Lopez v. Aran

• Decision Date: 11 July 1986
• Docket Number: Civ. No. 83-2388 (JP).
• Citation: 649 F. Supp. 853
• Parties: Celso Lopez LOPEZ, Plaintiff, v. M. ARAN, J. Figueroa, I. Moreno, individually and as agents of the U.S. Immigration and Naturalization Services; Allen C. Nelson, in his official capacity as the Commissioner of the U.S. Immigration and Naturalization Services; James H. Walker, in his official capacity as District Director of the U.S. Immigration and Naturalization Services for the District of Puerto Rico; Doe, John; Wackenhut Services, Inc. and Eastern Airlines, Defendants.
• Court: U.S. District Court — District of Puerto Rico

649 F. Supp. 853

Celso Lopez LOPEZ, Plaintiff, v. M. ARAN, J. Figueroa, I. Moreno, individually and as agents of the U.S. Immigration and Naturalization Services; Allen C. Nelson, in his official capacity as the Commissioner of the U.S. Immigration and Naturalization Services; James H. Walker, in his official capacity as District Director of the U.S. Immigration and Naturalization Services for the District of Puerto Rico; Doe, John; Wackenhut Services, Inc. and Eastern Airlines, Defendants.

Civ. No. 83-2388 (JP).

United States District Court, D. Puerto Rico.

July 11, 1986.

COPYRIGHT MATERIAL OMITTED

José A. Lugo, Instituto Puertorriqueño de Derechos Civiles, Río Piedras, P.R., William Santiago Sastre, San Juan, P.R., for plaintiff.

Eduardo Toro Font, U.S. Atty.'s Office, Hato Rey, P.R., for Federal Defendants.

Francisco Ponsa Flores, San Juan, P.R., for Eastern Airlines.

Iván M. Fernández, Hato Rey, P.R., for Wackenhut.

OPINION AND ORDER

PIERAS, District Judge.

The Court has before it the claims of plaintiff Celso López López brought pursuant to the Fourth and Fifth Amendments of the United States Constitution for declaratory judgment and permanent injunctive relief against Immigration and Naturalization Service (INS) Commissioner Allen Nelson, INS District Director James Walker, and INS agents M. Aran, J. Figueroa and I. Moreno in their official capacities. Plaintiff is requesting the Court to declare 8 U.S.C. § 1182(d)(7) and 8 C.F.R. § 235.5 unconstitutionally vague on their face and unconstitutional as applied to plaintiff under the constitutional guarantee of equal protection under the law. In addition, plaintiff claims 8 C.F.R. § 235.5 was promulgated ultra vires in violation of the Fifth Amendment "with the intent of arbitrarily and indiscriminately examining United States citizens".¹ Plaintiff is also requesting permanent injunctive relief ordering the INS to desist its airport checkpoint practice on flights from Puerto Rico to the United States mainland on the basis that the actions of the named immigration agents violate the plaintiff's Fourth and Fifth Amendment rights by subjecting him to unreasonable search and seizure, to deprivation of his liberty without due process of law, and to infringement of his "right to travel freely."²

The Complaint in this case pleads four incidents, two of which allegedly occurred in 1979 and 1980. The 1979 and 1980 incidents are without specific date or place and have been denied by defendant for lack of knowledge. Given the lack of specificity provided by plaintiff and the specificity required to allow defendant adequate notice and opportunity to defend its case, the Court finds that these two incidents fail to meet the liberal standards of notice pleading and we, therefore, DISMISS plaintiff's Complaint as to these particular pleadings (Paragraphs 10-20).

By Opinion and Order dated October 31, 1984, this Court granted partial summary judgment in favor of defendants Moreno, Arán and Figueroa with respect to plaintiff's claims against them in their individual capacities for civil damages. That Opinion and Order left open plaintiff's claims for injunctive and declaratory relief, and the grounds for these claims were expanded in plaintiff's Amended Complaint filed February 26, 1985. Subsequently, the parties submitted the case for decision on the briefs and stipulated evidence. We reach the following findings of fact and conclusions of law based on our prior Opinion and Order and on the evidence designated by the parties' joint motion filed April 30, 1985 and the arguments of the parties submitted January 15, 1985, February 21, 1985, and May 17, 1985.

I. FINDINGS OF FACT³

1. Defendant Ivette Moreno was stationed and working as an agent of the United States INS at the Isla Verde International Airport in Puerto Rico on or about July 16, 1982. Defendants María del Mar Arán and Juan E. Figueroa were both stationed and working as agents of the INS at the Isla Verde International Airport on or about October 2, 1982.

2. Plaintiff Celso López López is a United States citizen and a resident of the Commonwealth of Puerto Rico. He is also an attorney with experience in immigration law.

3. Plaintiff filed this Complaint on September 30, 1983.

4. On or about July 16, 1982, after 4:00 p.m., plaintiff approached Gate No. 7 at Isla Verde International Airport to board a Capitol Airlines flight bound for New York City. Defendant Moreno was conducting pre-boarding immigration inspection of passengers enroute to New York.

As part of the inspection, defendant Moreno took plaintiff's flight ticket and questioned him about his citizenship. Plaintiff did not answer and instead presented a card to defendant which read "Do you suspect that I am an alien?". Defendant Moreno then proceeded to conduct inspection of other passengers in line. Plaintiff then asked defendant whether she would let him go through. Agent Moreno responded affirmatively, explaining that she knew from his accent that he was Puerto Rican. Plaintiff then verbally challenged defendant Moreno's authority to question him regarding his citizenship before walking away to board his flight.

5. On or about October 2, 1982, plaintiff approached Gate No. 3 at Isla Verde International Airport in order to board an Eastern Airlines flight bound for Baltimore-Washington International Airport. Defendants Arán and Figueroa were conducting preflight immigration inspection near the Eastern departure gate.

As plaintiff passed the agents, defendant Figueroa asked plaintiff his country of citizenship. Plaintiff did not reply, but looked and smiled at the agents as he proceeded past them to place his luggage on the conveyor belt at the security inspection point. The defendants followed plaintiff to the security checkpoint and agent Figueroa repeated the question. Plaintiff then presented the prepared card which read "Do you suspect that I am an alien?". Defendant Arán then made a statement which evidenced her knowledge of the July 16, 1982 incident with defendant Moreno.

As agent Arán proceeded to conduct preflight inspection of other passengers, agent Figueroa continued the attempt to inspect plaintiff. Plaintiff's luggage had not been allowed to go through the security X-ray machine. After Arán rejoined Figueroa, plaintiff attempted to pass through the departure gate but was impeded by a security guard. Plaintiff then sought out an Eastern Airlines Supervisor, after which he retrieved his luggage and left the departure area without boarding the plane.

6. The 1982 immigration inspection checkpoint for the Capitol Airlines flight at issue was in front of the security inspection point. No other details on the appearance or manner of operation of this checkpoint are in the record.

As of April 30, 1985, the INS checkpoint for Eastern Airlines was located immediately after the metal detection security area and the Department of Agriculture inspection area. This checkpoint consists of a podium clearly marked at eye-level with bold white letters on a black background announcing "U S IMMIGRATION", and bearing on its front side a large, visible, official color seal of the United States of America. The immigration inspector at this checkpoint conducts inspection either from behind the podium or standing a few feet in front and slightly to the side of the podium. Prior to approximately October 1984, the INS checkpoint was at the entrance to the boarding area and lacked any podium at all.⁴

7. The INS women officers involved in the checkpoints at issue wear blue uniforms with official-looking badges on the vest front; their white shirts bear an embroidered official emblem on the sleeve. The INS men officers wear blue pants and white shirts, with an official-looking badge on the shirt front pocket.

8. The officers carry out the inspection by asking passengers their country of citizenship. When the answer is affirmative as to U.S. citizenship and arouses no further suspicion to the officer, no further question is asked. If the agent suspects that the passenger is an alien in violation of the immigration laws or, if the agent cannot make a determination as to the legality of immigration status, the suspected passenger is referred to secondary inspection, a procedure which involves another officer taking the passenger to another section of the airport for questioning.

The operating rules given to the agents include instructions to examine every passenger who appears of age (18 years or older) and to remain at their posts under all circumstances. However, in the actual implementation of this rule not every passenger is examined and posts do not remain staffed at all times. At times, the INS agent arrives at the checkpoint when passengers have already passed by and are waiting in the lounge; attempts are made to question all of these individuals. In addition, on occasion the checkpoint is staffed by only one rather than two officers and, when the lone officer calls the supervisor for a replacement to be had during a bathroom break, no replacement is available.

The agents also receive instructions to take the tickets of passengers while questioning them. In general, people give their tickets voluntarily under the mistaken impression that the INS agent is an airport or airlines officer directing them how to proceed.

9. As of April 30, 1985, the Eastern flights leaving through Gates 1-6 of the Eastern Airlines boarding area covered by the INS checkpoint at issue were bound directly for the continental United States, as well as for St. Croix in the U.S. Virgin Islands, and St. Maarteen of the Netherlands Antilles. One flight stopped in the Dominican Republic before arriving at Miami. These gates are also used by Crown Air for 24 daily flights to the British and French West Indies.⁵

10. The island of Puerto Rico is situated in the Caribbean region. On the west is the island of Hispaniola, consisting of the Dominican Republic and Haiti,...