{}To be Argued by:DIOGENES P. KEIGXTOS

FOR THE SECOND ClR~ ’ ~- - ~ "~(,:f\

SYED ABDULLAH~ MOHAMMAD ~ G:~~MO~AHSEEN AFZAL; MUI-L’~~

ZAHID AFZAL; CHOUDHURY MOHAMMADAFFZAL; MOHAh~kD KAMAL AHMED;

(For Continuation of Caption, See Reverse Side of Cover)

ON APPEAl. FROM THE tJ NITED STATES DISTRICT (~OUR,TFOR THE SOU’!’ItEI{N I)ISTRICT OF NEW YORb:

LL__ . 1[ I~1 III ~ I1[I n~lll . ----"

BRIEF FOR DEFENDANT-APPELLANT

i:,

C

MAltY J() WHITF,,United States Attorney lor theSouthern District of New York,Attorney for Defendant.Appellant.

,JAME,~ A. O’BI(IEN IIl,l I( Spcctc l Assistant United States Attorney,

DIOGENES P. KEKA I O ....GII~EON A. SCtiOR,

Assistant United States Attorneys,Of Counsel.

NAZIR AHMED; tLkHIM AHMED; WALID AHMED;ZHUNU AHMED; MOHAMMAD M. ALAM; AKBARALI; HESSAN BESSAUONY ALI; RAFAQAT ALI;MOHAMMAD SHAMSUL ISLAM AI2dAJI; OL~LMAMBIA; MOHAMMAD ARIF; GHUIAdVI ASGHAR;

MOHAMMAD KHALID AWAN; SHAHINSHAHBABAR; MOItI BADAL; H.M. OLIULLAH BADSHA;MUHAMMAD MUNIR BUTT; SHAHEEN AKATARCHAUDHARY; ZIA ULLAH CHAUDHRY; ABDULHALIM CHOWDHURY; MOFFAZZAL HOSSAIN

CHOWDHURY; MAHMOOD CHOUDHURY; MOTIULCHOWDHURY; AZIZ AHMAD DAR; AHMED

YOUSUF DARBAR; DEV DUTT; SYED QALB-E-ABBAS GARDEZI; ABDUL GHAFOOR; MOHAMMED

GHANI; MOHAMMAD AMIR HAMZA; ANWARHAQUE; MOHAMMAD SHAHIDUL HAQUE; REZIAHASNATH; M.D. NEVEL HAYAT; K.H.I. HOSSAIN;

KHADIM HUSSAIN; SYED SAFDAR HUSSAIN;VISHNU INDAR; MOHAMMED N. ISLAM;

MOHAMMED SIRAJUL ISLAM; MOHAMMADJAVED; NASEER AHMAD JAVED; CHAUDRY

JAWAID, GURDIP SINGH JOSAN; MOHAMMADABUL KALAM; MOHAMMAD KAMAL; PRADIPKARMAEAR; MOHAMMAD KHALID; ABDUL

I~tAN; MOHAMMAD KHAN; GOUS KHANDAKER;MAHINDER KUMAR; SURINDER KUMAR; SALEEM

LATIF; HAMED MAHMOOD; MASOUD AKHTERMALIK; MOHA_MMAD RASHID MALIK; NISAR

MALIK; DEVIDAS MANSUKHANI; SYEDSHARAFAT MASHADI; M.D. SHAHJAL MIAH;

MUHAMMAD; MOHAMMAD MUNIR;KAWSER MUSTAFA; MOHAMMED KASEM ABULNABI; ABDELRAHIM HUSSIN NASSER; MAZHARNASER; PUSHPINDER NATH; RIZWAN PASHA;CHANDUBHAI PATEL; DINESHBHAI PATEL;

NAIMESH KUMER PATEL; SABA QAMAR;ABDUL QAYYUM; TEJ RAM; MOHAMMAD

MOTIUR RAHMAN; MOHAMMED H. RAHlYL4~;(Caption Continued on Next Page)

MOHAMMED RA_I-LMAN; MUHAhLMAD NAWAZRAMZAN; NAYIER RASHID: HUSNAIN RAZA;ABDUL REHMAN; ALI AZHAR RIZVI; ABDUL

RUMI; RIAZ SADDIQUE: GIDON SAIDO;MOHAMMAD SALEEM; HASAN SALIM; BATENSEIU~J; HARMINDER SINGH; J,~SWANT SINGH;JOGINDER SINGH; KULWANT SINGH; RANJIT

SINGH; SYED MOHAMMED SIRAJUDDIN; SATPALS. T4AK; M.D. NIAZ UDDIN; MOHAMMAD JAMAL

UDDIN; MOHAMMAD KOMOR UDDIN; SIRAJUDDIN; RAFIQUE UDDIN; SAFAR UDDIN; ZAKA

ULLAH WARICH; PARVEEN KHAN ZAFAR; NANTUQAMRUZ ZAMAN,

Plaintiffs-Appellees,

IMMIGRATION AND NATURALIZATION SERVICE.Defendant-AppeUant.

MD. JAINAL ABEDIN; 7~a, INAL ABDIN; AILSH,~J)MUSTAFA ABID; ESSAM ABOUZEID: MIR NURULAFSAR; ABDUI, AHAD; MOHAMMAD IJAZ AHM~d):

AKRAM AHMED; AM SHAMEEM AHMED; ANISAItMED; FARID AHMED; FAROOQUE AHMED:

FIROZ AHMED; MD. MOSTAQUE AHMED; MISH! JAHMED; MOHAMMED BENJIR AHMED:

MOHAMMED JAMAL AHMED; MOHAMMED S.AHMED; MOH,M~IMED SHUHEL AHMED;

MOH2AVIMED TUFAQUE AHMED; MOHBUB UDDINAHMED; MOINUDDIN AHMED; MOSTAQUE

AHMED: MUYEEN UDDIN AHMED; QUAZI RANAAHMED; QUDDUS AHMED; RASttID AHMED;

ROUF AHMED; SHEIKH AHMED; SIM~ AI!MED;SYED MINI~, AHMED; HAMEED AKHTAR: JANAS

AKHUNZADA; BODRUL ALAM; MD. JANE ALAM;MD. ZAHUIRUL ALAM; MOHAMED ALAM;

MOHAMMAD M. AIAM; NURUL ~I; ARSHADALI; ARSHAD ALI; IMTIAZ ALI; TAYBE ALI;

MOFL~ ALI; SHAUKAT ALI; MUHAMMADAL.MAMOON; MOHAMMED NURUL AMIN;

(Caption Continued on Next Page)

CHAUDARY ANSER; MOHAMMAD NAZIR ARAIN;MOHAMMAD ARSHAD; SRINIVASAN ARUMUGAM;

MOHAMMED ASHRAF; MOHAMMAD HASSANASHRAFUL;,MOHAMMED AWAL; MALIK KHALID

AWAN; MOHAMMAD ARSHAD AWAN;MOHAMMAD RAFIQ AWAN; .ABUL KAIAM AZAD;ABDUL MARUF AZAD; MOHAMMED ABDUL AZIZ;ORACK UDDIN BABU; HAFIZUR RAHMAN BABUL;

MOHAMMED BABUL; MOHAMMED BADAL;HARBANS SINGH BADHAN; MA RAZZAK

BADRUDDIN; MOHAMMAD AFZAL BAIG; ZAICAULLAH BAJWA; SYED A. BAKAR; CHOWDHURYGO[AM BASET: ABUL BASHAR; RAJA FARAKHBASHIR; ABDUL BAYS; MOSTOFA BHUIYA; MD.ANISUL HOQUE BHUIYAN; MD. MIR HOSSAIN

BHUIYAN; RASHEED AHMAD BHUI~rA;SHAKEELA BIBI; MOHAMMAD IRSHAD BUTT;MUHAMMED SADIQ BUTT; ALI AZAM BUYA;

PARMINDER K. CHAHAL; GHOOLAM RASOOLCHAUDARY; ABDUL SATTAR MUZAFAR

CHAUDHARY; AHMAD CHAUDHRY; ZIAUDDINCHAUDHRY; MASUD KHALID CHAUDRY; NISARCHEEMA; MOHAMMAD BASHIR CHOUDHARY;

RIAZ CHOUDHARY; MOHAMMAD ASIFCHOUDHRY; AKHTARUN NABI CHOUDHURY;

MOHAMMED 7.AHUR CHOUDHURY; MD. ABDULCHOWDHURY; MD. ABDUL CHOWDHURY; NURUL

ALAM CHOWDHURY; ABDUL MUKTADIRCHOWDHURY; AHAD CHOWDHURY; AHMEDCHOWDHURY; JEWEL CttOWDHURY; RONJU

CHOWDHURY; QADAR DAD; SUJAN DAS; ASHITKUMAR DEY; ROBINSON UMER DIN; PINTU

DUTTA; SANDO EDASSERY; OUSMANE FALL;NIGIIAT FARIDI; GHAZIABDUL GHUFRAN; ABDULHADI; MOHAMMAD ALI HAIDAR; BITAN HAIDAR;

MOHAMMED HAIDER; MOHAMMED RAZIBULHAQ; HASINA HAQUE; MOHAMMED HAQUE;MOttAMMAD BARUL HAQUE; MUHAMMAD

EMDADUL HAQUE; ABDUL HAMEED HAREY;(Caption Continued on Next Page)

MD. EMRUL HASAN; ABUL H_ASHEM; ABULHASNATH; RANA HASSIN; JAFRAN HOQUE:

MOZAMMEL HOQUE; KHALID SHAHEEDHOSSAIN: MOHAMMED HOSSAIN; MD. ANWAR

HOSSAIN; MD. MONWAR HOSSAIN; SI-IAKIL~_WATHOSSAIN; 2’.kKIR ttOSSAIN; MD. ABUL HOSSAIN-

’ NSK; UPAL HUSAL ; MOHAMMED ABUL HUSHAIN;DELWAR HUSSAIN; MANZOUR HUSSAIN; MUNIRHUSSAIN; SAJJAD HUSSAIN; MOHAMMED IJAZ;MOHAMMAD ILYAS; SAMDANI IQBAL; SHEIKHIQBAL; ABDUL HASHIB ISLAM; JOYNUL ISLAM;

MD. HEDAYTUL ISLAM; MOHA,~flMAD ISLAM;MOHAMED NASRUL ISLAM; MOHAMMAD NURULISLAM; MOHAMMAD RUHUL ISLAM; MO]~L%MMED

BADRUL ISLAM; MOHAMMED SAFIQUE ISLAM;NURUL ISLAM; REAZUL ISLAM; MOHAMMAD

ISMAIL; ZARAH JAHAN: MOHAMMED JAHANGIR:ABDUL JALIL; ABDUL JALIL; AHAMMED KABIR:

BASSIROU KANE; MOHAMMED SIKENDERKARIM; FAKHAR KASHMIRI; MOHD. KASLAM; MD.

ABUL KHAIR; MOHAMMED ABDUL KHALIQUE;ABDUR RAZZAK KHAN; AKMAL H. KHAN; ASHRAF

KIIAN; BAYAZID KHAN; FARUK KHAN; FARI~KKHAN; FEEROZ IG~AN; GItUI~~2vl KItAN;

HABIB IrdtAN; ttABIBULhAH KHAN; ISMAII,KHAN; IO, TakL KHAN; MAQSUD KHAN; MD.

ARMAN KHAN; MOItAMMAD HASSAN KHAN;MOtIAMMAD JAVED KHAN; MOHAMMED N.I J.

KI~tAN; MUHAMMAI) SALEEM KHAN; NASIRKHAN: JAItANGIR KHAN DAKER; MOttAMMAI)VdtOKAR; DEEPAK KUMAR; PAWAN Kb,’MAR;

I~2~JINDER KUMAR; KAMESII KUMAR;MOHAMMAD IATIF; MUIt.A2VIMED LUTU;

ABUL KALAM MAttMOOD; ARSHAD MAHMOOI);ARSHID MAHMOOD; SHAHID MAHMOOD;

AMINA MALEK; MASOOD MALEK; MOHAMMADSALEEM MALIK; SHAHID RIAZ MALIK; SIKANDERMANU; TAH!R MAQBOOL; BUDRUS MEAH; MOHI).

DUDU MEAH; SULTAN MEAH; MALEK MIA;(Caption Continued on Next Page)

MOHAMMED RAFIQUE MIA; MD. ATAULLAHMIAH; KHALID MIAN; ANOWAR MIHA; IMJAD

HASSAN MIRZA; KI4MR MOHAMMED; NASIR U.MOHAMMED; ABDUL MOMIN; KHAN

MOHAMMED MONZUR; KHAN MOHAMMEDMONZUR; MOHAMMAD ALI MOSAFIR; RAHMAN

AHMAD MOTIUR; ASHRAF MUHAMMAD;KULWANT MULTANI; MOHAMMED ABDUL

MUMIN; TAHIR MUNIR; GULAM MUSTAFA; S.M.GOLAM MUSTAFA; VISHWA NATH; MOHAMMEDSHAIKH NAWAZ; SAYEED NAZIM; HAMAYUN M.NAZIR; RAZIA NAZMI; ALAM MUHAMMAD NOOR;

MD. ABDUL NOOR; JILA NOORBARANI;JASHVANTRAI K. PANWALA; AKMR KARIMPATWARI; RATAN PA’IS;VARY; JEBUNESSA

PERVIN; AAMER SOHAIL QURESHI; GHUFRANQURESHI; SAJIK JUNAID QURESHI; FAZEL

MUSTAFA RABBI; ANSAR RAFIQUE; MOHAMMADRAFIQUE; MUHAMMAD RAFIQUE; LUTFUR

RAHMAN; MANSUDUR RAHMAN; MOHAMMEDFAYZUR RAHMAN; MOHAMMED MUHIBURRAHMAN; MUHAMED AKLASHUR RAHMAN;

PARVEEN RAHMAN; MOHAMMAD ALYASRAJPUT; LEKH RAM; MAGID RASHAD; ABDUR

RASHID; MD. HARUN UR RASHID; MOHAMMAD S.RAZAK; MOHAMMAD RAZZAQ; ABDUR

RAZZAQUE; KANAK REZA; SYED RIZVI; PRADIPSAHA; ABDUS SALAM; MOHAMMED SAMAD;LIAQAT ALl SAQIB; ABDUS S~ SARKER;

SHEAK AZAM SARWAR; ABDUS SATTAR; MOBEDU. SHAFIQUE; HAJI SYED SADDAT ALl SHAH;

HASHMUKH N. SHAH; SAID ALI SHAH; MD.EMDADUL HAQUE SHAHAN; MOHAMMAD

SHAttBAZ; SHEII~I FARHAT SHAHBAZ; HABIBURRAHIM SHAHI; MD. ABDUS SHAHID; IMTIAZ

SHAIDA; MALIK ZAMAN SHAR; AKTER SHARIF;VIJAY SHARMA; MOHAMMAD A. SHEIKH;SAIED AHMED SIDDIQUI; ABDUL BAREK

SIKDER; BALDEV SINGH; CHARANJIT SINGH;(Caption Continued on Next Page)

DALVIR SINGH; GURDIP SINGH; HARDAM-M~SINGH: HARJINDER SINGH, JAGTAR SINGH; PAL

SINGH: RANVINDER SINGH: IG~WAL SINGH;SAMPU1L~N SINGIt; SHER,JANG SINGH; SUCtD.

SINGH; SURJIT SINGtt; SURJIT SINGH; RAHMANSIPRA; MOHAMED SOI~JMAN; tUkHMATULLAH

TAHER; SHAII’~tIL A. TALUKDAR; PRABESHTALUKDER; AYAZ TAREEN; BAtLAR UDDIN;

JALAL UDDIN; JAMAL UDDIN; JAMALMOIIAMMED UDDIN; KOMOR UDDIN, MAHBUB

UDDIN; RAFIQUE UDDIN; SAFAR UDDIN;MOtL&MMED HAMID ULLAH; S.M. WALl ULLAH:

KHALIL UR-REHMAN; SM. ABDUL WAHED;RIZWAN A. WARRIACH; MOHAMMAD YAQOOB:

IU~,JA M. YAQUB; MOHAMMED YUNUS: IG~MRULZAMAN: GUL 7AE~IIR; JAHAN ZEB,

Plaintiff~.Appellees,

IMMIGIb~TION AND NATUP.~LIZATION SERVICE,Defendant-Appelhm t.

TABLE OF CONTENTS

Preliminary Statement ....................................

Statement of Subject Matter and AppellateJurisdiction ..................................................

Issues Presented for Review ............................

Statement of the Case .......................................

A. Statutory Background .............................

B. Administrative Adjudication of SAWClaims ....................................................

C. Plaintiffs’ SAW Applications .................

D. District Court Proceedings ....................

1. Subject Matter Jurisdiction .............

2. The Merits ........................................

Summary of Argument ....................................

ARGUMENT

POINT I..-THE DISTRICT COURT LACKEDSUBJECT MATTER JURISDICTION OVERPLAINTIFFS’ CI~IMS .....................................

A. Standard of Review ...............................

B. The District Court Lacked SubjectMatter Jurisdiction ...............................

1. Applicable Law .................................

2. Plaintiffs’ Claims Are SubstantiveChallenges Dressed Up asProcedural Due Process Claims ......

PAGE

1

5

5

6

6

8

11

12

13

14

15

16

16

17

18

21

ii

POINT II--THE INS DID NOT EMPLOY ANIRREBUTTABLE PRESUMPTION OF FRAUDAND DID NOT IMPROPERLY RELY ONPLAINTIFFS’ NATIONALITIES ORETHNICITIES IN DEWING THEIR SAWAPPLICATIONS ...............................................

A. Standard of Review ...............................

B. The District Court Erred in Denyingthe Government’s Motion forSummary Judgment and GrantingPlaintiffs’ Cross-Motion for SummaryJudgment on the Issue of Whether theINS Correctly Denied Plaintiffs’ SAWApplications ...........................................

1. The INS Did Not Employ anIrrebuttable Presumption of Fraudin Denying Plaintiffs’ Applications.

2. The INS Did Not Improperly Relyon Plaintiffs’ Nationalities orEthnicities in Denying Their SAWApplications ......................................

POINT III-TtIE DISTRICT C{)IlltW EIH~EI) HOI,I)IN(~ T}IAq I)LAINT!FFS HAVE A RI[}IIT

TO QUAI,IFIEI) INTERPRETEI(S AND TIIAT’riie INS VIOLATED ANY SI!Ctl RI[;IIT ..........

A. Plaintiflh Have No Constitutional orStatutory Right to QualifiedInterpreters ...........................................

B. Plaintiffs Failed to EstablishPrejudice Attributable to Any AllegedLack of Qualified Interpreters ..............

CONCLUSION ......................................................

PAGE

30

30

31

31

42

42

45

50

olo111

PAGE

TABLE OF AUTHORITIES

Cases:

Abdullah et al. v. INS, 921 F. Supp 1080(S.D.N.Y. 1996) ..........................................

1

Atlantic Mutual Ins. Co. v, Balfour MacLaineInt’l, 968 F.2d 196 (2d Cir. 1992) ..............

18

Augustin v. Sara, 735 F.2d 32 (2d Cir. 1984) 47

Ayala-Gerena v. Bristol Myers-Squibb Co., 95F.3d 86 (lst Cir. 1996) ...............................

43

Ayuda, Inc. v. Reno, 7 F.3d 246 (D.C. Cir.1993), cert. denied, 115 S. Ct. 70 (1994)... 21, 30

Barraza-Rivera v. INS, 913 F.2d 1443 (9th 48Cir. 1990) ...................................................

Bertrand v. Sava, 684 F.2d 204 (2d Cir.36, 411982) ...........................................................

Bryant v. Maffuci, 923 F.2d 979 (2d Cir.),cert. denied, 502 U.S. 849 (1991) ..............

49

Calderon-Ontiveros v. INS, 809 F.2d 1050(5th Cir. 1986) ............................................

47

Catlin v. Sobol, 93 F.3d 1112 (2d Cir.1996) ....................................................... 23, 27, 32

Ceta Workers’ Org. Comm. v, City of NewYork, 617 F.2d 926 (2d Cir. 1980) .............

42

Cleveland Board of Education v. LaFleur, 23414 U.S. 632 (1974) ...................................

Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994) 31

iv

Cordoba-Chaves v. INS, 946 F.2d 1244 (7thCir. 1991) ..................................................

Cozart v. Weinfeld, 687 F.2d 1058 (7th Cir.1982) ...........................................................

Czerkies v. U.S. Dep’t of Labor, 73 F.3d 1435(7th Cir. 1996) ............................................

DeCintio v. Westchester County Medical Ctr.,821 F.2d 111 (2d Cir.), cert. denied, 484U.S. 965 (1987) ..........................................

G.T. Terminal Packaging Co. v. Hawman,870 F.2d 77 (2d Cir. 1989) ........................

Garcia-Mir v. Meese, 781 F.2d 1450 ~llthCir. 1986) ..................................................

General Elec. Uranium Mgt. Corp. v. Dep’t o[Energy, 764 F.2d 896 (D.C. Cir. 1985) ......

General Elec, v. New York State Dep’t ofLabor, 936 F.2d 1448 (2d Cir. 1991) .........

Goldberg v. Kelly, 397 U.S. 254 (lq70) ............

Ilaitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864 (S.I). Fla,, 1988), all’d, 872F.2d 1555 (llth Cir. 1989), air’d, 498U.S. 479 (1991) ..........................................

Haitian, Refugee Cettter, Inc. v. Nelson, 872F.2d 1555 (llth Cir. 1989) ........................

Hartooni v. INS, 21 F.3d 336 (9th Cir. 1994).

Hotel & Restaurant Employees Union Local217 v. J.P. Morgan Hotel, 996 F.2d 561(2d Cir. 1993) .............................................

PAGE

42

24

26

49

43

45

!8

32

48

29, 49

46

48

18

V

PAGE

International Ore & Fertilizer Corp. v. SGS

Control, 38 F.3d 1279 (2d Cir. 1994),cert. denied, 115 S. Ct. 2276 (1995) ..........

16

Kaoru Yamataya v. Fisher, 189 U.S. 8647

(1.903) .........................................................

Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994) .....48

Kronfeld v. Trans World Airlines, 832 F.2d726 (2d Cir. 1987), cert. denied, 485 U.S. 321007 (1988) ................................................

Landon v. Plasencia, 459 U.S. 21 (1982) .........44, 45

Larrabee by Jones v. Derwinski, 968 F.2d1497 (2d Cir. 1992) ....................................

26

Lying v. Payne, 476 U.S. 926 (1986) .................45

Malik v. Meissner, 82 F.3d 560 (2d Cir. 1996)18

Mathew~ v. Eldridge, 424 U.S. 319 (1976) ...... 44, 46

McNary v. Haitian Refugee Center, Inc., 498U.S, 479 (1991) ........................................

Michael H. v. Gerald D,, 491 U.S. 110 (1989).

Moore v. Rose, 687 F.2d 604 (2d Cir, 1982),cert. denied, 459 U.S. 1115 (1983) ............

42

Naraltjo.Aguilera v. U.S. INS, 30 F.3d 1106(9th Cir. 1994) ............................................

8, 22

P.O.P.S.v. Gardner, 998 F.2d 764 (9th Cir. 241993) ..........................................................

Parcham v. INS, 769 F.2d 1001 (4th Cir. 431985) ...........................................................

3, 14, 16

23, 27

vi

PAGE

Perales v. Re~m. 48 F.3d 1305 (2d Cir. 1995),cert. denied, 116 S. Ct. 699 (1996) ............ 20, 25

Personnel Admin. of Mass. v. Feeney, 442f1

U.o. 256 (1979) .......................................... 41

Rahim v. McNo:y, 24 F.3d 440 (2d Cir.1994) .................................................... 8, 9, 10, 11,

29, 42, 49

Reno v. Catholic Social Services, Inc., 509U.S. 43 (1993) ............................................ 3, 5, 14

Rodriguez v. City of New York, 72 F 3d 1051(2d Cir. 1995) ............................................. 49

Ruginski v. INS, 942 F.2d 13 (lst Cir.1991) ........................................................ 25, 28, 37

Sealand Terminals, Inc. v. Gasparic, 7 F.3d321 (2d Cir. 1993) ...................................... 37

Soberal.Perez v. IIeckler, 717 F.2d 36 (2d Cir.1983), cert. denied, 466 U.S. 929 (1984)... 47

Stanley v. Illinois, 405 U.S. 645 (1972) ........... 2:~

Suburban O’tlare Comm’n v, Dole, 787 F.2d186 (7th Cir.), cert, der/,ied, 479 U.S. 847 18(lq8(.;) ...........................................................

Sugrue v. Derwinski, 26 F.3d 8 (2d Cir.1994), cert. denied, 115 S. Ct. 2245(1995) ......................................................... 26

Touche Ross & Co. ~. Securities & Exch.Comm’n, 609 F.2d 570 (2(1 Cir. 1979) ....... 43

vii

Transatlantic Marine Claims Agency, btc. v,Ace Shipping Corp. Div. of Ace Young,1997 WL 154089 (2d Cir. Mar. 1.-3, 1997).

United States ex tel. Bilokumsky v. Tod, 263U.S. 149 (1923) ..........................................

United States v. Brignont-Ponce, 422 U.S.873 (1975) ..................................................

United States v. Chase, 18 F.3d 1166 (4thCir. 1994) ...................................................

United States v. Jackson, 652 F.2d 244 (2dCir.), cert. denied, 454 U.S. 1057 (1981)...

United States v. Martinez-Fuerte, 428 U.S.543 (1976) ..................................................

United States v. Weaver, 966 F.2d 391 (SthCir.), cert. denied, 506 U.S. 1040 (1992)...

Vargas v. INS, 938 F.2d 358 (2d Cir. 1991) ....

Village of Arlington Heights v. MetropolitanHous. Dev. Corp., 429 U.S. 252 (1977) ......

Vlandis v. Kline, 412 U.S. 441 (1973) .............

Weinberger v. Salfi, 422 U.S, 749 (1975) .........

Yashon v. Hunt, 825 F.2d 1016 (6th Cir.1987), cert. denied, 486 U.S. 1032 (1988).

Administrative Decisions:

IVIatter of Chavez-Calderon, 20 I. & N. Dec.744, 1993 WL 495141 (BIA 1993) .............

PAGE

18

48

42

24

4I

41

41

43

41

23

21

48

45

Vlll

PAGE

Statutes:

8 U.S.C. § 1160 ....................................... 2, 8, 9, I0, II,12, 19, 25, 36

8 U.S.C. § l160(e) .............................. 10, 19, 20, 42, 49

8 U.S.C. § 21

8 U.S.C. § 21

8 U.S.C. § 19, 20

8 U.S.C. § 7

8 U.S.C. § 47

18 U.S.C. 12

18 U.S.C. 12

28 U.S.C. 6

28 U.S.C. § 1827 ............................................... 47

Pub. L. No. 99.603, 100 Stat. 335e (1986) ...... 2

Rules and Regulations:

Fed. R. Civ. P. 56(c) ..........................................

1 C.F.R. § 305.85-4 (1993) ................................

8 C.F.R. § 103.2(b)(16)(i) ..................................

8 C.F.R. §

8 C.F.R. §

8 C.F.R. §

8 C.F.R. §

8 C.F.R. §

1229b(b)(1) ......................................

1229b(b)(3) ......................................

1255a(f)(1) .......................................

1324a ...............................................

1423 .................................................

§ 371 .................................................

§ 1001 ...............................................

§ 1291 ...............................................

32

40

9, 49

103.3(a)(3) ................................ 9, 10, 20, 49

103.5(b) ............................................ 10

210.10) ............................................. 8

210.2(a)(1) ....................................... 9

210.2(c) ............................................. 9

ix

PAGE

8 C.F.R. § 210.2(f) .............................................9, 10

10¯ q a ¯ ee ~ eo8 C.F.R. § 210.2(g) ..................................

10, 11, 25, 368 C.F.R. § 210.3(b)(1) .............................9

8 C.F.R. § 210.4(b)(2) .......................................

54 Fed. Reg. 29,344 (i989) ................................ 40

Legislative History:

H.R. Rep. No. 682, pt. 1, 99th Cong., 2d Sess.45 (1986), reprinted in 1986U.S.C.C.A.N. 5649 ......l./....w.eelwi. otm. e,ttJee" tt. ¯

S. Rep. No. 132, 99th Cong., 1st Sess. 1(1985) .........................................................

129 Cong. Rec. 12814 (1983) ............................

Other Authority:

Ashbrook, Note, The Unauthorized Practiceof Law in Immigration: Examining thePropriety of Non-Lawyer Representation,5 Geo. J. Legal Ethics 237 (1991) .............

Duflleld and Harem, Special AgriculturalProgram, 2 No. 7 Mex. Trade & L. Rep.14 (1992) ....................................................

1 Jack B. Weinstein & Margaret A. Berg, r,Weinstein’s Federal Evidence (2d ed.1997) ...........................................................

7

7

45

4O

31

24

Rochvarg, Report to the AdministrativeConference -- Reforming ~heAdministrative Naturalization Process:Reducing Delays While IncreasingFairness, 9 Geo. Immigr. L.J. 397 (1995).

Roberto Suro, Migrants’ False Claims: Fraudon a Huge Scale, N.Y. Times, Nov. 12,1989 ............................................................

PAGE

31

38

FOR THE SECOND CIRCUIT

Docket No. 96-6206

i i i ii ii

SYED ABDULLAH, et al.,

Plaintiffs.Appellees,

IMMIGRATION AND NATURALIZATIONSERVICE,

Defendar~t-Appellant.

BRIEF FOR DEFENDANT-APPWLLANT

Preliminary Statement

Defendant-Appellant Immigration and Naturali-zation Service ("INS") appeals from a June 5, 1996judgment of the United States District Court for theSouthern District of New York (Hon. Allen G.Schwartz). Joint Appendix ("JA’) 1908-09. The judg-ment was entered in accordance with a March 29,1996 decision of the district court (reported at 921 F.Supp. 1080 (S.D.N.Y. 1996)) denying the INS’s tions for dismissal of the consolidated complaints forlack of subject matter jurisdiction and failure to statea claim upon which relief can be granted. JA 1865.The district court also denied the INS’s motion for

2

summary judgment and granted in part plaintiffs’cross-motion for summary judgment. Id.

Each of the 437 plaintiffs is an illegal alien whounsuccessfully sought temporary residence status asa Special Agricultural Worker ("SAW") under section302 of the Immigration Reform and Control Act of1986 CIRCA"), Pub. L. No. 99-603, 100 Star. 3359,3417-22 (1986) (codified at section 210 of the Immi-gration and Nationality Act of 1952, as amendedCINA"), 8 U.S.C. § 1160). The SAW program, one two amnesty initiatives created by the IRCA, allowedillegal alien farmworkers to obtain temporary, thenpermanent, resident status in the United States.

The INS denied plaintiffs’ SAW applications forlack of credibility, in many instances because sup-porting statements submitted by plaintiffs" purportedemployers -- who had been convicted of furnishingfraudulent documents in support of other SAW appli-cations -- were not credible, and because evidencewholly independent of those criminal convictions con-tradicted plaintiffs’ claims of having performed thestatutorily required agricultural employment. Plain-tiffs challenged the INS’s demals in the district court,asserting that INS officials unlaw_ffilly (1) applied irrebuttable presumption of fraud based on thecriminal convictions of plaintiffs’ purported employ-ers, (2) based ~.ecommendations to deny applicationson plaintiffs’ nationalities or ethnicities, and (3)failed to provide qualified interpreters at the inter-views concerning their SAW applications- Plaintiffsalso claimed that the INS failed to transcribe or rec-ord those interviews, and failed to afford plaintiffs anopportumty to confront and cross-examine the iNS’switnesses or to inspect the INS’s adverse evidence.

3

The INS moved to dismiss the complaints for lackof subject matter jurisdiction and failure to state aclaim upon which relief can be granted. The INS alsomoved for summary judgment. The district court heldthat it had subject matter jurisdiction over plaintiffs’claims and that INS officials improperly (1) appliedan irrebuttable presumption of fraud based on thecriminal convictions of plaintiffs’ purported employ-ers, (2) recommended denial of plaintiffs’ applicationsbased in part on their nationalities or ethnicities, and(3) failed to provide qualified interpreters at the in-terviews concerning plaintiffs’ SAW applications. Thedistrict court rejected plaintiffs’ remaining claims.

The district court’s decision should be reversed forseveral reasons. Above all, the court lacked subjectmatter jurisdiction over plaintiffs’ challenges. At bot-tom, this action is an impermissible attempt to obtaindistrict court review of the INS’s denial of plaintiffs’SAW applications. Although plaintiffs purport tomodel their case on McNary v. Haitian Refugee Cen-ter, Inc., 498 U.S. 479 (1991), which permitted dis-trict court review of collateral constitutionalchallenges to an agency’s procedures, plaintiffs ac-tually challenge the merits of the INS’s decisions ontheir SAW applications. Thus, district court review isstatutorily barred, and plaintiffs’ claims are subjectto judicial review exclusively by the courts of appealsin conjunction with petitions for review of any finalorders of deportation. Under Reno v. Catholic SocialServices, Inc., 509 U.S. 43 (1993), district court ju-risdiction over collateral, procedural challenges underMcNary is proper only if the administrative record isinadequate for court of appeals review of those chal-lenges, and thus only if the challenges require districtcourt discovery. Here, plaintiffs’ challenges can all beadequately reviewed by a court of appeals upon the

4

administrative record. Indeed, plaintiffs never servedthe INS with any discovery requests in this case, thusdemonstrating the adequacy of the administrativerecord. Accordingly, this action should have beendismissed for lack of subject matter jurisdiction. Left,undisturbed, the district court’s decision would per°mit any group of disappoin~d SAW applicants tt~evade the IRCA’s exclusive review provisions merelyby disguising a challenge to INS’s substantive de-terminations on their applications as a proceduraldue process attack.

The district court, in any event, erred in upholding~" " s’ the merits. The INS plainly didpk~mtlft~’ claims on

not use an irrebuttable presumptmn of fraud ba.-.edon the convictions of plaintiff q° purported emplc~yer-~-Rather, the INS properly denied plaintiff/SAW ap-plications as not credible because° inter alia~ plato-tiffs failed to overcome the INS~s evidence~ whollyindependent of the convictions, that c~mtradictedplaintiffs" assertions of qualig’ing a~,,riculturai em-ployment. Moreover~ the recor~l unamblguc, ug~yshows that the INS did not lmpr~perly rely ~n plato-tiffs ~ nationalities or ethmctt!e~ in denying their SAW

applications.

Plaintiffs’ claim that the alleged lack of quakedinterpreters at the inters’jews on their SAW applica-tions denied them due process is baseless. As unsuc-cessful SAW apphcants, plaintiffs failed ~odemonstrate a due process right to such interpreters.Moreover, because plaintiffs failed to show prejudicefrom the al!eged lack of qualified interpreters, i.e.,that the presence of such inte~reters would havechanged the outcome of their appficat;.ons, their due

process claim should have been rejected.

5

In sum, because the district court lacked subjectmatter jurisdiction over plaintiffs’ claims, and be-cause those claims were meritless, the judgment ofthe district court should be reversed.

Statement of Subject Matter and AppellateJurisdiction

The district court lacked subject matter jurisdictionover this action under section 210(e) of the INA, U.S.C. § l160(e), and Reno v. Catholic Social Services,Inc., 509 U.S. 43, 56, 60 (1993). See Argument, PointI.B., infra. This Court has appellate jurisdiction be-cause this timely appeal was taken from a final orderof the district court entered on June 5, 1996. See 28U.S.C. § 1291.

Issues Presented for Review

1. Whether the district court lacked subject mat-ter jurisdiction where plaintiffs’ claims, which pur-port to challenge allegedly unconstitutional INSprocedures, essentially challenge the INS’s denials ofplaintiffs’ SAW applications on their merits and arereviewable by a court of appeals on the administra-tive record.

2. Whether, in denying plaintiffs’ SAW applica-tions, the INS irrebuttably presumed the applicationsfraudulent where the INS based its denials in part onevidence wholly independent of the fraud convictionsof plaintiffs’ alleged employers.

3. Whether, in denying plaintiffs’ SAW applica-tions, the INS improperly relied on plaintiffs’ na-tionalities or ethnicities.

6

4. Whether theplaintiffs qualified interpreters deniedprocess.

Statement of the Case

A. Statutory Background

INS’s alleged failure to affordthem due

Acknowledging a large illegal alien population thatcould be neither ignored nor practically deported,Congress enacted in the IRCA a number of measures,including a one-time amnesty program that it be-

lieved would enhance the nation’s control over immi-gration in the future. See H.R. Rep No. 682, pt. 1,99th Cong., 2d Sess. 45 (1986), reprinted in 1986U.S.C.C.A.N. 5649, 5650. In general, the !RCA wasintended to stem the flow of illegal aliens across theUmted States’ borders by making it unlawful f(~remployers in this country to hire undocumented per-sons. ld.; see 8, U.S.C. § 1324a. Thu,~, a ,~ubstantmlportion of the IRCA was devoted to the strengtheningof immigration enforcement efforts and to the elimi-nation of the "mag:mt? effect of employment in theUnited States. See H.R. Rep. No. 682, p~ 1 at 45-46~

" ~ N 56,t9-50: So Repo No.reprinted in 1986 U.S.C.C.A., -132, 99th Cong., 1st Seas. 1 {1985}: 8 U~S.C. § 1324a.

Congress also recognized in the IRCA, hgwever,that "[a]gricultural interests, particularly westerngrowers of perishable agricultural commodities ---ha[d] come to rely heavily on the existence of an un-documented work force," and "that employer sanc-

tions [would] result in the removal of substantialnumbers of undocumented individuals from the agri-cultural work force." H.R. Poop. No- 682, pt. 1 at 83,reprinted in 1986 U.S.C.C..-LN- 5687. At the sametime. Congress wished ~to protect [agricultural]workers to the fuHe~ exten~ ~f all fe~eral~ ~*.a~e and

7

local laws" pertaining to wages, hours, and workingconditions. Id. at 84, reprinted ilt 1986 U,S.C.C.A.N.5688. Congress concluded that it would be

[m]ost consistent with the objective of creat-ing a free-market atmosphere within thesphere of agricultural employment in perish-able agricultural commodities in the UnitedStates... to permit any workers who now orin the future may be allowed to perform per-ishable agricultural labor in the UnitedStates to become lawful permanent residentaliens of the United States.

H.R. Rep. No. 682, pt. 1 at 84, reprinted in 1986U.S.C.C.A.N. 5687.

Congress thus created in section 302 of the IRCA aprogram to legalize the status of certain alien agri-cultural laborers -- termed Special AgriculturalWorkers ("SAWs") -- hving in the United States. See 8U.S.C. § 1160; see also Nara~jo-Aguilera v. U.S. INS,30 F.3d 1106, 1108-09 (gth Cir. 1994) (discussingIRCA’s amnesty programs). In the SAW program,Congress established four preconditions that had tobe met by an otherwise illegal alien seeking amnesty.The alien had to prove that he or she (1) timely ap-plied for legalization as a SAW (i.e., during the 18-month application period between June 1, 1987 andNovember 30, 1988), see 8 U.S.C. § ll60(a)(1)(A); resided in the United States, see id. § 1160(a)(1)(B)(i);(3) performed "seasonal agricultural services" in theUnited States for at least 90 "man-days" during the12-month period ending on May 1, 1986, .see 8 U.S.C.§ 1160(a)(1)(B)(ii), (h); 8 C.F.R. § 210.1(j); admissible to the United States as an immigrant, see8 U.S.C. § 1160(a)(1)(C). See also Rahim v. McNary,

8

24 F.3d 440, 441-42 (2d Cir. 1994) (discussing eligibility requirements), An alien who met these fourrequirements was accorded temporary lawful resi-

dent status, see 8 U.S.C. § !160(a)(1), and could even-tually become a lawful permanent resident, see id.§ 1160(a)(2); Rahim, 24 F.3d at 441.

B. Administrative Adjudication of SAW Claims

An alien who sought temporary lawful status as aSAW was required to file an application and support-ing documentation with either an INS legalizationoffice or a Qualified Designated Entity. See 8 U.S.C.§ !160(b)(1), (2), (4); 8 C.F.R. § 210.2(a)(1). regulations promulgated by the Attorney General,once an alien filed a SAW application and was inter-viewed by an INS legalization officer CLO*’)° see C.F.R. § 210.2(c)(2)(iv), the INS would authorize alien to accept employment in the United Statespending final action on the application° unless theapplication was frivolous on its face. See 8 U.S.C.§ l160(d)(2)(B); 8 C.F.R. § 210.4fl))(2).

Once an alien’s SAW application was complete, anLO made an initial recommendation to an INS Re-~onal Processing FaciliW CRPF) el;her to approveor to den3" the application. See Rahim, 24 F.3d at 441.If the LO recommended approval and the RPF can-cuffed, the RPF would notify the S.~r applicant thatthe application had been approved. Id. If the LO rec-ommended denial and the RPF concurred, the RPFwould send the applicant a notice of intent to deny,advising the applicant of the grounds for the denialand inviting the applicant to rebut the RPFs deter-ruination by submi~ing further evidence Lv_ s-apport ofthe SAW application. See i d.: 8 C.F.R.§ 103.2(b)(16)(i).

9

If, despite the applicant’s response, the RPF ad-hered to its determination that an application shouldbe denied, it would notify the applicant of the denial.8 C.F.R. §§ 103.3(a)(3), 210.2(i); Rahim, ~4 F.3d at442. The RPF’s notice described the applicant’s rightto appeal the determination to the INS’s LegalizationAppeals Unit CLAU"), which was "authorized tomake the final administrative decision in each [SAW]case." Rahim, 24 F.3d at 442; see also 8 U.S.C.§ l160(e)(2)(A); 8 C.F.R. §§ I03.3(a)(3),

In accordance with 8 U.S.C. § l160(e)(2)(B), SAW applicant could submit to the LAU on appealsuch "additional or newly discovered evidence as maynot have been available at the time of the determi-nation." Id.; see 8 C.F.R. § 103.3(a)(3)(i). Upon filing of an appeal, the RPF again reviewed the file. Ifthe RPF determined that evidence submitted on ap-peal rebutted the initial denial, the RPF could reopenthe application and issue a new decision approvingthe application. See 8 C.F.R. §§ 103.5(b), 210.2(g). the RPF determined that its original decision wascorrect, it forwarded the file to the LAU for appellate

consideration. See 8 C.F.R. § 103.3(a)(3)(iii).

If on appeal the LAU rejected the RPF’s decision,the LAU could either approve the SAW applicationoutright or remand the matter to the RPF for furtherconsideration. Rahim, 24 F.3d at 442. If, however, theLAU upheld the denial, the LAU issued a final noticeof denial, which concluded the proceedings. Id.; see 8C.F.R. § 103.3(a)(3)(iii).

A SAW applicant bore the burden of establishing,by a preponderance of the evidence, performance ofthe requisite ninety days of qualifying seasonal agri-cultural services. See 8 U.S.C. § ll60(b)(3)(B)(i);

10

C.F.R. § 210.3(b)(1); Rahim, 24 F.3d at 441. To meetthis burden, a SAW applicant was required to"present evidence of eligibility independent of his orher own testimony, such as an employer’e payroll rec-ords or affidavits by ag-cicultural producers, foremen,farm labor contractors. ¯ ¯ or other persons with spe-cific knowledge of the applicant’s employment." Ra-him, 24 F.3d at 44]. The regulations required thatdocumentation submitted by a SAW applicant had togive rise to a "just and reasonable irference" that theapplicant had fulfilled the employment conditim~s, 8C.F.R. § 210.3(b)(1), and stated that any "inferen~[s]to be drawn from the documentatmn provided shalldepend; on the extent of the documentation, itscredibibt:, and amenability t,J verification," id.; see 8

U.S.C. § l l60(b)(a)(B)0ii).

The regulations also afforded ’~he INS wide latitudein verii~ing SAW applicants’ ciaims. See 8 C.F.R.§ 210.30))(3) ("All evidence of identity, qualifyingemployment, admissibility, and ::hgibflity submittedby an applicant for adjustment of status under [theIRCA] will be subject to verificatiem by the [INS].").In ve~g an applicant’s evidence, the INS could"solicit from a~cultural producers, farm labor con-tractors.., and other groups or orgamzations whichmaintain records of employment, lists of wdrkersagainst which evidence of qua ;Lifying employment canbe checked." Id. "If such corroborating e,xidence ~ notavailable and the evidence provided is deemed insuf-ficient, the appiica~ion may be denied." Id.

In the event the alien met the regulator)" burden ofproviding evidencc giving rise to a "just and reason-able inferer~ce" that he or she had worked the re-quired period, "the burden then shift[ed] to theAttorney General to disFrove the alien’s evidence

11

with a showing which negates the reasonableness ofthe inference to be drawn from [that] evidence." 8U.S.C. § ll60Co)(3)(B)(iii).

C, Plaintiffs’ SAW Applications

Plaintiffs are all individuals whose applications fortemporary resident status as SAWs were finally de-nied by the LAU. Their applications were generallyadjudicated by the INS in the following manner.Plaintiffs originally filed their applications with theLO. JA 140. After an interview, the LO recommendeddenials of plaintiffs’ applications on grounds includ-ing suspected fraud. Id. The RPF then issued noticesof intent to deny plaintiffs’ applications because, interalia, (1) evidence obtained by the INS indicated thatthe farm operators for whom plaintiffs claimed tohave worked either were not the true farm operatorsor had not employed plaintiffs for the number ofqualifying days required under the statute; (2) aff~-davits supporting plaintiffs’ employment claims weresubmitted by individuals convicted of supplyingfraudulent documents to other SAW applicants, inviolation of 8 U.S.C. § 1160 or 18 U.S.C, §§ 371 and1001; and (3) plaintiffs had failed to submit evidencesufficient to overcome the RPF’s findings -- whichwere based on sworn statements obtained by INS in-vestigators from farm caretakers or owners -- thatplaintiffs’ applications were not credible. JA 140-41.The notices of intent to deny also informed plaintiffsof the adverse information obtained by the INS, andof plaintiffs’ right to submit any rebuttal evidencewithin thirty days. JA 141.

Plaintiffs submitted additional evidence in supportof their apphcations. JA 141. After considering theevidence, however, the RPF denied the applications.

12

Id. The RPF held that the evidence submitted byplaintiffs failed to establish that they performedqualifying agricultural employment in the UnitedStates for the required period. Id. The RPF’s notice ofdenial apprised plaintiffs that any notice of appealcould be accompanied by additional evidence, a brief,or a written statement in support of the appeal. Id.Plaintiffs appealed the decisions of the RPF to theLAU. Id.

The LAU dismissed plaintiffs’ appeals, finding thatthe documentation submitted by plaintiffs neither es-tablished their claimed employment nor crediblyovercame the adverse evidence in the record. JA 141.In denying plaintiffs’ applicat~.ons, the LAU in manycases relied on several facts: (1) that the farm opera-tors for whom plaintiffs claimed to have worked wereconvicted of providing fraudulent SAW documents;(2) that farm owners denied leasing property to thefarm operators for whom plaintiffs claimed to haveworked, or that ihrm lessees admitted hiring employ-ee~ of plaintiffs’ purported supervisors but only fortwo or three days during the qualifying period; and(~) that plaintiffs failed to submit rebuttal evidencesufficient to overcome the adverse evidence that con-tradicted plaintiffs’ applications. JA 142.

D. District Court Proceedings

After the LAU denied their applications, the origi-nal plaintiffs brought this action in two complaintsfiled in October 1992 and June 1993, respectively(each subsequently amended to add new plaintiffs),claiming that the INS’s practices and procedures inadjudicating their SAW applications violated the DueProcess Clause of the Fifth Amendment and the INA.

13

See JA 43..88; supra at 2. At no time did plaintiffsserve the INS with discovery requests.

The INS moved to dismiss plaintiffs’ action for lackof subject matter jurisdiction and failure to state aclaim upon which rehef can be granted, or, in the al-ternative, for summary judgment. JA 133.44. Plain.tiffs cross-moved for summary judgment. JA 548-70.The district court denied the INS’ motions andgranted in part the plaintiffs’ cross-motion for sum-mary judgment. JA 1865-1907.

I. Subject Matter Jurisdiction

The district court held that it had subject matterjurisdiction under McNary v. Haitian Refugee Center,btc., 498 U.S. 479 (1991) CMcNary"), on the groundthat plaintiffs "challenge the pattern and practicesutilized by [the INS] in its [SAW] review process." JA1869-76. The district court rejected the INS’s argu-ment under Reno v. Catholic Social Services, Inc., 509U.S. 43 (1993) ("CSS"), which held that districtcourts lack jurisdiction over IRCA-related actionsthat rely on the denial of any individual application,JA 1874-75. The district court determined that if pre-vented from relying on the INS’s denials of their SAWapplications, plaintiffs would not be able to supporttheir allegations with documentary proof. JA 1875.Moreover, the district court determined that plain-tiffs were not seeking review of, or a determinationon, the merits of their individual applications but,rather, were challenging a pattern and practice andseeking to have the INS "readjudicate their casesemploying constitutionally proper procedures." JA1875-76,

14

2. The Merits

On the merits, the district court held that the INS,in denying plaintiffs’ SAW applications, improperlyrelied on the convictions of plaintiffs’ alleged employ-ers for providivg fraudulent documents in other SAWcases. JA 1879-88. The district court held that theINS had used an irrebuttable presumption of fraud,in that once the INS determined that a plaintiffsubmitted documents from an alleged employer thatit deemed "suspect" because of a fraud conviction, theINS "viewed all subsequently submitted evidence asequally noncredible, or tainted by a presumption offraud." JA 1887.

The district court also held that the LOs unconsti-tutionally used plaintiffs’ nationalities (i.e., Indian,Pakistani, Bangladeshi, or Sri Lankan) as a basis forrecommending denial of plaintiffs’ applications. JA1891-98. The district court rejected the INS’s argu.ment that, because the subsequent decisions of theRPF and the LAU did not rest on ethnic profiling ofplaintiffs, any such profiling used in the LOs’ denialrecommendations was irrelevant. JA 1898.

The district court further held that the INS vie.lated plaintiffs’ due process rights by not providingthem with interpreters who spoke their native lan-guages. JA 1898-1903. The district court rejected theINS’s argument that piaix, tiffs failed to show preju-dice from the lack of competent interpre~rs. JA 1902-03, Finally, the district court rejected plaintiffs’McNary.like contentions that they had a due processright to examine the INS’s evidence, to cross-examineadverse witnesses, and to receive a written transcriptof the INS’s interviews concerning their SAW appli-cations. JA 1903.06.

15

Summarf of Argument

The district court lacked subject matter jurisdictionover this action because plaintiffs’ claims representan impermissible attempt to obtain district court re-view of the merits of their SAW applications andwork authorizations~* Plaintiffs have disguised chal-tenges to the INS’s decisions on the merits of theirapplications as a collateral, procedural due processchallenge, like the pattern-and-practice challenge inMcNary. In this way, plaintiffs, who took no discov-ery in this case, seek to obtain judicial review of thedenials of their SAW applications, in contravention ofCSS’s bar to district court review of (1) challenges INS’s eligibility-related determinations under theIRCA and (2) collateral, procedural challenges thatcan receive adequate review by a court of appeals ex-amining the administrative record.

On the merits, the district court should have re-jected all of plaintiffs’ claims. The record shows thatthe INS demed plaintiffs’ SAW applications becauseof reasonable credibility determinations, not becauseof an irrebuttable presumption of fraud based cn theconvictions of plaintiffs’ alleged employers. In addi-tion, plaintiffs failed to show unlawful discrimination

t̄ im

* Plaintiffs do not cross.appeM from the judg-ment insofar as it denied their claims for an oppor-tunity to view adverse evidence, cross.examineadverse witnesses, and obtain verbatim transcripts orrecordings of the LO interviews. Thus, plaintiffs’claims for these items of relief are not at issue on thisappeal. See International Ore & Fertilizer Corp. v.SGS Control, 38 F.3d 1279, 1285-86 (2d Cir. 1994),cert. denie~l, 115 S. Ct. 2276 (1995).

16

by the LOs in mentioning plaintiffs’ nationalities; in-deed, the LOs had merely identified a pattern of ap-plications, filed by natives of certain countries, thatcontained similar or identical information. In anyevent, because the INS’s final decisions on plaintiffs’SAW applications did not rest on plaintiffs’ nation-alities or ethnicities, any mention thereof by the LOsin recommending denial of plaintiff~’ applications wasimmaterial.

Furthermore, the district court erred in concludingthat the asserted absence of qualified interpreters atplaintiffs’ SAW interviews denied them due process.Plaintiffs failed to show a due process right to qu~fli-fled interpreters. Indeed, plaintifl~’ applications weredenied for lack of credible docmnentation; thus, theIRCA requirement that any testimony be crediblycorroborated makes their interpreter claim pointless.Moreover, plaintiffs never made any showing that thealleged lack of qualified interpreters unduly preju-diced their ability to present their cases. That plain-tiffs were aftbrded three opportunities: .- before theLO, the RPF, and the LA[! -- to pre~ent documentaryevidence, including affidavits, to bolster their appli-cations demonstrates that the INS’s adjudication oftheir applications fully comported with due process.

ARGUMENT

POINT I

THE DISTRICT COURT LACKED SUBJECT MATTERJURISDICTION OVER PLAINTIFFS’ CLAIMS

A. Standard of Review

"Questions of subject matter jurisdiction are ques.tions of law that [this Court] review[s] de 1rove." Hotel& Restaurant Employees Union Local 217 v. J.P.

17

Morgan Hotel, 996 F.2d 561, 564 (2d Cir. 1993)."’The burden of proving jurisdiction is on the partyasserting it.’" Malik v. Meissner, 82 F.3d 560, 562 (2dCir. 1996) (citation omitted). "If there is any ambigu-ity as to whether jurisdiction lies with a district courtor with a court of appeals [a court] must resolve thatambiguity in favor of review by a court of appeals."Suburban O’Hare Comm’n v. Dole, 787 F.2d 186, 192(7th Cir.), cert. denied, 479 U.S. 847 (1986); GeneralElec. Uranium Mgt. Corp. v. Dep’t of Energy, 764 F.2d896, 903 (D.C. Cir. 1985).

"In considering a motion to dismiss for lack of sub-ject matter jurisdiction, [a court] accept[s] as true allmaterial ihctual allegations in the complaint." Atlan-tic Mutual Ins. Co. v. Balfour MacLaine Int’l, 968F.2d 196, 198 (2d Cir. 1992) (citing cases). "However,argumentative inferences favorable to the party as-serting jurisdiction should not be drawn." Id. (citationomitted). Moreover, the Court is "entitled at any timesua sponte to delve into the issue of whether there isa factual basis to support the District Court’s exerciseof subject matter jurisdiction ... [and] case law doesnot limit [the Court’s] right to refer to any material inthe record." Transatlantic Marine Claim8 Agency, Inc.v. Ace Shipping Corp. Div. of Ace Young, 1997 WL154089, at *2 (2d Cir. Mar. 13, 1997).

B. The District Court Lacked Subject MatterJurisdiction

The district court misapplied McNary and CSS,Properly understood, those cases required the districtcourt to dismiss the complaints for lack of subjectmatter jurisdiction.

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1. Applicable Law

The IRCA bars "judicial review of a determinati¢~nrespecting an application for adjustment of status[under the SAW program] except" upon review by thecourts of appeals of a final order of deportation. 8U.S.C. § l160(e)(1), (3){A). McNary, theSupremeCourt held that section l160(e)(1) divests districtcourts of subject matter jurisdiction over challengesto the INS’s denial of such an application but not over"general collateral challenges to unconstitutionalpractices and policies used by the agency in process-ing [such] applications," i.e., procedural clue processclaims. 498 U.S. at 492.

In CSS, the Court held that 8 U.S.C. § 1255a(f)(1),*which is identical to section l160(e)(1), divests trict courts of subject matter jurisdiction over chal-lenges to INS regulations governing eligibility foradjustment of statu~, unless the plaintiffs applica.tion was "front-desked.’~ 509 U.S. at 53.(;4. An appli.cation was "front-desked" when an applicant tendereda completed application and fee to the INS during thestatutory applic;~tion period, but, prior to the filing ofthe application, an INS legalization officer relying onthe challenged regulation rejected the application;the applicant then departed, the application wasnever filed, and an administrative record was nevercreated. Id, at 61-67 & n,29. The C,~S Court held thatCongress intended section 1255a(t)(1) to bar judicialreview only where INS adjudication had created anadministrative record sufficient for a court of appeals

* Section 1255a(f)(1) is the IRCA administrativeand judicial review provision governing legalizationapplications other than SAW applications.

19

to review the challenge to the regulations; because noadministrative record was created concerning the"front-desked" applications, section 1255a(f)(1) not bar the relevant applicants from pursuing theirchallenge to the regulations directly in district court,without completing deportation proceedings.* 509U.S. at 64. In so holding, the CSS Court ruled that achallenge to an eligibiliW regulation is not ripe un-less the plaintiff’s adjustment application has beenformally denied, in which case, however, section1255a(f)(1) provides the only avenue of judicial view (i.e., review exclusively by a court of appeals inconjunction with review of a final order of deporta-tion).** 509 U.S. at 60; see Perales v. Reno, 48 F.3d

* In this case, plaintiffs make no claim of"front-desking."

** Although neither an immigration judge nor theBoard of Immigration Appeals -- the administrativebodies responsible for deportation proceedings -- hasjurisdiction over any SAW apphcation or LAU denialthereof, see 8 C.F.R. § 103.3(a)(3)(iii), an unsuccessfulSAW applicant is still required to complete deporta-tion proceedings in order to obtain judicial review ofthe denial of the application, see 8 U.S.C.§ 1160(o)(3)(A), This requirement permits the to resolve the alien’s immigration status to the alien’ssatisfaction -- for example, by finding the alien non-deportable or by granting discretionary relief fromdeportation, such as cancellation of removal or ad.justment of status to that of a lawful permanent resi-dent, 8 U.S.C. § l?29b(b)(l), (3) .. and thus to litigation. Cf. Weinberger v. Salfi, 422 U.S. 749, 765(1975) (exhaustion requirement permits agency "priorto constitutional litigation" to resolve claim in claim-ant’s favor).

2O

1305, 1311 (2d Cir. 1995), cert. denied, 116 S. Ct. 699(1996). Thus, where, as here, the INS has denied adjustment al~plication, the IRCA’s judicial reviewprovision bars district c~mrt review unle~ the plain-tiff atlwmces a pr(~/’edural ehalh, nge ~bat "couhl reoceive no practical judicial review within the schemeestablished by" that section. 509 U.S. at 61 (citingMcNary, 498 U.S. at 496-97).

Whether a district court has subject matter juris-diction over a SAW case thus depends, on whether theplaintiff advances a collateral, procedural challengethat cannot receive adequate judicial review undersection 1160(e)(1) -- by the court of appeals examin-ing an administrative record -- or a substantive chal-lenge, ~mch as a challenge to eligibility rules, that canbe adequately reviewed under v.ection 1160(e)(1). adequacy of judicial review under section 1160(e)(i)depends, in turn, on whether the claim is capable ofbeing developed in administrative precedings, so asto permit the court of appeals to rule on the particu.lar challenge. The lwo court~ of apl~eal~ that havesquarely at!dre~ed the availability of McNary juri~’~odiction after C,qTR have characteriz,+d th,. law simiolarly. In Avuda, b,c. t.,. Reno. 7 Fo3d 24(; (I).(:. 1993), cert. denied, ! 15 S. t~’t, 70 (1994), tim l),(:, Cir~cult hehl that C,%c,’ "!imitled McNat~v’s] reach tosituations in which plaintiffs rai.{,d ’pr~.;edural’ abejections that couhl not receive ’practical ju(licial r~oview within the [statutory] scheme." Id. at. 249(citations omitted; tirst brackets supplied), Likewise,in Naranjo.Agui!era v. (LS. IN,(;, 30 F.3d 1106 WthCir. 1994), the Ninth Circuit held that, underMcNary and CSS, district courts have subject matterjurisdiction over collateral, procedural challengeswhere section 1160(e)’s "limited review scheme wouldbe incapable of generating an administrative record

21

adequate for effective judicial review." Id. at 1112-13.District cotu~s, however, lack jurisdiction over chal-lenges concerning substantive determinations underIRCA because such challenges, even if based on theConstitution, can be adequ.~tely reviewed by thecourt of appeals in conjunction with review of a finalorder of deportation. Id, at !114.*

o Plaintiffs’ Claims Are Substantive ChallengesDreu~cl Up as Procedural D,Je ProcessClaims

H~re, the district court lacked subject matter ju-risdiction because the central allegation of the com-pls~nts -- that the INS irrebuttably presumedplaintiffs’ applications fraudulent -- is a substantive,not a procedural or collateral, attack, Specifically,plaintiffs alleged that the INS created a "blacklist" ofeml;1,.~yers demonstrated to have provided fraudulentdocuments to other SAW applicants and then"summarily denied" the SAW application of eachplaintiff who had been employed by any such em-ployer, "notwithstanding any additional documenta-tion that the applicant may submit." JA 47-48, 67-68.The district court correct!y characterized this allega-tion as a claim that the INS applied an "irrebuttabiepresumption" of fraud. JA 1884.

r i m

* The district court i~ this case never even con-sidered whether plaintiffs’ challenges were substan.tire or could be adequately reviewed by a court ofappeals. In~tead~ the district court summarily con.eluded that plaintiffs’ claims involve "’a pattern andpractice of procedt~ral due process v:’olations.’" JA1870 (citation omitted).

22

As the Supreme Court has ruled, however, a claimthat the Government has applied an "irrebuttablepresumption, is a substantive challenge and does notsound in procedural due proceeds:

This Court has struck down as illegitimatecertain "irrebuttable presumptions." See, e.g.,Stanley v. Illinois, 405 U.S. 645 (1972);Vlandis v. Kline, 412 U.S. 441 (1973); Cleve-land Board of Education v. LaFleur, 414 U.S.632 (1974). Those holdings did not, however,rest upon procedural due process .... [T]hereis no difference between a rule which saysthat the marital husband shall be irrebut-tably presumed to be the father, and a rulewhich says that the adulterou:~ natural fa-ther shall not be recognized as the legal fa-ther. Both rules deny someone in [plaintiff]’ssituation a hearing on whether, in the par-ticular circumstances of his case, California’spolicies would best Ire served by giving h~mparent~d rights .... We therefi~re roect[plaintiffl’s procedural due proces~ chal-lenge ....

Michael It. v. Gerald D., 491 U.S, 1 !0, !20-21 (1989)(plurality) (emphasis retained). Catlin v. Sobol, 93F.3d 1112 (2d Cir. 199{;), this Court rejec~d theplaintiffs’ effort to couch a substantiw~ claim in termsof procedural due process, h!. at 1118. In so holding,the Court adopted the Michael II. reasoning and ob-served that irrebuttab!e presumption claims "’mask!]substantive decisions in procedural language.’" /d.(citation omitted). Other courts have similarly ruledthat an irrebuttable presumption claim is actually anattack on a substantive rule of law. See, e.g., UnitedStates v. Chase, 18 F.3d 1166, 1172 n.7 (4th Cir.

23

1994) CA conclusive or irrebuttable presumption isconsidered a rule of substantive law.") (citationsomitted); P.O.P.S.v. Gardner, 998 F.2d 764, 767 (9thCir. 1993) (rejecting procedural due process claim);Cozart v. Weinfeld, 687 F.2d 1058, 1661-62 (7th Cir.1982) (holding that irrebuttable prer, umption doctrinehas been "rejected" and "discredited" as device forimproper judicial review of substantive rules); seealso 1 Jack B. Weinstein & Margaret A. Berger,Weinstein’s Federal Evidence § 301~02[1] (2d ed. 1997)("A so-called ’irrebuttable presumption’ is a ru!e ofsubstantive law.").

Thus, even assuming that the INS applied an irre-buttable presumption, which it did not, see Point IIinfra, the complaints’ attack on that presumptiondoes not state a procedural due process claim andthus could not confer subject matter jurisdiction onthe district court. Not surprisingly, the complaintsthemselves never even attempted to allege that thefraud presumption violated the Due Process Clause;the complaints alleged only that the presumptionviolated the INA. See JA 58-60, 86-87. Nor can plaiu-tiffs argue that the administrative record will not~upport a court of appeals’ review of the denials oftheir SAW applications on the asserted ground ofpresumed fraud. Tellingly, plaintiffs never served theINS with any discovery requests in this case, thusacknowledging that district court discovery was notneeded to supplement the administrative record. Acourt of appeals, upon petition for review of a finaldeportation order, can examine each LAU decisionand decide whether it reveals an automatic rejectionbased on employer fraud or, as the INS contends, aweighing of all relevant evidence, including evidenceindependent of employer fraud. See, e.g., Ruginski v.INS, 942 F.2d 13, 16 (lst Cir. 1991) (reviewing claim

24

that "LAU misapplied the preponderance of the evi-dence standard governing the alien’~ burderl ofproof’). As demonstrated infra in Point II, the LAUdecisions properly weighed aI! relevant evidence andapplied no presumptions whatever.*

Indeed, that plaintiffs’ fraud presumption claimwould require a court of appeals to review only theLAU decisions themselves reveals plaintiffs’ claim forwhat it is: a thinly veiled attack on the merits of theINS’s denials of their SAW applications. See Sugruev. Derwinski, 26 F.3d 8, 11 (2d Cir. 1994) (statutesbarring challenges to agency decisions may not bepierced "merely because those challenges are cloaked

* The complaints further demonstrate thatplaintiffs are attacking the INS’s credibility determi-nations and weighing of evidence -- both matters go-ing to the merits. As part of their fraud presumptionclaim, plaintiffs allege that the INS failed to draw" ’the just and reasonable inti~rence"’ from their evi-dence, i.e., properly weigh the evidence, in violation ofIRCA. JA 59, 86. Plaintiffs’ unlawful-weighing-of-the-evidence claim rests on section 21009(3)(B)(iii) of INA, 8 U.S.C. § 1160(b)(3)(B)(iii). See JA 59, nificantly, this IRCA provision falls under a subsec-tion entitled "Proof of Eligibility." 8 U.S.C.§ 11600~)(3)(B). Thus, the claim, disputing eviden-tiary weight accorded by the INS, attacks the INS’slegal determinations on the merits of the applicationsa J concerns plaintiffs’ st’bstantive eligibility fi)rSAW status. This Court has explicitly recognized thatdistrict court review of IRCA-related claims is"barred by CS~’ where the claims "require a decisionas to whether the substance of the INS’s policies ac-cord with the statute." Perales, 48 F.3d at 1312.

25

in constitutional terms"), cert. denied, 115 S. Ct. 2245(1995); see also Czerkies v. U.S. Dep’t of Labor, 73F.3d 1435, 1442 (7th Cir. 1996) ("when the casting a claim in constitutional terms is a mere ’rhetoricalcover’ for a claim for benefits that the door-closingstatutes are intended to block, the suit fails"); Larra-bee by Jones v. Derwinski, 968 F.2d 1497, 1500 (2dCir. 1992) (VA statute precluding judicial review barsappeals "draped in constitutional claims"). Whetherone views the fraud presumption claim as advancinga direct substantive challenge to the denials, or asfailing to advance a collateral procedural challenge,the district court lacked subject matter jurisdictionjust the same.

Nor did plaintiffs’ assertion that the INS improp-erly used an "ethnic profile" confer subject matter ju-risdiction on the district court. In the first place, thecomplaints not only did not allege that ethnic profil-ing violated due process; they did not allege ethnicprofiling at all. See JA 43-88. Moreover, the districtcourt never addressed whether it had subject matterjurisdiction over the ethnic profding issue. By con-trast, the court separately analyzed its jurisdictionalauthority over the fraud presumption claim and theinterpreter claim. See JA 1869-78.

More important, any ethnic profiling claim -- likeplaintiffs’ fraud presumption claim -- is a substantive,not a collateral or procedural, challenge. In essence,such a claim asserts that the INS has created a clas-sification and has determined that individuals withinthat classification are ineligible for a benefit, regard-less of what particularized evidence any class mem-ber may offer to satisfy ehgibility criteria. Thus,ethnic profiling is a species of irrebuttable presump-tion. Not in so many words, the district court reached

26

the same conclusion, criticizing the alleged profilingon the ground that it denies an applicant"individualized consideration." JA 1898. Although aclassification, like an irrebuttable presumption, candeny a person "individualized consideration," the is-sue here is not whether the classification is subject toany legal or constitutional attack, but rather whethera challenge to the classification sounds in proceduraldue process. As Michael H. and Catlin instruct, itdoes not: such a challenge is inherently an attack ona substantive legal rule and is not cognizable as aprocedural due process claim. Every classificationwhose members are deemed ineligible for a govern-ment benefit can be said to deprive those members ofa hearing, yet courts should not use this proceduraltruism to cloak in procedural due process analysiswhat is actually review of the fundamental fairnessof the classification. Michael H., 491 U.S. at 120-21;Catli1~, 93 F.3d at 1118. Because plaintiffs’ challengeto the asserted ethnic profiling is not collateral orprocedural, Congress in section 1160(e)(1) determinedthat the challenge would receive judicial review onlyupon a final order of deportation and then only in acourt of appeals on petition for raview. Accordingly,the district court lacked subject matter jurisdictionover any ethnic profiling claim.

Furthermore, as with plaintiffs’ fraud presumptionclaim, the administrative record will amply permit acourt of appeals to review plaintiffs’ assertion of eth-nic profiling. See, e.g., Ruginski, 942 F.2d at 16. TheLOs’ notes, on which plaintiffs based their ethnicprofiling charge, are in the administrative record, JA1893-95, and the district court sua sponte found sev-eral other LOs’ notes m the record that, in its view,demonstrated ethnic profiling, JA 1896-98. Moreover,plaintiffs never served the INS with discovery

27

requests, again acknowledging the adequacy of theadministrative record and the needlessness of districtcourt discovery. Even assuming that plaintiffs’ ethnicprofiling charge is meritorious, which it is not, seePoint I! infra, the adequacy of the administrative re-cord demonstrates that the charge can receive"practical judicial review" under section 1160(e)(1).CSS, 509 U.S. at 561. Thus, the district court lackedsubject matter jurisdiction over the ethnic profilingissue.

Finally, plaintiffs’ claim that the INS failed toprovide competent interpreters also did not confersubject matter jurisdiction on the district court. Al-though on the merits this Court should reverse thejudgment upholding the interpreter claim becauseplaintiffs failed to state or prove a statutory or dueprocess claim, see Point I!I infra, the Cotu~ shouldalso reverse because the interpreter claim, albeitcollateral and procedural, was adequately reviewableby a court of appeals.

In large part, a court of appeals’ review of a dueprocess claim is a legal inquiry -- here, an inquiryinto whether the IRCA and its regulations provideSAW applicants with an opportunity to present evi-dence that would make up for any language barrieraffecting the LO’s recommendation. See Point III in.fra. By definition, a claim involving a purely legal in-quiry is amenable to review by a court of appeals. Forexample, even after the conclusion of their interviewswith the LOs, plaintiffs were afforded ample oppor-tunity to rebut adverse evidence -- in response to theRPF’s notices of intent to deny their applications, andon appeal from the RPF to the LAU -- with anydocumentary evidence they wished to provide, includ-ing affidavits wb~ich "[t]he INS considers ... no

28

different than [their] testintony." Haitian Refugee Cen-ter, Inc. v. Nelson, 694 F. Supp. 864, 868 n.6 (S.D.Fla. 1988) (emphasis added), affd, 872 F.2d 1555(llth Cir. 1989), affd, 498 U.$. 479 (1991). See 8C,F.R. § 103.2(b)(16)(i) (mandating opportunity applicant to rebut derogatory information of whichapplicant was unaware); Rahirn, 24 F.3d at 441-42(permitting affidavits in response to RPF’s notice ofintent to deny application); 8 U.S.C. § l160(e)(2)(B)(permitting applicant to include new evidence as partof appeal to LAU); 8 C.F.R. § 103.3(a)(3)(i) Rahim, 24 F.3d at 442 (same). Contpare tIaitianRefugee Center, 694 F. Supp. at 879 (applicants af-forded no opportunity to rebut evidence).

To the extent that plaintiffs’ interpreter claimwould depend on the administrative record, p!aintrff.~had a full opportunity to make that record (as theabove-cited regulations and the record in this casemake clear), and their submissions would be full,,,available for a court of appeals to review. Indeed, aspart of their rebuttals to the RPF’s notices of intent todeny and their administrative appeals to the LAU,most plaintiffs in this case submitted additional evi-dence, JA 137, 141 -- all of which was presented inthe English language and made part of the adminis-trative record. See, e.g., JA 789-90, 817-18, 1367-68,1381. Moreover, nothing prevented any plaintiff fromincluding in such supplemental evidence an affirma-tion that he or she could not understand the LO andthus that the LO’s recommendation was not based onaccurate or complete responses from that plainti.ft. (7/.

29

JA 1899 n.12 (noting that plaintiffs submitted such5davits to the district court).*

Thus, plaintiffs’ interpreter claim, whether it pre.sented a pure question of law or depended on theadministrative record, would be fully reviewable by acourt of appeals upon petition for review of a final or-der of deportation. Accordingly, under CSS, none ofplaintiffs’ claims conferred subject matter jurisdictionon the district court.**

i .

* Plaintiffs themselves raised due process chal-lenges before the LAU, which fully addressed themaLd demonstrated itself to be sensitive to due processconcerns. See, e,g., JA !58-59, 319A-D.

** That plaintiffs sue individually, rather than asa class, further demonstrates that they do not ad-vance the sort of pattern-and-practice challenge thatcould confer subject matter jurisdiction on the districtcourt. See Ayuda, 7 F.3d at 250 (distinguishing dis-trict court challenge to IRCA-related regulation as"quite different ’~ ~om CSS because "[h]ere there wasno class certified"). Moreover, plaintiffs’ claims aretoo qualified and equivocal to constitute an attack onan across-the-board rule or practice. For example,plaintiffs contended that LO interviews "may or maynot be conducted in the language of the applicant,depending upon the availability of INS interpreters."JA 46, 66. Moreover, plaintiffs contended that theINS relied on an ethnic profile in seven casesJA 1893-95; the district court sua sponte cited ap-proximately eighteen other instances, JA 1896-97. Inview of the 1.3 million SAW applications receivedby the INS, see Rochvarg, Report to the Administra-tive Conference -- Reforming the Administrative

3O

POINT I!

THE INS DID NOT EMPLOY AN IRREBUTTABLEPRESUMPTION OF FRAUD AND DID NOT

IMPROPERLY RELY ON PLAINTIFFS’ NATIONALITIESOR ETHN!C!T!ES IN DENYING THEIR SAW

APPLICATIONS

Even assuming arguendo that the district courthad jurisdiction over plaintiffs’ claims, this Courtshould reverse the district court’s denial of the !NS’smotion for summary judgment and its award of par-tial summary judgment in plaintiffs’ favor. In deny-ing plaintiffs’ SAW applications, the INS neither usedan irrebuttable presumption of fraud nor impraperlyrelied on plaintiffs’ nationalities or ethnicities.

A. Standard of Review

This Court reviews the denial of a motion to dis-miss de novo, accepting as true the factual allegationsin the complaints and drawing all inferences basedupon these allegations in the light most favorable tothe non-movant. See Comer v. Cisneros~ 37 F.3d 7757786 (2d Cir. 1994). This Court also reviews de noz:o adistrict court’s grant of a motion for summa~, judg-ment, viewing the evidence in the light most favor-able to the non-movant and taking as true anyfactual allegations in that party’s pleadings, ff

Naturalization Process: Reducing Delays While In-creasing Fairness, 9 Geo. Immigr. L.J. 397, 403 &n.47 (1995); Duffield and Harem, Special AgricuituroIProgram, 2 No. 7 Mex. Trade & L. Rep. 14 (1992),plaintiffs’ numbers haxdly make out a pattern-and-practice challenge that could confer subject matterjurisdiction on the district court.

31

supported by affidavits and other evidentiary mate-rial. See General Elec. v. New York State Dep’t of La-

bor, 936 F.2d 1448, 1452 (2d Cir. 1991). A motion forsummary judgment may not be granted unless thecourt determines that there is no genuine issue ofmaterial fact and that the moving party is entitled tojudgment as a matter of law. See Fed. R. Civ. P. 56(c);Catli~, 93 F.3d at 1116. Moreover, a court "must de-termine whether the substantive law was correctlyapplied, for the identification of material facts forsummary judgment purposes ’rests on the substan-tive law.’" Kronfeld v. Trans World Airlines, 832 F.2d726, 731 (2d Cir. 1987) (citation omitted), cert. de.nied, 485 U.S. 1007 (1988).

B. The District Court Erred in Denying the INS’sMotion for Summary Judgment and GrantingPlaintiffs’ Cross-Motion for Summary Judgmenton the Issue of Whether the INS Correctly DeniedPlaintiffs’ SAW Applications

I. The INS Did Not Employ an IrrebuttablePresumption of Fraud in Denying Plaintiffs’Applications

The district court’s conclusion that the INS em-ployed an irrebuttable presumption of fraud in deny-ing plaintiffs’ applications, JA 1879-88, is whollyunsupported. The district court analyzed several de-nims de novo and held that the INS relied solely onthe convictions of plaintiffs’ purported employers forproviding fraudulent SAW documents, regardless ofthe evidence submitted by plaintiffs, and that thisasserted reliance constituted an irrebuttable pre-sumption of fraud. Id. The INS, however, did not useany presumptions, irrebuttable or not, in plaintiffs’cases. Rather, the INS correctly denied plaintiffs’

32

SAW applications for lack of credibility. The INSbased these denials not only on the purported em-ployers’ criminal convictions for furnishing fraudu-lent SAW documents but also on other evidencecontradicting plaintiffs’ assertions of qualifying SAWemployment. In doing so, the INS considered, butproperly found unpersuasive, the evidence presentedby plaintiffs.

The district court based its conclusion on the rec-ords concerning plaintiffs H.M. Oliullah Badsha.Chowdhury Go!am Baser, and Mohammed Islam. JA1881-83, 1885.87. In the district court’s view, not-withstanding Badsha’s evidence, the !NS~s denial ofhis SAW application was based solely on the fact thathis alleged employer, Larry Marval, had pleadedguilty to providing fraudulent SAW documents. JA1882-83. Furthermore, according to the district court,notwithstanding Baset’s and I slam’s evidence, theINS’s denial of their SAW applications was basedsolely on the facts that their alleged employer° LeeArtis Breedlove, had pleaded guiIw to providingfraudulent SAW documents and that Breedlove~spayroll records, which listed 260 employees, indicatedthat Baset and Islam were not among the ten alienswhom the records showed to have genuinely per-formed qualifying SAW empl~,ment. JA 1885-86. Ac-cording to the district court, these facts showed that"[o]nce the [INS] determined that an application wassuspec~ because it relied on documents signed bynoncredible individuals," the INS ~ewed all subse-quent evidence as "tainted by a presumption offraud." JA 1887.

This conclusion was erroneous. Plaintiffs’ challengeis in fact an attack on the INS’s credibility deter-minations and factual findings. The record

33

unequivocally demonstrates that the INS deniedplaintiffs’ applications not because of any irrebutta-ble presumption of fraud but because it carefully as-sessed the credibility of all the evidence, withoutvlying solely on the convictions of plaintiffs’ alleged

employers. The INS’s credibility determinations andevaluation of all the evidence is clear even in thethree cases cited by the district court. For example,the LAU denied Badsha’s SAW application not onlybecause of Marvars conviction -- for a conspiracy thatproduced over 1,000 sets of fraudulent SAW docu-ments -- but also because of unrebutted sworn state-ments, given by the owners and caretakers of thefarm where Marva! allegedly employed Badsha, thatMarval never even conducted farming activity there.*

* Inexplicably, the district court found it trou-bling that "all plaintiffs claiming to have worked forMarval were denied SAW status." JA 1885. Given thestrong evidence that Marval never even farmed at theaddress where these plaintiffs claimed to haveworked for him, JA 146-47, 152-54, 620, 623-25, 660-65, 746-49, the LAU’s denial of all their applicationswas entirely reasonable. Perhaps the district courtwas led astray by its erroneous belief that Marvarsguilty plea concerned "only one SAW application," JA1884 (emphasis retained); in fact, although Marvalpled guilty to only one count of conspiracy, that con-spiracy produced over 1,000 sets of fraudulent docu-ments, JA 752-55. The district court’smisunderstanding is further evident in its assertionthat "ff Larry Marval did indeed provide fraudulentdocuments to only one SAW applicant, all 64 of theplaintiffs who claim to have worked for Marval can-not be that one applicant." JA 1887. The districtcourt’s mistaken premise led it to an erroneous

34

See, JA 146-48. Similarly, the LAU considered theevidence presented by plaintiffs Baset and Islam, anddenied their applications for lack of credibility noton~y because of Breedlove’s guilty plea but also. asthe district court itself noted, because payroll recordsindicated that Baser and Islam were not amongBreedlove’s t~?n alien employees who had genuinelyperformed qualifying SAW employment. JA 158.59,180-81.

Thus, the alleged employers’ criminal convictionswere not the sole basis of the INS’s decisions denyingplaintiffs’ SAW applications. Rather, after consider-ing all the evidence, the INS denied the applicationspartly -- indeed, largely -- because evidence inde°pendent of the fraud convictions belied plaintiffq ° a..~-sertion of qualifying SAW emp!o3anent." The denialstherefore did not involve any c,’mviction-based pre-sumption of fraud but mstead re~ted on determina-tions concerning the credibility and weight of aH

conclusion: because Marval helped create ~ver l~(iO0sets of fraudulent SAW documents° it is q~ute p~_~ibiethat all plaintiffs who claimed to ha~e worked fe, rMarval submitted such documents. !n 2:-.y evenL thedistrict court erred not because the Ml~,g,~ 4 fraud pre-sumption was mathematically possiL~,~o but becauz~ethe INS never applied such a presump.qon.

* In any event, as the district com-t acknowl-edged, employers convicted of providing fraudulentSAW documents are not credible affiants. JA 1887.Thus, to the extent that plaintiffs * applieat~ns wereouaeu uu statements or afflda,dts of such an em-ployer, the applications were indisputably not credi-ble.

35

evidence, in accordance with the IRCA. See 8 U.S.C.§ 1160Co)(3)(B)(iii); 8 C.F.R. § 210,3Co)(1); id.§ 210.3(i))(2),

The district court further erred in concluding that"in denying their applications the INS used the sameor similar language evincing a lack of individualizedexamination." JA 1885. See Bertrand v. Sara, 684F.2d 204, 213 (2d Cir. 1982) (that INS used form let-ters containing identical lar.guage "is not at all pro-bative on the question of whether there had been anindividualized consideration of the actual parole re.quests"). This Court need only compare the LAU de-cisions concerning plaintiffs Badsha, Baset, andIslam to see that the INS considered the specific evi.dence proffered by each. See JA 145-48, 157-59, 179-81. Nor can the LAU be faulted for using similar lan-guage in parts of its decisions.* The INS adjudicatedapproximately 1.3 million SAW applications. See su-pra at 29 n.**. Moreover, the INS’s evidence concern-ing certain alleged employers -- e.g., that Marvalnever farmed or that Breedlove employed only tenSAW-eligible aliens -- was relevant to all plaintiffswho claimed to have worked for those empioyers.Thus, the agency’s use of similar language in someparts of its decisions could hardly be surprising,much less reflective of a failure to render individual-ized consideration to applicants.

* It is particularly ironic that the INS would befaulted for using similar l~nguage in its decisionswhen many of plaintiffs’ applications containedsimilar or identical eligibility information. CompareJA 725-27, 737-40, 851-53, 861-62, 866-69 with JA766 A-G, 959-68.

36

Simply put, in ignoring key parts of the LAU’s de-cisions, the district court lost sight of its role as re-viewer of alleged procedural flaws, usurped theLAU’s role as fact-finder (without even mentioning standard of review), and improperly substituted itsjudgment as to how the evidence should have beenweighed. See Sealand Terminals, h~c. v. Gasparic, 7F.3d 321, 323 (2d Cir. 1993) (court reviewing agencyaction is "not free to re-weigh the evidence or to makedeterminations of credibility"); Ruginski, 942 F.2d at17 (narrow scope of judicial review).

The district court’s substitution of its own judg-ment for that of the LAU is illustrated by its selectivediscussion of the LAU’s findings and conclusions. Forexample, the district court found that "neither theRPF nor the LAU ... described the additional docu-mentation submitted by [plaintiff Mohammed] Islam,or explained why these documents were not credibleor did not rebut the presumption of fraud created byBreedlove’s guilty plea." JA 1886. In language whollyignored by the district court, however, see JA 1886,the L~,U noted that plaintiff Islam "submitted a per-sonai letter, five (5) additional affidavits attesting the applicant’s agricultural employment in Floridaduring the requisite eligibility period, and anotheraffidavit signed by Mr. Breedlove in which he deniesproviding a hst of his employees to the Service andstates that the apphcant did work for him for 90man-days in agriculture from May 1985 to May1986." JA 158. The I~kU further stated that, in lightof Breedlove’s guilty plea and Islam’s absence fromthe list of Breedlove’s employees who genuinelyqualified for SAW eh~bili½-, Islam’s evidencen.~ .nh.- lacked credibility but also failed "to directly

address" or "to effectiveR, rebut" the INS’s evidence.JA 159. Thus, contrary to the district court’s

37

determination, the INS did not fail to consider plain-

tiffs’ evidence; rather, the INS considered it but foundit insufficiently weighty or credible.

2. The INS Did Not Improperly Rely onPlaintiffs’ Nationalities or Ethnicities inDenying Their SAW Applications

Equally unsupported is the district court’s conclu-sion that the INS unconstitutionally discriminatedagainst plaintiffs when an LO’s recommendation todeny SAW applications was based, in the districtcourt’s words, "in whole or in part" on a plaintiffsnationality or ethnicity. JA 1898. Even assuming ar-guendo that plaintiffs had felt sufficiently aggrievedby the LOs’ asserted profiling to allege it in any oftheir complaints, see supra at 25, that allegationwould still be unfounded. The LOs did not improperlyrely on nationality or ethnicity in denying SAW ap-plications, and the district court simply misread theevidence and the law.

Not even plaintiffs’ best evidence -- the seven setsof LO notes cited by plaintiffs and quoted by the dis-trict court, se~ JA 1893-95 -- could justify the districtcourt’s finding of impropriety. Those notes reveal thatthe LOs recommended denial not because of national-ity or ethnicity but because of the application’s sus-picious resemblance to demonstrably fraudulentapplications submitted by fellow nationals. For ex-ample, in recommending denial of plaintiff Darbar’sapplication, the LO stated:

Farm related documents were obtained lastweek, letters are photo copied form lettersand the applicant has no knowledge offarming. Applicant comes within a pattern ofIndian citizens who claim they entered the

38

U.S. in 1984 or 1985 and enter into agricul-tural labor for the minimum period of mandays required to qualify for Group !I SAW.

JA 1894 (some emphasis added) (quoting JA 403).Similarly, in recommending denial of plaintiff ZamanShar Malik’s application, the LO stated:

The applicant fJ~s the "profile" of highly sus-pect applicants of Indian~Pakistani~Bangladeshi/Sri Lankan nationality who,during the past several months have beensteadily seeking legalization benefits underSect. 210 of I.R.C.A. Based on the close simi-larity of the documents submitted, the daresof employment, alv~Lys within the prescribedlimits, the duration of the employment, al-most always within the minimal range pre-scribed by the law, there is a strong suspicionthat the applicants are not bona-fide appli-cants and that they may have obtained theirdocuments through fraudulent means.

JA 1894 (emphasis added) (quoting JA 1014).* Thesenotes demonstrate that the "profile" compr~..~ed sev-eral factors -- concerning copied or mass-produced

* It is worth noting that fraud was rampant inthe SAW program, see Ashbrook, Note, The Unau-thorized Practice of Law in Immigration: Examiningthe Propriety of Non-Lawyer Representation, 5 Geo. J.Legal Ethics 237, 262 (1991) (250,000 to 650,000SAW applications estimated *.o be fraudulent); Rob-erto Suro, Migrants’ False Claims: Fraud on a HugeScale, N.Y. Times, Nov. 12, 1989, at A1 (same), andthat LOs vigilantly sough~ to detect fraudulent appli-cations.

39

documentation and predictable claims of the mini-mum qualifying employment periods -- and that na-tionality was not the only, or even the main, factorprompting the recommendation to deny.* The districtcourt simply ignored the fraud-related components ofthe profile and focused exclusively, and unjustifiably,on the references to nationality or ethnicity.

Where, as here, plaintiffs have failed to demon-strate a discriminatory intent, they fail to establish aconstitutional violation. See generally Village of Ar-lington Heights v. Metropolitan Hous. Dev. Corp., 429U.S. 252, 265-66 (1977); see also Personnel Admin. ofMass. v. Feeney, 442 U.S. 256, 279 & n.24 (1979)(plaintiff must show that action was taken "at leastin part ’because of,’ not merely ’in spite of,’ its adverseeffects upon an identifiable group"). It is just as con-stitutionaUy permissible for the INS to use a fraudprofile based on a number of factors -- including na-tionality -- as it is for police to rely on a suspect’s de-scription that mentions race along with height,weight, and age. See United States v. Jackson, 652F.2d 244, 248-49 (2d Cir.), cert. denied, 454 U.S. 1057(1981) (rejecting Fourth Amendment claim when racewas only one of several features of suspect’s descrip-tion); Uttited States v. Weaver, 966 F.2d 391, 394n.2 (8th Cir.), cert. denied, 506 U.S. 1040 (1992).Moreover, the INS, whose very work concerns

* Because the term "prc~le," as used by the LOs,includes fraud-related factors independent of na-tionality or ethnicity, the district court’s remarkcriticizing some LOs for basing a recommendation todeny "entirely on the profile," JA 1897, makes littlesense. Apparently, the court improperly equated"profile" with "ethnicity" alone.

4O

nationality, may unquestionably base its enforcementdecisions thereon. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 562-63 (1976) (motoristsstopped at border patrol checkpoint may, "withoutconstitutional violation," be referred for additionalINS examination "largely on the basis of apparentMexican ancestry"); United States v. Brignoni-Ponce,422 U.S. 873, 885 (1975) (although apparent Mexicanancestry "standing alone" does not justify INS rovingpatrol to stop motorist for verification of immigrationstatus, it is a "relevant factor").

In any event, the district court failed to recognizethat any improper reliance by the LO on plaintiffs’nationalities was not the basis for the INS’s final de-cisions, but merely contained in an "initial recom-mendation." Rahim, 24 F.3d at 441. The finaldecisions on the SAW applications were made by theLAU. See 8 U.S.C. §1160(e)(2)(A); 8 § 103.3(a)(3)(iii). Moreover, the LAU, as a part Administrative Appeals Unit, 54 Fed. Reg. 29,344(1989), reviews decisions de novo, 1 C.F.R. § 305.85-4(1993), and only LAU decisions are ultimately subjectto judicial review, 8 U.S.C. § 1160(e)(3)(B) ("findingsof fact and determinations ... shall be conclusive").This statutory scheme reflects the general principlethat only final agency action is reviewable for error.See Moore v. Ross, 687 F.2d 604, 608 (2d Cir. 1982),cert. denied, 459 U.S. 1115 (1983) (noting generalfederal administrative practice that agency’s appel-late authority is the "ultimate finder of fact"); CetaWorkers’ Org. Comm. v. City of New York, 617 F.2d926, 935 (2d Cir. 1980) (question examined before termining whether agency’s "alleged failures are re-viewable under the APA" is "whether there is finalagency action"); cf. Cordoba-Chaves v. INS, 946 F.2d

41

1244, 1246 (7th Cir. 1991) ("[w]e review the decisionof the BIA, not the [immigration judge]").

Under this scheme of review, the district court’sfinding that the LOs’ recommendations affected theINS’s final decisions, JA 1898, is baseless. The LAU’sdecisions did not rest on the LOs’ reliance on plain-tiffs’ nationalities. See, e.g., JA 145-48, 179-81, 401A.Thus, whether or not the LO relied on such a factor inrecommending denial is wholly irrelevant. See G.T.Terminal Packaging Co. v. Hawma~, 870 F.2d 77, 80(2d Cir. 1989) ("Where legal rights and obligations not flow from an agency’s decision, the agency has nottaken final action."); Touche Ross & Cot v. Securities& Exch. Comm’n, 609 F.2d 570, 575 (2d Cir. 1979)("allegations of agency bias or prejudgment ... can-not be reviewed until the agency has made an ad-verse determination"). An agency’s final decision"’stands or falls on its express findings and reason-ing.’" Vargas v. INS, 938 F.2d 358, 363 (2d Cir. 1991)(citation omitted). See also Parcham v. INS, 769 F.2d1001, 1005 n.3 (4th Cir. 1985) (BIA did not err wheredecision did not rely upon alien’s nationality, i.e., fac-tor relied upon by immigration judge).

The district court’s conclusory finding that the LO’sactions "taint[ed] the entire process," JA 1898, thuswas insufficient to deny summary judgment in theINS’s favor or to grant summary judgment in plain-tiffs’ favor. See, e.g., Ayala.Gerena v. Bristol Myers,.Squibb Co., 95 F.3d 86, 97 (1st Cir. 1996) (that pervisory employees may have ordered human re-sources director to terminate plaintiffs’ employmentis immaterial where plaintiffs "failed to provide spe-cific factual support that the alleged [discriminatory]remarks were made in connection with the employ-men~ decisional process"; "Resting on conclusory

42

allegations, improbable inferences and unsupportedspeculation does not suffice").

POINT III

THE DISTRICT COURT ERRED IN HOLDING THATPLAINTIFFS HAVE A RIGHT TO QUAUFIED

INTERPRETERS AND THAT THE INS VIOLATED ANYSUCH RIGHT

The district court erred in concluding that the DueProcess Clause of the Fifth Amendment required thateach plaintiff be afforded a qualified interpreter, nomatter what language that plaintiff speaks. JA 1899-1903. Plaintiffs have no due process or statutoIy rightto a qualified interpreter. Moreover, plaintiffs failedto show that any lack of qualified interpreters re-suited in prejudice.

A. Plaintiffs Have No Constitutional or StatutoryRight to Qualified Interpreters

"The constitutional sufficiency of procedures pro-vided in any situation, of course, varies with the cir-cumstances." Landon v. Plasencia, 459 U.S. 21, 34(1982). In evaluating the procedures, a court mustconsider the interest at stake, the risk of erroneousdeprivation under existing procedures, the probablevalue of additional safeguards, and the INS’s interestin avoiding the potential burdens that additional orsubstitute procedures w6uld entail. See Mathews v.Eldridge, 424 U.S. 319, 334-35 (1976).

Plaintiffs’ interest is not weighty. In Landon, theSupreme Court found that a lawful permanent resi-dent of the United States has a "weighty" interest inavoiding expulsion from the United States, notingthat she "stands to lose the right ’to stay and live andwork in this land of freedom.’" 459 U.S. at 34 (citation

43

omitted). Plaintiffs, however, are not lawful resi-dents, but undocumented aliens who are seeking toobtain such a lawful status under a statutorily cre.ated "amnesty" program. Thus, unlike Plasencia,they do not stand to lose an already-acquired right tostay in this country. See .,~enerally Lyng v. Payne, 476U.S. 926, 942 (1986) ("We have never held that appli-cants for benefits, as distinct from those already re-ceiving them, have a legitimate claim of entitlementprotected by the Due Process Clause of the Fifth orFourteenth Amendment."); Matter of Chavez.Calderot~, 20 I. & N. Dec. 744, 748, 1993 WL 495141(BIA 1993) (noting "crucial distivction" between ali-ens granted SAW status and aliens lawfully residinghere who are accorded "preferential treatment," inthat SAWs lack "long-term residence" and"concomitant ties to this country"); see also 129 Cong.Rec. 12814 (1983) (remarks of Sen. Simpson, sponsor of IRCA) (characterizing IRCA amnesty pro-grams as an act of "extraordinary... grace and gen-erosity").

Moreover, the INS’s interest in "efficient admini-stration of the immigration laws at the border also isweighty," Lander,, 459 U.S. at 34; see Garcia-Mir v.Meese, 781 F.2d 1450, 1454, 1456 (llth Cir. 1986),and "it must weigh heavily in the balance that con-trol over matters of immigration is a sovereign pre-rogative, largely within the control of the Executiveand Legislature," 459 U.S. at 34.

Furthermore, in this case, the process that plain-tiffs received strongly protected against any risk of anerroneous decision by the INS. As noted supra atPoint II.B., the denials of plaintiffs’ applications werebased on the INS’s reasonable determinations thatplaintiffs’ evidence was not credible. The IRCA

44

requires that an applicant prove his ease with docu-mentary evidence, see 8 U.S.C. § 1160(b)(3), and regulations require the rejection of personal testi-mony not corroborated by credible evidence, see 8C.F.R. § 210.3(b)(3). Hence, requiring the INS to adjudicate plaintiffs’ SAW applications when it isevident that their oral testimony would not changethe outcome of their cases would be a futile gestureand an unnecessarily burdensome requirement im-posed on the INS.

Indeed, even the Eleventh Circuit in McNarystated that the INS is not required to provide inter-preters for every language in the world. See HaitianRefugee Center, Inc., 872 F.2d at 1562 n.13 (fact thatinjunction requires INS to afford competent inter-preters in Spanish and Haitian Creole "does notmean that interpreters in other languages shallautomatically be required, absent court order").*

* A requirement of translators at governmentexpense would be an example of "imposing proce-dures that merely displace congressional choices ofpolicy." Landon, 459 U.S. at 35. Congress did not re-quire the INS to hire, train, and provide its owntranslators. Rather, its apparent assumption wasthat an applicant would prove his case with docu-mentary evidence, and that aliens who had little orno comprehension of English could find a bilingualperson to accompany them to an INS interview. Thatis certainly a reasonable assumption, consideringthat temporary residence is the first step towardseventual citizenship. See generally 8 U.S.C. § 1423(aliens without understanding of English languageineligible for naturalization); see also Soberal-Perez v.Heckler, 717 F.2d 36, 42 (2d Cir. 1983) ("those wish to become naturalized United States citizens

45

Thus, plaintiffs have no due process right to a quali.fled interpreter, See Kaoru Yamataya v, Fisher, 189U.S. 86, 101.02 (1903) (recognizing generally alien’sdue process rights in deportation proceedings butholding that alien’s "want of knowledge of our lan-guage" did not deny her due process); cf. Augustin v.Sara, 735 F.2d 32, 36-38 (2d Cir. 1984) (suggestingdue process right to interpreter in asylum proceed-ings before immigration judge where alien would facepersecution if deported).

B. Plaintiffs Failed to Establish PrejudiceAttributable to Any Alleged Lack of Interpreters

Even assuming arguendo that plaintiffs lackedcompetent interpreters at their interviews concerningtheir applications and that they were entitled to sucha benefit, plaintiffs failed to demonstrate that theywere prejudiced as a result. See Calderon-Ontiveros v.INS, 809 F.2d 1050, 1052 (5th Cir. 1986) ("[i]n administrative law context ... procedural due proc-ess is violated only where the government’s actionssubstantially prejudiced the complaining party"); seegenerally United States ex re!. Bilokumsky v. Tod, 263U.S. 149, 157 (1923) ("To render a hearing unfair defect, or the practice complained of, must have beensuch as might have led to a denial of justice, or theremust have been absent one of the elements deemedessential to due process."). In order to prove

must learn to read English"), cert. denied, 466 U.S.929 (1984). Thus, plaintiffs had no statutory right an interpreter. If Congress had wanted to create sucha right, it knew how to do so. See, e.g., 28 U.S.C.§ 1827 (providing for interpreters in district courtproceedings).

46

prejudice, plaintiffs must demonstrate that, but forthe deficient process, the result of their cases wouldhave been diflbrent. ,gee Kotasz v. INS, 31 F.3d 847,850 n.2 (gth Cir. ]994); Barraza-Rivera v. IN~’, 913F.2d 1443, 1448 (9th Cir. 1990).

Plaintiffs simply did not point to any material evi-dence that they could have -- let alone would have --presented to the LOs had they been afforded inter-preters that spoke their native languages. See, e.g.,Hartooni v. INS, 21 F.3d 336, 340 Oth Cir. 1994)("Here Hartooni has alleged that her true words werenot spoken by the interpreter, but has not indicatedwhat, if anything, she would have said difi~rently ifgiven a chance"); cf. Yashon v. Hunt, 825 F.2d 1016,1023 (6th Cir. 1987) ("plaintiff has never shown whatadditional evidence or testimony he could have pre-sented at the hearing had he been given the oppor-tunity to do so."), cert. denied, 486 U.S. 1032 (1988).Many plaintiffs merely asserted that they "spoke lit-tle English." JA 571, 574, 577, 580. Indeed, many ofplaintiffs’ SAW applications, and all of their affida-vits in support of their motion for summary judg-ment, are sworn to, or certified under penalty ofperjury, by plaintiffs in the English language withoutany translation. JA 572, 575, 578, 727, 959-61.Moreover, many of the INS’s recommendations todeny plaintiffs’ applications indicate that manyplaintiffs were clearly understood by the LO. See, e.g.,JA 368-69, 391A-B, 412A-B, 421A-B.

Notwithstanding plaintiffs’ failure to show preju-dice, the district court found prejudice by relying suasponte on notes contained in nine recommended de-nials by the LO. JA 1902-03. These recommendeddenials indicate that several plaintiffs lacked knowl-edge of farm work, were unable to co~Tince the LO of

47

their eligibility, or, in two instances, knew limitedEnglish. See Id, None of the examples listed by thedistrict court supports the conclusion that if affordedinterpreters, the relevant plaintiffs could have estab.lished eligibility for SAW status, The district courtnevertheless speculated that the denials indicated"the applicant may have had difficulty expressing theanswer in English." JA 1902. (emphasis added). Suchconjecture concerning nine plaintiffs, however, is in-sufficient to demonstrate that those, and all of theother, plaintiffs were prejudiced by a lack of inter-preters that spoke their native languages, and henceinsufficient to deny the INS summary judgmer~t onthis issue. See generally Bryar~t v. Maffuei, 923 F.2d979, 982 (2d Cir.) (motion for summary judgment willnot be defeated "on the basis of conjecture or sur-mise"), cert. denied, 502 U.S. 849 (1991).

Moreover, unlike in McNary, where the plaintiffsreceived no opportunity for rebuttal, all plaintiffshere, after the conclusion of their interviews, receivedample opportunity to rebut adverse evidence with anydocumentary evidence they wished to provide. Seesupra at 11-12, 28; Haitian Refugee Center, 694 F.Supp. at 868 n.6; 8 C.F.R. § 103.2(b)(16)(i); see alsoRahim, 24 F.3d at 441-42; 8 U.S.C. § 1160(e)(2)(B); C.F.R. § 103.3(a)(3)(i). Compare 694 F. Supp. at 879.Any lack of qualified interpreters was therefore im-material. Indeed, in response to the RPF’s notices ofintent to deny and in appealing to the LAU, mostplaintiffs availed themselves of these opportunities tobe heard -- by submitting evidence in English. Seesupra at 28. As this Court aptly noted in anotherIRCA-related case brought by a disappointed SAWapplicant:

48

the record indi~’at~s that the ~ppellants postsessed throe opportunities to .ubmitevidence to establish their eligibility -~ to theLO, the RPF, and the LAU, The appellantswere given a full and fair opportunity to es-tablish their eligibility and thus wore notdenied their due process rights.

Rahim, 24 F.3d at 443.

Thus, by allowing the plaintiffs the opportunity torebut the adverse evidence it had adduced, the INScomplied with "It]he fundamental requisite of dueprocess [which] is the opportunity to be heard," Gold.berg v, Kelly, 397 U.S. 254, 267 (1970), and"satisf[ied] the minimum requirements of due proc.ess," Landon, 459 U.S. at 35.*

* For two reasons, the district court should nothave granted summary judgment holding that theINS failed to afford plaintiffs qualified interpreters.First, the district court was simply mistaken in as-serting that "[e]ach plaintiff has submitted an affi-davit stating whether or not there was aninterpreter present at the LO interview who spokethe plaintiffs language." JA 1899 n.12. In fact, theaffidavits of a number of plaintiffs made no mentionof interpreters. See, e.g., JA 604, 604A-P. Becausethese plaintiffs submitted no evidence on the inter-preter issue, summary judgment should not havebeen granted in their favor. Moreover, as to theseplaintiffs, summary judgment should have beengranted in the INS’s favor because John Cappiello, anINS Supervisory LO, submitted a declaration statingthat competent interpreters were afforded to all SAW

49

applicants who were determined to be incapable ofspeaking English. JA 143.

Second, the district court erred in rejecting theCappiello declaration as not based on personalknowledge. JA 1900. Because plaintiffs never movedto strike Cappiello’s declaration, the district courtimproperly disregarded it. See DeCintio v. WestchesterCounty Medical Ctr., 821 F.2d 111, 114 (2d Cir.)("Rule 56 defects are waived where, as here, no mo-tion to strike is directed to them"), cert, denied, 484U.S. 965 (1987). To the extent the district court didnot credit Cappiello’s declaration, it made a credibil-ity determination impermissible on summary judg-ment. See Rodriguez v. City of New York, 72 F.3d1051, 1061 (2d Cir. 1995). Thus, with respect plaintiffs who submitted affidavits denying thatqualified interpreters were provided, Cappiello’sdeclaration created a genuine issue of material factthat precluded the district court’s entry of summaryjudgment in those plaintiffs’ favor on this issue.

CONCLUSION

The judgment of the district court should be re-versed and the case remanded to the district courtwith instructions to dismiss the consolidated corn*plaints or to grant summary judgment in favor of theINS. In the alternative, the judgment should be r~versed and the case remanded with instructions todeny plaintiffs’ cross-motion for summary judgment.

Dated: New York, New YorkApril 24, 1997

Respectfully submitted,

MARY do WHITE,

United States Attorney for theSouthern District o[ New York,Attorney for Defendant-Appellant.

JAMES A. O’BRIEN II!,Special Assistant United State~ Attorney,

I~OGENES P. KEKATOS,GIDEON A. SCHOR,

Assistant United States Attorneys,(9/Counsel.