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September 27, 1990


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 drivers licenses.

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).

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 their cards.

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 substitute documents.

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 memorandum directs:

  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. Fed.R.Civ.P. 15(b).

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. ...

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