C. Was INS Required to Publish the Regulatory Change, and, if so, Are the Parcos Bound by the Unpublished Rule?
Neither Operating Instruction (OI) 242.10(a)(6)(i), announcing the availability to third preference petitioners of extended voluntary departure status, nor the 1972 memorandum rescinding the OI was ever published in the Federal Register. Absent such publication, the relators here claim that the change in the rule is invalid and that they may not be adversely affected by the OI's rescission. They rely on 5 U.S.C. § 553
and certain cases. The respondent counters that the OI is not a "rule" but a "general statement of policy" which is exempted from rulemaking under 5 U.S.C. § 553(b).
The respondent relies on Noel v. Chapman, 508 F.2d 1023 (2d Cir.), cert. denied, 423 U.S. 824, 46 L. Ed. 2d 40, 96 S. Ct. 37 (1975).
In Noel, the Second Circuit rejected the same argument advanced by the relators here as applied to a different aspect of the same OI rescinded by the same July 1972 memorandum. 508 F.2d at 1029-30. From 1968 to 1972, in the New York District, INS routinely granted extended voluntary departure to Western Hemisphere aliens married to permanent resident aliens. The discretion to grant the privilege on that basis was removed on July 31, 1972. Id. at 1025. The Noel Court stated that "general statements of policy" are generally said to be those "'directed primarily at the staff of an agency describing how it will conduct agency discretionary functions,'" id., and noted that the decision whether to extend a grant of voluntary departure in a given case rests in the discretion of the District Director. 8 C.F.R. § 244.2. Taking a phrase from Texaco, Inc. v. FPC, 412 F.2d 740, 744 (3d Cir. 1969), the Court held that the rescission of OI 242.10(a)(6) did not have a "substantial impact" on the affected aliens because they were entitled to no more than an exercise of discretion in the first place and might still be eligible for extended voluntary departure after the change on the basis of "compelling" hardship. See notes 7 and 8 supra. The Noel opinion itself recognized, however, that the definition of "general statement of policy" is "enshrouded in considerable smog." 508 F.2d at 1030.
Because of certain differences between Noel and this case, we will not follow it here. First, the government stipulated on behalf of the Philadelphia INS director that the precipitous rescission of the OI was the sole reason for the denial of the Parcos' extension of voluntary departure. See text at note 5 supra. It is clear from the stipulation that no exercise of discretion was involved. The term "discretion" is stripped of all meaning when one contends that under a certain regulation "discretion" was exercised favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in each such case. That is not "discretion." This OI does not, for example, tell district directors what factors to look for in making their decisions about a criterion such as hardship; it is in reality a flat rule of eligibility. Thus the Noel Court's definition of "general statement of policy" is inapplicable here, for what is at issue is not a declaration as to how to conduct "agency discretionary functions."
In addition, we are bound by the Third Circuit's decision in Texaco, supra. There, the Federal Power Commission had promulgated unilaterally an amendment to a published regulation, requiring, for the first time, that compound interest be paid on all sums the Commission ordered refunded by natural gas companies to consumers. The Commission previously had discretion to order the payment of interest on a case by case basis. The Court held the FPC order was not a "general statement of policy" because it had a "substantial impact" on those regulated and because it "adopts a substantive rule imposing . . . rights and obligations which an [affected person] has the burden of proving should not apply in any waiver or similar proceeding." 412 F.2d at 744. Nor was the order simply a guide to the exercise of discretion because under the prior rule the agency could have exercised its discretion to impose a payment of interest in any given case. The agency:
elected to proceed . . . by making a general rule and, when engaged in rule-making, it must comply with the procedural requirements imposed on rule-making by the Administrative Procedure Act, which it failed to do.
Id. at 745 (footnote omitted). See also Pickus v. United States Board, 165 U.S. App. D.C. 284, 507 F.2d 1107, 1112-13 (1974) (Hastie, J.) (not general statement of policy if "calculated to have a substantial effect on ultimate [discretionary] decisions"); Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972); Hou Ching Chow v. Attorney General, 362 F. Supp. 1288 (D.D.C. 1973).
We think the situation here falls squarely within the category outlined in Texaco and therefore hold that interested persons, such as the Parcos, were entitled to advance notice and an opportunity to comment on the proposed changes in the Operating Instruction through prepublication in the Federal Register.
We noted at the outset of this section that neither the OI nor the memorandum rescinding it was ever published in the Federal Register. This failure is a separate ground on which to invalidate the change. Entirely separate from the prepublication requirement imposed in some cases by 5 U.S.C. § 553 (see notes 13-14 supra) is the simple publication requirement of § 552(a), the Freedom of Information Act.
See Ramer v. Saxbe, 173 U.S. App. D.C. 83, 522 F.2d 695, 705 (1975) (MacKinnon, J., concurring). As the Supreme Court recently put it, this provision was intended "to avoid the inherently arbitrary nature of unpublished ad hoc determinations." Morton v. Ruiz, 415 U.S. 199, 232, 39 L. Ed. 2d 270, 94 S. Ct. 1055 (1974). The repeal of OI 242.10(a)(6) is characterized by the respondent here as a "general statement of policy." Under § 552 the repeal of a "statement of general policy" must be published;
if not published, a person without notice cannot be adversely affected. This policy change was not published as required by law. For this reason as well, the Parcos cannot be bound by it.
IV. The Appropriate Remedy
The classical form of relief under habeas corpus for a prisoner whose liberty has been restrained through a procedurally invalid decision is to declare that the writ will issue unless within some fixed period the government makes the questioned decision anew under valid procedures. Sokol, Federal Habeas Corpus § 9.5, at 95-96 (1969); see, e.g., Grasso v. Norton, 371 F. Supp. 171, 175 (D.Conn. 1974), modified on other grounds, 520 F.2d 27 (2d Cir. 1975). However, 28 U.S.C. § 2243 authorizes us to "dispose of the matter as law and justice require." See Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968). In this case, it would be a waste of administrative time and an unnecessary prolongation of the Parcos' patient vigil to remand this case to the District Director to rule anew on the application for extended voluntary departure. As we have reiterated above, the Director stipulated here that were it not for the July 1972 memorandum which we have held invalid under the APA he would have granted the application. In addition, 5 U.S.C. § 552 guarantees that the Parcos may not "be adversely affected by" the unpublished repeal of OI 242.10(a)(6). For these reasons, we think the appropriate relief is an order declaring that the relators are entitled to remain in the United States, notwithstanding their final orders of deportation, as if under an administrative order authorizing extended voluntary departure. Such an order now follows.
EDWARD R. BECKER, J.
AND NOW, this 28th day of January, 1977, in consideration of the foregoing opinion, it is ORDERED that the petition of Jose and Luzviminda Parco, the relators herein, for a writ of habeas corpus is GRANTED. It is further ORDERED that petitioners are entitled to remain in the United States, notwithstanding their final orders of deportation, as if under an administrative order authorizing extended voluntary departure.
BY THE COURT:
EDWARD R. BECKER, J.