Sudomir v. McMahon

• Citation: 767 F.2d 1456
• Decision Date: 12 August 1985
• Docket Number: No. 84-2077,84-2077
• Parties: Elizabeth SUDOMIR, Ebrahim Nejati, Mahin Vojdani Nejati, Mojgan Nejati, a minor, by her guardian ad litem, Ebrahim Nejati, Veronica Jefferson, a minor, by her guardian ad litem, Elizabeth Sudomir, on Behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Linda McMAHON, in her official capacity as the Executive Director of the Department of Social Services of the State of California; Jesse Huff, in his official capacity as Director of the Department of Finance of the State of California; and Margaret M. Heckler, in her official capacity as Secretary of the Department of Health and Human Services of the United States of America, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1456

767 F.2d 1456

54 USLW 2130

Elizabeth SUDOMIR, Ebrahim Nejati, Mahin Vojdani Nejati Mojgan Nejati, a minor, by her guardian ad litem, Ebrahim Nejati, Veronica Jefferson, a minor, by her guardian ad litem, Elizabeth Sudomir, on Behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Linda McMAHON, in her official capacity as the Executive Director of the Department of Social Services of the State of California; Jesse Huff, in his official capacity as Director of the Department of Finance of the State of California; and Margaret M. Heckler, in her official capacity as Secretary of the Department of Health and Human Services of the United States of America, Defendants-Appellees.

No. 84-2077.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 13, 1985.

Decided Aug. 12, 1985.

Joseph E. Rasch-Chabot, Feldman, Waldman & Kline, San Francisco, Cal., for plaintiffs-appellants.

William F. Soo Hoo, Dist. Atty. Gen., Sacramento, Cal., Deborah Ruth Kant, Washington, D.C., for defendants-appellees.

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

Before SNEED, TANG and CANBY, Circuit Judges.

SNEED, Circuit Judge:

This is an appeal from the denial of a motion for a preliminary injunction by three aliens who challenge the denial by the California Department of Social Services (the Department) of welfare benefits under the Aid to Families with Dependent Children (AFDC) program. Each of the three has applied for, but not yet received, political asylum. In essence, the aliens contend that the pertinent legislation and the Equal Protection Clause of the Fourteenth Amendment entitle them to receive AFDC benefits. We affirm. ¹

I. FACTS AND PROCEEDINGS BELOW

The AFDC program is a cooperative federal-state effort established by Congress to furnish financial assistance to certain needy families with dependent children. See 42 U.S.C. Secs. 601-615 (1982). The program provides benefits to needy children when at least one parent is absent or is physically or mentally incapacitated or, in the state's discretion, when one parent is unemployed. To qualify as either a dependent child, a caretaker relative, or any other person whose needs are considered in determining AFDC eligibility, 42 U.S.C. Sec. 602(a)(33) (1982), requires that the states provide that

such individual must be either (A) a citizen, or (B) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law (including any alien who is lawfully present in the United States as a result of the application of the provisions of section 1157(c) of title 8 (or of section 1153(a)(7) of title 8 prior to April 1, 1980), or as a result of the 42 U.S.C. Sec. 602(a)(33) (1982) (emphasis added).

application of the provisions of section 1158 or 1182(d)(5) of title 8 )....

Elizabeth Sudomir, Ebrahim Nejati, and Mahin Vojdani, aliens who have applied for asylum in the United States, each unsuccessfully sought AFDC benefits under the above section. Sudomir, after escaping from Poland in May 1981 to avoid persecution as a member of the Solidarity Labor Union, entered the United States without undergoing an inspection by an immigration officer, in violation of 8 U.S.C. Sec. 1251(a)(2) (1982). She applied for asylum, and the Immigration and Naturalization Service (INS) stayed the institution of deportation proceedings pending the disposition of her application. Her application for AFDC benefits was rejected in part by the Department because of her status as an asylum applicant. That is, the Department ignored Sudomir's own needs in calculating her family's monthly AFDC grant. Also, the INS has not granted her authorization to work.

Nejati and Vojdani overstayed the terms of their nonimmigrant visas and are deportable under 8 U.S.C. Sec. 1251(a)(9) (1982). They applied for asylum to escape persecution in Iran. Again, the INS has stayed deportation proceedings pending the outcome of the asylum application process. Nejati and Vojdani applied for AFDC and Medi-Cal benefits, which the Department denied under section 602(a)(33) because of their status as asylum applicants. As in Sudomir's case, the INS has not yet granted authorization to work.

On January 9, 1984, the appellants brought a class action against the State of California seeking declaratory relief and a preliminary injunction preventing the Department from denying AFDC eligibility to asylum applicants. The state responded by filing a third party complaint against the Secretary which sought to bind the Secretary to any judgment against the state. The appellants then amended their complaint, adding the Secretary as a defendant. At the time they filed their initial complaint, the appellants also moved for a preliminary injunction, which the district court denied in an order entered on May 23, 1984. This appeal followed. ²

II. STANDARD OF REVIEW

Granting or denying a preliminary injunction lies within the discretion of the district court. Sports Form, Inc. v. United Press International, 686 F.2d 750, 752 (9th Cir.1982). Accordingly, our review is a limited one. The district court's decision must be affirmed unless the court relied on an erroneous legal premise, on a clearly erroneous finding of fact, or on a misapplication of the law to the facts of the case. Lynch v. Rank, 747 F.2d 528, 534 (9th Cir.1984); Sports Form, Inc., 686 F.2d at 752. The issue here is whether the district court misapprehended the law governing the case. ³

III.

SECTION 602(a)(33)

A. The Issue: Is the Secretary's Interpretation Permissible?

The Secretary offers an interpretation of section 602(a)(33) which excludes Under these circumstances, the question we face is whether the Secretary's denial of AFDC benefits to asylum applicants rests on a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, --- U.S. ----, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). We cannot reject a reasonable interpretation merely because, had we considered the statute initially, we would have preferred another. Id., 104 S.Ct. at 2782 n. 11; Kunaknana v. Clark, 742 F.2d 1145, 1150 (9th Cir.1984); National Treasury Employees Union v. FLRA, 732 F.2d 703, 706 (9th Cir.1984).

                asylum applicants from AFDC eligibility.  An agency's interpretation of a statute it administers is entitled to considerable deference.   Hawaiian Electric Co. v. United States Environmental Protection Agency, 723 F.2d 1440, 1447 (9th Cir.1984);  accord Worthington v. Icicle Seafoods, Inc., 749 F.2d 1409, 1412 (9th Cir.1984).  "Properly accorded, such deference entails affirmance of any interpretation 'within the range of reasonable meanings the words permit,' comporting with the statute's clear purpose."   Alcaraz v. Block, 746 F.2d 593, 606 (9th Cir.1984).
                

B. The Statute and Its Sources.

Although section 602(a)(33) confers eligibility upon aliens "permanently residing in the United States under color of law," ⁴ Congress has provided little help in fixing the content of this clause. It is true that the statute does contain four examples of groups of aliens who satisfy the requirement. One such group consists of aliens "lawfully present in the United States as a result of the application of the provisions of ... [8 U.S.C.] Sec. 1158...." Section 1158, in turn, requires that the Attorney General establish a procedure by which aliens already present in the United States or at a border or a port of entry may apply for asylum and vests the Attorney General with discretion to grant asylum to aliens that are determined to be "refugees," as defined elsewhere in Title 8. See 8 U.S.C. Sec. 1101(a)(42) (1982) (defining refugee).

Section 1158 plainly envisions the creation of an asylum process, of which the application for asylum is a part. The aliens argue, therefore, that those who apply are "lawfully present ... as a result of the application of the provisions of section 1158." It appears that Congress borrowed the section 602(a)(33) language from a regulation promulgated earlier by the Secretary. See 45 C.F.R. Sec. 233.50 (1978). That regulation provided that aliens "permanently residing in the United States under color of law" include aliens "lawfully present in the United States as a result of the application of the provision of section 203(a)(7) [8 U.S.C. Sec. 1153(a)(7) ] or section 212(d)(5) [8 U.S.C. Sec. 1182(d)(5) ] of the Immigration and Nationality Act." Sections 203(a)(7) and 212(d)(5), in turn, gave the Attorney General discretion to admit aliens as conditional entrants or as temporary parolees.

Neither statute, however, made any provision for an application procedure. Conditional entrants or temporary parolees had been granted entry. Having been granted entry, they were "lawfully present in the United States as a result of the application of" those statutes. It stretches this language considerably to have it embrace an alien illegally present in the United States who has merely applied for asylum. The most that can be said is that Congress, in employing the language of 45 C.F.R. Sec. 233.50, did not clearly consider the eligibility of asylum applicants.

C. The Secretary's Position.

The Secretary contends that "permanently residing ... under color of law" rests on two factors: first, an official determination by the INS that an alien is legitimately Asylum applicants, by contrast, have received no official sanctioning of their presence and no official determination that they may remain in the country indefinitely. Their status and its duration are inchoate. An application triggers an administrative process that culminates either in the award of political asylum or in the institution of deportation or voluntary departure proceedings. It does not, the Secretary concludes, confer any status or right to reside in the United States permanently. ⁶

                present in the country and, second, a determination that

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