Linea Area Nacional de Chile S.A. v. Meissner
| Decision Date | 11 September 1995 |
| Docket Number | No. 1540,D,1540 |
| Citation | 65 F.3d 1034 |
| Parties | LINEA AREA NACIONAL DE CHILE S.A., d/b/a Lan-Chile Airlines, Plaintiff-Appellee, v. Doris MEISSNER, Commissioner of Immigration and Naturalization Service, United States Department of Justice, Defendant-Appellant. ocket 94-6288. |
| Court | U.S. Court of Appeals — Second Circuit |
Scott A. Dunn, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY (Zachary Carter, United States Attorney, Eastern District of New York, Deborah B. Zwany, Assistant United States Attorney, Eastern District of New York, on the brief), for defendant-appellant.
David H. Coburn, Steptoe & Johnson, Washington, DC (Laurence A. Short, Steptoe & Johnson, Washington, DC, Celestino Pena, Miami, FL, on the brief), for plaintiff-appellee.
Before: FEINBERG, ALTIMARI, and MAHONEY, Circuit Judges.
Defendant-appellant Doris Meissner, Commissioner of the Immigration and Naturalization Service ("INS" or "the Commissioner") appeals from a decision of the district court, Linea Area Nacional de Chile v. Sale, 865 F.Supp. 971 (E.D.N.Y.1994), granting summary judgment to plaintiff-appellee Linea Area Nacional de Chile, S.A. ("Lan-Chile"). In light of the 1986 amendments to the governing statute, Lan-Chile challenged INS's policy of requiring common carriers to bear the burden of costs associated with the detention of certain passengers. Pursuant to a longstanding contract with INS, Lan-Chile is permitted to bring into the United States aliens who intend only to pass through en route to other countries. In accordance with the INS-carrier contract, these passengers, unlike other aliens entering the United States, are not required to have visas. When such a passenger seeks asylum in the United States, however, INS requires the common carrier to pay the costs of detaining the passenger pending resolution of the matter, a period that often lasts several months. Lan-Chile maintains that Congress intended, through the 1986 amendments to the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1101 et seq., to shift the burden of detaining such passengers from the common carriers to INS and, accordingly, that INS's policy violates the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 702.
Because we think plain Congress's intent to transfer to INS the burdens of detaining those passengers in transit without visas who seek asylum, we affirm the judgment of the district court. We affirm also the district court's determination that the limited waiver of sovereign immunity in 5 U.S.C. Sec. 702 permits reimbursement to Lan-Chile for the expenses it incurred in connection with the detention of its former passengers.
The facts relevant to this appeal are not in dispute. On three occasions between September 3, 1990 and December 19, 1992, several aliens arriving at John F. Kennedy Airport ("JFK") aboard a Lan-Chile aircraft, destined for Seoul, South Korea, requested political asylum. The passengers were brought to the United States pursuant to a contract between the airline and INS, namely the Form I-426 Immediate and Continuous Transit Agreement ("the Agreement" or "Form I-426"). The Agreement, which either party could cancel upon ten days notice, enabled Lan-Chile to bring into the United States aliens who did not have documentation allowing them to "enter" this country. Such aliens fall under the Transit Without Visa program authorized by Form I-426 and are called "TWOVs." Hundreds of common carriers currently have identical contracts with INS. See 8 C.F.R. Sec. 238.3(b) (1995).
As each group of TWOVs arriving on Lan-Chile flights requested asylum, INS ordered Lan-Chile to assume physical and financial responsibility for the aliens pending determination of their applications. To this end, Lan-Chile hired a private security firm which provided 24-hour armed guard at a hotel paid for by the airline. Lan-Chile also paid for food and medical attention during the detention period, which lasted a minimum of four months in each case. In addition, the airline had to address any contingency that might arise, such as an attempted escape by a detainee. The record demonstrates that at least one serious such incident occurred during the months of detention.
INS rejected the airline's claim that it should bear the costs (some $620,000) associated with the detentions. On June 15, 1993, Lan-Chile filed a complaint in the United States District Court for the Eastern District of New York seeking (1) a declaration that INS's policy of holding common carriers liable for the detention of TWOVs who seek asylum exceeded the agency's statutory authority and violated the APA; (2) a declaration that INS's policy was arbitrary and capricious in violation of the APA; and (3) an order directing INS to reimburse Lan-Chile for past or future expenditures in connection with the detentions. The district court granted summary judgment to Lan-Chile on September 14, 1994. INS now appeals.
Until 1986, 8 U.S.C. Sec. 1223--section 233 of the Immigration and Nationalization Act--provided that common carriers were responsible for the detention expenses of aliens temporarily detained at INS's insistence. In relevant part, the statute provided:
(a) Upon the arrival at a port of the United States of any vessel or aircraft bringing aliens ... the immigration officers may order a temporary removal of such aliens for examination and inspection.... A temporary removal of aliens from such vessels or aircraft ... shall be made by an immigration officer at the expense of the vessels or aircraft or transportation lines....
(b) Whenever a temporary removal of aliens is made under this section, the vessels or aircraft ... shall pay all expenses of such removal to a designated place for examination and inspection ... and all expenses arising during subsequent detention, pending a decision on the aliens' eligibility to enter the United States....
8 U.S.C. Sec. 1223 (1970) (repealed Pub.L. No. 99-500, 100 Stat. 1783-56 (1986)). Relying principally on this statute, INS had required carriers to assume the responsibility for detaining and paying the related expenses of, among others, the class of aliens at issue here.
In addition, the Commissioner enjoyed the "power to enter into contracts including bonding agreements with transportation lines to guarantee the passage through the United States in immediate and continuous transit of aliens destined to foreign countries." 8 U.S.C. Sec. 1228(c) (West Supp.1995) (formerly 8 U.S.C. Sec. 1228(d) (1970)). Pursuant to this authority, INS entered into the Agreement which obligated Lan-Chile to pay the deportation costs of aliens "found ... not to be eligible for passage through the United States in immediate and continuous transit." Form I-426 further directed that TWOV passengers "be detained in quarters provided or arranged for by the [carrier], in the custody of immigration officers of the United States or such other custody as the Commissioner may approve...." Finally, pursuant to the Agreement, Lan-Chile agreed to reimburse the United States "for salaries and expenses of Immigration officers of the United States during such times as they are actually employed in maintaining custody of such alien passengers."
INS also formulated regulations that set conditions for the TWOV program, including the requirement that common carriers assume the burden of the "continuous actual custody" of the alien:
An applicant for admission under the transit without visa privilege must establish that he is admissible under the immigration laws; that he has confirmed and onward reservations to at least the next country beyond the United States, and that he will continue his journey on the same line or a connecting line within 8 hours after his arrival.... The privilege of transit without a visa may be authorized only under the conditions that the transportation line, without the prior consent of the [INS], will not refund the ticket which was presented ... as evidence of the alien's confirmed and onward reservations; that the alien will not apply for extension of temporary stay or for adjustment of status under section 245 of the Act, and that until his departure from the United States responsibility for his continuous actual custody will lie with the transportation line which brought him to the United States....
8 C.F.R. Sec. 214.2(c)(1) (1995). A regulation to this effect has existed since 1973. See 38 Fed.Reg. 24891 (Sept. 11, 1973).
On October 30, 1986, Congress repealed INA section 233, the specific and principal statutory authority enabling the Commissioner to make the carriers liable for the detention expenses of TWOV aliens. Congress also modified section 232, shifting the burden of responsibility for aliens detained for health reasons from the carriers to INS. 8 U.S.C. Sec. 1222 (). At the same time, Congress amended section 286. See 8 U.S.C. Sec. 1356 (1988) (the "User Fee provisions"). The User Fee provisions directed the Attorney General to collect $5 (raised to $6 in 1993, see 8 U.S.C. Sec. 1356(d), as amended by the Department of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriation Act, Pub.L. No. 103-121, 107 Stat. 1153, 1160-61 (1993 Amendment)) per passenger arriving at a United States port of entry to cover the cost of immigration inspection. 8 U.S.C. Sec. 1356(h)(2)(A) (West Supp.1995). Congress further instructed the Attorney General to deposit the funds into a segregated account of the United States Treasury ("the User Fee Account") to pay her related expenses:
The Secretary of the Treasury shall refund out of the Immigration User Fee Account to any appropriation the amount paid out of such appropriation...
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