Hotel and Restaurant Employees Union, Local 25 v. Smith

Citation846 F.2d 1499
Decision Date20 May 1988
Docket NumberNo. 84-5859,84-5859
Parties128 L.R.R.M. (BNA) 2438, 270 U.S.App.D.C. 40 HOTEL AND RESTAURANT EMPLOYEES UNION, LOCAL 25, et al., Appellants v. William French SMITH, U.S. Attorney General, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Michael H. Gottesman, for appellants. Richard A. Boswell also entered an appearance for appellants.

James M. Spears, Deputy Asst. Atty. Gen., with whom Richard K. Willard, Asst. Atty. Gen., Michael Jay Singer and Gregory C. Sisk, Attorneys, Dept. of Justice, were on the brief for appellees. Joseph E. diGenova, U.S. Atty., Thomas W. Hussey, Mark C. Walters and Patricia Kenney, Attorneys, Dept. of Justice also entered appearances for appellees.

Arthur Lazarus, Jr. and Richard H. Wyron also entered appearances for amicus curiae American Council for Nationalities Service.


PER CURIAM: The judgment of the district court is affirmed by an equally divided court.

Separate Opinion filed by Circuit Judge MIKVA, in which Chief Judge WALD and Circuit Judges ROBINSON and EDWARDS join.

Separate Opinion filed by Circuit Judge SILBERMAN, in which Circuit Judges BUCKLEY, WILLIAMS and D.H. GINSBURG join.

MIKVA, Circuit Judge:

A long time ago, the plaintiffs Hotel and Restaurant Employees Union, Local 25, and one of its members, Mauro Hernandez, sued the defendants, the Attorney General and the Secretary of State of the United States, seeking extensive revisions in the procedures used by the Immigration and Naturalization Service ("INS") in its treatment of Salvadoran aliens. The district court held that defendants were entitled to summary judgment in this lawsuit. A divided panel of this court remanded to the district court for reconsideration of its decision to grant summary judgment while plaintiffs' important discovery requests were pending. In all other respects, the panel upheld the district court's decision. 804 F.2d 1256.

The dissenting panelist contended that the plaintiffs lacked standing to make their challenge and that the entire lawsuit should have been dismissed. A majority of the judges on this court determined that the matter should be reheard en banc. The panel opinion was accordingly vacated, 808 F.2d 847, and the matter was reheard. Recusals and a resignation now leave the court equally divided, 4 to 4, in this case. The decision of the district court therefore stands affirmed.

As a result, the separate "opinions" issued today, which line up on either side of the justiciability questions aired en banc, carry no weight and determine no law of the circuit. It is also unlikely they will shed much light. A reasonable regard for our colleagues' views in disagreement, however, compels our brief statement of how we believe this appeal should have been resolved.


There is no dispute that the number of illegal aliens present in this country is large and growing. Congress, the Administration, and, from time to time, the courts, have struggled with the problem and sought reasoned responses to the challenges that are brought by, on behalf of, or against such aliens.

Illegal aliens in the United States face the constant possibility of deportation. More importantly, they face the uncertainty of uneven procedures which determine whether they will be allowed to remain or will be forced to go. Attempting to remove this omnipresent threat and its accompanying uncertainties, plaintiffs brought this suit. An understanding of the changes plaintiffs seek in the methods used by the INS to determine Salvadoran aliens' fate requires a brief summary of the statutory framework and procedures governing immigration and asylum.

A. Statutory Background

In the Immigration and Nationality Act of 1952 (the Act), 8 U.S.C. Sec. 1101 et seq. (1982), Congress exercised its plenary power over immigration. The statute regulates the conditions under which aliens may enter and remain in the United States, and vests in the Attorney General broad authority to enforce these conditions. The Act directs that illegal aliens are to be deported by order of the Attorney General upon a determination that they were excludable at the time of their entry into the United States or that they entered the country without inspection. Id. Sec. 1251(a) (setting forth categories of deportable aliens). To fulfill this statutory mandate, the Attorney General is authorized to "establish such regulations ... and perform such other acts as he deems necessary." Id. Sec. 1103(a). The INS, in turn, possesses the delegated authority of the Attorney General to enforce the immigration and nationality laws. See 8 C.F.R. Sec. 2.1 (1985).

While the Attorney General and his delegates possess broad latitude in enforcing the Act, they must respect the procedural rights Congress has granted to aliens facing deportation proceedings. INS determinations of deportability are made in an adversarial hearing before an immigration officer, following notice to the alien of the specific charges against him. 8 U.S.C. Sec. 1252(b). At this hearing the alien has the right to be represented by counsel, to introduce evidence, and to cross-examine evidence put on by the INS. Id.; 8 C.F.R. Sec. 242.16. The alien may appeal the immigration judge's decision to the Board of Immigration Appeals (BIA), 8 C.F.R. Secs. 236.7 & 242.21, and the Board's decisions in turn are reviewable by the United States Court of Appeals. 8 U.S.C. Sec. 1105a(a).

Congress has established various avenues for obtaining an exemption from deportation. Applying for political asylum is one such exemption. The Refugee Act of 1980 requires the INS, under procedures established by the Attorney General, to grant political asylum to any applicant who qualifies as a "refugee." Id. Sec. 1158(a); see also 8 C.F.R. Part 208 (1985) (procedures for reviewing applications for asylum). A refugee, in turn, is defined as a person who is outside any country of that person's nationality and who is unwilling or unable to return to his country because of persecution or a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A). An alien seeking refugee status has the burden of establishing that he meets the statutory standard as a refugee in order to qualify for asylum. 8 C.F.R. Sec. 208.5.

To seek asylum, an alien may apply to an INS district director. Id. Sec. 208.3(a). The district director's decision is not subject to review, id. Sec. 208.8(c), but the alien may renew the application in the event that the INS later begins deportation proceedings against him. If the INS has already commenced deportation proceedings against him, an alien may apply for refugee status to the immigration judge who is presiding over the pending proceeding. 8 U.S.C. Sec. 1253; C.F.R. Secs. 208.3(b). An alien may seek review of the immigration judge's asylum decision by the normal appeal route.

Whether the asylum application comes before a district director or an immigration judge, INS regulations require the decisionmaker to request an advisory opinion from the State Department's Bureau of Human Rights and Humanitarian Affairs (BHRHA). 8 C.F.R. Sec. 208.7; Sec. 208.10(b). The purpose of this requirement is to assure that the INS draws upon the expertise of the State Department in refugee matters. When such an advisory opinion is sought from the BHRHA, the Office of Asylum Affairs (OAA) is primarily responsible for preparing it. Within the OAA, the official responsible for applications submitted by aliens from Latin American, Central American, and Caribbean countries is a former Foreign Service officer and now a part-time contract employee of BHRHA. The same official has reviewed applications for asylum since 1974. After reviewing the available materials, and sometimes drawing upon the country-specific expertise of other State Department employees, he issues an opinion on each application. The opinion is reviewed by the Public Policy Officer for the Bureau of Inter-American Affairs at the State Department. The opinion letter is then signed by the Director of OAA and forwarded to INS.

When the application returns to INS, the applicant may inspect, explain, and rebut the Bureau's advisory opinion. 8 C.F.R. Sec. 208.10(b). The INS decisionmaker must examine the individual asylum applicant personally before resolving the application. Id. Sec. 208.6. In the vast majority of cases, the INS has denied Salvadorans' applications for asylum.

In contrast with asylum, which is a statutory exemption from deportation for individual aliens, Extended Voluntary Departure (EVD) is a discretionary suspension of deportation proceedings applicable to particular groups of aliens. While the Attorney General has exercised his discretion to suspend deportation proceedings against nationals of other countries for a variety of reasons, he has declined to grant EVD status either to all Salvadorans or to a more narrowly defined subgroup. In making this determination, the Attorney General cited both political and economic factors.

B. Procedural Background

Because the merits of this appeal have been obviated by a tie vote, there is no need to again detail the proceedings in the district court. We rely on the separate opinion's statement of the allegations made by plaintiffs and proceed directly to the threshold issues of standing and ripeness which divide this court. Before doing so, however, we reiterate our view, set forth in the vacated panel opinion, that the district court should not have granted summary judgment without justifying its disregard of plaintiffs' requests to examine INS files on all Salvadoran national asylum applicants and to obtain a...

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