Fernandes v. McElroy, 243

Citation138 F.3d 27
Decision Date17 February 1998
Docket NumberNo. 243,D,243
PartiesXavier FERNANDES, Petitioner-Appellee, v. Edward McELROY, Acting District Director, Immigration & Naturalization Service, New York Office; Immigration And Naturalization Service, Respondents-Appellants. ocket 96-2414.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Diogenes P. Kekatos, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty. for S.D. of New York, James A. O'Brien III, Special Asst. U.S. Atty., Steven M. Haber, Asst. U.S. Atty., on brief), for Respondents-Appellants.

Charles Grutman, New York City, for Petitioner-Appellee.

Before: MESKILL and JACOBS, Circuit Judges, and KORMAN, * District Judge.

JACOBS, Circuit Judge:

The Immigration and Naturalization Service ("INS") appeals from a judgment of the United States District Court for the Southern District of New York (Preska, J.) granting Xavier Fernandes' petition for a writ of habeas corpus and vacating exclusion and deportation orders that the INS had entered against him. After the notice of appeal was filed, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996) ("IIRIRA"). Section 377 of IIRIRA retroactively amended § 245A(f)(4) of the Immigration Reform and Control Act of 1986 ("IRCA"), a provision which governs judicial review of applications for legalization under § 245A of IRCA. The amendment terminated the jurisdiction of the federal courts over any claim or cause of action by a person "asserting an interest" under § 245A of IRCA, unless that person comes within either of two exceptions. Although Fernandes is "asserting an interest" under IRCA, it is unclear whether Fernandes is within one of the exceptions. We therefore vacate and remand, without consideration of the merits, so that the district court may determine whether, after IIRIRA, it has jurisdiction to hear Fernandes' petition.

BACKGROUND

In May 1992, Xavier Fernandes, a citizen of India then residing in the United States, traveled to India for the stated purpose of caring for his ailing brother. Fernandes returned to the United States approximately two months later. Upon his arrival at JFK International Airport in New York, Fernandes failed to produce any valid documentation showing that he was entitled to enter the country; instead he proffered an expired employment authorization card. Thereupon, Fernandes was detained by immigration officials and was placed in exclusion proceedings.

At the hearing, the Immigration Judge found that Fernandes had been properly placed in exclusion proceedings because (1) although Fernandes was an applicant for legalization under IRCA, he had failed to secure advance parole from the INS before leaving the country as was required by INS regulations, see 8 C.F.R. § 245a.2(m)(1) (1997), and (2) Fernandes had neither an immigrant visa or nonimmigrant visa in his possession upon his return to the United States. Once placed in exclusion proceedings, the burden was upon Fernandes to prove that he was not subject to exclusion under the Immigration and Nationality Act. See Immigration and Nationality Act § 291, 8 U.S.C § 1361 (1994). The Immigration Judge found that Fernandes failed to meet this burden. At the hearing, Fernandes' lawyer had addressed Fernandes' status as an applicant for legalization under IRCA and the reason for his trip to India, but the Immigration Judge refused to consider those arguments on the ground that they were within the exclusive jurisdiction of the Legalization Unit of the INS. Accordingly, the Immigration Judge found that Fernandes was excludable, and ordered that he be deported. See 8 U.S.C. § 1182(a) (1994). The Fernandes then petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus. Judge Preska granted the petition after concluding, inter alia, that (1) the INS' advance parole requirement was invalid as applied to Fernandes; (2) that Fernandes' trip to India was "brief, casual, and innocent" within the meaning of 8 U.S.C. § 1255a(a)(3)(B); and (3) that Fernandes was therefore entitled to re-enter the United States without complying with the documentation requirements of 8 U.S.C. § 1182(a)(7)(A)(i). See Fernandes v. McElroy, 920 F.Supp. 428, 448 (S.D.N.Y.1996). The exclusion and deportation orders were vacated and Fernandes was ordered restored to his status as an applicant for legalization under IRCA. Id. at 449.

Board of Immigration Appeals subsequently dismissed Fernandes' appeal.

After the Government filed its notice of appeal, Congress enacted IIRIRA. Section 377(a) of IIRIRA terminates the federal courts' subject matter jurisdiction over legalization-related claims arising under IRCA unless the claimant either (i) had filed an application for legalization under IRCA by May 4, 1988 (something Fernandes did not do); or (ii) had attempted to file a complete application and fee that a legalization officer had refused to accept (something Fernandes may or may not have done). See 8 U.S.C. § 1255a(f)(4)(C) (West Supp.1997). In addition, Congress declared that the new provision was to be effective "as if included in" the enactment of IRCA in 1986. IIRIRA, § 377(b), 110 Stat. at 3009-649.

DISCUSSION
A. IRCA's Legalization Program and Subsequent Litigation.

The alien legalization program established by IRCA in 1986, and the subsequent litigation challenging the INS regulations implementing that program, form the necessary context for the jurisdiction-limiting provision of IIRIRA. IRCA offered amnesty to illegal aliens who had been continuously residing unlawfully in the United States since January 1, 1982. These aliens could apply for temporary resident status, and then, after a one-year wait, apply for permanent resident status. To be eligible for temporary resident status, it was necessary to show that the alien (i) had resided continuously in the United States in an unlawful status since January 1, 1982; (ii) had been continuously physically present in the United States since November 6, 1986 (the date of the enactment of IRCA); and (iii) would have been otherwise admissible as an immigrant. 8 U.S.C. § 1255a(a)(2)-(4) (1994). An alien seeking legalization under IRCA was also required to file an application with the INS between May 5, 1987 and May 4, 1988. See 8 U.S.C § 1255a(a)(1); 8 C.F.R. § 245a.2(a)(1) (1997).

Two large class actions arose out of the IRCA legalization program and the INS regulations issued to implement it. The first, Catholic Social Services, Inc. v. Meese, 685 F.Supp. 1149 (E.D.Cal.1988), aff'd sub. nom. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992), vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (hereinafter "CSS "), challenged the INS's interpretation of IRCA's requirement that applicants prove their "continuous physical presence" in the United States since November 6, 1986. In order to "mitigate this requirement," CSS, 509 U.S. at 47, 113 S.Ct. at 2490, Congress created an exception for "brief, casual, and innocent" absences, which would be deemed not to interrupt an alien's otherwise continuous physical presence. See 8 U.S.C. § 1255a(a)(3)(B) (1994). The INS construed this exception to mean that an absence would be deemed "brief, casual, and innocent" only if an alien had obtained permission from the INS before leaving the country. An alien who failed to obtain this "advance parole" from the INS would become ineligible for legalization. CSS, 509 U.S. at 47, 113 S.Ct. at 2490.

The plaintiffs in the CSS class action challenged the advance parole requirement, arguing that it was an impermissible interpretation of IRCA. The United States District Court for the Eastern District of California agreed, invalidated the advance parole requirement, see id., 685 F.Supp. at 1159-60, and required the INS to extend the deadline The second class action (of which Fernandes claims to be a member), concerns an INS regulation interpreting IRCA's "continuous unlawful residence" requirement. League of United Latin American Citizens v. INS, No. 87-4757, 1989 WL 252578 (C.D.Cal.1989), aff'd sub. nom. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992), vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (hereinafter "LULAC "). This requirement, like the "continuous physical presence" requirement challenged in the CSS class action, contained an exception for brief trips abroad. The INS regulation challenged by the LULAC plaintiffs provided that the continuous unlawful residence requirement would be defeated if an alien travelled abroad and then re-entered the United States by presenting documents that were "facially valid." The INS reasoned that the use of such documents rendered an alien's subsequent presence in the United States "lawful" for the purposes of § 245A of IRCA. CSS, 509 U.S. at 49-50, 113 S.Ct. at 2491-92. The United States District Court for the Central District of California held that the regulation was invalid, and subsequently extended the deadline for legalization applications for class members who had failed to apply because they had been ineligible for legalization under the invalidated regulation. Id. at 52, 113 S.Ct. at 2491.

for legalization applications for class members who knew of the advance parole regulation, but who concluded that they would be ineligible for legalization, and who therefore did not file a timely application. CSS, 509 U.S. at 48-49, 113 S.Ct. at 2491.

The INS appealed the district court decisions in CSS and LULAC, arguing (1) that the judicial review provisions of IRCA barred the district courts from exercising jurisdiction over the plaintiffs' claims; and (2) that the district courts erred in extending the application period beyond the 12-month period specified by Congress....

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