IMMIGRATION AND NATURALIZATION SERVICE, ET AL., PETITIONERS v.
HERMAN DELGADO, ET AL.

   No. 82-1271

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the Immigration and
Naturalization Service and other petitioners, petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Ninth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

                       PARTIES TO THE PROCEEDING

   Joseph Sureck, William French Smith, Leonel J. Castillo (now
replaced as Commissioner of INS by Alan C. Nelson), Gil Clarin, and
James Robinson were appellees below in their official capacities and
are also petitioners here.  Herman Delgado, Ramona Correa, Francis
Labonte, and Maria Miramontes were appellants below and are
respondents here.  The International Ladies Garment Workers' Union,
AFL-CIO (ILGWU) was originally a plaintiff in the district court, but
the court ordered it dismissed as a party (App. G, infra, 59a-61a).
ILGWU appealed from the dismissal order, and thus, while the court of
appeals did not rule on that portion of the appeal (App. A, infra, 43a
n.24), ILGWU is nominally a respondent here.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F
   Appendix G
   Appendix H

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-43a) is
reported at 681 F.2d 624.  The opinions of the district court (Apps.
C-G, infra, 45a-60a) are not reported.

                             JURISDICTION

   The judgment of the court of appeals (App. H, infra, 61a) was
entered on July 15, 1982.  A petition for rehearing was denied on
September 30, 1982 (App. B, infra, 44a).  On December 20, 1982,
Justice Rehnquist extended the time within which to file a petition
for a writ of certiorari to and including January 28, 1983.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                           STATUTE INVOLVED

   8 U.S.C. 1357(a) provides in pertinent part:

         Any officer or employee of the Service authorized under
      regulations prescribed by the Attorney General shall have power
      without warrant --

         (1) to interrogate any alien or person believed to be an
      alien as to his right to be or to remain in the United States;
      * * *

                          QUESTION PRESENTED

   Whether INS agents violate the Fourth Amendment when, possessing
probable cause to believe that a number of employees at a factory are
illegal aliens, they conduct a survey of the factory's employees by
stationing agents at the factory exits and walking through the factory
addressing brief inquiries to individual employees suspected of being
aliens regarding their citizenship or resident alien status.

                               STATEMENT

   Respondents filed two different actions, which were subsequently
consolidated, in the United States District Court for the Central
District of California seeking declaratory and injunctive relief
against the Immigration and Naturalization Service's (INS) practice of
conducting factory surveys for the purpose of locating illegal aliens.
 Respondents' primary contention was that these surveys violated the
Fourth Amendment.  The district court entered summary judgment on
behalf of the INS (App. C, infra, 48a).  The court of appeals reversed
and remanded (App. A, infra, 1a-43a).

   1. The specific factual context underlying this case consists of
three factory surveys conducted by the INS in two garment factories in
1977.  The record contains affidavits by government officials relating
to the manner of conducting these and other factory surveys, together
with depositions of the individual respondents describing the surveys.
 As the court of appeals found (App. A, infra, 8a), the material facts
are not seriously in dispute.

   a. In both January and September 1977, the INS obtained search
warrants authorizing its officers to search the Southern California
Davis Pleating Company (Davis Pleating) for illegal aliens.  The
warrants did not identify any particular illegal aliens by name.
Rather, the warrants were based on reliable information showing that
Davis Pleating employed illegal aliens;  they authorized the INS to
search the factory for such persons (App. A, infra, 5a & n.5).  /1/
Pursuant to these warrants, INS officers arrested 78 illegal aliens
from among approximately three hundred employees present at Davis
Pleating in January 1977.  In September 1977, the INS arrested 39
illegal aliens out of a work force of approximately two hundred
employees.  App. A, infra, 4a;  1/17/80 Affidavit of Philip Smith,
Exhibit G to Memorandum in Support of Defendants' Motion for Summary
Judgment, filed 1/18/80.  In October 1977, the INS conducted a survey
of the work force at Mr. Pleat, another garment factory.  This survey
also was conducted because the INS had received information
establishing that Mr. Pleat employed illegal aliens.  On this
occasion, however, the INS agents entered with the consent of Mr.
Pleat's owner, rather than pursuant to a warrant.  This survey
resulted in the apprehension of 45 illegal aliens out of a work force
of approximately ninety employees.  Ibid.

   The factory surveys at both Davis Pleating and Mr. Pleat were
conducted in accordance with standard INS procedures established on a
nationwide basis.  See generally 11/15/79 Declaration of Philip Smith;
 Affidavit of Philip Smith, Exhibit B to Memorandum in Support of
Defendant's Motion to Dismiss, filed 6/30/78;  Affidavit of Gail
Richard Kee, Exhibit C;  Affidavit of Joseph Sureck, Exhibit A.  A
team of plainclothes INS agents entered the factory to question the
employees while other agents stationed themselves at the doors to
prevent suspected illegal aliens from escaping.  /2/ The agents, who
did not display any weapons, wore INS badges, identified themselves,
and announced their purpose.  The officers walked slowly through the
factory asking between one and three questions of employees whom they
had reason to believe were aliens.  /3/ Generally, the first question
pertained to place of birth or citizenship status.  If the individual
replied that he was born in the United States or that he was a
citizen, usually no further questions were asked.  If the response
gave the agent reason to believe that the individual was an alien, the
agent would ask the basis for the alien's presence in the United
States /4/ and would ask to see the alien's immigration papers.  See,
e.g., Delgado Dep. 45-55, 80-81;  Labonte Dep. 25;  Correa Dep. 48-55,
69;  Miramontes Dep. 26-29.  Throughout the surveys, the agents used
no force.  The employees were free to walk around within the factory
and to continue with their work.  Generally, upon the arrival of the
INS agents, some employees would attempt to flee or hide.  The agents
did not chase these employees, but rather continued their survey until
they reached the hiding place of the illegal aliens.  See, e.g.,
Delgado Dep. 40-46, 61-66, 70, 77.

   b. The respondents are four employees who were present during the
surveys at their work place.  None of the respondents was arrested.
Respondent Delgado is employed by Davis Pleating and is a citizen born
in Mayaguez, Puerto Rico (Delgado Dep. 4-5).  During the January
survey, he was not questioned by the INS agents regarding his
citizenship or immigration status, although he was asked by one agent
if he had a key for the back door (id. at 52, 59-60).  Delgado walked
freely throughout the factory during the survey, which lasted between
one and one and a half hours (id. at 50, 60-61).  During the September
survey, Delgado again was allowed to walk throughout the factory (id.
at 77-79).  On this occasion an INS agent asked Delgado where he was
born.  When Delgado responded that he was born in Mayaguez, Puerto
Rico, the agent moved on to another worker (id. at 79-81).  While the
survey was being conducted, Delgado left the factory building to load
a truck.  He was neither stopped nor questioned by the INS agent
stationed at that door (id. at 84-85).

   Respondent Correa also worked at Davis Pleating.  She is a United
States citizen who was born and has always resided in Southern
California (Correa Dep. 5, 8).  During the surveys, she was permitted
to walk through the factory without interference from the immigration
officers (id. at 61-66).  She was asked no questions during the
January survey (id. at 56).  In September, however, an agent asked
Correa, as she was walking through the factory, where she was born.
After responding that she was born in California, Correa continued on
her way without further questioning (id. at 69).

   Respondent Labonte also worked at Davis Pleating.  She is a
resident alien who was born in Mexico (Labonte Dep. 5-8).  During the
September survey she was seated in front of a machine when an agent
tapped her on the shoulder and asked to see her immigration papers.
She displayed her papers and was not questioned further (id. at
37-40).  At one point, Labonte exited the factory, approached some INS
officers outside the building, and asked them why they were taking the
illegal aliens away (id. at 31, 34-36, 49-50).

   Respondent Miramontes, a resident alien, worked at Mr. Pleat
(Miramontes Dep. 6).  When the October survey began, Miramontes was
walking to her work station from an office when an INS agent asked her
if she was a citizen.  When she responded that she was not, he asked
to see her papers.  Miramontes showed her papers, and the agent
continued on his way (id. at 18-20).  Miramontes had no other contact
with the agents (id. at 46).

   2. Respondents filed two different actions seeking a declaration
that INS factory surveys violate the Fourth Amendment and asking that
INS be enjoined permanently from conducting them.  /5/ In particular,
respondents challenged the constitutionality of an INS entry into a
factory without the consent of the employees or a warrant specifically
naming the individuals to be questioned.  The second complaint was
filed as a class action on behalf of the respondents and all persons
of Latin ancestry employed in the garment industry or any other
industry in the Central District of California.  Complaint, para. 12.
The International Ladies' Garment Workers' Union (ILGWU) was also
named as a plaintiff in both complaints.  The district court denied
respondents' motion to certify the class and also dismissed the ILGWU
as a party for lack of standing.  See App. A, infra, 6a;  App. G,
infra, 58a-60a.  Thereafter, the district court granted the INS's
motion for partial summary judgment, holding that the owner of a
workplace may give a valid consent to entry by the INS and that a
warrant authorizing such an entry need not identify each person to be
contacted by the INS (Apps. E & F, infra, 53a-57a).  Subsequently, the
court entered supplemental findings of fact and conclusions of law,
holding, inter alia, that the two warrants issued to search for
illegal aliens at Davis Pleating were valid and were based upon
probable cause (App. D, infra, 49a-52a).

   On a second motion for summary judgment, the district court
considered the Fourth Amendment implications of the manner in which
the factory surveys were conducted.  The court denied respondents'
request for an order enjoining the INS from "'interrogating or
otherwise interferring (sic) with the rights'" of the respondents
without an arrest or search warrant naming the respondents or
"'reasonable suspicion based on specific, irrefutable facts that
(they) are aliens unlawfully in the United States'" (App. C, infra,
46a).  The court found that none of the respondents had been arrested
or detained and that the INS agents were entitled to pose questions to
anyone if they did not detain the person.  Alternatively, relying on
United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the court held
that, even if respondents technically "had experienced some form of
seizure by placement of INS investigators at the factory exits, the
degree of intrusion on (respondents) was so minimal that there was no
violation of the Fourth Amendment" (App. C, infra, 47a).  The court
also concluded that, under 8 U.S.C. 1357(a)(1), any person believed to
be an alien may be questioned about his right to be in the United
States.  In sum, the court found that respondents' Fourth Amendment
rights had not been violated in the course of the factory surveys, and
it granted the INS's motion for summary judgment (App. C, infra,
45a-48a).

   3. The court of appeals reversed (App. A, infra, 1a-43a).  The
court held that the method of executing the factory surveys by
stationing agents at the exits to prevent illegal aliens from escaping
violated the Fourth Amendment in that it constituted a seizure of the
entire work force.  /6/ The court concluded that such a seizure was
illegal in the absence of a "reasonable, individualized suspicion of
illegal alienage of each detained worker prior to the execution of the
surveys" (id. at 40a).

   The court first held, relying heavily on Illinois Migrant Council
v. Pilliod, 531 F. Supp. 1011 (N.D. Ill. 1982), appeal pending, Nos.
82-1870, 82-1871 (7th Cir.), that the stationing of agents at the
exits "sufficiently intrudes upon the privacy and security interests
of the workers that a seizure of the workforce occurs during the
surveys" (App. A, infra, 12a).  The court acknowledged that the
respondents "had varying degrees of freedom to circulate through or
exit the factories" (id. at 19a), but nonetheless held that the work
force was seized for the entire duration of the survey.  The court
stated that the number of INS agents and their display of INS badges
"represented a threatening presence of INS agents to the reasonable
worker" (ibid.).  Moreover, the stationing of agents at the exits
"indicated to the entire workforce that departures were not to be
contemplated" (ibid.).  Quoting United States v. Anderson, 663 F.2d
934, 939 (9th Cir. 1981), the court concluded that "even before
individual questioning began, a reasonable worker 'would have believed
that he was not free to leave'";  and hence, the entire work force was
seized within the meaning of the Fourth Amendment (id. at 20a).  /7/

   The court of appeals then held that the Fourth Amendment permits
the INS to engage in detentive questioning only on the basis of an
individualized suspicion that a worker is an alien illegally in this
country (App. A, infra, 20a-39a).  The court first concluded that the
Fourth Amendment generally requires a suspicion of illegality to
support a detention and held that the same requirement applies here
(id. at 30a-32a).  The court recognized that 8 U.S.C. 1357(a)(1)
expressly authorizes INS agents "to interrogate any alien or person
believed to be an alien as to his right to be or to remain in the
United States," but it construed that provision not as a grant of
authority but as a "statutory limitation upon the conduct of INS
agents" with respect to their right to engage in non-detentive
questioning of an individual (App. A, infra, 24a).  Thus, the court
held that Section 1357(a)(1) imposes a restriction under which INS
agents may pose questions only to persons whom they reasonably suspect
of being aliens and, moreover, that any questioning that constitutes a
seizure under the Fourth Amendment may be conducted only when an agent
reasonably suspects that the individual being questioned is an alien
illegally present in this country.  A different rule, the court
concluded, "would grant the INS permissible discretion to detain and
question at whim" (App. A, infra, 32a).

   The court of appeals further held that any detentive questioning of
an alien had to be based on an individualized suspicion of illegal
alienage (App. A, infra, 32a-39a).  The court acknowledged that this
Court in United States v. Martinez-Fuerte, supra, had recognized that
a seizure within the meaning of the Fourth Amendment could be effected
in some circumstances in the absence of an individualized suspicion of
illegality, but the court distinguished Martinez-Fuerte on the ground
that it entailed a lesser intrusion than the factory surveys involved
here (id. at 32a-35a).  Thus, the court held that reasonable suspicion
or even probable cause to believe that numerous illegal aliens were
working in the factories was insufficient to justify the seizure of
any individual alien;  in this connection, the court explicitly
rejected the Third Circuit's contrary holding in Babula v. INS, 665
F.2d 293 (1981) (App. A, infra, 35a-39a).  Applying these principles
to the instant case, the court held that the surveys violated the
Fourth Amendment because the entire work force was seized and the INS
agents did not have an individualized suspicion that each employee was
an illegal alien (id. at 39a-42a).

                   REASONS FOR GRANTING THE PETITION

   The court of appeals' decision, if allowed to stand, will have
far-reaching practical and legal consequences.  First, it will have a
direct and significant adverse effect on the ability of the INS to
enforce the immigration laws.  Beyond that, the decision below
incorrectly resolves important Fourth Amendment questions that have
broad significance outside the particular context of this case.

   From a practical standpoint, the court of appeals' decision almost
completely destroys the utility of an important and effective tool in
apprehending aliens who are illegally present in this country.
Because of the concentration of illegal aliens at certain places of
employment and the INS's limited manpower, a survey of employees at a
factory at which the INS has reason to believe numerous illegal aliens
are employed is one of the INS's most effective enforcement
techniques.  See Affidavit of Philip Smith, Exhibit B, supra, at 1.
In 1977, the year in which the surveys at issue here took place, more
than 20,000 illegal aliens were identified and arrested in the course
of factory surveys in the Los Angeles area alone.  11/15/79
Declaration of Philip Smith, at 2.

   The decision below severely undercuts the effectiveness of such
surveys.  It quite plainly bars under any circumstances the stationing
of agents at exits to prevent illegal aliens from fleeing during a
factory survey.  Under the reasoning of the court of appeals, even if
INS agents have probable cause to believe that 99 out of 100 persons
present in a factory are illegal aliens, agents cannot be stationed at
the exits because that would constitute an illegal seizure of the one
person inside who is not an illegal alien.  /8/ Clearly, the
effectiveness of factory surveys will be greatly diminished, if not
totally destroyed, if the INS is not permitted to station agents at
the doors of a factory to prevent escape while the survey is being
conducted.  Indeed, the court of appeals itself recognized that its
decision barring the stationing of agents at the exits would reduce
substantially the number of illegal aliens apprehended and hence
hinder INS enforcement efforts (App. A, infra, 16a, 42a).  Moreover,
to the extent the INS is able to continue with such surveys at all in
light of the court's opinion, the disorder and danger involved in
conducting the surveys will be greatly increased because illegal
aliens will be encouraged to flee by the absence of anyone guarding
the exits.

   From a legal standpoint, the potential precedential impact of the
decision below on Fourth Amendment law is even greater.  In the
specific immigration context, the court of appeals' decision calls
into question the constitutionality of a federal statute, and it
expressly creates a conflict with a decision of another court of
appeals with respect to the legality of established INS practices.
More broadly, the decision casts doubt on the validity of longstanding
police practices directed at apprehending criminals who have been able
to mingle temporarily with innocent persons.  The significant impact
on Fourth Amendment law of the erroneous rulings of the court of
appeals creates a compelling need for review by this Court.

   1. The court of appeals seriously erred in holding that the
stationing of agents at exits during a factory survey constitutes an
illegal seizure of the entire workforce.  The court purportedly
applied the test set forth by Justice Stewart in United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (footnote omitted), that "a
person has been 'seized' within the meaning of the Fourth Amendment
only if, in view of all of the circumstances surrounding the incident,
a reasonable person would have believed that he was not free to
leave." See App. A, infra, 12a-13a, 19a-20a;  see also Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968).  However, it simply ignores the realities
of the situation to hold that every worker in a factory is "seized"
under this test as soon as INS agents commence a factory survey by
taking up positions at the exits and before any questioning at all has
occurred.

   Preliminarily, we note that it is only in a theoretical sense that
the work force here, or in any typical factory survey, can be
characterized as having a "freedom to leave" that is restrained by the
appearance of the INS.  The factory surveys in this case were
conducted during morning working hours (see Delgado Dep. 66;  Correa
Dep. 59;  Labonte Dep. 17).  At that time the employees surely were
obligated to be present at their work stations performing their
employment duties;  quite apart from the appearance of the INS agents,
the employees were not "free to leave" the factory in any real sense.
Given the undisputed finding (see App. A, infra, 19a) that during the
survey employees were free to walk through or exit the factory in the
course of performing their duties, the court of appeals' opinion does
not explain how the INS agents here restrained the "freedom to leave"
of members of the work force in any meaningful sense.

   More fundamentally, there is no basis for finding that employees
who were not illegal aliens would have felt their freedom restrained
by the stationing of agents at the exits.  The purpose of the survey
was manifest and was announced by the INS agents, namely, to apprehend
illegal aliens.  Hence, as respondent Correa candidly testified
(Correa Dep. 76), a citizen or alien legally present in this country
knew immediately that he or she personally had nothing to fear from
the INS;  such individuals could not reasonably have felt threatened
or restrained by the survey.  They reasonably should have understood
that the INS agents at the exits were positioned to stop only illegal
aliens from leaving, not to curtail the movements of others.  Thus,
contrary to the court of appeals' suggestion (App. A, infra, 11a), a
citizen or legal alien should not have felt coerced if he saw workers
arrested who were trying to flee.

   Furthermore, even accepting the court of appeals' view that the
stationing of agents at the exits is in some technical sense a seizure
of the entire work force, including those employees who are not
illegal aliens, the court of appeals nevertheless erred in finding
that such precautionary action violates the Fourth Amendment.  This
Court has recognized that a limited intrusion that rises to the level
of a Fourth Amendment "seizure" may in some circumstances be effected
in the absence of an individualized basis for suspicion.  United
States v. Martinez-Fuerte, 428 U.S. 543 (1976).  There, the Court
sanctioned the operation of a fixed checkpoint on a California highway
that required all vehicles to come to a virtual halt as they passed
by, even though the Court assumed that each car was thereby "seized"
within the meaning of the Fourth Amendment.  See id. at 546 n.1, 556.
Moreover, the Court held that the Constitution permitted the selective
referral of some vehicles to a secondary checkpoint for three to five
minutes of questioning without an articulable basis for suspecting
that the vehicle contained illegal aliens.  Id. at 563-564.  Just as
in Martinez-Fuerte, the law enforcement interests that make it
reasonable to station agents at factory exits during a survey outweigh
the minimal intrusion occasioned thereby, and hence any theoretical
seizure of the entire work force does not violate the Fourth
Amendment.

   The court of appeals' effort to distinguish Martinez-Fuerte on the
ground that it involves a lesser intrusion than a factory survey (App.
A, infra, 32a-35a) cannot withstand analysis.  To be sure, employees
at a factory do not know in advance when their workplace is going to
be surveyed, while a traveler familiar with the highway in
Martinez-Fuerte would not have been surprised to come upon the
checkpoint (although he could not have anticipated being selected for
secondary referral).  In the most significant respects, however, the
alleged seizure involved in the factory survey is substantially less
intrusive than the checkpoint stop in Martinez-Fuerte.  First, the
alleged seizure in connection with the factory survey is only
theoretical;  the workers are free to go about their business and, as
a practical matter, they engage in the same activity that they would
if the INS did not appear.  By contrast, the traveler stopped at a
checkpoint is truly "stopped" and is diverted completely for three to
five minutes from what he would otherwise have been doing.  /9/
Furthermore, it is difficult to see how the factory survey could
engender any anxiety in an individual who is legally in this country;
because he is immediately aware that the purpose of the survey is to
apprehend illegal aliens, he knows that he is not subject to arrest
and at worst will be asked only to answer a question about his
citizenship status or show proper documentation to the agents.  At a
checkpoint, however, an individual singled out for selective referral
will be considerably more anxious because he will often not be aware
of the reason he has been singled out, and hence the seizure is
significantly more intrusive for him.

   The error of the court of appeals' analysis is manifested by the
broad and unacceptable implications of its holding.  According to the
decision below, if one or more criminal fugitives were to flee into a
building that also contained innocent persons, the police would not be
permitted to guard the exits of the building and briefly check
everyone who exited because that would constitute an illegal seizure
of the innocent occupants.  Indeed, under the court of appeals'
decision, it is difficult to discern the constitutional basis for a
roadblock to catch a fleeing criminal or to check for safety
violations, since innocent persons would surely be stopped.  But see
Delaware v. Prouse, 440 U.S. 648, 663 (1979);  United States v.
Martinez-Fuerte, supra, 428 U.S. at 560 n.14.  This extraordinary
expansion of the Fourth Amendment by the court of appeals merits this
Court's review.

   2. a. Following up its conclusion that the entire work force is
seized when INS agents station themselves at the exits during a
factory survey, the court of appeals issued two other important Fourth
Amendment rulings that warrant review by this Court.  First, the court
answered in the negative the question reserved by this Court in United
States v. Brignoni-Ponce, 422 U.S. 873, 884 n.9 (1975) -- whether an
INS agent may stop an individual reasonably believed to be an alien
when there is no specific reason to believe that he is illegally in
this country.  As the court of appeals noted (App. A, infra, 23a), the
lower courts have struggled with this issue and have reached somewhat
divergent results.  Compare Lee v. INS, 590 F.2d 497 (3d Cir. 1979),
with Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir.), cert. denied, 404
U.S. 864 (1971).  Clarification of this area of the law by this Court
would facilitate the consistent adjudication of immigration cases in
the lower courts.

   Moreover, the court of appeals' ruling casts serious doubt on the
validity of a federal statute, 8 U.S.C. 1357(a)(1), which provides
that INS agents are empowered without warrant "to interrogate any
alien or person believed to be an alien as to his right to be or
remain in the United States * * *." By its terms, the statute plainly
does not require any suspicion of illegality as a prerequisite to such
interrogation.  Although the court of appeals was of the view that the
Constitution does not permit any seizure of a person on the basis of
alienage alone without a suspicion of illegality (see App. A, infra,
31a-32a), the court did not expressly find Section 1357(a)(1)
unconstitutional.  Rather, it interpreted the statute as referring
only to questioning that does not involve a seizure under the Fourth
Amendment (App. A, infra, 24a).  /10/ Because nothing in the
Constitution prevents a law enforcement officer from addressing
questions to anyone on the street so long as no seizure occurs (see,
e.g., Terry v. Ohio, supra, 392 U.S. at 34 (White, J., concurring)),
the court of appeals reached the surprising conclusion that Section
1357(a)(1), under its interpretation, was a "statutory limitation" on
INS authority (App. A, infra, 24a).

   As a matter of statutory construction, this reading of Section
1357(a)(1) is, to put it mildly, difficult to justify.  The use of the
term "interrogate" hardly connotes an intent to limit the reach of the
statute to non-detentive questioning.  And it is incomprehensible why
Congress should have wished to impose such a special limitation on INS
authority when it was seeking to improve enforcement of the Nation's
immigration laws.  Thus, both this Court and the lower courts
generally have understood Section 1357(a)(1) to cover questioning that
constitutes a "seizure" within the meaning of the Fourth Amendment.
See, e.g., United States v. Brignoni-Ponce, supra;  Lee v. INS, supra,
590 F.2d at 500;  United States v. Martinez, 507 F.2d 58, 61 (10th
Cir. 1974).  Therefore, the soundest reading of the decision below is
that the court interpreted Section 1357(a)(1) in this fashion in order
to save its constitutionality, reasoning that the common sense
interpretation of the statute would violate the Fourth Amendment (see
App. A, infra, 31a-32a).  See also Illinois Migrant Council v.
Pilliod, 548 F.2d 715 (7th Cir. 1977) (en banc);  Au Yi Lau v. INS,
445 F.2d 217, 223 (D.C. Cir.), cert. denied, 404 U.S. 864 (1971).
This suggestion of the unconstitutionality of a federal statute
warrants review by this Court.  Cf. 28 U.S.C. 1252.  /11/

   We submit that the court's conclusion of unconstitutionality is
flawed.  The primary basis for the holding is the view that the Fourth
Amendment absolutely prohibits effecting a seizure in the absence of a
reasonable suspicion of illegality (see App. A, infra, 22a-31a).  But
this analysis ignores this Court's admonition that "the Fourth
Amendment imposes no irreducible requirement of (individualized)
suspicion." Martinez-Fuerte, supra, 428 U.S. at 561.  In the
immigration context, it is "reasonable" under the Fourth Amendment for
a stop to be based on alienage, even in the absence of a suspicion of
illegal alienage.  By statute, Congress has conditioned each alien's
privilege of residing or working in the United States on fulfillment
of the obligation to carry at all times a registration card evidencing
his right to be here.  8 U.S.C. 1304(e).  Aliens who choose to work or
reside here accept that obligation and, by the same token, the
obligation to produce proper documentation when requested to do so by
INS officials pursuant to 8 U.S.C. 1357(a)(1).  See Brignoni-Ponce,
supra, 422 U.S. at 884.  If they were free to refuse such a request,
the requirement to carry identification would be rendered virtually
meaningless.  Thus, it is reasonable under the Fourth Amendment for an
INS agent briefly to detain an individual reasonably suspected of
being an alien so long as the detention is limited to inquiring as to
the alien's right to be present in the United States.  /12/

   b. Finally, the court of appeals held that the required suspicion
of illegality must be individualized, i.e., the INS agents' reasonable
suspicion (or even probable cause to believe) that numerous factory
employees were illegal aliens did not justify the seizure of any
particular employee.  This holding creates a new Fourth Amendment
requirement that will make it quite difficult for the INS to act on
reliable information concerning concentrations of illegal aliens.  The
Fourth Amendment simply does not contain any such requirement of
individualized suspicion.  Obviously, in order to detain a single
individual, a law enforcement officer must have reason to believe that
that individual is engaged in illegal activity;  but there is no
reason why the basis for suspicion must be "individualized." Thus, for
example, if an officer knows that seven out of ten persons are illegal
aliens, the knowledge that three of the persons will turn out to be
innocent does not alter the fact that, in the absence of any
additional information dispelling the suspicion with respect to a
particular individual, the officer has a reasonable suspicion of
illegal alienage with respect to each person sufficient to justify an
initial detention for purposes of inquiry.  /13/

   This principle has been recognized by this Court.  The clearest
example is in the context of administrative searches, where the Court
has expressly stated that a warrant for an "area inspection" need not
be based on specific information about any particular building.
Camara v. Municipal Court, 387 U.S. 523, 538 (1967);  see also United
States v. Biswell, 406 U.S. 311 (1972).  In the immigration context,
the right to stop a car at a fixed checkpoint does not rest on any
individualized basis for suspicion of a particular car (see Martinez
Fuerte, supra, 428 U.S. at 560-563);  by the same token, the Court has
not suggested that the INS may conduct a roving patrol stop only where
it has reason to suspect that every occupant of a car is an illegal
alien or engaged in criminal activity (see United States v.
Brignoni-Ponce, supra).  See also Almeida-Sanchez v. United States,
supra, 413 U.S. at 283-285 (Powell, J., concurring).

   The court of appeals explicitly recognized (App. A, infra, 35a-39a)
that its holding on this point placed it in conflict with the Third
Circuit's decision in Babula v. INS, 665 F.2d 293 (1981).  In that
case, the court upheld a factory survey similar to the ones involved
here.  The court rejected the contention that the employees of the
factory could not be "seized" for questioning concerning their
citizenship status in the absence of an individualized basis for
suspicion (id. at 296-297), holding that the suspicions based "on the
milieu in which the workers were found" (id. at 296) provided an
adequate basis for the detentions.  The decision below is also
fundamentally inconsistent with Blackie's House of Beef, Inc. v.
Castillo, 659 F.2d 1211 (D.C. Cir. 1981), cert. denied, 455 U.S. 940
(1982).  In Blackie's, the court upheld the issuance of an
administrative search warrant for a restaurant based on probable cause
to believe that illegal aliens worked there, although the warrant did
not particularly describe or name the illegal aliens sought.  While
the court was not presented with the precise question of the validity
of a seizure without individualized suspicion, its opinion makes clear
that it understood the INS to be empowered to question employees who
appeared to be aliens on the basis of the same generalized suspicion
that supported the warrant.  659 F.2d at 1225-1226.  The need to
resolve this conflict in the circuits also militates in favor of
review by this Court of the decision below.

   In sum, both the practical impact of the decision below as a whole
and the erroneous resolution by the court of appeals of the discrete
Fourth Amendment issues addressed warrant review by this Court.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   ALAN I. HOROWITZ

      Assistant to the Solicitor General

   PATTY MERKAMP STEMLER

      Attorney

   JANUARY 1983

   /1/ The affidavit submitted in support of the January warrant
stated that INS investigator Gail Richard Kee had conducted
surveillance outside the Davis Pleating factory and had stopped three
illegal aliens entering the factory.  Each of the three women, who
were named in the affidavit, informed Investigator Kee that Davis
Pleating employed many illegal aliens of Latin extraction.

   The September warrant was issued on information volunteered by
Rachel Mata, an employee at Davis Pleating who was displeased with the
company's hiring of illegal aliens.  Mata reported to the INS that two
illegal aliens deported following the January survey had returned to
the United States and resumed their positions at Davis Pleating.  She
further stated that many other employees boasted that they had no
immigration documents.  She also reported that Davis Pleating had
recently hired about one hundred employees and that most of them
appeared to be illegal aliens.  Information was also supplied to the
INS by an illegal alien who worked at Davis Pleating.  She maintained
that four of her coworkers were also illegal aliens.

   /2/ As the record demonstrates (see Delgado Dep. 84-85;  Labonte
Dep. 34-36), the agents at the exits do not prevent employees from
exiting the factory.  They are stationed at the exits so that they can
observe persons who exit or attempt to exit, question as to their
citizenship status those persons they believe to be aliens, and arrest
those persons whom they have probable cause to believe are aliens
illegally in the United States.

   /3/ The court of appeals stated (App. A, infra, 4a) that INS agents
are instructed to question each worker as to his citizenship status,
but the record demonstrates that this statement is erroneous.  As a
matter of policy, the INS instructs its agents to question only those
persons whom they reasonably suspect of being aliens.  See Immigration
and Naturalization Service, U.S. Dep't of Justice, Pub. No. M-69, The
Law of Search and Seizure for Immigration Officers (Rev. June 1979),
excerpted as Exhibit H to Memorandum in Support of Defendent's Motion
for Summary Judgment, filed 1/18/80.  The record, including the
depositions of the respondents, confirms that the agents did not
question all employees.  11/15/79 Declaration of Philip Smith, at 2;
Delgado Dep. 52;  Correa Dep. 54-56, 66.  In addition, the agents may
inquire of employees who are not suspected of being aliens as to
whether they know of other employees who are illegal aliens or who
have concealed themselves from the agents.  Affidavit of Philip Smith,
Exhibit B, supra, at 4.  INS agents are also instructed not to detain
individuals except on a reasonable suspicion that they are illegally
present in this country.  See M-69, supra.

   /4/ For example, the employee might be present in the United States
as a permanent resident alien or here on a temporary basis with a
valid work permit.

   /5/ The complaint also asserted that the surveys violate the equal
protection component of the Fifth Amendment, but the courts below did
not reach this issue.  See App. A, infra, 7a n.7.

   /6/ The court upheld the district court's denial of class
certification (App. A, infra, 43a n.24).  It did not reach the
question whether the district court correctly dismissed the ILGWU as a
party (ibid.), and it did not address the validity of the search
warrants (id. at 9a).

   /7/ In this connection, the court rejected respondents' contention
that, under Dunaway v. New York, 442 U.S. 200 (1979), the manner in
which the factory surveys were conducted constituted an arrest of the
work force requiring probable cause (App. A, infra, 11a-12a).  To the
contrary, the court specifically found that no one was arrested "until
the investigators had sufficient probable cause to suspect that those
in custody were in this country without proper documentation" (id. at
12a).

   /8/ Significantly, two of the three factory surveys underlying the
present litigation were supported by a warrant based upon probable
cause to believe that a number of the employees at the factory named
in the warrant were illegal aliens.

   /9/ The court of appeals sought to distinguish Martinez-Fuerte on
the ground that it involved a detention of much shorter duration than
that involved here (see App. A, infra, 34a).  But the court's holding
that each individual member of the work force is seized for one and
one-half hours during a factory survey is manifestly erroneous.  While
the entire survey, during which the employees are free to continue to
go about their work, may last that long, it is clear that, to the
extent there is any detention at all, the maximum that any individual
who wishes to leave is detained is the very short time needed for him
to answer an agent's question regarding his citizenship status, after
which he clearly is free to leave.

   /10/ The court did not explain what sort of questioning it had in
mind.  Because of its holding here that the entire work force was
seized before any questioning occurred, the court did not consider
whether the questioning reflected in the record in and of itself
necessarily involved a seizure.  Given its expansive view of the kind
of INS conduct that gives rise to a seizure (see App. A, infra, 18a),
however, it seems clear that the class of questioning that the court
would recognize as non-detentive is small indeed (see id. at 40a
n.23).

   /11/ In Almeida-Sanchez v. United States, 413 U.S. 266 (1973), this
Court limited on constitutional grounds the authority to search
granted by Section 1357.  That decision in no way affected, however,
the INS's authority to interrogate conferred by Section 1357(a)(1).

   /12/ As noted above (note 2, supra), as a policy matter the INS has
instructed its agents not to detain individuals for questioning except
on a reasonable suspicion of illegal alienage.  This policy reflects a
recognition of the INS's manpower limitations and an attempt to
formulate a uniform nationwide policy that comports with the Seventh
Circuit's decision in Illinois Migrant Council v. Pilliod, supra.
Contrary to the court of appeals' assertion (App. A, infra, 20a n.12),
the policy does not constitute a "concession" that brief questioning
of an alien amounting to a seizure within the meaning of the Fourth
Amendment is prohibited in the absence of a suspicion of illegality.
Cf. United States v. Caceres, 440 U.S. 741 (1979).

   /13/ Of course, the reasonable suspicion standard recognizes that
in some cases further inquiry will dispel the suspicion.  Thus, as
long as it is supported by reasonable suspicion at the time, a
detention is consistent with the Fourth Amendment even though the
suspicion later turns out to have been unfounded.

   Appendix Omitted