Rajah et al v. Mukasey, 2nd Cir. (9/24/08, case nos. 06-3493-ag; 06-3811-ag; 06-4102-ag; 06-5390-ag)
WINTER, Walker, Calabresi
In consolidated case of 4 individuals placed in removal proceedings and ordered removed following their registration as part of the post-9/11 NSEERS (Special Registration) program, the Second Circuit rejected all of petitioners’ legal challenges to the NSEERS program and the deportation proceedings brought against them. In short, the court found (1) statutory authorization for NSEERS is found in the registration provisions of the INA (2) the gvt was not required to follow notice & comment as set forth in the APA because the foreign affairs exemption applied (3) the program passed rational basis scrutiny and thus did not violate equal protection (4) there was no 4th or 5th amendment violation requiring suppression of evidence (5) although regulatory violations did take place, these violations did not warrant invalidation of the deport orders, suppression of evidence, or termination without prejudice.
With the exception of petitioner Rajah, whose case was remanded according to Judge Calabresi’s separate opinion in case no. 06-3493-ag, the court denied the PFRs.
First, the court found that, despite petitioners’ argument that the AG had no statutory authority to enact the program, “statutory authorization for the Program is abundant.” The court relied on the registration provisions of the INA: 8 USC § 1303(a) and 8 USC § 1305(b), rejecting petitioners’ statutory construction arguments that these provisions did not authorize the program. In particularly, the court rejected petitioners’ arguments that a nationality-based classification ought to be disfavored:
“Given the importance to immigration law of, inter alia, national citizenship, passports, treaties, and relations between nations, the use of such classifications is commonplace and almost inevitable. Indeed, the very concept of “alien” is a nationality-based classification.”
Notice and comment under the APA
Next, the court found that notice & comment under the APA prior to promulgation of the regs specifying which groups had to be register was not required. The court found that the group specifications fell within the APA’s foreign affairs exemption and elaborated briefly on undesirable international consequences that it believed would have followed from notice and comment rulemaking here:
“First, sensitive foreign intelligence might be revealed in the course of explaining why some of a particular nation’s citizens are regarded as a threat. Second, relations with other countries might be impaired if the government were to conduct and resolve a public debate over why some citizens of particular countries were a potential danger to our security. Third, the process would be slow and cumbersome, diminishing our ability to collect intelligence regarding, and enhance defenses in anticipation of, a potential attack by foreign terrorists.”
The court rejected petitioners’ assertion that the rule itself had to state the undesirable consequences, particularly where “the consequences are seemingly as evident as they are in this case,” and it also rejected the assertion that there was insufficient evidence that the group specification was tied to the President’s foreign policy:
“There is, however, no burden of proof to be carried with regard to a connection to the President’s conduct of foreign affairs where the relevance to international relations is facially plain, and no presumption that a cabinet officer, such as the Attorney General, is acting as a rogue until proven otherwise.”
Equal protection:
Third, the court rejected petitioners’ equal protection arguments, finding that although selective prosecution based on an animus would call for some remedy, no circumstances calling for a remedy are present here. The court found that the NSEERS program based rational basis scrutiny, stating:
“No circumstance calling for a remedy is present here. There was a rational national security basis for the Program. The terrorist attacks on September 11, 2001 were facilitated by the lax nforcement of immigration laws. See Nat’l Comm’n on Terrorist Attacks upon the U.S., 9/11 Commission Report 384 (2004). The Program was designed to monitor more closely aliens from certain countries selected on the basis of national security criteria. See Registration & Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52,584 (Dep’t of Justice Aug. 12, 23 2002) (final rule). The individuals subject to special registration under the Program were neither citizens nor even lawful permanent residents. They were asked to provide information regarding their immigration status and other matters relevant to national security. They were not held in custody for appreciable lengths of time. Those whose immigration status was not valid were subject to generally applicable legal proceedings to enforce pre-existing immigration laws. In sum, the Program was a plainly rational attempt to enhance national security. We therefore join every circuit that has considered the issue in concluding that the Program does not violate Equal Protection guarantees.”
Moreover, the court found that the fact that the program selected countries that, with the exception of North Korea, are predominantly Muslim did not make the program discriminatory:
“To be sure, the Program did select countries that were, with the exception of North Korea, predominantly Muslim. Petitioners argue, without evidence other than that fact, that the Program was motivated by an improper animus toward Muslims. However, one major threat of terrorist attacks comes from radical Islamic groups. The September 11 attacks were facilitated by violations of immigration laws by aliens from predominantly Muslim nations. The Program was clearly tailored to those facts.”
The court also rejected petitioners’ arguments that the program was ineffective:
“Petitioners also challenge the Program based on their perception of its effectiveness and wisdom. They argue, among other things, that it has not succeeded in catching many terrorists. However, we have no way of knowing whether the Program’s enhanced monitoring of aliens has disrupted or deterred attacks. In any event, such a consideration is irrelevant because an ex ante rather than ex post assessment of the Program is required under the rational basis test.”
Fourth and Fifth Amendments:
Next, the court rejected petitioners’ arguments that their 4th and 5th amendment rights were violated and that therefore evidence of their deportability obtained during the program must be suppressed. First, it found neither an egregious violation nor a violation that undermined the probative value of the evidence collected such that suppression under the 4th amendment was warranted:
“The Fourth Amendment does provide protection against random or gratuitous questioning related to an individual’s immigration status …. However, the government does not violate the Fourth Amendment by obtaining documents or statements in the course of an alien’s compliance with a statutorily authorized registration program.”
Moreover, with respect to petitioners’ 5th amendment rights:
“The Fifth Amendment does not protect the petitioners either from being forced to turn over their passports and I-94s or to answer questions related to their immigration status. The Fifth Amendment is not an impediment to the enforcement of a valid civil regulatory regime. This is so for three specific reasons. First, the Fifth Amendment’s act of production privilege does not cover records that are required to be kept pursuant to a civil regulatory regime ….
Second, the Program was a valid reporting requirement. Notwithstanding the protections of the Fifth Amendment, the government may require disclosure of information where the area of inquiry is regulatory rather than criminal, where the field subject to the disclosure obligation is not permeated with criminal statutes, and where there is a substantial non-prosecutorial interest served by the reporting regime …. All of these criteria are satisfied by the Program ….
Third, because they were merely a condition on the continued receipt of an immigration benefit, the statements required by the program were not compelled for purposes of the Fifth Amendment. We have held that statements required as a condition of receiving a government benefit are not protected by the Fifth Amendment because they are not compelled. The statements required under the Program were merely a condition on the continued receipt of the government benefit of being allowed to remain in this country. Any alien who did not wish to register could avoid doing so because the notices requiring registration applied only to those who remained in the United States after a certain date …. Although those subject to the Program were threatened with arrest if they failed to register, this fact does not alter the analysis. Aliens faced arrest only if they enjoyed the benefit without complying with the condition -- just as someone illegally receiving Social Security benefits faces arrest. Although to be sure, the petitioners were illegally present in the country, they enjoyed the de facto immigration benefit of residing in the United States while under the protection of many of our laws.”
Regulatory violations:
Finally, the court rejected petitioners’ arguments that regulatory violations warranted invalidation of the deport orders with prejudice, suppression, or termination without prejudice. Although the court acknowledged regulatory violations - including warrantless arrests, failure of the arresting officer to identify himself or state reasons for arrest, and examination by an officer other than the arresting officer, it found that these violations were neither egregious nor fundamentally unfair or impaired the reliability of the evidence of petitioners’ deportability.
“None of the violations here approached such a level of egregiousness. Warrantless arrests were made, but, when made, there was a powerful showing of probable cause -- in fact, conclusive evidence of deportability. The failure to inform some petitioners of their arrest and reasons for it was entirely harmless, and the interrogation of El Zahr, while undoubtedly unpleasant, did not rise beyond the level of being long and tiresome.”
Thus, neither invalidation of the deport orders nor suppression was warranted.
Nor was termination without prejudice an appropriate remedy, rejecting arguments that the court’s opinions in Montilla and Waldron required otherwise:
“We have held that regulatory violations occurring during a deportation hearing that affect fundamental rights derived from the Constitution or federal statutes require such termination, even without a showing of prejudice. Montilla, 926 F.2d at 170 (requiring termination even when the regulatory violation caused no prejudice); Waldron v. United States, 17 F.3d 511, 518 (2d
16 Cir. 1993) (clarifying that Montilla applies only to cases implicating fundamental rights derived from federal statutes or the Constitution) …. We hold that pre-hearing regulatory violations are not grounds for termination, absent prejudice that may have affected the outcome of the proceeding, conscience-shocking conduct, or a deprivation of fundamental rights.”
Based on this language, it seems that pre-hearing regulatory violations that may actually have prejudiced the respondent in some way, deprived him of fundamental rights, or constituted conscience-shocking conduct could still be grounds for termination ….
Individual claims:
The court also rejected petitioner Najih’s individual claim that there was insufficient evidence to find him removable due to the IJ’s reliance on documents attached to the gvt’s brief that were not formally admitted into evidence and since he had never plead to the charge nor had a formal evidentiary hearing on his removability. However, in a separate opinion, the court found that petitioner Rajah’s case was to be remanded to consider whether an add’l continuance due to his pending labor cert application was warranted.
Attys for Petitioners: Ana C. Pottatz and Wanyong Austin, Lutheran Social Services of New York, New York, NY
Amici: Lynn M. Kelly, Executive Director, Justice Center, New York City Bar Association
Immigration Litigation Update 
