Blackwell College of Business v. Attorney General

• Decision Date: 10 September 1971
• Docket Number: No. 24801.,24801.
• Parties: The BLACKWELL COLLEGE OF BUSINESS, Appellant, v. The ATTORNEY GENERAL of the United States.
• Court: U.S. Court of Appeals — District of Columbia Circuit

454 F.2d 928 (1971)

The BLACKWELL COLLEGE OF BUSINESS, Appellant, v. The ATTORNEY GENERAL of the United States.

No. 24801.

United States Court of Appeals, District of Columbia Circuit.

Argued March 5, 1971.

Decided September 10, 1971.

Motion for Leave to File Petition for Rehearing Denied March 6, 1972.

Mr. David Carliner, and Miss Suzanna Blackwell, Washington, D. C., for appellant.

Mr. George W. Masterton, Atty., Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Paul C. Summitt, Atty., Department of Justice, were on the brief, for appellee. Mr. Gil Zimmerman, Asst. U. S. Atty., also entered an appearance for appellee.

Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.

Motion for Leave to File Petition for Rehearing Out of Time Denied March 6, 1972.

FAHY, Senior Circuit Judge:

Appellant sued in the District Court, seeking relief for procedural deficiencies in proceedings before the Immigration and Naturalization Service (INS),¹ having the object of overturning an INS decision withdrawing appellant's status as an approved school for attendance by nonimmigrant alien students under the provisions of the Immigration and Nationality Act, 8 U.S.C. § 1101(a) (15) (F). On appellee's motion to dismiss the complaint and cross motions of the parties for summary judgment the District Court granted appellee's motion for summary judgment. Appellant raises on appeal the question whether its status has been revoked consistently with the standards of procedural due process of law. We reverse, without prejudice to renewal of proceedings which fall within guidelines which emerge from our decision.

The College had been approved since 1953 as an institution of learning for attendance by nonimmigrant students,² under 8 U.S.C. § 1101(a)(15)(F), which refers in the following terms to such students and institutions:

* * * a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established institution of learning or other recognized place of study in the United States, particularly designed sic? designated by him and approved by the Attorney General after consultation with the Office of Education of the United States, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn * * *.

The applicable regulations include 8 C.F. R. § 214.3(g) and 8 C.F.R. § 214.3(j). The former provides that the approved school shall promptly report to the INS any nomimmigrant student "who fails to carry a full course of study, fails to attend classes to the extent normally required, or terminates his attendance at the institution."³ The latter provides that approval shall be withdrawn for failure to submit the reports required by paragraph (g). The withdrawal proceedings against appellant were instituted under the latter regulation and are now more fully described.

On December 1, 1969, a District Director of the INS, on the basis of an investigation which had been in part ex parte, informed the school by letter of the intention of the INS to withdraw the school's approved status because of several claimed failures to comply with the reporting requirements of the regulations. The school was afforded 30 days within which to submit written representations under oath, supported by documentary evidence, giving reasons to rebut withdrawal of approval. The school responded by denying the allegations under oath, though without documentary support. There followed an interview of appellant's president with three officials of the INS, at which the president admitted some failures in reporting but took the position that none was willful,⁴ and submitted a list of 203 students for whom she claimed reports had been submitted. The INS reviewed the files of 75 to 100 students listed and, according to a memorandum of the reviewing officer who was an INS examiner present at the interview with the president, violations in reporting were reflected in 26 instances. The District Director thereafter, on January 22, 1970, without further opportunity of the school to rebut or explain the evidence, notified appellant that approval of the school was being withdrawn, with its right of appeal to the Regional Commissioner.

Appellant filed notice of appeal with the Regional Commissioner and urged that the decision to withdraw approval had been made inconsistently with due process of law, that is, that the school had not been afforded a hearing at which it could orally present evidence, that counsel had not been allowed to appear at the proceedings, including the interview, that it had not been afforded an opportunity to examine adverse evidence, and that it had been denied the right to confront and cross-examine adverse witnesses. Appellant further alleged, though without supporting evidence, that it had complied with the reporting requirements of the regulations.⁵ The Regional Commissioner on April 29, 1970, entered an order remanding the case to the District Director "for reopening to enable the appellant to appear with counsel for an interview, inspection of the record of proceeding, further representation, and the District Director's reconsideration."

Prior to compliance with the terms of the remand, the District Director, on June 15, 1970, advised appellant that "additional evidence has been compiled in support of the decision to withdraw Service approval" and that appellant could examine the evidence; and on the same date the INS examiner involved in the original decision filed a memorandum stating that "the College and its attorneys will be allowed to review the additional evidence of record, and unless evidence is submitted to overcome the foregoing, our decision to withdraw will stand." This additional evidence grew out of a series of interviews by the INS of former students of the school, conducted both prior to and after the decision of the Regional Commissioner to remand the case, and at which sworn statements were obtained in the absence of counsel for appellant and without according appellant an opportunity to question the students. In addition, the INS had examined 90 files additional to those previously examined, concluding that 63 violations appeared from these files, again without affording appellant any participation.

Appellant filed suit in the District Court on July 1, 1970. After the suit was filed, and in compliance with the remand of the Regional Commissioner, the District Director on July 10, 1970, in addition to the advice previously given — that appellant could examine additional evidence which had been compiled — advised appellant it could appear on or before July 27, 1970, for an interview, with counsel, and could submit additional evidence and make further representations. Appellant did not take advantage of this opportunity and on August 13, 1970, the District Director notified appellant of his decision to withdraw the school's approved status. The case was certified to the Regional Commissioner for review where it presumably remains pending the outcome of this appeal.

I

The record contains evidence that appellant failed to comply with its reporting obligations. To affirm for this reason, however, would overlook substantial procedural defects in the manner in which the record was compiled. It would also overlook the possibility that had appropriate procedures been followed, action less drastic than total withdrawal of approval by the District Director might have resulted. The wide latitude and discretion inevitably given to executive officials and administrative agencies in regard to enforcement policy puts upon them a corresponding obligation to institute and abide by procedures that give affected persons a meaningful opportunity, before adverse decisions are crystallized, to make an appeal to their discretion. While 8 U.S.C. § 1101(a) (15) (F) plainly contemplates that approval shall be withdrawn "if any such institution of learning or place of study fails to make reports promptly," this does not mandate withdrawal for any and all delicts.⁶ There is discretion inherent in the word "promptly," and this is a point that lurks in the entire proceeding without clarification. There is discretion as to the concrete standard derived from the statute; as to whether the colleges had reasonable notice of the standard, either by fair implication from the statutory language, or some official specification; and as to what deviations or tolerances might be deemed in a zone sufficiently reasonable to avoid the sword of withdrawal. Similarly there is discretion as to the number or proportion of significantly late reports that warrants withdrawal of approval. Finally there is discretion, as will be amplified in the following discussion, as to the kind of opportunity that will be allowed for correction of practices, at least where there is no determination that these are deceitful rather than careless.

The case falls within no familiar pattern, but does come within the general ambit of recent decisions of the Supreme Court, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), from which it seems clear Blackwell was entitled to procedures conformable with due process of law. See also Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Its approved status was a valuable asset in the nature of a license which the governmental proceedings threatened to terminate.

In Goldberg the problem concerned initial termination, after ex parte investigation, of welfare benefits without a prior fair hearing. The Court held that while the pretermination hearing required by the...