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
November
3, 1997
[1] The governor's
constitutional pardoning power is expressly limited to pardons, even if that
term is broadly construed to include amnesty grants, bestowed after convictions
for criminal offenses. Even when
the governor properly applies his pardoning power, the grantee's immigration
status must still be approved in compliance with the immigration laws of
[2] The Governor is without authority to grant
amnesty to undocumented aliens under his constitutional pardoning power or by
other means. The governor can be
empowered with that authority only by constitutional amendment or by legislative
enactment.
[3] Even assuming the Attorney General has general
authority to make original decisions on the immigration issues listed in
A.S.C.A. § 41.0303, the Immigration Board remains ultimately responsible
under A.S.C.A. § 41.0205(1) for the attorney general's decisions in these
matters.
[4] Constitutional statutory authority is always
paramount to administrative rule authority.
[5] The Immigration Board does not lose either its
authority to make or responsibility for consummated decisions to grant first
authorizations to remain simply by delegating any such power to the attorney
general.
[6] The Governor is without authority to grant
amnesty to undocumented aliens, who have not been convicted of any criminal
offense related to their illegal presence in
Before
Counsel: For
Plaintiff, Charles V. Ala`ilima
For Defendants, Henry W. Kappel,
Assistant Attorney General
OPINION
AND ORDER
On July 21, 1997, the court denied defendants'
motion to dismiss and issued a preliminary injunction in this action. We also applied T.C.R.C.P. Rule
65(a)(2), rendering evidence received during the hearing on the application for
a preliminary injunction admissible at the trial on the merits as part of the
trial record without repetition.
The trial came regularly before the court on September 5, 1997, with
both counsel present, and the parties stipulated to additional facts in lieu of
further testimony. At the parties'
request, the court set up and the parties complied with a schedule ending
October 1, 1997 for submission of written final arguments.
Discussion
[1] We predicated the preliminary injunction in major
part on our conclusion that the amnesty program initiated by defendant Tauese
P. Sunia, in his official capacity as the Governor of American Samoa ("the Governor"), to legitimate the
immigration status of undocumented aliens[1]
was not authorized, even though it must be, by the Legislature of American
Samoa, and that the Governor's reliance on his pardoning power under Article
IV, Section 9 of the Revised Constitution of American Samoa was not legally
sustainable. See Vaela’a
v. Sunia, 1 A.S.R.3d 89, 92-94 (Trial Div. 1997). The governor's constitutional pardoning
power is expressly limited to pardons, even if that term is broadly construed to
include amnesty grants, bestowed after convictions for criminal offenses. We further concluded that even when the
governor properly applies his pardoning power, the grantee's immigration status
must still be approved in compliance with the immigration laws of
On September 26, 1997, the Legislature enacted
House Bill No. 25-81 in the wake of the preliminary injunction. The Legislature passed this bill as an
emergency measure, and under Article II, Section 19 of the Revised Constitution
of American Samoa, it became effective immediately upon the governor's
approval. The Governor signed this
measure into law as [1ASR3d136] Public
Law No. 25-16 on October 2, 1997.
This law amended the numerical limitations on annual alien registrations
to permit up to 2,391 additional registrations, available for issuance only in
fiscal year 1997, to aliens of several nationalities. A.S.C.A. § 41.0301(f) (1997).[2] Aliens whose applications for
authorizations to remain as residents in American Samoa were processed between
January 3 and April 23, 1997 are granted waivers of the usual requirement of
return to their native country of origin until they are allocated alien
registration receipt cards for re-entry into American Samoa and of the 60-day
original entry limitation, pending the immigration board's decision on their
applications.
Public Law No. 25-16 does not authorize the
governor to grant amnesty or residency status to undocumented aliens. It merely increases the numerical
limitations for certain nationalities for a specific time period and thus
removes that obstacle to the legitimation of the immigration status of the
aliens who were processed under the Governor's amnesty program. It also allows them to physically remain
here pending the immigration board's determination of their immigration status. Other aliens may benefit from the quota
increases.
[2] We believe that our original analysis of the
governor's amnesty authority is correct, see Vaela’a
v. Sunia, 1 A.S.R.3d 89, 92-94 (Trial Div. 1997), and need not be
restated here. Hence, we will now
declare that the Governor was, and still is, without authority to grant amnesty
to undocumented aliens under his constitutional pardoning power or by other
means. The governor can be
empowered with that authority only by constitutional amendment or by
legislative enactment.
Because the parties did not thoroughly address the
issue at the hearing on the preliminary injunction application, we did not
fully discuss the related question concerning the power to issue authorizations
to remain to undocumented aliens in the preliminary injunction order. The issue is important, because
defendant Toetogata Albert Mailo, in his official capacity as the Attorney
General of American Samoa ("the Attorney [1ASR3d137] General") and his designees, including the other
defendants, Assistant Attorney General Elvis Patea and Acting Chief Immigration
Officer Robert Porter, processed the applications of the undocumented aliens
granted amnesty by the Governor.
The parties stipulated at the trial to certain
uncontradicted material facts without calling witnesses. First, as a matter of procedure, the
immigration board hears and determines initial applications by aliens for
authorization to enter and remain in American Samoa, and the attorney general,
or his designee, reviews and determines renewals of those authorizations. Second, most of the undocumented aliens
granted amnesty had never received authorizations to remain in
Plaintiff Tuilefano Vaela`a, in his official
capacity as the Chairman of the Immigration Board, essentially maintains that
the immigration board must approve original applications to remain, and that
any ambiguity in the applicable immigration laws and administrative rules is
resolved by following this established practice. Defendants counter, advocating that
while the immigration board determines original entries, the undocumented
aliens granted amnesty were authorized to remain under the attorney general's
delegated role of adjusting the status of persons already here. We think that defendants, using the
undocumented aliens' physical presence in
The immigration board has statutory authority to:
(1) hold hearings concerning the
status or exclusion of any person other than American Samoans, their spouses
and their children, seeking permission to enter or remain in American Samoa;
and shall review appeals of decisions of the attorney general and the
immigration division;
(2) deport any alien after the alien
has been accorded an opportunity for a public hearing; . . .
(7) make rules and regulations
necessary for the enforcement of this title; . . .
(11) delegate any of its
administrative duties to the attorney general or immigration officers of
(12) require the registration of all
aliens residing in
A.S.C.A. § 41.0206. The board also has statutory criteria to
apply to cases in which the exclusion or deportation of aliens is at
issue. See A.S.C.A.
§§ 41.0401, 41.0615, 41.0616.
Clearly, the board has original jurisdiction over any alien's
immigration status in
The attorney general is statutorily
charged with the administration and
enforcement of [the laws] relating to the entrance, immigration, registration,
and status of aliens, except insofar as [the] laws relate to the powers,
functions, and duties conferred upon the [immigration] board.
A.S.C.A. § 41.0206. Section 41.0206 also enunciates the attorney
general's authority to render binding legal opinions, enumerates his various
administrative functions, and requires him to guard the borders against
illegally entering aliens.
The immigration board has broadly delegated, by
administrative rule adopted under the rule making provisions of the
Administrative Procedures Act, A.S.C.A. § 4.1001-4.1020, its
administrative duties to the attorney general and immigration officers selected
by him. A.S.A.C. § 41.0302.[3] Defendants also point out that under the
rules, the board has included "adjustment of status cases" within its
appellate jurisdiction, A.S.A.C. § 41.0303(5), rather than its original
jurisdiction. A.S.A.C. §
41.0304.
The term "administrative duties" is not
free of ambiguity in the context of the immigration laws, especially when
considered in the light of the immigration administrative rules. It could be understood as directed to
the immigration board's clerical and other administrative support requirements. We have no doubt that it includes this
meaning, as the board is not separately funded in the annual appropriations
acts and is without clerical staff, see e.g. Public Law No. 25-13 for
fiscal year 1998, except as provided by the attorney general and the
immigration office. [1ASR3d139]
[3] The term could also have a broader meaning to
include all or some part of the immigration board's decision making authority
on status and other issues under the immigration laws. Given the expansive nature of the
immigration administrative rules, we think that the board intended to give the
attorney general authority to make original decisions on the immigration issues
listed in A.S.C.A. § 41.0303.
However, assuming that § 41.0303 literally or implicitly
encompasses initial authorizations to remain, the board remains ultimately
responsible under A.S.C.A. § 41.0205(1) for the attorney general's
decisions in these matters.
[4-5] Constitutional statutory authority is always
paramount to administrative rule authority. American Samoa Gov't v. Falefatu,
17 A.S.R.2d 114, 120 (Trial Div. 1990). The board did not lose either its
authority to make or responsibility for consummated decisions to grant first
authorizations to remain simply by delegating any such power to the attorney
general. See A.S.C.A. §
4.0131. A principal can always
exercise given authority, whether or not an agent also has delegated authority
for the same act. Furthermore, the
board in fact processes and decides applications for initial authorizations to
remain by long-standing and well-understood procedure. Arguably, by this practice, the board
has actually rescinded any authority given in the administrative rules to the
attorney general on this particular immigration issue. Certainly, however, the board's power
has not been superseded by any delegated authority.
Defendants seek to convince the court that because
the undocumented aliens granted amnesty are physically present in American
Samoa, the process of issuing authorizations to remain is converted from an
authorization to remain at the time of entry to an authorization to remain by
adjustment of status after entry.
The phrase "adjustment of status" is not defined in either the
immigration laws or administrative rules, and is used only in A.S.A.C. §
41.0303(5). However, even if
immigration status is literally adjusted, initial authorizations to remain as
residents conceptually coincide with original entry, whether or not the alien
is physically present in
Accordingly, we conclude that the Attorney General
and his designees were acting outside their legitimate authority when they
processed authorizations to permit the undocumented aliens granted amnesty to
remain in
Order
A. Declaratory
Relief
We declare that:
[6] 1.
The Governor was, and still is, without authority to grant amnesty to
undocumented aliens, who have not been convicted of any criminal offense
related to their illegal presence in
2. The Attorney General and his designees acted in
excess of their legitimate authority in processing authorizations to remain to
undocumented aliens granted amnesty under the Governor’s amnesty program,
without the immigration board’s prior approval.
3. Each of the undocumented aliens granted amnesty
under the Governor’s amnesty program is illegally present in
B. Injunctive
Relief
We permanently enjoin: [1ASR3d141]
1. The
Governor, his officers, agents, servants, employees, and attorneys, and those
persons in active concert or participation with them from granting amnesty to
undocumented aliens, who have not been convicted of any criminal offense
related to their illegal presence in American Samoa, in the absence of
constitutional amendment or legislation effectively empowering the governor
with that authority.
2. Each
defendant, his officers, agents, servants, employees, and attorneys, and those
persons in active concert or participation with any defendant from issuing an
authorization to remain and an alien registration to any of the undocumented
aliens granted amnesty under the Governor's amnesty program until and unless
the immigration board approves the issuance of an authorization to remain as a
resident of American Samoa to that undocumented alien.
It is so Ordered.
**********
[1] We
use the term "undocumented aliens" in this opinion and order to mean
aliens who have reached the borders of American Samoa but have not been
authorized to remain as residents in American Samoa, pursuant to the
immigration laws, A.S.C.A. §§ 41.0201-41.0709, and administrative rules,
A.S.A.C. §§ 41.0201-41.1008.
[2] The breakdown by nationality is "1,820 for
aliens born in Western Samoa, 404 for aliens born in the Kingdom of Tonga, 88
for aliens born in the Republic of the Philippines, 20 for aliens born on
Tuvalu, 14 for aliens born in the Republic of Fiji, 14 for aliens born in the
People's Republic of China, 12 for aliens born in New Zealand, 11 for aliens
born in the Republic of Korea, and 8 for aliens born in the Republic of
China."
[3] Administrative rules properly promulgated in this
manner have the force and effect of law.
A.S.C.A. § 1.0201(3); Bryant v. Southwest Marine of Samoa, Inc.,
23 A.S.R.2d 55, 56-57 (Trial Div. 1992).
Agencies or officials of the Executive Branch of the American Samoa
Government have the duty to promulgate administrative rules pursuant to
constitutional or legislated authorization, usually to implement regulatory
statutes, see A.S.C.A. § 4.1002, but they frequently overlook or
ignore the requirements of the Administrative Procedures Act when they take on
legislated duties. Moreover, the
Lieutenant Governor is responsible for publishing and updating at least
biennially the administrative rules.
A.S.C.A. § 4.1003.
Public information and compliance is promoted by publication. However, the last published supplement
to the existing to the American Samoa Administrative Code was for the
administrative rules adopted during calendar year 1989.
[4] The
Attorney General and his designees also ran afoul of the numerical limitation
or quota system prescribed A.S.C.A. § 41.0301. The Legislature only later granted
temporary relief from those limitations, under the immigration board's
guidance, by Public Law No. 25-16.