alleges that the procedural safeguards used in obtaining his consent to be brought to the United States were inadequate, and that § 3508 is, therefore, unconstitutional as applied to him. Plaintiff requests relief in the form of a permanent injunction. (Id. P 177.)
Plaintiff's ninth cause of action also is for violation of procedural due process. Here, plaintiff alleges that § 3508 is unconstitutional on its face, or at least as applied to all witnesses from the PRC, because, "the coercive nature of the Chinese criminal justice system precludes the adoption of any [adequate] procedural safeguards." (Id. P 180.) Plaintiff requests a permanent injunction. (Id. P 184.)
Plaintiff's tenth cause of action is for violation of 8 U.S.C. § 1182 and the APA. Section 1182, pursuant to which the Attorney General brought plaintiff to this country, grants to the Attorney General the discretion to parole into the United States "any alien applying for admission to the United States" for "emergent reasons" or "for reasons deemed strictly in the public interest." 8 U.S.C. § 1182(d)(5)(A) (emphasis added). Plaintiff alleges that he did not "apply for admission" to the United States and that the Attorney General's actions violated the express terms of the statute. Plaintiff seeks a permanent injunction. (FAC P 192.)
Plaintiff's eleventh cause of action is a petition for writ of habeas corpus. He alleges that he has a valid asylum application and claims that he "is entitled to a permanent discharge from the threat of being removed from the jurisdiction of the United States or being released to the custody of [the PRC] or any representative of" the PRC. (Id. P 200.) As noted above, the Ninth Circuit specifically directed this Court to dismiss this cause of action, and this the Court does in this Memorandum Decision and Order.
Plaintiff's twelfth cause of action is for violation of the law of nations and international law. Once again, plaintiff seeks a permanent injunction barring his return to the PRC or to representatives of that country. (Id. P 208.)
Before turning to the Ninth Circuit's opinion, it will be helpful to canvas briefly the grounds for this Court's initial Opinion and Order. Plaintiff moved for summary judgment on his Eleventh Cause of Action (habeas corpus) and defendants countermoved to dismiss plaintiff's FAC in its entirety.
This Court granted plaintiff's motion for summary judgment on the Eleventh Cause of Action for several reasons. First, the Court found on point a line of cases from the Second Circuit that hold that where an alien has not "entered" the United States (i.e., if he has not come to the United States as an applicant for admission), and if he is willing to depart to a third country, that he should be given the right to depart voluntarily. United States ex rel. Bardley v. Watkins, 163 F.2d 328 (2d Cir. 1947). Thus, the Court agreed with plaintiff's argument that the INS had no jurisdiction over plaintiff's case. Second, the Court accepted plaintiff's argument that defendants had a duty to protect him from harm because of his position as a government witness. Crain v. Krehbiel, 443 F. Supp. 202 (N.D. Cal. 1977).
In arriving at its decision, this Court rejected defendants' argument that the Court was without jurisdiction because of plaintiff's failure to exhaust his administrative remedies. The Court found inapplicable 8 U.S.C. § 1105a(c), the Immigration and Nationality Act ("INA") exhaustion provision, because plaintiff was challenging the INS's authority over him, as opposed to an "order of deportation or exclusion." 8 U.S.C. § 1105a(c). The Court specifically found: (1) that the administrative remedies available to plaintiff would be "inadequate or not efficacious" because he was challenging the very adequacy of the administrative hearing, and because of the long delay on the INS's part in processing plaintiff's application; (2) that the Court did not owe the INS great deference because no "especially sensitive political functions" were at issue; and (3) that defendants' ripeness objections were without merit.
Finally, this Court held that an independent and alternative ground supported its decision, namely, the Court's "inherent supervisory powers to protect witnesses appearing before it."
The Ninth Circuit reversed and remanded with instructions to dismiss plaintiff's Eleventh Cause of Action. It specifically disagreed with this Court's conclusion that because plaintiff was contesting the INS authority, he was not required to exhaust his administrative remedies: "Even when an alien is not, strictly speaking, seeking to attack a final order of exclusion, judicial review is precluded if the alien has failed to avail himself of all administrative remedies, one of which is the exclusion hearing itself." Wang Zong Xiao, 979 F.2d at 153.
The Ninth Circuit framed the issue before it as "whether the question of the INS' jurisdiction is appropriately decided in the first instance by the INS, or whether it is an issue beyond the authority of the INS to resolve and remedy." Id. at 154. The court agreed with defendants "that the INS should be accorded the opportunity to determine its own jurisdiction." Id. The court found that plaintiff's argument against INS jurisdiction (that the INS lacks authority over aliens who physically enter, but do not wish to be admitted to, the United States) was statutorily, and not constitutionally, based. Id. at 155. Finally, the Ninth Circuit rejected this Court's alternative basis for its decision (the Court's supervisory power to protect its witnesses):
Given the statutory mandate requiring exhaustion, and the availability of habeas corpus relief from any final order of exclusion, the district court should have accorded the executive proceedings due respect, and consequently should have refrained from exercising jurisdiction. This is not a case where the administrative proceedings are not equipped to provide [plaintiff] with the remedies he seeks. In fact, it is within the province of the Immigration Judge and the Board of Immigration Appeals to consider the need to protect [plaintiff], and either to grant him asylum or stay his deportation.
Id. at 156.
Defendants argue that three principles from the Ninth Circuit's opinion support their motion to dismiss the entire FAC. First, the Ninth Circuit determined that plaintiff has an adequate remedy at law: the administrative courts are equipped to provide plaintiff the remedy he seeks, which is the prevention of his return to the PRC. Second, that the habeas corpus proceedings, to which plaintiff is entitled if he loses in the administrative forum, are adequate to permit this Court to protect plaintiff from "abuses, oppression, and injustice." Defendants devote little time to these two arguments; accordingly, they are not explored in detail here.
Defendants third argument (and the one to which they direct most of their attention) is based upon the following sentence from the Ninth Circuit's opinion: "Given the statutory mandate requiring exhaustion, and the availability of habeas corpus relief from any final order of exclusion, the district court should have accorded the executive proceedings due respect, and consequently should have refrained from exercising jurisdiction." Id. (emphasis added). From this statement, defendants reason that not only must this Court allow the immigration proceedings to continue, "but also that the Court is deprived of any concurrent or 'collateral' jurisdiction over [plaintiff's] other claims." (Mem. of P. & A. at 6:4-6 (emphasis added).)
This sweeping assertion goes to the very heart of this Court's authority to consider plaintiff's claims. In support of it, defendants cite Heckler v. Ringer, 466 U.S. 602, 80 L. Ed. 2d 622, 104 S. Ct. 2013 (1984), which involved a district court's jurisdiction to consider complaints filed by several individuals displeased with an administrative ruling by the Secretary of Health and Human Services ("Secretary"). There, the Secretary, unhappy with the decisions of a number of administrative law judges that a certain surgical procedure was compensable under the Medicare Act, issued a ruling that no payment was to be made for that procedure. The plaintiffs, who had undergone the surgical procedure and wanted to be reimbursed, filed suit in the district court without going through the administrative process to compel.
The Supreme Court held that plaintiffs' suit was barred because they had failed to exhaust their administrative remedies. In reaching this conclusion, the Court rejected plaintiffs' argument that because they were attacking the procedure by which the Secretary determined their entitlement to benefits (as opposed to her substantive determination that the medical procedure was not compensable), exhaustion of administrative remedies was not required, and the district court had jurisdiction under the general federal question statute, 28 U.S.C. § 1331. See Heckler, 466 U.S. at 614.
The Court noted that exhaustion was not an absolute requirement, but held that the exhaustion requirement would be excused only where a claim was "wholly collateral" to a claim for benefits under the Medicare Act. Id. at 618.
Defendants' claim that Heckler supports their argument, is, as follows: plaintiff's desired relief is a ruling that he is not to be returned to the PRC, and the relief plaintiff seeks is not "wholly collateral" to the relief he can obtain in the asylum proceeding; plaintiff can obtain that relief in the asylum proceedings, 8 U.S.C. § 1158; Congress has established an administrative process for the determination of asylum claims, a process that is analogous to the one at issue in Heckler; and exhaustion of administrative remedies is a condition precedent to judicial review under the INA, id. § 1105a(c), just as it is under the Medicare Act. See 42 U.S.C. § 405(g)-(h). Consequently, defendants argue, plaintiff must take his claims, in the first instance, to the administrative process, and when his case has been resolved in that forum, he will have the benefit of judicial review (in the form of a habeas corpus proceeding) pursuant to 8 U.S.C. § 1105a(c).
Plaintiff argues that whereas in Heckler, the administrative forum was capable of giving the plaintiffs everything they wanted (namely, reimbursement for the cost of the surgical procedure), here, the most that the administrative proceedings can give to plaintiff is a grant of asylum, which, he argues, is inadequate.
Asylum is inadequate, according to plaintiff, because it can be revoked: "Asylum granted under subsection (a) . . . may be terminated if the Attorney General . . . determines that the alien is no longer a refugee within the meaning of [the INA] owing to a change in circumstances in the alien's country of nationality . . . ." Id. § 1158(b). The Attorney General also may revoke a grant of asylum if the alien commits a serious crime or is found to have committed fraud on his asylum application. 8 C.F.R. § 208.24. Thus, plaintiff argues, the relief he seeks ("permanent" injunctive relief) is so different from the relief that he can obtain via asylum proceedings (a "temporary" grant of asylum), that the exhaustion rationale of Heckler should not apply.
Defendants claim that this Court cannot give plaintiff the relief he seeks, citing INS v. Pangilinan, 486 U.S. 875, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988), in which the Supreme Court reversed the Ninth Circuit's decision to confer naturalization upon Filipino nationals as an equitable remedy for asserted constitutional and statutory violations. With respect to the plaintiffs' statutory claims, the Court held that "neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of" limitations set by Congress. Id. at 885. According to defendants, this holding eliminates the possibility that this Court will be able to give plaintiff the relief he seeks (permanent injunctive relief). Thus, defendants' argument continues, the relief available from the immigration court (grant of asylum) is at least as favorable (if not more so) than the relief this Court has the authority to grant plaintiff.
Defendants' argument on this point is squarely foreclosed by Ninth Circuit cases decided subsequent to Pangilinan. The Ninth Circuit has held that the passage from Pangilinan cited by defendants speaks only to the federal courts' authority to remedy statutory violations vis-a-vis an equitable grant of naturalization. In contrast, the Ninth Circuit has held that the courts' power to remedy constitutional violations is unaffected by Pangilinan: "The Court's holding precludes the judiciary from exercising its statutory powers of naturalization to redress statutory violations except in strict conformity with Congress' authorizing legislation. It does not speak to the courts' capacity to utilize traditional constitutional remedies to rectify constitutional violations." Wauchope v. United States Dep't of State, No. 91-15482, 985 F.2d 1407, 1993 U.S. App. LEXIS 2284, at *30 (9th Cir. Feb. 16, 1993); see also Ortega v. United States, 861 F.2d 600, 603 (9th Cir. 1988) ("Absent a showing of . . . a constitutional violation, [a] district court has no authority to . . . grant [a] naturalization petition pursuant to its powers of equity.").
plaintiff alleges constitutional violations in his third, eighth, and ninth causes of action. Plaintiff's requested remedy for each of those violations is the permanent injunctive relief that defendants insist this Court is powerless to provide under Pangilinan. The Ninth Circuit has spoken clearly to this issue. Under Wauchope and Ortega, this Court must reject defendants' argument and deny their motion to dismiss plaintiff's entire FAC.
For all of the foregoing reasons,
IT IS HEREBY ORDERED that:
1. Plaintiff's Eleventh Cause of Action is DISMISSED.
2. Defendants' motion to dismiss the remaining causes of action included in plaintiff's First Amended Complaint is DENIED.
Dated: March 2, 1993.
William H. Orrick
United States District Judge