Aerolineas Argentinas v. U.S., s. 94-5076

• Citation: 77 F.3d 1564
• Decision Date: 28 February 1996
• Docket Number: 94-5077,Nos. 94-5076,s. 94-5076
• Parties: AEROLINEAS ARGENTINAS, Plaintiff-Appellant, and Pakistan International Airlines, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1564

77 F.3d 1564

AEROLINEAS ARGENTINAS, Plaintiff-Appellant and Pakistan International Airlines, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

Nos. 94-5076, 94-5077.

United States Court of Appeals Federal Circuit.

Feb. 28, 1996.

Rehearing Denied; Suggestion for Rehearing In Banc Declined

June 27, 1996.

Appealed from U.S. Court of Federal Claims, Judge Weinstein.

Jay Henry Levine, Bigham Englar Jones & Houston, of New York City, argued for plaintiff-appellant, Aerolineas Argentinas. Mumtaz H. Alvi, Las Offices Muntaz H. Alvi, of New York City, and Elan Gerstmann, of New York City, were on the brief, for plaintiff-appellant, Pakistan International Airlines.

Thomas D. Dinackus, Attorney, Commercial Litigation Branch, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Jeanne E. Davidson, Assistant Director. Also on the brief was Ian G. Hinds, Assistant General Counsel, Immigration & Naturalization Service, of counsel.

Before NEWMAN, Circuit Judge, NIES, Senior Circuit Judge, ^* and MAYER, Circuit Judge.

Opinion for the court filed by Circuit Judge NEWMAN. Separate opinion, concurring, filed by Senior Circuit Judge NIES.

PAULINE NEWMAN, Circuit Judge.

Aerolineas Argentinas (Aerolineas) and Pakistan International Airlines (PIA) each filed suit in the Court of Federal Claims to recover money that the Immigration and Naturalization Service (Service or INS) required the airlines to pay to house, sustain, and guard aliens who, having arrived in the United States on plaintiffs' airlines without entry documents, sought political asylum. The airlines state that in view of the enactment of the 1986 Immigration User Fee Statute and the repeal of Immigration and Naturalization Act (INA) § 233, 8 U.S.C. § 1223, the Service, not the airlines, is required to bear the expense of long-term detention and maintenance of aliens pending resolution of their asylum requests. The Court of Federal Claims dismissed these consolidated suits ¹ for lack of jurisdiction or for failure to state a claim on which relief may be granted. We vacate the dismissal, for the plaintiffs have stated a claim within the court's Tucker Act jurisdiction. On review of the applicable law, we conclude that the plaintiffs are entitled to recover the sums for which payment was illegally exacted by the government.

A. POLITICAL ASYLUM

The aliens whose requests for political asylum underlie this action arrived in the United States as passengers on the plaintiff airlines, and were excludable from entry on two grounds: either because their travel documents permitted only transit through the airport in continuing travel to a foreign destination, or because they presented no valid travel documents upon arrival at the United States port. INA § 212(a)(7)(B), 8 U.S.C. § 1182(a)(7)(B). Other classes of excludable aliens are not involved in this action. See generally INA § 212(a), 8 U.S.C. § 1182(a) (defining excludable aliens).

Authorized air carriers may transport aliens through airports in the United States, but only in "immediate and continuous transit" to another country. See INA § 212(d)(4)(C), 8 U.S.C. § 1182(d)(4)(C); 8 C.F.R. §§ 212.1(f)(1), 214.2(c)(1). This program is called "transit without visa" (TWOV). An airline that wishes to participate in the TWOV program must sign INS Form I-426, entitled Immediate and Continuous Transit Agreement, which states the carrier's rights and obligations with respect to transit passengers. INA § 238(c), 8 U.S.C. § 1228(c); 8 C.F.R. § 238.3. Aerolineas and PIA participate in the TWOV program and have signed Form I-426. See 8 C.F.R. § 238.3(b) (listing signatories of Form I-426 agreements). When a United States immigration official discovers that an alien does not qualify for TWOV status, unless political asylum is requested the Service may order immediate deportation and require the carrier to (1) return the alien to the port of embarkation in accordance with Form I-426 p 5, (2) pay $500 to the United States as liquidated damages as specified by Form I-426 p 7, and (3) pay a fine that is now $3,000. See INA § 273(b), 8 U.S.C. § 1323(b); INA § 237(a)(1), 8 U.S.C. § 1227(a)(1).

Deportation is stayed when political asylum is requested. The United States adheres to the United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267, implemented by the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (1980). In accordance with the Refugee Act an alien is permitted to request political asylum "irrespective of such alien's status" if the alien is already present in this country:

The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.

INA § 208(a), 8 U.S.C. § 1158(a). The Attorney General's discretion is exercised through a hearing process. See Garcia-Mir v. Smith, 766 F.2d 1478, 1483-84 (11th Cir.1985), cert. denied, 475 U.S. 1022, 106 S.Ct. 1213, 89 L.Ed.2d 325 (1986) (excludable aliens have no constitutional right of entry). After enactment of INA § 208, 8 U.S.C. § 1158, all aliens who reach the United States as TWOV passengers or as stowaways are entitled to apply for asylum, and to the ensuing hearing process. During that process excludable aliens are ordinarily detained in federal custody. For all aliens except TWOV passengers and stowaways the Service has accepted the custodial responsibility for that detention.

In the incidents giving rise to this litigation aliens without entry documents arrived on Aerolineas or PIA scheduled flights and requested political asylum. Some of these passengers had destroyed their travel documents en route, and thus were treated as stowaways. Others arrived as TWOV passengers, and yielded their TWOV status by requesting asylum. The Service declined to assume custody of these aliens, but issued written detention orders directing Aerolineas or PIA to detain and maintain the aliens at the airline's expense pending completion of the asylum hearings. The adjudication of an asylum claim can be a lengthy process. See 59 Fed.Reg. 14,779, 14,780 (1994) ("most asylum applicants wait a year or more to receive even initial decisions on their cases").

Several instances of alien detention and their cost are described in the complaints. The airlines paid the cost of hotel rooms meals, twenty-four hour security guards, and medical and other expenses, until completion of the asylum procedures and either admission or deportation of the alien. For example, the Aerolineas complaint describes an April 27, 1990 flight to New York carrying six passengers having Singapore or Malaysia passports and connecting tickets to Hong Kong. The immigration officer determined that the passports were fraudulent. The passengers said they were nationals of the People's Republic of China and requested political asylum. The Service ordered Aerolineas to detain them. The cost to the carrier is stated as $162,000.

Similarly, the PIA complaint describes a November 10, 1988 flight to New York carrying a passenger who had no travel documents on arrival, having destroyed them in flight. The Service classified him as a stowaway. The passenger requested asylum, and the Service ordered PIA to detain him. He remained in PIA's custody until May 3, 1989, at a cost to PIA of $89,340.54.

For the incidents described in the complaints the airlines requested that the Service take custody of the detained aliens, stating that the statutory change in 1986 so required. Upon rejection by the Service of these requests PIA and Aerolineas complied with the detention orders, and duly filed suit in the Court of Federal Claims requesting recovery from the government of the amounts spent.

B. THE 1986 IMMIGRATION USER FEE STATUTE

Before 1986 the statutory authority for requiring the airlines to pay the cost of detaining excludable aliens pending political asylum proceedings provided that:

(a) Upon the arrival at a port of the United States of any vessel or aircraft bringing aliens ... the immigration officers may order a temporary removal of such aliens for examination and inspection.... A temporary removal of aliens from such vessels or aircraft ... shall be made by an immigration officer at the expense of the vessels or aircraft or transportation lines....

(b) Whenever a temporary removal of aliens is made under this section, the vessels or aircraft or transportation lines which brought them ... shall pay all expenses of such removal to a designated place for examination and inspection ... and all expenses arising during subsequent detention, pending a decision on the aliens' eligibility to enter the United States....

INA § 233, 8 U.S.C. § 1223 repealed by Pub.L. No. 99-591, § 206, 100 Stat. 3341-56 (1986). The regulation that implemented this practice, 8 C.F.R. § 235.3(d), cited INA § 233 as its statutory authority.

After enactment of the Refugee Act of 1980 the airlines increasingly found themselves providing long-term detention of aliens seeking asylum. In 1985 Congress expressed its disapproval of placing upon the airlines the responsibility for "jailing" of aliens. In a report that addressed this concern, the House Appropriations Committee stated:

The Committee believes this policy raises significant questions about the equity and legal propriety of requiring private entities to assume the financial burdens of maintaining and, at times, exercising physical custody over excludable aliens for extended periods of time. Specifically, the Committee is concerned about the possible...