Haitian Refugee Center, Inc. v. Nelson, 88-5934
| Decision Date | 23 May 1989 |
| Docket Number | No. 88-5934,88-5934 |
| Parties | HAITIAN REFUGEE CENTER, INC., a not-for-profit corporation, Roman Catholic Diocese of Palm Beach, Marie Gizele Angrand, Germaine Cadet, Rosita Delva, Dieumercie Desir, Joseph Saintil Dieudonne, Gerard Henry, Marie France Jean-Philippe, Novamise Julien, Francklin Joseph, Sylvia Lindor, Plaintiffs-Appellees, v. Alan C. NELSON, Commissioner of Immigration and Naturalization Service, Perry Rivkind, District Director, Immigration and Naturalization Service, District Office Number 6, Kenneth Pasquarell, District Director, Immigration and Naturalization Service, District Office Number 26, William Chambers, Director, Immigration and Naturalization Service Regional Processing Facility for the Southern Region, Immigration and Naturalization Service, Department of Justice, Richard Norton, Associate Commissioner of Examination, Immigration and Naturalization Service, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Allen W. Hausman, Office of Immigration Litigation, Civil Div. Washington, D.C., for defendants-appellants.
David V. Bernal, Office of Immigration Lit. Civ. Div., Washington, D.C., for Alan C. Nelson.
Ira J. Kurzban, Kurzban, Kurzban & Weinger, Cheryl Little, Haitian Refugee Center, Inc., Miami, Fla., for plaintiffs-appellees.
Robert A. Williams, Florida Rural Legal Services, Inc., Immokalee, Fla., Michael Guare, Florida Rural Legal Services, Inc., Bartow, Fla., for Rosita Delva, Hector Trejo Tamayo, Juan Tamayo Vega, et al.
Niels W. Frenzen, Public Counsel, Los Angeles, Cal., for amicus curiae American Immigration Lawyers Ass'n.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY, Chief Judge, VANCE, Circuit Judge, and KAUFMAN *, Senior District Judge.
This action was filed on June 13, 1988 on behalf of the Haitian Refugee Center, the Migration and Refugee Services of the Roman Catholic Diocese of Palm Beach, Florida, and seventeen applicants for temporary residence under the Special Agricultural Worker ("SAW") program provided for in section 210 of the Immigration and Nationality Act ("INA") (codified as amended by the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, 100 Stat. 3359, 3417 at 8 U.S.C. Sec. 1160 (Supp.1986)). Plaintiffs sought declaratory, mandatory and injunctive relief for themselves and a class of persons who have applied for or who will apply for temporary lawful residence status under the SAW program and who have been denied or who will be denied SAW status as a result of defendants' allegedly unlawful practices. 1
Plaintiffs contended that a number of system-wide practices employed by INS officials in processing applications resulted in the improper denial of thousands of applications for SAW status. After an extensive hearing at which the parties presented testimony and offered evidence the district court certified the plaintiff class, ruled that it had jurisdiction and granted plaintiffs' motion for preliminary injunction. The court's order requires defendant to reopen cases in which: (1) the notices of denial were defective; (2) the INS considered evidence adverse to the applicant without the applicant's knowledge; and (3) the application was adjudicated under an incorrect burden of proof. Appellants do not challenge these provisions of the district court's order. They take issue only with paragraphs (6) through (8) of the injunction, which provide:
(6) The Legalization Offices shall maintain competent translators, at a minimum, in Spanish and Haitian Creole, and translators in other languages shall be made available if necessary;
(7) The INS shall afford the applicants the opportunity to present witnesses at the interview including but not limited to growers, farm labor contractors, co-workers, and any other individual who may offer testimony in support of the applicant;
(8) The interviewers shall be directed to particularize the evidence offered, testimony taken, credibility determinations, and any other relevant information on the form I-696.
Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864, 881 (S.D.Fla.1988). Appellants also contend that the district court lacked jurisdiction.
The Special Agricultural Workers program was promulgated as part of the Immigration Reform and Control Act of 1986. The law establishes a seven-year program for the adjustment and admission of foreign agricultural workers to meet the special labor needs of American growers of perishable commodities. See H.R.Conf.Rep. No. 99-1000, 99th Cong., 2d Sess. 95, reprinted in 1986 U.S.Code Cong. & Admin.News 5649, 5840, 5850-51. The program directs the Attorney General to adjust the status of any qualifying alien to that of an alien admitted for temporary residence. To be eligible for the program, the alien must have applied for adjustment between June 1, 1987 and November 30, 1988 and establish that she is otherwise admissible to the United States as an immigrant. She is further required to demonstrate that she has resided in the United States and has performed seasonal agricultural services for at least ninety man-days during the twelve-month period ending on May 1, 1986. See 8 U.S.C. Sec. 1160(a)(1). An alien who is granted temporary residence under the SAW program is ultimately eligible for admission as a permanent resident. Id. Sec. 1160(a)(2).
The application process begins at the local Legalization Office ("LO") of the INS. The LO reviews each application for completeness and conducts an interview of the applicant. 8 C.F.R. Sec. 210.2(c)(2)(iv). Based on the interview, the adjudicator may deny the application or make a recommendation that the application be approved or denied. Where a recommendation is made, the reasons for the recommendation are recorded on the "I-696" worksheet, which accompanies the application through the remainder of the process. The completed case file is then forwarded to one of four regional processing facilities ("RPF") for final review and decision. 53 Fed.Reg. 10065 (). A denial of the application by either the LO or the RPF may be appealed to the Administrative Appeals Unit. 8 C.F.R. Sec. 103.3(a)(2)(iii). 2 The Administrative Appeals Unit is the final level of administrative review, id; judicial review of an application for SAW status is available only in the context of review of an alien's exclusion or deportation order. 8 U.S.C. Sec. 1160(e)(3).
At the LO, the interviewing officer must determine whether a completed application is "nonfrivolous." Id. Sec. 1160(d)(2). 3 The regulations initially restricted denial at the LO level to cases where "the alien clearly fails to meet statutory requirements or the alien admits fraud or misrepresentation in the application process." 8 C.F.R. Sec. 103.1(n)(2). On March 29, 1988 the regulations were amended to permit district directors at the LO level to deny all ineligible applications to ensure that provisional employment authorization is not issued inappropriately. See 53 Fed.Reg. 10062, 10064 (1988).
The SAW applicant must prove by a preponderance of the evidence that she worked the requisite ninety man-days 4 of seasonal agricultural services. She may meet this burden by "producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference." 8 U.S.C. Sec. 1160(b)(3)(B)(iii). The burden then shifts to the Attorney General "to disprove the alien's evidence with a showing which negates the reasonableness of the inference to be drawn from the evidence." Id. To meet her burden of proof, the applicant must present evidence of eligibility independent of her own testimony. 8 C.F.R. Sec. 210.3(b)(2). "Affidavits and personal testimony by an applicant which are not corroborated, in whole or in part, by other credible evidence (including testimony of persons other than the applicant) will not serve to meet an applicant's burden of proof." 8 C.F.R. Sec. 210.3(b)(3). Where the applicant's employer or labor contractor has met its statutory obligation to maintain proper payroll records, 5 the applicant may meet her burden of proof through production of these records. 8 U.S.C. Sec. 1160(b)(3)(B)(ii). The burden may also be met through the submission of affidavits "by agricultural producers, foremen, farm labor contractors, union officials, fellow employees, or other persons with specific knowledge of the applicant's employment." 8 C.F.R. Sec. 210.3(c)(3). The affiant must furnish "a certified copy of corroborating evidence or state the affiant's willingness to personally verify the information provided." Id.
The interview at the LO constitutes the only face to face encounter between the applicant and the INS allowing for the assessment of the applicant's credibility. The credibility of the applicant is particularly important where documentary evidence of the applicant's employment history is lacking. As the district court recognized, agricultural employers and labor contractors often fail to maintain accurate employment records. See infra n. 5. Workers are frequently paid in cash by labor contractors whose lists of employees are incomplete. 6
Despite the importance of the interview, the INS does not record or prepare a transcript. In cases involving inadequate documentation of work history, the I-696 worksheet frequently includes the only factual findings on which the RPF bases its decision. These worksheets, however, often contain very little information about the interview. The worksheets of appellees Angrand and Dieudonne, for example, who were recommended for approval by the LO and were denied without explanation by the RPF, were completely blank.
The regulations contemplate the presentation of witnesses in support of an alien's application. "Affidavits and other personal testimony by an applicant which are not corroborated, in whole or in...
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