American Immigration Lawyers Ass'n. v. Reno, No. CIV.A. 97-0597(EGS) (D. D.C. 8/20/1998), No. CIV.A. 97-0597(EGS).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtSullivan
PartiesAMERICAN IMMIGRATION LAWYERS ASSOCIATION, et al., Plaintiffs, v. Janet RENO, Attorney General of the United States, Defendant. LIBERIANS UNITED FOR PEACE AND DEMOCRACY, et al., Plaintiffs, v. Janet RENO, Attorney General of the United States, et al., Defendants. Elba Digna WOOD, et al., Plaintiffs, v. Janet RENO, Attorney General of the United States, et al., Defendants.
Decision Date20 August 1998
Docket NumberNo. CIV.A. 97-0597(EGS).,Nos. CIV.A. 97-1237(EGS) and CIV.A. 97-1229(EGS).

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Janet RENO, Attorney General of the United States, Defendant.
Janet RENO, Attorney General of the United States, et al., Defendants.
Elba Digna WOOD, et al., Plaintiffs,
Janet RENO, Attorney General of the United States, et al., Defendants.
No. CIV.A. 97-0597(EGS).
Nos. CIV.A. 97-1237(EGS) and CIV.A. 97-1229(EGS).
United States District Court, District of Columbia.
August 20, 1998.

Karen T. Grisez, Terrence A. Corrigan, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, Anna Marie Gallagher, Washington, DC, for American Immigration Law Foundation, Dominican American Nat. Foundation, Perlina Perez, Flor Aquino de Pacheco.

Karen T. Grisez, Terrence A. Corrigan, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, for Elba Wood, Velia Isabel Hernandez de Sherwood, Meng Li, Charlotte Leaming, Nigel D. Wilson, Rosemary A. Wilson, Simcha Yechel Avi Ishak, Arlety Read, Valentina Kostine, Michael Wallace, Roberto Morenzo-Lopez, Florida Immigrant Advocacy Center.

Linda S. Wendtland, U.S. Dept. of Justice, Civil Div., Office of Immigration Litigation, Washington, DC, for Janet Reno.


SULLIVAN, District Judge.

Plaintiffs, including ten immigrant assistance organizations and numerous individual aliens, commenced these three separate lawsuits against Attorney General Janet Reno, Commissioner of the Immigration and Naturalization Service ("INS") Doris Meissner, and Director of Immigration Review Executive Office Anthony Moscato, to challenge the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), as well as the regulations, policies, and practices implemented under the new statute.1 The Court has consolidated these cases for the purpose of resolving in one Opinion the related issues raised by the parties.

In their complaints, plaintiffs assert the following claims: that the Interim Regulations implementing IIRIRA violate the intent of IIRIRA; that the INS fails to follow the Interim Regulations; and that IIRIRA and the Interim Regulations violate due process, equal protection, International Law, and the First Amendment.

Pending before the Court are defendants' motions to dismiss all of plaintiffs' claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Upon careful consideration of the pleadings, relevant statutes, case law, and the record herein, defendants' motions to dismiss are GRANTED.


The complexity and intricacy of IIRIRA, the Interim Regulations, and plaintiffs' challenges compel the Court to explain in detail the statutory framework of IIRIRA, prior to discussing and resolving the claims of the individual and organizational plaintiffs.

A. Prior System

These consolidated lawsuits challenge the statutory provisions governing the admittance of aliens arriving at this country's borders. Prior to the implementation of IIRIRA, aliens arriving at a United States port of entry were required to establish to an immigration inspector's satisfaction that they were entitled to enter the United States. If an immigration inspector was doubtful of an alien's right to enter, the inspector referred the alien to a process known as "secondary inspection." During secondary inspection, an immigration inspector briefly interviewed the alien. At that time, the alien could withdraw her application for admission voluntarily. In the event the alien chose not to withdraw her admission application, the alien was entitled to an exclusion hearing. An exclusion hearing was held before an immigration judge, a decision-maker independent of INS. The alien had a right to counsel and was given a list of persons providing free legal services. An alien was then entitled to present evidence and to challenge the government's evidence. If needed, foreign language interpretation was provided by the government. The alien was then entitled to appeal an adverse decision of the immigration judge to the Board of Immigration Appeals.

B. New System

1. Purpose of IIRIRA

IIRIRA substantially amended the Immigration and Nationality Act of 1952 ("INA") and established a new summary removal process for adjudicating the claims of aliens who arrive in the United States without proper documentation. The decision to adopt an "expedited removal" system was prompted by Congress's finding that "thousands of aliens arrive in the U.S. at airports each year without valid documents and attempt to illegally enter the U.S." H.R.Rep. No. 104-469, pt. 1, at 158 (1996). As noted in the conference report for IIRIRA, the purpose of the new removal procedures

is to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted . . ., while providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed by officers with full professional training in adjudicating asylum claims.

H.R. Conf. Rep. No. 104-828, at 209 (1996).

2. The Inspection Process

To understand the "expedited removal" system which IIRIRA and its implementing regulations establish for certain aliens seeking initial entry into the United States, it is first necessary to understand the system for the admission of aliens in general.

Under the statutory scheme, an alien (a person not a citizen or national of the United States) is deemed to be seeking "entry" or "admission" into the United States if she "arrives" at a port of entry (such as an airport) and has not yet been admitted by an immigration officer. See INA § 235(a)(1), 8 U.S.C. § 1225(a)(1); 8 C.F.R. § 1.1(q). Upon her arrival, the alien is subject to "primary inspection," and potentially to "secondary inspection" as well. The INS has explained these procedures in the "Supplementary Information" accompanying IIRIRA's implementing regulations:

All persons entering the United States at ports-of-entry undergo primary inspection. . . . In FY 96, the Service conducted more than 475 million primary inspections. During the primary inspection stage, the immigration officer literally has only a few seconds to examine documents, run basic lookout queries, and ask pertinent questions to determine admissibility and issue relevant entry documents. . .. If there appear to be discrepancies in documents presented or answers given, or if there are any other problems, questions, or suspicions that cannot be resolved within the exceedingly brief period allowed for primary inspection, the person must be referred to a secondary inspection procedure, where a more thorough inquiry may be conducted. In addition, aliens are often referred to secondary inspection for routine matters, such as processing immigration documents and responding to inquiries.

62 Fed.Reg. 10312, 10318 (1997).

If the immigration officer determines during secondary inspection that the alien is inadmissible either because she possesses fraudulent documentation (INA § 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C)) or no valid documentation (INA § 212(a)(7), 8 U.S.C. § 1182(a)(7)), the alien becomes subject to expedited removal. INA § 235(b)(1)(A)(i), 8 U.S.C. § 1225(b)(1)(A)(i). If the alien is found to be inadmissible for some other reason, she is referred for "regular," non-expedited removal proceedings conducted under INA § 240. See INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A).

In order to avoid expedited removal once an inspecting immigration officer has determined that the alien is inadmissible under either INA § 212(a)(6)(C) (fraudulent documentation) or § 212(a)(7) (no valid documentation), an alien must either show that she is a bona fide refugee seeking asylum or that she can claim a valid status as a U.S. citizen, permanent resident, previously admitted parolee, or previously admitted asylee.

Finally, IIRIRA provides that

[j]udicial review of any determination made under section 235(b)(1) is available in habeas corpus proceedings, but shall be limited to determinations of—

(A) whether the petitioner is an alien,

(B) whether the petitioner was ordered removed under such section, and

(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 207 [8 U.S.C. § 1157], or has been granted asylum under section 208 [8 U.S.C. § 1158], such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 235(b)(1)(C).

INA § 242(e)(2), 8 U.S.C. § 1252(e)(2). Further,

[i]n determining whether an alien has been ordered removed under section 235(b)(1), the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.

INA § 242(e)(5), 8 U.S.C. § 1252(e)(5).

The habeas court "may order no remedy or relief other than to require that the petitioner be provided a ["regular," non-expedited removal] hearing in accordance with [INA] section 240." INA § 242(e)(4), 8 U.S.C. § 1252(e)(4).

C. The Implementing Regulations

The Interim Regulations enacted in April 1997 to implement IIRIRA's new expedited removal system regulate how the inspecting officer is to determine the validity of travel documents, how the officer should provide information to and obtain information from the alien, and how and when an expedited removal order should be reviewed.

1. Determining the Validity of Documents

In ascertaining the validity of travel documents, the inspecting officer shall "[o]btain forensic analysis, if appropriate." INS Inspector's Field Manual ("Inspector's Manual"), ch. 17.15(b)(5) (Wood Defs.' Mot. Ex. 3). The officer is not permitted "to `rush to judgement', or . . . to expeditiously remove an...

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