
    Wang Zong XIAO, Plaintiff, v. Janet RENO, in her capacity as Attorney General of the United States; Michael J. Yamaguchi, in his capacity as United States Attorney for the Northern District of California; Reginald L. Boyd, in his capacity as United States Marshal for the Northern District of California; Chris Sales, in her capacity as Acting Commissioner of the Immigration and Naturalization Service; and David Ilchert, in his capacity as District Director for the Immigration and Naturalization Service, Defendants.
    No. C-90-0350 WHO.
    United States District Court, N.D. California.
    March 2, 1993.
    Cedric C. Chao, John D. Danforth, Ruth N. Borenstein, Lisa Bradley, Morrison & Foerster, San Francisco, CA, Paul M. Gordon, Law Offices of Paul M. Gordon, Oakland, CA, for plaintiff.
    John A. Mendez, U.S. Atty., Stephen L. Schirle, Chief, Civ. Div., Alberto E. Gonzalez, Sp. Asst. U.S. Atty., San Francisco, CA, Mark C. Walters, Asst. Director, Michele Y.F. Sarko, Alexander H. Shapiro, Attys., Office of Immigration Litigation, Civil Div., Dept, of Justice, Washington, DC, for defendants.
   OPINION AND ORDER

ORRICK, District Judge.

Defendants move to dismiss all twelve causes of action in plaintiffs first amended complaint (“FAC”). For the reasons stated herein, the Court grants the motion to dismiss the Eleventh Cause of Action, as mandated by the United States Court of Appeals for the Ninth Circuit, and denies the motion to dismiss the remaining eleven causes of action.

I.

The facts (taken from the Ninth Circuit’s opinion in Wang Zong Xiao v. Barr, 979 F.2d 151 (9th Cir.1992)) may be summarized briefly.

A.

Pursuant to 8 U.S.C. § 1182(d)(5)(A), the government paroled plaintiff into the United States from the People’s Republic of China (“PRC”) to testify at the trial of several criminal defendants in the so-called “Goldfish” case. At that trial, plaintiff testified that Chinese authorities had tortured and coerced him into confessing and testifying falsely; this Court subsequently declared a mistrial. Plaintiff initially sought asylum, but then on February 5, 1990, he filed a complaint seeking declaratory and injunctive relief to prevent his return to the PRC or delivery into the custody of PRC officials. On July 5, 1990, plaintiff filed his FAC, which, currently, is the operative pleading before the Court. On February 10, 1990, this Court entered a preliminary injunction, ordering that plaintiff remain in the custody of the United States Marshal for the Northern District of California, and enjoining the United States from returning plaintiff to the PRC. This order was to remain in effect pending final adjudication of plaintiffs asylum request.

On July 29, 1991, plaintiffs request for asylum was denied. On February 18, 1992, the INS terminated plaintiffs immigration parole and served him with notice that he was being placed in administrative exclusion proceedings. On the same day, February 18, 1992, plaintiff requested a hearing on his previously filed motion for partial summary judgment on his Eleventh Cause of Action, which alleged that the government is “without legal authority over plaintiffs person and may not remove plaintiff from the United States or return plaintiff to Chinese custody.” (FAC ¶ 199.)

On February 20, 1992, the Court granted plaintiff a preliminary injunction preventing the government from moving forward with exclusion or deportation proceedings until final adjudication of the motion for partial summary judgment and final resolution of all appeals arising therefrom. Thereafter, the Court granted plaintiff summary judgment on the Eleventh Cause of Action, and enjoined the government from taking any further action against plaintiff that could place him in jeopardy of a return to the PRC.

Defendants appealed both the preliminary injunction and the grant of summary judgment, alleging (1) that this Court lacked jurisdiction to enjoin exclusion proceedings, (2) that this Court erred in concluding that the INS lacked jurisdiction to place plaintiff in -exclusion proceedings, and (3) that this Court erred in granting the preliminary injunction and summary judgment. The Ninth Circuit consolidated the appeals, and in an opinion filed October 30, 1992, vacated this Court’s preliminary injunction, reversed this Court’s grant of summary judgment, and remanded the case back to this Court “with directions to dismiss the claims in [plaintiffs] Eleventh Cause of Action for lack of jurisdiction.” 979 F.2d at 156.

Defendants then filed this motion to dismiss not only the Eleventh Cause of Action but all the remaining eleven causes of action in plaintiffs FAC, not one of which was mentioned in the Ninth Circuit’s opinion, or in the mandate.

B.

In his FAC, plaintiff states twelve causes of action, including the Eleventh Cause of Action that the Ninth Circuit directed this Court to dismiss. Briefly, these causes of action are herein summarized.

Plaintiffs first cause of action is for injunc-tive relief pending final adjudication of his asylum application, including judicial review. Plaintiff alleges a “danger that defendants will seek to remove plaintiff from the United States before a final adjudication on plaintiffs asylum application, in violation of plaintiffs statutory rights, and return him to the custody of [the PRC].” (FAC ¶ 96.) Consequently, plaintiff asks this Court to enjoin defendants from removing plaintiff from the United States prior to a final adjudication (including appeal) of his asylum application. (Id. ¶100.)

Plaintiffs second cause of action also is for injunctive relief pending final adjudication of his asylum application, including judicial review. Plaintiff repeats his allegation that defendants will seek to remove him from the United States prior to the completion of the asylum adjudication process, and introduces a new allegation, namely, that “[t]he United States Justice and State Departments are under pressure to return plaintiff to the custody of the Chinese government, regardless of the merits of plaintiffs asylum application.” (Id. ¶ 111.) Plaintiff asks this Court to enjoin defendants from removing him from the United States prior to a final adjudication (including appeal) of his asylum application. (Id. ¶ 117.)

Plaintiffs third cause of action is for violation of substantive due process. Plaintiff alleges that defendants, through their actions, “have placed plaintiff into a dangerous predicament. Plaintiff is vulnerable to serious and irreparable injury if he returns to [the PRC], in that the Chinese government will likely torture and execute him as a consequence of his truthful and complete testimony as a U.S. government witness in” the Goldfish case. (Id. ¶ 120.) Plaintiff alleges that because of their conduct, defendants owe him “a duty pursuant to the Fifth Amendment to substantively protect plaintiffs life and liberty.” (Id. ¶ 121.) As a remedy for this alleged constitutional violation, plaintiff seeks a permanent injunction barring defendants from removing him from the United States or from turning him over to the PRC. (Id. ¶ 128.)

Plaintiffs fourth cause of action is for breach of the government’s duty to protect its witnesses pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq. As a remedy for this alleged breach, plaintiff requests relief in the form of a permanent injunction barring defendants from removing him from the United States or from turning him over to the PRC. (FAC ¶ 138.)

Plaintiffs fifth cause of action is for breach of the government’s duty to exercise ordinary care pursuant to the APA. Plaintiff requests relief in the form of a permanent injunction. (Id. ¶ 146.)

Plaintiffs sixth cause of action is for equitable estoppel based on affirmative governmental misconduct. Because of that alleged misconduct, plaintiff asserts that he “is entitled to an order permanently estopping defendants from asserting any defenses to plaintiffs asylum application or to [his civil] action, or from asserting any reasons why [defendants] are entitled to remove plaintiff from the jurisdiction of the United States or to return him to the custody of [the PRC] or any representative of’ the PRC. (Id. ¶ 157.)

Plaintiffs seventh cause of action is for violations of 18 U.S.C. § 3508 and the APA. Section 3508 specifies the circumstances under which the Attorney General may request the temporary transfer to the United States of a person held in custody in a foreign country for the purpose of providing testimony in a criminal proceeding. Subsection (b) of that statute provides that where the transfer “is provided for by treaty or convention, by [§ 3508], or both,” the transferred person shall be returned to the foreign country without extradition proceedings. Subsection (c), the one upon which plaintiff appears to base his claim, provides that where no treaty or convention exists, the Attorney General may exercise his “request and return” authority “if both the foreign country and the witness give their consent.” 18 U.S.C. § 3508(e) (emphasis added). Plaintiff alleges the absence of any relevant “treaty or convention”; he further alleges the absence of his consent to the transfer, as subsection (c) would appear to require. Plaintiffs requested relief is for a permanent injunction. (FAC ¶ 167.)

Plaintiffs eighth cause of action is for violation of procedural due process. Plaintiff alleges that the “consent” of the “witness” required under § 3508(c) must be voluntary, knowing, and informed; to that end; plaintiff alleges that the procedural safeguards used in obtaining his consent to be brought to the United States were inadequate, and that § 3508 is, therefore, unconstitutional as applied to him. Plaintiff requests relief in the form of a permanent injunction. (Id. ¶ 177.)

Plaintiffs ninth cause of action also is for violation of procedural due process. Here, plaintiff alleges that § 3508 is unconstitutional on its face, or at least as applied to all witnesses from the PRC, because, “[t]he coercive nature of the Chinese criminal justice system precludes the adoption of any [adequate] procedural safeguards.” (Id. ¶ 180.) Plaintiff requests a permanent injunction. (Id. ¶ 184.)

Plaintiffs tenth cause of action is for violation of 8 U.S.C. § 1182 and the APA. Section 1182, pursuant to which the Attorney General brought plaintiff to this country, grants to the Attorney General the discretion to parole into the United States “any alien applying for admission to the United States” for “emergent reasons” or “for reasons deemed strictly in the public interest.” 8 U.S.C. § 1182(d)(5)(A) (emphasis added). Plaintiff alleges that he did not “apply for admission” to the United States and that the Attorney General’s actions violated the express terms of the statute. Plaintiff seeks a permanent injunction. (FAC ¶ 192.)

Plaintiffs eleventh cause of action is a petition for writ o'f habeas corpus. He alleges that he has a valid asylum application and claims that he “is entitled to a permanent discharge from the threat of being removed from the jurisdiction of the United States or being released to the custody of [the PRC] or any representative of’ the PRC. (Id. ¶ 200.) As noted above, the Ninth Circuit specifically directed this Court to dismiss this cause of action, and this the Court does in this Memorandum Decision and Order.

Plaintiffs twelfth cause of action is for violation of the law of nations and international law. Once again, plaintiff seeks a permanent injunction barring his return to the PRC or to representatives of that country. (Id. ¶ 208.)

II.

A.

Before turning to the Ninth Circuit’s opinion, it will be helpful to canvas briefly the grounds for this Court’s initial Opinion and Order. Plaintiff moved for summary judgment on his Eleventh Cause of Action (habe-as corpus) and defendants countermoved to dismiss plaintiffs FAC in its entirety.

This Court granted plaintiffs motion for summary judgment on the Eleventh Cause of Action for several reasons. First, the Court found on point a line of cases from the Second Circuit that hold that where an alien has not “entered” the United States (i.e., if he has not come to the United States as an applicant for admission), and if he is willing to depart to a third country, that he should be given the right to depart voluntarily. United States ex rel. Bradley v. Watkins, 163 F.2d 328 (2d Cir.1947). Thus, the Court agreed with plaintiffs argument that the INS had no jurisdiction over plaintiffs case. Second, the Court accepted plaintiffs argument that defendants had a duty to protect him from harm because of his position as a government witness. Crain v. Krehhiel, 443 F.Supp. 202 (N.D.Cal.1977).

In arriving at its decision, this Court rejected defendants’ argument that the Court was without jurisdiction because of plaintiffs failure to exhaust his administrative remedies. The Court found inapplicable 8 U.S.C. § 1105a(c), the Immigration and Nationality Act (“INA”) exhaustion provision, because plaintiff was challenging the INS’s authority over him, as opposed to an “order of deportation or exclusion.” 8 U.S.C. § 1105a(c). The Court specifically found: (1) that the administrative remedies available to plaintiff would be “inadequate or not efficacious” because he was challenging the very adequacy of the administrative hearing, and because of the long delay on the INS’s part in processing plaintiffs application; (2) that the Court did not owe the INS great deference because no “especially sensitive political functions” were at issue; and (3) that defendants’ ripeness objections were without merit.

Finally, this Court held that an independent and alternative ground supported its decision, namely, the Court’s “inherent supervisory powers to protect witnesses appearing before it.”

The Ninth Circuit reversed and remanded with instructions to dismiss plaintiff’s Eleventh Cause of Action. It specifically disagreed with this Court’s conclusion that because plaintiff was contesting the INS authority, he was not required to exhaust his administrative remedies: “[EJven when an alien is not, strictly speaking, seeking to attack a final order of exclusion, judicial review is precluded if the alien has failed to avail himself of all administrative remedies, one of which is the exclusion hearing itself.” Wang Zong Xiao, 979 F.2d at 153.

The Ninth Circuit framed the issue before it as “whether the question of the INS’ jurisdiction is appropriately decided in the first instance by the INS, or whether it is an issue beyond the authority of the INS to resolve and remedy.” Id. at 154. The court agreed with defendants “that the INS should be accorded the opportunity to determine its own jurisdiction.” Id. The court found that plaintiffs argument against INS jurisdiction (that the INS lacks authority over aliens who physically enter, but do not wish to be admitted to, the United States) was statutorily, and not constitutionally, based. Id. at 155. Finally, the Ninth Circuit rejected this Court’s alternative basis for its decision (the Court’s supervisory power to protect its witnesses):

Given the statutory mandate requiring exhaustion, and the availability of habeas corpus relief from any final order of exclusion, the district court should have accorded the executive proceedings due respect, and consequently should have refrained from exercising jurisdiction. This is not a case where the administrative proceedings are not equipped to provide [plaintiff] with the remedies he seeks. In fact, it is within the province of the Immigration Judge and the Board of Immigration Appeals to consider the need to protect [plaintiff], and either to grant him asylum or stay his deportation.

Id. at 156.

B.

Defendants argue that three principles from the Ninth Circuit’s opinion support their motion to dismiss the entire FAC. First, the Ninth Circuit determined that plaintiff has an adequate remedy at law: the administrative courts are equipped to provide plaintiff the remedy he seeks, which is the prevention of his return to the PRC. Second, that the habeas corpus proceedings, to which plaintiff is entitled if he loses in the administrative forum, are adequate to permit this Court to protect plaintiff from “abuses, oppression, and injustice.” Defendants devote little time to these two arguments; accordingly, they are not explored in detail here.

Defendants third argument (and the one to which they direct most of their attention) is based upon the following sentence from the Ninth Circuit’s opinion: “Given the statutory mandate requiring exhaustion, and the availability of habeas corpus relief from any final order of exclusion, the district court should have accorded the executive •proceedings due respect, and consequently should have refrained from exercising jurisdiction.” Id. (emphasis added). From this statement, defendants reason that not only must this Court allow the immigration proceedings to continue, “but also that the Court is deprived of any concurrent or ‘collateral’ jurisdiction over [plaintiffs] other claims.” (Mem. of P. & A. at 6:4-6 (emphasis added).)

This sweeping assertion goes to the very heart of this Court’s authority to consider plaintiffs claims. In support of it, defendants cite Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2018, 80 L.Ed.2d 622 (1984), which involved a district court’s jurisdiction to consider complaints filed by several individuals displeased with an administrative ruling by the Secretary of Health and Human Services (“Secretary”). There, the Secretary, unhappy with the decisions of a number of administrative law judges that a certain surgical procedure was compensable under the Medicare Act, issued a ruling that no payment was to be made for that procedure. The plaintiffs, who had undergone the surgical procedure and wanted to be reimbursed, filed suit in the district court without going through the administrative process to compel.

The Supreme Court held that plaintiffs’ suit was barred because they had failed to exhaust their administrative remedies. In reaching this conclusion, the Court rejected plaintiffs’ argument that because they were attacking the procedure by which the Secretary determined their entitlement to benefits (as opposed to her substantive determination that the medical procedure was not compen-sable), exhaustion of administrative remedies was not required, and the district court had jurisdiction under the general federal question statute, 28 U.S.C. § 1331. See Heckler, 466 U.S. at 614, 104 S.Ct. at 2021.

The Court noted that exhaustion was not an absolute requirement, but held that the exhaustion requirement would be excused only where a claim was “wholly collateral” to a claim for benefits under the Medicare Act. Id. at 618, 104 S.Ct. at 2023.

Defendants’ claim that Heckler supports their argument, is, as follows: plaintiffs desired relief is a ruling that he is not to be returned to the PRC, and the relief plaintiff seeks is not “wholly collateral” to the relief he can obtain in the asylum proceeding; plaintiff can obtain that relief in the asylum proceedings, 8 U.S.C. § 1158; Congress has established an administrative process for the determination of asylum claims, a process that is analogous to the one at issue in Heckler; and exhaustion of administrative remedies is a condition precedent to judicial review under the INA, id. § 1105a(c), just as it is under the Medicare Act. See 42 U.S.C. § 405(g)-(h). Consequently, defendants argue, plaintiff must take his claims, in the first instance, to the administrative process, and when his case has been resolved in that forum, he will have the benefit of judicial review (in the form of a habeas corpus proceeding) pursuant to 8 U.S.C. § 1105a(c).

Plaintiff argues that whereas in Heckler, the administrative forum was capable of giving the plaintiffs everything they wanted (namely, reimbursement for the cost of the surgical procedure), here, the most that the administrative proceedings can give to plaintiff is a grant of asylum, which, he argues, is inadequate.

Asylum is inadequate, according to plaintiff, because it can .be revoked: “Asylum granted under subsection (a) ... may be terminated if the Attorney General ... determines that the alien is no longer a refugee within the meaning of [the INA] owing to a change in circumstances in the alien’s country of nationality-” Id. § 1158(b). The Attorney General also may revoke a grant of asylum if the alien commits a serious crime or is found to have committed fraud on his asylum application. 8 C.F.R. § 208.24. Thus, plaintiff argues, the relief he seeks (“permanent” injunctive relief) is so different from the relief that he can obtain via asylum proceedings (a “temporary” grant of asylum), that the exhaustion rationale of Heckler should not apply.

Defendants claim that this Court cannot give plaintiff the relief he seeks, citing INS v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988), in which the Supreme Court reversed the Ninth Circuit’s decision to confer naturalization upon Filipino nationals as an equitable remedy for asserted constitutional and statutory violations. With respect to the plaintiffs’ statutory claims, the Court held that “[n]either by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of’ limitations set by Congress. Id. at 885, 108 S.Ct. at 2217. According to defendants, this holding eliminates the possibility that this Court will be able to give plaintiff the relief he seeks (permanent in-junetive relief). Thus, defendants’ argument continues, the relief available from the immigration court (grant of asylum) is at least as favorable (if not more so) than the relief this Court has the authority to grant plaintiff.

Defendants’ argument on this point is squarely foreclosed by Ninth Circuit cases decided subsequent to Pangilinan. The Ninth Circuit has held that the passage from Pangilinan cited by defendants speaks only to the federal courts’ authority to remedy statutory violations vis-a-vis an equitable grant of naturalization. In contrast, the Ninth Circuit has held that the courts’ power to remedy constitutional violations is unaffected by Pangilinan: “The Court’s holding precludes the judiciary from exercising its statutory powers of naturalization to redress statutory violations except in strict conformity with Congress’ authorizing legislation. It does not speak to the courts’ capacity to utilize traditional constitutional remedies to rectify constitutional violations.” Wauchope v. United States Dep’t of State, 985 F.2d 1407, 1418 (9th Cir.1993); see also Ortega v. United States, 861 F.2d 600, 603 (9th Cir.1988) (“Absent a showing of ... a constitutional violation, [a] district court ha[s] no authority to ... grant [a] naturalization petition pursuant to its powers of equity.”).

Plaintiff alleges constitutional violations in his third, eighth, and ninth causes of action. Plaintiffs requested remedy for each of those violations is the permanent injunctive relief that defendants insist this Court is powerless to provide under Pangilinan. The Ninth Circuit has spoken clearly to this issue. Under Wauchope and Ortega, this Court must reject defendants’ argument and deny their motion to dismiss plaintiffs entire FAC.

III.

For all of the foregoing reasons,

IT IS HEREBY ORDERED that:

1. Plaintiffs Eleventh Cause of Action is DISMISSED.

2. Defendants’ motion to dismiss the remaining causes of action included in plaintiffs First Amended Complaint is DENIED. 
      
      . Plaintiff argues that because defendants urged the Ninth Circuit to reach the merits of his remaining eleven causes of action, and because the Ninth Circuit was careful to confine its opinion and its remand order to the Eleventh Cause of Action only, it "impliedly” held that his remaining claims must not be dismissed. Although plaintiff is correct that defendants, citing Callaway v. Block, 763 F.2d 1283, 1287-88 n. 6 (11th Cir.1985), argued on appeal that the Ninth Circuit had the authority to consider the validity of plaintiff's remaining claims, plaintiff is not correct as to the significance this Court should attach to the Ninth Circuit's silence on this request.
      The Ninth Circuit had jurisdiction over defendants' interlocutory appeal because this Court’s Opinion and Order filed June 15, 1992, included an order granting plaintiff’s request for an injunction. See 28 U.S.C. § 1292(a)(1). It is a debatable question whether a court of appeals, in the course of deciding an interlocutory appeal authorized under § 1292, may review rulings of the district court that are separate and distinct from the ruling that is the subject of the interlocutory appeal. The Eleventh Circuit in Callaway cited an impressive array of decisional law and commentary to answer that question in the affirmative. It should be noted, however, that the Eleventh Circuit cited no Ninth Circuit authority as support for the conclusion it reached.
      Whatever the Ninth Circuit's reason for not reaching the merits of defendants' arguments against all of the causes of action in plaintiff's FAC, this Court will infer nothing from the Ninth Circuit’s silence.
     
      
      . This Court also does not pause to consider defendants' "prudential" arguments against exercising jurisdiction. To the extent that the considerations characterized by defendants as "prudential” (e.g., efficient allocation of resources, ripeness, and "the political nature of immigration decisions") are not subsumed in the exhaustion inquiry (which this Court does address in some detail, infra), they have been considered, and rejected, by this Court previously. More to the point, the Ninth Circuit’s opinion, which is the sole basis for defendants' renewed motion to dismiss (as well as their ability to avoid plaintiff’s “law of the case" objection to their motion), deals only with 8 U.S.C. § 1105a(c), the INA's exhaustion provision. Accordingly, this Court limits its discussion to the question whether § 1105a(c), as interpreted by the Ninth Circuit, mandates dismissal of plaintiff's entire FAC.
     