Perales v. Thornburgh

• Decision Date: 24 June 1992
• Docket Number: Nos. 253,s. 253
• Citation: 967 F.2d 798
• Parties: Cesar A. PERALES, as Commissioner of the New York State Department of Social Services; New York State Department of Social Services; Robert Abrams, as Attorney General of the State of New York, and on behalf of the People of the State of New York; State of New York; City of New York; Sara Doe; Jane Roe; Anne Coe, individually and on behalf of their minor children, and on behalf of all others similarly situated and their minor children, Plaintiffs-Appellants, Fran Foe; Mary Moe; Linda Loe; Susan Soe; Zelda Zoe, individually and on behalf of their minor children, and on behalf of all others similarly situated and their minor children, Plaintiffs-Intervenors-Appellants, v. Richard L. THORNBURGH, as Attorney General of the United States; Terrance O'Reilly, as Assistant Commissioner of the Immigration and Naturalization Service; Edward Wildblood, as Legalization Director of the INS EasternRegional Office; Gilbert Tabor, as INS Eastern Regional Processing Facility Director; Scott Blackman, as INS District Director of the New York District; Louis W. Sullivan, M.D., as Secretary of Health and Human Services, Defendants-Appellees. to 255, Dockets 91-6133, 91-6135 and 91-6167.
• Court: U.S. Court of Appeals — Second Circuit

Page 798

967 F.2d 798

Cesar A. PERALES, as Commissioner of the New York State

Department of Social Services; New York State Department of

Social Services; Robert Abrams, as Attorney General of the

State of New York, and on behalf of the People of the State

of New York; State of New York; City of New York; Sara

Doe; Jane Roe; Anne Coe, individually and on behalf of

their minor children, and on behalf of all others similarly

situated and their minor children, Plaintiffs-Appellants,

Fran Foe; Mary Moe; Linda Loe; Susan Soe; Zelda Zoe, individually and on behalf of their minor children, and on behalf of all others similarly situated and their minor children, Plaintiffs-Intervenors-Appellants, v. Richard L. THORNBURGH, as Attorney General of the United

States; Terrance O'Reilly, as Assistant Commissioner of the

Immigration and Naturalization Service; Edward Wildblood,

as Legalization Director of the INS EasternRegional Office;

Gilbert Tabor, as INS Eastern Regional Processing Facility

Director; Scott Blackman, as INS District Director of the

New York District; Louis W. Sullivan, M.D., as Secretary of

Health and Human Services, Defendants-Appellees.

Nos. 253 to 255, Dockets 91-6133, 91-6135 and 91-6167.

United States Court of Appeals, Second Circuit.

Argued Sept. 30, 1991.

Decided June 24, 1992.

Stephen Loffredo, Main Street Legal Services Inc., Flushing, N.Y.; Victor Kovner, Corp. Counsel to the City of New York, Ellen B. Fishman, Linda H. Young, Robert Abrams, Atty. Gen., State of N.Y., New York City, O. Peter Sherwood, Sol. Gen., Judith Kramer, Charles F. Sanders, New York City, for plaintiffs-appellants.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., Diogenes P. Kekatos, Marla Alhadeff, Asst. U.S. Attys., New York City, of counsel, for defendants-appellees.

Lucas Guttentag, Linda Bosniak, American Civ. Liberties Union, New York City, Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon & Rubin, Pauline Gee, Stephen A. Rosenbaum, California Rural Legal Assistance, San Francisco, Cal., Vibiana Andrade, Mexican American Legal Defense & Education Fund, Los Angeles, Cal., for Amici Curiae American Civ. Liberties Union, American Council of Nationality Services, Anna R., Sofia Baez Dehuerta, Jane S., Catholic Charities, Archdiocese of New York, Office for Immigrant Services, Travelers Aid Service/Victim Services Agency, Asian American Legal Defense and Education Fund, League of United Latin American Citizens, Nat. Coalition for Haitian Refugees, New York Immigration Coalition, Central American Refugee Center, Church Avenue Merchants Block Ass'n, Washington Ass'n of Churches.

Before: CARDAMONE, WALKER, and McLAUGHLIN, Circuit Judges.

WALKER, Circuit Judge:

This case concerns the amnesty program of the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, 100 Stat. 3359 et seq. Plaintiffs-appellants ("plaintiffs") challenge Immigration and Naturalization Service ("INS") regulations implementing the statutory exclusion of aliens "likely at any time to become a public charge." See 8 U.S.C. § 1182(a)(4) (Supp. II 1990). Plaintiffs claim that the regulations violated IRCA by disqualifying self-supporting aliens whose family members received public assistance. While the INS later revised its regulations to address plaintiffs' concerns, plaintiffs' maintain that prior to this revision the regulations deterred qualified aliens from applying, thereby denying them the full statutory application period. They further claim that the agency failed to "broadly disseminate information" regarding the revisions as required by statute. See 8 U.S.C. § 1255a(i) (1988). The United States District Court for the Southern District of New York (Conboy, J.), found the INS public charge regulations consistent with IRCA, and dismissed plaintiffs' complaint. We reverse the ruling of the district court and remand for further proceedings consistent with this opinion.

BACKGROUND

The Immigration Reform and Control Act's Amnesty Program.

By the 1980's, Congress faced a serious dilemma in immigration policy. A multitude of aliens had illegally entered the United States and settled here, causing damage to domestic labor, the economy, and to the opportunities of those seeking to lawfully cross our borders. See H.R.Rep. No. 682(I), 99th Cong., 2d Sess. 52, reprinted in 1986 U.S.Code Cong. & Admin. News 5,649, 5,656. However, the cost and difficulty of removing these illegal aliens made their deportation a practical impossibility. Id. at 49, reprinted in 1986 U.S.Code Cong. & Admin. News 5,649, 5,653. Moreover, Congress recognized that many illegal aliens had over time made significant contributions to the nation, and that our own past failures in enforcement were in part responsible for the surge in illegal immigration. Id.

IRCA provided a compromise solution. It undercut the incentives for illegal immigration by sanctioning employers who hire undocumented workers. At the same time, IRCA offered amnesty to undocumented aliens who, over the years, had shown their capacity to be contributing members of society. This case concerns the INS' implementation of the amnesty program.

A. The Amnesty Provisions.

Amnesty was to take place in two stages. During a twelve-month period beginning "on a date ... designated by the Attorney General" and later established by regulation as May 5, 1987 through May 4, 1988 (the "application period"), illegal aliens could apply to the INS for temporary resident status. 8 U.S.C. § 1255a(a)(1) (1988). The second stage, to commence nineteen months after the receipt of temporary resident status, gave aliens one year, later extended to two, see Pub.L. No. 101-649, § 703(a), 104 Stat. 5086 (1990), in which to apply for permanent resident status. 8 U.S.C. § 1255a(b)(1)(A), (2)(C) (1988 & Supp. II 1990). Aliens could tender their applications to the INS or to Qualified Designated Entities ("QDEs"), nongovernmental agencies enlisted to serve as "buffers" between aliens and the government. See 8 U.S.C. § 1255a(c)(1) (1988). IRCA further required the INS, in conjunction with the QDEs, to "broadly disseminate information respecting the benefits which aliens may receive under this section and the requirements to obtain such benefits." 8 U.S.C. § 1255a(i) (1988).

IRCA conditioned adjustment to temporary resident status on the meeting of four broad eligibility requirements. Sections 1255a(a)(1)-(4) mandated the Attorney General to grant this adjustment of status where the applicant: (1) had filed a timely application; (2) had maintained continuous unlawful residence since 1982; (3) had maintained a continuous physical presence since November 6, 1986; and (4) was "admissible to the United States as an immigrant." 8 U.S.C. § 1255a(a)(1)-(4) (1988).

The current appeal centers on the fourth criterion: admissibility as an immigrant. To show that she was "admissible ... as an immigrant," 8 U.S.C. § 1255a(a)(4) (1988), an alien had to establish, inter alia, that she was not inadmissible under 8 U.S.C. § 1182(a)(4) (Supp. II 1990) pursuant to which "[a]ny alien who, in the opinion of the ... Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is excludable." IRCA's "Special Rule for Determination of Public Charge" (the "statutory special rule") limited the agency's broad discretion in this area, stating that an alien "is not ineligible for adjustment of status under this section due to being inadmissible under section 1182(a)(4) of this title [relating to the public charge determination] if the alien demonstrates a history of employment in the United States evidencing self-support without receipt of public cash assistance." 8 U.S.C. § 1255a(d)(2)(B)(iii) (Supp. II 1990). In a separate provision, IRCA authorized the Attorney General to waive "in the case of individual aliens" any of the excludability provisions of § 1182(a), including the public charge provision, "for humanitarian purposes, to assure family unity, or when it

is otherwise in the public interest." 8 U.S.C. § 1255a(d)(2)(B)(i).

B. The INS' May 1, 1987 Public Charge Regulations.

Pursuant to these provisions, the INS promulgated final regulations on May 1, 1987, 52 Fed.Reg. 16,205 et seq. (1987) (codified as amended at 8 C.F.R. § 245a (1992)). The INS broke the statutory amnesty scheme down into three parts. First, the agency's "Proof of financial responsibility" regulation mirrored the statutory language by providing that "[a]n applicant for adjustment of status ... [is] likely to become [a] public charge[ ] unless the applicant demonstrates a history of employment in the United States evidencing self-support without receipt of public cash assistance." 52 Fed.Reg. 16,211 (1987) (codified as amended at 8 C.F.R. § 245a.2(d)(4) (1992)). ¹ Integral to this provision was the regulation's definition of "public cash assistance" as "income or needs-based monetary assistance ... received by the alien or his or her immediate family members through federal, state or local programs designed to meet subsistence levels." 52 Fed.Reg. 16,209 (1987) (codified as amended at 8 C.F.R. § 245a.1(i) (1992)). ² The third element, entitled "Special Rule for Determination of Public Charge" (the "regulatory special rule") provided in relevant part that "[a]n alien who has a consistent employment history which shows the ability to support himself and his or her family ... may be admissible" through a discretionary waiver from the Attorney General. 52 Fed.Reg. 16,212 (1987) (codified as amended at 8 C.F.R. § 245a.2(k)(4) (1992)). ³

C. Developments in INS Policy.

Prior to the issuance of the May 1, 1987 regulations, groups representing aliens had commented that the proposed public charge regulations unlawfully conditioned a showing of self-support upon the non-receipt of public assistance by family members. Just The INS also revised its definition of "public cash assistance." A November 23, 1987 memorandum from...