The opinion of the court was delivered by: Nickerson, District Judge:
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).
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.
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. ...