Velasco-Gutierrez v. Crossland

• Decision Date: 24 April 1984
• Docket Number: No. 82-1682,M,VELASCO-GUTIERRE,82-1682
• Citation: 732 F.2d 792
• Parties: Desiderioaria De Lourdes Rodriguez De Velasco, and Juan Carlos Velasco-Rodriguez by Desiderio Velasco-Gutierrez, his father and next friend, Plaintiffs-Appellees, v. David CROSSLAND, Acting Director of the Immigration and Naturalization Service, United States Department of Justice; and Robert Godshall, District Director of the Immigration and Naturalization Service, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 792

732 F.2d 792

Desiderio VELASCO-GUTIERREZ, Maria De Lourdes Rodriguez De Velasco, and Juan Carlos Velasco-Rodriguez by Desiderio Velasco-Gutierrez, his father and next friend, Plaintiffs-Appellees, v. David CROSSLAND, Acting Director of the Immigration and Naturalization Service, United States Department of Justice and Robert Godshall, District Director of the Immigration and Naturalization Service, Defendants-Appellants.

No. 82-1682.

United States Court of Appeals Tenth Circuit.

April 24, 1984.

James W. Winchester, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., with him on brief), Denver, Colo., for defendants-appellants.

Susan E. Perry, Denver, Colo., for plaintiffs-appellees.

Before McWILLIAMS, BREITENSTEIN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiffs Desiderio Velasco-Gutierrez, Maria de Lourdes Rodriguez de Velasco, and Juan Carlos Velasco-Rodriguez (the Velascos) brought this action for injunctive and declaratory relief against officials of the United States Immigration and Naturalization Service (INS or the Service), alleging that the Service's refusal to consider the Velascos for "deferred action" concerning their departure from the United States violates the due process clause of the Fifth Amendment and the Administrative Procedure Act, 5 U.S.C. Secs. 551 et seq. (1982). On cross motions for summary judgment, the district court held for the Velascos and ordered the INS District Director to consider their application for deferred action status in a manner that comports with due process. We reverse.

I.

The facts pertinent to this appeal are not disputed. The Velascos are Mexican citizens who illegally entered the United States at El Paso, Texas in 1976. The child, Juan, was two and a half years old at the time and severely retarded, with a history of serious medical problems. In 1977, the INS identified the Velascos as illegal aliens and granted them "voluntary departure" in lieu of deportation. See 8 U.S.C. Sec. 1254(c) (1982). In July 1977, the Velascos requested that the INS grant them "deferred action" status due to Juan's condition and his need for proper treatment. As will be discussed more fully below, the granting of "deferred action" or "nonpriority" status is essentially an administrative decision by the Service not to deport an otherwise deportable alien.

While this request was pending, the Velascos were given a series of extensions of voluntary departure. In March 1979, the Service determined that Juan could obtain adequate medical treatment in Mexico, and informed the Velascos that no further extensions would be granted. Upon being so notified, the Velascos requested a deportation hearing, which ultimately was held October 10, 1980.

In the months preceding the hearing, the Velascos repeatedly requested consideration for deferred action based on Juan's need for continued care and education at a Colorado treatment facility. The INS refused to act on the Velascos' request, maintaining that deferred action was an "in-house status initiated by the Service," and not a category for which one could apply. Rec., vol. I, at 32, 46.

At their deportation hearing, the Velascos confessed deportability and again elected voluntary departure, promising to leave the United States within six months. Shortly after the hearing, however, they brought this suit in federal district court seeking, inter alia, an injunction against deportation until the INS considered their request for deferred action and established uniform standards for the evaluation of such requests. After hearing argument, the district court granted the Velascos' motion for summary judgment and ordered the INS to consider their application for deferred action status "in a manner which comports with due process of law." Rec., vol. III, at 7. The court further ordered that any deportation be stayed until such consideration had occurred. ¹ This appeal followed.

II.

Deferred action status, also known as nonpriority status, has been described as "an informal administrative stay of deportation ... having no effect on an alien's adjudication as deportable but potentially leading to an extended stay in this country." Wan Chung Wen v. Ferro, 543 F.Supp. 1016, 1017 (W.D.N.Y.1982). It is, in essence, a "reprieve" from deportation--an administrative decision by the INS to take no action against an otherwise deportable alien. See Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir.1983); Appellant's Brief at 4. On appeal, we must determine whether the requirements of procedural due process apply to the INS decision making process regarding the grant or denial of deferred action status.

The Velascos' claim to due process protection is grounded on INS Operations Instruction (O.I.) 103.1(a)(1)(ii), which, at the time this action was brought, provided:

"(ii) Deferred action. In every case where the district director determines that adverse action would be unconscionable or result in undue hardship because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category. His recommendation shall be made to the regional commissioner concerned on Form G-312, which shall be signed personally by the district director and the basis for his recommendation shall be set forth therein specifically. Interim or biennial reviews should be conducted to determine whether approved cases be continued or removed from deferred action category.

"When determining whether a case should be recommended for deferred action category, consideration should include but not be limited to the following: (1) advanced or tender age; (2) number of years presence in the United States; (3) physical or mental condition requiring care or treatment in the United States; (4) family situation in the United States--effect of expulsion; (5) criminal, immoral or subversive activities or affiliations--recent conduct. If the district director's recommendation is approved by the regional commissioner the alien shall be notified that no action will be taken by the Service to disturb his immigration status, or that his departure from the United States has been deferred indefinitely, whichever is appropriate." ²

Rec., vol. I, at 101. The Velascos contend that this Instruction, with its mandatory language and prescribed criteria and procedure, "creates a protectible expectation that Plaintiffs would be fully and fairly considered for deferred action status ...." Appellees' Brief at 5, 7. They argue that the INS' failure even to consider their request for deferred action deprived them of due process and was thus impermissible under the Fifth Amendment.

In response, the Service points out that, unlike "voluntary departure" or "stay of deportation," which are provided for by statute and regulation, see 8 U.S.C. Sec. 1254 (1982); 8 C.F.R. Secs. 244.2, 243.4 (1983), deferred action is "a non-statutory form of relief from deportation which INS grants in its discretion in a certain and very limited class of cases." Appellant's Brief at 7. The service characterizes its decision making process with regard to deferred action as an exercise of prosecutorial discretion, and argues that O.I. 103.1(a)(1)(ii) is an "intra-agency guideline" which was intended merely to regularize INS internal procedure, not to confer a substantive right. Id. at 10-12.

Three circuit courts have examined the INS practice of granting nonpriority status in some cases and have reached differing conclusions as to the effect of the practice. Although not specifically addressing the Operations Instruction, the Fifth Circuit in Soon Bok Yoon v. INS, 538 F.2d 1211 (5th Cir.1976), described nonpriority status as "in the nature of a voluntary stay of the agency's mandate pendente lite, issued in large part for the convenience of the INS." Id. at 1213. Because the court did not view deferred action as a form of relief for which one could apply, it found no error in the immigration judge's failure to apprise the plaintiff of its availability. The court determined that "[t]he decision to grant or withhold nonpriority status ... lies within the particular discretion of the INS," and thus the Service could "create and employ such a category for its own administrative convenience without standardizing the category and allowing applications for inclusion in it." Id.

The Ninth Circuit rejected this conclusion in Nicholas v. INS, 590 F.2d 802 (9th Cir.1979), declaring it "obvious" that the deferred action procedure established in O.I. 103.1(a)(1)(ii) "exists out of consideration for the convenience of the petitioner, and not that of the INS." Id. at 807. Emphasizing the mandatory language of the Instruction, the court observed that it more closely resembled a substantive provision for relief than an intra-agency administrative guideline:

"The Instruction provides that, 'In every case' where relief is appropriate, the District Director 'shall recommend' deferred action category.... The directive nature of the language implies that the District Director is to consider each case which is brought to his attention fully, to satisfy the mandate that all cases for which relief is appropriate receive a recommendation for such relief. This does not ring of the almost limitless discretion of a prosecutor deciding whether to press charges. It sounds more in the nature of an administrative judge's duty to preserve a substantive right, by fully and fairly weighing all matters before him."

Id. (emphasis in original).

Most recently, the Eleventh Circuit appears to have aligned itself with the Fifth Circuit by holding that "[t]he internal operating procedures of the INS are for the administrative convenience of the INS only." Pasquini, 700 F.2d at 662. The court criticized the Ninth Circuit's decision in Nicholas, claiming that it was "not made with an acknowledgement of the traditional status given to internal instructions, distinct from regulations." Id. See...