Haitian Refugee Center, Inc. v. Nelson, 88-1066-Civ.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Citation: 694 F. Supp. 864
• Docket Number: No. 88-1066-Civ.,88-1066-Civ.
• Parties: HAITIAN REFUGEE CENTER, INC., a not-for-profit corporation; Roman Catholic Diocese of Palm Beach; Marie Gizele Angrand; Germaine Cadet; Rosita Delva; Dieumercie Desir; Joseph Saintil Dieudonne; Gerald Henry; Marie France Jean-Philippe; Novamise Julien; Francklin Joseph; Sylvia Lindor; Recol Neus; Rose Pierrecina Lebon Pierre; Marie Philomene Servilien; Hector Trejo Tamayo; Juan Tamayo Vega; Marie Raquel Viera; and Jeanette Vixama, Plaintiffs, v. Alan C. NELSON, Commissioner of Immigration and Naturalization Service; Perry Rivkind, District Director, Immigration and Naturalization Service, District Office Number 6; Kenneth Pasquarell, District Director, Immigration and Naturalization Service, District Office Number 26; William Chambers, Director, Immigration and Naturalization Service Regional Processing Facility for the Southern Region; Immigration and Naturalization Service, Department of Justice; Richard Norton, Associate Commissioner for Examination, Immigration and Naturalization Service; William Slattery, Assistant Commissioner for Legalization, Immigration and Naturalization Service; Edwin Meese, III, Attorney General of the United States; and United States Department of Justice, Defendants.
• Decision Date: 22 August 1988

694 F. Supp. 864

HAITIAN REFUGEE CENTER, INC., a not-for-profit corporation; Roman Catholic Diocese of Palm Beach; Marie Gizele Angrand; Germaine Cadet; Rosita Delva; Dieumercie Desir; Joseph Saintil Dieudonne; Gerald Henry; Marie France Jean-Philippe; Novamise Julien; Francklin Joseph; Sylvia Lindor; Recol Neus; Rose Pierrecina Lebon Pierre; Marie Philomene Servilien; Hector Trejo Tamayo; Juan Tamayo Vega; Marie Raquel Viera; and Jeanette Vixama, Plaintiffs,
v.
Alan C. NELSON, Commissioner of Immigration and Naturalization Service; Perry Rivkind, District Director, Immigration and Naturalization Service, District Office Number 6; Kenneth Pasquarell, District Director, Immigration and Naturalization Service, District Office Number 26; William Chambers, Director, Immigration and Naturalization Service Regional Processing Facility for the Southern Region; Immigration and Naturalization Service, Department of Justice; Richard Norton, Associate Commissioner for Examination, Immigration and Naturalization Service; William Slattery, Assistant Commissioner for Legalization, Immigration and Naturalization Service; Edwin Meese, III, Attorney General of the United States; and United States Department of Justice, Defendants.

No. 88-1066-Civ.

United States District Court, S.D. Florida.

August 22, 1988.

694 F. Supp. 865

Ira J. Kurzban, Counsel for National Emergency Civil Liberties Foundation, Miami, Fla., Michael Guare, Florida Rural Legal Services, Inc., Bartow, Fla., Robert Williams, Maureen T. Kelleher, Florida Rural Legal Services, Inc., Immokalee, Fla., Cheryl A.E. Little, Haitian Refugee Center, Inc., Miami, Fla., for plaintiffs.

Patricia Kenny, Asst. U.S. Atty., Miami, Fla., Richard Chamovitz, David N. Bernal, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION AND CERTIFYING THE CLASS

ATKINS, District Judge.

THIS CAUSE is before the court on the plaintiffs' motion for a preliminary injunction.

694 F. Supp. 866

After an extensive hearing at which the parties offered evidence and presented witnesses and after exhaustive briefing, the court concludes that it is vested with jurisdiction to consider this matter and renders this Memorandum Decision in accordance with Fed.R.Civ.P. 52(a). It is further

ORDERED AND ADJUDGED that the plaintiffs' motion is GRANTED.

This action was initiated on behalf of the Haitian Refugee Center ("HRC"), the Migration and Refugee Services of the Diocese of Palm Beach ("MRS"), and 17 individual applicants for temporary residence under the Special Agricultural Workers ("SAW") provisions found at section 210 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1160, as amended by the Immigration Reform Control Act ("IRCA"), Pub.L. 99-603, 100 Stat. 3417.¹ The plaintiffs seek declaratory, mandatory, and injunctive relief for themselves and a class of persons who have applied or will apply for SAW status and who have been or will be denied such status because of the defendants' alleged unlawful practices and policies. The plaintiffs contend that the defendant Immigration and Naturalization Service ("INS") officials have (1) imposed an unlawful burden of proof by requiring applicants to produce corroborating evidence in addition to affidavits to prove the performance of the requisite ninety man-days of agricultural labor, (2) denied the individual plaintiffs' alleged "non-frivolous" applications prior to March 29, 1988, and thus denied work authorization pending final adjudication of the claims contrary to the statute and regulations, (3) issued I-292 notices of denial which failed to state the specific reasons for denial and provided incorrect information for purposes of appeal, and (4) imposed an interview procedure which violates the applicants' Fifth Amendment right to due process by failing to provide interpreters, failing to allow the applicants to rebut adverse evidence, and refusing to allow the applicants to present witnesses on their own behalf.

The plaintiffs seek a preliminary injunction: (1) enjoining the defendants from applying an improper burden of proof to SAW applications; (2) enjoining defendants from utilizing an interview process that is procedurally deficient by failing to allow applicants to clarify information, failing to apprise applicants of adverse evidence with an opportunity to rebut, failing to provide an opportunity to present live witnesses, failing to provide competent interpreters, and failing to make a verbatim transcript; (3) requiring the defendants to readjudicate all SAW applications filed by the plaintiffs using the proper burden of proof; (4) requiring the defendants to readjudicate all SAW applications filed by the plaintiffs and members of the class they seek to represent which were denied at the Legalization Offices prior to March 29, 1988, for lack of work records, precise documentation, or for suspected fraud; (5) requiring the defendants to grant work authorization and stays of deportation to all of the plaintiffs and members of the class they seek to represent whose applications were denied at Legalization Offices prior to March 29, 1988, for lack of work records, precise proof of employment, or suspected fraud; and (6) requiring defendants to renotify and provide specific reasons for denial to those applicants who received denials on form I-292.

BACKGROUND

The Special Agricultural Workers Program ("SAW") was created by and as part of the Immigration Reform and Control Act of 1986 ("IRCA") and was intended to extend lawful immigrant status to qualifying aliens. The program mandates that the Attorney General adjust the status of any alien to that of an alien admitted for temporary residence if that alien applies for a change in status between June 1, 1987, and November 30, 1988, and is able to establish that s/he has resided in the United States and performed seasonal agricultural services for at least ninety man-days during the twelve month period ending on May 1, 1986. See 8 U.S.C. §§ 1160(a)(1)(A) and (B). The applicant must also establish that s/he is admissible to the United States as

694 F. Supp. 867

an immigrant. 8 U.S.C. § 1160(a)(1)(C). An alien who is granted temporary residency under this program will eventually be admitted as a permanent resident. 8 U.S. C. § 1160(a)(2)

The application process begins at one of five Legalization Offices ("LO") located in the state of Florida where the application is reviewed and the applicant interviewed.² The interviewing officer either denies the application, recommends that it be denied, or recommends that it be granted. Those applications not denied outright at the LO are forwarded to one of four Regional Processing Facilities ("RPF") for adjudication. A denial that issues either from an LO or from the RPF may be appealed to the Legalization Appeals Unit ("LAU"), the final administrative decision in a SAW applicant's case.³

LOs are "local offices of the Immigration and Naturalization Service which accept and process applications for legalization or special agricultural worker status", under the authority of the district directors in whose districts such offices are located." 8 C.F.R. § 210.1(h). At this stage, the interviewing officer determines whether a completed application filed for processing is "non-frivolous."⁴ Under subsection (d) of section 210 of the Act, applicants who file a "non-frivolous" case of eligibility for SAW status under subsection (a) shall not be deported or excluded and shall be granted authorization to engage in employment pending final determination of his or her application.⁵ Only an LO is authorized to

694 F. Supp. 868

issue work authorization to an applicant who files a "non-frivolous" claim. 8 C.F.R. § 210.4(b)

The regulations initially provided that the district director could only deny, through the LOs, those applications found to be frivolous—those that clearly failed to meet the statutory requirements—or those applications in which the applicant admitted fraud or misrepresentation in its preparation. 8 C.F.R. § 103.1(n)(2). District directors may now deny all ineligible applications at the LO level, 53 Fed.Reg. 10062, 10064 (March 29, 1988), but the regulations contemplate that only those applicants filing frivolous or fraudulent claims be denied a stay of deportation or exclusion and work authorization. 8 U.S.C. § 1160(d)(2) and (3)(B).

The applicant has the initial burden of proving by "a preponderance of the evidence" that s/he worked the requisite ninety man-days of seasonal agricultural services and may meet this burden by producing "sufficient evidence to show the extent of that employment as a matter of just and reasonable inference." 8 U.S.C. § 1160(b)(3)(B)(i), (b)(3)(B)(iii) (emphasis added). Having done so, "the burden then shifts to the Attorney General to disprove the alien's evidence with a showing which negates the reasonableness of the inference to be drawn from the evidence." 8 U.S.C. § 1160(b)(3)(B)(iii).

The regulations provide that "the sufficiency of all evidence produced by the applicant will be judged according to its probative value and credibility," and, to meet the burden of proof, an applicant must provide evidence of eligibility "apart from his or her own testimony." 8 C.F.R. § 210.3(b)(2). "Affidavits and other personal testimony by an applicant which are not corroborated, in whole or in part, by other credible evidence (including testimony of persons other than the applicant) will not serve to meet the applicant's burden of proof." 8 C.F.R. § 210.3(b)(3)).⁶ If an employer or labor contractor has kept proper and adequate records, an applicant may meet the burden of proof by timely production of those records under regulations to be promulgated by the Attorney General. 8 U.S.C. § 1160(b)(3)(B)(ii); but see n. 10 infra. An alien may also meet the burden of proof by producing affidavits of agricultural...