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
July 21, 1997
[1] Under American Samoan law, the term
"undocumented aliens" means aliens who have reached the borders of
[2] Chairman of Immigration Board possessed
capacity to sue where suit brought on his own behalf and where suit sought to
prevent executive branch officials from usurping his powers. Chairman was real party in interest and
did not need separate, statutory authority to sue.
[3]
A plaintiff possesses standing to sue if he is able to show: (1) an injury to a
legally protected interest that is concrete and particularized, and actual or
imminent, not conjectural or hypothetical; (2) an injury that is causally
related to the defendant's challenged conduct, and not resulting from
independent action by some third party not before the court; and (3) the
prospect of achieving redress for the injury from a favorable decision that is
not too speculative. [1ASR3d89]
[4] Chairman of Immigration Board was able to
show standing to sue for declaratory relief where he claimed that defendants
had usurped his powers by issuing amnesty to more than 2,000 previously
undocumented aliens.
Plaintiff’s injury was concrete, particularized, actual, related
to the defendants' challenged conduct and could be redressed by a favorable
court ruling.
[5] A preliminary injunction may be ordered under American Samoan law when it is shown: (1) that there is a substantial likelihood that the applicant will prevail at trial on the merits and that a permanent injunction will be issued against the opposing party; and (2) great or irreparable injury will result to the applicant before a full and final trial can be fairly held on whether a permanent injunction should issue.
[6] A court tests substantial likelihood of success by whether the movant has a good chance of success, evaluated in the court's discretion, not measured by any mathematical probability, and taking into account serious issues calling for more deliberate consideration.
[7]
The power protect
[8]
The Immigration Board possesses jurisdiction to issue authorizations to aliens
so that they may remain in
[9]
The Attorney General is charged with the administration and enforcement of the
immigration laws except insofar as such laws relate to the powers, functions,
and duties of the Immigration Board.
[10] Where Governor initiated
amnesty program, allowing undocumented aliens to remain in territory, such
program did not effectuate the purpose of
limiting entry into American Samoa set forth in A.S.C.A. § 41.0201(b).
[11]
Simply naming a program an "amnesty" program does not bring it within
the scope of the Governor's pardoning power
[12]
The Governor’s pardoning power is limited to granting reprieves for past
offenses and can only be exercised after an individual has been convicted.
[13]
Although Governor may grant pardons, or amnesty, after convictions for
immigration violations, he isn’t empowered to change a particular
undocumented alien's immigration status. [1ASR3d90]
[14] “Great or irreparable injury”
includes wrongs that ought not be inflicted on another person, and may be
characterized by a course of repeated and continuing conduct and/or consist of
an overbearing assumption by a person of superiority and domination over the
rights of another.
[15]
Executive officials’ assumption of Immigration Board’s and
Chairman’s powers and duties, when repeated more than 2,000 times, and
potentially ongoing is a sufficiently great or irreparable injury to justify a
preliminary injunction.
Before
Counsel: For Plaintiff, Charles V.
Ala'ilima
For Defendants, Henry W. Kappel,
Assistant Attorney General
ORDER DENYING MOTION TO DISMISS
[1] Plaintiff Tuilefano Vaela`a, in
his official capacity as the Chairman of the Immigration Board of American
Samoa, brought this action for judicial determination of the validity of the
amnesty program, the purpose of which is to legitimate the immigration status
of certain undocumented aliens.[1] Defendant Tauese P. Sunia, in his
official capacity as the Governor of American Samoa, initiated the
program. Defendants Toetogata
Albert Mailo, Robert Porter and Elvis Patea, in their respective official
capacities as Attorney General of American Samoa, Acting Chief Immigration
Officer and Assistant Attorney General, are carrying out the program.
On June 19, 1997, the court heard defendants' motion to dismiss and plaintiff's
application for a preliminary injunction and took the motion and application
under advisement, establishing a follow-up briefing schedule. Both counsel were present at the
hearing. We have considered the
testimony, counsel's oral arguments, documents filed before the hearing, and
the follow-up briefs and supplements, and will deny the motion to dismiss and
grant the application for a preliminary injunction. [1ASR3d91]
Defendants moved to dismiss this action on the grounds that plaintiff lacks
both the capacity and standing to sue.
I. Capacity to Sue
[2] Defendants contend that plaintiff
has no capacity to sue because there is no statutory authorization for the
Immigration Board to sue on its own behalf. Defendants, however, mischaracterize
plaintiff's status in this action.
Plaintiff is not suing on behalf of the board. Rather he is suing as the person who
currently holds the position of Chairman of the Immigration Board. He is the actual real party in interest
in a suit which seeks to prevent Executive Branch officials from alleged
unlawful exercise of his powers and duties as the Chairman.[2] See A.S.C.A. § 43.1101 and
T.C.R.C.P. Rule 17.
Thus, we hold that plaintiff has the capacity, and needs no separate statutory
authorization, to sue on his own behalf in this action.
[3] A plaintiff has standing to sue if he shows: (1)
an injury to a legally protected interest that is concrete and particularized,
and actual or imminent, not conjectural or hypothetical; (2) an injury that is
causally related to the defendant's challenged conduct, and not resulting from
independent action by some third party not before the court; and (3) the
prospect of achieving redress for the injury from a favorable decision that is
not too speculative. See Mulitauaopele
v. Togafau, 26 A.S.R.2d 52, 53-54 (Trial Div. 1994) (citing Northeastern
Fla. Chapter of the Assoc. Gen. Contractors of America v. City of Jacksonville,
Fla, 508 U.S. 656, 663-664, 113 S.Ct. 2297, 2301-2302, 124 L.Ed. 2d 586, 595 (1993)).
We believe that the case law respecting the standing of a legislator to sue for
an executive branch intrusion into the legislator's duties is both helpful and
closely analogous. Clearly, the
federal courts and this court recognize a legislator's standing to sue on his
own behalf. See
e.g. Senate
v. Lutali, 26 A.S.R.2d 125, 127-129 (Trial Div. 1994) (Order Denying in
Part and Granting in Part Motion to Dismiss). [1ASR3d92]
The injury in those cases often centers upon the legislator's interest in
performing the powers and duties of his office and the impairment that the
legislator suffers when his powers, duties and the general efficacy of his
office are usurped by executive branch action.
[4] Here plaintiff is claiming that
defendants are usurping his powers and duties as the Chairman of the
Immigration Board. This injury is concrete,
particularized, and actual.
Defendants have already instituted the amnesty program and granted
authority to remain to more than 2,000 previously undocumented aliens.
This injury is clearly related to defendants' challenged conduct. Moreover, a favorable ruling on the
declaratory relief would redress this injury by requiring defendants to
terminate the amnesty program and by allowing plaintiff to exercise the powers
and perform the duties of his official position.
We therefore conclude that plaintiff, suing as an individual who holds the
office of the Chairman of the Immigration Board, has standing to sue for
declaratory relief stating that defendants unlawfully exceeded their authority
when they took over the Board's role to authorize aliens to remain in
[5] Under A.S.C.A. § 43.1301
sufficient grounds for a preliminary injunction exist when:
(1) there is a substantial likelihood that the applicant will prevail at trial
on the merits and that a permanent injunction will be issued against the
opposing party; and
(2) great
or irreparable injury will result to the applicant before a full and final
trial can be fairly held on whether a permanent injunction should issue.
I.
Substantial Likelihood of Success on the Merits
[6] A court tests substantial
likelihood of success by whether the movant has a good chance of success,
evaluated in the court's discretion, not measured by any mathematical
probability, and taking into account serious issues calling for more deliberate
consideration. Samoa Aviation,
Inc. v. Bendall, 28 A.S.R.2d 101 (Trial Div. 1995).
Comparison of
An "amnesty" program, somewhat similar to the Governor's amnesty
program, has been instituted in the
[7] We similarly believe that both
the Governor and Legislature of American Samoa have authority to protect
[8-10] The law gives the Immigration
Board certain powers and duties, A.S.C.A. § 41.0205, including
jurisdiction over the issuance to aliens of authorizations to remain in
The implementing administrative rules essentially reiterate the Board's powers
and duties. A.S.C.A. §
41.0301. The Board has also
delegated "all administrative duties" to the Attorney General and immigration
officers, as the Attorney General deems necessary. A.S.C.A. § 41.0302. Immigration officers are employed in the
Immigration Office, which is an agency within the Department of Legal Affairs,
headed by the Attorney General.
The Immigration Board's authority over authorizations to remain in
We do not need, however, to fully determine the meaning and scope of A.S.C.A.
§§ 41.0205, 41.0206, and 41.0401 and A.S.C.A. §§ 41.0301 and 41.0302, in
relation to each other and other provisions of the immigration laws and
administrative rules, in order to decide on the issuance of the preliminary
injunction. Whether the Attorney
General and his subordinates are exercising granted or delegated immigration
authority, they can process changes in the status of previously undocumented
aliens to resident aliens only on a lawful predicate. Defendants rely on the Governor's
pardoning power, not the immigration laws and administrative rules, to validate
the amnesty program. Thus, the
issue is whether the Governor acted within or in excess of his authority in
employing his pardoning power to grant amnesty to undocumented aliens.[4]
[11] Defendants contend that the Governor has unlimited power to grant
amnesty under Article IV, Section 9 of the Revised Constitution of American
Samoa, which provides that:
The Governor shall have the power to remit fines and forfeitures, commute
sentences, and grants reprieves and pardons after conviction for offenses
against the laws of
Defendants believe that this pardoning power may
be used in an amnesty program to authorize undocumented aliens to remain in
[12-13] First, Article IV clearly
only allows the Governor to grant pardons, or amnesty, after
convictions. Based on the evidence,
none of the undocumented aliens benefiting from the amnesty program has been
convicted of any violations of the immigration laws. Moreover, even if the Governor was
indeed granting pardons, or amnesty, after convictions for any such violations,
those pardons would have nothing to do with changing a particular undocumented
alien's status. Rather, this
situation would be similar to the President of the
We conclude that the Governor's amnesty program is not a valid exercise of his
constitutional pardoning power.
Further, even when the Governor properly applies his pardoning power,
the Immigration Board or Attorney General, on the Board's behalf, must still
issue to the pardoned undocumented alien authorization to remain in
II. Great or Irreparable Injury
[14] The concept of great or
irreparable injury does not mean an injury that is beyond the possibility of
repair without immediate protection.
See Black's Law Dictionary 924 (4th ed. 1951). It includes wrongs, great or small, that
ought not be inflicted on another person,
[15] We believe that defendants'
assumption of plaintiff's powers and duties as Chairman of the Immigration
Board, and incidentally those of the Board itself, particularly when repeated
more than 2,000 times and potentially ongoing if the Governor again extends the
amnesty program, is a sufficiently great or irreparable injury to justify a
preliminary injunction. The
significance of the wrong is further enhanced with respect to both plaintiff
and the general public when considered in light of impaired integrity of the
immigration laws and the administration of those laws.
Accordingly, we further hold that great or
irreparable harm to plaintiff and the general public has resulted, and will
continue to result, before a full and final trial on the merits can be fairly
held on whether a permanent injunction should issue. [1ASR3d96]
For the reasons stated above, defendants' motion to dismiss is denied, and
plaintiff's application for a preliminary injunction is granted.
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.
We also invoke T.C.R.C.P. Rule 65(a)(2).
Any evidence received during the hearing on the application for a
preliminary injunction on June 19, 1997, which would be admissible upon the
trial on the merits, is part of the record of the trial and need not be
repeated at the trial.
It is so Ordered.
**********
[1] We
use the term "undocumented aliens" in this 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 rules, A.S.A.C. §§ 41.0201-41.1008.
[2] We believe this situation is analogous to the situation in which a legislator sues on his own behalf but the action is based upon an alleged usurpation of his powers as a legislator. See e.g Senate v. Lutali, 26 A.S.R.2d 125, 127-129 (Trial Div. 1994) (Order Denying in Part and Granting in Part Motion to Dismiss).
[3] An administrative rule, adopted under the
Administrative Procedures Act, A.S.C.A. §§ 4.1001-4.1044, has the
full force and effect of law.
A.S.C.A. § 4.1009(c).
[4] For purposes of this order, we accept
defendants' position that words "pardon" and "amnesty" are
essentially interchangeable, except to recognize that pardons are granted to
individuals and amnesty is usually granted to a class or group of persons.
[5] Commentators have suggested that the term
irreparable injury "adds nothing to the broader concept of inadequacy of
the legal remedy, and that both are merely shorthand expressions covering the
factors which determine the right to an injunction." See B.E. Witkin, 2