Catholic Social Services, Inc. v. Meese, CIV S-86-1343 LKK.

• Decision Date: 03 May 1988
• Docket Number: No. CIV S-86-1343 LKK.,CIV S-86-1343 LKK.
• Citation: 685 F. Supp. 1149
• Court: U.S. District Court — Eastern District of California
• Parties: CATHOLIC SOCIAL SERVICES, INC. (Centro De Guadalupe Immigration Center), et al., Plaintiffs, v. Edwin MEESE, III, etc., Defendants.

685 F. Supp. 1149

CATHOLIC SOCIAL SERVICES, INC. (Centro De Guadalupe Immigration Center), et al., Plaintiffs, v. Edwin MEESE, III, etc., Defendants.

No. CIV S-86-1343 LKK.

United States District Court, E.D. California.

May 3, 1988.

Ralph Santiago Abascal, Stephen Rosenbaum, Jose R. Padilla, California Rural Legal Assistance, Inc., San Francisco, Cal., Ricardo Cordova, California Rural Legal Assistance, Inc., Modesto, Cal., Peter A. Schey, National Center for Immigrants' Rights, Inc., Los Angeles, Cal., Elizabeth Sandoval, Catholic Social Services, Inc., Centro Guadalupe Immigration Center, Sacramento, Cal., Michael Rubin, Altshuler & Berzon, Robert Rubin, Ignatius Bau, National Refugee Rights Project, San Francisco Lawyers' Committee for Urban Affairs, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for plaintiffs.

Glyndell Williams, Sp. Asst. U.S. Atty., Immigration & Naturalization Service, Sacramento, Cal., Robert Kendall, Eileen A. Carty, Office of Immigration Litigation, Dept. of Justice, Washington, D.C., for defendants.

ORDER

KARLTON, Chief Judge.

This matter is before the court on plaintiffs' motion to amend the class definition and on cross-motions for summary judgment. Defendant has also filed a motion to dismiss plaintiffs' claims under section 210 of the Immigration and Nationality Act ("INA"), as amended by the Immigration Reform and Control Act of 1986 ("IRCA"), on the grounds that those claims are moot. In this order, I resolve the motion for summary judgment relative to plaintiffs' claim concerning applicants for legalization under section 245A of the INA, as amended by IRCA (codified at 8 U.S.C. § 1255a, hereinafter referred to as "§ 245A"). The issues regarding claims under section 210, the Administrative Procedure Act, and class certification will be resolved in separate orders.

I turn to the merits of plaintiffs' claim.¹ Plaintiffs challenge the INS' interpretation of § 245A(a)(3)², as manifested by its regulations implementing that section. Specifically, plaintiffs challenge the INS' interpretation of the phrase "brief, casual and innocent."

On November 14, 1986, the INS issued a nationwide telex which provided, inter alia, that "an alien who makes an unauthorized departure and illegal reentry after November 6, 1986 shall be considered to have broken his period of continuous physical presence and thus will be ineligible for legalization under Section 245A." Plaintiffs' Exhibit A, at 15. In the final regulations, issued May 1, 1987, the INS waived this condition for section 245A-eligible aliens who reentered the U.S. prior to May 1, 1987. 52 Fed.Reg. 16206, 16208 (1987). However, the final regulations define "brief, casual and innocent" as "a departure authorized by the Service (advance parole) subsequent to May 1, 1987 of not more than thirty (30) days for legitimate emergency or humanitarian purposes unless a further period of authorized departure has been granted in the discretion of the district director or a departure was beyond the alien's control." Id. at 16208-09 (to be codified at 8 C.F.R. § 245a.1(g)). It is this interpretation of "brief, casual and innocent" as including only departures authorized pursuant to INS' advance parole procedures that is challenged here.

In order to determine whether the regulation conforms to the statute, the court must first determine the statute's meaning. Although in a previous opinion in this case, Catholic Social Services, Inc. v. Meese, 664 F.Supp. 1378, 1382-83 (E.D.Cal.1987) (hereinafter "CSS"), I discussed at length relevant standards of statutory construction, it seems appropriate to delineate the appropriate method of proceeding here as well.

The task for a court confronted with a challenge to an administrative agency's construction of a statute is to ascertain congressional intent, for it is the duty of both the court and the agency to give effect to that intent. INS v. Cardoza-Fonseca, 480 U.S. 421, ___ n. 29, 107 S.Ct. 1207, 1220 n. 29, 94 L.Ed.2d 434 (1987). "The first step of any district court in resolving a matter turning on statutory construction is to determine if there is binding authority construing the statute." Tello v. McMahon, 677 F.Supp. 1436, 1441 (E.D.Cal.1988). In the absence of such authority, the court employs a sequential process, first applying the plain meaning rule to the statutory language and then, if necessary, looking to the legislative history. CSS at 1383. If the statutory language is "clear and unambiguous," id., the court looks to the legislative history only to determine whether there is "clearly expressed legislative intention" contrary to the plain language of the statute. Cardoza-Fonseca, 480 U.S. at ___ n. 12, 107 S.Ct. at 1213 n. 12.³

If congressional intent can be ascertained using these "traditional tools of statutory construction," the question for the court is whether the agency's regulation is "fully consistent" with that intent. National Labor Relations Board v. United Food and Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. ___, ___, 108 S.Ct. 413, 420-21, 98 L.Ed.2d 429, 441 (1987). On the other hand, if the initial analysis demonstrates that the statute is silent or contains an unresolved ambiguity as to the issue tendered, the court must resort to textual aids to construction and then to extrinsic aids, including examination of the agency's interpretation. CSS, at 1382-83. If there is such an ambiguity, the administrative interpretation, while not conclusive, is entitled to deference if the interpretation is a linguistically possible one and is consistent with the statutory purpose. Young v. Community Nutrition Inst., 476 U.S. 974, 981-82, 106 S.Ct. 2360, 2364-65, 90 L.Ed.2d 959 (1986). If the administrative interpretation is "based on permissible construction of the statute," Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), it may be deferred to even if "the agency construction was not the only one it permissibly could have adopted ... or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 843 n. 11, 104 S.Ct. at 2782 n. 11. Factors to be considered in weighing the degree of deference to be afforded an agency interpretation include "the consistency with which an agency interpretation has been applied, and whether the interpretation was contemporaneous with the enactment of the statute being construed." United Food and Commercial Workers Union, 484 U.S. at ___ n. 20, 108 S.Ct. at 421 n. 20, 98 L.Ed.2d at 442 n. 20; see also Sierra Club v. Watt, 608 F.Supp. 305, 331 n. 48 (E.D.Cal.1985).

Applying the steps enumerated above, I determine below that the plain meaning rule does not resolve this case. Moreover, although the legislative history does provide significant evidence of legislative intent, it is not completely dispositive. Nonetheless, as I explain, the regulation in question will not be deferred to because the phrase "brief, casual and innocent" has not been consistently interpreted by the agency, and the regulation is inconsistent with the liberal construction of the statute contemplated by Congress, is inconsistent with the historic meaning of the phrase which was likely to have been the meaning Congress intended, and overall appears to frustrate rather than implement congressional intention.

I Plain Meaning

Since there is no binding construction of the statute at bar, in accordance with the sequential process, I first examine the statute's language to determine if it is dispositive. It appears to the court that application of the plain meaning rule does not provide a clear resolution of the issue tendered. The phrase "brief, casual, and innocent" is not defined in the statute itself. See Chevron U.S.A., 467 U.S. at 851, 104 S.Ct. at 2786; Sacramento Regional County Sanitation Dist. v. Thomas, 668 F.Supp. 1427, 1431 (E.D.Cal.1987). ("When Congress defines a term in a statute, that term is plain, and application of the plain meaning rule requires that term be given its statutorily defined meaning.") Nor does the phrase have a single clearly applicable "ordinary" or "normal" meaning which is readily discernible from the words themselves. Cf. Garcia v. United States, 469 U.S. 70, 73, 105 S.Ct. 479, 481, 83 L.Ed.2d 472 (1984). Each of the words in the phrase has a variety of meanings and the statute itself does not provide a limiting construction of either the individual words or the entire phrase.

II Legislative History

Given the determination above, I next turn to the legislative history. Examination of that history strongly suggests that the phrase "brief, casual, and innocent" has a historic meaning and that Congress intended to adopt that meaning when employing the phrase in IRCA. To demonstrate that proposition, it is necessary to examine the legislative history dealing with the amendments relating to suspension of deportation, since it is in that context that the meaning of the term has developed.

In section 315 of IRCA, Congress amended section 244(b) of the INA, 8 U.S.C. § 1254(b), the section governing suspension of deportation, by adding the following provision:

(3) An alien shall not be considered to have failed to maintain continuous physical presence in the United States under paragraphs (1) and (2) of subsection (a) if the absence from the United States was brief, casual, and innocent and did not meaningfully interrupt the continuous physical presence.

The legislative history of this section specifically notes that:

The Committee Amendment relaxes the recent Supreme Court interpretation with respect to the seven years "continuous physical" residence requirement to qualify for suspension of deportation under section 244 of the Immigration and Nationality Act (INS v. Phinpathya, 464 U.S. 183 104 S.Ct. 584 78 L.Ed.2d 401 (1984)). That decision held that any departure from the U.S. during the seven

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