Hotel & Restaurant Employees Union, Local 25 v. Attorney General, No. 84-5859

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON, MIKVA and SILBERMAN; MIKVA; SILBERMAN
Parties123 L.R.R.M. (BNA) 2947, 256 U.S.App.D.C. 227, 55 USLW 2265, 6 Fed.R.Serv.3d 527 HOTEL & RESTAURANT EMPLOYEES UNION, LOCAL 25, et al., Appellants, v. ATTORNEY GENERAL of the United States, et al., Appellees.
Docket NumberNo. 84-5859
Decision Date12 January 1987

Page 1256

804 F.2d 1256
123 L.R.R.M. (BNA) 2947, 256 U.S.App.D.C.
227, 55 USLW 2265,
6 Fed.R.Serv.3d 527
HOTEL & RESTAURANT EMPLOYEES UNION, LOCAL 25, et al., Appellants,
v.
ATTORNEY GENERAL of the United States, et al., Appellees.
No. 84-5859.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 12, 1986.
Decided Oct. 31, 1986.
Rehearing En Banc Granted Jan. 12, 1987. *

Page 1258

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-2203).

Page 1259

Thomas F. Cullen, Jr., Washington, D.C., for appellants.

James M. Spears, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Robert L. Bombaugh, Director, Office of Immigration Litigation, Civil Division, U.S. Dept. of Justice, Thomas W. Hussey, Asst. Director, Mark C. Walters and Michael Jay Singer, Washington, D.C., were on brief, for appellees.

Before ROBINSON, MIKVA and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Opinion concurring in part and dissenting in part filed by Circuit Judge SILBERMAN.

MIKVA, Circuit Judge:

Illegal aliens in the United States face the constant possibility of deportation. Attempting to remove this omnipresent threat, the plaintiff union brought suit in district court against the United States Attorney General and the Secretary of State. The co-plaintiff, Mauro Hernandez, is a Salvadoran national currently residing in the United States and subject to deportation. Plaintiffs sought extensive revisions in the procedures used by the Immigration and Naturalization Service (INS) in its treatment of Salvadoran aliens. Plaintiffs also alleged that Salvadoran nationals are entitled to a decision by the Attorney General that he will temporarily suspend deportation proceedings against them for humanitarian reasons; aliens covered by such a decision possess "Extended Voluntary Departure" (EVD) status.

After the parties conducted extensive discovery, the district court granted summary judgment for defendants on both the challenge to the INS' procedures and the claim for EVD status. For the reasons stated below, we affirm in part, and reverse and remand in part. We agree with the district court that plaintiffs had standing to sue and that their claims were ripe for judicial decision. We also affirm the district court's ruling that no material issues of fact remained in dispute between the parties as to plaintiffs' challenge to the Attorney General's decision to deny EVD status, and that defendants were entitled to judgment as a matter of law on this issue. However, we reverse the district court's grant of summary judgment to defendants on plaintiffs' INS asylum procedures claim. We cannot ascertain the court's reasoning in ruling on the summary judgment motion while two of plaintiffs' discovery requests were pending, and remand to the court for its resolution of those matters.

I. BACKGROUND

A. The Broad Statutory Mandate of the Immigration and Naturalization Service

In reviewing the INS' discharge of its duties, we must bear in mind the limited scope of our inquiry. Our precedents " 'have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.' " Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953)). The political branches, of course, must respect the procedural requirements of due process. As Justice Frankfurter has observed, however, "[t]hat the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government." Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954). In accordance with Congress' plenary authority to regulate aliens, the Court has recognized that some congressional rules, validly applied to aliens, "would be unacceptable if applied to citizens." Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976).

In the Immigration and Nationality Act of 1952 (the Act), 8 U.S.C. Sec. 1101 et seq.

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(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 Courts of Appeal. 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; 8 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

Page 1261

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. Letter from Attorney General William French Smith to Congressman Lawrence J. Smith (July 19, 1983), Jt. App. tab. 18, at 2. Thus, the legality of a Salvadoran's presence in the United States depends on either a valid entry visa, a grant of political asylum, or the receipt of another exemption, from the Act's provisions.

B....

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20 practice notes
  • Hotel and Restaurant Employees Union, Local 25 v. Smith, No. 84-5859
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 1988
    ...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 dismi......
  • Amanullah v. Nelson, Nos. 86-1604
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 4, 1987
    ...v. Nelson, 727 F.2d at 977; Bertrand v. Sava, 684 F.2d at 212-13. Cf. Hotel & Restaurant Employees Union, Local 25 v. Attorney General, 804 F.2d 1256, 1271-72 (D.C.Cir.1986) (In challenge to INS's pursuit of alleged "wavering policy" concerning extensions of voluntary departure, court of ap......
  • Humane Soc. of U.S. v. Hodel, No. 87-5095
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 24, 1988
    ...with this view. The case has been vacated for rehearing en banc. See Hotel & Restaurant Employees Union, Local 25 v. Attorney General, 804 F.2d 1256, 1265 (D.C.Cir.1986), vacated for reh'g en banc, 808 F.2d 847 (D.C.Cir.1987) (germaneness prong is "satisfied when the association's purposes ......
  • Checkosky v. S.E.C., Nos. 92-1396
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 20, 1994
    ...perform if we are left to guess at what it is we are reviewing."); see also Hotel & Restaurant Employees Union v. Attorney General, 804 F.2d 1256, 1268 (D.C.Cir.1986); In re FTC Line of Business Report Litigation, 626 F.2d 1022, 1029 12 Similarly, Judge Randolph's truncated description of N......
  • Request a trial to view additional results
20 cases
  • Hotel and Restaurant Employees Union, Local 25 v. Smith, No. 84-5859
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 1988
    ...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 dismi......
  • Amanullah v. Nelson, Nos. 86-1604
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 4, 1987
    ...v. Nelson, 727 F.2d at 977; Bertrand v. Sava, 684 F.2d at 212-13. Cf. Hotel & Restaurant Employees Union, Local 25 v. Attorney General, 804 F.2d 1256, 1271-72 (D.C.Cir.1986) (In challenge to INS's pursuit of alleged "wavering policy" concerning extensions of voluntary departure, court of ap......
  • Humane Soc. of U.S. v. Hodel, No. 87-5095
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 24, 1988
    ...with this view. The case has been vacated for rehearing en banc. See Hotel & Restaurant Employees Union, Local 25 v. Attorney General, 804 F.2d 1256, 1265 (D.C.Cir.1986), vacated for reh'g en banc, 808 F.2d 847 (D.C.Cir.1987) (germaneness prong is "satisfied when the association's purposes ......
  • Checkosky v. S.E.C., Nos. 92-1396
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 20, 1994
    ...perform if we are left to guess at what it is we are reviewing."); see also Hotel & Restaurant Employees Union v. Attorney General, 804 F.2d 1256, 1268 (D.C.Cir.1986); In re FTC Line of Business Report Litigation, 626 F.2d 1022, 1029 12 Similarly, Judge Randolph's truncated description of N......
  • Request a trial to view additional results

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