Nguyen Da Yen v. Kissinger

Citation528 F.2d 1194
Decision Date05 November 1975
Docket Number75--2632,Nos. 75--2493,s. 75--2493
PartiesNGUYEN DA YEN et al., Plaintiffs-Appellants, Cross-Appellees, v. Henry KISSINGER, Secretary of State, et al., Defendants-Appellees, Cross-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
OPINION

Before CHAMBERS, KOELSCH and TRASK, Circuit Judges.

KOELSCH, Circuit Judge:

These are cross-appeals from a preliminary injunctive order over which we have jurisdiction under 28 U.S.C. § 1292(a)(1). We heard the appeals on an expedited basis on August 14, 1975, and on that day affirmed the order, as we revised it. Because of temporal exigencies, we were unable to immediately explicate our rationale in a written opinion and were compelled to defer that matter to a later time. Having now had a decent opportunity to thoroughly study and consider the numerous and difficult issues, we conclude that our earlier order must be modified, and for the following reasons.

We think it fair to conclude that this is a unique lawsuit, responsive to a highly unusual operation--the Vietnamese Orphan 'Babylift.' During the waning hours of our involvement in Vietnam, as the fall of Saigon grew imminent, various agencies of the United States Government, in concert with private American adoption agencies, participated in an airlift to evacuate children from Vietnam. The airlift was apparently intended to remove only those children who were already in some stage of the requisite procedure for admission to the United States and adoption by American families--i.e., who were adoptable under Vietnamese law, legally in the custody of the American private agencies, and who satisfied the criteria for admission into the United States under the definition of an orphan 'child,' 8 U.S.C. § 1101(b)(1)(F), classifiable as an 'immediate relative' under 8 U.S.C. § 1151(b).

However, it now appears that some of the 2700 children airlifted were brought here improperly. We are presently dealing with a very limited record. The documentation accompanying some of the children is insufficient on its face to establish the child's status as an orphan, abandoned, or irrevocably released child, the validity of the private agency's custody of such a child under Vietnamese child custody law, or the child's eligibility for admission under 8 U.S.C. §§ 1101(b)(1)(F) and 1151(b). While inadequate documentation is in many cases the product of the last minute haste of the evacuation, in at least some cases, as the district court found, it is because the children are not orphans and have not been validly released into the custody of the adoption agencies. From plaintiffs' assertions, it appears that some of the children have a living parent, and were merely left in orphanages for safekeeping (Vietnamese orphanages allegedly serve some of the functions of day care centers). The parent(s) may or may not know the child is alive, or where it is. Other children were allegedly released with the understanding that the parents would be reunited with the child here; still others were released by hysterical parents terrorized by the fear that the child would be murdered by the approaching forces. In the latter situations plaintiffs question the validity of the releases.

To put the matter in broad outline, the ultimate objective the plaintiffs seek is the reunion of children with their parents. In order to attain that objective, plaintiffs seek the accumulation and investigation of the children's records in order to identify and locate children who may have living parents (the children are now spread all over the country in foster and adoptive homes), and the establishment of procedures for locating the natural parents and repatriating and reuniting the children with them. Plaintiffs seek to accomplish those objectives expeditiously, in one lawsuit in a single forum, before the passage of time erases the children's memories (making more difficult the location of living relatives), and makes even more bitter the disruption in the child's and adoptive parents' lives should the child eventually be reunited with its natural parents.

A variety of legal theories are advanced in the complaint to sustain plaintiffs' claim to relief. In essence, plaintiffs allege that the defendants' cooperation in the removal of a child from Vietnam without proper custody of it having been obtained (including by totally voluntary parental releases), and its continued, allegedly involuntary, detention in this country in custody other than that of its natural parent, is a violation of the child's fundamental human rights and of its Fifth Amendment right to liberty and due process. The legal vehicle by which that claim is asserted on behalf of those of the 2700 orphans who share the complaint is a class action. The three named plaintiffs are children who apparently have living parents in Vietnam. They are represented by a guardian ad litem appointed by the court, and by the latter's attorneys. The class they seek to represent is of course as yet indeterminate--the district court has allowed the suit to proceed as a class action for discovery purposes in order to determine the identity of children who may share the named plaintiffs' legal claim. 1

The proceeding is still very much in the preliminary stages. Having filed their complaint, plaintiffs immediately moved for a preliminary injunction, seeking inter alia that the defendants accumulate records necessary to determine each child's adoptive status and to find its parents, disclosure of those records to plaintiffs, institution of procedures through international agencies for tracing parents or relatives, a stay of all adoption proceedings until, where necessary, a search for parents or relatives fails, and the immediate return of any child found to have a living parent seeking its return. At a series of hearings it became apparent that one of the defendants, the Immigration and Naturalization Service, intended and perhaps had already begun, to conduct an investigation aimed at developing some of the information sought by plaintiffs. Because of the press of time, the INS had departed from its usual procedure requiring the filing and approval of form I--600, Petition to Classify Orphan as an Immediate Relative, with the accompanying documentation required to establish eligibility under 8 U.S.C. §§ 1151(b) and 1101(b)(1)(F), 2 before the Babylift orphans were admitted to the United States. See 8 C.F.R. § 204.2(d). Rather, the INS had facilitated the children's removal from Vietnam through the exercise of the discretionary parole power. 8 U.S.C. § 1182(d)(5), which enables the Attorney General or his delegate to parole an alien into the United States if in the public interest, without regard to the alien's immigrant status or other entitlement to admission. As a result, the children are in this country with an undetermined immigration status. 3

As the INS investigation was to develop the preliminary information sought by plaintiffs, the district judge initially sought to obtain the parties' consent to an order regulating the time schedule and procedures for the investigation. That proved impossible to obtain. The INS took the position that the exercise of the parole power and the conduct of the investigation were matters outside the court's jurisdiction because committed to unreviewable agency discretion under the Administrative Procedure Act, see5 U.S.C. § 701(a)(2), and the plaintiffs were inalterably convinced that the proposed INS investigation was not sufficiently expeditious and thorough. In the end, the district judge entered an order inter alia setting a timetable for the investigation and requiring progress reports, the development and implementation of plans for the conduct of overseas investigations and repatriations, immediate repatriation of children the INS determines 'should be returned to their parents in Vietnam,' and providing for limited, random discovery by the plaintiffs of investigation files. Both sides are dissatisfied; each has appealed. 4

We turn first to the defendants' major objection to the order--that the exercise of the parole power and the conduct of the administrative investigation are committed to unreviewable agency discretion--and reject it. Defendants altogether misconceive the thrust of plaintiffs' complaint. According to their allegations, plaintiffs have neither sought nor desire the discretionary exercise of the parole power for their benefit. Rather, they complain that the parole power has been employed to facilitate a continuing deprivation of their constitutional rights. While the courts might well be prevented by § 701(a)(2) of the A.P.A. from inquiring into the Attorney General's decision whether or not to admit in parole status an alien seeking admission, nothing in the A.P.A. purports to sanction the violation of constitutional rights committed under the guise of the exercise of discretion, or prevents a court from inquiring into and remedying the deprivation. The purpose of the 'committed to agency discretion' exception is entirely served by insulation of administrative discretion, operating in its assigned sphere, from judicial usurpation. Simply put, defendants' discretion does not extend to the violation of constitutional rights, nor can it--the sovereignty they exercise, whether delegated by Congress to be exercised with strict limitations or in a broadly discretionary manner, is always and necessarily bounded by the limitations placed on that power in the Constitution. A court of competent jurisdiction may entertain a suit to remedy a deprivation committed by an unconstitutional exercise of discretion in the same manner as a...

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