Loa-Herrera, et al v. Trominski, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-40122
_______________
JULIO LOA-HERRERA, RAMIRO CANTU-GRACIA, JUANA GUZMAN-ASCENCIO,
EFRAIN MERINO, ARTURO LOZANO-LOPEZ, ALEJANDRA GUTIERREZ,
JUAN SANCHEZ-SALINAS, AND ADELITA CANTU DE CABRERA,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
VERSUS
E.M. TROMINSKI,
IMMIGRATION AND NATURALIZATION SERVICE DISTRICT DIRECTOR,
JANET RENO,
UNITED STATES ATTORNEY GENERAL,
AND
IMMIGRATION AND NATURALIZATION SERVICE,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
October 31, 2000
Before SMITH and DENNIS, Circuit
Judges, and HARMON,* District Judge.
JERRY E. SMITH, Circuit Judge:
The plaintiff class is comprised of lawful
permanent residents (“LPR’s”) faced with
* District Judge of the Southern District of
Texas, sitting by designation.

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2
pending deportation or exclusion proceedings1
in which no final order of deportation or ex-
clusion has yet been entered, who are not pres-
ently held in detention, and whose immigration
documents have been confiscated by the Har-
lingen, Texas, office of the Immigration and
Naturalization Service (“INS”). Plaintiffs ob-
ject to INS’s practice of seizing an LPR’s lam-
inated Form I-151 or I-551 (“green card”)2
and other government documents and issuing,
in their place, an I-94 “Temporary Evidence of
Lawful Permanent Resident” form containing
extraneous information announcing the hold-
er’s pending removal proceedings. They addi-
tionally claim that LPR’s are entitled to notice
and a hearing to determine whether they
should be paroled within the United States
pending a final determination in their removal
proceedings.
The district court granted the plaintiffs’ re-
quest for injunctive relief. Its final order, dat-
ed January 13, 1999, regulates the seizure of
an LPR’s green card and issuance of tempo-
rary documents pending removal proceedings,
requires the INS to hold a hearing before de-
termining whether an LPR should be paroled
into the United States pending a final order of
removal, and guarantees LPR’s the right not to
have their other lawfully issued documents
confiscated unless those documents constitute
bona fide evidence of unlawful conduct.3
1 The Illegal Immigration Reform and Immigra-
tion Responsibility Act of 1996 (“IIRIRA”)
“changed the nomenclature of immigration orders
so that orders of deportation and orders of exclu-
sion are both now referred to as ‘orders of re-
moval.’” Cardoso v. Reno, 216 F.3d 512, 515 n.3
(5th Cir. 2000). See also IIRIRA § 309(d)(2), 110
Stat. 3009-546, 3009-627 (1996) (stating that “any
reference in law to an order of removal shall be
deemed to include a reference to an order of exclu-
sion and deportation or an order of deportation.”).
2 See Etuk v. Slattery, 936 F.2d 1433, 1436 (2d
Cir. 1991) (“The INS regulations provide for the
issuance of either of two registration forms to
LPRsSSthe Form I-151 or Form I-551. Form
I-151 registration cards were issued to LPR’s
before June 1987. Since then, LPR’s have been
issued the I-551 form. Both of these forms provide
LPR’s with proof of their alien registration and
legal status. The documents are popularly referred
to as ‘green cards.’”).
3 The order states:
1. Pursuant to the intent of the McNary
Memorandum, Defendants shall only confis-
cate the laminated Form I-151 or I-551 of a
non-arriving lawful permanent resident
placed under expulsion proceedings, and not
held in custody, when the INS District Di-
rector, chief patrol agent, or officer in
charge determines that a temporary docu-
ment is needed for a justifiable, particular-
ized reason, based on the individual facts of
the case. When such a resident’s green card
is confiscated, Defendants shall provide
temporary evidence of lawful permanent res-
ident status, which shall be prepared in ac-
cordance with Operation Instruction 264.2,
and shall be issued for at least six months,
and shall contain a notation that it is renew-
able.
2. When a permanent resident applying for
admission to the U.S. is placed under expul-
sion proceedings, Defendants may confis-
cate the resident’s green card, but shall af-
ford said person a prompt hearing before an
Immigration Judge, in accordance with
8 C.F.R. § 236.1, to determine whether he
or she should be paroled into the U.S. dur-
ing the pendency of said proceedings, and if
so, under what conditions. If the person is
so paroled, and not held in cus-
(continued...)

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3
The government presents a series of proce-
dural and substantive objections to the order.
With respect to the seizure of green cards and
issuance of temporary documents, we con-
clude that the order was too sweeping in light
of 8 C.F.R. § 264.5(g), which is cited by
neither party nor the district court. In addi-
tion, we conclude that federal courts have no
jurisdiction to review parole decisions of the
Attorney General. Finally, we decide that re-
mand is appropriate to ensure that the govern-
ment has ample opportunity to press its factual
and legal contentions before the district court.
We therefore vacate the order and remand
for any further proceedings that may be re-
quired. We also vacate an earlier, preliminary
order benefiting an individual who is not a
member of the plaintiff class.
I.
The government claims the plaintiffs lack
standing.4 “[T]he critical standing question is
whether the plaintiff has demonstrated a per-
sonal, distinct, and palpable injury-in-fact that
is fairly traceable to the defendant’s allegedly
unlawful conduct, and that such an injury is
likely to be redressed by a favorable judicial
decision.” National Treasury Employees Un-
ion v. United States Dep’t of Treasury, 25
F.3d 237, 241 (5th Cir. 1994). In identifying
an injury that confers standing, courts look ex-
clusively to the time of filing. See Pederson v.
Louisiana State Univ., 213 F.3d 858, 870 (5th
Cir. 2000).
We reject the government’s contention that
the plaintiffs lack standing, for want of injury,
to challenge their denial of immigration docu-
mentation. Green cards “play a significant role
in the day-to-day lives of LPRs.”5 And al-
though the I-94 forms issued in place of the
green cards do evidence LPR status, they ad-
ditionally state:
WarningSSA nonimmigrant who accepts
unauthorized employment is subject to
deportation.
ImportantSSRetain this permit in your
possession; you must surrender it when
you leave the U.S. Failure to do so may
delay your entry into the U.S. in the
future.
You are authorized to stay in the U.S.
3(...continued)
tody, Defendants shall provide a
substitute document evidencing
permanent resident status, and
entitlement to be employed in the
U.S.; and
3. Defendants shall not confiscate any other
lawfully issued documents from permanent
residents, absent a good faith belief that
such documents constitute bona fide evi-
dence of unlawful conduct.
4 Although it seeks reversal of the entirety of the
district court’s order on standing grounds, the INS
presents argument only with respect to an LPR’s
right to hold a green card or other evidence of
immigration status. Because the plaintiffs ade-
quately allege injury in the balance of their com-
(continued...)
4(...continued)
plaint, we limit our analysis accordingly.
5 Etuk, 936 F.2d at 1437 (“. . . Congress in-
creased the importance of the green card with its
adoption of the Immigration Reform and Control
Act of 1986 . . . in order to establish one’s eligibil-
ity for a variety of government funded assistance
programs . . . [and in the area of] employment
authorization.”).

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4
only until the date written on this form.
To remain past this date, without per-
mission from immigration authorities, is
a violation of the law.
As plaintiffs adequately allege, inadequate
immigration documents result in a greater
degree of harassment by the INS and dimin-
ished employment opportunities. Indeed, the
government admits that aliens who hold only
temporary I-94 forms are “more likely to be
more closely inspected” than are holders of
green cards. Although the government argues
that plaintiffs fail to identify a single LPR who
has actually suffered such injury, actual injury
is not constitutionally required.
Mere threatened injury is sufficient,6 and the
threat in this case is real. For example, ac-
cording to the plaintiffs, “[a]s a result of INS’
arbitrary confiscation of his I-551, Loa [a
former plaintiff, now deceased] endured al-
most two hours of detention at the border, and
an unreasonable search, causing ‘inconve-
nience, and public humiliation.’” Plaintiffs
therefore have asserted sufficient injury to con-
fer standing.
More troubling is the government’s conten-
tion that the district court failed to give the
government an opportunity to present argu-
ment before issuing its order. Because of our
rulings on the government’s substantive
claims, which we discuss below, we do not ad-
dress these allegations. Instead, we vacate the
order and remand for further proceedings, dur-
ing which the INS assuredly will have ample
opportunity to press any additional legal or
factual arguments it wishes to make and there-
by to cure any procedural defects regarding
the order.
II.
The government’s substantive objections to
the order regard the issuance and confiscation
of immigration documents. LPR’s are autho-
rized to work in the United States.7 Even
“LPRs who are placed in deportation proceed-
ings do not lose the status of lawful residents
and its attendant benefits until . . . a final
deportation order [has been] issued.” Etuk,
936 F.3d at 1447. Until deported or excluded,
LPR’s are fully entitled to remain in the United
States and seek employment, for “[t]he fact
that an alien is subject to deportation proceed-
ings does not affect his status as a permanent
resident alien. A permanent resident alien’s
status terminates only when the order of de-
portation is affirmed by the BIA or otherwise
becomes administratively final.” Molina v.
Sewell, 983 F.2d 676, 680 (5th Cir. 1993).
In addition, federal law guarantees LPR’s
certain rights of documentation they can use to
prove, to potential employers and others, their
right to be in the United States. How that
right is prot ected in practice, however, is
6 See City of Los Angeles v. Lyons, 461 U.S.
95, 105 (1983) (“Lyons’ standing to seek the
injunction requested depended on whether he was
likely to suffer future injury from the use of the
chokeholds by police officers.”); Friends of the
Earth, Inc. v. Crown Cent. Petroleum, 95 F.3d
358, 360 (5th Cir. 1996); Hernandez v. Cremer,
913 F.2d 230, 234 (5th Cir. 1990) (“Although at
present Hernandez is safely inside the United
States, he is . . . entitled to travel to and from
Mexico without deprivation of his Fifth Amend-
ment due process rights. We think there is at the
very least a reasonable expectation that Hernandez
will exercise his right to travel. Indeed, Hernandez
testified that he would like to return to Mexico, but
did not ‘want to run the risk of something like this
happening again.’”) (citation omitted). 7 See 8 U.S.C. § 1324a(a)(1)(A), (h)(3).

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5
within the express discretion of the Attorney
General.8
In granting the plaintiffs injunctive relief on
the question of LPR documentation, the dis-
trict court relied substantially on a 1990 inter-
nal INS policy clarification (the “McNary
Memorandum”),9 which directed the INS not
to seize green cards absent individualized cir-
cumstances and must “be followed until appro-
priate regulations and operations instructions
are published.” The district court erred in re-
lying on the McNary Memorandum, for an
agency’s internal personnel guidelines “neither
confer upon [plaintiffs] substantive rights nor
provide procedures upon which [they] may
rely.” Fano v. O”Neill, 806 F.2d 1262, 1264
(5th Cir. 1987). The memorandum merely ar-
ticulates internal guidelines for INS personnel;
it does not establish judicially enforceable
rights.
8 See 8 U.S.C. § 1304(d) (“Every alien in the
United States who has been registered and finger-
printed under the provisions of the Alien Registra-
tion Act, 1940, or under the provisions of this
chapter shall be issued a certificate of alien regis-
tration or an alien registration receipt card in such
form and manner and at such time as shall be
prescribed under regulations issued by the Attorney
General.”); Etuk, 936 F.2d at 1444 (“The INA
mandates that the Attorney General provide LPRs
who register with proof of their legal status.”). See
also 8 C.F.R. § 264.1 (listing forms).
9 The McNary Memorandum states:
Litigation over the disposition of Forms
I-151 and I-551 once the holders have been
placed in deportation . . . proceedings has
revealed a need for clarification of Service
policy in this area. The instructions con-
tained in this memorandum are effective
upon receipt, and will be followed until
appropriate regulations and operations
instructions are published.
DEPORTATION PROCEEDINGS
A lawful permanent resident alien in depor-
tation proceedings is required to be regis-
tered under section 261 or 262 of the Immi-
gration and Nationality Act, as amended,
and to be in possession of evidence of such
registration. Form I-151 or I-551 [green
card] is the appropriate evidence of alien
registration for lawful permanent residents
(continued...)
9(...continued)
in the United States. Accordingly, when an
order to show cause is issued, and the recip-
ient is the holder of Form I-151 or I-551 and
is not detained or incarcerated, he or she
shall be allowed to retain possession of
evidence of alien registration. If the alien
has no evidence of alien registration, Form
I-90 shall be filed and processed, and the
appropriate documentation will be issued by
the office having jurisdiction.
. . . If the district director, chief patrol agent
or officer in charge determines that a tempo-
rary document is needed to assure the alien’s
appearance at hearings, or for other justifi-
able reasons, the [green card] will be lifted,
and a temporary I-551 issued. In these
cases, temporary Forms I-551 will be pre-
pared in accordance with the guidance in
O.I. 264.1, and will be issued for a period
sufficient to allow completion of the depor-
tation proceedings, but in no case less than
six months.
McNary Memorandum, Memorandum from
Office of Commissioner to All District
Directors (Mar. 14, 1990).
Etuk, 936 F.2d at 1442.

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6
Inexplicably, neither the district court nor
any of the parties cite 8 C.F.R. § 264.5(g)
(2000), which states in its entirety:
A person in exclusion proceedings
shall be entitled to evidence of perma-
nent resident status until ordered ex-
cluded. Such evidence shall be in the
form of a temporary Form I-551 issued
for a period sufficient to accomplish the
exclusion proceedings. A person in de-
portation proceedings shall be entitled to
evidence of permanent resident status
until ordered deported or excluded. Is-
suance of an Permanent Resident Card
to a person in exclusion or deportation
proceedings, provided the person had
status as a lawful permanent resident
when the proceeding commenced, shall
not affect those proceedings.
Because the district court erred to the extent
that its order relied on the McNary Memoran-
dum, we vacate the order and remand so the
court can determine whether an injunction is
appropriate in light of § 264.5(g). In doing so,
we make a number of observations regarding
the scope and meaning of that regulation.
Section 264.5(g) requires that the INS issue
the temporary Form I-551 to persons in exclu-
sion proceedings.10 By contrast, the regulation
does not specify the form of documentation
with respect to those in deportation proceed-
ings.
In addition, § 264.5(g) requires only that
the INS provide documentary evidence of LPR
status. The regulation plainly does not restrict
the INS from attaching additional notations to
caution employers that a potential worker, al-
though an LPR and therefore currently autho-
rized to work in the United States, is also fac-
ing pending deportation proceedings and thus
may not be available for an extended period of
employment.
The Attorney General is free to issue new
regulations and amend the requirements of
§ 264.5(g) (provided, of course, that the re-
quisite procedure is followed). Absent any le-
gal authority to the contrary, however, the dis-
trict court may not interfere with the Attorney
General’s statutory discretion to balance an
LPR’s interest in possessing particular forms
of documentation against an employer’s inter-
est in knowing a potential employee’s present
and future immigration status.
III.
The government also challenges the portion
of the order respecting the Attorney General’s
discretion to grant parole within the United
States. The Attorney General is vested with
broad powers over the custody of all aliens
(including LPR’s) against whom deportation
or exclusion proceedings are pending.11 “[I]n
10 We reject the government’s contention that
the requirement of evidence “in the form of a tem-
porary Form I-551” is satisfied by the issuance of
any form that is similar to a Form I-551, for that is
not the most reasonable construction of the regula-
tion. Instead, under the plain meaning of
§ 264.5(g), the INS must issue the temporary Form
I-551 to persons in exclusion proceedings; substi-
tute forms are not sufficient.
11 An “alien” is “any person not a citizen or na-
tional of the United States.” 8 U.S.C. § 1101-
(a)(3). The term thus includes LPR’s. See also
8 U.S.C. § 1101(a)(20) (“The term ‘lawfully ad-
mitted for permanent residence’ means the status of
having been lawfully accorded the privilege of re-
siding permanently in the United States as an im-
(continued...)

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7
the case of an alien who is an applicant for ad-
mission, if the examining immigration officer
determines that an alien seeking admission is
not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for a pro-
ceeding under section 1229a of this title.”
8 U.S.C. § 1225(b)(2)(A). Where such an ali-
en “is arriving on land (whether or not at a
designated port of arrival) from a foreign ter-
ritory contiguous to the United States, the At-
torney General may return the alien to that
territory pending a proceeding under section
1229a of this title.” 8 U.S.C. § 1225(b)(2)(C).
Alternatively, instead of paroling the indi-
vidual out of the United States,
[o]n a warrant issued by the Attorney
General, an alien may be arrested and
detained pending a decision on whether
the alien is to be removed from the Unit-
ed States . . . . [P]ending such decision,
the Attorney GeneralSS
(1) may continue to detain the ar-
rested alien; and
(2) may release the alien onSS
(A) bond of at least $1,500 with
security approved by, and containing
conditions prescribed by, the Attorney
General; or
(B) conditional parole.
8 U.S.C. § 1226(a).12
The plaintiffs argue that, pursuant to Ma-
thews v. Eldridge, 424 U.S. 319, 334 (1976),
due process requires the INS to provide an
LPR with notice of his right to parole within
the United States13 and with a parole hearing
before the Attorney General decides how to
exercise her discretion. Congress, however,
has denied the district court jurisdiction to ad-
judicate deprivations of the plaintiffs’ statutory
and constitutional rights to parole.14
11(...continued)
migrant in accordance with the immigration laws,
such status not having changed.”).
12 See also 8 U.S.C. § 1182(d)(5)(A) (“The
Attorney General may . . . in his discretion parole
into the United States temporarily under such
conditions as he may prescribe only on a
case-by-case basis for urgent humanitarian reasons
or significant public benefit any alien applying for
admission to the United States, but such parole of
such alien shall not be regarded as an admission of
the alien and when the purposes of such parole
shall, in the opinion of the Attorney General, have
been served the alien shall forthwith return or be
returned to the custody from which he was paroled
and thereafter his case shall continue to be dealt
with in the same manner as that of any other
applicant for admission to the United States.”);
8 C.F.R. § 212.5; 8 C.F.R. § 235.3(c)-(d).
13 But see City of West Covina v. Perkins, 525
U.S. 234, 240-41 (1999) (“A primary purpose of
the notice required by the Due Process Clause is to
ensure that the opportunity for a hearing is mean-
ingful . . . . No similar rationale justifies requiring
individualized notice of state-law remedies which
. . . are established by published, generally avail-
able state statutes and case law. Once the property
owner is informed that his property has been
seized, he can turn to these public sources to learn
about the remedial procedures available to him.
The City need not take other steps to inform him of
his options.”).
14 See Lopez-Elias v. Reno, 209 F.3d 788, 793
(continued...)

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8
The plaintiffs respond that the Attorney
General’s parole authority at issue in this case
is found not in 8 U.S.C. § 1226, but instead in
8 U.S.C. § 1225(b)(2)(C). Therefore, they ar-
gue, the bar on judicial review contained in
§ 1226(e), which applies only to “this section,”
does not bar this suit. But § 1225(b)(2)(C)
only authorizes the Attorney General to return
an applicant for admission to Mexico pending
the exclusion proceedings. It is § 1226(a), by
contrast, that authorizes her to grant parole
within the United States to an LPR subject to
removal proceedings.
In sum, “[t]he Attorney General’s discre-
tionary judgment regarding the application of”
paroleSSincluding the manner in which that
discretionary judgment is exercised, and
whether the procedural apparatus supplied sat-
isfies regulatory, statutory, and constitutional
constraintsSSis “not . . . subject to review.”
§ 1226(e). Without reaching the merits of the
plaintiffs’ constitutional claims, we therefore
vacate those portions of the order that require
the INS to hold parole hearings. In doing so,
we note that the executive branch, of course,
has an independent duty to uphold the Con-
stitution, irrespective of whether its actions are
subject to judicial review.15
IV.
Before the subject order was entered, the
district court granted preliminary relief to Je-
sus Garza-Pacheco. On appeal, the govern-
ment asserts that the court had no authority to
grant any relief whatsoever to him, because he
is neither a named plaintiff nor a member of
the plaintiff class.
We quickly dispense with the plaintiffs’ as-
sertion that this court has no appellate jurisdic-
tion to review the Garza-Pacheco order. Ap-
pellants have the “choice of appealing from [a
preliminary] order within fifteen days or of
awaiting a final decree, for all interlocutory
orders are reviewable on appeal from the final
decree.” Gloria Steamship Co. v. Smith, 376
F.2d 46, 47 (5th Cir. 1967) (citations omitted).
And although the government’s notice of ap-
peal designates only the January 13, 1999, or-
der, a “notice of appeal to this Court from the
final decree of the District Court invoked the
jurisdiction of this Court to examine the inter-
locutory order as well as the final decree.” Id.
We also agree with the government’s argu-
ment on the merits. The plaintiff class is re-
stricted to LPR’s “who are under deportation
or exclusion proceedings, in whose cases no fi-
nal order of deportation or exclusion has been
14(...continued)
(5th Cir. 2000) (“Federal courts derive their power
to adjudicate from Congress, and not from the
Constitution alone.”), petition for cert. filed, 69
U.S.L.W. 3128 (July 28, 2000) (No. 00-164); 8
U.S.C. § 1226(e) (“The Attorney General’s dis-
cretionary judgment regarding the application of
this section shall not be subject to review. No
court may set aside any action or decision by the
Attorney General under this section regarding the
detention or release of any alien or the grant, re-
vocation, or denial of bond or parole.”).
15 See U.S. CONST. art. VI, cl. 3 (“all executive
. . . Officers . . . shall be bound by Oath or Affir-
mation, to support this Constitution”); David P.
Currie, THE CONSTITUTION IN CONGRESS: THE
FEDERALIST PERIOD 1789-1801 at ix-x (Chicago
1997) (“Members of Congress and executive
officers, no less than judges, swear to uphold the
Constitution, and they interpret it every day in
making and applying the law. . . . [B]oth Con-
gress and the Executive have a great deal to tell us
about the Constitution.”).

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9
entered.” Garza-Pacheco therefore was not a
valid member of the class, because a final or-
der of deportation has been executed against
him. “In the complaint the title of the action
shall include the names of all the parties.”
FED. R. CIV. P. 10(a). Failure to name a party
denies a court jurisdiction over that party.16
We therefore VACATE the final order of
January 13, 1999, and the preliminary order
regarding Garza-Pacheco, and we REMAND
for any further necessary proceedings.
ENDRECORD
16 See National Commodity & Barter Ass’n v.
Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989)
(holding that “the federal courts lack jurisdiction
over the unnamed parties, as a case has not been
commenced with respect to them”).

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DENNIS, Circuit Judge, concurring in part and dissenting in part.
I concur in vacating the final order of January 13, 1999 and the preliminary order regarding Garza-
Pacheco, and I agree in part with the reasoning of the majority opinion. I disagree, however, with
part of the reasons assigned by the majority and with the limits it imposes upon further proceedings
in the district court. I concur in the following parts of the majority opinion: (1) Part I holding that
the plaintiffs have standing; (2) Part II insofar as it recognizes that LPRs are authorized to seek
employment and work in the United States; that a person’s LPR status, including its attendant
benefits such as the right to work and to have documentation certifying that right and the right to be
in the United States, does not terminate until an order of deportation is affirmed by the Board of
Immigration Appeals (BIA) or otherwise becomes administratively final; and that the district court
erroneously relied upon the McNary Memorandum as establishing judicially enforceable rights; and
(3) Part IV with respect to this court’s appellate jurisdiction to review the Garza-Pacheco order.
I respectfully disagree with the majority opinion in the limits it places on the remand instructions
and in the following respects:
1.
An alien who is a lawful permanent resident of the United States, and remains physically present
here, is a person within the protection of the Fifth Amendment who may not be deprived of his life,
liberty, or property without due process of law. United States v. Verdugo-Urquidez, 494 U.S. 259,
271 (1990); Landon v. Plasencia, 459 U.S. 21, 32-34 (1982); Kwong Hai Chew v. Colding, 344 U.S.
590, 596 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896). Accordingly, he may not
be deported without notice, a hearing, and an opportunity to be heard, before such determination is

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11
made. Chew, 344 U.S. at 597-98. Likewise, because LPRs in exclusion proceedings must also be
accorded procedural due process, Landon, 459 U.S. 33-37, the same constitutional protections
extend to resident aliens seeking reentry after a brief trip abroad not meaningfully interruptive of the
alien’s continued United States residence. Zadvydas v. Underdown, 185 F.3d 279, 295 & n.17 (5th
Cir. 1999) (citing Landon, 459 U.S. at 32-24); see also Verdugo-Urquidez, 494 U.S. 259, 271
(1990)(citing cases recognizing various constitutional rights of resident aliens: e.g., Bridges v. Wixon,
326 U.S. 135, 148 (1945)(resident aliens have First Amendment rights); Wong Wing, 163 U.S. at 238
(resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356,
369 (1886)(Fourteenth Amendment protects resident aliens)). Although an LPR may later be found
excludable or deportable, he is, nonetheless, entitled to due process before such determination is
made. Chew, 344 U.S. at 597-98. “Although Congress may prescribe conditions for his expulsion
and deportation, not even Congress may expel him without notice and a fair opportunity to be heard.”
Id.
Consequently, an alien’s LPR status includes elements of liberty and property rights of which he
cannot be deprived without due process of law. For example, the right to seek and engage in
employment, to travel, and t o qualify for other benefits and entitlements are attributes or inherent
characteristics of LPR status. Therefore, the government cannot deprive an LPR of these rights or
entitlements or significantly damage them without first affording the LPR due process of law
guaranteed by the Fifth Amendment. For instance, the INS and other government agents may not,
without affording an LPR such due process of law, (1) confiscate his green card without providing
him a reasonably adequate substitute document that will afford him equal access to all attributes of
LPR status or (2) deny an LPR readmission. Of course, an LPR can be investigated, arrested, o r

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prosecuted for a crime just as any other alien or citizen. But an LPR cannot be deprived of any of
the attendant rights of his status without due process of law, because the Due Process clause of Fifth
Amendment does not acknowledge any distinction between citizens and resident aliens. See Galvan
v. Press, 347 U.S. 522 (1954) (“[Because] an alien who legally became part of the American
community ... is a ‘person,’ [he] has the same protection for his life, liberty and property under the
Due Process Clause as is afforded to a citizen.”); Bridges, 326 U.S. at 161 (Murphy, J., concurring)
(“None of these provisions acknowledges any distinction between citizens and resident aliens.”).
2.
Accordingly, I do not agree that an LPR’s right to adequate documentation to verify his right to
work and remain in the country is totally within the express discretion of the Attorney General.
Although the Attorney General may prescribe reasonable regulations for administrative purposes, not
even the Attorney General may deprive an LPR of his rights or entitlements protected by the Fifth
Amendment without affording him due process. Similarly, although the INS may enjoy some
discretion in providing documentary evidence of LPR status, it may not do so in a way that deprives
or damages an LPR’s status and its attendant rights and entitlements without complying with the
requirements of the Fifth Amendment. Thus, although the courts may not have jurisdiction to review
the exercise of discretion in matters of parole and documentation by the Attorney General or the INS,
the courts most assuredly do have the power and duty to hear cases under the Constitution involving
the alleged deprivation of life, liberty, or property of a resident alien without due process of law. See,
e.g., Johnson v. Robison, 415 U.S. 361, 374 (1974) (holding that provisions of the Veterans’
Readjustment Act, while precluding judicial review of administrative decisions, did “not extend the
prohibitions of that section to actions challenging the constitutionality of laws”); Parra v. Perryman,

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172 F.3d 954, 957 (7th Cir. 1999) (recognizing that although a court may not be able to review a
decision implementing 1226, 1226(e) does not purport to foreclose challenges” to 1226 itself”).
Moreover, I do not read any of the statutes or regulations as being in conflict with these constitutional
principles. Consequently, I would remand the case for further proceedings in accordance with the
requirements of the Fifth Amendment, applying the laws and regulations consistently with the
constitutional framework.
3.
Finally, I dissent from the limitations that the majority places upon further proceedings and relief
with respect to Garza-Pacheco. From the available information, it is unclear that Garza-Pacheco
should be excluded from the class. The Appellants contend that Garza-Pacheco’s case is not
sufficiently related for him to be a member of the class because Garza-Pacheco was not an LPR at
the time the District Court granted him preliminary relief.
But, it is not clear that he was given notice and an opportunity to be heard before his green card
was confiscated and before he was initially ordered deported or that his second deportation was
administratively final at the time the district court granted him preliminary relief. Consequently,
Garza-Pacheco’s case should be remanded to the district court for further proceedings and resolution
of these issues.
Accordingly, I would vacate the district court’s orders and remand the case for further
proceedings consistent with the foregoing reasons.

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