Immigration Assistance Project v. INS, C88-379R.

• Decision Date: 07 March 1989
• Docket Number: No. C88-379R.,C88-379R.
• Citation: 709 F. Supp. 998
• Parties: IMMIGRATION ASSISTANCE PROJECT OF THE LOS ANGELES COUNTY FEDERATION OF LABOR, et al., Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

709 F. Supp. 998

IMMIGRATION ASSISTANCE PROJECT OF THE LOS ANGELES COUNTY FEDERATION OF LABOR, et al., Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.

No. C88-379R.

United States District Court, W.D. Washington.

March 7, 1989.

Robert H. Gibbs, Seattle, Wash., for plaintiffs.

Donald Keener, U.S. Dept. of Justice, Office of Immigration Litigation, Civil, Washington, D.C., for defendants.

ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION TO DISMISS

ROTHSTEIN, Chief Judge.

THIS MATTER comes before the court on plaintiffs' motion for summary judgment and defendants' second motion to dismiss or in the alternative for summary judgment. Having reviewed the motions, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows:

I. FACTS

On November 4, 1988, this court granted in part and denied in part defendant Immigration and Naturalization Service's ("INS") motion to dismiss. See Order Granting In Part and Denying In Part Defendants' Motion to Dismiss ("Order"). The court dismissed plaintiffs' claim for an extension of the deadline for legalization applications under the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1255a, as well as those claims decided in Ayuda, et. al. v. Meese, et. al, 687 F.Supp. 650 (D.D.C.1988) that the INS did not appeal.

In addition, the court ruled that since plaintiffs' amended complaint failed to allege that the individual named plaintiffs submitted timely applications for legalization, these individual plaintiffs lacked standing. In a companion order, the court denied plaintiffs' motion for class certification. See Order Denying Plaintiffs' Motion for Provisional Class Certification.

The court did not dismiss the suit, ruling instead that the various organizational plaintiffs had standing in their own right to seek relief from the INS's regulations and practices. The court held that it had jurisdiction over plaintiffs' amended complaint and that plaintiffs' claims were ripe for adjudication, but questions of fact precluded summary judgment. The parties have subsequently taken depositions and exchanged discovery materials. Plaintiffs now move for summary judgment, and defendants move to dismiss or in the alternative for summary judgment.

II. DISCUSSION

A. Standard For Summary Judgment

A grant of summary judgment is appropriate if it appears, after viewing the evidence in the light most favorable to the opposing party, that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630-631 (9th Cir.1987); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985). Summary judgment is not appropriate if "a result other than that proposed by the moving party is possible under the facts and applicable law." Aronsen v. Crown Zellerbach, 662 F.2d 584, 591 (9th Cir.1981).

B. Background

To define the eligibility of nonimmigrants for legalization, Congress adopted 8 U.S.C. § 1255a(a)(2)(B), which provides that:

in the case of an alien who entered the United States as a nonimmigrant before January 1, 1982, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the Government as of such date.

8 U.S.C. § 1255a(a)(2)(B). The United States District Court for the District of Columbia in Ayuda v. Meese rejected the INS's restrictive definition of the phrase "known to the Government". Ayuda, 687 F.Supp. at 660-66.

The Ayuda court held that to prove an alien's unlawful status was known to the government,

a nonimmigrant alien must establish that prior to January 1, 1982, documentation existed in one or more government agencies so that such documentation taken as a whole would warrant the finding that the non-immigrant alien's status in the United States was unlawful.

Id. at 666 (supplemental order). Plaintiffs here challenge the INS's application of the Ayuda standard to three categories of applicants and as a consequence, plaintiffs' arguments present technical variations on the issues first discussed in Ayuda.

C. Section 265 Applicants

Prior to 1982, section 265 of the Immigration and Naturalization Act required all aliens residing temporarily in the United States to report their addresses to the INS each quarter or each year. See 8 U.S.C. § 1305. If an alien willfully failed to register his or her address, the INS could seek criminal penalties as well as deportation. In its prior order, this court held that violations of section 265 were not merely technical, but rather made an alien's status unlawful and therefore eligible for legalization under the "known to the government" standard.¹ See Order at 17; Ayuda, 687 F.Supp. at 668 (supplemental order V).

Plaintiffs contend that in spite of this and other courts' rulings, the INS refuses to approve section 265 applicants. The INS, according to plaintiffs, gives the formal explanation that it is holding these applications in abeyance while litigation continues. See Deposition of Terrance O'Reilly at A2, exhibit A to Plaintiffs' Reply Memorandum in Support of Summary Judgment. Informally, however, INS agents have allegedly told the directors of various plaintiff organizations that section 265 applications will be denied. See Plaintiffs' Memorandum in Opposition at 4.

In response, the INS contends that it has no such policy. The previous stance of the INS, that violations of section 265 were technical and did not entitle an alien to legalization, was a "litigation position" which the INS has abandoned. The INS does not contest that it is holding section 265 applications in abeyance, arguing instead that it has decided to process these applications case-by-case. Finally, the INS renews its objection to judicial review on the grounds that the legal issue is not ripe.

This court affirms its prior ruling that violations of section 265 create unlawful status and therefore qualify for consideration under the "known to the government" standard. To the extent that case-by-case determinations might permit an INS adjudicator to rule that section 265 violations, as a matter of law, do not create unlawful status, this would allow legal error. Since the INS has applied this "litigation position" to actual cases in the past, the court finds the possibility of erroneous denial substantial enough to warrant summary judgment here. Therefore, the court grants plaintiffs' request for declaratory relief and holds that violations of section 265 create unlawful status for purposes of eligibility for legalization.²

However, the court shall not, at this time, grant plaintiffs' request for injunctive relief requiring the INS to process section 265 applications. Since the outcome of the Ayuda appeal and other litigation may affect the status of these applications, this court withholds entry of such an order. Therefore, the court retains jurisdiction over plaintiffs' first claim.

D. Category 2 Applicants

In § 1255a(a)(2)(B), Congress described two classes of nonimmigrants eligible for legalization.

The alien must establish that the alien's period of authorized stay expired before such date through the passage of time or the alien's unlawful status was known to the government as of such date.

§ 1255a(a)(2)(B) (emphasis added). The INS has applied this distinction to applicants who violated duration of status ("D/s") visas, dividing them into two categories. The first category includes students admitted under an d/s F visa who remain in the United States after they graduate. In legalization wire number 26, the INS instructed its examiners to classify graduated students with F visas under the "passage of time" standard, exempting these applicants from proving their unlawful status was known to the government. See Legalization Wire Number 26, exhibit 20 to Plaintiffs' Memorandum in Support of Summary Judgment.

For those students who violated their d/s visas by not fulfilling some condition of the visa, failing to take the required number of class hours for example, the INS categorizes these applications under the "known to the government" standard. See 8 U.S.C. § 1255a(a)(2)(B); Ayuda, 687 F.Supp. at 666 (Supplemental Order). Plaintiffs contend that by judging these applications under the "known to the government" test, the INS imposes a greater quantum of proof on the applicants without a rational basis for doing so, and consequently violates the equal protection guarantee of the Fifth Amendment.

The INS acknowledges that it categorizes applicants under the "passage of time" and "known to the government" provisions, but denies that this distinction violates the equal protection guarantee. First, the INS contends that the distinction is rational given the language of § 1255a(a)(2)(B). Using again the example of a student with a d/s F visa, when the student enters the United States to study, the INS authorizes the student to stay lawfully in the United States for a definite period. This is the duration of the students lawful status. If the student stays beyond this period, the student's status becomes unlawful solely by the passage of time.

On the other hand, if the student fails to meet a condition of the visa, taking the required amount of course hours, the period of authorized stay has not expired — that period would end sometime after graduation. Instead, the student has created unlawful status before the duration of lawful status was scheduled to end. The INS contends that its discrimination between these two types of unlawful status merely follows the distinction drawn by Congress in IRCA.

Second, the INS argues that in practice, the standard of proof between the two categories does not differ, and only case-by-case adjudication...