U.S. 9th Circuit Court of Appeals
WANG ZONG ZIAO v RENO
WANG ZONG XIAO,
Plaintiff-Appellee,
v.
JANET RENO, in her capacity as
Attorney General of the United
States; MICHAEL J. YAMAGUCHI, in
his capacity as United States No. 93-17262
Attorney for the Northern District
of California; REGINALD L. BOYD, D.C. No.
in his capacity as United States CV-90-00350-WHO
Marshal for the Northern District OPINION
of California; DORIS MEISSNER, in
her capacity as Commissioner of
the Immigration and Naturalization
Service, and DAVID ILCHERT, in his
capacity as District Director for
the Immigration and Naturalization
Service,
Defendants-Appellants.
Appeal from the United States District Court for the Northern District of California
William H. Orrick, Jr., District Judge, Presiding
Argued and Submitted April 11, 1995--San Francisco, California
Filed April 12, 1996
Before: Mary M. Schroeder, Stephen Reinhardt* and Stephen S. Trott, Circuit
Judges.
COUNSEL
John S. Koppel, Appellate Staff, Civil Division, United
States Department of Justice, Washington, D.C., for the
defendants-appellants.
Cedric C. Chao, Morrison & Foerster, San Francisco,
California, for the plaintiff-appellee.
R. William Ide III, American Bar Association, Chicago,
Illinois, as amicus curiae.
Barry P. Helft, Ephraim Margolin, San Francisco,
California, National Association of Criminal Defense
Lawyers and California Attorneys for Criminal Justice,
as amici curiae.
OPINION
PER CURIAM:
The district court found that United States officials
and prosecutors engaged in an extraordinary pattern of
misconduct that violated the Fifth Amendment due
process rights of Wang Zong Xiao ("Wang"), a
prosecution witness brought to the United States to
testify falsely in an international drug conspiracy
case. To remedy the constitutional violations, and to
protect Wang from future torture in China for his
refusal to testify falsely, the district court
permanently enjoined the Attorney General of the United
States, and other Justice Department officials
("government") from removing Wang from the United
States or from returning him to the custody of
officials from the People's Republic of China ("PRC" or
"China"), see Xiao v. Reno, 837 F. Supp. 1506, 1511-44
(N.D. Cal. 1993) ("Wang II"). The government appeals
the district court's exercise of jurisdiction and
issuance of a permanent injunction. We affirm.
BACKGROUND
United States officials brought Wang Zong Xiao, a
citizen of China, to San Francisco in December 1989 to
serve as a federal prosecution witness in an
international drug conspiracy trial against Leung Tuk
Lun, Chico Wong, and Andrew Wong. Wang had allegedly
been involved in the conspiracy known as the "Goldfish"
case. Federal officials arranged for his parole into
the United States in order to obtain his testimony
regarding Leung's direct involvement with the heroin
conspiracy. The Leung trial ended in a mistrial,
however, after Wang changed his testimony and revealed
that Chinese authorities had brutally coerced him into
falsely implicating Leung. Wang's decision not to
perjure himself may have saved him in the American
court; however, the public disclosure of Wang's
truthful testimony removed any possibility that he
would receive leniency in China and raised the
possibility that he would be executed there.
As described in more than thirty pages in the district
court's opinion, Wang II, 837 F.Supp. at 1511-44, the
events leading up to Wang's parole into the U.S. are as
follows. On March 12, 1988, PRC police officials
arrested Wang in Shanghai for his participation in a
heroin transaction. The police kicked him, dragged him
along the street, blindfolded him, and took him to an
interrogation room. At Wang's first interrogation,
which lasted from 5:00 p.m. to 10:00 p.m., PRC
officials beat him and used an electric cattle prod to
shock him several times. At his second interrogation,
which immediately followed the first and lasted until
7:00 a.m. the next day, officials forced him to stand
for up to one hour at a time despite his requests for
sleep, refused to provide food or drink, and abused him
verbally, including telling him that he was "like a
piece of meat on our chopping board; we can chop you
any way we want." After Wang's second interrogation,
officials allowed him to sleep for one hour before
shocking him with a cattle prod, and interrogating him
almost continuously for another seventeen hours. This
pattern of interrogation continued for close to a
month, during which officials interrogated Wang more
than thirty times and forced him to give multiple
confessions. On at least five occasions, the
interrogations were videotaped.
On March 14, 1988, Wang stated that Leung was not
present during the heroin transaction in question. PRC
officials were not satisfied with this response because
they wanted him to implicate Leung in the heroin
transaction so that there would be no misunderstanding
that the heroin came from Hong Kong rather than
mainland China. The officials reminded him of the
Communist Party policy that if he cooperated, he would
receive leniency; if he did not, he would be treated
severely. They also told him that if he did not
cooperate, he would be shot. Five days later, Wang
confessed that Leung was not only present, but that he
participated in the breakdown of the heroin bricks into
powder form.
When United States prosecutorial officials learned of
Wang's confession, they sought to bring him to the
United States to testify against Leung. Members of the
prosecution team were aware of human rights abuses
occurring in the PRC and suspected that Wang might have
been tortured when he gave his confession. Evidence
strongly suggests that the lead prosecutor knew that a
video of Wang's interrogation existed and that Hong
Kong officials refused to prosecute Leung because they
suspected that Wang's confession had been coerced and
was untrue. Nonetheless, the prosecution ignored this
evidence, failed to disclose any of it to defense
counsel, and arranged for Wang to testify to Leung's
involvement in the heroin transaction.
During the negotiations over bringing Wang to the
United States, the prosecution team misrepresented to
PRC officials that Wang's involvement would be a no-
lose situation. The prosecution team failed to advise
PRC officials about the requirements of the oath, the
rigors of cross-examination in an American courtroom,
and the possibility that Wang might seek asylum.
In order to expedite the use of Wang as a witness, the
prosecution team requested that the PRC delay Wang's
transfer to the jurisdiction of the Chinese courts. Had
Wang appeared before the Chinese courts, he probably
would not have come to the United States and instead
would almost certainly have received lenient treatment
because of his cooperation with PRC officials.
Unfortunately for Wang, the PRC honored the American
request.
The federal government paroled Wang into the United
States as a witness for the prosecution on December 27,
1989. Five PRC officials accompanied him. Trial began
on January 8, 1990. On January 30, Wang made a
"personal request" while on the stand, and after a
consultation in chambers, the district court judge
appointed counsel to represent Wang. Wang's testimony
on February 1 and 5 placed Leung at the scene of the
heroin delivery. On February 5, Wang filed suit in
district court seeking declaratory and injunctive
relief, and submitted to the Immigration and
Naturalization Service ("INS") a petition for asylum.
1 On February 10, the
district court entered a preliminary injunction barring
the government from returning Wang to Chinese custody
pending his exhaustion of asylum proceedings. On
February 13 and 14, Wang testified to the mistreatment
he had endured and disavowed his earlier testimony,
stating that Leung was not present during the heroin
transaction.
On July 29, 1991, the INS District Director denied
Wang's asylum request, and on February 18, 1992, it
revoked his parole and placed him in exclusion
proceedings. The same day, Wang moved for a hearing on
his earlier motion for partial summary judgment on his
eleventh cause of action, which alleged that the
government is "without legal authority over [Wang's]
person and may not remove him from the United States or
return him to Chinese custody."
Two days later, the district court granted Wang a
preliminary injunction on the eleventh cause of action,
prohibiting the government from moving forward with
exclusion or deportation proceedings under the
Immigration and Nationality Act ("INA") pending final
adjudication of the motion for partial summary
judgment. Four months later, it issued a permanent
injunction forbidding the government from placing Wang
in exclusion proceedings or taking any further action
that could place him in jeopardy of being returned to
China. The government appealed both injunctions and the
grant of partial summary judgment, alleging that the
district court lacked jurisdiction to enjoin exclusion
proceedings and that it erred in concluding that the
INS lacked jurisdiction to place Wang in exclusion
proceedings.
The appeals were consolidated, and on October 30, 1992,
we reversed, vacated both injunctions, and instructed
the district court to dismiss the eleventh cause of
action for lack of jurisdiction. Xiao v. Barr, 979 F.2d
151 (9th Cir. 1992) ("Wang I"). 2 On March 2, 1993, the district court dismissed
the cause of action as instructed. Xiao v. Barr, 837 F.
Supp. 1500 (N.D. Cal. 1993).
In April, 1993, the district court conducted a lengthy
bench trial on the remaining causes of action and found
that the government had committed flagrant violations
of Wang's due process rights and breached its duty to
protect its witnesses. Wang II, 837 F. Supp. at 1506.3 On October 6, 1993, the
court permanently enjoined the government from "taking
any action in furtherance of removing Wang from the
jurisdiction of the United States or of returning him
to the custody of the PRC or any of its
representatives." Id. at 1564. The government appeals.
STANDARD OF REVIEW
We review questions of subject matter jurisdiction de
novo. Nike, Inc. v. Commercial Iberica De Exclusivas,
20 F.3d 987, 990 (9th Cir. 1994). The district court's
factual findings on all jurisdictional issues must be
accepted unless clearly erroneous. Id.
DISCUSSION
The virtually unchallenged findings of the district
court reveal a course of governmental misconduct in
which United States officials and prosecutors callously
violated Wang's Fifth Amendment due process rights. 4 The district court found
that the government's actions forced Wang to make a
Hobson's choice:5
whether to abide by his oath in the American court to
tell the truth on the witness stand, and thereby face
near certain execution in the PRC, or to lie under oath
in the American court and receive leniency in the PRC.
The ... actions of the United States government ...
individually and collectively shock the conscience of
the Court and deprive Wang of the substantive due
process to which he is entitled. 6
837 F. Supp. at 1559. To remedy the due process
violations and to protect Wang from future torture, the
court entered a permanent injunction barring the United
States from removing Wang or returning him to China.
The court exercised jurisdiction over Wang's due
process claim pursuant to 28 U.S.C. S 1331 (federal
question jurisdiction) and to its inherent supervisory
power to remedy extraordinary governmental misconduct.
We affirm.
I. Jurisdiction and Exhaustion
Under 28 U.S.C. S 1331, federal courts have
jurisdiction over constitutional claims. That statute
states that the "district courts shall have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States."
Wang's due process claim arises under the United States
Constitution. The central jurisdictional dispute is
whether Wang must first exhaust his administrative
remedies under the INA and receive a final agency
determination that he be returned to China before the
district court can exercise its jurisdiction over his
due process claim.
A.
The government argues that "the existence of possible
constitutional claims furnishes no basis for excusing
plaintiff's failure to exhaust his remedies." The
government contends that S 1105a(c) of the INA provides
the sole avenue for judicial review in the instant case
and that such review can occur only at the habeas
corpus proceeding after Wang exhausts his
administrative remedies. Section 1105a(c) of the INA
provides, in relevant part:
An order of deportation or of exclusion shall not be
reviewed by any court if the alien has not exhausted
the administrative remedies available to him as of
right under the immigration laws and regulations ...
.
8 U.S.C. S 1105a(c). The government argues that S
1105a(c) forecloses judicial review of all of Wang's
claims, constitutional and otherwise, until the
conclusion of INS exclusion proceedings.
"Of 'paramount importance' to any exhaustion inquiry is
congressional intent. Where Congress specifically
mandates, exhaustion is required. But where Congress
has not clearly required exhaustion, sound judicial
discretion governs." McCarthy v. Madigan, 112 S.Ct.
1081, 1086 (1992). When exercising our discretion, we
must apply exhaustion principles "in a manner
consistent with congressional intent and any applicable
statutory scheme." Id. Here, where Congress has not
specifically mandated exhaustion, we conclude that
consistent with congressional intent and the INA, the
district court properly exercised jurisdiction over
Wang's due process claim even though he had not
exhausted administrative remedies with respect to his
excludability.
The government's argument that the INA requires
exhaustion in this case is meritless because Wang's due
process claim does not implicate the INA at all. This
is no longer a case where an alien is petitioning for
asylum under the INA or challenging exclusion
proceedings. In the record before us, the government
was found to have recklessly brought Wang into this
country, "place[d] him on the witness stand, and
compel[led] him to make an unconscionable choice
between telling the truth and saving his own life."
Wang II, 837 F.Supp. at 1548. Wang's claim, a violation
of the Fifth Amendment as opposed to a statutory
entitlement to asylum, falls outside the INA's scope.
7 Thus, because Wang's
action does not implicate the INA, let alone involve
review of an order of deportation or exclusion, we
conclude that he was not statutorily required to
exhaust his administrative remedies prior to seeking
judicial relief for the violation of his due process
rights. 8
Requiring exhaustion here would not serve "the twin
purposes of protecting administrative agency authority
and promoting judicial efficiency," see McCarthy, 112
S.Ct. at 108687; Weinberger v. Salfi, 422 U.S. 749, 765
(1975). Wang's constitutional claim does not implicate
the INA, and could not possibly involve review of the
INS's exercise of its discretionary power. Accordingly,
by adjudicating Wang's constitutional claim, over which
the INS lacked jurisdiction, the court neither
forfeited the benefit of INS expertise, 9 nor deprived the INS of the
opportunity to correct its own mistakes, nor weakened
the effectiveness of the INS by encouraging disregard
of its procedures. See McCarthy, 112 S.Ct. at 1086.
Furthermore, requiring exhaustion would neither moot
the judicial controversy nor produce a useful record 10 for subsequent judicial
consideration. See id. at 1086-87. There is little, if
any, possibility of duplicative effort by agency and
court.
Not only do the institutional interests militate
against requiring administrative exhaustion, but Wang's
interests also weigh heavily against it. See McCarthy,
112 S.Ct. at 1087-88
(describing three broad sets of circumstances in which
the interests of the individual weigh heavily against
requiring administrative exhaustion). In McCarthy, the
Supreme Court stated,
an administrative remedy may be inadequate "because of
some doubt as to whether the agency was empowered to
grant effective relief." For example, an agency, as a
preliminary matter, may be unable to consider whether
to grant relief because it lacks institutional
competence to resolve the particular type of issue
presented... . Alternatively, an agency may be
competent to adjudicate the issue presented, but still
lack authority to grant the type of relief requested.
Id. at 1088 (citations omitted). Here, the INS is not
empowered to grant effective relief for the
governmental misconduct at issue in this case: it lacks
institutional competence to resolve the constitutional
issue presented; moreover, even if it were capable of
adjudicating the issue, it would lack the authority to
grant the type of relief requested. 11
Because the inability of the INS to adjudicate the
constitutional claim completely undermines most, if not
all, of the purposes underlying exhaustion, we conclude
that Wang was not required to exhaust his
administrative remedies concerning excludability as a
prerequisite to filing his due process claim. This
result is compelled because the constitutional question
is clear and is unrelated to his claim for asylum, see
Andrade v. Lauer, 729 F.2d 1475, 1493 (D.C. Cir. 1984);
an administrative proceeding would not turn on the
constitutional issue much less eliminate every remnant
of it. See Public Util. Comm'n of Cal. v. United
States, 355 U.S. 534, 539 -40
(1958).
B.
The government also contends that Wang I controls this
case. In Wang I, the district court exercised
jurisdiction over Wang's eleventh cause of action. The
eleventh cause of action stated that the government is
"without legal authority over [Wang's] person and may
not remove [him] from the United States or return [him]
to Chinese custody." 979 F.2d at 153. The district
court based its exercise of jurisdiction over the
eleventh cause of action "on its belief that exhaustion
was not required since Wang was not appealing an order
of exclusion, but rather contesting the INS' authority
to place him into exclusion proceedings." Id. at 153.
We reversed, stating that "judicial review is precluded
if the alien has failed to avail himself of all
administrative remedies, one of which is the exclusion
hearing itself." Id. The government argues that this
language similarly precludes jurisdiction over Wang's
due process claims.
The government misreads Wang I. In Wang I, we narrowly
framed the issue on appeal as "whether the question of
the INS' jurisdiction is appropriately decided in the
first instance by the INS, or whether it is an issue
beyond the authority of the INS to resolve and remedy."
Id. We held that "the INS should be accorded the
opportunity to determine its own jurisdiction." Id. We
were silent as to the other claims alleged in Wang's
complaint, including his due process claim.
Here, Wang does not challenge the exclusion
proceedings, but asks the district court to remedy a
due process violation. Wang is seeking relief from
violations of his constitutional rights due to
extraordinary governmental misconduct. This claim is
wholly independent of any assertable under the INA.
Indeed, in Wang I, we noted that Wang's eleventh cause
of action is "not constitutionally based, but rather
turns on a question of statutory interpretation... ."
Id. at 155. In contrast to Wang's eleventh cause of
action, Wang's due process violation is
constitutionally based. 12 Accordingly, the district court properly exercised
jurisdiction over his due process claim.
II. Wang's Fifth Amendment Rights
Wang may invoke the right to due process guaranteed by
the Fifth Amendment. Contrary to the government's
assertions, United States v. Verdugo-Urquidez, 494 U.S. 259, 110
S.Ct. 1056 (1990), does not control this case. In
VerdugoUrquidez, the Court held that the Fourth
Amendment does not apply to the search and seizure by
United States agents of property owned by a Mexican
citizen and located in his Mexican residence. The Court
observed that the Fourth Amendment,13 "by contrast with the Fifth and Sixth
Amendments, extends its reach only to `the people.'" 494 U.S. at 265. The Court
noted that "`the people' seems to have been a term of
art employed in select parts of the Constitution" that
refers to "a class of persons who are part of a
national community or who have otherwise developed
sufficient connection with this country to be
considered part of that community." Id. Thus, the Court
reasoned, the purpose of the Fourth Amendment was to
"protect the people of the United States against
arbitrary action by their own Government," and not "to
restrain the actions of the Federal Government against
aliens outside of the United States territory." Id. at
266.14
However, as the Verdugo-Urquidez Court expressly noted,
the Fifth Amendment provides protection to the "person"
rather than "the people." 15
Id. at 265-66. In Plylerv. Doe, 457 U.S. 202, 210
, 102 S.Ct. 2382 (1982), the Supreme Court stated,
"[w]hatever his status under the immigration laws, an
alien is surely a 'person' in any ordinary sense of
that term," and is therefore a "'person[ ]' guaranteed
due process of law by the Fifth and Fourteenth
Amendments." This principle clearly applies to Wang,
who became an alien in this country through the
purposeful actions of the United States government. See
Matthews v. Diaz, 426 U.S. 67, 77 (1976)
("The Fifth Amendment ... protects every [alien within
the jurisdiction of the United States] from deprivation
of life, liberty, or property without due process of
law... . [e]ven one whose presence in this country is
unlawful, involuntary, or transitory ...").
Moreover, unlike Verdugo-Urquidez, this case does not
concern an isolated, extraterritorial violation of the
Constitution. See Verdugo-Urquidez, 494 U.S. at 264 ("For
purposes of this case, therefore, if there were a
constitutional violation, it occurred solely in
Mexico."). Rather, the twoyear American prosecutorial
effort violated Wang's due process rights on American
soil, where he was forced in an American courtroom, to
choose between committing the crime of perjury or
telling the truth and facing torture and possible
execution.16 Thus, we
conclude that Wang is guaranteed due process under the
Fifth Amendment.
A.
The government does not challenge on appeal the
district court's conclusion that it acted with gross
negligence and deliberate indifference, or that its
actions shock the conscience of the court. Rather, the
government argues that Wang's due process rights were
not violated because the government "has no
constitutional duty to protect a witness from harm
stemming from his or her testimony that may occur after
the witness is released from the government's custody."
The government's argument fails to take into account
the government's constitutional duty to protect a
person when it creates a special relationship with that
person, or when it affirmatively places that person in
danger. L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.
1992), cert. denied, 113 S.Ct. 2442 (1993). Here, the
government did both. The government created a special
relationship with Wang by paroling him into the United
States and placing him in custody. See, e.g., Deshaney
v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200, 109
S.Ct. 998, 1005 (1989). In Deshaney, the Court held
that "when the State takes a person into its custody
and holds him there against his will, the Constitution
imposes some responsibility for his safety and general
well-being." 17 In so
holding, the Court explained that when the government
creates a special relationship with a person by placing
him in a vulnerable situation, the substantive
component of the Due Process Clause obligates the
government to provide for that person's basic needs and
to protect him from deprivations of liberty. Id. at
199-200. Having placed Wang in custody, the government
had an obligation to protect him from liberty
deprivations he faced by virtue of his testimony in
court.
In Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989),
cert. denied, 498 U.S. 938 (1990), we
applied Deshaney's principles to a case in which the
government placed a person in danger. We reversed the
district court's grant of summary judgment, holding that
the plaintiff had raised a triable issue of fact as to
whether the government violated her due process rights
when it affirmatively placed her in danger. In Wood, a
state trooper had allegedly left Linda Wood stranded
near a military reservation that had the highest
aggravated crime rate in the county outside the City of
Tacoma, Washington. Id. at 586. The trooper had
allegedly stopped the car in which Wood was a passenger
and placed the driver under arrest for driving while
intoxicated. Id. He had allegedly impounded the car and
left Wood stranded on a highway at 2:30 a.m., five miles
from her home and wearing only jeans and a blouse in
fifty degree weather. Id. After attempting to walk home,
Wood had allegedly accepted a ride from a man who took
her to a secluded area and raped her. Id. We held that
the government's alleged misconduct--stranding Wood in a
high crime area--triggered the duty to afford Wood some
measure of peace and safety, and that Wood raised a
triable issue of fact as to whether the government
affirmatively placed her in a position of danger. Wood,
879 F.2d at 590.
Here, the government affirmatively placed Wang in danger
by requesting that China delay his transfer to the
jurisdiction of the Chinese courts (thereby depriving
him of leniency), failing to inform Chinese officials
that defense counsel would hammer away at the
voluntariness of his confession, failing to uphold its
duty under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194 (1963), to disclose to defense counsel that
the confession was coerced, subjecting Wang to an oath
that required him to tell the truth, and putting him in
a situation where he had to choose between perjuring
himself in federal court (a crime under 18 U.S.C. S
1621) and telling the truth and thereby losing the
possibility of lenient treatment from the Chinese
courts. As a result, the government placed Wang in
danger of violating his own conscience and the federal
perjury statute, or of facing torture and possible
execution in China.
Unlike Deshaney, in which the victim was "in no worse a
position than that in which he would have been had [the
government] not acted at all," 489 U.S. at 201, 109 S.Ct. at
1006, Wang is in a far worse position because of the
government's reckless actions. Had the government not
interfered with Wang's transfer to the jurisdiction of
the Chinese Courts, not paroled him into this country,
and not subjected him to a life or death choice, Wang
would have earned leniency in China and would have been
able to stay in his homeland.
The district court also held that the government's
conduct was so egregious that it shocked the conscience
and for that reason as well, violated due process
principles. See Rochin v. California, 342 U.S. 165, 172 (1952).
We need not address this issue, for Wang has proven
facts sufficient to establish a violation of his liberty
interest in personal security and thus of his due
process rights secured by the Fifth Amendment. See Wood,
879 F.2d at 591 n.8.
B.
The government argues that Wang lacks standing because
he has not yet been returned to China and therefore has
not yet suffered harm from the alleged due process
violations. Contrary to the government's assertion,
however, harm to Wang occurred as soon as he told the
truth (as required by the oath), because at that point
he lost his opportunity to return to China without
facing torture and possible execution. As the district
court found:
[t]he situation Wang faces if he is returned to the PRC
today is vastly different from the one he would have
faced had he not been brought to the United States to
testify at the Goldfish trial. The situation Wang would
have faced can best be understood by referring to the
eight-character Chinese phrase that appeared on the wall
of Wang's interrogation rooms: leniency to those who
cooperate, harshness to those who resist. Wang had
cooperated with the PRC police authorities, and he,
therefore, would have been treated with leniency. Today,
Wang faces the harshest possible treatment in the event
he is returned to the PRC.
837 F. Supp. at 1541.
Moreover, the harm here is sufficiently "real and
immediate to show an existing controversy." Blum v.
Yaretsky, 457 U.S. 991, 1000
, 102 S.Ct. 2777, 2784 (1982). Indeed, the
government's actions to date, including the INS' current
determination that Wang is excludable, suggests that the
government is actively trying to send Wang back to
China.
C.
The government tells us that "the Attorney General has
determined ... she will not return Wang unless the
United States Government is confident that he will not
be executed because of his conduct in judicial
proceedings in the United States." The Attorney
General's determination does not affect our decision for
two reasons. First, the United States government cannot
guarantee that China, a sovereign nation, will not
execute Wang for his decision to testify truthfully. New
officials may come into power in China or the Chinese
government may simply change its mind about whether or
not to execute him. Indeed, the district court found at
trial that a request for leniency made by the American
government "likely will have no effect whatsoever on the
Chinese government." 837 F. Supp. at 1544.
Second, even if Wang is not executed, he will still face
harsh treatment if returned to China. The district court
found that Wang's actions, which have violated the
Chinese Constitution and the Criminal Law of China, have
rendered him a "counterrevolutionary" in the eyes of the
Chinese criminal justice system. 837 F. Supp. at 1542.
Professor James Feinerman, the government's own expert
witness, expects that China will single out Wang for
mistreatment upon his return:
[i]t could involve everything from very severe beatings,
kicking, things that could be quite harmful to his
person, to the more subtle or psychological forms of
harassment and intimidation ....
Id. at 1543. We find it deplorable that the government,
which has placed Wang in his present predicament, is not
only not protecting him, but rather is actively trying
to return him to a place where he will likely be
tortured.
III. The District Court's Supervisory Power to Protect
Witnesses and to Maintain the Integrity of the Judicial
System
The district court's exercise of jurisdiction over
Wang's constitutional claim is also independently rooted
in its inherent supervisory power to protect government
witnesses. The district court's powers to protect a
witness appearing before it is justified on the grounds
that it promotes "the more general purpose of protecting
the administration of justice from `abuses, oppression
and injustice.'" Wheeler v. United States, 640 F.2d
1116, 1123 (9th Cir. 1981) (quoting Bitter v. United
States, 389 U.S. 15, 16,
88 S.Ct. 6, 7 (1976)).
In Wang I, which was decided before the district court's
bench trial, we found that the court's inherent
supervisory powers did not provide an independent basis
of jurisdiction in derogation of 8 U.S.C. S 1105a(c)'s
exhaustion requirement. Wang I, 979 F.2d at 155. The
government relies upon the twin statements in Wang I
that "it is within the province of the Immigration Judge
and the Board of Immigration Appeals to consider the
need to protect Wang, and either to grant him asylum or
stay his deportation," and that "[t]he habeas corpus
proceedings, to which Wang is statutorily entitled at
the conclusion of exclusion proceedings, are adequate to
afford the district court an opportunity to protect him,
as a former witness, from `abuses, oppression, and
injustice.'" Id. (citation omitted). As we have seen,
however, Wang I concerned only Wang's rights under the
INA; it did not involve his Fifth Amendment due process
rights. We could have referred in Wang I only to the
oppressive fate that may have awaited Wang on his return
to China after exclusion proceedings, not to the conduct
of our own government that was the focus of the
constitutional claims. Accordingly, the statements
relied upon by the government were premised, at least in
part, on the statutory requirement of exhaustion that
does not apply to the constitutional claims. See Wang I,
979 F.2d at 156 (stating that "[g]iven the statutory
mandate requiring exhaustion ... the district court
should have accorded the executive proceedings due
respect, and consequently should have refrained from
exercising jurisdiction").
More importantly, the largely uncontested postremand
findings on the extraordinary nature of the government's
misconduct in securing Wang as a prosecution witness,
which were not before us in Wang I, counsel in favor of
an exercise of supervisory power. The government's
conduct significantly interfered with the administration
of justice. See Wheeler, 640 F.2d at 1124. In its
efforts to secure testimony that would lead to the
conviction of an international drug smuggler, the
government engaged in conduct that deprived its key
witness of his right to due process, including:
outrageous lies to the [district court] concerning
evidence pivotal to Wang's testimony; the deliberate
concealment [from defense counsel of the memorandum from
Hong Kong officials detailing their reasons for refusing
to prosecute Leung]; the false promise that the
government would make a goodfaith effort to obtain
interrogation documents from the PRC; the deliberate lie
that the government prosecutor made denying that he had
ever heard of any video being taken of Wang; the policy
of willful ignorance towards all evidence tending to
show that 'unconventional' interrogation tactics had
prompted a switch in Wang's story; the request to delay
Wang's transfer to the jurisdiction of the Chinese
courts, thereby depriving Wang of the possibility of
leniency before the Chinese courts ....
Wang II, 837 F. Supp. at 1559.
The government brought Wang to the U.S. in reckless
disregard of the real possibility that his inculpatory
testimony was false and that, if he told the truth, he
would face torture and possible execution upon his
return to the PRC. See Demjanjuk v. Petrovsky, 10 F.3d
338, 355 (6th Cir. 1993), cert. denied, 115 S.Ct. 295
(1994) (prosecuting attorneys engaged in prosecutorial
misconduct when they recklessly disregarded their
obligation to provide information specifically requested
by detainee, thereby endangering detainee's defense).
See also United States v. Kojayan, 8 F.3d 1315, 1324
(9th Cir. 1993) ("It's the easiest thing in the world
for people trained in the adversarial ethic to think a
prosecutor's job is simply to win.") (citing instances
of prosecutorial misconduct). In so doing, the
government failed in its duty to "win fairly, staying
well within the rules" and, more importantly, to "serve
truth and justice first." Kojayan, 8 F.3d at 1323. The
district court found that the government, in this case,
strayed from its responsibility "to vindicate the right
of people as expressed in the laws and give those
accused of crime a fair trial." Id. Thus,
[i]n a situation like this, the judiciary--especially
the court before which the primary misbehavior took
place--may exercise its supervisory power to make it
clear that the misconduct was serious, that the
government's unwillingness to own up to it was more
serious still and that steps must be taken to avoid a
recurrence of this chain of events.
Kojayan, 8 F.3d at 1325. The district court properly
recognized and applied these principles to the
government's mistreatment of Wang.
AFFIRMED.
Footnotes
[Footnote *] Judge Thomas
Tang was originally a member of this panel. He
participated in the oral argument and made material
contributions to the prepara
[Footnote 1] On July 5,
1990, Wang filed an amended complaint, which is the
operative pleading before the court.
[Footnote 2] The Chinese
list their surname first. Thus, the surname of Wang Zong
Xiao is Wang, not Xiao. Just as we would abbreviate "Bob
Smith v. Barr" as "Smith v. Barr" rather than "Bob v.
Barr," we should abbreviate case names using the Chinese
person's surname, not given name. We hope that future
cases will be abbreviated appropriately.
[Footnote 3] The court found
in favor of the government on the following of Wang's
causes of action: injunctive relief pending final
adjudication of asylum application, including federal
judicial review (first and second causes of action),
breach of the government's duty to exercise ordinary
care (fifth), equitable estoppel based on affirmative
governmental misconduct (sixth), violation of 18 U.S.C.
S 3508 (seventh), violation of procedural due process,
alleging that S 3508 is unconstitutional as applied to
Wang (eighth), violation of procedural due process,
alleging that S 3508 is unconstitutional as applied to
any prisoner from China (ninth), violation of 8 U.S.C. S
1182 (tenth), and violation of the law of nations and
international law (twelfth).
[Footnote 4] The only
factual finding the government appears to challenge is
the district court's finding that members of the
Department of State and the INS engaged in officious
intermeddling in Wang's asylum application before the
proceedings commenced. Our decision does not rest on
those findings.
[Footnote 5] The phrase
"Hobson's choice" is often used incorrectly. The phrase
comes from Thomas Hobson, an English liveryman who
required every customer to choose the horse nearest the
door. Webster's Ninth New Collegiate Dictionary 574
(1985). A Hobson's choice is thus an apparently free
choice when there is no real alternative. Id. Here,
however, Wang technically was not confronted with a
Hobson's choice--rather, Wang was forced to choose
between two harmful options.
[Footnote 6] Wang's
predicament is actually far graver than it first appears
because lying under oath in federal court is a federal
crime in the United States punishable by $2,000 and/or 5
years imprisonment. 18 U.S.C. S 1621.
[Footnote 7] Under the INA,
the Board of Immigration Appeals ("BIA") reviews the
immigration judge's ("IJ") decision and has the
authority to enter a final order of exclusion. See 8
C.F.R. S 236.7. The BIA, however, does not have
jurisdiction to adjudicate constitutional issues. See,
e.g., BaguesValles v. INS, 779 F.2d 483, 484 (9th Cir.
1985) (petitioners not precluded from raising due
process claim even though not raised during
administrative proceedings because BIA has no
jurisdiction to adjudicate constitutional issues). In
the instant case, the IJ held that Wang's claims of
government misconduct and constitutional violations were
not cognizable in his exclusion proceedings. In re Wang
Zong Xiao, No. 29-621-675 at 13 (INS, June 8, 1993).
In some instances, an administrative court can hear a
constitutional claim because it involves a procedural
error that is correctable by the administrative
tribunal. Vargas v. INS, 831 F.2d 906, 908 (9th Cir.
1987); Dhangu v. INS, 812 F.2d 455, 460 (9th Cir. 1987);
Bagues-Valles, 779 F.2d at 484. This case falls outside
the exception articulated in those cases because Wang's
claim does not involve a procedural error correctable by
an immigration judge or the Board of Immigration
Appeals. He claims no error arising in the course of
immigration proceedings.
[Footnote 8] The government
does not deny that the district court had the equitable
power to fashion a permanent injunction in this case.
Rather, it contends that the court erred in concluding
it could exercise its equitable power. We disagree.
We have previously held that
the key consideration is not whether a complete
statutory remedy exists for the constitutional violation
charged. Rather, "when the design of a government
program suggests that Congress has provided mechanisms
for constitutional violations that may occur in the
course of its administration, we have not created
additional Bivens remedies."
Saul v. United States, 928 F.2d 829, 837 (9th Cir. 1991)
(emphasis in original)(citing Schweiker v. Chilicky, 487
U.S. 412, 423, 108 S.Ct. 2460, 2467 (1988)). Here, the
design of the INA does not suggest that Congress has
considered and provided mechanisms to remedy the
constitutional violations alleged by Wang. Congress
could not have intended for the INA to redress
constitutional violations when neither the IJ nor the
BIA has jurisdiction to hear such claims.
[Footnote 9] See Shelter
Framing Corp. v. Pension Benefits Guar. Corp., 705 F.2d
1502, 1509 (9th Cir. 1983)(concluding that "[t]he
Guaranty Corporation's expertise relates only to how the
Amendments Act is to be applied and administered; it
cannot aid the court in addressing the naked
constitutional law issue raised by the employers . .
.").
[Footnote 10] In this
case, the IJ and BIA would have excluded any evidence of
the substantive due process violations as irrelevant
because they have no jurisdiction to hear constitutional
claims. Moreover, under the INA, the alien has no right
to discovery. See In re Magana, 17 I & N Dec. 111, 115
(BIA 1979). Discovery was critical to Wang's efforts to
expose the government's misconduct. Had the government
prevailed on its jurisdictional claim below, a grave
injustice would have occurred because INA procedure and
the government's litigation strategy would have
prevented Wang from uncovering the government's serious
misconduct. Although it is true that the INA allows for
eventual district court review in a habeas corpus
proceeding, such review is confined to the record
created by the IJ and BIA. See Kessler v. Strecker, 307
U.S. 22, 34 (1939). The government itself argued before
the district court that "[a]lthough denominated `habeas
corpus proceedings,' a district court's review of a
final order of exclusion is a record review, with no new
evidence taken." Memorandum of Points and Authorities in
Support of Defendant's Motion to Dismiss Plaintiff's
First
Amended Complaint at 5 n.1, Xiao, 837
F.Supp. 1500.
[Footnote 11] Wang has
sought a permanent injunction prohibiting his return to
China. The INS could not grant him that relief; it could
only grant him asylum. Although a grant of asylum might
overlap to some degree with the relief he has sought, it
may be revoked. See 8 U.S.C. S 1158(b); 8 C.F.R. S
208.24. The standard for revocation of asylum is a
preponderance of the evidence. See 8 C.F.R. 208.24(a).
By contrast, a motion to modify or vacate a permanent
injunction is judged by a stricter standard. See
Transgo, Inc. v. AJAC Transmission Parts Corp., 911 F.2d
363, 365 (9th Cir. 1990)(requiring movant to show
"clearly a substantial change in circumstances or law
since the orders were entered, extreme and unexpected
hardship in compliance with the injunctions' terms, and
a good reason why [the court] should modify the
permanent injunctions... ."); see also 11A Wright &
Miller, Federal Practice & Procedure, S 2961, at 402-03
(1995)("The three traditional reasons for ordering the
modification or vacation of an injunction are (1)
changes in operative facts, (2) changes in the relevant
decisional law, and (3) changes in any applicable
statutory law."). Accordingly, a grant of asylum would
not fully vindicate Wang's constitutional rights.
[Footnote 12] Because
Wang's claim is based on the Constitution, the
government's reliance on Heckler v. Ringer, 104 S.Ct.
2013, 466 U.S. 602 (1984), is misplaced. Unlike Wang's
claim, the claims asserted by the plaintiffs in Heckler
arose out of the statutory scheme.Id. at 615. In
Heckler, the plaintiffs contested the Secretary of
Health and Human Service's denial of Medicaid
reimbursement for a particular type of surgery. They
filed suit in federal court to contest the Secretary's
rule that the surgery was not reasonable and necessary,
and the procedure by which the Secretary reached this
rule. The Supreme Court determined that plaintiffs'
challenge to the rule was in essence a claim for
benefits, and that their challenge to the procedure was
inextricably intertwined with their benefits claim. Id.
at 614. Therefore, the plaintiffs were required to
exhaust administrative remedies before going to federal
court. Id. at 619.
Heckler is inapposite because it did not involve federal
constitutional claims that are collateral to the
administrative proceedings. In this case, Wang's claims
of prosecutorial and other governmental misconduct are
independent of any claims assertable under the INA. The
only claim which could be construed to implicate the INA
process was the eleventh cause of action, and that was
properly dismissed by this court in Wang I.
[Footnote 13] The Fourth
Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated ....
[Footnote 14] We note,
however, as did Judge Wallace in his dissent in
VerdugoUrquidez, that although the Fourth Amendment does
not apply to a search on foreign soil of a foreign
national's property, an alien may invoke the Fifth
Amendment to challenge the admission of evidence
obtained in a foreign country through means that "shock
the conscience." United States v. Verdugo-Urquidez, 856
F.2d 1214, 1245 (9th Cir. 1988)(Wallace, J.,
dissenting), rev'd, 494 U.S. 259 (1990). We have
suggested that, in the exercise of its supervisory
powers, a district court could refuse to allow
prosecutors to enjoy the fruits of extraterritorial
conduct that shocked the conscience. See Stonehill v.
United States, 405 F.2d 738, 745 (9th Cir. 1968), cert.
denied, 395 U.S. 960 (1969); see also United States ex
rel. Lujan v. Gengler, 510 F.2d 62, 64-66 (2d Cir.),
cert. denied, 421 U.S. 1001 (1975)(explaining that in
United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974),
where the particular circumstances of the abduction of
an Italian citizen constituted cruel, inhuman, and
outrageous treatment that shocked the conscience, and
there was no fruit of the abduction that could be
suppressed other than the conviction, the sole effective
remedy was to order the petitioner's release).
[Footnote 15] The Fifth
Amendment provides:
[N]or shall any person be subject for the same offence
to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law ... .
U.S. Const. Amend. V (emphasis added).
[Footnote 16] The
government's argument that Wang had no right to due
process while he was in China, when many of the actions
to bring him to the
United States were taken, is wide of the mark. The
deprivation itself occurred on American soil when Wang
was forced to take the witness stand, and on that basis
alone, we find that he may claim a violation of his due
process rights. Moreover, as the district court properly
noted, many of the actions occurring while Wang was in
China, were taken in the United States, unlike the
search in Verdugo-Urquidez, and, more important, all of
them contributed to the creation of "the dilemma Wang
faced when he took the witness stand in January 1990."
Wang II, 837 F. Supp. at 1548. Thus, to accept the
government's argument would artificially place beyond
our "purview any actions taken prior to the time Wang
arrived in the United States," id., even those actions
that led directly to, and are inextricably intertwined
with, the ultimate violation of his due process rights.
We refuse to draw such an artificial line.
[Footnote 17] We find it
particularly troublesome that while Wang was in the
custody of the United States and on United States soil,
the government still allowed Wang to be coerced by the
Chinese authorities accompanying him. See Wang II, 837
F. Supp. at 1536-37.
