Cermeno-Cerna v. Farrell, Civ. No. 68-403-R.

Decision Date02 August 1968
Docket NumberCiv. No. 68-403-R.
Citation291 F. Supp. 521
CourtU.S. District Court — Central District of California
PartiesJuan CERMENO-CERNA, Juan de Jesus Cermeno-Ruiz, Benjamin Zermeno-Lerna, Jose M. Jasso-Ramos, Candelario Acosta-Puente, Jose R. Santillanes-Diaz, Nicolas Ramirez-Mora, Jesus Valdez-Murguia, Juan Manuel Jasso-Juarez, Efren Ramirez-Rojas and Giumarra Vineyards Corporation, a California corporation, Plaintiffs, v. Raymond F. FARRELL, Commissioner of Immigration and Naturalization Service, and George K. Rosenberg, District Director of Immigration and Naturalization Service, Defendants.


Ronald H. Bonaparte, Los Angeles, Cal., for plaintiffs.

Wm. Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief of Civil Division, James R. Dooley, Asst. U. S. Atty., Los Angeles, Cal., for defendants.

Haight, Lyon, Smith & Nye, Los Angeles, Cal., for Western Growers Association (amicus curiae).

McDaniel & McDaniel, by, Donald C. McDaniel, Los Angeles, Cal., for Agricultural Producers Labor Committee (amicus curiae).

Cohen & Averbuck, by, Jerome Cohen, Delano, Cal., and J. Albert Woll, Robert C. Mayer, Washington, D. C., Charles K. Hackler, by, Charles K. Hackler, Los Angeles, Cal., for United Farm Workers Organizing Committee, AFL-CIO (amicus curiae).


REAL, District Judge.

Plaintiffs, including Giumarra Vineyards Corporation (hereafter "Giumarra"), filed their complaint March 12, 1968, seeking a declaration that the enactment of 8 C.F.R. 211.1(b) (1)1 is "arbitrary, an abuse of discretion, and contrary to the Constitution and laws of the United States" and that deportation proceedings commenced against plaintiffs JUAN CERMENO-CERNA, JUAN de JESUS CERMENO-RUIZ, BENJAMIN ZERMENO-LERNA, JOSE M. JASSO-RAMOS, CANDELARIO ACOSTA-PUENTE, JOSE R. SANTILLANES-DIAZ, NICOLAS RAMIREZ-MORA, JESUS VALDEZ-MURGUIA, JUAN MANUEL JASSO-JUAREZ and EFREN RAMIREZ-ROJAS (hereafter collectively called "individual plaintiffs") are "void and contrary to the Constitution and laws of the United States."

Amending their complaint on July 5, 1968, plaintiffs added to their prayer for relief a request for a temporary and permanent injunction restraining defendants from doing any act in regard to the operation, enforcement or execution of the challenged regulation and further alleged a class action "in behalf of themselves and all other immigrants lawfully admitted for residence" and a class of owners of certain places of employment.

The matter proceeded to trial upon the amended complaint and the answer of defendants raising the following issues:

1. Jurisdiction of the Court over the subject matter of the action;
2. Failure of individual plaintiffs to exhaust their administrative remedies; and
3. Standing of individual plaintiffs and Giumarra to either challenge the validity of 8 C.F.R. 211.1(b) (1) or to maintain the action.

At trial no evidence was presented upon the issue regarding the maintenance of a class action and therefore that question is moot. In any event, resolution of that question is not necessary to a determination of the central issues presented to the Court for decision.


Individual plaintiffs are each now the subject of deportation proceedings instituted pursuant to Section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b).2 Within that section is found the "sole and exclusive procedure for determining the deportability of an alien."

Judicial review of deportation proceedings is limited to those procedures prescribed in 5 U.S.C. § 701 et seq. excepting those specific provisions of 8 U.S.C. § 1105a the most pertinent distinction providing a six (6) months statute of limitations for filing of the petition for review from a final order of deportation.

A review of the statutory and case law clearly compels the determination that the Court is without jurisdiction to stay these deportation proceedings. This should not be construed to indicate that this Court would be without jurisdiction to stay execution of a final order of deportation pending judicial review under proper circumstances.


5 U.S.C. § 7043 provides for judicial review of agency action where there is "no other adequate remedy in a court." Individual plaintiffs have been arrested and placed upon bond conditioned upon their refraining from returning to the employment of their employer at the time of their arrest. This action was taken in the guise of enforcement of the provisions of the questioned regulation. Being unable to attack this procedure in any other forum, it would appear that this Court has jurisdiction to determine the validity of the regulation as requested here.

Certainly the administrative proceedings cannot provide for a determination of the validity of 8 C.F.R. 211.1 (b) (1). The Special Inquiry Officer can make only a determination of whether or not the regulation is applicable to the factual situation presented by each individual plaintiff in a deportation hearing, and upon finding the facts, apply the regulation regardless of its validity.

Considering the type of review requested herein, the Supreme Court, in Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), says:

"The Administrative Procedure Act provides specifically not only for review of `agency action made reviewable by statute' but also for review of `final agency action for which there is no other adequate remedy in a court,' 5 U.S.C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act's `generous review provisions' must be given a `hospitable' interpretation. Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 594, 99 L.Ed. 868; see United States v. Interstate Commerce Comm'n, 337 U.S. 426, 433-435, 69 S.Ct. 1410, 1414-1415, 93 L. Ed. 1451; Brownell v. We Shung, supra 352 U.S. 180, 77 S.Ct. 252 1 L. Ed.2d 225; Heikkila v. Barber, supra 345 U.S. 229, 73 S.Ct. 603, 87 L.Ed. 972. Rusk v. Cort, supra, 369 U.S. 367 at 379-380, 82 S.Ct. 787 at 794, 7 L.Ed.2d 809, the Court held that only upon a showing of `clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review."

We are faced here only with the legal question of the scope of the delegated power of the Attorney General,4 not with the Court predetermining a question which could be raised at a deportation hearing. There is no procedure for questioning the scope of the delegated power of the Attorney General within the deportation process. Plaintiffs' only adequate or effective relief can be granted in this Court. See Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). Under these circumstances, this Court has jurisdiction, both under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 and in the exercise of its discretionary powers under the Declaratory Judgment Act, 28 U.S.C. § 2201.

VALIDITY OF 8 C.F.R. 211.1(b) (1)

The basic considerations for determining the validity of an administrative regulation are articulated by the Supreme Court in Boske v. Comingore, 177 U.S. 459, 470, 20 S.Ct. 701, 706, 44 L.Ed. 846 (1900):

"A regulation * * * should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law. Those who insist that such a regulation is invalid must make its invalidity so manifest that the court has no choice except to hold that the Secretary has exceeded his authority and employed means that are not at all appropriate to the end specified in the act of Congress."

Plaintiffs complain that there can be found no authority for the Attorney General to administratively create a new class of alien for admission to the United States. Defendants contend that the Attorney General is given broad authority to promulgate the regulation challenged here by Section 103(a) of the Immigration and Nationality Act, 8 U.S.C. § 1103(a). Defendants further suggest that specific authority can be found in Section 211(b) of the Immigration and Nationality Act, 8 U.S.C. § 1181 (b).

8 U.S.C. § 1103(a) provides in part:

"The Attorney General shall be charged with the administration and enforcement of * * * all * * * laws relating to the immigration and naturalization of aliens * * *. He shall establish such regulations * * as he deems necessary for carrying out his authority under the provisions of this chapter."

The power given the Attorney General is broad within the delegated authority given him by Congress. But such power must be exercised in promulgating regulations that carry out the statutory scheme of admission or readmission of aliens. It must also be exercised within the limits of procedural and substantive due process.

8 U.S.C. § 1181(b) provides:

"Notwithstanding the provisions of section 1182(a) (20) of this title in such cases or in such classes of cases and under such conditions as may be by regulation prescribed, returning resident immigrants, defined in section 1101(a) (27) (B) of this title, who are otherwise admissible may be readmitted to the United States by the Attorney General in his discretion without being required to obtain a passport, immigrant visa, reentry permit or other documentation."5

The power of Congress to legislate in connection with immigration and naturalization of aliens is plenary. Congress may in the exercise of that power exclude aliens from the United States, impose conditions of entry or reentry, and regulate their conduct and fix their rights while in the United States. Administration of these powers by the Attorney General is not an unconstitutional delegation of power. United...

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