Perales, et al. v. Thornburgh, et al.
CESAR A. PERALES, as Commissioner of the New York State
Department of Social Services; NEW YORK STATE DEPARTMENT OF
SOCIAL SERVICES; ROBERT ABRAMS, as Attorney General of the
State of New York, and on behalf of the People of the State
of New York; STATE OF NEW YORK; CITY OF NEW YORK; SARA DOE;
JANE ROE; ANNE COE, individually and on behalf of their
minor children, and on behalf of all others similarly
situated and their minor children, Plaintiffs-Appellants,
FRAN FOE; MARY MOE; LINDA LOE; SUSAN SOE; ZELDA ZOE,
individually and on behalf of their minor children, and on
behalf of all others similarly situated and their minor children, Plaintiffs-Intervenors-Appellants, v. RICHARD L.
THORNBURGH, as Attorney General of the United States;
TERRANCE O'REILLY, as Assistant Commissioner of the
Immigration and Naturalization Service; EDWARD WILDBLOOD, as
Legalization Director of the INS Eastern Regional Office;
GILBERT TABOR, as INS Eastern Regional Processing Facility
Director; SCOTT BLACKMAN, as INS District Director of the
New York District; LOUIS W. SULLIVAN, M.D., as Secretary of
Health and Human Services, Defendants-Appellees.
Docket Nos. 91-6133, 91-6135, 91-6167 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
4 F.3d 99
August 24, 1993, Decided
Prior History:
The Judgment entered pursuant to our initial opinion on this appeal, see Perales v. Thornburgh, 967 F.2d 798 (2d Cir. 1992) was vacated by the Supreme Court and remanded for further consideration in light of Reno v. Catholic Social Services, Inc., 125 L. Ed. 2d 38, 509 U.S. , 61 U.S.L.W. 4652, 113 S. Ct. 2485 (1993). Reno v. Perales, U.S. , 125 L. Ed. 2d 716, 61 U.S.L.W. 3867, 113 S. Ct. 3027 (1993). We remand the case to the district court for reconsideration in light of Catholic Social Services and this opinion. On Remand from Supreme Court. September 30, 1991, Argued. June 24, 1992, Decided. June 28, 1993, Vacated and Remanded. Original Opinion of June 24, 1992. Counsel:
STEPHEN LOFFREDO, Main Street Legal Services Inc., Flushing, New York; VICTOR KOVNER, Corporation Counsel to the City of New York, New York, New York, ELLEN B. FISHMAN, LINDA H. YOUNG; ROBERT ABRAMS, Attorney General of the State of New York, New York, New York, O. PETER SHERWOOD, Solicitor General, JUDITH KRAMER, CHARLES F. SANDERS, for plaintiffs-appellants. OTTO G. OBERMAIER, United States Attorney for the Southern District of New York; DIOGENES P. KEKATOS, MARLA ALHADEFF, Assistant United States Attorneys, of counsel, for defendants-appellees. Lucas Guttentag, Esq., Linda Bosniak, Esq., American Civil Liberties Union, New York, NY, Michael Rubin, Esq., Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, CA, Pauline Gee, Esq., Stephen A. Rosenbaum, Esq., California Rural Legal Assistance, San Francisco, CA, Vibiana Andrade, Esq., Mexican American Legal Defense & Education Fund, Los Angeles, CA, for Amici Curiae American Civil Liberties Union, American Council of Nationality Services, Anna R., Sofia Baez Dehuerta, Jane S., Catholic Charities, Archdiocese of New York, Office for Immigrant Services, Travelers Aid Service/Victim Services Agency, Asian American Legal Defense and Education Fund, League of United Latin American Citizens, National Coalition for Haitian Refugees, New York Immigration Coalition, Central American Refugee Center, Church Avenue Merchants Block Association, Washington Association of Churches.Judges:
Before: CARDAMONE, WALKER, and McLAUGHLIN, Circuit Judges.Opinion By:
PER CURIAMOpinion:
Per Curiam: We initially decided this appeal in Perales v. Thornburgh, 967 F.2d 798 (2d Cir. 1992). The Supreme Court granted certiorari and vacated the case and remanded it to us for further consideration in light of Reno v. Catholic Social Services, Inc., 509 U.S. , 125 L. Ed. 2d 38, 113 S. Ct. 2485 (1993). Reno v. Perales, U.S. , 125 L. Ed. 2d 716, 113 S. Ct. 3027 (1993). In Catholic Social Services, the Court held that aliens challenging regulations promulgated pursuant to the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (the "Act"), but who had not applied for adjustment of status under the Act, did not make out ripe claims merely because the challenged regulations were promulgated or because they believed the regulations made them ineligible for adjustment of status. The Court noted that this was true whether the alien had heard of the challenged regulations from an attorney, word-of-mouth, or from a "QDE," a private organization such as a community center or church that is designated by the Attorney General pursuant to the Act to disseminate information about the Act and assist in the preparation of applications. Catholic Social Services, 61 U.S.L.W. at 4656-57 n.19. However, the Court held that aliens whose applications were "front-desked," that is, turned away by Immigration and Naturalization Service employees and never processed because the applicant would be ineligible under the challenged regulations, would have ripe claims. Id. at 4657-58. The Court also noted: "Although we think it unlikely, we cannot rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure not to apply, so that they can be said to have had the [challenged regulations] applied to them in a sufficiently concrete manner to satisfy ripeness concerns." Id. at 4659 n.28. In this case, the plaintiffs also challenge regulations promulgated under the Act. As in Catholic Social Services, there are not facts in the record sufficient for us to determine which, if any, of the members of the plaintiff class were front-desked or otherwise had the challenged regulations applied to them "in a sufficiently concrete manner to satisfy ripeness concerns." We therefore remand this case to the district court for further proceedings consistent with Catholic Social Services and this opinion.
