mahdjoubi a stay of deportation pending appeal.

I. Compliance with the APA

Mahdjoubi does not claim that the INS does not have the authority to grant or revoke deferred departure. Rather, he contends that the Crosland directive should be declared void under 5 U.S.C. § 706(2)(D), because it was a "rule" that had not been promulgated in accordance with the formal rulemaking procedures of the Administrative Procedure Act, specifically 5 U.S.C. § 553(b), (c), and (d), which require public notice and comment before a proposed rule takes effect.

We find it unnecessary to decide whether the Crosland directive is a "rule" under the APA. We assume arguendo that it is a rule, but conclude that it is exempt from APA rulemaking procedures under the "good cause" and "foreign affairs function" ⁴ exceptions to those procedures. See 5 U.S.C. §§ 553(b)(B) and 553(a)(1).

The good cause exception applies when compliance with the notice requirements are "impracticable, unnecessary or contrary to the public interest." Id., § 553(b)(B). See generally United States Steel Corp. v. EPA, 605 F.2d 283 (7th Cir. 1979), cert. denied, --- U.S. ---, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980). The good cause urged here by the Government is that the public interest warranted a prompt response to the embassy takeover in Iran. This is essentially the basis for its argument that the foreign affairs exception applies. Analytically, then, the question whether the public interest excuses notice and comment under § 553(b)(B) appears to be the equivalent of the question whether a foreign affairs function excuses notice and comment under § 553(a)(1). Our discussion, therefore, spans both subsections of the statute. ⁵

Central to the resolution of these issues is whether Commissioner Crosland was acting independently of the President and Attorney General and in effect announcing his own foreign policy, or merely implementing the expressed foreign policy of the President. Mahdjoubi argues that the Crosland directive was outside the scope of the President's directive and without the explicit support of the President or Attorney General. The Government argues that it was within the scope of the directive and with the approval of the President and Attorney General.

Decisions involving the relationships between the United States and its alien visitors often implicate our relations with foreign powers, and because of their political nature, are generally more within the competence of the Legislative and Executive Branches than the Judiciary. Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). A rule of law Legislative and Executive Branches than the Judiciary. Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). A rule of law that would inhibit the flexibility of the political branches should be adopted with only the greatest caution, and judicial review of decisions made by the Congress or the President in this area is limited. See id. at 81-82, 96 S.Ct. at 1892; Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21, 96 S.Ct. 1895, 1904 n.21, 48 L.Ed.2d 495 (1976). Review of decisions involving aliens nevertheless remains available, and we recognize that serious questions might arise if the INS engaged in foreign policy matters, outside the scope of its usual functions, with disregard of the APA and concepts of due process. See Mow Sun Wong 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495. We are convinced, however, that that is not the case here.

The affidavits of the Attorney General and Deputy Secretary of State Warren Christopher presented by the Government in the district court showed that the President frequently consulted with the Attorney General and the Secretary of State at the onset of the Iranian crisis, and that the Attorney General conferred with Commissioner Crosland. Commissioner Crosland averred that he issued the directive only after he consulted with the Attorney General, and that the directive was designed to further the policy expressed in the Presidential directive and to aid the President's efforts to secure the release of the hostages.

Mahdjoubi argues that these statements do not disprove his argument that Commissioner Crosland was acting on his own authority, because there is no specific indication from either the President or the Attorney General that the Crosland directive was issued with their approval. Although it is true that the...