Yаng You YI, Yee Bong Won, Li Guang Feng, Chen Chu Su, Pin Lin, Yong Zhong Pan a/k/a Pu Wing Chun, So Gee Dong, Chang Chun Lu, Xin-Fei Zhang a/k/a Xin-Fuei Zarang, Tong Wai Zhang, Dai Min Lu, Shi Chun Zheng, Chun Hua Lin, Chen Zing, Shuidi Zheng, Guo Zhen Xie, A-72-761-974, Li Yun-You, Lin Ming Long, v. George MAUGANS, District Counsel of the United States Immigration and Naturalization Service, Baltimore District; David L. Milhollen, Director of the Executive Office for Immigration Review and Chairman of the Board of Immigration Appeals; Richard J. Sharkey, District Counsel of the United States Immigration and Naturalization Service, Philadelphia District; J. Scott Blackman, District Director of the United States Immigration and Naturalization Service, Philadelphiа District; United States Immigration and Naturalization Service; and Executive Office for Immigration Review; Janet Reno, Attorney General of the United States; Doris Meissner, Commission of the United States Immigration and Naturalization Service
No. 94-7060
United States Court of Appeals, Third Circuit
May 5, 1994
June 2, 1994
26 F.3d 121
SUR PETITION FOR REHEARING
June 2, 1994
Before: SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, and LEWIS, Circuit Judges.
The petition for rehearing filed by appellees in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular аctive service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Judges Stapleton, Greenberg and Cowen would like to have noted on the record that they voted for rehearing in banc.
Yang You YI, Yee Bong Won, Li Guang Feng, Chen Chu Su, Pin Lin, Yong Zhong Pan a/k/a Pu Wing Chun, So Gee Dong, Chang Chun Lu, Xin-Fei Zhang a/k/a Xin-Fuei Zarang, Tong Wai Zhang, Dai Min Lu, Shi Chun Zheng, Chun Hua Lin, Chen Zing, Shuidi Zheng, Guo Zhen Xie, A-72-761-974, Li Yun-You, Lin Ming Long,
v.
George MAUGANS, District Counsel of the United States Immigration and Naturalization Service, Baltimore District; David L. Milhollen, Director of the Executive Office for Immigration Review and Chairman of the Board of Immigration Appeals; Richard J. Sharkey, District Counsel of the United States Immigration and Naturalization Service, Philadelphia District; J. Scott Blackman, District Director of the United States Immigration and Naturalization Service, Philadelphia District; United States Immigration and Naturalization Service; and Executive Office for Immigration Review; Janet Reno, Attorney General of the United States; Doris Meissner, Commission of the United States Immigration and Naturalization Service
Yong Zhong PAN a/k/a Pu Wing Chun, Appellant,
v.
George MAUGANS, District Counsel of the United States Immigration and Naturalization Service, Baltimore District; Richard J. Sharkey, District Counsel of the United States Immigration and Naturalization Service, Philadelphia Dis-
Argued March 24, 1994.
Decided May 5, 1994.
David H. Weinstein (argued), Robert S. Kitchenoff, Kohn, Nast & Graf, P.C., Frances P. Rayer, Pepper, Hamilton & Scheetz, Philadelphia, PA, Lory D. Rosenberg, American Immigration Law Foundation, Legal Action Center, Washington, DC, Sharon J. Phillips, New York City, for appellant.
Frank W. Hunger, Asst. Atty. Gen., Dаvid M. Barasch, U.S. Atty., Michael Jay Singer, Atty., Thomas M. Bondy, Atty. (argued), Appellate Staff, Civ. Div., Dept. of Justice, Washington, DC, for appellees.
Before: HUTCHINSON, ROTH, and ROSENN, Circuit Judges.
ROSENN, Circuit Judge.
In February 1993, the Golden Venture, a ship bearing human cargo of approximately 300 Chinese nationals, left the waters of Thailand bound for the distant shores of the United States. The petitioner Yong Zhong Pan (Pan), one of its passengers, together with hundreds of other Chinese nationals, had made a dangerous journey from the People‘s Republic of China (PRC) across the mountains and borders of Burma into Thailand. There, they embarked aboard the Golden Venture, which attempted unlawfully tо smuggle them into the United States. After more than one hundred days at sea, the ship, within sight of its final destination, ran aground off the New York harbor. Its passengers were thrown or jumped into the sea, but most of them managed to survive and safely reach shore. The Immigration and Naturalization Service (INS) took these aliens into custody, detained them, and commenced exclusion proceedings against them.
Approximately 120 of the Golden Venture passengers, including Pan, were transferred to the York County Prison on June 7, 1993. The York County Prison is located in the Middle District of Pennsylvania where many of the detainees, including Pan, filed claims for asylum which were rejected. After exhausting their administrative remedies, they individually filed habeas corpus actions in the United States District Court for the Middle District of Pennsylvania challenging the final orders of exclusion. Because the petitioners raised many similar issues and filed many similar motions for relief, the district court consolidated the individual actions under the above-entitled caption.
On November 17, 1993, Pan filed an amended petition and a separate complaint seeking nationwide class certification and interim class relief. Pending a determination of the court‘s jurisdiction, it initially granted conditional class certification limited to those aliens in the Middle District who had exhausted their administrative remedies. Contemporaneously, the court issued a temporary restraining order barring the Government from deporting any class members before December 1993, which date it later extended. The court subsequently declined on jurisdictional grounds to certify the requested nationwide class; it decertified the conditionally certified class and accordingly lifted the temporary restraining order as moot, 852 F.Supp. 316. Pan timely appealed to this court. We affirm.
I.
In his application for asylum, Pan claimed that he was persecuted and has a well-founded fear of future persecution by the Chinese government, if denied asylum, because of his opposition to its birth control policies. Specifically, Pan averred that after the birth of their first child, he and his wife fled to avoid sterilization. While in hiding, Mrs. Pan bore a second son. At the hospital where the child was born, she was forced to undergo sterilization. The Pans were also ordered to pay heavy fines. Because the Pans were unable to pay the full amount, оfficials came to their home, confiscated some furniture and demolished parts of the house. Fearing arrest, exorbitant fines, and harsh physical punishment, Pan decided to leave his homeland and family to come to the United States.
On August 9, 1993, an Immigration Judge (IJ) heard and rejected Pan‘s asylum claim. Pan appealed to the Board of Immigration Appeals (BIA) which found that Pan‘s testimony lacked plausibility, accuracy, and truthfulness in light of the evidence of record regarding general conditions in China. The Board therefore held that Pan failed to meet his burden of establishing his eligibility for asylum. Furthermore, the Board reaffirmed its adherence to Matter of Chang, Int.Dec. No. 3107, 1989 WL 247513 (BIA 1989). In Matter of Chang, the BIA determined that the People‘s Republic of China‘s one couple, one child policy was not, on its face, persecutive within the meaning of the relevant asylum statutes and regulations.
In his amended petition/complaint seeking certification of a nationwide class of Chinese aliens, Pan broadly defined the class to include:
All persons who, as nationals of the PRC, are or in the future may be applicants for withholding of deportation from and/or for
asylum in thе United States, in whole or in part because they have a clear probability (for withholding of deportation) or well founded fear (for asylum) of persecution on account of coerced population control policies of the PRC.
The class complaint essentially challenged the BIA‘s reliance and application of its decision in Chang. In addition, Pan sought a preliminary injunction forbidding the INS from deporting any member of the nationwide class.
In rejecting a nationwide class certification, the court reasoned that the natiоnwide scope of the requested class was inconsistent with the statutory limitations for judicial review. Specifically, the court noted that
II.
We have jurisdiction to hear this appeal from the district court‘s denial of Pan‘s motion for a preliminary injunction pursuant to
On appeal, Pan disputes the district court‘s determination that it lacked jurisdiction to certify a nationwide class of Chinese aliens. He invokes
We begin, as the district court did, with a review of the specific jurisdictional limitations applicable to alien exclusion proceedings. Chief Judge Rambo of the district court noted that, although Congress has provided judicial review of agency determinations of excludability in the context of the Immigration and Nationality Act (INA),
Second, courts are empowered to review orders of exclusion only for those individuals who have exhausted their administrative remedies.
Read together, these two statutory provisions would bar the district court from certifying appellant‘s class insofar as the proposed class would include Chinese aliens, or their custodians, not within the Middle District of Pennsylvania and Chinese aliens who have not yet received a final BIA decision. Accordingly, the district court concluded correctly that since the proposed class included individuals over whom it had no jurisdiction, the class could not be certified. See Califano v. Yamasaki, 442 U.S. 682, 701 (1979) (explaining that class may only be certified where court has jurisdiction over the claim of each individual member of the class).
Notwithstanding these provisions limiting jurisdiction, Pan contends that the general jurisdictional provision of
Pan cannot simply ignore statutory provisions that are averse to his position.1 The statute must be construed so as to give effect to each provision. See United States v. Alcan Aluminum Corp., 964 F.2d 252, 265 (3d Cir.1992). To hold otherwise would render the jurisdiction and exhaustion provisions of
Pan, citing to a number of cases, persists in arguing, however, that where, as here, his claims not only challenge excludability but also raise a challenge to the Government‘s programmatic application of Chang as an arbitrary barrier to asylum claims grounded in the “one child” policy, jurisdiction should not be limited to a habeas proceeding, but rather should be deemed proper under
In McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991), the Supreme Court upheld district court jurisdiction under
First, the Court stated that the provision limiting review except in the context of an order of deportation or exclusion was narrowly drawn. It referred to “a determination” which connotes a single act. Because the plaintiffs were challenging a practice or procedure rather than a denial based on the factual merits of an individual application, the statutory provision limiting review was not applicable to them. The Court reasoned that, had Congress intended the review provisions to apply to INS procedures and practices, it could have easily drafted broader exclusionary language.
Moreover, the Court held that because the relief that the aliens were seeking was procedural and collateral to the merits of the denial of legal status for SAW, the aliens were not required to exhaust their administrative remedies. Furthermore, the Court was reluctant to limit judicial review because to do so, would, as a practical procedural matter, have amounted to a complete denial of meaningful judicial review. This was thе case because, under the INA, review was limited to the administrative record which the aliens alleged was incomplete and inadequate. These factors, however, are not applicable here.
To begin with, the provision limiting review to habeas corpus is broad enough to encompass aliens with appellant Pan‘s status. Section 1105a(b) clearly states that “any alien against whom a final order of exclusion has been made ... may obtain judicial review of such order by habeas corpus and not otherwise.” (emphasis added). Thus, beсause Pan is subject to an order of exclusion, he should not be able to circumvent the explicit language of the statute and the intent of Congress.
Moreover, Pan‘s claim that the BIA is impermissibly applying Chang is neither procedural nor collateral. It is, at bottom, a substantive challenge to the legal standard employed by the Government in adjudicating asylum claims. To describe this challenge as procedural because appellant is not challenging his order of exclusion but rather the legal standard upon which his order was based, is not persuasivе. If appellant‘s characterization is correct, the review provisions of an order of exclusion or deportation could simply be elided by characterizing the challenge as a collateral attack on the legal standard rather than a direct assault on the order. This result is indefensible.
Our reasoning is bolstered by the Supreme Court‘s construction of “final orders of deportation.” In INS v. Chadha, 462 U.S. 919 (1983), the Court held that the term includes “all matters on which the validity of the final order is contingent.” Id. at 938. This point applies with equal force in the context of orders of exclusion. Here, the BIA‘s decision in Chang is, according to Pan, the predicate for the order of exclusion being entered against him. In reality, Pan, therefore, challenges the final order and squarely falls within
Finally, a denial of the class certification would not foreclose all forms of meaningful judicial review. Regardless of whether a class is certified, the district court would have the authority and opportunity to review the validity of Chang to determine whether the INA extends asylum to aliens who flee their country to avoid persecution on accоunt of their opposition to their country‘s policy of coercive population control. In fact, in an individual habeas corpus action commenced by another alien who arrived on the Golden Venture, the United States District Court for the Eastern District of Virginia, in concluding that the alien was eligible for asylum, held that Chang is not controlling and that the BIA‘s interpretation of the Act merits no judicial deference. Guo Chun Di v. Carroll, 842 F.Supp. 858 (E.D.Va.1994). This decision fortifies our position that restricting review to a habeas corpus proceeding does not deny appellant effective review оf his claim. Thus, the case sub judice is distinguishable in significant respects from McNary.
Although we realize that Chinese aliens who do not file habeas petitions will be unable to obtain judicial review of their claims — and it is for this reason that Pan seeks a nationwide class of all Chinese aliens, including those who have not filed habeas
As further support for his position that declaratory relief is appropriate, Pan cites Brownell v. We Shung, 352 U.S. 180 (1956), where the Supreme Court recognized the existence of jurisdiction in the district courts to entertain either habeas corpus actions or actions for declaratory and injunctive relief, in the context of exclusion proceedings. Shung‘s precedential value, however, is suspect inasmuch as it was decided before the enactment of
In any event, Shung is inapposite. The relevant statute in Shung required aliens who hold “certificates of identity” to test the validity of their exclusion by habeas corpus only. Id. at 183. The alien in question did not possess the certificate and therefore did not fall within the purview of the statute. Id. Not wanting to conclude that Shung would be deprived of judicial review, the Court determined that he could proceed via a declaratory action. Id. In the case sub judice, however, Pan falls squarely within the statute requiring him to file a habeas petition. Moreover, by filing a habeas petition, Pan will obtain judicial review. Thus, the holding in Shung does not implicate our present situation. Rather, it addresses the same concerns identified by the Court in McNary, and can be distinguished in the same manner.
Nor would any of the other cases cited by Pan provide the court with authority to ignore the explicit requirements of
It is noteworthy that Smith, the case expansively cited as authority by other courts and whose holding that
Nor would the APA, which provides for judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court,”
Pan‘s assertion that a class action would promote judicial economy consistent with Congress’ goal of eliminating piecemeal proceedings does not convince us otherwise. Even assuming, arguendo, that there are tangible efficiency gains in this case, in the long run, extending a district court‘s jurisdiction may well prove harmful to Congress’ aim. Granting an additional layer of judicial review will, in the end, frustrate the policy of curtailing repetitious and unjustified appeals. If Congress is convinced that the procedures can be improved upon, then it and only it should provide for an alternative framework. Our duty, however, is to apply faithfully the procedural requirements put in place by the legislature.
Although there is some authority that would allow class-wide habeas relief, Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1202 (9th Cir.1975), the district court declined to certify a habeas class. The court, seeing no advantage to a class-wide habeas action subject to exhaustion and jurisdictional limits, instead consolidated all similar claims within its district. We do not believe the court in the instant case abused its discretion in refusing to certify this class, even though the court, for some reason, had decided provisionally to certify a habeas class.
Pan contends, however, that contrary to the district court‘s assertion it did not have to limit its habeas territorial jurisdiction to aliens held in the Middle District of Pennsylvania. He reasons that because a writ of habeas acts upon the custodian of the detainee, the writ should issue to the district director of the INS, over whom the court did have personal jurisdiсtion, and thus detainees under the constructive custody of the district director, even those not within the court‘s district, should be subject to the court‘s habeas jurisdiction. This argument has no merit.
It is the warden of the prison or the facility where the detainee is held that is considered the custodian for purposes of a habeas action. See Ex Parte Endo, 323 U.S. 283, 306 (1944) (writ is directed to prisoner‘s “jailer“). This is because it is the warden that has day-to-day control over the prisoner and who can produce the actual body. See Brittingham v. United States, 982 F.2d 378 (9th Cir.1992); Guerra v. Meese, 786 F.2d 414 (D.C.Cir.1986) (Parole Commission is not custodian despite its powеr to release the petitioner). That the district director has the power to release the detainees does not alter our conclusion. Otherwise, the Attorney General of the United States could be considered the custodian of every alien and prisoner in custody because ultimately she controls the district directors and the prisons. Thus, the district court correctly held that its habeas jurisdiction is limited to the Middle District of Pennsylvania.
Finally, because Pan‘s motion for injunctive relief is premised on the granting of class certification which we deny, we deny this relief too.
Accordingly, the judgment of the district court will be affirmed. The mandate shall issue forthwith.
MAX ROSENN
UNITED STATES CIRCUIT JUDGE