844 F.2d 898 (1st Cir. 1988), 86-1974, Lopez Lopez v. Aran

Docket Nº:86-1974.
Citation:844 F.2d 898
Party Name:Celso LOPEZ LOPEZ, Plaintiff, Appellant, v. M. ARAN, et al., Defendants, Appellees.
Case Date:April 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 898

844 F.2d 898 (1st Cir. 1988)

Celso LOPEZ LOPEZ, Plaintiff, Appellant,

v.

M. ARAN, et al., Defendants, Appellees.

No. 86-1974.

United States Court of Appeals, First Circuit

April 25, 1988

Heard May 6, 1987.

Rehearing and Rehearing In Banc Denied July 21, 1988.

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Judith Berkan with whom Charles S. Hey-Maestre, Jose Antonio Lugo and William Santiago-Sastre, Santurce, P.R., were on brief, for plaintiff, appellant.

Celso Lopez Lopez, pro se, San Sebastian, P.R.

Eduardo E. Toro Font, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for defendants, appellees.

Before COFFIN, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This case requires us to probe the constitutional implications associated with checkpoints established by the federal Immigration and Naturalization Service (INS) at the airport in Isla Verde, Puerto Rico. Such checkpoints are used for preliminary screening of persons attempting to board domestic flights between Puerto Rico and the continental United States. 1 The appeal demands that we assess important fourth amendment values in determining whether--and if so, to what extent--the INS's set procedure is a permissible encounter of the kind sanctioned by the Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), or is some other (less acceptable) breed of cat.

I

The facts relevant to these issues are set forth in the opinion of the district court, see Lopez v. Aran, 649 F.Supp. 853, 856-58 & nn. 4-9 (D.P.R.1986), and we refer the reader with a penchant for nice detail to that meticulous rescript. We rehearse only those facts which we deem helpful to an understanding of the issues before us.

We start by recounting an affray which occurred on July 16, 1982--an affray which served as a telling prelude to the main

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incident involved in this suit. 2 Appellant, Celso Lopez Lopez (Lopez), a United States citizen resident in Puerto Rico and a lawyer experienced in immigration matters, proposed to take a Capitol Airlines domestic flight from San Juan to New York City. During the pre-boarding inspection, an INS inspector, defendant Moreno, confiscated Lopez's ticket and inquired about his citizenship. Instead of answering, appellant produced a prepared card emblazoned with the legend: "Do you suspect I am an alien?" The inspector did not swallow the bait, but went about her inspection of other prospective passengers. When Lopez asked her if he would be allowed to board the aircraft, the inspector responded affirmatively, stating that she knew from appellant's accent that Lopez was Puerto Rican (and thus, a citizen of the United States). Appellant's ticket was returned and he departed on schedule.

Lopez, however, had no intention of letting sleeping dogs lie. On October 2, 1982, he approached a departure gate intending to board an Eastern Airlines flight bound for Washington. Two INS inspectors, defendants Aran and Figueroa, were conducting preflight inspections of prospective passengers at a spot near the gate, immediately in front of the fixed security checkpoint. As appellant passed them, Figueroa made inquiry as to his citizenship. Lopez smiled, but did not reply. He proceeded past the agents and placed his luggage on the conveyor belt at the security station. Both inspectors followed him, and Figueroa repeated the query. Lopez did not respond verbally but instead presented his antagonists with the same sort of preprinted card which he had used on the earlier occasion. Apparently desirous of testing the point, and mindful that his accent might betray his origins, appellant remained mute while Figueroa continued to press him for an answer. The conveyor belt was deactivated, so that appellant's luggage could not traverse it. Then, Lopez attempted to pass through the departure gate. He was impeded from doing so by a security guard. When this happened, Lopez sought out an Eastern Airlines supervisor, who helped him retrieve his suitcases but was otherwise of little solace. He thereafter left the area, having neither answered the questions nor boarded the flight.

The stage was set. Lopez proceeded to file an action in the federal district court challenging the validity of the stop, interrogation, and related procedures. He named as defendants, inter alia, the inspectors who had barred his way (Moreno, Aran, and Figueroa), and various officials of the INS. Other defendants--including Eastern Airlines and a private firm which provided security services at the airport on a contract basis--were originally sued, but later voluntarily dismissed. The suit requested a "declaratory judgment that the policies, practices and acts complained of" were illegal and unconstitutional, the issuance of a permanent injunction preventing the various INS officials "from questioning or detaining [appellant] when he travels between Puerto Rico and the United States mainland", money damages, and ancillary relief.

Before the case was tried, several changes took place in the operation of the INS checkpoints at Isla Verde. From no later than April 1985, the checkpoint corresponding to the one involved in the October 1982 affair was relocated to a spot beyond the security station. A podium was placed "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." Lopez v. Aran, 649 F.Supp. at 856. Thereafter, the INS agents conducted the inspections either from behind the podium or in close proximity thereto. Id. at 856-57. As before, they continued to wear distinctive uniforms and badges. Id. at 857. The operational instructions stayed essentially the same: inspectors were told to examine every adult passenger and to take physical possession of an interviewee's airline ticket

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while questioning him or her. Id. In actual practice, however, not every passenger was screened and not every ticket was taken. Id.

Most of appellant's contentions are centered around 8 C.F.R. Sec. 235.5, see supra n. 1, and the statute from which it prescinds, 8 U.S.C. Sec. 1182(d)(7) (1982). 3 We need not spell out all of his assertions in detail; to the extent not discussed, they should simply be deemed rejected. It suffices to say that appellant's main challenges to the statute and the regulation label them as being unconstitutionally vague, infringing upon constitutionally-protected travel rights, and permitting searches and seizures violative of the fourth amendment. Lopez also claims that promulgation of the regulation was beyond the lawful power of the INS and that the rule has been (mis)applied in a discriminatory fashion. We turn now to his principal asseverations.

II

The district court rebuffed appellant's vagueness argument, ruling that both 8 U.S.C. Sec. 1182(d)(7) and 8 C.F.R. Sec. 235.5 gave adequate notice to all persons leaving Puerto Rico, bound for the mainland United States, that they might be required to explain their immigration status. We agree.

The "void for vagueness" doctrine is essentially a due process concept. It applies to persons in Puerto Rico. See generally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). The doctrine's chief application is in respect to criminal legislation. E.g., Jordan v. De George, 341 U.S. 223, 230, 71 S.Ct. 703, 707, 95 L.Ed. 886 (1951); cf. Zwickler v. Koota, 389 U.S. 241, 249-50, 88 S.Ct. 391, 396-97, 19 L.Ed.2d 444 (1967) (distinguishing void for vagueness doctrine from overbreadth). See also Amsterdam, The Void for Vagueness Doctrine in the Supreme Court, 109 U. of Pa.L.Rev. 67 (1960). Thus, the principle is of doubtful application to the present circumstances. Here, rather than government purporting to proscribe an individual's conduct, the individual is informed of conduct to be undertaken by the government. But we need not rest our holding on this structural point. If we were to assume arguendo that the void for vagueness doctrine could be extended in the fashion envisioned by Lopez, the district court's conclusion would nevertheless--and quite easily, we think--pass muster.

Both the statute and the regulation clearly afford notice to a person of ordinary intelligence of the action that is to take place, and of what is expected of the public. See Buckley v. Valeo, 424 U.S. 1, 77, 96 S.Ct. 612, 662, 46 L.Ed.2d 659 (1976) (per curiam). By virtue of these enactments, all persons leaving Puerto Rico for the mainland should be on fair notice that they may be subjected to pre-boarding examinations in order to ascertain their status within the United States. Whether or not this is a lawful procedure is, perhaps, a horse of another hue--but there is certainly nothing impermissibly vague or entropic about the regulatory mosaic.

III

Appellant's assault on 8 C.F.R. Sec. 235.5 as being ultra vires and as being promulgated with discriminatory intent is a confusing farrago of partially-formed ideas. Lopez's argument, we assume, must be that the regulation is unauthorized because it treats the travel of citizens and resident aliens 4 from Puerto Rico to the

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United States as "entries" into the United States. The district court ruled that, in enacting 8 U.S.C. Sec. 1182(d)(7), Congress provided "a specific exception to the definition of 'entry' for purposes of establishing a secondary border at which to exclude particular classes of excludable aliens." Lopez v. Aran, 649 F.Supp. at 862. It reasoned that unless a person was excludable under Sec. 1182(d)(7), the mere fact that he or she travelled between Puerto Rico and the continental United States would not constitute an...

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