Mada-Luna v. Fitzpatrick

813 F.2d 1006 (9th Cir. 1987)


P is a Mexican alien, convicted in 1981 for a narcotics violation. He was incarcerated for one year and then paroled. When he was released, D initiated deportation proceedings against him based upon his conviction, and he was ordered deported in 1983. P then applied to D for deferred action status under the 1978 version of Operating Instruction 103.1(a)(1)(ii). D denied the application in November 1983, and in December 1983, denied a supplemental application. P stated that he had resided in the United States for seventeen years, and had no criminal record other than his single narcotics conviction. He submitted letters from prison officials and his parole officer characterizing him as a model prisoner and an outstanding parolee. P had also worked as an undercover operative for the DEA. While working for the DEA in Sonora, Mexico, P and his wife allegedly were kidnapped by drug traffickers, held at gunpoint, and released only when they promised to pay a ransom of about $20,000. P has not paid the ransom, and has, as a result, received a series of telephone calls from Mexico threatening his life if he returns there, several of which he transcribed and submitted to the INS. Both his wife and daughter are United States citizens. D rejected the applications because P had been 'a habitual violator of the Immigration laws' and had lied to the INS under oath on at least two occasions. As for the death threats; they were made by P's former criminal associates who are now seeking repayment for the narcotics seized from P when he was arrested in 1981. P filed for habeas relief in district court. The petition was granted. The court concluded that the 1981 Operating Instruction in P's case violated the APA and FOIA. D appealed. P claims the 1981 Operating Instruction was never validly promulgated because of D's failure to comply with the APA's notice-and-comment requirements and the FOIA's publication requirements, and that it therefore never validly superseded the original, 1978 Operating Instruction. P posits that two separate procedural aspects are involved: (1) the repeal of the 1978 Instruction; and (2) the promulgation of the 1981 Instruction. Each of these two agency 'actions' constitutes 'rulemaking' under the APA, and therefore each action independently triggers section 553's notice-and-comment requirements unless it qualified for one of the exceptions contained in that provision. D maintains that the disputed instructions are exempt as they are policy statements.