Sudomir v. McMahon

CANBY, Circuit Judge,

dissenting:

With all due respect, I dissent. We are dealing here with a group of plaintiffs who have entered this country illegally or who have overstayed their visas after entering legally. They have applied for asylum, which our statutes authorize for those who cannot or will not return to their own countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42). The government form on which they made their applications advises them: “You may remain in the United States until a final decision is made on your case (or you are notified otherwise by [the Immigration and Naturalization] Service).” Some 45 days after their applications are received, they are subjected to a preliminary INS interview to discourage frivolous applications. Thén they wait — currently from three to six years — for their asylum applications to be processed. While they wait, they cannot work unless they are granted a work permit, issued in the discretion of the INS. None of the named plaintiffs has received a work permit. More than one-fourth of the applicants, if present figures hold true, will ultimately be granted asylum. It is fair to say that all hope to. Yet, they are denied the wherewithal to eat during this three to six year period because, under the Secretary’s interpretation of 42 U.S.C. § 602 (a)(33), they are not “permanently residing in the United States under color of law.” I cannot accept the Secretary’s interpretation as reasonable.

I agree with the majority’s conclusion, contrary to the contention of the Secretary, that plaintiffs are here “under color of law.” Plaintiffs remain in this country with the knowledge and express acquiescence of our government. That is enough; “under color of law” is clearly intended to be more expansive than the term “lawfully admitted,” which appears in the same statutory section.

Where I part company with both the majority and the Secretary is in the interpretation of “permanently.” As the majority concedes and the Second Circuit has decided, “permanently” in this statutory context does not mean “forever.” See Holley v. Lavine, 553 F.2d 845, 851 (2d Cir. 1977), cert. denied, 435 U.S. 947 , 98 S.Ct. 1532 , 55 L.Ed.2d 545 (1978). “Permanent” as defined in the Immigration Act means:

a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with the law.

8 U.S.C. § 1101 (a)(31) (1982). Under the facts of this case, plaintiffs’ residence in this country is “of continuing or lasting nature.” At the minimum, it will last three to six years; for over one-fourth of the plaintiff class, it will last much longer. Most important, plaintiffs’ status is easily “distinguished from temporary,” as the statute specifies. “Temporary” or “temporarily” is used in § 1101(a) of the Act in reference to students admitted to pursue a course of study (15)(F)(1), to tourists and business visitors, (15)(B), to workers admitted for particular jobs, (15)(H)(i), (ii) and (iii), (15)(J), and to those in programs designated by the State Department for teaching or research, (15)(J). The common characteristics of all of these temporary relationships is that they exist for a defined purpose with a defined end, and there is never any intention of abandoning the country of origin as a home. None of the temporary relationships is similar in character to that of plaintiffs, whose applications for asylum are necessarily premised on their being “unable or unwilling” to *1468 return to their countries. See 8 U.S.C. § 1101 (a)(42). Plaintiffs are here in an indefinite status awaiting a ruling on their application for yet another status of indefinite duration.

It is not quite accurate to suggest, as the majority opinion does, that the plaintiffs’ residence is temporary because their “continued presence is solely dependent upon the possibility of having [their] application^] for asylum acted upon favorably.” Supra, p. 1462. The plaintiffs have been informed by the INS that they will be allowed to remain in this country until their applications are acted upon. Their continued presence ends (for about three-fourths of them) upon un favorable action by the Attorney General or his delegate. In this regard, plaintiffs’ status is most analogous to that of temporary parolees and conditional entrants, both of whom are included among those eligible for AFDC as “permanently residing in the United States under color of law.” See 42 U.S.C. § 602 (a)(33).

The majority opinion states that the status of temporary parolees is different because they have been admitted into the country by an official act of the Attorney General, and that the discretion of the Attorney General to admit such parolees is quite limited. But, as the majority acknowledges, prior to the Refugee Act of 1980, temporary parole was used ad hoc to permit large groups of aliens physically to enter the United States pending determination of their admissibility, for asylum or otherwise. See United States v. Kavazanjian, 623 F.2d 730, 732-35 (1st Cir.1980). No individual determination or legitimation of status occurred at the time of parole, but the parolees were eligible for AFDC. As the majority opinion points out, the Refugee Act largely replaced these wholesale paroles of asylum applicants with a system where aliens within the country could apply for asylum. While their applications are pending, the INS assures them that they will be allowed to remain in the country. Their status is so nearly identical to that of the pre-1980 parolees that I cannot conclude that Congress intended different treatment under the AFDC laws which preexisted the Refugee Act. Certainly nothing that Congress said or wrote in the Refugee Act or in its legislative history expressly requires that such a distinction be made.

Plaintiffs are also at least as permanent in their status as are aliens who have been granted an indefinite stay of deportation or an indefinite voluntary departure. The latter two groups are eligible for SSI benefits as aliens “permanently residing in the United States under color of law.” 20 C.F.R. § 416.1618 (a)(5) and (6). They, too, may remain in the country until, and only until, the INS takes action to end their indefinite stays.

I conclude, therefore, that the Secretary’s interpretation of section 602(a)(33) is not a reasonable one, and that plaintiffs are “permanently residing in the United States under color of law” within the meaning of that statute. It is true that such a determination has large consequences. The Service makes much of the fact that nearly three-fourths of the asylum applicants will ultimately be unsuccessful. No figures are given as to how many temporary parolees, conditional entrants, or aliens under indefinite stays of deportation are also ultimately unsuccessful in remaining in this country, but all of those groups are eligible for federally-assisted benefits while they are allowed to be here. But even if the Service is conceded its point, what of the more than one-fourth of these applications whose applicants will ultimately be successful? They will be persons who cannot return to their countries because of persecution or the well-founded fear of it. This country will have recognized that fact and will have given them asylum, but only after a period of three to six years during which they were permitted to remain in the United States, were for the most part forbidden to work, and were denied the means to feed, clothe and house their families. I cannot ascribe to Congress, in passing the Refugee Act for clearly humanitarian purposes, an intent to require victims of persecution to run that kind of gauntlet. I accordingly dissent.