Diaz v. INS, Civ. S-83-436 LKK.

Citation648 F. Supp. 638
Decision Date26 September 1986
Docket NumberNo. Civ. S-83-436 LKK.,Civ. S-83-436 LKK.
PartiesJose Fernando DIAZ, et al., and on behalf of all persons similarly situated, Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, Department of Justice, United States of America, David Ilchert, District Director of the San Francisco District of the Immigration and Naturalization Service, Alan Nelson, Commissioner of the Immigration and Naturalization Service, and Edwin Meese, Attorney General, Defendants.
CourtU.S. District Court — Eastern District of California


Norman C. Hile, Kenneth C. Mennemeier, Orrick, Herrington & Sutcliffe, Sacramento, Cal., James F. Smith, Immigration Law Clinic, Davis, Cal., Robert Rubin & Ignatius Bau, National Refugee Rights Project San Francisco Lawyers' Committee for Urban Affairs, San Francisco, Cal., for plaintiffs.

R. Steven Lapham, Asst. U.S. Atty., Glyndell Earl Williams, Sp. Asst. U.S. Atty., I.N.S., Sacramento, Cal., for defendants.


KARLTON, Chief Judge.

This action was brought by a group of aliens, primarily from Central America, who seek permission to work in the United States pending resolution of their applications for political asylum. A class was certified in Diaz v. INS, No. 83-436-LKK, slip op. at (E.D.Cal. March 20, 1986). Three sub-classes are represented by plaintiffs: (1) all asylum applicants who have requested work authorization pursuant to 8 C.F.R. § 109.1(b)(2) (1986) or 8 C.F.R. § 208.4 (1986), and have had, or will have, their requests denied by the San Francisco District of the Immigration and Naturalization Service ("INS"); (2) all asylum applicants who have had, or will have, previously granted work authorizations revoked by the San Francisco District of the INS; and (3) all asylum applicants who have had, or will have, their work authorization requests not timely processed by the San Francisco District of the INS. The case is now before the court on plaintiffs' motion for preliminary injunction.1


The factual backgrounds relative to the representative plaintiffs present variations on a single tragic theme. All have fled their homelands to escape what they perceive to be political or religious persecution and possible death. The majority are from El Salvador. One each is from Guatemala and China. All have applied for political asylum in the United States and all have requested permission to legally work in this country until the INS has processed their asylum applications, a process which may take years.

Jose Fernando Diaz and his wife fled from El Salvador because Jose was involved with "ANDES," a teachers' union whose members have been subject to government persecution. According to his declaration, one uncle and a brother were killed because of their political involvement. Another brother was arrested and tortured. Diaz applied for work authorization when he arrived in the United States and, after some delay, it was granted. It was subsequently revoked after the INS district director determined that Diaz failed to qualify as a refugee.

Juan Jose Fuentes states that he was active in a labor union in El Salvador and a member of a political group "organized against social unjustice." Many of his colleagues were killed or "disappeared" for their activities. The INS informed Fuentes by letter that his request for work authorization would be denied. The letter stated, inter alia, that:

The only apparent reason you have demonstrated in your case to be granted work authorization is to support yourself while you remain illegally in the United States and pursue an asylum application that appears to have little merit. I conclude that the adverse factors in your case, namely, your circumvention of the normal refugee procedures for processing refugees abroad, your giving up a safe haven in Mexico, and your illegal entry into the United States, have not been overcome by countervailing equities.

Wai Hung Yew left the People's Republic of China because of his religious and political opinions. He contends that he was accused of anti-Communist activities based on his criticism of the Chinese Communist Party, and was tortured. Yew's request for work authorization was denied in part "because of the contemptuous manner in which he has circumvented the immigration laws as a stowaway and a shipjumper."

Jose Argumedo-Trujillo was a university student in El Salvador before he came to the United States. He says that he wrote a report critical of the government, after which the police allegedly came to his apartment, interrogated him, and kidnapped two of his roommates. The district director denied Argumedo-Trujillo's request for work authorization in part on the ground that the application had little merit, and in part on the ground that Argumedo-Trujillo had "failed to avail himself of apparent safe havens in either Guatemala or Mexico or to take advantage of normal procedures for applying for refugee or asylum status, but instead entered the United States illegally...."

Manuel Pineda Pedroza is a native of Guatemala. After his brother was killed by police during a demonstration, Pedroza asserts that he received numerous death threats and was fired from his government job because he was the brother of a "revolutionary." Pedroza's request for work authorization was denied after the district director received word from the Immigration Court that the Department of State had recommended denial of his asylum application.

Marlon Perez Reynosa is from El Salvador, where he had allegedly resisted efforts by both the military and a leftist organization to get him to join. His attempted neutrality apparently made him suspect on both sides. The district director denied Reynosa's request for work authorization after finding that the Immigration Court was unlikely to grant the request for asylum. The district director based the denial in part on Reynosa's apparent failure to take safe haven in Guatemala or Mexico, and his illegal entry into the country.

Eduardo Camacho Reynosa came to the United States from El Salvador, where he had attended meetings of ANDES. His brother-in-law, Secretary-General of ANDES, was allegedly kidnapped in 1980 and never seen again. Another brother-in-law was killed in 1981, and yet another was arrested that same year. Reynosa fears that the government will arrest him if he returns to El Salvador. The INS denied Reynosa's request for work authorization because the State Department made a preliminary finding that Reynosa had failed to establish a well-founded fear of persecution. One of the factors that entered into the INS decision was that Reynosa was not "responsible for the welfare of anyone except himself."

Teresa Duarte, a union member, fled El Salvador after allegedly having received death threats. Her uncle, cousin, and persons from her neighborhood have been killed because of their political activity. Duarte was initially granted work authorization, but the authorization was revoked after the district director denied her request for asylum.

Carlos Chavez-Pacas was allegedly forced to serve with ORDEN, the Salvadorean government's network of informers. He fears retaliation from anti-government forces should he return to El Salvador. The INS rejected Chavez-Pacas' application for work authorization on a number of grounds, including the preliminary assessment by the Bureau of Human Rights and Humanitarian Affairs of the Department of State that he had not established a wellfounded fear of persecution, that he did not appear to be responsible for the well-being of anyone except himself, and that he had worked in this country illegally for over four years.

Plaintiffs contend that the district director improperly denied the work authorization requests of Juan Jose Fuentes, Wai Hung Yew, Jose Argumedo-Trujillo, Manuel Pineda Pedroza, Marlon Perez Reynosa, Eduardo Camacho Reynosa, and Carlos Chavez-Pacas.3 Plaintiffs also assert that the work authorizations of Jose Fernando Diaz and Teresa Duarte were impermissibly revoked.


The Ninth Circuit has articulated two interrelated tests for determining the propriety of issuing a prohibitory preliminary injunction.5 Under the "traditional" test, the court may issue a preliminary injunction when (1) the moving party has demonstrated that it will probably prevail on the merits, (2) the moving party will suffer irreparable injury if injunctive relief is not granted, (3) in balancing the equities, the non-moving party will not be harmed more than the moving party is helped by the injunction, and (4) granting the injunction is in the public interest. Martin v. Int'l Olympic Comm., 740 F.2d 670, 674-75 (9th Cir.1984).

Under the "alternative" test, the court may issue a preliminary injunction when the moving party demonstrates "either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Id. The two prongs of the alternative test are not separate tests, but rather "are the ends of a continuum; the greater the relative hardship to the moving party, the less probability of success must be shown." Nat'l Center for Immigrant Rights, 743 F.2d at 1369. Under the second prong of the alternative test, even if the balance tips sharply in favor of plaintiffs, the moving party must show as an "irreducible minimum" that there is a "fair chance of success" on the merits. Martin at 740 F.2d 675.

Recent Ninth Circuit cases involving preliminary injunctions against the INS have relied on both the traditional test and the alternative test. Compare Nat'l Center for Immigrants Rights, 743 F.2d at 1369 (9th Cir.1985) (alternative test), with Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.1983) (applying both traditional and alternative tests). Under either test, the decision to grant or deny the preliminary injunction lies within the sound...

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