Catholic Soc Serv. v. Immigration & Naturalization Serv.

• Decision Date: 21 November 2000
• Docket Number: AFL-CIO,No. 98-16269,DELGADILLO-URIBE,No. 98-16423,QUTB-E-ALAM,98-16269,98-16423
• Citation: 232 F.3d 1139
• Parties: (9th Cir. 2000) CATHOLIC SOCIAL SERVICES, INC.; AMERICAN FEDERATION OF LABOR -CONGRESS OF INDUSTRIAL ORGANIZATIONS; UNITED FARM WORKERS OF AMERICA,; MIGUEL GALVEZ MORAN; IMMIGRATION PROGRAM; ESAUL; GUSTAVO RODRIGUEZ; ANIL K. URMIL; ISMAEL DE LA CRUZ; ELMA BARBOSA;KAHN; MOHAMMED HAQ; JESUS REYNA REYNA, Plaintiffs-Appellees, v. IMMIGRATION AND NATURALIZATION SERVICE; JANET RENO, Attorney General; DORIS MEISSNER, Commissioner of Immigration and Naturalization Service, Defendants-Appellants. CATHOLIC SOCIAL SERVICES, INC.; UNITED FARM WORKERS OF AMERICA,; ESAUL; GUSTAVO RODRIGUEZ; ANIL K. URMIL; ISMAEL DE LA CRUZ; MIGUEL GALVEZ MORAN; ELMA BARBOSA; JESUS REYNA REYNA;KAHN; MOHAMMED HAQ, Plaintiffs-Appellants, v. JANET RENO, Attorney General; DORIS MEISSNER, Commissioner of Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1139

232 F.3d 1139 (9th Cir. 2000) CATHOLIC SOCIAL SERVICES, INC.; AMERICAN FEDERATION OF LABOR -CONGRESS OF INDUSTRIAL ORGANIZATIONS; UNITED FARM WORKERS OF AMERICA, AFL-CIO; MIGUEL GALVEZ MORAN; IMMIGRATION PROGRAM; ESAUL DELGADILLO-URIBE; GUSTAVO RODRIGUEZ; ANIL K. URMIL; ISMAEL DE LA CRUZ; ELMA BARBOSA; QUTB-E-ALAM KAHN; MOHAMMED HAQ; JESUS REYNA REYNA, Plaintiffs-Appellees,
v.
IMMIGRATION AND NATURALIZATION SERVICE; JANET RENO, Attorney General; DORIS MEISSNER, Commissioner of Immigration and Naturalization Service, Defendants-Appellants. CATHOLIC SOCIAL SERVICES, INC.; UNITED FARM WORKERS OF AMERICA, AFL-CIO; ESAUL DELGADILLO-URIBE; GUSTAVO RODRIGUEZ; ANIL K. URMIL; ISMAEL DE LA CRUZ; MIGUEL GALVEZ MORAN; ELMA BARBOSA; JESUS REYNA REYNA; QUTB-E-ALAM KAHN; MOHAMMED HAQ, Plaintiffs-Appellants,
v.
JANET RENO, Attorney General; DORIS MEISSNER, Commissioner of Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE, Defendants-Appellees. No. 98-16269 No. 98-16423 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 20, 2000
Filed November 21, 2000

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Copyrighted Material Omitted

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Robert M. Bombaugh, M. Jocelyn Wright, Keisha Dawn Bell, Department of Justice, Washington, D.C., for the defendants appellants-cross-appellees.

Peter A. Schey, Carlos Holguin, Center for Human Rights and Constitutional Law, Los Angeles, California, for the plaintiffs-appellees-cross-appellants.

Robert B. Jobe, San Francisco, California, for amicus American Immigration Lawyers Association.

Erwin Chemerinsky, University of Southern California, LosAngeles, California, amicus.

Marc Van Der Haut, San Francisco, California, for amicus National Immigration Project, et al.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding. DC. No.CV 98-00629-LKK/JFM D.C. No.CV 98-00629-LKK/ JFM

Before: Procter Hug, Jr., Chief Judge, James R. Browning, Stephen Reinhardt, Alex Kozinski, Stephen S. Trott, Ferdinand F. Fernandez, Thomas G. Nelson, Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber and William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher;

Dissent by Judge Kozinski;

Dissent by Judge Fernandez;

Partial Concurrence and Partial Dissent by Judge Graber

W. FLETCHER, Circuit Judge:

Plaintiffs bring a class action challenging the advance parole policy of the Immigration and Naturalization Service ("INS") as inconsistent with the Immigration Reform and Control Act of 1986 ("IRCA"), and challengingS 377 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") as inconsistent with the equal protection component of the Due Process Clause of the Fifth Amendment. We must decide whether, under American Pipe Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), the statute of limitations was tolled during the pendency of an earlier class action, and whether plaintiffs may bring a class action in this case. If we decide that this suit may go forward as a class action, we must further decide whether the district court acted appropriately in granting in part, and denying in part, preliminary injunctive relief to plaintiffs.

For the reasons that follow, we hold that the statute of limitations was tolled and that this case may proceed as a class action. We further hold that the district court acted within its discretion in granting a preliminary injunction protecting members of the class challenging the INS' advance parole policy as inconsistent with IRCA. Finally, we hold that the district court erred in concluding that the earlier class action prevented it from granting preliminary injunctive relief to members of the class challenging S 377 of IIRIRA as inconsistent with equal protection. We therefore affirm in part and reverse in part the decision of the district court, and we remand to the district court for further proceedings.

I

This litigation has a long and unhappy history. In passing IRCA in 1986, Congress created a one-time legalization program for illegal aliens who had resided in this country continuously and unlawfully since 1982. See Pub. L. 99-603, 100 Stat. 3359, codified at 8 U.S.C. S 1255a. The House Report accompanying IRCA stated, "The Committee intends that thelegalization program should be implemented in a

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liberal and generous fashion. . . . Such implementation is necessary to insure the true resolution of the program and to insure that the program will be a one-time-only program." H.R. Rep. No. 682(I) at 72, reprinted in 1986 U.S.C.C.A.N. at 5676. IRCA provided for a twelve-month period during which eligible aliens could file legalization applications with the INS. The Attorney General subsequently established this period as the twelve months between May 5, 1987 and May 5, 1988. See 8 C.F.R. S 245a.2(a)(1).

To be eligible for legalization under IRCA, illegal aliens must have resided in the United States since January 1, 1982, and must have been continuously physically present in the United States except for "brief, casual, and innocent absences," since November 6, 1986. The relevant text provides:

Continuous physical presence since November 6, 1986

(A) In general

The alien must establish that the alien has been continuously physically present in the United States since November 6, 1986.

(B) Treatment of brief, casual, and innocent absences

An alien shall not be considered to have failed to maintain continuous physical presence in the United States for purposes of subparagraph (A) by virtue of brief, casual, and innocent absences from the United States.

8 U.S.C. S 1255a(a)(3). In November 1986, the INS sent a telex to all of its offices interpreting the phrase "brief, casual, and innocent absences." The telex specified that an alien who, after November 6, 1986, made any departure and subsequent reentry without prior authorization from the INS would be ineligible for legalization, no matter how brief, casual, or otherwise innocent the absence. The INS immediately began enforcing its interpretation of "brief, casual, and innocent" against aliens who had not obtained "advance parole" from the INS. The telex's interpretation of "brief, casual, and innocent" was later formalized in an INS regulation:

Brief, casual, and innocent means a departure authorized by the Service (advance parole) subse quent to May 1, 1987 of not more than thirty days for legitimate emergency or humanitarian purposes unless a further period of authorized departure has been granted in the discretion of the district director or a departure was beyond the alien's control.

8 C.F.R. S 245a.1(g) (emphasis in original).

In November 1986, a group of aliens alleging that they were otherwise eligible for naturalization under IRCA filed a class action in federal district court challenging the INS' advance parole policy as inconsistent with IRCA. Catholic Social Services, Inc. v. Meese ("CSS I"), 685 F. Supp. 1149 (E.D. Cal. 1988). The district court certified a class pursuant to Federal Rule of Civil Procedure 23 consisting of "all persons prima facie eligible for legalization under[IRCA] who departed and reentered the United States without INS authorization (i.e., `advance parole') after the enactment of IRCA following what they assert to have been a brief, casual and innocent absence from the United States." The district court held that the INS' interpretation of IRCA was "inconsistent with the statutory scheme" and issued remedial orders requiring, among other things, that the INS extend the end of the twelve-month application period under IRCA from May 1988 to November 1988. The government did not appeal the merits of the district court's holding that the INS' interpretation of "brief, casual, and innocent" was inconsistent with IRCA, but it did appeal the remedial orders entered by the district court. We affirmed the district court in consolidated appeals in Catholic Social Services, Inc. v. Thornburgh ("CSS II"), 956 F.2d 914 (9th Cir. 1992).

On review of our decision, the Supreme Court held that the record did not establish that plaintiffs' suit was ripe. See Reno v. Catholic Social Services, Inc. ("CSS

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III"), 509 U.S. 43 (1993). The Court remanded for further development of the record. In its opinion, the Court described its understanding, based on the incomplete record, of the means by which the INS implemented the advance parole policy. According to the Court's description, when an applicant for legalization under IRCA went into an INS office, he or she would first encounter a Legalization Assistant to whom the INS had given pre-filing authority over applicants. If the Legalization Assistant determined that the applicant was ineligible for legalization under IRCA because of failure to obtain advance parole from the INS for a "brief, casual, and innocent" absence, the Assistant would tell the applicant that he or she was ineligible to file an application. Because this pre-filing rejection of applicants took place at the front desk of an INS office, the process of pre-filing screening and rejection had come to be known by the informal term "front-desking."

Because the Court could not determine from the record whether the named plaintiffs could allege that they had been turned away at the front desk, it vacated our judgment with directions to remand to the district court for "proceedings to determine which class members were front-desked. " Id. at 66-67. It stated that "a class member's claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the regulation to him." Id. at 59. The Court expressed skepticism about the ripeness of claims by those who had not been turned away at the front desk: "Although we think it unlikely, we cannot rule out the possibility that further facts would allow class members who...