Hernandez v. Cremer

• Decision Date: 02 October 1990
• Docket Number: No. 89-1743,89-1743
• Citation: 913 F.2d 230
• Parties: Carmelo HERNANDEZ, Plaintiff-Appellee, v. Lee G. CREMER, Etc., et al., Defendants, U.S. Immigration & Naturalization Service, and U.S. Department of Justice, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 230

913 F.2d 230

Carmelo HERNANDEZ, Plaintiff-Appellee, v. Lee G. CREMER, Etc., et al., Defendants,

U.S. Immigration & Naturalization Service, and U.S.

Department of Justice, Defendants-Appellants.

No. 89-1743.

United States Court of Appeals, Fifth Circuit.

Oct. 2, 1990.

Alison R. Drucker, Mark C. Walters, Civil Div. Dept. of Justice, Washington, D.C., Helen M. Eversberg, U.S. Atty., San Antonio Tex., for defendants-appellants.

Alpha Hernandez, Texas Rural Legal Aid, Inc., Del Rio, Tex., for plaintiff-appellee.

Appeal from the United States District Court For the Western District of Texas.

Before GARZA, HIGGINBOTHAM, and DUHE, Circuit Judges.

DUHE, Circuit Judge.

The U.S. Immigration and Naturalization Service (the INS) requests relief from an injunction issued by the district court. We modify the injunction and affirm.

Carmelo Hernandez, a United States citizen born in Puerto Rico, moved to the continental United States in 1958 and lived and worked in Houston, Texas during the time relevant to this lawsuit. On November 30, 1980 Hernandez sought entry from Mexico into the United States at the International Bridge at Del Rio, Texas. INS immigration inspector James T. Blake interviewed Hernandez, who presented a Puerto Rican birth certificate and a union card with his social security number to support his claim that he was a United States citizen. ¹ After examining these documents and questioning Hernandez, Blake was not satisfied that Hernandez was entitled to enter the United States and processed Hernandez for an exclusion hearing before an immigration judge.

To process Hernandez Blake filled out four INS forms and took Hernandez' fingerprints, which were sent to the Federal Bureau of Investigation. The I-122 form, the only form given to an applicant denied entry, serves as a notice to the applicant that his admission has been denied and that he has been or will be scheduled for a hearing before an immigration judge. It contains a space in which to indicate a time, date and place for a hearing if the immigration officer schedules a hearing when the applicant is processed, but if one is not scheduled at the time, space is provided for the applicant's address where a hearing notice can be mailed. The I-122 Blake completed did not schedule a hearing at the time Hernandez was processed. ² In the space provided for the applicant's address, Blake typed in "None itinerant." A local rule in effect at the time required immigration officers to annotate on the I-122 that a list of legal aid organizations had been given to the applicant. Blake failed to make such an annotation.

The I-110 form completed by Blake and sent to an immigration judge stated that Blake had denied Hernandez' entry into the United States because the documents he presented appeared to be counterfeit. Blake further recounted Hernandez' claim that he had lived in the United States for 22 years. Blake also indicated on the I-110 that he had provided a legal aid list to Hernandez.

Blake also completed an I-213 form, which listed Hernandez' criminal record, social security number, and identifying tattoos. The final document Blake filled out was an I-214, a "Warning, Waiver, Certification, and Interview Log Form." The purpose of the I-214 is to ensure that the applicant understands his rights and does not want an attorney present before further questioning. The warning and waiver portion of the form was written in Spanish and signed by Hernandez. The certification portion of the form was not signed, nor was the interview log portion completed.

Hernandez spent 46 days in Mexico ³ and returned frequently to the port of entry at Del Rio to determine if an immigration judge was present to hear his case. Hernandez was admitted into the United States on January 15, 1981, without a formal hearing. At that time INS Inspector Donna Barnes examined Hernandez' birth certificate and discovered nothing which conclusively indicated that the document was fraudulent. She checked with the El Paso Information Center (EPIC) to determine if the document had been used in a fraudulent manner at other ports of entry. Based on information supplied by EPIC and other secondary sources, the INS withdrew its objection to Hernandez' application for admission into the United States.

Hernandez thereafter sued Lee G. Cremer, individually and as the INS officer in charge of the Del Rio port of entry, and James T. Blake, individually and as an officer of the INS. Hernandez filed an amended complaint to add a Federal Tort Claims Act claim against the INS and to add the United States Department of Justice as a party. The district court subsequently dismissed all claims against Cremer and Blake as well as the tort actions against the INS and the United States. However, the court issued an injunction against the INS San Antonio District, requiring that the INS follow certain minimal procedures when an applicant for entry into the United States presents documentary evidence which, if accepted as authentic, would conclusively establish the applicant's United States citizenship. The INS appealed to this court, claiming that oral procedures implemented following the issuance of the injunction obviated the need for such relief; we remanded for the district court to consider the necessity and scope of the injunction in light of the new procedures. After a hearing on the matter, the district court issued a final decision, ordering that the injunction initially entered remain in effect but authorizing the application of the new INS procedures in lieu of the injunction. The INS then lodged this appeal.

Justiciability

Article III of the Constitution imposes limits on the cases federal courts may hear. These include the requirement, broadly described as the justiciability doctrine, that there exist a "case or controversy." See U.S. Const. art. III, Sec. 2, cl. 1; Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968). The fundamental inquiry in determining whether a case or controversy exists is whether the "conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945). Of the several doctrines that courts have developed to elaborate the case or controversy requirement, the requirement that a litigant have "standing" to invoke the power of a federal court "is perhaps the most important of these doctrines." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The core component of the standing requirement, derived directly from the Constitution, is that the plaintiff allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief. Id. at 751, 104 S.Ct. at 3324 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)).

The INS, relying on City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), contends that Hernandez lacks standing because he has not shown that there is a reasonable likelihood that he will again suffer the alleged deprivation of Fifth Amendment due process that gave rise to this suit. Thus the argument follows that the requested relief will not redress the defendant's allegedly unlawful conduct: if this litigant will not benefit from issuance of an injunction, the case is moot. A case may circumvent the mootness doctrine if the conduct about which the plaintiff originally complained is "capable of repetition, yet evading review." Honig v. Doe, 484 U.S. 305, 318, 108 S.Ct. 592, 600, 98 L.Ed.2d 686 (1988) (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982)). Conduct is capable of repetition if there is a reasonable expectation or a demonstrated probability that the same controversy will recur. Honig, 484 U.S. at 318 & n. 6, 108 S.Ct. at 601 & n. 6, 98 L.Ed.2d at 704 & n. 6 (citations omitted). See Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1040-41 (5th Cir.1989).

The INS contends that application of the Court's reasoning in Lyons demonstrates that Hernandez has not shown a sufficient likelihood that he will suffer a similar injury in the future. Lyons sought damages arising out of injuries he received from an illegal chokehold administered by the Los Angeles police. He also sought declaratory and injunctive relief against the city prohibiting chokeholds in all but those situations in which there is the threat of the immediate use of deadly force against the officer. The Supreme Court found Lyons lacked standing because the one episode experienced by Lyons did "nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part." Lyons, 461 U.S. at 106, 103 S.Ct. at 1667.

The Court found that Lyons lacked standing to seek equitable relief due to the "speculative nature of his claims that he will again experience injury as the result of that practice even if continued." Lyons, 461 U.S. at 109, 103 S.Ct. at 1669. The Court relied on its earlier decisions in Golden v. Zwicker, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969) and Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977) which held that standing to challenge a statute was not established merely by the fact that the plaintiff had on a single previous occasion been harmed by the statute's application, absent a realistic likelihood that the statute would, in the future, be applied to his own detriment. Lyons, 461 U.S. at 104-06, 103 S.Ct. at 1666-67. See O'Shea v. Littleton, 414...