Loa-Herrera v. Trominski

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

m 99-40122
_______________

JULIO LOA-HERRERA, RAMIRO CANTU-GRACIA, JUANA GUZMAN-ASCENCIO,
EFRAIN MERINO, ARTURO LOZANO-LOPEZ, ALEJANDRA GUTIERREZ,
JUAN SANCHEZ-SALINAS, AND ADELITA CANTU DE CABRERA,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

Plaintiffs-Appellees,

VERSUS

E.M. TROMINSKI,
IMMIGRATION AND NATURALIZATION SERVICE DISTRICT DIRECTOR,
JANET RENO,
UNITED STATES ATTORNEY GENERAL,
AND
IMMIGRATION AND NATURALIZATION SERVICE,

Defendants-Appellants.

_________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________
October 31, 2000

Before SMITH and DENNIS, Circuit JERRY E. SMITH, Circuit Judge:
Judges, and HARMON,* District Judge.
The plaintiff class is comprised of lawful
permanent residents (“LPR’s”) faced with
*
District Judge of the Southern District of
Texas, sitting by designation.
pending deportation or exclusion proceedings1 quest for injunctive relief. Its final order, dat-
in which no final order of deportation or ex- ed January 13, 1999, regulates the seizure of
clusion has yet been entered, who are not pres- an LPR’s green card and issuance of tempo-
ently held in detention, and whose immigration rary documents pending removal proceedings,
documents have been confiscated by the Har- requires the INS to hold a hearing before de-
lingen, Texas, office of the Immigration and termining whether an LPR should be paroled
Naturalization Service (“INS”). Plaintiffs ob- into the United States pending a final order of
ject to INS’s practice of seizing an LPR’s lam- removal, and guarantees LPR’s the right not to
inated Form I-151 or I-551 (“green card”)2 have their other lawfully issued documents
and other government documents and issuing, confiscated unless those documents constitute
in their place, an I-94 “Temporary Evidence of bona fide evidence of unlawful conduct.3
Lawful Permanent Resident” form containing
extraneous information announcing the hold-
er’s pending removal proceedings. They addi- 3
The order states:
tionally claim that LPR’s are entitled to notice
and a hearing to determine whether they 1. Pursuant to the intent of the McNary
should be paroled within the United States Memorandum, Defendants shall only confis-
pending a final determination in their removal cate the laminated Form I-151 or I-551 of a
proceedings. non-arriving lawful permanent resident
placed under expulsion proceedings, and not
The district court granted the plaintiffs’ re- held in custody, when the INS District Di-
rector, chief patrol agent, or officer in
charge determines that a temporary docu-
ment is needed for a justifiable, particular-
1 ized reason, based on the individual facts of
The Illegal Immigration Reform and Immigra-
tion Responsibility Act of 1996 (“IIRIRA”) the case. When such a resident’s green card
“changed the nomenclature of immigration orders is confiscated, Defendants shall provide
so that orders of deportation and orders of exclu- temporary evidence of lawful permanent res-
sion are both now referred to as ‘orders of re- ident status, which shall be prepared in ac-
moval.’” Cardoso v. Reno, 216 F.3d 512, 515 n.3 cordance with Operation Instruction 264.2,
(5th Cir. 2000). See also IIRIRA § 309(d)(2), 110 and shall be issued for at least six months,
Stat. 3009-546, 3009-627 (1996) (stating that “any and shall contain a notation that it is renew-
reference in law to an order of removal shall be able.
deemed to include a reference to an order of exclu-
sion and deportation or an order of deportation.”). 2. When a permanent resident applying for
admission to the U.S. is placed under expul-
2
See Etuk v. Slattery, 936 F.2d 1433, 1436 (2d sion proceedings, Defendants may confis-
Cir. 1991) (“The INS regulations provide for the cate the resident’s green card, but shall af-
issuance of either of two registration forms to ford said person a prompt hearing before an
LPRsSSthe Form I-151 or Form I-551. Form Immigration Judge, in accordance with
I-151 registration cards were issued to LPR’s 8 C.F.R. § 236.1, to determine whether he
before June 1987. Since then, LPR’s have been or she should be paroled into the U.S. dur-
issued the I-551 form. Both of these forms provide ing the pendency of said proceedings, and if
LPR’s with proof of their alien registration and so, under what conditions. If the person is
legal status. The documents are popularly referred so paroled, and not held in cus-
to as ‘green cards.’”). (continued...)

2
 The government presents a series of proce- whether the plaintiff has demonstrated a per-
dural and substantive objections to the order. sonal, distinct, and palpable injury-in-fact that
With respect to the seizure of green cards and is fairly traceable to the defendant’s allegedly
issuance of temporary documents, we con- unlawful conduct, and that such an injury is
clude that the order was too sweeping in light likely to be redressed by a favorable judicial
of 8 C.F.R. § 264.5(g), which is cited by decision.” National Treasury Employees Un-
neither party nor the district court. In addi- ion v. United States Dep’t of Treasury, 25
tion, we conclude that federal courts have no F.3d 237, 241 (5th Cir. 1994). In identifying
jurisdiction to review parole decisions of the an injury that confers standing, courts look ex-
Attorney General. Finally, we decide that re- clusively to the time of filing. See Pederson v.
mand is appropriate to ensure that the govern- Louisiana State Univ., 213 F.3d 858, 870 (5th
ment has ample opportunity to press its factual Cir. 2000).
and legal contentions before the district court.
We reject the government’s contention that
We therefore vacate the order and remand the plaintiffs lack standing, for want of injury,
for any further proceedings that may be re- to challenge their denial of immigration docu-
quired. We also vacate an earlier, preliminary mentation. Green cards “play a significant role
order benefiting an individual who is not a in the day-to-day lives of LPRs.”5 And al-
member of the plaintiff class. though the I-94 forms issued in place of the
green cards do evidence LPR status, they ad-
I. ditionally state:
The government claims the plaintiffs lack
standing.4 “[T]he critical standing question is WarningSSA nonimmigrant who accepts
unauthorized employment is subject to
deportation.
3
(...continued)
tody, Defendants shall provide a ImportantSSRetain this permit in your
substitute document evidencing possession; you must surrender it when
permanent resident status, and you leave the U.S. Failure to do so may
entitlement to be employed in the delay your entry into the U.S. in the
U.S.; and future.

3. Defendants shall not confiscate any other You are authorized to stay in the U.S.
lawfully issued documents from permanent
residents, absent a good faith belief that
4
such documents constitute bona fide evi- (...continued)
dence of unlawful conduct. plaint, we limit our analysis accordingly.
4 5
Although it seeks reversal of the entirety of the Etuk, 936 F.2d at 1437 (“. . . Congress in-
district court’s order on standing grounds, the INS creased the importance of the green card with its
presents ar gument only with respect to an LPR’s adoption of the Immigration Reform and Control
right to hold a green card or other evidence of Act of 1986 . . . in order to establish one’s eligibil-
immigration status. Because the plaintiffs ade- ity for a variety of government funded assistance
quately allege injury in the balance of their com- programs . . . [and in the area of] employment
(continued...) authorization.”).

3
 only until the date written on this form. fer standing.
To remain past this date, without per-
mission from immigration authorities, is More troubling is the government’s conten-
a violation of the law. tion that the district court failed to give the
government an opportunity to present argu-
As plaintiffs adequately allege, inadequate ment before issuing its order. Because of our
immigration documents result in a greater rulings on the government’s substantive
degree of harassment by the INS and dimin- claims, which we discuss below, we do not ad-
ished employment opportunities. Indeed, the dress these allegations. Instead, we vacate the
government admits that aliens who hold only order and remand for further proceedings, dur-
temporary I-94 forms are “more likely to be ing which the INS assuredly will have ample
more closely inspected” than are holders of opportunity to press any additional legal or
green cards. Although the government argues factual arguments it wishes to make and there-
that plaintiffs fail to identify a single LPR who by to cure any procedural defects regarding
has actually suffered such injury, actual injury the order.
is not constitutionally required.
II.
6
Mere threatened injury is sufficient, and the The government’s substantive objections to
threat in this case is real. For example, ac- the order regard the issuance and confiscation
cording to the plaintiffs, “[a]s a result of INS’ of immigration documents. LPR’s are autho-
arbitrary confiscation of his I-551, Loa [a rized to work in the United States.7 Even
former plaintiff, now deceased] endured al- “LPRs who are placed in deportation proceed-
most two hours of detention at the border, and ings do not lose the status of lawful residents
an unreasonable search, causing ‘inconve- and its attendant benefits until . . . a final
nience, and public humiliation.’” Plaintiffs deportation order [has been] issued.” Etuk,
therefore have asserted sufficient injury to con- 936 F.3d at 1447. Until deported or excluded,
LPR’s are fully entitled to remain in the United
States and seek employment, for “[t]he fact
6
See City of Los Angeles v. Lyons, 461 U.S. that an alien is subject to deportation proceed-
95, 105 (1983) (“Lyons’ standing to seek the ings does not affect his status as a permanent
injunction requested depended on whether he was resident alien. A permanent resident alien’s
likely to suffer future injury from the use of the status terminates only when the order of de-
chokeholds by police officers.”); Friends of the portation is affirmed by the BIA or otherwise
Earth, Inc. v. Crown Cent. Petroleum, 95 F.3d becomes administratively final.” Molina v.
358, 360 (5th Cir. 1996); Hernandez v. Cremer, Sewell, 983 F.2d 676, 680 (5th Cir. 1993).
913 F.2d 230, 234 (5th Cir. 1990) (“Although at
present Hernandez is safely inside the United In addition, federal law guarantees LPR’s
States, he is . . . entitled to travel to and from certain rights of documentation they can use to
Mexico without deprivation of his Fifth Amend-
prove, to potential employers and others, their
ment due process rights. We think there is at the
right to be in the United States. How that
very least a reasonable expectation that Hernandez
will exercise his right to travel. Indeed, Hernandez right is prot ected in practice, however, is
testified that he would like to return to Mexico, but
did not ‘want to run the risk of something like this
7
happening again.’”) (citation omitted). See 8 U.S.C. § 1324a(a)(1)(A), (h)(3).

4
within the express discretion of the Attorney to seize green cards absent individualized cir-
General.8 cumstances and must “be followed until appro-
priate regulations and operations instructions
In granting the plaintiffs injunctive relief on are published.” The district court erred in re-
the question of LPR documentation, the dis- lying on the McNary Memorandum, for an
trict court relied substantially on a 1990 inter- agency’s internal personnel guidelines “neither
nal INS policy clarification (the “McNary confer upon [plaintiffs] substantive rights nor
Memorandum”),9 which directed the INS not provide procedures upon which [they] may
rely.” Fano v. O”Neill, 806 F.2d 1262, 1264
(5th Cir. 1987). The memorandum merely ar-
8 ticulates internal guidelines for INS personnel;
See 8 U.S.C. § 1304(d) (“Every alien in the
it does not establish judicially enforceable
United States who has been registered and finger-
printed under the provisions of the Alien Registra-
rights.
tion Act, 1940, or under the provisions of this
chapter shall be issued a certificate of alien regis-
tration or an alien registration receipt card in such
9
form and manner and at such time as shall be (...continued)
prescribed under regulations issued by the Attorney in the United States. Accordingly, when an
General.”); Etuk, 936 F.2d at 1444 (“The INA order to show cause is issued, and the recip-
mandates that the Attorney General provide LPRs ient is the holder of Form I-151 or I-551 and
who register with proof of their legal status.”). See is not detained or incarcerated, he or she
also 8 C.F.R. § 264.1 (listing forms). shall be allowed to retain possession of
evidence of alien registration. If the alien
9
The McNary Memorandum states: has no evidence of alien registration, Form
I-90 shall be filed and processed, and the
Litigation over the disposition of Forms appropriate documentation will be issued by
I-151 and I-551 once the holders have been the office having jurisdiction.
placed in deportation . . . proceedings has
revealed a need for clarification of Service . . . If the district director, chief patrol agent
policy in this area. The instructions con- or officer in charge determines that a tempo-
tained in this memorandum are effective rary document is needed to assure the alien’s
upon receipt, and will be followed until appearance at hearings, or for other justifi-
appropriate regulations and operations able reasons, the [green card] will be lifted,
instructions are published. and a temporary I-551 issued. In these
cases, temporary Forms I-551 will be pre-
DEPORTATION PROCEEDINGS pared in accordance with the guidance in
O.I. 264.1, and will be issued for a period
A lawful permanent resident alien in depor- sufficient to allow completion of the depor-
tation proceedings is required to be regis- tation proceedings, but in no case less than
tered under section 261 or 262 of the Immi- six months.
gration and Nationality Act, as amended,
and to be in possession of evidence of such McNary Memorandum, Memorandum from
registration. Form I-151 or I-551 [green Office of Commissioner to All District
card] is the appropriate evidence of alien Directors (Mar. 14, 1990).
registration for lawful permanent residents
(continued...) Etuk, 936 F.2d at 1442.

5
 Inexplicably, neither the district court nor with respect to those in deportation proceed-
any of the parties cite 8 C.F.R. § 264.5(g) ings.
(2000), which states in its entirety:
In addition, § 264.5(g) requires only that
A person in exclusion proceedings the INS provide documentary evidence of LPR
shall be entitled to evidence of perma- status. The regulation plainly does not restrict
nent resident status until ordered ex- the INS from attaching additional notations to
cluded. Such evidence shall be in the caution employers that a potential worker, al-
form of a temporary Form I-551 issued though an LPR and therefore currently autho-
for a period sufficient to accomplish the rized to work in the United States, is also fac-
exclusion proceedings. A person in de- ing pending deportation proceedings and thus
portation proceedings shall be entitled to may not be available for an extended period of
evidence of permanent resident status employment.
until ordered deported or excluded. Is-
suance of an Permanent Resident Card The Attorney General is free to issue new
to a person in exclusion or deportation regulations and amend the requirements of
proceedings, provided the person had § 264.5(g) (provided, of course, that the re-
status as a lawful permanent resident quisite procedure is followed). Absent any le-
when the proceeding commenced, shall gal authority to the contrary, however, the dis-
not affect those proceedings. trict court may not interfere with the Attorney
General’s statutory discretion to balance an
Because the district court erred to the extent LPR’s interest in possessing particular forms
that its order relied on the McNary Memoran- of documentation against an employer’s inter-
dum, we vacate the order and remand so the est in knowing a potential employee’s present
court can determine whether an injunction is and future immigration status.
appropriate in light of § 264.5(g). In doing so,
we make a number of observations regarding III.
the scope and meaning of that regulation. The government also challenges the portion
of the order respecting the Attorney General’s
Section 264.5(g) requires that the INS issue discretion to grant parole within the United
the temporary Form I-551 to persons in exclu- States. The Attorney General is vested with
sion proceedings.10 By contrast, the regulation broad powers over the custody of all aliens
does not specify the form of documentation (including LPR’s) against whom deportation
or exclusion proceedings are pending.11 “[I]n

10
We reject the government’s contention that
11
the requirement of evidence “in the form of a tem- An “alien” is “any person not a citizen or na-
porary Form I-551” is satisfied by the issuance of tional of the United States.” 8 U.S.C. § 1101-
any form that is similar to a Form I-551, for that is (a)(3). The term thus includes LPR’s. See also
not the most reasonable construction of the regula- 8 U.S.C. § 1101(a)(20) (“The term ‘lawfully ad-
tion. Instead, under the plain meaning of mitted for permanent residence’ means the status of
§ 264.5(g), the INS must issue the temporary Form having been lawfully accorded the privilege of re-
I-551 to persons in exclusion proceedings; substi- siding permanently in the United States as an im-
tute forms are not sufficient. (continued...)

6
the case of an alien who is an applicant for ad- 8 U.S.C. § 1226(a).12
mission, if the examining immigration officer The plaintiffs argue that, pursuant to Ma-
determines that an alien seeking admission is thews v. Eldridge, 424 U.S. 319, 334 (1976),
not clearly and beyond a doubt entitled to be due process requires the INS to provide an
admitted, the alien shall be detained for a pro- LPR with notice of his right to parole within
ceeding under section 1229a of this title.” the United States13 and with a parole hearing
8 U.S.C. § 1225(b)(2)(A). Where such an ali- before the Attorney General decides how to
en “is arriving on land (whether or not at a exercise her discretion. Congress, however,
designated port of arrival) from a foreign ter- has denied the district court jurisdiction to ad-
ritory contiguous to the United States, the At- judicate deprivations of the plaintiffs’ statutory
torney General may return the alien to that and constitutional rights to parole.14
territory pending a proceeding under section
1229a of this title.” 8 U.S.C. § 1225(b)(2)(C).
12
See also 8 U.S.C. § 1182(d)(5)(A) (“The
Alternatively, instead of paroling the indi- Attorney General may . . . in his discretion parole
vidual out of the United States, into the United States temporarily under such
conditions as he may prescribe only on a
[o]n a warrant issued by the Attorney case-by-case basis for urgent humanitarian reasons
General, an alien may be arrested and or significant public benefit any alien applying for
detained pending a decision on whether admission to the United States, but such parole of
the alien is to be removed from the Unit- such alien shall not be regarded as an admission of
ed States . . . . [P]ending such decision, the alien and when the purposes of such parole
the Attorney GeneralSS shall, in the opinion of the Attorney General, have
been served the alien shall forthwith return or be
(1) may continue to detain the ar- returned to the custody from which he was paroled
rested alien; and and thereafter his case shall continue to be dealt
with in the same manner as that of any other
applicant for admission to the United States.”);
(2) may release the alien onSS 8 C.F.R. § 212.5; 8 C.F.R. § 235.3(c)-(d).

(A) bond of at least $1,500 with 13
But see City of West Covina v. Perkins, 525
security approved by, and containing U.S. 234, 240-41 (1999) (“A primary purpose of
conditions prescribed by, the Attorney the notice required by the Due Process Clause is to
General; or ensure that the opportunity for a hearing is mean-
ingful . . . . No similar rationale justifies requiring
(B) conditional parole. individualized notice of state-law remedies which
. . . are established by published, generally avail-
able state statutes and case law. Once the property
owner is informed that his property has been
seized, he can turn to these public sources to learn
about the remedial procedures available to him.
The City need not take other steps to inform him of
his options.”).
11
(...continued)
14
migrant in accordance with the immigration laws, See Lopez-Elias v. Reno, 209 F.3d 788, 793
such status not having changed.”). (continued...)

7
 The plaintiffs respond that the Attorney subject to judicial review.15
General’s parole authority at issue in this case
is found not in 8 U.S.C. § 1226, but instead in IV.
8 U.S.C. § 1225(b)(2)(C). Therefore, they ar- Before the subject order was entered, the
gue, the bar on judicial review contained in district court granted preliminary relief to Je-
§ 1226(e), which applies only to “this section,” sus Garza-Pacheco. On appeal, the govern-
does not bar this suit. But § 1225(b)(2)(C) ment asserts that the court had no authority to
only authorizes the Attorney General to return grant any relief whatsoever to him, because he
an applicant for admission to Mexico pending is neither a named plaintiff nor a member of
the exclusion proceedings. It is § 1226(a), by the plaintiff class.
contrast, that authorizes her to grant parole
within the United States to an LPR subject to We quickly dispense with the plaintiffs’ as-
removal proceedings. sertion that this court has no appellate jurisdic-
tion to review the Garza-Pacheco order. Ap-
In sum, “[t]he Attorney General’s discre- pellants have the “choice of appealing from [a
tionary judgment regarding the application of” preliminary] order within fifteen days or of
paroleSSincluding the manner in which that awaiting a final decree, for all interlocutory
discretionary judgment is exercised, and orders are reviewable on appeal from the final
whether the procedural apparatus supplied sat- decree.” Gloria Steamship Co. v. Smith, 376
isfies regulatory, statutory, and constitutional F.2d 46, 47 (5th Cir. 1967) (citations omitted).
constraintsSSis “not . . . subject to review.” And although the government’s notice of ap-
§ 1226(e). Without reaching the merits of the peal designates only the January 13, 1999, or-
plaintiffs’ constitutional claims, we therefore der, a “notice of appeal to this Court from the
vacate those portions of the order that require final decree of the District Court invoked the
the INS to hold parole hearings. In doing so, jurisdiction of this Court to examine the inter-
we note that the executive branch, of course, locutory order as well as the final decree.” Id.
has an independent duty to uphold the Con-
stitution, irrespective of whether its actions are We also agree with the government’s argu-
ment on the merits. The plaintiff class is re-
stricted to LPR’s “who are under deportation
or exclusion proceedings, in whose cases no fi-
nal order of deportation or exclusion has been
14
(...continued)
15
(5th Cir. 2000) (“Federal courts derive their power See U.S. CONST. art. VI, cl. 3 (“all executive
to adjudicate from Congress, and not from the . . . Officers . . . shall be bound by Oath or Affir-
Constitution alone.”), petition for cert. filed, 69 mation, to support this Constitution”); David P.
U.S.L.W. 3128 (July 28, 2000) (No. 00-164); 8 Currie, THE CONSTITUTION IN CONGRESS: THE
U.S.C. § 1226(e) (“The Attorney General’s dis- FEDERALIST PERIOD 1789-1801 at ix-x (Chicago
cretionary judgment regarding the application of 1997) (“Members of Congress and executive
this section shall not be subject to review. No officers, no less than judges, swear to uphold the
court may set aside any action or decision by the Constitution, and they interpret it every day in
Attorney General under this section regarding the making and applying the law. . . . [B]oth Con-
detention or release of any alien or the grant, re- gress and the Executive have a great deal to tell us
vocation, or denial of bond or parole.”). about the Constitution.”).

8
entered.” Garza-Pacheco therefore was not a
valid member of the class, because a final or-
der of deportation has been executed against
him. “In the complaint the title of the action
shall include the names of all the parties.”
FED. R. CIV. P. 10(a). Failure to name a party
denies a court jurisdiction over that party.16

We therefore VACATE the final order of
January 13, 1999, and the preliminary order
regarding Garza-Pacheco, and we REMAND
for any further necessary proceedings.

ENDRECORD

16
See National Commodity & Barter Ass’n v.
Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989)
(holding that “the federal courts lack jurisdiction
over the unnamed parties, as a case has not been
commenced with respect to them”).

9
DENNIS, Circuit Judge, concurring in part and dissenting in part.

I concur in vacating the final order of January 13, 1999 and the preliminary order regarding Garza-

Pacheco, and I agree in part with the reasoning of the majority opinion. I disagree, however, with

part of the reasons assigned by the majority and with the limits it imposes upon further proceedings

in the district court. I concur in the following parts of the majority opinion: (1) Part I holding that

the plaintiffs have standing; (2) Part II insofar as it recognizes that LPRs are authorized to seek

employment and work in the United States; that a person’s LPR status, including its attendant

benefits such as the right to work and to have documentation certifying that right and the right to be

in the United States, does not terminate until an order of deportation is affirmed by the Board of

Immigration Appeals (BIA) or otherwise becomes administratively final; and that the district court

erroneously relied upon the McNary Memorandum as establishing judicially enforceable rights; and

(3) Part IV with respect to this court’s appellate jurisdiction to review the Garza-Pacheco order.

I respectfully disagree with the majority opinion in the limits it places on the remand instructions

and in the following respects:

1.

An alien who is a lawful permanent resident of the United States, and remains physically present

here, is a person within the protection of the Fifth Amendment who may not be deprived of his life,

liberty, or property without due process of law. United States v. Verdugo-Urquidez, 494 U.S. 259,

271 (1990); Landon v. Plasencia, 459 U.S. 21, 32-34 (1982); Kwong Hai Chew v. Colding, 344 U.S.

590, 596 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896). Accordingly, he may not

be deported without notice, a hearing, and an opportunity to be heard, before such determination is
made. Chew, 344 U.S. at 597-98. Likewise, because LPRs in exclusion proceedings must also be

accorded procedural due process, Landon, 459 U.S. 33-37, the same constitutional protections

extend to resident aliens seeking reentry after a brief trip abroad not meaningfully interruptive of the

alien’s continued United States residence. Zadvydas v. Underdown, 185 F.3d 279, 295 & n.17 (5th

Cir. 1999) (citing Landon, 459 U.S. at 32-24); see also Verdugo-Urquidez, 494 U.S. 259, 271

(1990)(citing cases recognizing various constitutional rights of resident aliens: e.g., Bridges v. Wixon,

326 U.S. 135, 148 (1945)(resident aliens have First Amendment rights); Wong Wing, 163 U.S. at 238

(resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356,

369 (1886)(Fourteenth Amendment protects resident aliens)). Although an LPR may later be found

excludable or deportable, he is, nonetheless, entitled to due process before such determination is

made. Chew, 344 U.S. at 597-98. “Although Congress may prescribe conditions for his expulsion

and deportation, not even Congress may expel him without notice and a fair opportunity to be heard.”

Id.

Consequently, an alien’s LPR status includes elements of liberty and property rights of which he

cannot be deprived without due process of law. For example, the right to seek and engage in

employment, to travel, and t o qualify for other benefits and entitlements are attributes or inherent

characteristics of LPR status. Therefore, the government cannot deprive an LPR of these rights or

entitlements or significantly damage them without first affording the LPR due process of law

guaranteed by the Fifth Amendment. For instance, the INS and other government agents may not,

without affording an LPR such due process of law, (1) confiscate his green card without providing

him a reasonably adequate substitute document that will afford him equal access to all attributes of

LPR status or (2) deny an LPR readmission. Of course, an LPR can be investigated, arrested, o r

11
prosecuted for a crime just as any other alien or citizen. But an LPR cannot be deprived of any of

the attendant rights of his status without due process of law, because the Due Process clause of Fifth

Amendment does not acknowledge any distinction between citizens and resident aliens. See Galvan

v. Press, 347 U.S. 522 (1954) (“[Because] an alien who legally became part of the American

community ... is a ‘person,’ [he] has the same protection for his life, liberty and property under the

Due Process Clause as is afforded to a citizen.”); Bridges, 326 U.S. at 161 (Murphy, J., concurring)

(“None of these provisions acknowledges any distinction between citizens and resident aliens.”).

2.

Accordingly, I do not agree that an LPR’s right to adequate documentation to verify his right to

work and remain in the country is totally within the express discretion of the Attorney General.

Although the Attorney General may prescribe reasonable regulations for administrative purposes, not

even the Attorney General may deprive an LPR of his rights or entitlements protected by the Fifth

Amendment without affording him due process. Similarly, although the INS may enjoy some

discretion in providing documentary evidence of LPR status, it may not do so in a way that deprives

or damages an LPR’s status and its attendant rights and entitlements without complying with the

requirements of the Fifth Amendment. Thus, although the courts may not have jurisdiction to review

the exercise of discretion in matters of parole and documentation by the Attorney General or the INS,

the courts most assuredly do have the power and duty to hear cases under the Constitution involving

the alleged deprivation of life, liberty, or property of a resident alien without due process of law. See,

e.g., Johnson v. Robison, 415 U.S. 361, 374 (1974) (holding that provisions of the Veterans’

Readjustment Act, while precluding judicial review of administrative decisions, did “not extend the

prohibitions of that section to actions challenging the constitutionality of laws”); Parra v. Perryman,

12
172 F.3d 954, 957 (7th Cir. 1999) (recognizing that although a court may not be able to review a

decision implementing 1226, 1226(e) does not purport to foreclose challenges” to 1226 itself”).

Moreover, I do not read any of the statutes or regulations as being in conflict with these constitutional

principles. Consequently, I would remand the case for further proceedings in accordance with the

requirements of the Fifth Amendment, applying the laws and regulations consistently with the

constitutional framework.

3.

Finally, I dissent from the limitations that the majority places upon further proceedings and relief

with respect to Garza-Pacheco. From the available information, it is unclear that Garza-Pacheco

should be excluded from the class. The Appellants contend that Garza-Pacheco’s case is not

sufficiently related for him to be a member of the class because Garza-Pacheco was not an LPR at

the time the District Court granted him preliminary relief.

But, it is not clear that he was given notice and an opportunity to be heard before his green card

was confiscated and before he was initially ordered deported or that his second deportation was

administratively final at the time the district court granted him preliminary relief. Consequently,

Garza-Pacheco’s case should be remanded to the district court for further proceedings and resolution

of these issues.

Accordingly, I would vacate the district court’s orders and remand the case for further

proceedings consistent with the foregoing reasons.

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