Doe v. Nelson

• Decision Date: 28 December 1988
• Docket Number: No. 88 C 6987.,88 C 6987.
• Parties: Juan DOE and Maria Roe, individually and on behalf of all others similarly situated, Plaintiff, v. Alan NELSON, Commissioner of the Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Northern District of Illinois

703 F. Supp. 713

Juan DOE and Maria Roe, individually and on behalf of all others similarly situated, Plaintiff, v. Alan NELSON, Commissioner of the Immigration and Naturalization Service, Defendant.

No. 88 C 6987.

United States District Court, N.D. Illinois, E.D.

December 28, 1988.

COPYRIGHT MATERIAL OMITTED

David Rubman, Craig B. Mousin, Travelers & Immigration Aid, Susan R. Gzesh, Chicago Lawyers' Committee for Civil Rights Under Law, Inc., Chicago, Ill., for plaintiff.

James G. Hoofnagle, Asst. U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

Plaintiffs Juan Doe and Maria Roe applied for legalization under the Immigration Reform and Control Act of 1986. 8 U.S.C. § 1255a et seq. Defendant, Alan Nelson, Commissioner of the Immigration and Naturalization Service ("INS"), denied the applications because plaintiffs applied late, in violation of agency regulation 8 C.F.R. 245a.2(a)(2)(i) (the "regulation"). Plaintiffs challenge the validity of this regulation. The INS has moved to dismiss for lack of subject matter jurisdiction.¹ Fed.R. Civ.P. 12(b)(1). For the reasons indicated below, the motion is denied.

STATUTORY AND REGULATORY BACKGROUND

In 1986, Congress passed the Immigration Reform and Control Act, Pub.L. No. 99-603, 100 Stat. 3359 ("the Act"). As discussed move fully below, the Act represented a comprehensive attempt by Congress to deal with what it perceived as the problems created by the influx of undocumented aliens into this country. Title II of the Act established a one-time only legalization program for aliens who had been living in the country since before January 1, 1982 and who met the specified statutory requirements. See 8 U.S.C. § 1255a et seq.

The Act established a one year application period for participation in the legalization program. 8 U.S.C. § 1255a(a)(1). The Attorney General designated May 5, 1987 through May 4, 1988 as that year. 8 C.F. R. 245a.2(a)(1). Under the statute, however, one group of aliens was not entitled to the year-long application period. Any alien who was the subject of an Order to Show Cause had to apply for legalization either during the first thirty days of the application period, or within thirty days of the issuance of the Order to Show Cause. 8 U.S.C. § 1255a(a)(1)(B). An Order to Show Cause initiates deportation proceedings against an alien.

On May 1, 1987, four days before the start of the application period, the INS promulgated regulations for the program. One of those regulations provides as follows:

An alien who was apprehended by the Service, or who was the subject of an Order to Show Cause, issued on or after November 6, 1986 and prior to May 5, 1987 and who has established prima facie eligibility for adjustment of status under section 245A(a) of the Act must file an application for adjustment during the period beginning on May 5, 1987 and ending on June 3, 1987.

8 C.F.R. § 245a.2(a)(2)(i), emphasis added.

Plaintiffs say the Act differs from the regulation. According to plaintiffs, the Act provides that only those aliens who are the subject of an Order to Show Cause must file within 30 days, whereas the regulation extends that group to include aliens apprehended by the Service, as well as those who are the subject of an Order to Show Cause.

The Act also contains the following provision: NO REVIEW FOR LATE FILINGS —No denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceedings of the United States Government.

8 U.S.C. § 1255a(f)(2).

FACTS

Plaintiffs Juan Doe and Maria Roe are Mexican citizens who have resided illegally in this country since before January 1, 1982. Both were apprehended by the INS after November 6, 1986; neither were served with an Order to Show Cause. Both, in other words, fell within the reach of the regulation since they were apprehended after November 6, 1986. Neither, according to the plaintiffs, fell within the reach of § 1255a(a)(1)(B), however, since they were never the subject of an Order to Show Cause.

Both plaintiffs applied for legalization within the year-long application period set by the Act, but outside the 30 day application period set by the regulation. Juan Doe filed one day late, Maria Roe less than one month late. The INS held plaintiffs to the application period established by the regulation and denied both applications on the ground that they were not filed within the 30 day limitation. The INS Legalization Appeals Unit affirmed the denials, also relying on the regulation.

Plaintiffs brought this action in August, 1988. They seek a declaratory judgment that the regulation is illegal. They claim it violates the Act by imposing a condition not contained in the statute. In addition, they claim the regulation denies them due process by imposing a shortened application period without adequate notice. They also seek to enjoin the INS from enforcing the regulation. They have styled their complaint as a class action, claiming to represent all similarly situated aliens. The court, however, does not have before it a motion to certify the class, so this opinion applies only to the named plaintiffs. National Center for Immigration Rights v. I.N.S., 743 F.2d 1365, 1371 (9th Cir.1984).

The INS has moved to dismiss. It contends § 1255a(f)(2), which precludes judicial review for late filing of legalization applications, deprives this court of subject matter jurisdiction. It also contends that this court lacks jurisdiction because plaintiffs have failed to exhaust their administrative remedies, and because the limited review available under the Act can be had only in the Court of Appeals.

The parties have not cited, and this court has not found, any case interpreting the preclusive effect of § 1255a(f)(2) or challenging the validity of 8 C.F.R. 245a.2(a)(2)(i). The question presented in this case is apparently one of first impression.

NATURE OF THE CLAIMS

As a threshold matter, the parties disagree vigorously over what it is plaintiffs want. The resolution of this dispute is critical to all that follows in this opinion. According to the INS, plaintiffs seek to overturn the individual determinations made in their cases. Plaintiffs disagree and style their complaint as a general challenge to the regulation, independent of the facts in individual cases. Plaintiffs point to their prayer for relief. They do not seek to overturn the individual decisions on their applications, but rather seek a declaration that the regulation is invalid and an injunction preventing its application. The INS, in response, states that the only relief which this court can provide is to rescind the decision in the individual cases—precisely what the statute precludes.

Plaintiffs contend the regulation violates due process by imposing a shortened application period without adequate notice. In addition, they say the INS exceeded its statutory authority when it promulgated and applied the regulation. In this respect, plaintiffs' claim challenges "the methods— not the decision—of the INS." Marozsan v. United States, 852 F.2d 1469, 1472 (7th Cir.1988) (en banc) (allowing due process challenges to procedures used by Veterans' Administration, despite statutory preclusion of judicial review). The case, therefore, "is not essentially a suit to achieve legalization; `it is a suit to enforce lawful conduct on the part of the INS.'" Id., quoting Starnes v. Schweiker, 715 F.2d 134, 141 (4th Cir.1983).

Contrary to the view pressed by the INS, if plaintiffs are successful in this court, they still may fail to achieve legalized status. What they would achieve is a review of their application consistent with the Act and the Fifth Amendment to the Constitution. This court cannot direct the outcome of that review, and plaintiffs would still have to meet the Act's substantive requirements. 8 U.S.C. §§ 1255a(a)(4); 1255a(b). Cf. Trinity Memorial Hospital v. Association Hospital Service, 570 F.2d 660, 667 (7th Cir.1977). But a suit to insure conformity with statutory and constitutional requirements is not the same as a suit challenging the merits of a fact-specific determination in an individual case.

This case is a statutory and constitutional challenge to the validity of the regulation itself, rather than a challenge to the individual determinations of the INS. But that does not close the inquiry. The next question is whether § 1255a(f)(2) bars review of those challenges, and thus deprives the court of subject matter jurisdiction.

SUBJECT MATTER JURISDICTION

Plaintiffs' statutory claim is based on the Administrative Procedure Act ("APA"); they attack the INS regulation as arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). The constitutional claim is based on the Fifth Amendment; the regulation allegedly violates due process by imposing a shortened application period without adequate notice to the persons affected. Plaintiffs base jurisdiction on 28 U.S.C. § 1331 and 8 U.S.C. § 1329.

In Webster v. Doe, ___ U.S. ___, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), the Supreme Court held that jurisdiction over a statutory claim based on the APA must be analyzed apart from jurisdiction over a constitutional claim. Id. 108 S.Ct. at 2053, 2054. Here, jurisdiction over both claims turns on the preclusive effect of 8 U.S.C. § 1255a(f)(2), but, as was the case in Webster, Congress may have intended to preclude judicial review of statutory claims brought under the APA and at the same time not intend to preclude review of constitutional claims. Accordingly, the two claims are analyzed separately.

The Constitutional Claim

The Supreme Court has "repeatedly acknowledged `the strong presumption that Congress intends judicial review of administrative action.'" Traynor v. Turnage, ___ U.S. ___, 108 S.Ct. 1372,...