Xiao v. Reno, C-90-0350 WHO.

Citation963 F.Supp. 874
Decision Date01 May 1997
Docket NumberNo. C-90-0350 WHO.,C-90-0350 WHO.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesWang Zong XIAO, Plaintiff, v. Janet RENO, in her capacity as Attorney General of the United States, et al., Defendants.

Cedric C. Chao, Ruth N. Borenstein, Sue C. Hansen, Morrison & Foerster, San Francisco, CA, for Plaintiff.

Michael Yamaguchi, U.S. Atty., Stephen L. Schirle, Chief, Civ. Div., Alberto E. Gonzales, Sp. Asst. U.S. Atty., San Francisco, CA, Janet Reno, Atty. Gen., Frank W. Hunger, Asst. Atty. Gen., Gary G. Grindler, Deputy Asst. Atty. Gen., Civ. Div., Washington, DC, Mark C. Walters, Asst. Director, Christine Bither, Michael Y.F. Sarko, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for Defendants.

ORDER

ORRICK, District Judge.

Plaintiff's motion to obtain travel documents came before the Court on March 13, 1997. The Court, having considered the pleadings, and having had the benefit of oral argument of counsel, denies the motion for the reasons stated by the Court at the hearing, and for the reasons that:

1. A preliminary question raised by the government is whether the recent passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("Act"), Pub.L. 104-208, 110 Stat. 3009 (Sept. 30, 1996), divests this Court of jurisdiction over this case. The government does not point to any specific provision in the Act, but the Court's reading of the lengthy enactment reveals one passage applicable to the government's argument concerning this Court's jurisdiction. That provision reads:

(g) Exclusive Jurisdiction

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. 104-208, § 306(a)(2), now codified at 8 U.S.C. § 1252(g) (Supp.1997). The Act further provides that its jurisdiction-stripping provisions apply retroactively. See id. at § 306(c) (codified at 8 U.S.C. § 1252 Note).

2. The final words of § 306(a)(2), however, limit the scope of the provision to proceedings and orders "under this chapter." "This chapter" refers to Chapter 12 of Title 8 entitled "Immigration and Nationality." See 8 U.S.C. § 1101 et seq. (1970) The Court did not retain jurisdiction to review any decision or action of the government with regard to its adjudication under the Title 8. Thus, the Act does not divest the Court of jurisdiction over this matter. Rather, as the Court of Appeals found, this Court's jurisdiction arose from its power to redress the government's due process violations. Wang Zong Xiao v. Reno, 81 F.3d 808, 816 (9th Cir.1996). Thus, the Act does not divest the Court of jurisdiction over this matter.

3. With the jurisdictional question resolved, the Court can turn to the merits of plaintiff's motion. The Court's October 6, 1993 Opinion and Order permanently enjoined the government from taking steps to remove plaintiff from the United States or to return him to the custody of the People's Republic of China, see Wang Zong Xiao v. Reno, 837 F.Supp. 1506, 1564 (N.D.Cal.1993), aff'd, Wang Zong Xiao, 81 F.3d at 820, but it did nothing to create travel rights for him beyond those possessed by any other alien in the United States. The Court is fully cognizant that the right of a citizen to travel is considered a "liberty interest that is protected by the Due Process Clause of the Fifth Amendment." DeNieva v. Reyes, 966 F.2d 480, 485 (9th Cir.1992) (citations omitted). Wang, however, is not a citizen. He is an alien and an alien's "right to travel temporarily outside the United States is subject to restrictions not applicable to citizens." Harisiades v. Shaughnessy, 342 U.S. 580, 586-87 n. 10, 72 S.Ct. 512, 517 n. 10, 96 L.Ed. 586 (1952) (citation omitted), reh'g denied, 343 U.S. 936, 72 S.Ct. 767, 96 L.Ed. 1344 (1952). All aliens must pursue an asylum claim with the Immigration and Naturalization Service ("INS") prior to obtaining refugee status for purposes of obtaining a Refugee Travel Document, as plaintiff desires. See Asylum Procedures, 62 Fed.Reg. 10312, 10352 (1977) (to be codified at 8 C.F.R. § 223.2(b)(2)) (1996) (requiring alien to hold valid refugee or asylum status to be eligible for a Refugee Travel Document). Plaintiff, however, has not applied for asylum. Similarly, any other alien would have to apply to the INS for Advance Parole prior to obtaining a Multiple-Entry Advance Parole document. See 8 C.F.R. § 223.2(a) (describing Advance Parole application procedure). Plaintiff has not done so.

4. Congress created the INS in part to promulgate such regulations as those cited above to implement the provisions of Title 8. Cf. 8 U.S.C. § 1551 (1970 & Supp.1997). Courts have long expressed a reluctance to become entangled in an area of policy better left to the discretion and flexibility of the legislative and executive branches. As noted in Harisiades:

It is pertinent to observe that any policy toward aliens is...

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