*1 al., RANDALL, et Margaret J.
Appellants, MEESE, III, Attorney
Edwin
General, et al.
Nо. 87-5230. Appeals, Court United States Ratner, Cole, whom Michael David District of Columbia Circuit. Rockier, M. Lewin and Cynthia Walter J. Argued Feb. 1988. D.C., Washington, were Maggio, Michael Aug. Decided appellants. on the brief for Martinez, Atty., Asst. U.S.
Michael L. diGenova, E. U.S. Joseph with whom Craig and R. Law Atty.,* John D. Bates D.C., Washington, rence, Attys., Asst. U.S. Michael J. appellees. on the brief were Lamberth,* Asst. U.S. Ryan Royce C. D.C., ap also entered Washington, Attys., appellees. pearances for D.C., Franke, Washington, H. Ann American curiae for amicus brief Professors, urg- al. University et Ass’n of ing reversal. MIKVA, RUTH BADER
Before SILBERMAN, Circuit GINSBURG Judges. court for the filed
Opinion BADER Judge RUTH Circuit GINSBURG. filed Circuit
Dissenting opinion Judge MIKVA. GINSBURG, Circuit
RUTH BADER Judge: Margaret Randall is J.
Plaintiff-appellant born photographer; noted writer coun- in this in 1936 and raised New York citizenship States United try, she lost her allegiance to she declared 1966 when are parents citizens Mexico. Her 1947, in Albu- residing, since United States Mexico; children her four querque, New citizens. also are United immigration of her seeks so permanent resident of a status to that United States may again become a filed. * Attime brief was
473 Act, Pub. Authorization eign denied that Relations so far been has citizen. She 1399, 100-204, 901(a), 101 Stat. Immigration and Naturaliza- L.No. by the § relief Service). (INS Immigration (1987).2 or 1399-1400 tion Service prema- to court is that her resort We hold in a time óf case is set thus Randall’s district ture, affirm the therefore and we government opposed The once transition. complaint. dismissing her judgment court’s residency permanent on her for application dismissal, is without emphasize, we The the writings ground the that advocated Randall’s to eventual renewal prejudice there- communism and doctrines of world circuit, including her claims, proper ain under section her excludable fore made adjust- should be that her status contention currently 1182(a)(28). ground That date the ed as of October v. to the See Allende available executive. application. director denied Cir.1988). (1st Shultz, 1111, F.2d 1121 845 large appears question It therefore that I.IntROduction Margaret initially raised —whether pleas for authoriza- citizenship regain States could United —is perma- in the States to remain United tion can question now reduced —when 1984; Immigration nently commenced it.3 regain then (McCarran-Walter) prescriptions Act1 comprehensible the conundrum To render branch, if executive in effect authorized appeal presents, we first describe met, to exclude aliens specified terms are regulatory complex statutory and relevant U.S.C. 8 ideological grounds. See on then applications, and status to (1982) (rendering excludable 1182(a)(28) § procedural significant facts and set out or anar- believe communism aliens who in Randall’s case. history doctrines, or be- chism, about those write promotes organization long to an doctrines); Shapiro, Id- generally see
those
Regime
Adjustment
II. The
of Status
Closing the Border
Exclusions:
eological
1935,
statute nor adminis
neither
Before
Dissidents, 100 Harv.L.Rev.
Political
to
permitted adjustment
practice
trative
States,
(1987).
the United
The law of
930
already in
United
an alien
1988, has
Congress for
as ordered
from
reclassification
States;
to achieve
deny a
impermissible
changed. It is now
sta
permanent resident
nonimmigrant to
resi-
application for
or
visa
an
and,
country
tus,
had to leave
alien
current,
past,
any
“because of
dent status
course, apply to United
ordinary
a
in the
beliefs, statements, or associa-
expected
or
immi
abroad
consular officer
which,
by a United
engaged
if
tions
202(a) (1934);
8
visa.
U.S.C.
States,
§
would
United
States citizen
(5th
1212, 1214
Shultz,
F.2d
817
For- Centeno
protected under the Constitution.”
1988),
Act,
proscriptions
section
would render the
Nationality
Immigration
1.
Pub.L.No.
Immigration
901(a)
(current
permanent part of the
414,
(1952)
at 8
version
163
66 Stat.
comprehensive amend-
Nationality
through
(1982)).
Act
1101
U.S.C.
excluding
deport-
grounds
ment
ing
901(a)
tempo-
aliens.
are
proscriptions of section
2. they
rary;
apply
Martinez, repre-
argument,
L.
Michael
3.At oral
during
(1) applications for visas submitted
government,
senting
said:
1988;
on section 901
(cid:127) based
(cid:127)
(cid:127)
believe[
31,
[W]e
1
(2)
sought after December
admissions
ap-
repealed
Congress
ha[s]
law
new
1989;
1,
and before March
(G)
(28)]
[1182(a)
plication of sections
(3)
activities occur-
deportations
based
deportation
(v)
(G)
persоns whose
...
[
deportation
1
during
which
ring
1988
during
1988
pending
were
proceedings
judicial
(including
review
proceedings
applies to
face
that on its
we believe that
...
pending at
proceeding) are
respect
to such
case_The
de-
INS
Mrs. [sic]
during
1988.
time
of the [Board
within
context
cided
Foreign
Relations Authorization
PubL.No.
they
will not
Appeals]
[sic]
100-204,
901(d),
101 Stat.
in [de-
[Randall]
901 to
oppose
bill,
Cong., 2d
pending
H.R.
100th
A
proceedings.
portation]
Sess.,
(daily
Apr.
ed.
H2171
Cong.Rec.
—
denied,
Cir.1987),
-,
cert.
persuade
U.S.
therefore burden is on alien
(1988) (adhering
petitioner, but A. Director’s October The District 1105a(a)(2). 8 U.S.C. § cuit[.]” 1985 Decision note, pause to Immigration The we Background III. Facts Procedural of aliens “ineli- thirty-three classes sets out visas”; persons falling gible to receive Randall left the United States Appellant subclasses) are, (or in within those classes until continued to reside abroad in 1961 and words, from admission Act’s “excluded first in Mexico and became 1984. She lived 8 U.S.C. the United States.” into country; in she a citizen of that 1182(a). director in El The INS district § 1980, Nicaragua. in to Cuba and moved Paso, functioning as the Gener- and traveled During years she resided 245.2, ruled delegate, 8 C.F.R. al’s see States, experienced the United outside March 1984 sta- on Randall’s October 1985 change and revolu- about social and wrote Looking to adjustment application. tus nations. Randall stud- in third world tion identi- 1182(a), director section problems position particularly ied only one of his attention fied as the focus Returning to countries. of women those category: from admission” “excluded a visitor’s visa States on the United or cause publish, or Aliens who write application for she filed an January or who know- published, or la- to be written two months residеnt status distribute, dis- circulate, print, or ingly living, her since Randall has been ter. circulated, knowingly cause to be Mexico; play, or her return, Albuquerque, New or dis- distributed, printed, published, is close to that of now residence there in their knowingly have played, or who employment gained elderly parents. She circulation, purpose possession for University of New at the professor as a distribution, display, or publication, Mexico, Department of serving in the "children, 1151(b), spouses, U.S.C. petition 4. A citizen file can parents the United States" of a citizen of rela- immigration of his "immediate definition, qualify relative” status. for "immediate Act’s tive." Under the matter, printed advocating written or trative decisions All of these omitted.] economic, (v) teaching decisions, others, ... interna- point out tional, governmental doctrines of though applicant appears even to be world communism or the establishment statutorily eligible for the benefits under of a totalitarian dic- the United States 1255], of an is a [§ tatorship^] matter of discretion and administrative 1182(a)(28)(G)(v).5 grace. 8 U.S.C. § reported that five of The district director The district director appli- denied Randall’s exam- Randall’s books been concluding cation with this comment: 1182(a)(28)(G)(v). light ined in of subsection applicant record is self-evi- examination, en- the district director That dent. She has failed to show that she is quo- through illustrative deavored to show clearly beyond a reasonable doubt tations, exuberant revealed entitled to the benefits for which she has Revo- praise and the Cuban of Fidel Castro applied. writings Her activities and lution, for the “Vietnamese applause past 20 nearly years speak for them- victory,” her condemnation of Unit- writings go beyond selves. Her far mere up, the district di- Summing ed States. dissent, with, disagreement or criticism that, although Randall had rector stated *5 policies. of the United States or its Her Par- membership in the Communist denied with, and her associations activities and ty, writings support in of the communist do- admission, [b]y has made her own [she] Cuba, governments minated of North Vi- speeches Party. for The Communist [sic] etnam, Nicaragua; advocacy and and her the doctrines of com- Her books advocate support revolutionary activity and of support munism and the Communist Mexico, as well as her affiliation with Cuba, governments of Vietnam and Nica- participation Party ac- Communist ragua to 1981. from 1966 tivities, applica- the her warrant denial of However, director did not the district adjustment tion for of status as a matter starting line. He did not then return to his of discretion. answer, restate, question time the and this granted privilege The director Randall the
whether, meaning of 8 U.S.C. within departing voluntarily from the United of 1182(a)(28)(G)(v), published Randall had § by October 1985.6 economic, writings advocating “the interna- tional, governmentаl doctrines of world Immigration Judge’s August B. The Instead, communism.” he said: 1986 Decision Benefits under U.S.C. are dis- [8 § 1255] 7, 1985, On November one week after cretionary. deci- There are numerous depart voluntarily Randall’s time to had relating discretionary to the author-
sions
expired,
Immigration
Service issued
adjudi-
ity
General
why
order to show cause
she should not be
applications
of
cation of
deported.
part
string
of adminis-
8 C.F.R. 242.1. As
status.
See
[Citations
any
regard-
Although
party,
set out
sors of
such association or
the District Director
1182(a)(28)(G),
group
organization
the tenor of his deci-
what name
subsection
less of
such
or
used,
bear,
suggests
may
may
may
he also had in mind another
sion
have
now
or
hereaf-
category:
"excluded from admission”
adopt[.]
ter
1182(a)(28)(C).
U.S.C. §
or affiliated with
Aliens who are members
States,
(i)
Party
the Communist
of the United
deportable
may
permis-
6. A
alien
be accorded
(ii) any
party of the United
other totalitarian
1252(b).
depart voluntarily.
sion
8 U.S.C. §
States, (iii)
Political Associa-
the Communist
avoiding
stigma
compulso-
addition to
In
tion, (iv)
any
the Communist or
other totali-
ry expulsion,
granted
privilege
an alien
States,
party
any
tarian
State of the United
subject
felony prosecution that de-
state,
not
to the
any foreign
any political
or
of
geographical
or
permis-
state,
ported aliens face who return without
any foreign
subdivision of
section,
branch, affiliate,
years
deportatiоn.
(v)
any
subsidiary,
sion within five
of their
voluntarily
par-
alien
de-
8 U.S.C. 1326. An
who
or subdivision of
such association or
(vi)
ty,
predecessors
parts
the direct
or succes-
also choose his destination.
States,
initiative,
significant
and the
value
United
this INS
response to
her
community,
her
to the academic
sought adjustment of
her service
again
Randall
exercise of discretion would
“the favorable
status.
eligible
case were she
be warranted
[her]
at the
presiding
immigration judge
immigrant
to receive an
visa and admissible
ac-
hearing surveyed Randall’s
deportation
resi-
to the United States
her writ-
abroad,
particularly
tivities
promptly appealed
Randall
the im-
dence.”
director, the immi-
ings. Like
migration judge’s decision that she was
“praise
up Randall’s
pointed
gration judge
statutorily ineligible
to receive a visa
victo-
North Vietnamese
communist
Immigration Appeals;
Board
Board of
the Cas-
“support of
constant
ry,” and her
argument
heard oral
on October
Based on
revolution.”
tro communist
judice there.
matter
sub
remains
litera-
reading
Randall’s]
...
[of
“full[ ]
judge concluded
ture,”
immigration
Proceeding in the District Court
C.
“portions
decision
August his
days before
two
On October
econom-
writings advocate
various
[her]
the district director
expiration of the time
doc-
international,
governmental
ic,
voluntary depar-
for Randall’s
allowed
hence,
communism”;
he
world
trines of
ture,
days
ten
befоre
1182(a)(28)(G)(v)
determined,
subsection
why
to show cause
ordered Randall
Service
475-76)
placed her
pp.
(set
supra
out
com-
deported,
she should
category,8
from admission”
an “excluded
challenging the
instant
action
menced
ineligible
rendered
placement
and that
1985 denial
director’s October
district
adjustment.
for a status
application.9
director, how-
contrast
the district director
asserted
ad-
ever,
immigration judge squarely
*6
in
statutory authority, and
acted without
the
distinguished
ques-
sharply
dressed and
and fifth amendment
of her first
violation
statutorily eligi-
Randall was
tion whether
adjustment applica-
rejecting her
rights, in
question
the
from
a visa
to receive
ble
“discretion,”
tion,
because
a matter of
as
appropriate to exercise
it would be
whether
opinions
expressed.
she had
and
the ideas
latter,
As to the
her
in
favor.
discretion
injunctive re-
declaratory and
sought
She
immigration judge observed:
the
that U.S.C.
lief, including
declaration
“[a]
weight
to
evidentiary
[According
(C)
1182(a)(28)(G)
are unconstitu-
and
§§
opin-
political
non-proscribed
[Randall’s]
to the district
tional,” and an instruction
opinion
political
in
result
the
ions would
re-
or to
application,
to
her
director
being
de-
the
adjudicating officer
of the
appropriate constitutional
it within
consider
Clearly the favor-
factor.
terminative
limits.
statutory
of discretion
exercise
able or unfavorable
the
upon
confronting
must not be based
Randall’s
judge,
cannot
The district
adjudi-
the
opinion of
relief and
personal political
injunctive
for immediate
motion
Accordingly
dis-
cating officer.
by defendants
[Randall’s]
motion
opposing
opinions
political
ongoing
written
non-proscribed
case,
and aware
miss the
evidentiary
neutral
accorded
... must be
made no definitive
proceedings,
deportation
to the issue
they
weight
judge
as
relate
com-
had
ruling
immigration
until
discretion.
of Randall’s
pleted his consideration
opinion
Eventually, in an
adjustment plea.
in
of the United
that
view
He then stated
filed June
order
parents
citizenship of Randall’s
motion
granted
defendants’
judge
home in
children,
of a
ownership
1182(a)(28)(G)(v).
supra
subsection
than
judge reported read-
immigration
Cf.
7. The
entirety”
note 5.
study encompassed "in their
ing and
2,744
writings.
pages of Randall’s
authors, a
associa-
prominent
world
9.Several
writers,
colleagues,
ruled,
two
tion
academic
specifically
how-
immigration judge
8. The
courses
in
place
enrolled
ever,
student
not suffice
evidence did
plaintiffs.
category
joined Randall as named
other
alien”
in
"excludable
Randall
case, making plain
differently.
that he did hend the dismissal order
dismiss the
unique
“the
exclusively
judge
so
facts”
has
district
left Randall’s substantive
Meese,
presented.
untouched,
Randall v.
No. 85-3415
true,
pleas
it is
open
but still
5, 1987)
(D.D.C. June
on WEST-
judicial
[available
review at a later
for
time—when a
LAW,
12570],
1987 WL
final order
been made
the Board of
Immigration Appeals
place
another
opinion
The district court’s
reflects
—and
judicial
—in
circuit which the El Paso
intricacy
point10
law in
and makes
director and immigration judge pro-
district
alleged
principal
these
observations:
abus-
ceeded,
judicial
or the
circuit in which
ancillary
prelimi-
es
a district director
1105a(a)(2)
resides. See 8 U.S.C.
nary
deportation proceedings
court;
Supreme
(restricting
venue choice
reviewable in district
for review of final
Mandel,
Court,
408 U.S.
deportation
proceedings, quoted
Kleindienst
orders
(1972),
475).
92 S.Ct.
33 L.Ed.2d
supra p.
comprehended,
So
the dis-
upheld
constitutionality of exclusions
ruling
trict court’s
means that Randall has
1182(a)(28)based on an
under 8 U.S.C.
judicial
asked
intervention not too late
beliefs; Congress, as
political
individual’s
soon, i.e.,
Complaint’s
but too
that her
es-
indicated, proba-
immigration judge
prayers
sential
for relief—declarations that
bly
discretionary
rul-
did not intend
General,
(Attorney
defendants
Commission-
ings
solely on an individual’s
could rest
INS,
Director)
er of the
District
have arbi-
non-proscribed political opinions; deporta-
trarily
adjust
refused to
her status and
proceedings
oppor-
tion
afford the alien an
1182(a)(28)(G)
(C)
that 8 U.S.C.
are
§§
novo,
tunity
plenary
de
consideration
ques-
unconstitutional—demand answers to
status;
application
ripe
tions not
for court review on the basis
deportation process
now in motion se-
dispo-
of the district director’s inconclusive
cures for
the fair consideration
sition.11
warrants;
due the
di-
no credit is
proceedings;
ruling
rector’s
those
al-
Analysis
IV.
though the district director’s denial of
subject
is not itself
judicial
Randall’s insistence that
review
review,
administrative
the director’s deci-
here, i.e.,
is in order
in the District of
sion, to the extent it entailed
an exercise
federal
rather than in
Columbia
courts
*7
“discretion,”
effectively
has been
over-
judicial
pro-
circuit where administrative
by
immigration judge’s
taken
decision
(Fifth Circuit)
ceedings were initiated
or in
ongoing deportation proceeding.
(Tenth Circuit) (see
which she resides
8
1105a(a)(2)),
(in
U.S.C.
and now
advance
judge
The district
did not label his dis-
deportation proceed-
of termination of the
missal order. Randall describes it as a
ings), depends entirely
ruling
ingenious,
mootness
and assails it
that
on an
but
basis.
state,
cómpre-
For the reasons we next
incorrect characterization of the district di-
we
c)
10.
Sang
Immigration
injunction directing
Seup
Shin v.
and Natu
An
defendants to re-
Cf.
Service,
(D.C.
750 F.2d
125 n. 5
application
ralization
consider
Randall’s
Cir.1984) (expressing court's “discomfort with
adjustment
alien,
permanent
of status to
resident
immigration
the nation’s convoluted
their
laws and
prohibiting
and
defendants from con-
inefficient,
uncertain,
protracted
or
admin
tinuing to exercise their
in a
discretion
man-
istration”).
ner that is inconsistent with the terms and
Immigration
Nationality
intent of the
and
Act
Prayer
presented
11. for Relief
in Randall’s
guarantees
and that violates the
of the First
Complaint,
entirety,
in its
invites:
Amendments;
alternative,
Fifth
or in the
and
ordering
a) A declaration that defendants’ refusal to
grant
perma-
defendants to
grant
adjustment
Randall’s
of status violates
status.
nent resident
Amendments,
the First and Fifth
and is arbi-
d) Such other and further relief as this
discretion,
trary
capricious, an
and
abuse of
just
proper;
Court deems
and
law,
contrary
and
§
in violation of 5 U.S.C.
e)
attorneys’
706;
The costs and
fees incurred in
b)
this action.
A declaration
that
8 U.S.C.
Meese,
1182(a)(28)(G)
(C)
Complaint, Randall v.
D.D.C. No. 85-
are unconstitution-
§§
al;
maintains,
ing,
analysis
in-
in line
of the immi-
with
with
She
rector’s action.
certitude,
the district director
supra pp.
476-77,
that
see
creasing
gration judge,
eligible for ad-
statutorily
her
improperly
the director
calculated
dis-
first found
status,
only
rejected
then
justment of
balance,
cretionary
plea
for a re-
abusive, unauthorized,
in an
mand with instructions to
her status
of discretion.
exercise
unconstitutional
legitimate.
adjustment application would be
up
followed
Had the district director
finding that she was statuto-
hypothesized
accept
But we cannot
Randall’s first
eligible
of status with
rily
premise.
agree
do not
that the district
We
discretion,
properly constrained exercise
statutorily eligible,
director found her
we
continues,
argument
he would
pretend
proceeded in
cannot
that he
would
granted
application, there
have
logical
design
order and
the conscious
fight,
deportation
no
have been
him, i.e.,
firmly
Randall attributes
first
resident,
perhaps
would be a
resolving that she was not excludable un
a citizen.12
even
now
(C),
1182(a)(28)(G)
der 8 U.S.C.
or
Randall correct
Were
deciding
then
that he nonetheless had
definitively find that
director did indeed
to,
power
and should exercise his discretion
“she was excludable under either
Court,
against
Supreme
her. The
correct
1182(a)(28)(C), which
aliens
bars
U.S.C. §
court,
ing the error of our sister
has made
members of the Communist
who have been
denying
plain:
this much
district directors
1182(a)(28)(G), which
Party, or 8 U.S.C. §
eligi
of status need not rule on
write, publish, or circu-
aliens who
excludes
first;
bility
they may
pretermit
instead
advocating
teaching the ‘eco-
late matter
go at
matter of
that issue and
once to the
international,
nomic,
governmental
doc-
and Natu
discretion.
communism’,”
Ap-
Brief for
trines of world
Bagamasbad,
v.
ralization Service
original),
the rest
pellants
(emphasis
at 9
(1976),
L.Ed.2d 190
U.S.
97 S.Ct.
argument
have more force.
of her
would
(3d Cir.).
reversing
trict out that the in Bagamasbad, director had mind not adjustment “need not decided if an clearing 1182(a)(28) be Randall’s of the section discretionary denied for reasons.” is hurdles, excludable alien her but satisfac- 85-3415, Meese, op. at slip Randall v. No. requirement tion of the that a visa be avail- n. 8. able to her on petition based the of a close supra relative—her citizen son. p. See Randall’s now insistent claim that 475.14 definitively found her to be district director phrase statutorily eligible single rests sum, In plea—for in Randall’s an decision, its cut from director’s loose judge struction from the district simply applicant ap- though “even context: ordering the district director to ..., statutorily eligible pears to be application only or to do “the over discre grant cretion_” application is a matter of dis- of an tionary component adjustment deci [his] p. supra We have set out sion,” Appellants Brief for at 21—is inadm surrounding text of the the relevant issible.15 However infected that exercise decision, appendix in an here- directоr’s was, director, of discretion were
to, the text of decision. The di- full that pro he to be restored tunc nunc first, rector statute the 8 mentioned the decisionmaking position, not adjust could 1255(a) specification the At- U.S.C. that § answering Randall’s status without General, torney “in his discretion” ad- question definitively, he not did decide if at He just of an alien. next cited the status all: as of he point. INS in He then that October date decisions stated decisions, others, point application, out denied she cited “with was statu though applicant appears that torily eligible immigrant even to receive an visa eligible,” statutorily be there is a discre- as an alien “admissible the United tionary to be We determination made. for residence.” 8 U.S.C. reading likely think most the di- 1255(a)(2). supra p. 476. that rector’s full statement is he intended A remand district director at applicant” appli- the words “the to refer to stage, note, we further would be out of general, applicant cants in “[ajfter sync prescription with the that an event, particular. any certainly In he did served an alien been order to pronouncement not make conclusive ..., adjust cause his for show that Randall cleared the subsections hurdles, ment of status ... shall considered 1182(a)(28)(G) (C) he used deportation] proceedings.” qualifying “appears in his C.F.R. words to be” [the note, Finally, 245.2(a)(1). plausible compli- There is further statement. we one, brief, attempted necessary 14. off to cordon sufficient view of immigration finding judge’s “certain Decision from our view the marital difficulties.” Randall, Immigration Judge, statutorily ineligible In re Jo she (Aug. 1986). slip op. by observing A 11 644 con- at "defendants [themselves] already cede that the district director has found statutorily eligible irony plea Ms. Randall There is ab- now, (emphasis Appellants Brief for at 21 status.” sent court intervention the district di- correction, original). escape judicial made no But defendants such conces- rector's decision will True, say sion. the Assistant U.S. did for the review she invites is one-sided. Were we court, scope to the district “she was to be to direct a remand the limited determined *9 eligible...." urges, opportunity But we cut off the the Assistant’s full statement would eligible, argue to be be- to and was: "she was determined INS maintain in court section 1988, 1182(a)(28) (until applied to cause she married an American citizen.” Tran- Randall when 24, 1987, script Proceeding, Foreign Feb. at 70. This section 901 of the Relations Authoriza- third, effective, plainly supra referred to the not the tion Act became see note 2 and statement second, text) 1255(a) availability specification—the accompanying and constitutional as so § is applied. op- petition on citizen are to a of visa based a U.S. Individuals entitled fair supra portunity heard close relative. See note 4. As the immi- to be before advеrse action is recounted, gration against government judge citi- both U.S. taken them. But too spouse, petitioned zen U.S. citizen son should have a fair chance to assert defend propriety applica- be- for an immediate relative visa in court the the executive's judge petition legislative of a half. That considered son's tion measure.
481
what date Randall’s status should be ad
immigration judge’s decision
cation that the
yet
Randall fits the
justed
concludes that
is not
order. The strand of
now extant
1182(a)(28)(G)(v) excludable
ripeness
apply
subsection
doctrine
we
this case
the time of his
category, so that at
alien
“very
practical
much a matter of
com
eligible
statutorily
she was not
disposition,
mon sense.” Continental Air Lines v.
adjustment.
Bd.,
107,
Civil Aeronautics
522 F.2d
124
(D.C.Cir.1974)(en banc) (McGowan,J.);
Moreover,
deportation
ongoing
cf.
Auth.,
Ashwander v.
Valley
in the law
Tennessee
297
change
recent
proceedings, the
288, 346-47,
466, 482-83,
Au-
Foreign Relations
U.S.
56 S.Ct.
80
governs. Under the
100-204, 901,
Act,
(1936) (Brandeis, J.,
thorization
PUB.L.NO.
concurring).
§
L.Ed. 688
473,
1399-1400,
supra p.
101 Stat.
see
appraisal
Judicial
of Randall’s case is
subsection
contradiction
“likely
footing”
a much surer
to stand on
may
denied a
1182(a)(28)(G)(v),no alien
be
deportation proceedings
when the
have con-
from admission “because
visa or excluded
cluded,
interim,
and in the
Randall faces
statements,
beliefs,
or associa-
...
consequences.”
“no
adverse
irremediаble
by
a United
which,
engaged
if
tions
Gardner,
Toilet
Ass’n v.
387
See
Goods
States, would
in the United
citizen
158, 164,
1520, 1524, 18 L.Ed.
U.S.
87 S.Ct.
of the
under the Constitution
protected
(1967).
pro-
2d 697
Those administrative
change in
But this recent
United States.”
immigra-
ceedings, as the decision of the
not reach back to October
the law does
indicates,
judge already
“may sharpen
tion
deci-
of the district director’s
the date
controversy
or remove the need for
sion, i.e., the date from which
aspects
some
of the
decision of at least
run.
8 C.F.R.
adjustment
to
See
wants
matter.”
L.
See
Tribe,
American Constitu-
245.2(a)(5)(h)
as of
(adjustment effective
1988).
(2d
Law ed.
Once
application).
tional
approving the
date of order
Immigration Appeals has ren-
Board of
express
change, by its
The section 901
decision,
proceed
dered its
terms,
only
applications
for visas
applies
her situa-
sought
appropriate
circuit
during
admissions
court—in
submitted
Circuit,
tion,
March
the Fifth or the Tenth
see
after December
before
ap-
on conduct oc-
deportations
1105a(a)(2) “by
based
the normal
U.S.C. §
—
deportations pending
curring in
Restaurant
peal route.”
Hotel and
appli-
Randall’s 1984
during 1988. Because
Smith,
Union,
Local 25 v.
Employees
director falls short of
cation to the district
(D.C.Cir.1988) (separate
F.2d
seems,
lines,
director,
these time
J.).
Mikva,
opinion filed
1182(a)(28)as the
section
would still have
argue, if
open Randall to
It will be
his decision.
legal
Congress
frame
set for
route,”
appeal
takes “the normal
things has confusion-breed-
This state of
resident
qualifies
that she
potential,
ren-
ing, conflict-generating
now, i.e.,
of section
in 1988
virtue
hardly
a return to the district director
ders
Authorization
Foreign Relations
901 of the
note here as
auspicious for Randall. We
order retro-
the court should
but that
statutory provision for rescission
well
(i) properly con-
adjustment
active
because
adjustment
appear
if “it shall
of a status
1182(a)(28)(G)(v)never
strued, subsection
General
the satisfaction of
visa,
(ii) if
ineligible for a
rendered her
eligible for
person
not in fact
that the
her,
1182(a)(28)
exclude
as
section
did
of status.”
8 U.S.C.
such
did,
held it
then
immigration judge
1256(a).
her,
regard-
measure,
must be
applied
as
of status
account
Our
incompa-
null from the start because
ed as
473-75,
regime,
supra pp.
see
express no
We
with the Constitution.
tible
currently
why the district director
reasons
argument.
of such
on the merit
view
positioned to rehear Randall’s
is not well
*10
controversy
short,
find this
In
we do not
478-81, go
supra pp.
a
application,
1984
see
affirming the dis-
disposition,
moot. Our
judicial
way
explain
to
our conclusion:
long
court’s, defers,
deny,
it does not
questions
and as of
trict
of the
whether
review
482
Co.,
395, 398,
Holding
ta Warner
328 U.S.
judicial review of
right to obtain
1086, 1089,
(1946)).16
1182(a)(28)(G)(v), principal
a
ob- 66 S.Ct.
subsection retroactive Complaint, and jective of her or con- statutоry construction relief if her CONCLUSION persuasive. arguments prove stitutional stated, For the reasons we disallow normal take “the By ruling that she must attempt preliminary, to turn a route,” that eventual appeal we assure procedure in- abbreviated administrative a full by enlightened court review will be for the alien into a tended as a convenience Immigration record, including the Board of leverage judicial fulcrum to review while decision, court
Appeals’ agency the final the matter still awaits of, or interfer- blockage premature avoids ruling, Accordingly, made on a full record. Congress has with, regulatory actions ence dismiss- judgment of the district court We government bodies. assigned to other Complaint We reit- ing the is affirmed. the district di- regard note in this preju- erate that is without dismissal matter has been as- in this rector’s role to Randall’s of her claims at dice renewal Attorney General’s signed by him to depor- the conclusion of the administrative by legislature’s di- delegation, and not appeal process, the normal tation fact, acknowl- also note rection. We route. Randall can assert by appellees, that edged It is so ordered. deportation proceed- invalidity of the themselves, and ings proceedings in those * Brief review therefrom. on circuit court APPENDIX And we recall Appellees at 25-26. FOR DECISION ON APPLICATION armed that a court Randall’s own assertion AS PERMANENT STATUS grant authority can equitable with remedial RESIDENT necessary “do to retroactive relief where Nation- justice.” Section 245 complete than truncated rather amended, provides that “The Porter (citing ality as at 16 Appellants’ Reply Brief 16. The dissent would traveling reverse the decision our to obtain an immi- ment for overseas to the case forthwith district court remand a fashion, from consu- visa in classic he not directions that supra the district director with &D. lar officer.” T. Aleinikoff Martin, p. discretionary powers in an uncon- exercise his 474, at 288. encounters solution stitutional manner. This Second, disagree the dissent on what we with several obstacles. convey and have director meant First, reviewability sta of district director decision in full in therefore set out the director’s supra adjustment See tus is unsettled. decisions appendix. room for Would dissent allow Supreme affirmed p. has indeed 479. The Court say the dissent read him the district director stay denies a that when a district director "subjective wrong? as Is the decision director’s deportation, judicial available and or review is, says unguided” it see as the dissent dinarily initially court rather than lies district statute the given the tenor of the dissent at Cheng Kwok v. 1973, appeals. See Fan in a court of view, 1182(a)(28) 8 U.S.C. § director had in full INS, 20 U.S. 88 S.Ct. (1982), rendered excludable an enactment that (1968) (review court was con L.Ed.2d 1037 ceded; advocating writings published doc- aliеns who question" whether case raised “narrow pp. supra of world communism? trines proper forum for was a first the district court general rule that as between Under the 475-76. review), at But quoted the dissent separate proceedings, judgments successive yet grappled Supreme Court prevails, see Restatement (Sec- the second in time whether, question outside the context Judgments (1982), has the decision ond) order, deportation proceeding or district director immigration judge decision overtaken the asylum application denials or two the extent that the the district director To treat review. are amenable court decisions conflict? cogently, a historical question must face one sum, dissent, quick rule so does the day, United "decisions of obstacle. To this open for against questions we leave Randall on matters are nonreview States consuls on visa court, Shultz, proper reach its own raise in the F.2d her to able the courts.” Centeno denied, (5th Cir.1987), by end-running finishing all the hurdles? -U.S. line cert. (1988). -, A 108 S.Ct. L.Ed.2d 648 * decision, reproduces Director's appendix the District This director’s status observed, correction. replace- "simply provides decision without alteration has been *11 regarding past
statement her activities sub- sequent expatriation to her and while she inspected was status of an alien who Mexico, living Cuba, Nicaragua. was paroled or into the United States admitted It was determined applicant that the lived General, adjusted by may be the in Mexicofrom the time of expatriation her regula- and under such in his discretion 1968, in 1966 anti-government when an ac- to that of prescribe, tions as he during resi- tivities lawfully permanent the student alien admitted for revolution (Emphasis Supplied). dence ...” forced her to flee Cuba. In 1961 she Nicaragua. moved to applicant was The record reflects that the 1936, York, 6, in New born on December applicant’s Five of the have books been York, her and that she renounced New purpose examined for the determining of Citizenship at the American United States applicant whether the would be excludable 13, City July on Embassy in Mexico 1967. 212(a)(28) provisions under the of expatriation by of was confirmed This act Act, Nationality 8 U.S.C. Department of State on the United States 1182(a)(28), pertinent which part states applicant in- July when was (G) publish, “Aliens who write or or cause ineligible for restora- formed that she was published, to be or or knowing- written who Citizenship. She is tion to United States circulate, ly distribute, print, display, or or Mexico. presently a citizen of circulated, knowingly cause to be distribut- applicant The last entered the United ed, printed, published, displayed, or or who Miami, January at Florida on knowingly possession have their for the a B-2 visitor’s visa obtained circulation, purpose publication, distribu- Nicаragua. August Managua, at tion, display, any printed or written or mat- passport applicant The Mexican ter, advocating teaching opposition or to all entry into the shows that this was her third organized government, advocating or or using this visa. United States (i) force, teaching vio- overthrow The instant was filed on March lence, or other unconstitutional means of 14,1984, and seeks resident sta- of the United States or of Government an immediate relative visa tus based on law; (ii) duty, necessity, all forms of or date petition which was filed on same assaulting or propriety or of the unlawful husband, by her Citizen United States (either or killing any officer or officers shortly after her last whom she married generally) officers specific individuals or The visa entry into the United States. of the United States or of the Government 7, 1984. petition approved was on June government, organized because other During an interview on June 1984 with character; (iii) official or of his or their applicant, and their attor- husband damage, injury or destruction unlawful applicant questioned concern- ney, the was (v) (iv) sabotage; eco- property; or relinquish- ing surrounding the the facts international, nomic, governmental doc- Citizenship in ment of United States the estab- trines of communism or world response Her was that the action of a totalitari- lishment in the United States primarily for economic reasons. was taken dictatorship; ... ”. an in- that she had been She also indicated Solution, Portrait “Part that she is now volved in certain activities applicant Revolutionary”, written offi- regretting. adjudicating Because the Publish- published by New Directions applicant that the was cer was not satisfied provi- Corporation more which available ing under one or not excludable an supra, biography 212 of the public library sions of section under the from the requested. investigation Cohen, section, a close associ- Mr. Robert approx- applicant ate who lived with investigation appli- that the revealed pro- years in Mexico and Cuba imately 8 poet and a writer who has cant is a applicant. “Mar- insight this vides published. of her On Octo- several books garet (meaning applicant, 11,1984, investigator Service ber diary over Randall) keeping a has been applicant under oath and took a placed the *12 years, big Stray
en but a one. mercenaries being up. still rounded Modern American half, year July since ’69 when we a and a weaponry”. get America “We the Voice of hiding in Mexico. The were forced into here, clearly out and a local Miami Station writing. diary some of her best contains station as well: the lies are fantastic ...” com- “This contrasts And most useful”. right-on always. “Fidel was as felt the We kid, diary kept as a pletely with the released, extent, passion, and it tо some “pure products” really one of the which is anger in us all”. (sic) Margaret has now of the Amerika destroying”. her life to dedicated May 17-20: in his introduction Mr. Cohen continues eyes “... All and much of the world’s political activities expound on Ms. anger ag- on the were focused latest U.S. explains pur- ideologies and further gression: culminating in Cambodia”. “... she, along magazine that with pose of the the assassination of the six blacks Jack- ex-husband, in Mexico. published “El son and Atlanta and the four white middle- ” (The Horn) Plumed Emplumado Corno Kent, class students in Ohio”. early publication a is described as Tuesday morning, “... The news broke mini-anthology to a history its was devoted by Friday spontaneous dawn crowds revolutionary poetry. appears It of Cuban begun gather Ameri- before Old publication, Ms. because embassy building can on the Havana sea- many began to meet revolutio- side drive”. “... It was natural that the trip In a to Cuba to attend naires. building people’s offensive should draw the Congress of Havana in 1968 she Cultural protest ...”. ring made from given which was by the American Planes Vice-Min- downed day today. “A like other To work Republic of the Democratic ister Culture early to see seven—then Robert —around Vietnam, Huy Can. Mr. Cohen states ..., (Robert Cohen) hospital, to a at the ring beautifully ex- giving how the of this meeting representative party with people presses solidarity the American with concerning aspect at the Book Institute optimism about the outcome of our (Emphasis of the book about women”.1 Af- struggle (emphasis supplied). common Supplied). and the Cultur- ter she returned from Cuba They All “... tried to reach me at work. together Mr. Congress, al Ms. Randall (where speakers Sunday night’s rally at Cohen, couple did the last of issues of “... spoke I for North American revolutionar- together, changing El Corno the nature ies) go airport invited to out to the were magazine, trying to make it a revolu- with the fishermen’s families ...” Ms. tionary weapon”. Mr. Cohen met February and his total July 10: past com- introduction into Ms. Randall’s brought experiences yesterday “... Two prises pages of her book. some 46 in their Revolution me closer to Cubans The book has “Notes” from Ms. way experienced I before”: in a hadn’t the fol- Diary 1970-71 in which she states party Representatives from the “... “April 20- lowing on the dates indicated. around, Youth showed us the Communist (The fields).” cane talking with the workers ...” to Fi- Monday night “... we all listened place after experience “The second took men speech del’s at the funeral of the five we went to a session of the dinner when defending their the nation who lost lives people’s court ...” against mercenary attack near the recent November 22: (emphasis Baracoa. Five our men ”. by every day “I’m confronted the different only one of a more suppliеd). “The attack here, growth experience the children past these elev- or less constant series over Toronto, Randall, Now, Canada. Hunter Rose in 1. Cuban Women Press, Printed The Women’s Published shield”, the lies officials “coward’s as authorities make the law enforcement they’re becoming !” communist short: how *13 writes, “monster against “our truth”. She Gregory). child (In Ms. Randall’s particular, pit cess- Amerikka in the of her blackest May 6: gut pool ...” the Cuban Commu- congress even a of “... dead; 1971. 32 Rebels September “42 awaited, (so the ab- long and party nist guards, by all killed hostage and absurdly criti- has been so of which sence of The ...” power coward Man: some). policy has by The cultural cized being People, was written defined, process Spirit is In and a whole been unleashed, together”. by “It’s published and it all fits New Star applicant watch, thing exciting to very beautiful Vancouver B.C. Books 2504 York Ave. participate to in more and even In to book Ms. Randall the introduction this beautiful (emphasis supplied). ...” as the “... the United States describes enemy humankind has powerful most 26: June known, (sic) victory ...” “The Vietnamese seven) workers’ long (eight to In a “... January was decisive for us all all assembly yesterday, we discussed September-Octo- that on ...” She states demerits, pro- merits and comrades’ privileged to be invited ber she discussed, among voted from posed, to visit the DRV. the Women’s Union3 “Vanguard of the growth ranks for thе our the most “It was the, Criminals,” Movement”. Workers refers to War She “U.S. assembly we’ve profound combative children and the evacuation Vietnamese each really search people learning had: crime; kidnap- latest U.S. as “... this out, ways. I was other healthiest Children, forcing them ping of Vietnamese Vanguard happy be elected moved murderers, robbing land of their to the twenty-one workers Worker. homeland, Of parents, their their them of their collective, us were elected nine our culture”. (emphasis supplied).2 ...” Revo- “The is over and the Vietnamese war July 26: greatest victory. U.S. lution has won its ended; speech just ... July 26th “Fidel’s de- greatest it’s imperialism has suffered especially a new and tremendous effort and de- turning-point in its feat, strategic pro- vigorous organization has raised more written Havana cline”. The above fifty percent ten ... to over duction from June, 1975. I felt that in- in certain areas! percent references to has numerous This book own, my as our own ...” crease as and describes of North Vietnam comrades refers to the Atti- in this Ms. Randall book (the sky enemy constant “... Attica, York Prison New ca State Riots B-52’s).” Phantoms and poem “I Attica”. poem am with aliens The national concern over subversive prisoners as she makes reference continuously ex- country has entering this enforcement officials and the brothers law barring entry to their panded the measures poem of the “Pigs”. In one as stanza Dating Con- from the United States. security amerikkka “Maximum writes. legislation fit bar- gress has seen to enact security sisters and leading their minimum presence ring entry to those aliens whose brown, black, together and white brothers national interest deemed detrimental cry REVOLUTION ... in one fierce stat- 1940 the the United States. Until makes refer- She REVOLUTION NOW!”. presently advo- only those ute reached enforcement who badge the law ence to the Union, in 1930 founded 3. Vietnam Women’s page a member of “A ibid: MILITANT—is (Com- Party organization. along these Workers political In Cuba the Vietnam a selective with young munist). and the Cuban Com- are the Communists Party Militants form Members.... munist revolutionary process: vanguard within the respect they and confidence of hold the total comrades", (emphasis supplied). their
tributed Communist literature and made
speeches
Party
in behalf of The
is deemed
presently
cated or who
were members or
to have been affiliated
Communist
organizations
affiliates of
which advocated
Party. The membership rolls of the Com-
violent
overthrow
United States
Party
open
public
munist
are not
scruti-
Registration
The Alien
Act
Government.
ny
applicant
and the
has denied that she
expounded
provision
of 1940
this exclusion
Party.
was a
member
Communist
by adding
aliens who at
time
advo-
belonged
organizations
cated or
advocat-
admission,
By her
applicant
own
*14
ing
prohibited
In
doctrines.
1950 the
speeches
made
Party.
for The Communist
Security
specifically
Internal
Act
named Her books advocate the doctrines of com-
Party
the Communist
and banned aliens
support
munism and
the Communist
who at
time had been members of that
Cuba,
governments of
Vietnam and Nicara-
organization or its sections or affiliates.
gua from 1966to 1981. There are constant
(Sec. 22,
Security
Internal
Act of
64 references to the United States as “the
987).
Stat.
enemy”
associate,
in her
A
books.
close
approximately
with whom she lived for
In
and
Gordon
Rosenfields’s
eight years, refers to “...
the Amerika
Procedure,
it
Law and
is noted that “The
has now dedicated her life to
precise
statutory
of
ambit
reference to
destroying”. The extent
applicant’s
of the
easy
affiliation is not
to define”. In Kettu
support
sympathy
and
for the Communist
Reimer,
(2nd Cir.1935),
nen v.
bring program to fruition”. applicant The record of the is self-evident. G., clearly She has failed to Matter 5 I N Dec. show she is & оf who, beyond a although held that an alien reasonable doubt entitled to not a Party, applied. member of the Communist was a the benefits for which she has sympathizer principles, writings with its who Her nearly sub- activities Worker, Daily scribed to and sold the past years speak dis- for themselves. Her clearly factors is set forth
tion on these
He
that Randall’s
his decision.
stated
dissent, dis-
beyond mere
writings go far
dissent,
beyond
“writings go far
mere
dis-
with,
of the United
or criticism
agreement
with,
agreement
or
of the United
criticism
Her associations
policies.
its
States
policies.” Appendix at 34.
or its
writings in
with,
her activities
writings,
He concluded that those
“as well
dominated
communist
support
participation
her affiliation with and
as
Vietnam,
Cuba,
North
governments
Party activities,
Communist
warrant
support
advocacy and
Nicaragua; and her
application
denial of
Mexico, as
activity in
well
revolutionary
Id.
status as a matter
discretion.”
participation
with and
affiliation
as her
activities,
warrant
Party
Communist
discretionary
Allowing a
decision
adjustment of
denial
status
whether
of discretion.
a matter
as
subjective
government
turn on a
official’s
reasons,
exer-
favorable
foregoing
For the
unguided reaction to an individual’s
in this case.
warranted
discretion
cise
writings
requirement
that del-
violates
*15
pro-
egations in the first
area
amendment
application
adjustment
pending
Your
drawn,
and defi-
“narrоwly
reasonable
vide
hereby DENIED.
is
status
for the
to
nite standards
[decisionmakers]
dissenting:
MIKVA,
Judge,
Circuit
Maryland,
v.
follow.” Niemotko
340 U.S.
would,
convinced,
I am
Appellant
329,
268, 271,
328,
280
71 S.Ct.
95 L.Ed.
she
status
have obtained the
Louisiana,
also Cox v.
(1951);
379 U.S.
see
un
government
for a
official’s
seeks but
453, 465,
536, 557,
I. use the First, attempts to majority at action issue The unconstitutional that proposition case for the Bagamasbad district director’s decision this case was the could have the district director because sta- deny his to use discretion stat- he ruled on before discretion exercised his dislike tus because im- “imaginative, but eligibility, it is utory writings associations. That stat- he ruled on suggest plausible” discre- his denial of director based 488 others, decisions, point All at 480. The of these Maj.Op.
utory eligibility first.
ap-
though
applicant
a situation
out that even
case
Bagamasbad
reviewed
eligible
statutorily
all sides
for the
pears
conceded
to be
which it was
not make a determi
director did
under Section 245
the district
benefits
eligibility.
Ba
statutory
about
is a matter of
nation
of an
(3d
INS,
F.2d
grace.
gamasbad v.
discretion
administrative
Cir.), rev’d,
S.Ct.
429 U.S.
Furthermore,
applicant
has the bur-
(1976).
Supreme
Court
L.Ed.2d 190
should be
to show that discretion
den
the district director was
merely held
in her
exercised
behalf.
[Case omitted].
a determination
to make
required
not
applicant
is self-evi-
The record of the
bar,
the case at
eligibility. In
statutory
has failed to show that she is
dent. She
a determination
did make
district director
beyond
clearly and
a reasonable doubt
eligible
statutorily
before
that Randall was
for which she has
entitled to the benefits
The fact that he
exercising
discretion.
his
writings for
applied. Her activities and
negate
not
required to do so does
was not
speak
nearly
past
years
for them-
this fact.
selves.
Second,
that “the
majority asserts
added).
(emphasis
It is
Appendix at 486-87
director’s full
likely reading
most
ap-
phrase
applicant”
“the
clear that
intended the words
is that he
statement
majority
main-
plies to Randall. Yet
applicants
gen-
applicant’
refer to
‘the
generic quality.
phrase
tains that the
has a
eral,
particular.”
applicant
not
opinion
reading
if the
is
This
credible
full text of
Maj.Op. at 480. The
*16
second-guessing in
read
the active
without
however,
decision,
refutes such a
director’s
majority engages.
which the
applicant”
“the
reference to
reading. The
majority contends that even
Finally, the
uses
between
at issue here is sandwiched
Randall,
is
did refer to
it
if the statement
indisputably re-
that
of those samе words
pronouncement”
a “conclusive
because
not
longer quotation
A
will
fer
Randall.
“appears to be”
of the use of the words
illustrate:
statutorily
“appears
statement
to be
admission,
applicant has
By
her own
eligible
under Section
for
benefits
Party.
the Communist
speeches
made
for
phrase “appears to
the Act.” But the
of com-
the doctrines
Her
advocate
books
way
express-
English
is a standard
be”
support
the Communist
munism
true.
ing
one
to be
what
believes
Cf.
Cuba,
and Nica-
governments of
Vietnam
Dic-
Third
International
Webster’s
New
are
1981. There
ragua from 1966 to
(to
(1981)
or evi-
“be obvious
tionary
to the United States
constant references
is
“appear”).
This
dent” as a definition
A
enemy” in her books.
close
as “the
among
usage
particularly common
ap-
associate,
lived for
with whom she
when a bu-
government decisionmakers:
refers to “...
proximately eight years,
“your papers ap-
pronounces that
reaucrat
Margaret has now dedi-
Amerika that
order,”
making a
he is indeed
pear to be
destroying”. The extent
her life to
cated
Moreover,
pronouncement.”
“conclusive
support
sympathy
applicant’s
“appears to
phrase
if
even
the use of the
governments of
Communist
eligible”
way
an ideal
statutorily
is not
be
Cuba,
Nicaragua, and her
Vietnam
eligible,
statutorily
say
that Randall is
residing in these coun-
aсtivities while
stating that
clearly
way
far
is
worse
tries,
from her
can
be determined
withholding a deter-
district director
is
of her close
statements
those
own
eligible,
Randall is
mination about whether
friends and associates.
have it.
majority
as the
would
under
245 of
Benefits
section
unconvincing
ultimately
ar-
these
When
are nu-
discretionary. There
supra, are
aside,
left with
cast
we are
guments are
relating to the discre-
merous decisions
ap-
words: “the
the district director’s own
tionary authority
Gener-
eligi-
statutorily
plicant appears to be
adjudication
applications
in the
al
”
any compelling reason
Absent
ble....
adjustment of status.
[Cases omitted].
case, and Randall
in the instant
ly
he
taken
what
not mean
he did
that
believe
expect that we would
every reason to
only conclude
we can
wrote,
that
I think
court.
the decision of the district
review
statutorily
Randall to be
found
that he
noted, the
correctly
below
As the court
That be-
adjustment.
for a status
eligible
deportation proceedings
fact
mere
case,
status
was denied
Randall
ing
not reason for us
commenced is
have been
the unconstitu-
entirely to
due
adjustments
ruling of
to review an erroneous
to decline
director.
of the district
action
tional
Meese,
court. Randall v.
No.
(D.D.C.
5, 1987)
85-3415, slip op. at 9
June
II.
adopt
my-
(“The
cannot
defendants’
Court
states with considerable
majority
The
concerning
viewрoint
a district court’s
opic
director had
if the district
candor
to review abuses
a district
jurisdiction
“the rest
statutorily eligible,
found Randall
director;
request
whether
[for
force.”
have more
argument would
of her
is considered anew
de-
adjustment]
that much
at 479. With
Maj.Op.
proceedings
ipso
should not
portation
facto
agree.
I do
majority opinion
actions.”).
director’s
shield the district
the dis-
injury as a result of
real
suffered
the district director’s uncon-
mere fact that
The administrative
trict director’s actions.
appel-
put
one that
stitutional decision was
prospect
no
pending
are
have
appeals that
a new administrative track
lant’s claim on
skeptical
I am
her full relief.
giving
procedures of its own should
appellate
ulti-
appeals that would
court of
that the
opportunity
to chal-
deprive
her of
to do so
be able
mately hear the claim will
directly.
lenge it
either,
case do not believe
by the district
injured
has been
route to
to follow that
Randall should have
that cannot
decision in a manner
director’s
clear that
rights.
It
vindicate
appeals path to
by the
fully remedied
‘injury in fact
demonstrated
Randall “has
her.
majority
has directed
ward which
relief re-
judicial
that the
and a likelihood
satisfy a
citizenship must
applicant
An
the claimed
prevent or redress
quested will
natu
residency requirement for
three-year
”
Chadha,
at
injury.’
462 U.S.
*17
1430(a). The
8 U.S.C.
ralization. See
(quoting
Power Co. v.
at 2776
Duke
S.Ct.
requirements
residence
loss of time toward
Inc.,
Group,
438
Study
Envtl.
Carolina
injury.
a real
See
recognized as
has been
2633,
79,
2620,
L.Ed.2d
59,
57
98 S.Ct.
U.S.
408,
(9th
INS,
n. 6
F.2d
417
634
Chadha v.
refrain
(1978)). I see no reason to
595
Cir.1980)
difference
dates when
(“By this
immediately.
resolving her claim
from
granted, Cha-
status is
permanent resident
interest
personal
dha ...
retains
Randall’s case
majority asserts that
The
”), aff'd, INS
petition
this
...
disposition of
“the normal
something it calls
is now on
919,
2764, 77
Chadha,
103 S.Ct.
462 U.S.
v.
ap-
But the administrative
appeal route.”
(1983);
v.
see also INS Cardo
L.Ed.2d 317
entire-
pursuing is
peal that Randall is now
1207,
421,
za-Fonseca,
107 S.Ct.
480 U.S.
bearing on the
and has no
ly separate from
(1987).
3,
434
Randall
L.Ed.2d
1210 n.
94
8
decision. See C.F.R.
district director’s
case.
in the instant
such a loss
has suffered
(1987)(“No
245.2(a)(5)(h)
[administrative]
the denial of an
appeal lies from
the administrative
undisputed that
It is
by the district
appeal
an
is now
Randall’s
body
which
status]
before
[for
director.”).
contrary,
Supreme
To the
her full relief for
accord
pending cannot
appeals from a decision
had not
has held that
If the district director
injury.
Court
“ordinarily lie first
an unconstitu-
director
discretion in
of a district
exercised his
manner,
have found
brought
appropriate
district
he would
an
an action
tional
2,
INS, 392 U.S.
or about October
eligible
Fan Kwok v.
on
Cheng
court.”
1973,
eligible
L.Ed.2d
then have been
20
would
88 S.Ct.
1985. She
that date.
INS,
citizenship
years
F.2d
three
from
(1968);
779
see also Jaa v.
1037
her a citizen
make
(9th Cir.1986) (district сourt has
make her whole—to
To
have been
time she would
of status
at the same
“to review a denial
jurisdiction
properly—
director
acted
the district
appeal
proper-
adjustment”). Such an
district court and then to this
require retroactive relief.
court. Her
Randall would
BIA, however,
held that it does not
The
case is now the hands of an administra-
relief.
power
grant
that,
retroactive
body
have the
it
tive
because
has held that
it
Talanoa,
I N Dec. 161
See Matter
13 &
relief,
cannot order
retroactive
cannot
1969),
(9th
aff'd,
(BIA
heard grant in time to her such relief. Had
relief granted director Randall’s ad-
justment initially, three-year of status
residency period would conclude on or eligi-
about October 1988. She would be ble to become a citizen at that time. Con- NATIONAL TREASURY ruled, sidering yet BIA has not UNION, et al. EMPLOYEES that even when it does it cannot relief, unlikely in retroactive it is the ex- HORNER, Director, capable granting treme that a court ret- Constance Office roactive relief will even rule on the case al., Management, et Personnel *18 the date on which Randall would before Appellants. I strongly have become a citizen. differ NATIONAL TREASURY EMPLOYEES majority's with the assertion that “Randall UNION, al., Appellants, et conse- faces ‘no irremediable adverse ” (citation quences.’ Maj.Op. at 481 omit- ted). HORNER, Director, Office Constance majority rightly points ripe- out that Management, Personnel et al. “very doctrine is much a matter of ness 87-5102, 87-5191. Nos.
practical common sense.” Continental Bd., Lines, Inc. v. Aeronautics Air Civil Appeals, United States Court banc). (D.C.Cir.1974) (en F.2d District of Columbia Circuit. I no common-sense reason for this see Argued March 1988. deciding refrain from court deprived at this time. claim She been Aug. Decided a status for an unconstitu- reason a decisionmaker from tional appeal. there is
whom no administrative properly
Appeal from that decision is