for declaratory and injunctive relief alleging that
defendants, officials of the Immigration and Naturalization
Service (herein collectively "INS"), in withholding from them
permanent resident cards or adequate replacements, are
violating plaintiffs' rights under federal law and the United
States Constitution. Plaintiffs move for class certification
and for summary judgment, and INS crossmoves for summary
The court finds most of the critical material facts not in
dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Under the Immigration and Nationality Act, certain aliens
may be admitted to reside permanently in the United States,
namely, those (a) who have as close relatives citizens or
permanent United States residents, (b) who are refugees or
asylees, or (c) who have skills or labor needed by United
States employers. See 8 U.S.C. § 1153, 1101(a)(20).
Such lawful permanent residents receive a permanent
residence card, known officially as the alien registration
receipt card, (Form 1-151 or the more recent Form I-551),
colloquially the "green card" though recent versions have
appeared in other colors. The card includes the alien's
photograph, fingerprint, date of birth, date of admission to
the United States, and alien registration number. Cards issued
prior to 1989 bear no expiry date, while cards issued since
1989 must be replaced every ten years. See U.S. Department of
Justice Immigration and Naturalization Service, Handbook for
Employers, "Notice to Employers" addendum (1989) [hereinafter
Handbook for Employers]. Permanent residents who receive a card
as children must replace it once they reach age 14.
8 C.F.R. § 264.1(f).
Permanent resident aliens must carry the card on their
persons at all times. Failure to do so is a misdemeanor
carrying a maximum penalty of a $100 fine or 30 days
imprisonment or both. 8 U.S.C. § 1304(e). Holders may use the
card as required proof of their lawful permanent residence
status for a variety of government assistance programs, among
them food stamps, housing assistance programs, unemployment
compensation, Aid to Families with Dependent Children,
Medicaid, and Title IV educational assistance. See Pub.L. No.
99-603, § 121(a)(2), 100 Stat. 3359, 3386-88 (1986) (amending
42 U.S.C. § 1436a), § 121(a)(3), 100 Stat. 3359, 3380-90
(amending 20 U.S.C. § 1091).
They may also use the card as an entry document in lieu of
a visa when returning to the United States after an absence of
less than a year, 8 C.F.R. § 211.1(b). Green cards also serve
to procure for lawful permanent individuals other important
forms of identification, such as social security cards or
A critical use of the green card arose with the enactment of
the Immigration Reform and Control Act of 1986 ("the Reform
and Control Act"), 8 U.S.C. § 1255a, 1324a, 1324b, Pub.L. No.
99-603, 100 Stat. 3359 (Nov. 6, 1986). That act prohibits the
hiring or continued employment in the United States of any
non-citizen who is neither a lawful permanent resident nor an
alien granted employment authorization by the Attorney General.
8 U.S.C. § 1324a(a), 1324a(h)(3). Employers who violate the
act are subject to civil fines and criminal penalties. See
8 U.S.C. § 1324a(f) and (e)(4).
Employers must attest they have verified their employees'
identity and employment eligibility by examining one or a
combination of specified documents. 8 U.S.C. § 1324a(b)(1)(A).
The green card is one of those documents.
8 U.S.C. § 1324a(b)(1)(B)(v). This verification must take place within the
employee's first three days on the job,
8 C.F.R. § 274a.2(b)(ii). But an employee unable to produce the necessary
documents in that time may instead present a receipt for the
application for them. The employee must then produce the
documents within 21 business days of being hired.
8 C.F.R. § 274a(b)(vi).
Plaintiffs object in general to the INS policy for (1)
replacing lost green cards and for (2) confiscating or
withholding replacement cards from lawful permanent residents
in deportation or exclusion proceedings. Plaintiffs claim that
INS's withholding the cards, or delay in replacing lost cards
without providing adequate substitutes in the interim, deprive
them of their ability to obtain employment, and burden other
rights and entitlements. Plaintiffs say this violates the due
process clause of the Fifth Amendment, the Reform and Control
Act, INS regulations, and the Administrative Procedures Act.
The Policies in Question
To replace a green card a permanent resident must file an
application on INS Form 1-90. 8 C.F.R. § 264.1(c)(2). According
to defendants, INS then sends the applicant a "call-in" notice
requesting the applicant to come into the INS New York District
Office at a date the INS claims is "usually" within three weeks
of INS' receipt of the application. The New York office
provides an applicant who appears with a "Temporary 1-551" to
use during the three months or more it takes to replace the
permanent 1-551 card.
The INS Operating Instructions provide that temporary
documents shall be issued "[w]hen such action is clearly
warranted because of an emergency." Operating Instruction
264.2. Plaintiffs assert that INS sometimes fails to provide
any temporary documents, and takes much longer than three
months to replace green cards.
INS has a policy of confiscating the green card of permanent
residents returning from abroad, who are placed in exclusion
proceedings and are paroled into but not "admitted" into the
United States. The INS does not return the card until the
conclusion of the exclusion proceeding. When this lawsuit
commenced, INS allegedly did not provide these permanent
residents in exclusion proceedings with any replacement or
substitute identification for the cards it confiscated and did
not provide replacement or substitute identification to
permanent residents in deportation proceedings who had lost
On March 14, 1990, in response to the institution of this
lawsuit, the Commissioner of the INS, Gene McNary, issued a
memorandum in "clarification" of INS policy. The memorandum
provides that under certain circumstances INS agents may
confiscate the green cards from lawful permanent residents in
deportation or exclusion proceedings, and provide temporary
In the case of permanent residents returning from abroad,
the McNary memorandum states that those who do not appear to
the examining officer to be "clearly and beyond a doubt"
admissible to the United States shall have their green cards
"lifted". If they are paroled into the United States pending
completion of exclusion proceedings, the INS shall provide
them with a form bearing the legend:
Returning resident applicant at ___ (port) on ___
(date). Paroled pending determination of right to
reenter. Employment authorized.
The Acting District Director of the INS New York District
Office states that such aliens will also be issued a Form
I-688B. This is a laminated card with the alien's photograph,
a date of expiration, and a legend on the back stating that
the person identified is authorized for employment during the
term of the card and that the card is not evidence of
permanent residence in the United States. None of the
plaintiffs has been issued a Form I-688B.
With respect to aliens in deportation proceedings the McNary
If the district director, chief patrol agent or
officer in charge determines that a temporary
document is needed to assure the alien's
appearance at hearings, or for other justifiable
reasons, the laminated Form I-151 or I-551 will
be lifted, and a temporary I-551 issued. In these
cases, temporary Forms I-551 will be prepared in
accordance with the guidance in O.I. 264.2, and
will be issued for a period sufficient to allow
completion of the deportation proceedings, but in
no case less than six months.
Operating Instruction 264.2 provides for the issuance of a
temporary substitute for the green card of the same type
issued lawful permanent residents awaiting replacement cards.
Although this instruction clearly permits the "lifting" or
confiscation of green cards, the INS New York District Office
Director states that it is not nor has it been INS policy to
confiscate green cards from lawful permanent residents in
deportation proceedings unless they are in detention.
Plaintiffs allege, and defendants do not dispute, that the INS
will not replace the lost cards of permanent residents in
deportation proceedings unless there is a decision favorable
to the permanent resident.
INS argues that the new policies set forth in the McNary
memorandum make this action either moot or unripe for review,
because the district offices may or may not comply with this
recently issued directive.
This argument has no merit. The McNary memorandum addresses
neither the three month delay plaintiffs allege that permanent
residents encounter in receiving replacement green cards, nor
the "usual" three week delay between the time of their
application for a replacement and their receipt of a
"Temporary I-551" stamp. Where the issue is unreasonable delay
in providing an entitlement, claims will often fall into the
category of those "capable of repetition yet evading review."
See Andujar v. Weinberger, 69 F.R.D. 690, 696 n. 6 (S.D.N Y
1976) (quoting Southern Pacific Terminal Co. v. Interstate
Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55
L.Ed. 310 (1911)).
Moreover, the claims of INS failure to provide any sort of
substitute proof of employment authorization are not moot. A
voluntary cessation of allegedly illegal conduct does not
deprive the court of the power to hear and determine the case.
United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct.
894, 897-98, 97 L.Ed. 1303 (1953). INS' conduct in denying some
of the named plaintiffs substitute identification documents for
years, and then changing its policy by memorandum under
pressure of this litigation does not convince the court that it
is "absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur." City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070,
1074-75, 71 L.Ed.2d 152 (1982).
Moreover, the complaint alleges that the temporary proofs of
employment authorization the INS provides are not "adequate."
If those proofs are still inadequate, this claim is not moot.
The Plaintiff Class
Plaintiffs move to certify this as a class action under
Federal Rule of Civil Procedure 23(b)(2), as one where "the
party opposing the class has acted on grounds generally
applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with
respect to the class as a whole".
The class plaintiffs wish to represent is that of all lawful
permanent residents within the jurisdiction of the New York
District of the INS whose permanent resident cards either have
been or will be confiscated or retained by the INS, or whose
cards have been or will be otherwise lost, but to whom the INS
fails to provide replacement cards within a reasonable time or
to provide adequate, interim proof of lawful permanent
resident status and employment authorization. Under Federal
Rule of Civil Procedure 23(a) the plaintiffs must satisfy four
preconditions for class certification, namely:
(1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions
of law or fact common to the class, (3) the
claims or defenses of the representative parties
are typical of the claims or defenses of the
class, and (4) the representative parties will
fairly and adequately protect the interests of
The plaintiff class straddles two distinct groups of
permanent resident aliens: those who have lost their green
cards and are awaiting replacements, and those who have had
them confiscated by the INS at the border in anticipation of
exclusion hearings. As the court explains below, different
questions of law and fact arise regarding the claims of these
two groups. The court, for the moment, confines its discussion
to those lawful permanent residents who have lost their green
cards in some manner other than confiscation by the INS at the
border preliminary to an exclusion hearing.
The members of the class of persons who have lost cards are
plainly too numerous to join practicably. Between 1978 and
1988, over 900,000 persons were admitted to the United States
as lawful permanent residents intending to reside in New York
State. Over 50,000 persons applied to the INS New York
District office for replacement green cards in the period from
October 1988 to September 1989. The difficulty in estimating
the numbers of this class underscores the impracticability of
joinder. The class here is fluid in composition, as permanent
residents lose or regain their cards, yet the nature of the
harm alleged is constant. See Bruce v. Christian, 113 F.R.D.
554 (S.D.N.Y. 1986).
Though different sets of circumstances and policies have
deprived these plaintiffs of their green cards, their
purported injury is the same, and their claims rest on common
questions regarding the legality of these policies. See Andujar
v. Weinberger, 69 F.R.D. 690, 696 n. 6 (S.D.N.Y. 1976) and
Jones v. Bowen, 121 F.R.D. 344, 349 (N.D.Ill. 1988). The named
plaintiffs together present claims that are typical of those of
the class. They arise from the same policies which they
challenged on the same constitutional and statutory grounds.
The representation by counsel from the Immigration Law Unit
of the Legal Aid Society appears fairly and adequately to
protect the interests of the class. The interests of the named
plaintiffs in no way appear to be adverse to each other or to
the class. See Malchmam v. Davis, 706 F.2d 426 (2d Cir. 1983).
INS' chief objection to class certification is that the
plaintiffs lack standing because their claims are as to
policies alleged to exist prior to the McNary memorandum. INS
says it now provides all potential plaintiffs brought to their
attention either "Temporary I-551" forms or "call-in" letters
to receive such documents.
However, as detailed above, plaintiffs claim not only the
complete deprivation of any document proving their status and
employment authorization but an inadequacy in the substitutes
provided and delays in receiving either their green cards or
adequate substitutes. The one plaintiff who regained her green
card had to go without any substitute for four and one half
Moreover, even were the court to accept INS' assertion that
plaintiffs' objections are to policies and practices expunged
by the McNary memorandum, the court finds that the abrupt
issuance of this memorandum only in the face of litigation
gives no assurance that the plaintiffs will not become
"involved in the same controversy in the future" should
another abrupt shift in policy occur at the conclusion of this
action. United States Parole Commission v. Geraghty,
445 U.S. 388, 398, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980). Where
the claim is capable of repetition, yet evading review, a named
plaintiff may litigate the interests of the class despite
losing his or her personal stake in the outcome of the
Replacement of Cards
The court first considers whether defendants' policies
regarding the replacement of lost green cards violates the
Immigration Reform and Control Act amendments to the
Immigration and Nationality Act, or the regulations adopted
The Executive branch derives its authority over immigration
matters from the inherent power over foreign relations and
statutory grants of authority from Congress. United States ex
rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309,
312, 94 L.Ed. 317 (1950). In this case, INS argues that the
policies at issue concern the effective enforcement of
immigration laws. "[T]he Attorney General acts in his
presumptively Article II capacity when he administers the
Immigration and Nationality Act," and in those circumstances,
executive action "is always subject to check
by the terms of the legislation that authorized it, and if
that authority is exceeded it is open to judicial review."
INS v. Chadha, 462 U.S. 919, 954 n. 16, 103 S.Ct. 2764, 2785 n.
16, 77 L.Ed.2d 317 (1983).
Congress has delegated to the Attorney General broad power
to act to enforce all laws relating to immigration and
naturalization, 8 U.S.C. § 1103. He in turn has delegated this
power to the INS Commissioner, 8 C.F.R. § 100.2. The scope of
review of the Attorney General's exercise of discretion is
narrow, restricted to whether it is based on a facially
legitimate and bona fide reason, Kleindienst v. Mandel,
408 U.S. 753, 770, 92 S.Ct. 2576, 2585-86, 33 L.Ed.2d 683 (1972),
rather than on a departure "without rational explanation from
established policies," Bertrand v. Sava, 684 F.2d 204, 212 (2d
The Supreme Court has recognized that "the right to work for
a living in the common occupations of the community is of the
very essence of the personal freedom and opportunity" secured
by the due process clause for aliens as well as citizens
against official deprivation. Truax v. Raich, 239 U.S. 33, 36
S.Ct. 7, 60 L.Ed. 131 (1915). Permanent resident aliens have
not only a right to work but an obligation to support
themselves. Should they become public charges, they may be
subject to deportation. 8 U.S.C. § 1251(a)(1), 1182(a)(15).
The House Committee Report on the Reform and Control Act
explicitly recognized both this right and this obligation. The
committee did "not believe barriers should be placed in the
path of permanent residents and other aliens who are
authorized to work and who are seeking employment,
particularly when such aliens have evidenced an intent to
become U.S. citizens." H.R.Rep. No. 682, 99th Cong., 2d Sess.
1, reprinted in 1986 U.S.Code Cong. & Admin.News 5649, 5673-74.
To that end, the Reform and Control Act included provisions
making it illegal for employers to discriminate based on
national origin or citizenship status. The Committee conceived
these provisions as a deterrent to unwarranted discrimination
by employers made over-cautious by the statutory sanctions
against employing unauthorized aliens. See H.R.Rep. No. 682,
99th Cong., 2d Sess. 68, reprinted in 1986 U.S. Code Cong. &
Admin.News 5672; H.R.Conf.Rep. No. 1000, 2d Sess. 87, reprinted
in 1986 U.S.Code & Admin.News 5840, 5841-43. Should Congress
terminate the employer sanctions provisions of the Act, the
anti-discrimination provisions will expire as well. 8 U.S.C. § 1324b(k).
The Reform and Control Act prohibits the employment of
"unauthorized aliens," which it defines as aliens who are
neither "(A) . . . lawfully admitted for permanent residence
[n]or (B) authorized to be so employed by this chapter or by
the Attorney General." 8 U.S.C. § 1324a(h)(3). The use of the
disjunctive underscores the fact that permanent resident status
is enough for employment eligibility; authorization is not
Accordingly, the implementing INS regulations list lawful
permanent residents as one of the classes of aliens
"authorized to be employed in the United States without
restrictions as to location or type of employment as a
condition of their admission or subsequent change to one of
the indicated classes, and specific employment authorization
need not be requested." 8 C.F.R. § 274a.12(a)(1) (emphasis
added). The Act explicitly exempts lawful permanent residents
from the requirement that documentation of employment
authorization "conspicuously" state any limitations with
respect to the period or type of employment or employer.
8 U.S.C. § 1324a(h)(1).
Although the Act contemplates that lawful permanent
residents will use their "resident alien" cards to satisfy the
verification requirements, other documents will also suffice.
An unexpired foreign passport carrying "an appropriate,
unexpired endorsement of the Attorney General" authorizing
employment will prove both identity and employment
eligibility. 8 U.S.C. § 1324a(b)(1)(B).
The Reform and Control Act also permits employees to proffer
a proof of identification, such as a driver's license or a
school identification card, in combination with a proof of
employment eligibility, such as a social security card, a
refugee travel document, or an INS employment authorization.
8 U.S.C. § 1324a(b)(1)(B). Employers may not specify which of
these acceptable documents or combinations of documents the
employee must produce. See 8 U.S.C. § 1324a(b)(1)(A) and U.S.
Department of Justice Immigration and Naturalization Service
Handbook for Employers 8 (1987).
Plaintiffs argue that as a practical matter many lawful
permanent residents who have lived in the United States for a
substantial time will no longer have unexpired foreign
passports. Indeed, four of the five named plaintiffs have
resided in this country over a decade. They have submitted
anecdotal evidence tending to show that to obtain a new
passport from their embassy or consulate can be a lengthy and
difficult process, particularly when they must produce foreign
documents such as original birth certificates.
Plaintiffs also submit evidence that they have found it
difficult or impossible to obtain other forms of
identification acceptable under the Act, such as a drivers
license or a social security card. The relevant agencies
require proof of lawful permanent residence status in the form
of a green card. Plaintiffs argue that the green card is the
only document that all permanent residents can rely on as
proof of their status.
INS disputes that plaintiffs are unable to obtain social
security cards with the temporary substitute documents it
provides them. The pertinent internal Social Security
Administration policies are unclear, stipulating that all
applicants alleging permanent residence status "must" show a
green card, RM 00203.155, but also listing the "temporary
I-551" under the heading for "Evidence of Status as Alien
Admitted for Temporary Purposes". RM 00203.160. INS offers no
evidence that suggests the process of obtaining a social
security card is any less fraught with delay, difficulty, and
bureaucratic confusion than plaintiffs' affidavits attest.
The court need not resolve the question of whether the
"temporary I-551" is adequate to procure a social security
card. The INS and not the Social Security Administration is
responsible for implementing immigration laws and providing
the requisite documents for aliens to demonstrate their
eligibility for employment. Indeed, the Congressional
Committee deleted a provision requiring the verification of
job applicants' social security numbers. See H.R. No. 682(III),
99th Cong., 2d Sess. 1, 7-8, reprinted in 1986 U.S.Code Cong. &
Admin.News 5791, 5792-93.
The INS argument that lawful permanent residents have no
right to a green card is inconsistent with the legislation
making it the Attorney General's duty to provide green cards,
"in such form and manner and at such time as shall be
prescribed under regulations" issued by him, 8 U.S.C. § 1304(d),
and requiring lawful permanent residents to have the
cards in their personal possession. See 8 U.S.C. § 1304(e).
It is true that when the 1940 Alien Registration Act was
enacted, its purpose was to allow the government to identify
aliens, rather than to enable aliens to identify themselves.
See United States v. Franklin, 188 F.2d 182, 187 (7th Cir.
1951). But the requirement that permanent residents be issued
and carry registration cards was part of the statutory universe
in which the Reform and Control Act was framed in 1986. That
act plainly contemplates that lawful permanent residents do not
have to apply for employment authorization from the Attorney
General. They are already so authorized by virtue of their
status, and presumably already provided with a document
attesting to that status.
It follows that under the Reform and Control Act, permanent
resident aliens who lose their green cards are entitled to
some other means of proving their status within the time
periods provided by INS regulations. Were a lawful permanent
resident alien on the day of hire to lose a wallet containing
the green card and that
day apply for a replacement, the INS is required to provide
within 21 business days or less a document proving that
Such proof does not have to be the laminated I-551 "green"
card (now pink and blue). The Reform and Control Act
specifies, however, that an acceptable "resident alien card"
or "alien registration card" must contain:
(I) a photograph of the individual or such other
personal identifying information relating to the
individual as the Attorney General finds, by
regulation, sufficient for purposes of this
(II) [be] evidence of authorization of employment
in the United States.
8 U.S.C. § 1324a(b)(1)(B)(v). The green card fulfills these
requirements. INS contends that the "Temporary I-551" fulfills
them as well.
The "Temporary I-551" consists of a stamp with the following
PROCESSED FOR I-551. TEMPORARY EVIDENCE OF LAWFUL
ADMISSION FOR PERMANENT RESIDENCE VALID UNTIL
_____. EMPLOYMENT AUTHORIZED.
This stamp is placed either in the applicant's unexpired
foreign passport or on the front of an I-94 form, see INS
Operations Instructions 264.2, described by INS in its Handbook
for Employers as an "arrival-departure record issued . . . to
nonimmigrant aliens." Handbook for Employers, p. 13.
The front of the Form I-94 contains the applicant's name,
date of birth, alien registration number, and country of
citizenship, as well as an admission number and the legend
"Form I-94 Departure Record." The admission number should be
covered over by the lawful permanent resident's photograph
when the form is used as a "Temporary I-551", INS Operating
Instruction 264.2, although some versions issued to members of
the plaintiff class do not contain a photograph.
The front of the I-94, when so stamped, with a photograph
obscuring the words "Departure Record", would satisfy the
statutory requirements for an "alien registration card" or
"resident alien card." 8 U.S.C. § 1324a(b)(1)(B)(v). A concern
for fraudulent green card applications is a rational basis for
limiting the card's validity to the interim period while INS
processes and verifies applications.
However, the following statements printed on the back of the
form render it unacceptably misleading:
Warning A nonimmigrant who accepts unauthorized
employment is subject to deportation.
You are authorized to stay in the U.S. only until
the date written on this form. To remain past
this date, without permission from immigration
authorities, is a violation of the law.
Surrender this permit when you leave the U.S.
(boldface in original). This text, which the samples in the
record show as more legible than the "Temporary I-551" stamp,
suggests that the bearer of the card is not a lawful permanent
resident and is authorized for employment for only a limited
period of time. In fact, the date on the card refers only to
the expiration of the "Temporary I-551" and not to any
expiration in the permanent resident's status or entitlement
to remain in the country and work. The Form I-688B, which INS
claims is also given as a substitute card, presents similar
problems as it authorizes the holder only until its expiry
date and declares itself "not evidence of permanent residence
in the United States."