TUILEFANO
VAELA`A, as CHAIRMAN
of the
IMMIGRATION BOARD, Plaintiff,
v.
TAUESE P. SUNIA,
GOVERNOR OF
TOETOGATA ALBERT
MAILO, ATTORNEY GENERAL, ROBERT PORTER,
ACTING CHIEF
IMMIGRATION OFFICER, ELVIS PATEA,
ASSISTANT ATTORNEY
GENERAL, Defendants.
Trial Division
CA No. 68-97
September 25, 1997
[1] Attorney General, as head of Department head
of Legal Affairs Department and Chief Immigration Officer, as division head of Immigration
Office, are responsible for ensuring that subordinates comply with
Court’s order.
[2] A department head’s, or division
head’s, failure to provide full and accurate instructions to subordinates
regarding a Court order, where such Court order has direct consequences on the
jobs performed by such subordinates, constitutes inexcusable neglect.
[3] In certain circumstances, inexcusable neglect
may constitute willful and contemptuous conduct and be punished as contempt of
Court.
[4] Where Attorney General and Acting Chief
Immigration Officer gave imprecise instructions, resulting in subordinate
issuing verifications of immigration status in violation of Court’s
injunction, the failure to give specific instructions constituted inexcusable neglect
and could be punished as contempt.
Before
Counsel: For Plaintiff, Charles V.
Ala`ilima
For Defendants, Henry W. Kappel,
Assistant Attorney General
The order made on September 4, 1997, requiring defendants Toetogata Albert
Mailo ("Attorney General") and Robert Porter ("Acting Chief
Immigration Officer") to show cause why they should not be held in [1ASR3d132] contempt of court for
violation of the order entered on July 21, 1997, came regularly for hearing on
September 17, 1997. The Attorney
General and Acting Chief Immigration Officer were present with their
counsel. Plaintiff Tuilefano
Vaela`a ("Chairman of the Immigration Board") was also present with
his counsel. The court heard
testimony and has considered the evidence and counsel's argument.
Discussion
1. The order entered on July 21,
1997, was duly and regularly made.
2. At all times since the making of
the order, the Attorney General and Acting Chief Immigration Officer have had
notice and knowledge of the order.
3. At all times since the making of
the order, the Attorney General and Acting Chief Immigration Officer have had
the ability to comply with the order.
4.
The Attorney General and Acting Chief Immigration Officer have failed to
comply with the order in the following particulars.
a. The order reads:
During the pendency of this action or until further order of the court, each defendant,
his officers, agents, servants, employees, and attorneys, and those persons in
active concert or participation with them are enjoined from further
implementing existing authorizations to remain and from processing additional
applications for authorizations to remain in American Samoa to undocumented
aliens under the Governor's amnesty program.
b. After the order was issued and entered, the Attorney General orally
instructed the Acting Chief Immigration Officer and later Assistant Chief
Immigration Officer Fuimaono Kolumane ("Kolumane") not to further
implement the existing authorizations to remain in American Samoa already
issued to more than 2,000 undocumented aliens under the Governor's amnesty
program. Kolumane was assigned to
issue various immigration documents to these aliens. The Attorney General did not
specifically address verifications of immigration status routinely issued to
support school enrollments and similar needs of aliens authorized to
remain. The Acting Chief
Immigration Officer, in turn, also instructed Kolumane in similar general
terms.
c. Because of the Attorney General's and Acting Chief Immigration
Officer’s imprecise instructions, Kolumane issued 51 verifications of [1ASR3d133] immigration status to
enable school enrollments of aliens already authorized to remain under the
amnesty program. The Chairman of
the Immigration Board discovered these clear-cut violations of the order on
September 3, 1997, and the Attorney General and Acting Chief Immigration
Officer were apprised of them in short order.
[1-2] d.
The Attorney General heads the Department of Legal Affairs, which
includes the Immigration Office as a division. He is responsible for his subordinates'
compliance of the order. Likewise,
the Acting Chief Immigration Officer is responsible for his subordinates'
compliance with the order. The
Attorney General and Acting Chief Immigration Officer were inexcusably
neglectful in failing to provide full and accurate instructions about this
order to their staff assigned to carry out immigration aspects of the amnesty
program.
[3] 5. The Attorney General's and Acting Chief
Immigration Officer's inexcusable neglect constituted willful and contemptuous
conduct in the context of the present situation. We need to send a message to public
agency heads that they must fulfill their obligations and be abundantly careful
in carrying out court orders applicable to their agencies' activities that
affect public policies and interests.
Order
[4] 1. The Attorney General and Acting Chief
Immigration Officer are in contempt of this court.
2. Imposition of punishment for the
contempt is suspended on the condition that Attorney General, Acting Chief
Immigration Officer, and their subordinates do not again violate the order
during the pendency of this action.
3. This judgment of contempt will
be purged when this case is finally closed, provided that the Attorney General
and Acting Chief Immigration Officer have complied with the condition of
suspending imposition of punishment.
It is so Ordered.
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