Ngwanyia v. Ashcroft, No. Civ. 02-502(RHK/AJB).

• Decision Date: 12 February 2004
• Docket Number: No. Civ. 02-502(RHK/AJB).
• Parties: Venantius Nkafor NGWANYIA, et al., Plaintiffs, v. John ASHCROFT, Attorney General, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

302 F.Supp.2d 1076

Venantius Nkafor NGWANYIA, et al., Plaintiffs, v. John ASHCROFT, Attorney General, et al., Defendants.

No. Civ. 02-502(RHK/AJB).

United States District Court, D. Minnesota.

February 12, 2004.

Mary A. Kenney and Nadine K. Wettstein, American Immigration Law Foundation, Washington D.C.; Iris Gomez, Massachusetts Law Reform Institute, Boston, Massachusetts; and James K. Langdon II, Dorsey & Whitney, Minneapolis, Minnesota, for Plaintiffs.

Greg D. Mack and Jennifer L. Lightbody, Office of Immigration Litigation, United States Department of Justice, Washington D.C.; Fred Siekert, United States Attorney's Office, Minneapolis, Minnesota, for Defendants.

MEMORANDUM OPINION AND ORDER

KYLE, District Judge.

Introduction

This matter comes before the Court on cross-motions for summary judgment. Plaintiffs, on behalf of a class of asylees¹ with pending applications for lawful permanent residence status in the United States, have sued Attorney General John Ashcroft, Secretary of the Department of Homeland Security Tom Ridge, the Department of Homeland Security, Director of the Bureau of Citizenship and Immigration Services Eduardo Aguirre, Jr., and the Bureau of Citizenship and Immigration Services (collectively, "Defendants"),² alleging that Defendants have improperly administered the system by which asylees become lawful, permanent residents of the United States.

Plaintiffs have moved, and Defendants have filed a cross-motion, for partial summary judgment on two issues: (1) whether approximately 22,000 unused refugee admission numbers, as a matter of law, remain available for use at this time, and (2) whether Defendants' policies and practices with regard to employment documents violate Plaintiffs' statutory authorization to work. For the reasons set forth below, the Court will grant Plaintiffs' motions and deny Defendants' motions.

Background

I. Statutory and Regulatory Background

Prior to 1980, the United States had no uniform system for admitting and resettling refugees and asylees. See generally Steel on Immigration Law, 2d § 8:1 (2003). While Congress had enacted legislation with respect to various classes of refugees, federal refugee policy consisted largely of ad hoc programs developed in response to separate mass-refugee crises. Id. Refugees and asylees who did not fall into any of these categories were dependent upon the Attorney General's discretionary power to "parole" aliens into the United States. Id. Thus, pre-1980 refugee and asylee law was a patchwork of ad hoc legislation and executive grace.

Through the Refugee Act of 1980, Congress replaced this chaotic and arbitrary system with one designed to

provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States, and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted.

Refugee Act of 1980, § 101(b), Pub.L. 96-212; accord Aliens and Nationality, Refugee and Asylum Procedures, 46 F.R. 45116 (September 10, 1981) (INS application of this stated purpose to the asylee adjustment provisions of the statute). Through the Refugee Act, Congress codified the United Nation's definition of "refugee,"³ 8 U.S.C. § 1101(a)(42), curtailed the Attorney General's parole power, id. § 1182(d)(5), and standardized the admissions process for refugees and asylees, id. §§ 1157-59.

II. Asylees and the Endorsement of Work Authorization

Under the Refugee Act, "[a]ny alien who is physically present in the United States ... may apply for asylum." Id. § 1158. If the applicant can establish that he or she is a "refugee," within the meaning of 8 U.S.C. § 1101(a)(42)(A), and meets other criteria, such as a well-founded fear of persecution, see 8 C.F.R. § 208.13(b), the applicant may be granted asylum in the United States. Asylee status is indefinite; it does not automatically expire. 8 C.F.R. § 208.14(d). An asylee's status can change, however, if either (1) the government adjusts the asylee's status to that of a lawful permanent resident, see 8 U.S.C. § 1159(b), or (2) the asylee's status is terminated, see 8 U.S.C. § 1158(c)(2); 8 C.F.R. § 208.24.⁴

Aliens may be granted asylum by either the executive branch or the judiciary. In general, an alien who has not been placed in immigration proceedings may file an administrative application with the Bureau of Citizenship and Immigration Services's Asylum Office. 8 C.F.R. § 208.4(b). After receiving that application, an Asylum Officer will interview the alien to determine whether asylum is appropriate. Id. Should the Asylum Officer deny the application, the alien is referred to the Executive Office of Immigration Review for administrative proceedings.⁵ Id. §§ 208.14(c), 1208.2(b). If the Executive Office also denies asylum, the alien may seek further review before the appropriate United States Court of Appeals. 8 U.S.C. §§ 1105a, 1252(a)(1).

Upon a grant of asylum, the Attorney General must authorize the asylee to work in the United States and provide appropriate endorsement of that authorization. Id. § 1158(c)(1)(B). Defendants provide two types of endorsement. The Employment Authorization Document, which includes a photograph and fingerprint of the asylee, must be renewed every year at a cost of $120. 8 C.F.R. § 103.7(b)(1). Renewal takes at least ninety days. (Pls.' Ex. 11 (Department of Justice, INS Office of Business Liaison, "Employment Authorization of Aliens," Employer Information Bulletin 108 (March 2002)).) Alternatively, since the onset of litigation in this case, Defendants have allowed asylees to use their I-94 "Arrival-Departure Record" card as an endorsement of their authorization to work. The I-94 card, which is given to every alien upon entry into the United States, contains the asylee's name, address, and country of citizenship, and states: "Asylum status granted indefinitely pursuant to 208 of the INA." (Pls.' Ex. 11 (Affirmative Asylum Procedures Manual, Office of International Affairs, Asylum Division (Fed.2003)).) Because there is no national policy regarding the expiration of the I-94 card, when—or whether—an I-94 card expires depends upon the practices of the branch office issuing it. (Defs.' Resp. to Pls.' Mem. in Supp. of Second Mot. for Summ. J. at 4.)

While asylees are theoretically authorized to work whether they have an endorsement or not (see Defs. Ex. 7 (Dea Carpenter, Deputy General Counsel, Department of Justice, Employment Authorization of Aliens Granted Asylum (June 17, 2002)) [hereinafter "Carpenter Memorandum"]), an employer cannot hire an asylee without the appropriate documentation, 8 U.S.C. § 1324a(b). Therefore, a valid endorsement, of whatever kind, is of great practical import.

III. Asylee Adjustment

Under the Refugee Act, as amended, the President may authorize the admission of fifty thousand refugees each fiscal year. 8 U.S.C. § 1157(a). Out of that number, the Attorney General may, at his discretion, use up to ten thousand refugee admission numbers to adjust asylees already in this country to the status of lawful permanent residents. Id. § 1159(b). For asylees, lawful-permanent-resident status confers many advantages. For instance, lawful permanent residents may apply for citizenship after five years, id. § 1427(a), petition to immigrate close family members, id. §§ 1151, 1153, and travel abroad freely, id. § 1101(a)(13)(C). Because lawful-permanent-resident status is a prerequisite for naturalization, any delay in adjustment inevitably postpones an asylee's ability to apply for citizenship.

In each fiscal year since 1992, the Attorney General has set aside the full ten-thousand refugee admission numbers authorized by statute.⁶ The INS considers itself "obligated to reach the 10,000 allotment for asylee adjustment set by Congress," and acknowledges that "[t]his is an important benefit for asylees that we are required to fulfill." (Pls. Ex. 3 (Update on Asylee Adjustment Procedures (Jan. 29, 1997)) at 1.) Yet despite having an excess number of applicants in each year except 1995 (see Pls.' Ex. 1 (INS Cap Proposal, May 18, 2001) n. 1),⁷ the immigration services have routinely failed to provide the authorized adjustments (see Pls.' Ex. 2 (Asylee Workload and Immigrant Statistics, Fiscal Years 1991-2002)).⁸ INS processing errors "have hastened the growth in the number of pending cases." (Pls.' Ex. 5 (Memorandum from William R. Yates, INS Deputy Executive Associate Commissioner, to Kevin D. Rooney, INS Acting Commissioner (May 21, 2001)) at 1.) As one INS official stated in 2001, "[W]e have a process that almost guarantees that we will not fully use the 10,000 numerical allocation provided by statute." (Pls.' Ex. 4 (Email from William R. Yates, INS Deputy Executive Associate Commissioner, to Fuji O. Ohata, INS Associate Commissioner (Jan. 24, 2001)).)

In total, between 1994 and 2002, at least 21,822 of the refugee admission numbers set aside by the Attorney General for asylee adjustment went unused. (Pls.' Ex. 2.) According to Defendants, these numbers may not be used to reduce the waiting list because

the adjustment figures available for any given fiscal year expire at the end of that fiscal year, and they are not available in a subsequent fiscal year because the prior years' adjustment figures have expired and there is no statutory authority or requirement to retroactively grant adjustment using a prior fiscal year's allotment of adjustment figures.

(Defs.' Rule 26(f) Report at 6.)

Standard of Decision

Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 ...