Narenji v. Civiletti, Civ. A. No. 79-3189

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Elizabeth Gere Whitaker, Brook Hedge, U.S. Dept. of Justice, Washington, D. C., for defendants
• Citation: 481 F. Supp. 1132
• Parties: Gholamreza NARENJI et al., Plaintiffs, v. Benjamin CIVILETTI et al., Defendants. CONFEDERATION OF IRANIAN STUDENTS, Plaintiff, v. Benjamin R. CIVILETTI, Defendant.
• Docket Number: 79-3210.,Civ. A. No. 79-3189
• Decision Date: 11 December 1979

481 F. Supp. 1132

Gholamreza NARENJI et al., Plaintiffs,
v.
Benjamin CIVILETTI et al., Defendants.
CONFEDERATION OF IRANIAN STUDENTS, Plaintiff,
v.
Benjamin R. CIVILETTI, Defendant.

Civ. A. Nos. 79-3189, 79-3210.

United States District Court, District of Columbia.

December 11, 1979.

481 F. Supp. 1133

Alan Dranitzke, Washington, D. C., Shelley Davis, Margaret Winter, Eric M. Lieberman, New York City, for plaintiff Narenji and others.

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David Carliner, Washington, D. C., Bruce Ennis, New York City, of counsel, for plaintiff Confederation of Iranian Students.

Elizabeth Gere Whitaker, Brook Hedge, U.S. Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

The Court is asked to determine whether 8 C.F.R. § 214.5, reprinted in 44 Fed.Reg. 65,727 (1979), which requires that by December 14, 1979, all Iranian nonimmigrant postsecondary students report to the nearest Immigration and Naturalization Service office for identification and examination of status, was validly promulgated within the authority bestowed upon the executive branch by statute and the Constitution.

The cases of Narenji v. Civiletti, Civ.No. 79-3189 (D.D.C. filed Nov. 21, 1979), and Confederation of Iranian Students v. Civiletti, Civ. No. 79-3210 (D.D.C. filed Nov. 27, 1979), were consolidated on November 27, 1979, Fed.R.Civ.P. 42(a), with a full hearing on the merits held December 4, 1979. Narenji has been filed as a class action¹ by three nonimmigrant students from the Islamic Republic of Iran on behalf of all Iranians admitted to the United States as nonimmigrant students and affected by the questioned regulation. Plaintiffs ask for declaratory and injunctive relief against Attorney General Benjamin R. Civiletti and Acting Commissioner of Immigration and Naturalization David Crosland, seeking both a declaration that 8 C.F.R. § 214.5 is unconstitutional and an injunction against its enforcement. Section 214.5, which is set forth fully in appendix A of this memorandum opinion, is an Immigration and Naturalization Service (INS) regulation that requires all Iranian nonimmigrant students to report to INS by December 14, 1979, with evidence of their current status. Plaintiff Confederation of Iranian Students, with approximately 1500 members, also seeks a declaratory judgment and injunctive relief² against Attorney General Civiletti in regard to the same regulation, praying further that requests for discretionary relief made by Iranian students be treated similarly to those made by nonimmigrant students of other nationalities and that no Iranian student who has reported to INS since November 13, 1979, in compliance with the regulation or who was subject to this regulation, be deported.

This cause must be viewed in light of what has come to be recognized as an unprecedented violation of international law, overwhelmingly condemned, which commenced almost six weeks ago and which breached the absolute principle that the personnel and property of a diplomatic mission are inviolate.

On November 4, 1979, approximately 2500 Iranian demonstrators, described as "students," invaded and illegally occupied the United States Embassy in Tehran, Iran. Declaration of Warren Christopher ¶ 1, Exhibit

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7 to Memorandum of Points and Authorities in Opposition to Plaintiffs' Motions for Injunctive Relief, Narenji v. Civiletti, Civ. No. 79-3189 (D.D.C. filed Nov. 30, 1979) hereinafter referred to as Christopher Declaration. Approximately sixty-five American citizens working in the embassy compound were taken hostage in an attempt to force this country to agree to certain demands that have been recognized as unacceptable. Id. Although some of the hostages were released just prior to Thanksgiving Day, fifty are reportedly still being held

The hostages' captors, estimated to number from three to four hundred within the embassy compound, have threatened to kill the hostages if there is any attempt to free them. Id. Demonstrations outside the compound have been held on almost a daily basis and at times have involved tens of thousands of demonstrators. Id.

Despite its commitment to do so, the government of Iran has failed to take action to protect the embassy or its personnel. Id. ¶ 3. Following the embassy takeover, the Prime Minister and a large number of cabinet officers resigned. Id. A new cabinet has been named, but the successor government has been unwilling to secure the safe release of all hostages or to meet with the United States' emissaries dispatched to secure the release of the hostages. Id. The students inside the compound have rigidly refused to moderate their demands. Id.

The violent actions in Iran have not only outraged all Americans, but have been universally condemned by other nations throughout the world. While a United Nations Security Council meeting convened to help negotiate a release of the hostages proved fruitless because of the refusal of Iran to participate, the President of the council has made public statements on behalf of its members, appealing for the immediate release of all hostages.

During the crisis, the President has conferred daily, and often several times a day, with Secretary of State Cyrus Vance and other senior officials of the Administration. Id. ¶ 5. Recognizing the growing anger among our citizens, the President issued a statement to the nation on November 9, 1979, urging all public officials and private citizens to exercise restraint and appealing to "every American to refrain from any action that might increase the danger to the American hostages in Tehran." White House Statement on American Hostages in Iran, 15 Weekly Comp. of Pres. Doc. 2101, 2102 (Nov. 9, 1979).

As the grave situation continued to escalate with increasing threats by the Iranian captors and a mounting clamor echoing from the demonstrators outside our embassy in Tehran, President Carter on November 10, 1979, directed the Attorney General to "identify any Iranian Students in the United States who are not in compliance with the terms of their entry visas, and to take the necessary steps to commence deportation proceedings against those who have violated applicable immigration laws and regulations." Announcement on Actions To Be Taken by the Department of Justice, 15 Weekly Comp. of Pres. Doc. 2107, 2107 (Nov. 10, 1979); Christopher Declaration ¶ 6. This directive was one of several measures taken in response to the grave international crisis created by the detention of the American hostages. Others have included presidential orders that oil produced in Iran not enter the United States, Pres. Proc. No. 4702, 44 Fed.Reg. 65,581 (1979), and that, a national emergency existing, the assets of Iran located in this country be frozen, Exec. Order No. 12,170, 44 Fed.Reg. 65,729 (1979). Throughout, the President has emphasized the gravity of the crisis and commented on the necessity for Americans to maintain constraint, despite the intensity of emotion. On November 13, 1979, in response to the President's November 10 directive and acting, as expressed, pursuant to his powers under the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §§ 1103(a), 1184(a) (1976), the Attorney General issued the challenged regulation, 8 C.F.R. § 214.5, to be effective immediately and to be applicable only to

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Iranian students.³ The regulation directs Iranian nonimmigrant postsecondary students to report to INS by December 14, 1979, with evidence of their residence and student status, including their passport, a letter of good-standing from their school, and evidence of their current address. Failure to comply or willfully supplying false information would subject such students to immediate deportation proceedings. The notice and comment and delayed effective date provisions of 5 U.S.C. § 553 specifically were waived in the announcement concerning the regulation as being impracticable and contrary to the public interest

The Narenji plaintiffs' main challenge to the regulation is that it is violative of the fifth amendment because defendants have singled out only Iranian students. They claim that this constitutes discrimination on the basis of national origin, a suspect class, requiring strict judicial scrutiny and a compelling governmental objective in order to pass constitutional muster. Those plaintiffs also contend, however, that the regulation violates the fourth amendment because the "compelled interrogation" by INS officials constitutes an illegal seizure in that INS has no reasonable grounds to suspect that a particular Iranian student may have violated the conditions of his or her nonimmigrant status. Further, plaintiffs in Narenji claim section 214.5 violates the first amendment, alleging that the primary purpose of the regulation at issue was both to punish Iranian students in the United States for past demonstrations and to chill the future exercise of their rights of speech, association, and assembly. An additional cause of action in plaintiffs' amended complaint asserts defendants' failure to comply with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553, and the lack of statutory authority for the regulation. Plaintiff Confederation of Iranian Students similarly challenges the issuance of the regulation as violative of the Administrative Procedure Act in that the notice and comment procedure was improperly waived and because the Attorney General exceeded the authority vested in him under the Immigration and Nationality Act. That plaintiff also alleges defendant Civiletti's action violates tenets of international law and the first and fifth amendments.

Addressing these allegations of invalidity, defendants contend that the waiver of notice and comment was appropriate, as were the terms of the regulation itself, which, they say, were proper under the authority given to the Attorney General pursuant to section...