against a CSS class member which were commenced solely because the alien sought admission without advance parole are to be terminated . . . . Any CSS class member held in detention pending exclusion proceedings that began solely because the alien sought admission without advance parole is to be released." Id. at 4-5.
II. The Government's Current Argument
Taking a third bite at the apple, and drawing directly from the IJ and BIA determinations, the government now offers a deceptively simple two-step argument against Fernandes's petition. First, Fernandes failed to obtain advance parole for his trip to India, as required by 8 C.F.R. § 245a.2(m)(1).
Second, because he failed to obtain advance parole, he was properly treated upon his return as an undocumented alien, under 8 U.S.C. § 1182(a)(7)(a)(i)(I).
Since this section requires aliens to prove their admissibility by producing the proper documentation, and since Fernandes was able to produce only an expired work authorization card, he was properly placed in exclusion proceedings. When he was unable at these proceedings to produce satisfactory documentation, he was ordered excluded.
This argument ignores the reality of Fernandes's situation and the language and purposes of IRCA, as well as the import of the CSS orders and the INS's own retreat from the advance parole rule. I will not punish the petitioner for failing to follow the mandate of a twice-invalidated INS regulation, and that agency's willingness to do so strains one's faith in its aptitude for implementing the will of Congress and respecting the rule of law.
First, I reiterate, for the reasons set forth in CSS and in De Oliveira v. INS, 873 F. Supp. 338 (C.D. Cal. 1994), discussed below, that I find the advance parole requirement to be contrary to the will of Congress as expressed in IRCA and therefore to be invalid. Grafting the advance parole rule onto the "brief, casual, and innocent" exception serves an administrative agenda at the expense of congressional intent, causing in the process a substantial and unjustified subrogation of the amnesty program. Nothing in the text of the statute, its legislative history, its clearly stated goals, or in any extrinsic interpretive aids, including the inconsistent and apparently arbitrary interpretation of the INS itself, justifies the promulgation and enforcement of the advance parole rule. By defining a "brief, casual, and innocent" absence as one which it authorizes, the INS has substituted its judgment for Congress's; the advance parole requirement -- whether applied to the CSS or LULAC class -- is nothing more than an end-run around legislative intent, by which the INS reserved for itself, disdaining the statutory scheme, the power to determine which absences were "brief, casual, and innocent" and which were not, and thereby who was entitled to amnesty and who was not. In doing so, it has acted in an unreasonable and arbitrary manner.
Second, I note for the sake of thoroughness that this is not the first time a court in the Second Circuit has invalidated an INS rule promulgated under IRCA. In Perales v. Thornburgh, 967 F.2d 798 (2d Cir. 1992), vacated for other reasons sub nom., Reno v. Perales, 125 L. Ed. 2d 716, 113 S. Ct. 3027 (1993), the Court of Appeals struck down an INS regulation concerning IRCA's "public charge" exception to eligibility.
Similar to CSS and LULAC, the Perales plaintiffs charged that the INS had promulgated rules that unlawfully deprived them of IRCA's promise of amnesty. Essentially, the INS had broadly expanded the scope of inquiry into whether an alien applicant was in danger of becoming a public charge, and therefore ineligible. Whereas Congress had limited its concern to whether "the alien demonstrates a history of employment in the United States evidencing self-support without receipt of public cash assistance," 8 U.S.C. § 1255a(d)(2)(B)(iii), the INS broadened the inquiry to consider whether not only the alien but the alien's family had received any public assistance, see 8 C.F.R. § 245a.1(i) (1992), and whether the alien demonstrated the ability to support his or her family. See 8 C.F.R. § 245a.2(k)(4) (1994). Reviewing the INS's subsequent amendments and clarifications of the challenged rules and noting that the courts do not owe deference to an agency's construction when the text of the statute clearly establishes a contrary congressional intent, the Court of Appeals found that the challenged rules contravened IRCA. See Perales, 967 F.2d at 809-10.
From CSS to LULAC to Perales, the INS's track record in enforcing IRCA has been dismal. In each case, a significant INS rule was struck down by the courts. In each case, before final judgment was rendered, the INS confessed to its poor judgment by issuing new rules, directives, or clarifications to correct or amend its flawed interpretations. Cf. Cardoza-Fonseca, 480 U.S. at 446 n. 30 ("An additional reason for rejecting the INS's request for heightened deference to its position is the inconsistency of the positions the BIA has taken through the years. An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to considerably less deference' than a consistently held agency view.") (citations omitted). In each instance, the INS had simply "added it own requirement to those Congress has established for eligibility for immigrants to obtain legal status." Perales v. Reno, 48 F.3d 1305, 1317 (2d Cir. 1995) (Cardamone, J., dissenting). In this dubious light, I share the frustration of Judge Cardamone, who called the INS "a modern-day counterpart to Dickens' 'Circumlocution Office.' . . . 'beforehand with all public departments in the art of perceiving -- HOW NOT TO DO IT.'" Perales, 48 F.3d at 1317. Certainly, the INS's various interpretations of IRCA did nothing to dispel the perception that "'we historically have told our employees that it's our job to keep [immigrants] out and our job to keep [immigrants] from getting benefits,'" id. (quoting Sandhog & Engelberg, "Insider's View of the INS: 'Cold, Rude and Insensitive,'" N.Y. Times, September 15, 1994, at A1, A18) -- all without regard to the express requirements of the statute.
Fernandes was treated like an undocumented immigrant, rather than an applicant for legalization under IRCA's amnesty program only because he failed -- and not for lack of trying -- to secure prior approval when none was required by Congress when it designed the program. The incoherence of that outcome, and certainly its unfairness, has taken its toll even on the government, which now finds itself in the embarrassing position of both misrepresenting the law and reversing the central assertion of its original argument.
The misrepresentation involves in IRCA's amnesty program, about which the government asserts, "authorization to reenter the United States after travel abroad was not provided for in the statutory scheme." Mem. in Opp. at p. 10. The government then goes on to suggest that it was the INS itself which created the opportunity for departing aliens to reenter the United States, under 8 C.F.R. § 245a.2(m)(1), provided the alien had received prior authorization. Id. at pp. 10-11. This argument forgets the fact that the "brief, casual, and innocent" absence exception is a statutory vehicle, one which implicitly authorizes aliens returning from such absences to be readmitted to the United States without the documentary requirements normally attending reentry. See 8 U.S.C. § 1255(a)(3)(B). Section 245a.2, after all, was an administrative response to this statutory exception.
The government goes on to argue that although the May 1993 CSS Order enjoined the INS from excluding CSS class members returning from unapproved "brief, casual, and innocent" absences, it said nothing about LULAC members. Thus, there was no judicial displacement of the advance parole requirement for a LULAC member such as petitioner. As the government asserts: "in short, in the absence of authority to the contrary, 8 C.F.R. § 245[a].2(m)(1) controls this case." Id. at p. 18. Apparently, the argument behind this assertion is that § 245a.2 does not expressly interpret the "brief, casual, and innocent" exception and thus is not invalidated by the May 1988 CSS Order; that § 245a.2 requires advance parole; that Fernandes did not obtain advance Parole; and that, therefore, he is excludable.
In a later submission, which I requested to enable the parties to respond to a pertinent case decided after this petition was fully briefed, De Oliveira v. INS, 873 F. Supp. 338 (C.D. Cal. 1994), the government abandoned this argument. In its letter-brief on De Oliveira, the government states:
the government's statement in its moving papers that 8 C.F.R. § 245.2(m)(1) -- and its advance parole requirement for IRCA legalization applicants -- "controls" this case is inadvertently misleading. . . . Inasmuch [sic] as Fernandes concedes that he did not file a timely application for IRCA legalization, he has clearly not established "prima eligibility [sic] for temporary resident status," and thus, 8 C.F.R. 25.2(m)(1) does not "control" this case. The holding of the court in De Oliveira invalidating 8 C.F.R. § 245a.2(m)(1) . . . is, therefore, irrelevant.
Government Letter Brief, dated June 21, 1995, at pp. 2-3 n. 3. I am at a loss to explain this reversal or the ground the government hoped to gain thereby, nor am I clear that the footnote means what it says. First, without the advance parole argument, the primary reason for excluding Fernandes is gone. Section 245a.2(m)(1) provided the primary basis for the IJ and BIA decisions. Second, without the advance parole requirement, the only basis to exclude Fernandes is 8 U.S.C. § 1182(a)(7)(a)(i)(I). It simply ignores the facts of this case, as well as (with the exception of this footnote) the entire focus of the parties' papers, to treat Fernandes as if he were simply an undocumented alien seeking entry into the United States for the first time, with no relevant history, no LULAC class membership, no work authorization card, and, most importantly, no outstanding application for legalization. Third, the government goes on in the same letter to argue that Kasbati v. District Director, 805 F. Supp. 619, 622 (N.D. Ill. 1992), is persuasive on this matter. Kasbati, however, by the government's own briefing, is a § 245a.2(m)(1) case. Moreover, the remainder of the letter brief is devoted to arguing against the "brief, casual, and innocent" nature of the petitioner's trip.
As a final note on this point, the government's undeveloped argumentation on the timeliness of Fernandes's legalization application is out of place. For good reason, that issue was never raised by the IJ or BIA. Timeliness bears only on the fate of the application itself, not on the propriety of detaining and excluding Fernandes. To the extent that it is relevant, it is a matter for the Legalization Unit of the INS, not for us today.
In sum, by trading § 245a.2(m)(1) for § 1182(a)(7)(a)(i)(I), the government leaves one sinking ship for another. To exclude Fernandes without consideration of his outstanding legalization application or the reasons for his absence is to inflict the kind of "concrete injury" anticipated by the Supreme Court in Reno v. CSS, supra, when it remanded for a determination of whether plaintiffs' claims were ripe for judicial review.
A. "Front-desking" and Concrete Injury
After upholding the district courts' jurisdiction to hear the CSS and LULAC challenges, the Supreme Court declined to decide whether those courts erred in extending the amnesty program deadline. As discussed above, it did so because plaintiffs had not shown that they were concretely affected by the challenged INS interpretations, rather than by another, unchallenged, INS rule. See Reno v. CSS, 113 S. Ct. at 2496 (discussing, inter alia, Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967)). Concrete injury could only be shown when a qualified, would-be applicant, e.g., one who otherwise met the four general amnesty prerequisites, was denied the opportunity for amnesty through the enforcement of either invalidated interpretation. See Reno v. CSS, 113 S. Ct. at 2495-99. "A plaintiff who sought to rely on the denial of his application to satisfy the ripeness requirement, however, would then still find himself at least temporarily barred by [IRCA'S] exclusive review provision, since he would be seeking 'judicial review of a determination respecting an application.' 8 U.S.C. § 1255a(f)(1)." Id. at 2497. Under IRCA, judicial review can only take place as part of an appeal of a deportation order. 8 U.S.C. § 1255a(f)(4)(A).
The Court noted an exception to IRCA's exclusive review scheme, however. Under INS policy, legalization clerks would review applications before accepting them for filing and reject those which were statutorily defective. This culling came to be called "front-desking," as it occurred at the front desk of legalization units. Id. at 2498. Because IRCA's exclusive review procedures were predicated on the denial of an application through an administrative proceeding, "front-desked" applicants could appeal their prefiling rejection directly to the courts, and would not have those appeals barred by lack of ripeness:
a class member whose application was "front-desked" would have felt the effects of the "advance parole" or "facially valid document" regulation in a particularly concrete matter, for his application for legalization would have been blocked then and there; his challenge to the regulation should not fail for lack of ripeness.
Id.; accord Villarina v. INS, 18 F.3d 765, 767 (9th Cir. 1994) (Wallace, C.J.) (finding an absence of concrete injury and therefore lack of ripeness when IRCA petitioner neither applied for legalization nor demonstrated that he was "front-desked").
Because IRCA requires that a qualified applicant be granted lawful temporary resident status, "front-desking" undermines the purposes of IRCA by turning away aliens who were statutorily entitled to amnesty. See 8 U.S.C. § 1255a(a) ("The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for temporary status if the alien meets the following requirements . . . .") (emphasis added); Reno v. CSS, 113 S. Ct. at 2500 n. 29 ("each CSS or LULAC class member who was front-desked [was] entitled . . . to an adjustment of status"). It was to remedy a similarly unlawful deprivation, including the deprivation of those who may have been dissuaded from even applying for amnesty,
that the CSS and LULAC courts extended the program's deadline. See CSS v. Thornburgh, 956 F.2d at 921-23.
Although Fernandes has been ordered deported and is not restricted to an administrative appeal, the availability of judicial review provides him scant comfort because there is nothing of substance to review regarding his amnesty application. The BIA's denial of Fernandes's application, as part of its order of exclusion, has an effect equivalent to a "front-desking." Having satisfied the statutory requirements established by Congress, Fernandes was nevertheless denied temporary legal residency. Despite repeatedly stating that it lacked the authority to address the merits of the application and refusing to allow petitioner to advance such arguments on the record (EH at pp. 6, 9, 13; IJ Order at p. 3), the IJ quashed Fernandes's amnesty application. By preventing Fernandes from developing on the record the merits of his application, particularly whether he met the continuous physical presence requirement, the IJ preempted any meaningful review of his application.
The Supreme Court has warned against this "front-desking" danger.
Front-desking would also have the further, and untoward, consequence for jurisdictional purposes, for it would effectively exclude an applicant from access even to the limited administrative and judicial review procedures established by [IRCA]. He would have no formal denial to appeal to the Associate Commissioner for Examinations, nor would he have an opportunity to build an administrative record on which judicial review might be based.