Yim Tong Chung v. Smith

• Decision Date: 31 July 1986
• Docket Number: No. 84 Civ. 3125 (JES).,84 Civ. 3125 (JES).
• Citation: 640 F. Supp. 1065
• Parties: YIM TONG CHUNG, et al., Plaintiffs, v. William French SMITH, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

640 F. Supp. 1065

YIM TONG CHUNG, et al., Plaintiffs, v. William French SMITH, et al., Defendants.

No. 84 Civ. 3125 (JES).

United States District Court, S.D. New York.

July 31, 1986.

Gim & Wong, P.C. (Benjamin Gim, of counsel), Lawyers Committee for Intern. Human Rights (Arthur C. Helton, of counsel), Asian American Legal Defense and Education Fund (Margaret Fung, Arthur J. Soong, of counsel), New York City, for plaintiffs.

Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. (Thomas E. Moseley, Sp. Asst. U.S. Atty., of counsel), New York City, for defendants.

OPINION AND ORDER

SPRIZZO, District Judge:

FACTS

The fifteen plaintiffs in this action are natives and citizens of the People's Republic of China ("PRC") who are currently in this country. Each plaintiff had apparently¹ received a passport from PRC authorities² and then applied for and received a non-immigrant visa from United States ("U.S.") consular officials in China. See Affidavit of Christine Petersen ("Petersen Aff.") at ¶¶ 2-3, 11-22, & Ex. A. Thirteen of the plaintiffs applied for and obtained tourist visas,³ and the other two applied for and obtained non-immigrant student visas.⁴ Between 1980 and 1982, following issuance of these non-immigrant visas, the plaintiffs were admitted to the United States, and authorized to remain for varying specified periods of time.⁵

A majority of the plaintiffs remained in the United States beyond the period of their authorized admission, see id. at ¶¶ 11-22, & Ex. A, thus rendering themselves deportable pursuant to section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2). These plaintiffs filed applications for political asylum, see 8 C.F.R. § 208.1, with defendant Sava, the New York District Director for the Immigration and Naturalization Service ("INS"). The other plaintiffs filed asylum applications prior to the expiration of their authorized admissions. These applications were submitted pursuant to the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 et seq., and its implementing regulations. See 8 U.S.C. § 1158(a) (1982); 8 C.F.R. § 208.1 et seq.

Each such asylum application, along with any supporting documents, was submitted on INS Form I-589. Each plaintiff then appeared with his attorney or designated representative for a personal interview with an INS officer, at which "each plaintiff ... testified under oath in support of his claim that he was qualified for asylum as a person who was unable or unwilling to return to China because of persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group." See Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss ("Pl. Memo") at 2. Following that interview, each plaintiff was granted employment authorization pursuant to 8 C.F.R. § 109.1(b)(2) as a "non-frivolous" asylum applicant, and an advisory opinion was requested from the State Department's Bureau of Human Rights and Humanitarian Affairs ("BHRHA") pursuant to 8 C.F.R. § 208.7 and INS Operations Instruction ("OI") 208.9b. See Petersen Aff. at ¶ 5.

Following consideration of the applications, INS notified each plaintiff, in a letter issued by defendant Sava, of its intention to deny the asylum application. Attached to each such letter was an advisory opinion from the State Department's BHRHA. Each letter informed the asylum applicant of a 15-day period within which the applicant could submit evidence in rebuttal of that opinion.

There is some dispute as to whether each plaintiff submitted a rebuttal statement within the time allotted. Compare Pl. Memo at 4 with Defendants' Memorandum of Law in Support of Government's Motion to Dismiss and/or for Summary Judgment ("Def. Memo") at 12-13. At any rate, following the submission of rebuttal evidence, if any, each plaintiff received a letter from defendant Sava denying the asylum application and terminating employment authorization under 8 C.F.R. § 109.1(b)(2).

These decisions of the District Director also advised the plaintiffs that their applications for asylum could be renewed in deportation proceedings before an Immigration Judge. See, e.g., Ex. D to Complaint. Plaintiffs were also advised that in those proceedings they could apply for withholding of deportation pursuant to Section 243(h) of the Act, 8 U.S.C. § 1253(h). See, e.g., Ex. D to Complaint.⁶ By written submission dated January 9, 1984, plaintiff Gang Wang specifically stated, through his present attorneys, that he wished "to renew his request for political asylum before the Immigration Judge." See Petersen Aff. at Ex. C.

With one exception,⁷ deportation proceedings have been instituted against the plaintiffs. See Blackman Aff., supra note 1, at ¶¶ 3-16. These proceedings are at different stages before various Immigration Judges.⁸See id. at ¶¶ 5, 6, 11, 12, 13, 15; see also Dufresne Aff., supra note 1, & Exs. A-E. Plaintiffs Fu Shen Chen and Gang Wang failed to appear at their scheduled deportation hearings. See Blackman Aff. at ¶¶ 9, 14. Gang Wang apparently arranged for a rescheduled deportation hearing and, in the alternative, renewed his application for political asylum. See Dufresne Aff. at ¶ 10.

On May 4, 1984, the plaintiffs initiated the instant action by filing a "Complaint For Declaratory And Permanent Injunctive Relief." See Complaint at 1.⁹

Plaintiffs ... seek review of the decisions of the Immigration & Naturalization Service (INS) denying their applications for political asylum on the grounds that these "decisions" were prejudged, not rendered on an individual basis, and based upon impermissible State Department adjudications and factors unrelated to the circumstances of the individual cases, in violation of their rights under statute and regulation and to due process of law.

See Complaint at ¶ 1.

Defendants have filed a "motion to dismiss the complaint and/or for summary judgment," contending that: (1) plaintiffs' claims should not be entertained by this Court, or in the alternative, that the District Director's denial of asylum should be sustained; and (2) plaintiffs' claims with respect to work authorization should be dismissed for lack of subject matter jurisdiction and failure to state a claim. Because the Court has considered matters outside of the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided in Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b)(6). For the reasons which follow, the Court concludes that defendants' position that the Court should not review the merits of plaintiffs' claims at this time is correct, and that the motion to dismiss and/or for summary judgment should be granted.

DISCUSSION

The Second Circuit has succinctly delineated the asylum procedure adopted by the Attorney General pursuant to the directives of the Refugee Act of 1980, as set forth in 8 C.F.R. Part 208:

There are five steps in the asylum procedure: preparation and filing of the application for asylum, examination in person by an immigration officer or judge, an advisory opinion from BHRHA, a written decision of the District Director, which may not be appealed, and renewal of the denied asylum request before an immigration judge in exclusion or deportation proceedings.

Yiu Sing Chun v. Sava, 708 F.2d 869, 873 (2d Cir.1983) (footnotes omitted); see also Note, The Right of Asylum Under United States Immigration Law, 33 U. Fla.L.Rev. 539, 560-61 (1981). Plaintiffs would, in derogation of that holding, add an additional step to that procedure, i.e., review by the District Court of the correctness of the District Director's decision denying asylum.

There is and can be no question that plaintiffs can assert any claims they have with respect to political asylum before an Immigration Judge in deportation or exclusion proceedings with a subsequent appeal to the Board of Immigration Appeals ("BIA") and judicial review by the Court of Appeals pursuant to 8 U.S.C. § 1105a. Thus, the effect of adopting plaintiffs' position would be to afford judicial review twice — once by resort first to the District Court from the discretionary denial of asylum by the District Director, and then again to the Court of Appeals pursuant to § 1105a following an unsuccessful de novo presentation to an Immigration Judge and appeal to the BIA.

Such a tortuous procedure would clearly circumvent the asylum procedure as described in Chun, supra, 708 F.2d at 873. See also Hotel & Restaurant Employees Union, Local 25 v. Smith, 594 F.Supp. 502, 510-11 (D.D.C.1984).¹⁰ In short, dismissing plaintiffs' claims at this stage does not deny them judicial review, but merely defers it to a later date. Cf. Chen Chaun-Fa v. Kiley, 459 F.Supp. 762, 765 (S.D.N.Y. 1978).¹¹

In this sense, the Refugee Act did not functionally change the prior asylum process, whereby an alien could apply to the District Director for asylum pursuant to 8 C.F.R. § 108.1 et seq. (1979) (superseded by 8 C.F.R. § 208.1 et seq. (1980)), and later request withholding of deportation pursuant to Section 243(h) of the Act, 8 U.S.C. § 1253(h). This process was viewed as a continuous, ongoing administrative process. See Zamora v. INS, 534 F.2d 1055, 1059 (2d Cir.1976); Chen Chaun-Fa, supra, 459 F.Supp. at 765. The Supreme Court has unanimously recognized that "the principal motivation for the enactment of the Refugee Act of 1980 was a desire to revise and regularize the procedures governing the admission of refugees into the United States." See INS v. Stevic, 467 U.S. 407, 425, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984).

While the District Director's asylum decision is "final" in the sense that it is a non-appealable, discretionary decision, see 8 U.S.C. § 1158; 8 C.F.R. § 208.8(c), Stevic, supra, 467 U.S. at 423, & n. 18, 104 S.Ct. at 2497 & n. 18, it is not in any sense a final administrative action. Cf. Jain v. INS, 612 F.2d 683, 689-90 (2d Cir.1979) cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980); ...