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March 29, 1996


The opinion of the court was delivered by: SCHWARTZ


 The above-referenced consolidated action is before the Court on defendant's motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, or, in the alternative, for summary judgment, and plaintiffs' cross-motion for summary judgment. For the reasons stated herein, defendant's motion is denied and plaintiff's cross-motion is granted to the extent set forth below.


 Plaintiffs are more than 400 illegal aliens from India or Pakistan who challenge the defendant's adjudication of their applications for Special Agricultural Worker status under the Immigration Reform and Control Act of 1986 (the "Act" or "IRCA") *fn1" as being violative of the Act and of the Due Process clause of the Fifth Amendment to the United States Constitution.

 The Act established, inter alia, the Special Agricultural Worker (SAW) amnesty program in recognition of the "special labor needs of Western growers of perishable commodities." H.R. Rep. No. 682(I), 99th Cong., 2d Sess. 50, reprinted in 1986 U.S.C.C.A.N. 5649, 5654. The SAW program required the Attorney General to adjust the status of any alien farmworker who could establish (1) his or her admissibility in the United States as an immigrant and (2) that he or she had resided in the United States and performed at least 90 days of qualifying agricultural work during the 12-month period prior to May 1, 1986. The Act directed the Attorney General to adjust the status of these aliens first to that of special agricultural workers lawfully admitted for temporary residence and then to aliens lawfully admitted for permanent residence. See 8 U.S.C. § 1160 (a)(2).

 Aliens seeking SAW status were required to file an application, supporting documents and a fee with either an Immigration and Naturalization Service ("INS") legalization office ("LO") or a "qualified designated entity" ("QDE"), which, under the Act, included "qualified voluntary organizations and other qualified State, local community, farm labor organizations, and associations of agricultural employers." 8 U.S.C. § 1160(b)(2). Upon the submission of an application and fee, the applicant was ordinarily issued employment authorization, which was in effect until final action on the application was completed. See 8 U.S.C. § 1160(d)(2)(B).

 Regulations adopted by the INS to administer the program provide for a personal interview of each applicant at an LO. See 8 C.F.R. § 210.2(c)(2)(iv) (1990). Under the Act, the applicant has the burden of proving, by a preponderance of the evidence, that he or she worked the requisite 90 days of qualifying agricultural labor. See 8 U.S.C. § 1160(b)(3)(B). If the LO examiner suspected that the application was fraudulent, he or she was expected to specify the level of suspicion of fraud on a scale of 1 to 5. Following the interview, the examiner would make a recommendation of approval or denial to an INS Regional Processing Facility ("RPF"), which reviewed the file and issued a decision. See 8 C.F.R. § 210.1(q). If the RPF intended to deny the application, a notice of intent to deny was sent to the applicant, who then had 30 days to submit further evidence in support of his or her application. If the final decision was a denial, the applicant was notified and advised of the right to appeal. On appeal, the applicant could submit "such additional or newly discovered evidence as may not have been available at the time of the determination" of the RPF. 8 U.S.C § 1160(e)(2)(B). The appeal was reviewed first by the RPF. If the RPF determined that its original decision was correct, it forwarded the file to the Legalization Appeals Unit ("LAU") for a final written decision.

 The Act mandates criminal penalties for making a fraudulent statement or supplying a fraudulent writing or document in connection with the filing of a SAW application. 8 U.S.C. § 1160(b)(7). Any person convicted of such a crime may be fined, imprisoned for up to five years, or both. Aliens convicted of fraud under the Act are excludable from the United States. Id.

 Plaintiffs applied for SAW status, but their applications were ultimately denied by the LAU. They make the following claims regarding defendant's administration of the SAW program: (1) plaintiffs' applications were routinely denied because proof of their employment was based on documents provided by farm employers who were on an INS blacklist of persons either suspected or convicted of fraud in connection with SAW applications, with no showing that fraudulent documents were supplied to the individual applicant in question; (2) the INS unlawfully classified plaintiffs by their ethnic group identification within the Indian and Pakistani communities and recommended denial of applications on the basis of membership in ethnic groups predetermined to be suspected of fraud; (3) plaintiffs were not provided with competent interpreters at their LO interviews; (4) plaintiffs were not permitted to confront and cross-examine defendant's witnesses or to inspect the adverse evidence considered by defendant in denying their applications; and (5) the INS did not make any transcripts or recordings of the LO interviews, making it impossible to challenge defendant's accounts of the interviews in a meaningful way.


 I. Subject Matter Jurisdiction

 Defendant moves to dismiss the complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Federal question jurisdiction would ordinarily cover the statutory and constitutional claims before the Court. See Perales v. Thornburgh, 967 F.2d 798, 805 (2d Cir. 1992). However, defendant argues that the Act's judicial review provisions are exclusive and deprive the Court of jurisdiction in this case. The Act provides for limited judicial review of the administrative denial of a SAW application, such that:

(e)(1) There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
. . .
(e)(3)(A) There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under section 1105a of this title.

 8 U.S.C. § 1160(e)(1), (3)(A).

 However, in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991), an action brought to challenge the INS's procedures in administering the SAW program, the Supreme Court held that district courts have jurisdiction to hear constitutional and statutory challenges to INS procedures. Id., 498 U.S. at 484, 111 S. Ct. at 892; see also Rahim v. McNary, 24 F.3d 440, 442 (2d Cir. 1994) ("The district court properly exercised subject matter jurisdiction over the consolidated complaints on the ground that IRCA's limitation on judicial review does not preclude review of a challenge to the procedures used by the INS in implementing the statute"); Jean v. Nelson, 727 F.2d 957, 980 (11th Cir. 1984) (en banc), aff'd on other grounds, 472 U.S. 846, 86 L. Ed. 2d 664, 105 S. Ct. 2992 (1985) (district court had jurisdiction over suit which alleged "widespread abuses by immigration officials" as pattern or practice violating the Refugee Act); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. Unit B 1982) ("insofar as the first three counts set forth matters alleged to be part of a pattern and practice by immigration officials to violate the constitutional rights of a class of aliens they constitute wrongs which are independently cognizable in the district court under its federal question jurisdiction"); compare Ahmed v. Meissner, 896 F. Supp. 138, 141, n. 5 (S.D.N.Y. 1995) (jurisdiction is lacking where each plaintiff contends that the INS made specific errors in adducing and weighing the evidence set forth in his individual application"). *fn2"

 Thus, the question presented by defendant's motion is whether plaintiffs allege "a pattern or practice of procedural due process violations," McNary, 498 U.S. at 483, 111 S. Ct. at 892, by the INS in its administration of the SAW program, or, as defendant contends, plaintiffs' claims amount to a challenge of the INS's denials of their applications on their merits. The distinction the Court must draw is "one between the authority of a court of appeals to pass upon the merits of an individual deportation order and any action in the deportation proceeding to the extent it may affect the merits determination, on the one hand, and, on the other, the authority of a district court to wield its equitable powers when a wholesale, carefully orchestrated, program of constitutional violations is alleged." Haitian Refugee Center v. Smith, 676 F.2d at 1033.

 In McNary, the plaintiffs alleged, inter alia, that the INS (1) imposed an unlawful burden of proof in cases of suspected fraud, by requiring applicants to produce corroborating evidence in addition to affidavits to prove the performance of the requisite 90 days of employment; (2) issued notices of denial which failed to state the specific reasons for denial and provided incorrect information for purposes of appeal; and (3) imposed an interview procedure which violated the applicants' Fifth Amendment right to due process by failing to provide interpreters, failing to allow the applicants to rebut adverse evidence, and refusing to allow the applicants to present witnesses on their own behalf. Haitian Refugee Center, Inc. v. Nelson, 694 F. Supp. 864, 866 (S.D. Fla. 1988), aff'd, 872 F.2d 1555 (11th Cir. 1989), aff'd, McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991). The district court found that these claims were beyond the scope of administrative review, as they attacked the manner in which the entire program was being implemented, and that "to deny jurisdiction would be to allow illegal agency action to go unchallenged." Id., 694 F. Supp. at 873-74. The Supreme Court agreed that the plaintiffs' claims amounted to allegations of a "pattern or practice of procedural due process violations," over which the district court had properly exercised jurisdiction. McNary, 498 U.S. at 483, 111 S. Ct. at 892.

 Plaintiffs' allegations in this case are similar to those made in McNary, and this action, in essence, follows up on certain issues raised in that case. In McNary the district court ordered that the plaintiffs, who were unaware of the adverse evidence against their applications, be given an opportunity to examine the evidence, rebut it and offer additional evidence prior to a determination of their applications. Haitian Refugee Center, Inc. v. Nelson, 694 F. Supp. at 880. Here, plaintiffs claim that they have not been given the opportunity to examine the adverse evidence, and even though they were permitted to offer additional evidence to counter the INS's finding of suspected fraud, the presumption raised by the INS's finding was virtually irrebuttable. Further, the district court in McNary ordered that "the Legalization Offices shall maintain competent translators, at a minimum, in Spanish and Haitian Creole, and translators in other languages shall be made available if necessary." Id., 694 F. Supp. at 881. The Eleventh Circuit, in affirming this portion of the district court's order, stated that the provision was "properly tailored to meet the requirements of due process," but that the "if necessary" phrase did "not mean that interpreters in other languages shall automatically be required, absent court order, in the case of an [sic] non-English speaking applicant who speaks neither Spanish nor Haitian Creole." Haitian Refugee Center, Inc. v. Nelson, 872 F.2d at 1562, n. 13. Plaintiffs in this action allege that they were not provided with interpreters who could speak their native languages *fn3" and assert that aliens applying for SAW status have a due process right to be heard "in a meaningful manner." Goldberg v. Kelly, 397 U.S. 254, 267, 90 S. Ct. 1011, 1020, 25 L. Ed. 2d 287 (1970). In addition, plaintiffs make the very serious allegation that, in denying their applications, the INS employed a profile of suspected fraud based on membership in an ethnic group.

 Defendant argues that plaintiffs "list approximately 51 different categories in which their applications were denied, and assert chiefly different claims regarding each category rather than a pattern and practice." Defendant's Mem. of L. at 14. The different "categories" to which defendant refers, however, relate mainly to the various employers for whom plaintiffs claim to have worked. However, there is no meaningful distinction to be made, for example, between the 64 plaintiffs who claim that their applications were summarily denied because their putative employer was convicted of supplying one fraudulent document to a SAW applicant, and the 54 plaintiffs who claim that they were denied SAW status because a different alleged employer pled guilty to providing fraudulent documentation to applicants other than those plaintiffs. That the alleged employers are different people, and the fact patterns relating to each employer vary somewhat, is of no import. The plaintiffs in each of defendant's "categories" claim, inter alia, that their applications were improperly denied because of suspected fraud, even though the INS had no specific evidence of fraud in their individual cases. Thus, regardless of the fact that plaintiffs do not share one employer and one fact pattern in common, they make the same substantive claim against the INS; to group their claims into artificial categories would elevate form over substance.

 Defendant points to Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S. Ct. 2485, 125 L. Ed. 2d 38 (1993), as authority for the proposition that the jurisdictional provision of the Act, which precludes judicial review of "a determination respecting an application," also precludes judicial review of challenges that merely refer to or rely on the denial of any individual application. Since plaintiffs refer the Court to documents in their application files as evidence of procedures violative of due process, defendant asserts that the procedural nature of their claims is only so much window-dressing for claims which seek to resolve the ultimate merits of their applications. In Catholic Social Services, Inc., the Supreme Court reaffirmed its holding in McNary, stating

We said that the reference to "a determination" describes a single act rather than a group of decisions or a practice or procedure employed in making decisions. . . . We therefore decided that the language setting the limits of the jurisdictional bar describes the denial of an individual application and thus applies only to review of denials of individual applications. The INS gives us no reason to reverse course, and we reject its argument that § 1255a(f)(1) precludes district court jurisdiction over an action challenging the legality of a regulation without referring to or relying on the denial of any individual application.

 Plaintiffs are not asking this Court to review their individual applications or to hear their testimony for the purpose of determining, on the merits, whether or not they are entitled to SAW status. Rather, plaintiffs challenge the patterns and practices utilized by defendant in its review process and request that the Court order defendant to readjudicate their cases employing constitutionally proper procedures that are consistent with the Act. See Perales v. Thornburgh, 967 F.2d at 807 ("even if we grant relief in this case, plaintiffs' success on the merits of their applications does not follow as a matter of course").

 Defendant also argues that plaintiffs' claim regarding the INS's failure to provide competent interpreters is not justiciable because plaintiffs did not raise this issue before the LO, the RPF and the LAU, thereby failing to exhaust their administrative remedies. Defendant concedes that due process claims are generally exempt from the exhaustion requirement because the agency does not have jurisdiction to adjudicate them, see Bagues-Valles v. I.N.S., 779 F.2d 483, 484 (9th Cir. 1985), but argues that where such a claim involves a procedural error correctable by the administrative tribunal, it must be presented and exhausted. See Vargas v. I.N.S., 831 F.2d 906, 908 (9th Cir. 1987). Plaintiffs respond that the INS's failure to provide them with competent interpreters was not a procedural error, but an unconstitutional practice, and, in any event, administrative review would be futile.

 In general, claims not raised in the administrative proceedings in question may be dismissed for failure to exhaust administrative remedies. Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990). The justiciability doctrine is designed

to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

 Abbott Labs., Inc. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967). However, this requirement is excused under certain circumstances, including where administrative review would be futile, see Honig v. Doe, 484 U.S. 305, 327, 108 S. Ct. 592, 606, 98 L. Ed. 2d 686 (1988), and where administrative action will not resolve the merits of the claim, as in a constitutional attack on administrative procedures. Public Utilities Commission v. United States, 355 U.S. 534, 539-40, 78 S. Ct. 446, 450-51, 2 L. Ed. 2d 470 (1958).

 The Eleventh Circuit addressed justiciability with regard to the plaintiffs' claims in McNary. The Court first found that the statutory requirement of exhaustion was inapplicable *fn5" because the plaintiffs did not seek substantive review of any individual ruling respecting their status, but challenged the adequacy of the procedures employed by the INS in administering the SAW program. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d at 1561. Turning to the judicially-created exhaustion doctrine, the Court stated,

 Id., 872 F.2d at 1561 (citations omitted).

 We find this reasoning persuasive. Plaintiffs' claim that they were not provided with competent interpreters amounts to a constitutional attack. Defendant's assertion that the failure to provide competent interpreters was merely a procedural error is belied by the fact that the same "error" allegedly occurred in hundreds of cases. Moreover, defendant also takes the position that aliens applying for SAW status have no statutory or due process right to competent interpreters, demonstrating the futility of administrative review. See El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 747 (9th Cir. 1991) ("where the agency's position on the question at issue appears already set, and it is very likely what the result of recourse to administrative remedies would be, such recourse would be futile and is not required"). Finally, even if the Court applies the analysis articulated by the Supreme Court in Abbot Labs., supra, disregarding the exceptions to the justiciability doctrine, defendant does not prevail: the issue is fit for judicial decision, for it is of a legal, not factual, nature, and the plaintiffs would endure significant hardship were the Court to refuse to consider their claim. Id., 387 U.S. at 149, 87 S. Ct. at 1515.

 Accordingly, the Court finds that it has jurisdiction over all the claims asserted in this action, and defendant's motion to dismiss for lack of subject matter jurisdiction is denied.

 II. The INS's Adjudication of the SAW Program

 Defendant moves to dismiss the complaint for failure to state a claim or, in the alternative, for summary judgment. Plaintiff cross-moves for summary judgment. Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, and all inferences and ambiguities are resolved in favor of the party against whom summary judgment is sought. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994) (citations omitted).

 a. Did the INS Employ an Improper Procedure in Denying Plaintiffs' Applications Based on Employer Fraud?

 Plaintiffs assert that the INS routinely denied any application which claimed employment for a suspect employer, notwithstanding any additional evidence that was submitted or the fact that there was no direct evidence of fraud in their particular applications. The INS contends that it properly relied on evidence such as the conviction records of alleged employers who had pleaded guilty to supplying fraudulent documents in other instances and who had ...

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