Air Transport Ass'n of America v. Reno

• Citation: 80 F.3d 477
• Decision Date: 24 May 1996
• Docket Number: No. 95-5143,95-5143
• Parties: AIR TRANSPORT ASSOCIATION OF AMERICA, Appellant, v. Janet RENO, United States Attorney General and Doris Meissner, Commissioner of the Immigration and Naturalization Service, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 477

80 F.3d 477

317 U.S.App.D.C. 1

AIR TRANSPORT ASSOCIATION OF AMERICA, Appellant, v. Janet RENO, United States Attorney General and Doris

Meissner, Commissioner of the Immigration and

Naturalization Service, Appellees.

No. 95-5143.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 29, 1996.

Decided March 26, 1996.

Rehearing and Suggestion for Rehearing In Banc Denied May 24, 1996.

Appeal from the United States District Court for the District of Columbia (No. 92cv00181).

Eric M. Braun, Washington, DC, argued the cause for appellant, with whom Michael S. Sundermeyer was on the briefs.

Darrell C. Valdez, Assistant United States Attorney, argued the cause for appellees, with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the brief. Rudolph Contreras, Assistant United States Attorney, entered an appearance.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellant Air Transport Association of America ("ATA") challenges two policies of the Immigration and Nationalization Service ("INS"). Under the INS's Transit Without Visa ("TWOV") policy, airlines are permitted to allow foreign passengers to board planes bound for the United States even if the passengers do not have United States visas, so long as the passengers are merely connecting to another flight which will take them on to some country other than the United States. Although most of these passengers eventually board their outbound flights and leave the United States without incident, a few, upon arrival in the United States, claim asylum, and under the Refugee Act of 1980 are automatically entitled to remain in the United States until their claim is heard. During the pendency of their asylum requests--which often last more than a year--the INS currently requires the airlines to pay all expenses of detaining these individuals, including hotels, meals, medical services, and round-the-clock guards. In addition, under the INS's "stowaway" policy, the INS requires the carriers to provide similar detention expenses for stowaways who arrive in the United States and claim asylum.

The district court denied summary judgment for the ATA, finding that the INS's policies were authorized by the Immigration and Naturalization Act ("INA"). We disagree, and hold that neither of these policies is authorized by current law. The statutory authority for the INS's TWOV policy--section 233 of the INA--was repealed in 1986, and since that time the INS has had no legal authority to require the carriers to pay detention expenses. Moreover, the statute which the INS cites in support of its stowaway detention policy--section 237 of the INA--only authorizes the INS to require carriers to transport back to their country of origin those stowaways who are excluded and subject to immediate deportation, but does not impose upon airlines any detention responsibility with respect to those stowaways who claim asylum. Although we declare the INS's TWOV and stowaway policies to be unauthorized by law, we find that the ATA lacks standing to seek an order requiring the government to compensate ATA's members for detention expenses they have previously paid, because the determination of such monetary relief would require detailed, individualized proof of the members' damages.

I. BACKGROUND

A. Transit Without Visa Policy

Transit without visa passengers are individuals who board airlines in foreign countries with the announced intention of passing through the United States en route to another destination. These passengers are permitted, under the INS's TWOV regulations, to enter the U.S. without a passport or visa, provided they are planning "immediate and continuous transit through the United States" to some other country they are entitled to enter, and will depart the U.S. within 8 hours of their arrival (or on the first available transport). See 8 C.F.R. §§ 212.1(f)(1); 214.2(c)(1).

Most such passengers proceed through the United States without incident, remaining in special airport areas until their continuing flights depart. Some, however, renounce their intention to merely transit the United States, and assert political asylum as a basis for remaining in the United States. Once they have made a claim for asylum, these aliens are entitled, under the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (1980), to remain in the United States during their asylum hearing process. See 8 U.S.C. § 1158 (describing asylum procedure). The INS in turn has required the airlines to pay the detention expenses for these asylum applicants- --including hotel rooms, meals, 24-hour security guards, and medical expenses--during the pendency of the hearing process, which can stretch out to months or even years. See Aerolineas Argentinas v. United States, 77 F.3d 1564 (Fed.Cir.1996) (discussing one airline's claim to have spent $162,000 on six passengers and another airline's claim to have spent $89,000 on a single passenger); 59 Fed.Reg. 14,779, 14,780 (1994) ("most asylum applicants wait a year or more to receive even initial decisions on their cases").

Prior to 1986, the INS had based its requirement that the airlines bear these detention expenses principally on section 233 of the INA, which in relevant part provided:

(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 ... 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....

8 U.S.C. § 1223 (1970), repealed by Pub.L. No. 99-500, 100 Stat. 1783-56 (1986).

While section 233 provided the underlying authority for requiring airlines to pay detention expenses, implementation of this policy was governed by section 238 of the INA:

The Attorney General shall have power to enter into contracts including bonding agreements with transportation lines to guarantee the passage through the United States in immediate and continuous transit of aliens destined to foreign countries. Notwithstanding any other provision of this chapter, such aliens may not have their classification changed under section 1258 of this title.

8 U.S.C. § 1228(c) (Supp.1995) (formerly 8 U.S.C. § 1228(d) (1970)). The INS developed a standard contract with the airlines, known as "Form I-426" under which it has required the airlines to pay these detention expenses as well as liquidated damages in the event the airline fails to transport an alien out of the country. Although the airlines are theoretically free not to sign these contracts, if they do not, then they will not be allowed to accept TWOV passengers aboard their planes. Not surprisingly, most major airlines have signed I-426 agreements. See 8 C.F.R. § 238.3 (listing signatories).

In 1986, however, Congress repealed section 233, ¹ and also passed the Immigration User Fee Statute ("IUFS"), Pub.L. No. 99-591, § 205, 100 Stat. 3341-53 (1986) (codified as amended at INA § 286, 8 U.S.C. § 1356). The IUFS established a separate "User Fee Account" to be funded by a $5 surcharge (now $6) on international tickets. See 8 U.S.C. § 1356(d)(h). That money was to be deposited in a separate account, from which:

The Secretary of the Treasury shall refund out of the Immigration User Fee Account to any appropriation the amount paid out of such appropriation for expenses incurred by the Attorney General in providing immigration inspection and preinspection services for commercial aircraft or vessels and in--

(i) providing overtime immigration inspection services ...

(ii) administration of debt recovery ...

(iii) expansion ... of information systems ...

(iv) detection of fraudulent documents used by passengers traveling to the United States; and

(v) providing detention and deportation services for excludable aliens arriving on commercial aircraft and vessels.

8 U.S.C. § 1356(h)(2)(A) (emphasis supplied).

In response to the 1986 Amendments, the INS issued new regulations, 50 Fed.Reg. 100 et seq. (1989), acknowledging that the IUFS required the INS "to address the change from carrier responsibility to [INS] responsibility for the custody and detention of excludable aliens." While accepting responsibility for the detention of most excludable aliens, the INS has continued to insist, however, that "carriers are responsible for the detention expenses of detained TWOV passengers while in Service custody...." Id. at 101. According to INS, "[a]lthough the issue of carrier responsibility for TWOV passengers may be a thorny one," section 238 of the INA (governing bonding agreements) provides the necessary authority for the INS to enter into enforceable Form I-426 contracts. Id.

Thus even after the repeal of section 233, the INS has continued to require the airlines to pay detention expenses for TWOV passengers who renounce their TWOV status and apply for asylum.

B. Stowaway Policy

The INS also requires the airlines to pay the detention expenses for stowaways who apply for asylum, basing this policy on section 237 of the INA:

Any alien ... arriving in the United States who is excluded under this chapter, shall be immediately deported, in accommodations of the same class in which he arrived.... The cost of the maintenance including detention expenses and expenses incident to detention of any such alien while he is being detained shall be borne by the owner or owners of the vessel or aircraft on which h...