Etuk v. Slattery

• Decision Date: 27 June 1991
• Docket Number: No. 1289,D,1289
• Citation: 936 F.2d 1433
• Parties: Ime Archibong ETUK; Jana Khalifa; Nuris Santana; Pedro Julio Henriquez; Franklyn Thomas Dunbar, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. William S. SLATTERY, Acting Director of New York District Office of the Immigration and Naturalization Service; Gene McNary, Acting Commissioner of the Immigration and Naturalization Service; Richard L. Thornburgh, Attorney General of the United States; Immigration and Naturalization Service, Defendants-Appellants. ocket 91-6008.
• Court: U.S. Court of Appeals — Second Circuit

Page 1433

936 F.2d 1433

60 USLW 2033

Ime Archibong ETUK; Jana Khalifa; Nuris Santana; Pedro Julio Henriquez; Franklyn Thomas Dunbar, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. William S. SLATTERY, Acting Director of New York District Office of the Immigration and Naturalization Service; Gene McNary, Acting Commissioner of the Immigration and Naturalization Service; Richard L. Thornburgh, Attorney General of the United States; Immigration and Naturalization Service, Defendants-Appellants.

No. 1289, Docket 91-6008.

United States Court of Appeals Second Circuit.

Argued March 18, 1991.

Decided June 27, 1991.

Charles S. Kleinberg, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Scott A. Dunn, Sp. Asst. U.S. Atty., Robert L. Begleiter, Deborah B. Zwany, Asst. U.S. Attys., E.D.N.Y., Brooklyn, N.Y., of counsel), for defendants-appellants.

Manuel D. Vargas, The Legal Aid Soc., New York City (Kathleen A. Masters, Constance P. Carden, Margaret H. McDowell, The Legal Aid Soc., New York City, of counsel), for plaintiffs-appellees.

Ann A. Ruben, Philadelphia, Pa., for amicus curiae American Immigration Lawyers Ass'n.

Before MESKILL, MINER and ALTIMARI, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from an order of the United States District Court for the Eastern District of New York, Nickerson, J., entered on December 4, 1990, certifying a plaintiff class, declaring certain policies of the defendants, the Immigration and Naturalization The district court concluded that the INS was legally obligated to ensure that lawful permanent resident aliens (LPRs) are provided with adequate temporary documentation of their LPR status and employment eligibility if their permanent documentation is lost, stolen, or confiscated pending the completion of deportation proceedings. Appealing from the district court's December 1990 order, the INS necessarily challenges the district court's findings and conclusions of September 27, 1990. Assuming familiarity with the district court's opinion, we limit our discussion of the factual background.

Service, and certain of its officials (collectively "INS"), contrary to law, issuing a permanent injunction and denying the INS's application for a stay pending appeal. The district court's order implemented the findings and conclusions that it previously had reached in a Memorandum and Order dated September 27, 1990. See Etuk v. Blackman, 748 F.Supp. 990 (E.D.N.Y.1990). In that opinion, the district court granted in part the plaintiffs' motions for class certification and summary judgment against the INS and denied the INS's motion for summary judgment.

We affirm in part, vacate in part, and modify in part the district court's December 4, 1990, Order and remand the case for further action consistent with our opinion.

BACKGROUND

The Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1101 et seq., ¹ established a complex statutory scheme that governs the admission of aliens to the United States. Plaintiffs represent a class of individuals who have been granted LPR status by the INS. LPR status is afforded to certain aliens who are permitted to reside in the United States permanently as immigrants. 8 U.S.C. Sec. 1101(a)(20). The INA imposes certain limitations on the number of aliens who are eligible to receive LPR status. 8 U.S.C. Sec. 1151(a). Aliens who are eligible for LPR status fall within three general categories: (1) those with close relatives who are U.S. citizens or LPRs, see 8 U.S.C. Sec. 1153(a), (2) those who possess skills or talents that are sought by U.S. employers, see id., and (3) those who are refugees or asylees, see generally 8 U.S.C. Secs. 1157, 1158, 1159. Additionally, those aliens who fall within the first two categories must possess a valid immigrant visa and state whether they intend to remain permanently in the United States in order to qualify for LPR status. See 8 U.S.C. Secs. 1181, 1201, 1202(a); see also Saxbe v. Bustos, 419 U.S. 65, 72, 95 S.Ct. 272, 277-78, 42 L.Ed.2d 231 (1974).

LPRs must register with the INS and provide certain personal information and their fingerprints. 8 U.S.C. Sec. 1302. Once registered the INA mandates that these aliens "shall be issued a certificate of alien registration or an alien registration receipt card" in accordance with regulations prescribed by the Attorney General. 8 U.S.C. Sec. 1304(d); see also 8 C.F.R. Sec. 264.1 et seq. (regulations for fingerprinting and registration of aliens in the United States). The INS regulations provide for the issuance of either of two registration forms to LPRs--the Form I-151 or Form I-551. Form I-151 registration cards were issued to LPRs prior to June 1987. Since that time, LPRs have been issued the I-551 form. Both of these forms provide LPRs with proof of their alien registration and legal status. The documents are popularly referred to as "green cards." Green cards issued prior to August 1, 1989 bear no expiration date, while cards since issued are valid for 10 years. After the 10 year period has expired, the holder must obtain a replacement. See Resident Alien Card I-551; New Version, 54 Fed.Reg. 47,586 (1989).

"Green cards" play a significant role in the day-to-day lives of LPRs. A LPR, who has attained the age of eighteen, is required by law to keep his green card with him at all times. Failure to do so is a criminal misdemeanor. 8 U.S.C. Sec. 1304(e). Congress increased the importance of the green card with its adoption of the Immigration Reform and Control Act of 1986 (IRCA), Pub.L. No. 99-603, 1986 U.S.Code Cong. & Admin.News (100 Stat.) 3359 (codified at various sections throughout Title 8 of the United States Code). IRCA substantively amended several provisions of the INA. In large part, the IRCA amendments focused on the issue of alien employment within the domestic economy. While the IRCA amendments have become part of the INA, we distinguish between these two statutes throughout our discussion to ease the analysis and to emphasize the changes that IRCA wrought.

IRCA provides that green cards can be used as proof of LPR status in order to establish one's eligibility for a variety of government funded assistance programs. Specifically, eligibility for such programs as Aid to Families with Dependent Children, Medicaid, unemployment compensation, food stamps, and Title IV educational assistance can be established by presenting a green card. IRCA, Sec. 121(a)(1), 100 Stat. 3384-86 (amending Social Security Act, 42 U.S.C. Sec. 1320b-7); Sec. 121(a)(2), 100 Stat. 3386-88 (amending Housing and Community Development Act of 1980, 42 U.S.C. Sec. 1436(a)); Sec. 121(a)(3), 100 Stat. 3388-90 (amending Higher Education Act of 1965, 20 U.S.C. Sec. 1091); see also McNary v. Haitian Refugee Center, Inc., --- U.S. ----, 111 S.Ct. 888, 891 n. 3, 112 L.Ed.2d 1005 (1991). While not the exclusive means of providing proof of lawful immigrant status under these provisions, the green card is the most widely utilized and accepted means of proving LPR status.

IRCA enhanced the importance of the green card in one additional area--employment authorization. IRCA, Sec. 101(a), 100 Stat. 3360-74 (codified at 8 U.S.C. Secs. 1324a(a)-(n)). In section 101(a) of IRCA, Congress set out to preclude the employment of aliens who had neither obtained LPR status nor been granted special employment authorization by the Attorney General. 8 U.S.C. Secs. 1324a(a), 1324a(h)(3). Indeed, domestic employers are subject to both civil and criminal penalties if they knowingly hire an unauthorized alien or fail to comply with the verification process established by the statute. 8 U.S.C. Secs. 1324a(a), 1324a(e) & (f). IRCA's verification scheme requires that an employer attest that it has confirmed a prospective employee's identity and employment authorization by reviewing one or more statutorily designated documents. 8 U.S.C. Sec. 1324a(b). In adopting this elaborate verification scheme, Congress sought to stem the tide of undocumented aliens into the United States. McNary, 111 S.Ct. at 890.

Under IRCA, presentation of a green card is not the exclusive manner by which a LPR can establish eligibility to work. For instance, a prospective employee's identity and employment eligibility can also be established by presenting a combination of other documents. See 8 U.S.C. Sec. 1324a(b)(1)(C) & (D). However, possession of a green card is often a prerequisite for obtaining some of the other documents such as a driver's license or a social security card. These statutory and administrative provisions that govern LPR status provide the backdrop for the instant controversy.

Plaintiffs filed this class action complaint on October 3, 1989. The plaintiff class presently before us consists of two subclasses: (1) LPRs who have either lost or had their green cards stolen, and (2) LPRs who have had or may have their green cards confiscated by the INS as a result of the agency's decision to initiate deportation proceedings against them. These plaintiffs challenged the INS's policies regarding the replacement of green cards that have been lost or stolen and the confiscation or withholding of green cards from LPRs whom the INS has placed in deportation or exclusion proceedings.

Under existing INS policies, a LPR who has either lost or had his green card stolen must submit an application for a replacement card by using an INS Form I-90.

                See 8 C.F.R. Sec. 264.1(c)(2).  The processing time for a replacement card can exceed three months.  In the interim, LPRs are potentially left without documentary proof of their immigration status.  However, INS operating instructions provide for the provision of temporary documentation if "such action is clearly warranted because of an emergency."    See INS, Operations Instructions, 264.2.  Specifically, the INS provides the Form I-94--Departure or Arrival Record--as temporary proof of status.  Plaintiffs alleged

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