Full opinion text
OPINION AND ORDER CONBOY, District Judge: This action was filed barely a month before the expiration of a one-year period of amnesty for undocumented aliens which had been authorized by the Congress in landmark immigration legislation. The plaintiffs here claim, in substance, that certain regulations issued by the Attorney General to implement the legislation were constitutionally and statutorily defective, causing a deprivation of their rights. Proceeding initially by order to show cause, they asked the Court to extend the deadline, notwithstanding the clear expression of the Congress — both in enacting the legislation and in later refusing to extend the deadline — that the rights conferred by the statute would expire on May 4, 1988. This we declined to do, ruling that, under the doctrines of equitable tolling and constructive filing, the plaintiffs could obtain the relief being sought if they could establish at trial the merits of their attack on the regulations and either affirmative misconduct by the Government or sufficiently concrete and definitive steps taken by the plaintiff aliens to apply for the benefits before the expiration of the filing deadline. A trial having been had, we conclude, principally, that plaintiffs have failed to establish the merits of their statutory and regulatory claims. Even if those claims were established, plaintiffs have not shown either affirmative misconduct by the Government, which would permit application of the doctrine of equitable tolling of the deadline, or constructive filing by the alien plaintiffs before the expiration of the deadline. We now elaborate upon these conclusions. This class action challenges certain aspects of the administration by the Immigration and Naturalization Service (“INS”) of the legalization program created by the Immigration Reform and Control Act of 1986, Title II, § 201(a), Pub.L. No. 99-603, 100 Stat. 3394 et seq. (“IRCA”, “the Statute”, or “the Act”), codified primarily at Section 245a of the Immigration and Nationality Act of 1952, as amended (“INA”), 8 U.S.C. § 1255a (1988). The regulations in question relate to the “public charge” ground of exclusion from the legalization program. Generally, if an applicant was found to be likely to become a public charge, he could be found ineligible for the benefits created by the statute. Plaintiffs — individual aliens, class representatives, and governmental entities — allege that INS’s public charge regulations were unlawfully restrictive, that INS disseminated these defective regulatory standards to the public, and that, as a result, eligible aliens disqualified themselves from the legalization program. Plaintiffs allege violations of IRCA, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 552 et seq. (1986), and the Fifth Amendment to the United States Constitution. Plaintiffs seek declaratory, injunctive and mandamus relief. The Government denies these allegations, disputes the justiciability of this action, the standing of the governmental plaintiffs, and the Court’s subject matter jurisdiction, and maintains that the Court does not have the authority to grant the relief sought by the plaintiffs. After pretrial proceedings, described below, the case was tried without a jury from October 9 through October 17, 1990. The parties filed post-trial briefs on December 5, 1990, and further letter advice on February 22, 1991. This opinion and order constitutes the Court’s findings of fact and conclusions of law. I. Statutory and Regulatory Background IRCA became law on November 6, 1986. It was the result of a protracted and complex national debate on immigration policy that acknowledged the existence in this country of a large population of undocumented aliens and the pervasive impact of this population upon America’s agricultural economy, migrant labor conditions, and urban landscape. Ever growing social welfare expenditures by states, like New York, California, Texas and Florida, with large concentrations of illegal aliens, were a significant factor in developing the political consensus that led to the passage of the legislation. In essence, the statute sought to deal a) with illegal aliens already in the country, by giving them a one-year amnesty period to qualify for lawful status, thereby drawing them out of outlaw status and an economic and legal no-man’s land, and b) with future illegal aliens, by making it unlawful for United States employers to hire undocumented persons who are not legally authorized to work, thereby creating disincentives to future migration. American agricultural workers stood to benefit from this new policy because they would no longer lose jobs to illegal aliens laboring at sub-standard wages. Another beneficiary would be American cities and counties, whose social welfare obligations to a large alien constituency would decrease as aliens surfaced and joined the mainstream economy or declined to immigrate because of a shrinking job market. The statute established a legalization program for qualified aliens who had resided in the United States unlawfully since before January 1, 1982, and required the Attorney General to designate a twelvemonth period during which prospective legalization applicants could apply for legalization. 8 U.S.C. § 1255(a)(1)(A). Because the Congress required the Attorney General to start the twelve-month application period on a date not later than 180 days after November 6, 1986, id., it appears that Congress intended to foreclose any applications for benefits filed after May 4, 1988. The Attorney General designated May 5, 1987, through May 4, 1988 as the twelve-month application period. 8 C.F.R. § 245a.2(a)(l). Congress specified certain formal requirements that an applicant for legalization had to satisfy. Under IRCA, an illegal alien could adjust his status to that of a lawful permanent resident if he could prove that he had: (1) made a timely application, (2) resided in the United States since before January 1, 1982, (3) resided here continuously since the enactment of the statute in November 1986, and (4) was admissible as an immigrant. 8 U.S.C. § 1255a(a)(l)-(4). As is customary, Congress delegated to the Attorney General authority to issue detailed regulations that would govern implementation of the Act. 8 U.S.C. § 1255a(g)(l). During the long Congressional debate that preceded enactment of IRCA, advocacy groups for the alien population argued that, because of mistrust of the INS endemic in the immigrant population, a buffer had to be created between the alien and the Government if the legalization program was to succeed. Accordingly, to facilitate its effort to reach the large number of potential but hidden beneficiaries of IRCA, INS certified, pursuant to 8 U.S.C. § 1255a(c) & (i), approximately twelve hundred private organizations as “Qualified Designated Entities” (“QDEs”). They were classified in two categories: “National Coordinating Agencies” (“NCAs”) and “Direct Service Providers” (“DSPs”). INS entered into a written agreement with each NCA which required the NCA to cooperate and coordinate with INS in the training of DSPs, both initially and on an as-needed basis, to provide technical assistance to DSP sites, to distribute public information materials prepared by the INS for the legalization program, to participate in the INS Outreach training program and to provide instruction to non-affiliated Service Providers and other community organizations as necessary. INS also entered into a written agreement with each DSP which required the DSP to distribute forms and provide information regarding legalization eligibility requirements to interested persons, to review legalization applications and assist prospective legalization claimants, and to publicize the availability of the DSPs’ services through local media, churches, schools and community organizations. These written agreements with the QDEs contemplated that the INS would provide technical training and assistance to DSPs; provide, initially and on an as-needed basis, formal training sessions and materials to NCAs, their affiliates and independent DSPs; and monitor the quality of the services being provided through the QDEs. INS certified over sixty organizations in New York State as QDEs. Beginning on January 20, 1987, INS issued and disseminated to the public the regulations that would govern eligibility for legalization, including a “public charge” ground of exclusion from the legalization program. These public charge regulations are at the heart of this case. IRCA’s requirement that legalization candidates be “admissible as immigrans,” 8 U.S.C. § 1255a(a)(4), refers to and incorporates the exclusion provisions of Section 212(a) of the Immigration and Nationality-Act of 1952, as amended (“INA”). One class of aliens not “admissible as immigrants” under INA Section 212(a) is the class of aliens who, “in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges.” Section 212(a)(15) of the INA, 8 U.S.C. § 1182(a)(15). Thus, Congress’s requirement in IRCA that a legalization applicant prove that he is “admissible as an immigrant,” 8 U.S.C. § 1255a(a)(4), requires the Attorney General or his designee to make a determination regarding an alien’s ability to be self-supporting in the United States. For IRCA legalization applicants, Congress also created certain exceptions to the general provisions of 8 U.S.C. § 1182(a)(15) and provided a “Special Rule for Determination of Public Charge” (the “Special Rule”). The Special Rule states: An alien is not ineligible for adjustment of status under this section due to being inadmissible under section 1182(a)(15) of this title [the “public charge” exclusion] if the alien demonstrates a history of employment in the United States evidencing self-support without receipt of public cash assistance. 8 U.S.C. § 1255a(d)(2)(B)(iii) (emphasis added). In addition, Congress provided that the Attorney General could waive the public charge ground of exclusion “in the case of individual aliens for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” 8 U.S.C. § 1255a(d)(2)(B)(i). As required by the statute, 8 U.S.C. § 1255a(g)(l)(B), and the Administrative Procedure Act, 5 U.S.C. § 551 et seq., the INS promulgated regulations to implement IRCA. A Notice of Proposed Rule Making was published in the Federal Register on March 19, 1987, 52 Fed.Reg. 8752 et seq. (1987), and final regulations were published on May 1, 1987, 52 Fed.Reg. 16205 et seq. (1987), codified at 8 C.F.R. § 245a. These regulations, inter alia, defined the criteria used by the INS to evaluate an alien’s ability to demonstrate that he would not become a public charge if granted temporary residence. The IRCA implementing regulation headed “proof of financial responsibility” provided: An applicant for adjustment of status under this part is subject to the provisions of section 212(a)(15) of the [INA] ... unless the applicant demonstrates a history of employment in the United States evidencing self-support without receipt of public cash assistance. Generally, the evidence of employment submitted under paragraph (d)(3)(i) of this section [to establish proof of the requisite period of continuous residence necessary to qualify for legalization under IRCA] will serve to demonstrate the alien’s financial responsibility during the documented period(s) of employment. If the alien’s period(s) of residence in the United States include significant gaps in employment or if there is reason to believe that the alien may have received public assistance while employed, the alien may be required to provide proof that he or she has not received public cash assistance. An applicant for residence who is likely to become a public charge will be denied adjustment. 8 C.F.R. § 245a.2(d)(4) (1987). The regulations implementing IRCA’s Special Rule (see supra at 1041) provided: An alien who has a consistent employment history which shows the ability to support himself and his or her family, even though his income may be below the poverty level, may be admissible under paragraph (k)(2) of this section [relating to waivers of grounds of exclusion under 8 U.S.C. § 1255a(d)(2)(B)(i) ]. The alien’s employment history ... should be continuous in the sense that the alien shall be regularly attached to the work force, has an income over a substantial period of the applicable time, and has demonstrated the capacity to exist on his or her income and maintain his or her family without recourse to public cash assistance. This regulation is prospective in that the service shall determine, based on the alien’s history, whether he or she is likely to become a public charge. Past acceptance of public cash assistance within a history of consistent employment will enter into this decision. The weight given in considering applicability of the public charge provisions will depend on many factors, but the length of time an applicant has received public cash assistance will constitute a significant factor. 52 Fed.Reg. 16212 (May 1, 1987), codified at 8 C.F.R. § 245a.2(k)(4) (1987). In November 1987, this regulation was amended to eliminate the reference to waivers under paragraph (k)(2). 52 Fed.Reg. 43844 (November 17, 1987). “Public cash assistance” was defined by the regulations as: income or needs-based monetary assistance, to include but not limited to supplemental security income, received by the alien or his or her immediate family through federal, state, or local programs designed to meet subsistence levels. 8 C.F.R. § 245a.l(i) (1988). Just before the amnesty program began, the INS, responding to comments, inquiries, and criticisms of its proposed public charge regulations, emphasized that “applicants may in fact be ineligible for legalization if such cash assistance was received by their U.S. citizen children.” 52 Fed.Reg. 16207 (May 1, 1987) (emphasis added). On September 23, 1987, in a memorandum entitled “Guidelines for Determining Public Charge Issues under Legislative Provisions of the Immigration Reform and Control Act of 1986 (IRCA)”, the INS promulgated further relevant guidelines: Proof of financial responsibility under 8 C.F.R. § 245a.2(d)(4) is to be established by examining the totality of the alien’s circumstances at the time of his or her application for legalization. The existence or absence of a particular factor should never be the sole criteria for determining if an alien is likely to become a public charge. The determination of financial responsibility should be a prospective evaluation based on the alien’s age, health, income and vocation. Pl.Ex. 9 (memorandum dated September 23, 1987, from Richard E. Norton, Associate Commissioner, to Regional Commissioners). On October 1, 1987, the INS issued a memorandum providing an example of when a waiver of the public charge provision might be available for those not otherwise eligible for qualification under the “Special Rule”: Waivers may be accepted in the case of applicants who have had extenuating circumstances which necessitated reliance on public cash assistance in the past, but for whom the likelihood of relying on public cash assistance in the future appears non-existent. Pl.Ex. 11 (memorandum entitled “Waivers, Section 212(a)(15)”, dated October 1, 1987, from Richard E. Norton, Associate Commissioner of INS to Edward J. Wildblood, Regional Legalization Officer of the Eastern Region). On November 23, 1987 INS addressed the issue of public cash assistance paid to an applicant’s family members in the form of Supplemental Security Income (“SSI”) benefits: For purposes of evaluating proof of financial responsibility under 8 C.F.R. § 245a.2(d)(4), SSI should be considered as public cash assistance only with regard to the person who receives it. SSI should not be attributed as public cash assistance to the immediate family members who reside with the recipient but who themselves are non-recipients. Pl.Ex. 14 (memorandum dated November 23, 1987, from INS Associate Commissioner Richard E. Norton to INS Regional Commissioners). On February 12, 1988, Assistant INS Commissioner William S. Slattery, in a letter to John M. Payne, a senior official of the Department of Human Services of the District of Columbia (the “Slattery letter”), addressed the question of whether receipt of Aid to Families With Dependent Children (“AFDC”) benefits would render an applicant ineligible for legalization. He wrote, “Public charge status is not conveyed to the parent-payee if the United States citizen child is the recipient.” Pl.Ex. 18 (emphasis added). On February 26,1988, INS Commissioner Alan C. Nelson wrote to Ruth Massinga and Marlin Johnson of the American Public Welfare Association (“APWA”) and repeated the advice that receipt of AFDC benefits by a child would not render a parent ineligible for legalization. Pl.Ex. 20. II. Prior Proceedings in this Action Plaintiffs filed their complaint on April 1, 1988, approximately one month prior to the expiration of the deadline for filing amnesty applications. The complaint asserts that INS “adopted and published unlawfully restrictive regulations on the so-called ‘public charge’ ground of exclusion,” Complt. 114, that “unlawfully classified thousands of economically productive, self-supporting aliens as ‘likely to become public charges’ — and excluded them from legalization — merely because the aliens’ citizen or permanent resident dependents lawfully receive or have received public assistance.” Complt. ¶ 6. The complaint further alleges that the “challenged regulations directly contravene the Immigration Reform and Control Act, which expressly provides that an alien must not be denied legalization on ‘public charge’ grounds if she or he can demonstrate the capacity for seZ/sup-port.” Complt. 118 (citing 8 U.S.C. §§ 1255a(a), 1255a(d)(2)(B)(iii)). The complaint goes on to assert that, as early as December 1987, high INS officials took the internal position — contrary to INS’s published regulations — that the receipt of public cash assistance by the U.S. citizen children of an undocumented alien is not relevant to the determination of the alien’s eligibility for legalization. Complt. ¶ 13. The complaint then makes reference to the aforementioned February 12,1988, letter of Commissioner Slattery. Id. Finally, the complaint alleges that INS’s failure to amend its unlawful “public charge” regulations or otherwise notify the public of the “altered eligibility standards” evidenced by the Slattery letter unfairly deterred large numbers of qualified aliens from filing for legalization. Complt. II18. The individual plaintiffs sought to represent a class composed of: (a) all undocumented aliens residing in New York State who may be excludable from the Legalization Program established by [IRCA] as “likely to become public charges” based in whole or in part upon the receipt of public cash assistance by the applicants’ U.S. citizen or legal permanent resident dependents, and (b) all undocumented aliens residing in New York State who either failed to apply for legalization by May 4, 1988, or who abandoned their applications, because they believed that they were ineligible on “public charge” grounds. Complt. 1128. This class of similarly situated aliens assertedly exceeds five hundred in number. Complt. 1129. Plaintiffs sought immediate injunctive relief, including judicial extension of the May 4, 1988 filing deadline, the promulgation and publication of clarified regulations on the relevance of AFDC assistance to public charge determination, and the ordering of INS to accept legalization applications from affected aliens for a full twelve-month period following publication of the clarified regulations in the Federal Register. After several hearings on the matter, the Court, on April 19, 1988, obtained the Government’s commitment to publish formally, on a nationwide basis, the substance of the Slattery formulation of the AFDC/public charge issue. We declined on that date to issue the temporary restraining order requested by the plaintiffs. Order dated April 19, 1988. Two days later, on April 21, 1988, INS Associate Commissioner Norton distributed to all regional offices across the country a detailed and formal memorandum on the effect of the receipt of AFDC benefits on eligibility for legalization. The purpose of the memorandum was to “reiterate the policy” on the matter. Pl.Ex. 25. It stated as follows: As a general rule, the receipt of AFDC benefits by a member of the legalization applicant’s family is not attributed to the applicant for purposes of determining the likelihood that the applicant will become a public charge.... If, however, the family is reliant on the AFDC benefits as its sole means of support, the legalization applicant may be considered to have received public cash assistance. This determination must be made on a case by case basis and upon consideration of the totality of the applicant’s circumstances. Id. The plaintiffs nonetheless pressed for a preliminary injunction on the ground that the clarification came too late in the amnesty period to benefit those who, but for reliance on the assertedly misleading published regulations, would have sought legalization status. In other words, plaintiffs argued that members of their class, whose United States born children had received AFDC benefits, had self-disqualified themselves on the mistaken belief that such benefits operated to disqualify them automatically as likely to become a public charge, despite the totality of circumstances, the Special Rule and the availability of a waiver. We denied plaintiffs’ application for a preliminary injunction, concluding that “the rights of all the parties can be adequately protected through a systematic and fact oriented trial on the merits, followed by the exercise of the administrative authority of the Commissioner [of INS] and the equitable power of the Court if the record justifies it.” Order dated April 26, 1988. In so ruling, the Court invited the plaintiffs to demonstrate that each had constructively filed an application for legalization prior to the May 4, 1988 deadline by taking some definitive steps to pursue legalization, but had not formally applied because of misinformation about “public charge” regulations wrongfully given to them by INS. We further invited those who could not show constructive filing to demonstrate a right to an equitable tolling of the May 4, 1988 deadline based upon Government misconduct. On May 19, 1988 the Court of Appeals affirmed the denial of the preliminary injunction. 847 F.2d 55 (2d Cir.1988). On May 17, 1988, three pseudonymous individuals filed motions to intervene in this case. Unlike the original individual plaintiffs, these aliens did not file applications before the May 4, 1988 deadline. In June 1988, the same three moved for a preliminary injunction compelling the INS to grant them work authorizations pending the outcome of the case. The motion was withdrawn after INS agreed to provide temporary work authorizations to the three proposed intervenors. On June 28, 1988, plaintiffs moved for partial summary judgment declaring that 1) defendants’ “public charge” regulations facially violate IRCA and the Equal Protection component of the 5th Amendment, 2) defendants’ failure to disseminate accurate eligibility standards, their shifting interpretations of the public charge standards, and their issuance of misleading and ambiguous regulations violated the Due Process clause of the 5th Amendment and IRCA, and 3) members of the proposed class who can show that they were deterred from applying for amnesty are entitled to equitable tolling of the May 4 deadline. The INS cross-moved for summary judgment dismissing the complaint. Subsequently, plaintiffs moved, pursuant to Fed.R.Civ.P. 23(b), for certification of the class defined in the complaint (see supra at 1043). By order dated March 29, 1989 we denied the motions for summary judgment and granted the motions for intervention and class certification. III. The Trial A. The Alien Witnesses The plaintiffs called seven alien witnesses, six of whom were class members. Connie Loe testified that she was born in El Salvador, had lived in the United States for nine years, and had obtained permanent residence status through the amnesty program. Tr. 356. She stated that she had heard the amnesty program discussed on radio station WADO and television channel 41 or 47, and went to an organization known as the Concerned Citizens of Queens, a QDE, with her children other than her daughter, Linda Loe, to pursue amnesty. Tr. 357-360. Her daughter Linda did not “attend to her appointments at Concerned Citizens of Queens” because “we had heard that parents whose children had received welfare could not apply for amnesty,” Tr. 360, and Linda’s U.S. citizen children had received welfare. Connie Loe had heard this, shortly after the amnesty period began, on a WADO radio program, on which a representative of the “Immigration Department” answered phoned-in questions from the public. It was then that she heard this person state that “people whose children were on welfare could not apply for amnesty.” Furthermore, this person, who was a woman, said nothing about a waiver. Tr. 361-62. Ms. Loe testified that she telephoned her daughter Linda that day and told her “that possibly she [Linda] could not apply for amnesty because her [Linda’s] children were receiving public assistance.” At Concerned Citizens of Queens, Connie Loe discussed her daughter Linda’s case with “the person who was helping me fill out my application,” and “asked him whether my daughter whose children were receiving public assistance could apply and he said no.” Tr. 363. She was referred to a lawyer at that point, a Ms. Zambrana, and was told that her daughter could not “apply for amnesty” unless she took her children off welfare. No mention was made of a waiver. Ms. Connie Loe then relayed this information to her daughter Linda. Tr. 364-65. On cross-examination, Connie Loe stated that references she had seen in the Spanish language newspaper El Diario to the receipt of welfare issue did not contain any interviews or statements of government officials. Tr. 371. She further stated that neither she nor her daughter Linda ever contacted anybody at INS about Linda’s eligibility for amnesty. Tr. 373. When asked whether she would have advised her daughter to pursue amnesty if there was a possibility of approval in spite of having children on welfare, Ms. Loe said she would have advised it only if amnesty “had been guaranteed.” Tr. 376. The reason for this position, the witness explained, was her fear that her daughter could be deported based upon submitting an amnesty application. She communicated this fear to her daughter, and Linda “was afraid she would be deported if she applied.” Tr. 377. The witness did not assert that this egregiously false information, so sadly at odds with the central message of the national amnesty campaign promoted by the Government and the QDEs, came from any Government official or QDE functionary. Linda Loe, daughter of Connie Loe, testified that she was born in El Salvador and has four children, all of whom were born in New York; that she came to the United States in 1980 and married an American citizen in 1982; that she left her husband in 1984; and that, from that time until May 1988, she was almost always employed. Tr. 384-87. She stated that though her children have received public cash assistance, she herself has never received it. Tr. 388. Ms. Loe further stated that she had heard, on a call-in television program on channel 41 or 47, a male representative of the Immigration Service state that a parent whose children were receiving public assistance could not apply for amnesty. Tr. 391. She stated that she also heard this on radio station WADO, at about the same time. Tr. 392. At this point she asked her mother to inquire about the matter at the Concerned Citizens of Queens. After being advised by her mother of the negative advice from the Concerned Citizens, she went there herself in October or November 1987. Tr. 394-95. The witness stated, “I spoke to the receptionist and asked her to speak to the lawyer to see whether I could get some information [and was told] that in order to speak with the lawyer, I had to pay a certain amount in order to get the information.” Tr. 395. She did not do so “since I had already obtained the same information from the same place.” Tr. 395. At about the same time, she also spoke on the telephone for “about half an hour” with a representative of the City of New York and was told “I could not apply for amnesty, if I had some other way out or some way to apply for papers, okay. But I could not get amnesty.” Tr. 396. On cross-examination, Ms. Loe conceded that she never spoke with anyone at INS about her problem. Tr. 399. She further asserted that in her telephone conversation with the New York City representative she was told that she could be deported based upon her application for amnesty. Tr. 402. Based upon that advice and like information from “family members” and “people sometimes close to [her],” she feared deportation. Tr. 401. Maria P. testified that she was born in the Dominican Republic, entered the country illegally across the Texas border, has been living in the United States for ten years, has two United States born children, and had been employed for most of the period between her entry into the country and May 1988. Tr. 407-10. She said she had not applied for amnesty “[b]ecause my daughter was receiving public assistance and they were saying that people whose children were receiving public assistance could not apply.” Tr. 411. When asked who told her that, she said “The news and people who were talking. At that time a lot of people were talking and I heard a lot of them say that.” Id. When her attention was directed to a Mr. Julio Hernandez, the witness stated that in July 1987 she went to his Church and was advised by him “that I couldn’t apply [for amnesty] because I had my little girl on public assistance.” Tr. 412. He gave- her this advice “frequently”. Tr. 413. On cross-examination, Maria P. stated that she did not make further inquiry of anyone. Tr. 415-16. Jenny C. testified that she was born in Colombia, entered the United States illegally through San Diego, has lived here nine years, has one child who was born in New York, and was employed for all but a year of the period since her arrival in the United States. Tr. 422-24. She knew of the amnesty program, but did not apply “[b]ecause I began to hear people saying that all people who were receiving public assistance could not apply.” Tr. 424. She stated that in May 1987 she heard a journalist say on Channel 41 that “those persons who had arrived before ’82 had a right to apply, but those that had received public assistance did not have a right to apply.” Tr. 425. On radio station WADO, she heard another journalist say “something like the fellow said on television, that any person who received public assistance could not apply.” Tr. 426. She heard the same thing from an unidentified friend speaking in the street who showed her an INS printed notice, Pl.Ex. 30, which advised, temporary residents under the IRCA program that, to achieve permanent residence, the applicant must not receive certain types of public cash assistance and must not become a public charge. Tr. 427-28. After this conversation with her friend, she did not seek advice from anybody about whether or not she might be eligible for amnesty “because that paper was from immigration so I was sure that I could not apply.” Tr. 428. The public assistance benefits she received were Medicaid and Women, Infants and Children (“WIC”), in connection with her pregnancy. Tr. 429. On cross-examination, Jenny C. conceded that she never tried to contact anybody from the government for clarification on her eligibility for amnesty. Tr. 434-35. Nor, although she was aware of the existence of community organizations assisting in the amnesty program, did she seek clarification from those sources. Tr. 435. Sonia R. testified that she was born in Honduras, has lived in the United States for almost ten years, and has one American born child. She crossed the United States border illegally into Nogales, Arizona. Tr. 442-43. For all but five months up until May 1988, Sonia R. was employed. Tr. 444. Because she “had already had assistance” —she had received Medicaid and WIC benefits in connection with her pregnancy — she did not apply for amnesty. Tr. 445. She based her decision on a program she heard on Channel 41 “before people applied ... before they started the applications.” Tr. 445. The program included, among others, representatives of the “Department of Immigration”. Tr. 446. According to Sonia R., a caller stated he or she was receiving assistance and “the person” on the program said that such persons could not apply. Tr. 447. She stated that the only affirmative step she took to pursue her interest in the amnesty program was to go to a law school in Brooklyn, but the record is unclear as to what transpired as a result of this visit. Tr. 447-48. On cross-examination, the witness conceded that she never sought clarification on the issue of receiving public assistance from any government official. Tr. 455. Rosa C. testified that she was born in Santo Domingo, came into the United States illegally at San Diego, has lived here since 1981, and is the parent of two New York born children. Tr. 457. She has been largely self-supporting, and, although she knew of the amnesty program, she did not apply “because people were saying that people who were receiving assistance for their children could not apply.” Tr. 459-60. She heard this on Channel 47 or 41, on which a person from the Immigration Service appeared. “Someone called in and asked whether persons whose children were receiving public assistance would qualify and he [the representative from the Immigration Service] answered no.” Tr. 461. No further explanation was given on this topic. Tr. 462. She also heard advice to the same effect on an unspecified radio program. Tr. 462-63. On cross-examination, Ms. C. conceded that she had not spoken to anybody about her amnesty program, even though she knew that various community organizations existed to help people file applications for amnesty. Tr. 466. Nor did she ever contact the INS. Tr. 470. Miriam B. was born in Trinidad, entered the United States legally on a visa but remained beyond her authorized stay, and is the parent of two children born here. She has been in large measure self-supporting since her arrival in the country. She testified that she did not apply for amnesty because she had seen a television program on Channel 7 on which there were, among others, “people from the Immigration Department. ... The program was a panel discussion and they said that persons who received welfare for their children were not eligible.... Everybody [on the program] agreed that that was the case.” Tr. 477. Ms. B. later went to a Catholic organization in Englewood, New Jersey and spoke to a nun there. “I asked her if my son received welfare, if I was eligible for the amnesty program, and she told me no.” Miriam B. then went to a private lawyer, who told her she could not qualify for amnesty because “her son was on welfare.” Tr. 478-82. Finally, Miriam B. spoke to a priest at a Catholic organization in a church in Harlem, and he told her she was ineligible “because my son received welfare.” She was also told that “my chances of getting [amnesty] with the waiver was like the same thing, next to nothing.” Tr. 483. B. INS Witnesses Terrance O’Reilly testified that, at the time of the amnesty program, he was Deputy Assistant Commissioner for Legalization under IRCA. To advise the public through the radio, television and print media about the standards and benefits of IRCA, INS paid $10.6 million to public relations firms. Tr. 765. It enlisted the support of the American Immigration Lawyers Association, the American Bar Association, a National Coordinating Agency for voluntary groups across the country, and the National QDEs. Press conferences and seminars were routinely held and organized. Tr. 766. Flyers, fact sheets, posters, bill inserts, transit ads, balloons, buttons and radio tapes were produced and distributed on a multi-lingual basis during the amnesty period. Gov. Ex. L. A national toll-free hotline was set up to disseminate application information. Tr. 767. The QDEs, numbering approximately 1200 nationwide, were created under the statute to act as a buffer between the INS and the alien population, but in fact 75% of all applicants during the amnesty period applied directly to INS rather than through the QDEs or private attorneys. Tr. 767-68. When asked to explain this, Mr. O’Reilly testified: It is our belief at central office that we tried to have a very fair, very open program. And we felt that if we could get the people to trust us at INS, that we weren’t running a big sting operation, that they would come directly to us. Once we started working the people through the process and once people started getting out on the street with the temporary residence cards and went out and showed their buddies that hey, look what I got from INS, it seemed to work real well. People believed us. They believed their friends. So the population started coming directly to us. Tr. 768. INS opened 107 legalization offices nationwide, and four regional processing centers. Tr. 768-69. Commissioner O’Reilly testified that it was never INS’s policy to consider receipt of public cash assistance by an applicant’s immediate family members, citizen family members, as rendering the applicant automatically ineligible for legalization. Tr. 773. He went on to explain that “if there was receipt of any sort of assistance by the citizen child, we viewed that at central office as a tool that should be used to maybe look further at whether or not this alien may be likely to become a public charge [in the future]. More as an indicator that there may be some questions about this person’s financial responsibility.” Tr. 774. This policy was disseminated by the Service throughout the nation. Id. When asked to review Pl.Ex. 9, the Norton memorandum of September 23, 1987, see supra at 1042, Commissioner O’Reilly testified that it did not in any way represent a change in the regulations, but was merely a clarification containing more specific guidance for INS’s regional offices. Tr. 774-75. He further indicated that Pl.Ex. 14, the Norton memorandum of November 23, 1987, see supra at 1042, also did not alter, but merely clarified, the regulations. Tr. 776. He testified to the same effect with respect to Pl.Ex. 25, the Norton memorandum of April 21, 1988, see supra at 1043-44. Tr. 776. He also asserted that Pl.Ex. 18, the Slattery letter of February 12, 1988 to John M. Payne, see supra at 1042-43, reflected no deviation from or modification of the Service’s policy regarding the effect of receipt of AFDC funds on legalization. Tr. 780-81. The legalization program received approximately 1.76 million applications during the one-year entitlement period. The planning assumptions and expectations of INS prior to the opening of the amnesty period was for 2 million applications. Thus, this represented an 88% response rate. In March 1988, the Service announced that, as of April 4, 1988, it would accept skeletal applications without documentation and issue immediate work authorizations, to afford all possible applicants an opportunity to meet the May 4 deadline, with an additional 60 days posi-deadline to assemble and complete the application. Gov. Ex. O. This announcement received broad national media attention and resulted in the filing of 170,000 applications during the last three days of the program. Tr. 786. On cross-examination, Commissioner O’Reilly admitted that Pl.Ex. 18, the Slattery letter, could be interpreted as a change in policy. Nevertheless, the Commissioner maintained that, throughout the amnesty period, the public charge determination was based on the totality of the circumstances. Tr. 801. Mr. O’Reilly’s superior, William Slattery, the Assistant Commissioner for Legalization during the relevant period, had a major administrative role in organizing the Service’s national effort to disseminate information and stimulate large numbers of applications. Tr. 820, 822-824. He took sixty-three trips during the one-year application period, including one to the Dominican Republic, during which he did seventeen television shows. He rode an elephant in the Washington, D.C. St. Patrick’s Day Parade, and marched in Brooklyn’s West Indian Day Parade. In New York, he did “a lot of Irish radio, [interviews with] ethnic newspapers [and three appearances] on Asian T.V. in New York”. Tr. 825. Commissioner Slattery’s testimony on the QDEs’ role in actually persuading aliens to come forward and file applications is sufficiently instructive to warrant quotation at length: Q. And could you explain a little bit what your involvement with the QDEs and NCAs was? A. The QDEs is an abbreviation for Qualified Designated Entities. And this is nomenclature which didn’t exist or at least not to my knowledge before the passage of IRCA. It was created in the Immigration Reform and Control Act. Most of the individuals that became known as QDEs were previously either NCAs or volunteer agencies. And they came into existence, my understanding is, based upon representations that they had made that the aliens would not deal directly with the government, that there needed to be an intermediary, a buffer. As a result, they were provided for in the statute. There was a role provided for them in the statute whereby they would perform that function. They would be an intermediary between the alien population and the INS. So as a result, I had to meet with them because they were going to perform a role whereby they could receive applications from the aliens and then deliver the applications to the INS. Indeed, at the beginning of the program, they had represented to the INS — I don’t know what they represented to the Congress — they certainly represented to the INS that they had millions of aliens already pre-registered for the benefit. So they had already had contact with them. They had already established a way of communicating with them and that they were prepared to bring these people in to INS for the benefit. It was in my best interest to meet with them since they had the pool of beneficiaries. Q. Was that representation with respect to millions of applicants ever made directly to you? A. Yes, yes, absolutely. When I would meet with them initially, I started meeting every week and then later on it was every two weeks, and eventually I think once a month. But the representations of the numbers were made two fold: One, when they met with me, they would talk about the numbers of people they had and two, many of them put a request in for advanced funding. Just as I had to borrow $125 million from the appropriated funds of the Immigration Service to start and to get up to where I could do business, they came to the Immigration Service and they asked for advanced funding. I don’t remember how much money each one asked for, but the largest one was U.S. Catholic Conference. They asked for 1.2 million based upon a dollar per head for everybody they already had registered. So they put a written request in and told us they had 1.2 million people lined up and they wanted that advance. They were to pay it back off when they submitted an application. The QDEs were going to generate about $15 or $16 per application. We were going to deduct one dollar for every application we paid them for until we got the $1.2 million back. That application went to Mr. Duarte. After a good deal of discussion, they granted Catholic Conference $800,000. They said, “We are not quite sure you have got 1.2 million. Based upon what you are giving us, we will give you $800,-000.” Q. Was that Mr. Duarte when you say “they granted”? A. Yes, and I believe he worked with Mr. Norton on it. I wasn’t involved in that grant. $800,000 did go out as start up to Catholic Conference. THE COURT: How many ultimately did the U.S. Catholic Conference process for the INS? THE WITNESS: They failed miserably, but I think it was less than 100,000. THE COURT: What kind of representations were made when the Catholic Conference said it had 1.2 million? What documentation was submitted to support that? THE WITNESS: I don’t know the quality of the documentation dr the degree of the documentation, but they represented these individuals were all pre-registered with the Catholic Conference. THE COURT: A pre-register implies a record of some kind? THE WITNESS: Yes, I can only tell you that Monsignor de Marzio was head of The Catholic Conference nationwide. And after we advanced this money and the aliens, the numbers didn’t come in. By midsummer the media campaign was getting ready to kick in and I had grave concerns that the QDEs were not going to be able to produce that which they had represented they could produce. If indeed Monsignor de Marzio — just to use him as an example — had 1.2 million people in the pipeline, there was no advantage to me to pay millions of dollars on an alien campaign to see Monsignor de Marzio. He couldn’t bring them in the office. Even if he had 3 million people, he couldn’t get them in and I had a payroll to meet before the end of the fiscal year. I decided I had to go to the alien population and tell them to come to the Immigration Service. I told the commissioner that we were going to fail if I didn’t reach out to the alien public directly. He gave me the green light; and in the first advertisement campaign that went out, it went out late July of 1987 and it did not mention the QDE participation in the program at all. We reached right out to the alien community and told them to see us. They started coming in in droves. By August, 1987, Monsignor de Marzio came in and had a meeting with Mr. Norton and he told him I stole all of his clients. I found that a bit unusual because total receipts for the entire country at that time only amounted to 400,000 aliens by August of 1987. So if I stole all of this, I should have at least 1.2 million. That is, if they were represented by Catholic Conference. He said he was going out of business because I stole his clients and I guess he was right. He did go out of business. They only produced about a hundred thousand for the whole program. Q. You stated INS provided start-up funds for QDEs. Did Congress require the INS to provide funds to QDEs? A. I don’t believe so, no. THE COURT: Let me see, I don’t want to drop this issue of pre-registration. Are you aware of any records that Catholic Conference or indeed any other QDE created and conceivably might be available in connection with this lawsuit that would demonstrate that persons came forward in the numbers claimed? Did the conference submit with its application for the 1.2 million any documentation as to the persons they had lined up? THE WITNESS: I never saw the application, Your Honor, because it wasn’t submitted to me. It was submitted to Mr. Duarte and I don’t know the degree of specificity required to request the funds or if they just took them basically at their word. I never saw the application. I never saw the documentation supporting it. I do know that the request was made for $1.2 million and the service granted $800,000. THE COURT: Largely on just as you understand it, the oral warranty or promise by this organization that it did indeed have at least 800,000 persons pre-reg-istered implies that they had actually had contact with 800,000 aliens? THE WITNESS: That is correct. From my own understanding of the situation was when we started out — I believe possibly improperly now — that when they were talking these types of numbers, they had a name and a contact, phone number or address that they had already interviewed somebody and they thought they had an applicant. It turns out that the quality of pre-registration was not quite that high. It might have been somebody saying, “By the way, is there going to be an amnesty program? If so, I might be interested.” “And how many kids do you have?” “I have ten.” They would chalk off ten pre-registered with no vehicle to ever contact again in the future. I think that is how it turned out. But they never were able to come up with names or anything else. This was an excuse used not just by The Catholic Conference. I don’t mean to identify just them. They were the biggest one. The other QDEs all represented to have people in the pipeline too. And when we would meet, we, the service, as I said earlier, my interests were in bringing enough people in the door especially in the first four months to pay back the money I borrowed. Their interest seemed to lie more in the area of advocacy. They weren’t interested in production. They were interested in advocating certain issues. And so we would meet and I would want to talk about where are the aliens? And they would want to talk about issues. The end result was after jawboning for two or three months, I had to do it myself. I had to push them aside and reach out to the alien community. THE COURT: You mentioned earlier that Congress had stipulated quite concretely in the statute a role for the QDEs. What in substance was that statutory role? THE WITNESS: I don’t remember the language of the statute right now, but as I understand it, they were to be an intermediary between the aliens and us. There was to be a role for them. I think Congress gave them a role because they wanted a role. They certainly didn’t work for me. They weren’t an arm of the Immigration Service. THE COURT: What was the role? THE WITNESS: Well— THE COURT: What did you understand the role to be? THE WITNESS: I understood the role was an end result of an argument put forth by them that the alien community was afraid to deal directly with the Immigration Service, that there had to be a middleman, someone whom the alien community could trust. That was them. They could receive the application from the alien. The alien would not be in contact with an official of the government. And then they could deliver the application to the government, and for that they would get a fee. THE COURT: So the theory was that the QDE was to in effect collect the application, safeguard it, and forward it to protect that alien’s rights? THE WITNESS: That is correct. THE COURT: Your view is as this program evolved that isn’t principally what they did? They essentially got into policy debates? THE WITNESS: It was not even essentially. It was from day one. It was advocating policy issues. They looked to the service, for example, through the regulatory process to substitute our judgment for that of the Congress. I can give you all kinds of examples. THE COURT: That is sufficient. Tr. 825-33. Commissioner Slattery further testified: Q. Were you ever informed that QDEs at any of these meetings that you participated in by representatives of QDEs and NCAs that their field offices were holding applications and not submitting them to the INS? A. When I met with the QDEs, that seemed to be the message they were giving me at the meetings. And it was for a variety of reasons. In other words, if you would come up and say that ineligible family members can remain in the United States, we can get you applications if you will reduce the documentary requirements necessary to support an application. We get you applications. So the implied threat was: Change your standards and we will get you the applications. They seemed to be motivated or driven by the fact that they almost wanted a guaranteed pre-approval before they gave you the application. They did not want to risk a denial. Even when the program started running and we were showing something like a 97 or 98 percent approval rate, they were still hesitant to say they would submit an application until they were pretty much assured of a grant. Q. Do you recall if the issue of public charge was raised as one of the reasons why the QDEs and NCAs were holding applications? A. I don’t remember, no. Q. At any time during the meetings that you had with the representatives of the QDEs and NCAs, did you tell them that they should submit the applications that they were holding? A. Absolutely. Q. Why was that? A. One I needed them. I needed a lot of applications. I wanted them to submit everything they had. I was satisfied in the integrity of the program that our goal was to look for a way to grant these cases as opposed to deny them. We intended to be very liberal in our adjudication. I think our end result establishes that position. We had a 90 something percent approval rate. We were just encouraging them and trying to show them that they were imagining more problems than what really existed in the program. If they submit applications, they will see. We will approve them. Start submitting and we will grant them and they will get a feel as it goes out. They seem to want guarantees beforehand, before they would give us an application. Tr. 838-40. John O’Malley, an information officer for INS in New York during the legalization campaign, appeared on Channels 41 and 47 and on other television and radio programs as a spokesperson for the service in its outreach efforts to the alien population in this area. Tr. 658-59. In the course of dealing with the public charge issue at such public or media forums, the witness stated that he would not have asserted that an alien whose United States citizen children were receiving welfare benefits did not qualify for legalization, because to have done so would have been inconsistent with the regulations that he was very familiar with and with the training he had received. Tr. 672-73. Nor did he ever say that waivers were not available for aliens who were found excludable on the basis of being determined likely to become a public charge. Tr. 674-75. He stated that during the year he made 210 appearances on radio, television and at public meetings. Richard Berryman, who served as INS’s legalization officer for the amnesty program in Hempstead, Long Island during the application period, Tr. 695, conducted a two-week training session for INS personnel in April 1987 on legalization procedures in Burlington, Vermont. Tr. 700-02. He later became INS district coordinator for training. Tr. 704. He described the process of interviewing an applicant as it might have implicated the public charge ground of exclusion: Q. Now, with respect to the interview process, would public charge exclusion grounds be one of the topics that was discussed or explored at that interview? A. Yes, if the person indicated that he had received public cash assistance, it was on the back page of the application. And if he indicated that, the adjudicator would explore that saying, “Did you receive public cash assistance?” Or “In what form was it?” For example, some people thought food stamps were public cash assistance and it was not. Many people thought that. Some applicants thought that certain medical benefits that they had gotten constituted public cash assistance and it did not. So adjudicators would explore any grounds of inadmissibility that the alien checked off. In the course of adjudicating the application, one of the eligibility criteria was financial responsibility. And the alien had to demonstrate that he or she was attached to the work force and did not receive public cash assistance, was able to support him or herself without recourse to public cash assistance. The supporting documentation was examined also to see that the alien had met that burden of proof. For example, if there were a year or certain amount of time after 1982 up until the time of the interview that the alien could not show that he or she was employed or getting income from somewhere, then the adjudicator would generally dwell on that and say, “There is a gap here. How did you support yourself during this period of time?” We did not require documents for every single month of every single year. We were looking at a total picture of a person. Maybe he worked off the books. Not a proof of payment which was the case in a number of the applications that we saw, then the adjudicator was supposed to make a judgment. What is the totality of the picture here? Was this person able to support him or herself during this period of time? Q. If an applicant indicated that they had in fact received public assistance over a fixed period of time during the relevant period, would that have automatically rendered them ineligible for legalization? A. No, we were not allowed to disqualify anybody on that because it wasn’t a grounds of statutory denial. If a person was inadmissible under one of the grounds of exclusion that could not be waived, then we would issue a local denial. In the case you mentioned if it were public charge, we would indicate to the person the availability of a waiver and the necessity of applying for a waiver. And if it were granted, the application could be approved. Could be. Q. Now, were these recommended denials or grants binding in any way upon the regional processing facility or the RPF? A. No, the regional processing facility could overturn a local recommendation of grant or denial. So they were not binding in any manner or form, no. May I just expand on that? The regional processing facility was supposed to obtain the results of the fingerprint check that the alien applied for. The regional processing facility was also to get the results of a criminal background check and if there were another INS file in existence for an alien, the regional processing facility would get that other file and see if that file contained any information that had bearing on the legalization case. We did not have the full picture on the local level. We made our recommendations based on what the alien had indicated on the application, what supporting documentation the alien had submitted, and on the judgment of the adjudicator in applying the applicable statute and regulations. But the RPF also had access to this other material and they would wait for any of that material and make a final decision. Q. Mr. Berryman, I would like to go back for a second. I believe you indicated that in the case of a specific applicant who had received public cash assistance over a fixed period of time, that that would not result in an automatic finding of ineligibility. Would that have resulted in automatic recommendation for denial by the local office? A. It would have. Yes, I have to explain that. If a person were inadmissible and a waiver were submitted or if the alien were told that a waiver were submitted, we would check or remedy a file and the adjudicator was told to articulate on the worksheet that the alien was informed that waiver was available, the waiver is attached, or as part of the application, or that the alien was informed that a waiver is available, was given form 1-690 and told to mail it to the regional processing facility. The reason to check denial was to flag down that application because at one stage, they were spot checking all recommended grants. But any recommendation denial was automatically flagged down for further RPF examination and final determination. Q. Now, I would like for you to distinguish if you can between the circumstance you just described and one in which an alien applicant’s United States citizen child received public cash assistance? Would under that second scenario, would that have resulted in automatic recommendation for denial by the local office? A. No, I thi