Ramos v. Thornburgh, Civ. A. No. TY-89-42-CA.

• Decision Date: 21 July 1989
• Docket Number: Civ. A. No. TY-89-42-CA.
• Citation: 732 F. Supp. 696
• Parties: Nelson RAMOS, et al., Plaintiffs, v. Richard THORNBURGH, Attorney General of the United States, Defendant.
• Court: U.S. District Court — Eastern District of Texas

732 F. Supp. 696

Nelson RAMOS, et al., Plaintiffs, v. Richard THORNBURGH, Attorney General of the United States, Defendant.

Civ. A. No. TY-89-42-CA.

United States District Court, E.D. Texas, Tyler Division.

July 21, 1989.

W. Michael Bonesio, Walter S. Cowger, Mary Spector, and Kare J. Sperstad-McElyea, Dallas, Tex., Robert Rubin, San Francisco, Cal., Richard Fischer, Nacogdoches, Tex., for plaintiffs,

Parker Singh, Asst. Director, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Ruth Harris Yeager, Asst. U.S. Atty., E.D. Tex., Tyler, Tex., for defendant.

MEMORANDUM OPINION

JUSTICE, Chief Judge.

Plaintiffs in the above-entitled and numbered civil action have entered the United States from El Salvador, seeking refuge from the persecution they allege to have suffered in their native country. Each plaintiff has filed an application for political asylum pursuant to 8 C.F.F. § 208 (1986).¹ None of the plaintiffs has received a final determination on his or her application for asylum.

The Refugee Act did not specifically instruct the Attorney General to develop a procedure for permitting aliens to work while their applications for asylum are pending. Nonetheless, the Attorney General, through the Immigration and Naturalization Service (INS), promulgated the regulations contained in 8 C.F.R. § 274 (1986), which permit an alien who has filed an application for asylum to request temporary employment authorization. These regulations require the INS to adjudicate requests for employment authorization within sixty days, and to grant employment authorization to any alien who has filed a "nonfrivolous" application for asylum. 8 C.F.R. §§ 274a.12(c)(8) and 274a.13(a) (1986). Pending the resolution of their respective applications for asylum, the plaintiffs have each requested temporary employment authorization.

The factual allegations in the complaint are replete with descriptions of tortures, murders, rapes, and other atrocities similar to those that consistently fill the pages of newspapers and news magazines, and the screens of our television sets during the nightly news. It cannot seriously be disputed that El Salvador is a nation plagued by violence and terror. Nor, indeed, it is disputed in this action that these plaintiffs themselves have been exposed to a number of extremely unsettling and distressing experiences, either violent or threatening in nature. Nevertheless, it is not for the court to determine at present whether these plaintiffs have made a sufficient showing in their asylum applications to qualify them for a discretionary grant of political asylum in the United States. The sole issues now before the court are:

(1) whether the defendant has fulfilled his obligation to adjudicate requests for employment authorization within sixty days or issue interim employment authorization;

(2) whether defendant has interpreted the term nonfrivolous, as it is contained in 8 C.F.R. § 274a.12(c)(8), in accordance with the law or has applied his interpretation, if lawful, in a manner that is arbitrary and capricious, or contrary to the law; and

(3) whether the defendant unlawfully prohibited plaintiff Menendez from requesting temporary employment authorization.

In addition, these issues are before the court in a motion for preliminary injunction. In this posture, the court is not called upon to resolve the issues on the merits, but merely to determine whether, inter alia, the plaintiffs have established a substantial likelihood of success on the merits.

This civil action was filed by thirteen named plaintiffs, individually and on behalf of all persons similarly situated. Because plaintiffs had not moved for class certification at the time of the oral hearing on their motion for preliminary injunction, the motion is considered as to the individual plaintiffs. Plaintiffs raise three claims in this action, and, therefore, the factual allegations of the individual plaintiffs can be divided logically into three general categories. First, plaintiffs Fuentez, German, Enamorado, Ramos, and Parada allege that their requests for temporary employment authorization has been pending for more than sixty days without adjudication, and that they have not received interim employment authorization.² Second, plaintiffs Garcia, Cisneros, Vargas, Saravia, Miranda, Rosas, and Reyes allege that they were unlawfully denied employment authorization, because of an erroneous interpretation by the INS of its own regulations pertaining to temporary employment authorization. Finally, plaintiff Menendez claims that she was unlawfully prevented from filing a request for temporary employment authorization by an INS official.

Relief Sought

In this motion for preliminary injunction, plaintiffs have demanded the following preliminary relief:

(1) to compel defendant immediately to grant interim employment authorization to the named plaintiffs who have had requests for employment authorization pending for more than sixty days;

(2) to prohibit defendant from finding an asylum application frivolous, unless the defendant determines that, assuming all the facts in support of the claim to be true, the plaintiff has failed to state a valid claim for asylum;

(3) to prohibit defendant from finding an asylum application frivolous solely on the basis of a negative advisory opinion regarding the asylum application from the Department of State Bureau of Human Rights and Humanitarian Affairs;

(4) to prohibit defendant from finding an asylum application frivolous solely on the basis of the denial of the asylum application by an INS District Director, an immigration judge, the Board of Immigration Appeals, or a United States Court of Appeals; and

(5) to compel defendant immediately to grant employment authorization to the named plaintiffs whose requests have been denied or rejected for adjudication.

Preliminary Injunction Standard

To prevail on a motion for a preliminary injunction, plaintiffs must establish: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the preliminary injunction is not granted; (3) that the threatened harm outweighs the harm to the opposing party if the preliminary injunction is granted; and (4) that granting the preliminary injunction will not disserve the public interest. See e.g., Mississippi Power and Light Co. v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir.1985); 7 Moore's Federal Practice § 65.04(1) (1988). A preliminary injunction is an extraordinary remedy, and the movant bears the burden of proof on each factor. Such an injunction cannot be granted, if the movant fails to carry the burden of persuasion as to any of the four factors. Libertarian Party of Texas v. Fainter, 741 F.2d 728 (5th Cir.1984). Moreover, principles of equitable restraint counsel against the issuance of injunctive relief where the plaintiff has an adequate remedy at law. See O'Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974). The court will address each of these factors, seriatim.

Substantial Threat of Irreparable Harm

It cannot validly be disputed that an unreasonable denial of work authorization, or an unlawful delay in adjudicating requests for work authorization, results in a substantial threat of harm to plaintiffs, by preventing them from working to support themselves pending resolution of their claims for asylum. Not only is an alien who engages in unauthorized employment deportable, 8 U.S.C. § 1251(a)(9) (1982), but an employer who hires an alien without employment authorization is subject to criminal sanctions. 8 U.S.C. § 1324a (1986). Consequently, an alien who is wrongfully denied employment authorization is compelled to rely on friends and relatives for support, to work illegally and risk deportation or adverse action on his asylum application, or, ultimately, to abandon his application for asylum. Thus, it seems clear that the threat of harm is substantial. See National Center for Immigration Rights v. INS, 743 F.2d 1365 (9th Cir.1984) (stating that "the hardship to aliens from being unable to support themselves and their dependents ... is beyond question").

Defendant argues, however, that loss of income is an injury that can be remedied adequately by a damages award, and thus does not constitute irreparable injury. In general, lost income and other economic loss that can be calculated and compensated by monetary damages will not be considered irreparable injury. 7 Moore's Federal Practice ¶ 65.041 at 65-55 (1989). In some circumstances, however, the illusory nature of a future damages award renders that remedy inadequate, even if the loss suffered was purely economic. See Mississippi Power and Light v. United Gas Line, 760 F.2d 618, 623-25 (5th Cir.1984) (holding that a refund in the event of a rate overcharge would be an inadequate remedy, and the harm would thus be irreparable). As with utility customers faced with unlawful rate increases, the particular circumstances of asylum applicants indicates that a sustained inability to work may constitute irreparable injury for these individuals, for two reasons.

First, asylum applicants, who are generally impoverished and come from poor families, are unlikely to have access to alternative income sources, such as income from assets or loans from family members. In fact, many may have come to the United States, in part, to help support members of a family who cannot support themselves in the applicant's native country. Monetary damages at some future time can never adequately compensate aliens living at or below the poverty line, for the hardships they must endure as a result of presently existing unlawful denials of employment authorization. Cf. Mississippi Power and Light v. United Gas Pipe Line, 760 F.2d 618, 625 (5th Cir.1984); see also National Center for Immigrants Rights v. INS, 743 F.2d 1365, 1369 (9th Cir.1984); Diaz v. INS, 648 F.Supp. 638, 647-48 (E.D...