Naranjo-Aguilera v. U.S. I.N.S.

• Citation: 30 F.3d 1106
• Decision Date: 22 July 1994
• Docket Number: Nos. 92-16653,NARANJO-AGUILERA,92-16933,s. 92-16653
• Parties: Francisco; Candelario Orozco-Macias; Juventino Tafolla-Ramirez; Hector Orozco-Flores; Celestino Gaona, Plaintiffs-Appellees-Cross-Appellants, v. U.S. IMMIGRATION & NATURALIZATION SERVICE; William P. Barr, in his official capacity as Attorney General of the United States, Defendants-Appellants-Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1106

30 F.3d 1106

Francisco NARANJO-AGUILERA; Candelario Orozco-Macias;

Juventino Tafolla-Ramirez; Hector Orozco-Flores;

Celestino Gaona, Plaintiffs-Appellees-Cross-Appellants, v. U.S. IMMIGRATION & NATURALIZATION SERVICE; William P. Barr,

in his official capacity as Attorney General of

the United States,

Defendants-Appellants-Cross-Appellees.

Nos. 92-16653, 92-16933.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 1994.

Decided July 22, 1994.

Stephen A. Rosenbaum, California Rural Legal Assistance, San Francisco, CA, Bruce Goldstein, Farmworker Justice Fund, Inc., Washington, DC, Charles Wheeler and Karen Miksch, National Immigration Law Center, Inc., Los Angeles, CA, for plaintiffs-appellees-cross-appellants.

Donald E. Keener, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for defendants-appellants-cross-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before: FLETCHER and TROTT, Circuit Judges, and KING, ^* District Judge.

Opinion by Judge FLETCHER.

FLETCHER, Circuit Judge:

This is a class action challenge to Immigration and Naturalization Service (INS) interpretations of a provision of the Special Agricultural Workers legalization program created by the Immigration Reform and Control Act of 1986 (IRCA), as amended by the Immigration Nursing Relief Act of 1989 (INRA). The class members are immigrant agricultural workers who were denied lawful temporary resident status, or had such status terminated, because they had been convicted of one felony or three misdemeanors. They argue that the INS regulations and policies which mandated the denial or termination of their temporary resident status are unlawful interpretations of the one felony/three misdemeanor provision of IRCA, 8 U.S.C. Sec. 1160(a)(3)(B)(ii)(II). The district court rejected the INS's argument that it did not have jurisdiction to hear this case, and proceeded to grant summary judgment in favor of the class members on some of their claims, and in favor of the INS on others. The INS appeals and the farmworkers cross-appeal, but we do not reach the merits of the district court's decision on the issues appealed because we hold that it lacked jurisdiction.

I

The Immigration Reform and Control Act of 1986, Pub.L. No. 99-603, 100 Stat. 3359, created two amnesty programs for undocumented aliens. The first, not at issue in this case, was a broad legalization program for aliens who had resided unlawfully in the United States since 1982, had been continuously physically present here since 1986, and who were otherwise admissible as immigrants. 8 U.S.C. Sec. 1255a. The second, called the Special Agricultural Worker (SAW) program, allowed undocumented alien farmworkers to attain first temporary and then permanent resident status. 8 U.S.C. Sec. 1160.

Immigrant farmworkers desiring to attain lawful temporary resident status under the SAW program were directed to apply between June 1, 1987 and November 30, 1988. 8 U.S.C. Sec. 1160(a)(1)(A). The INS was required to grant temporary resident status to any timely applicant who could establish that he or she was admissible as an immigrant, was currently residing in the United States, and had performed at least 90 days of agricultural labor during the year ending May 1, 1986. Id. Secs. 1160(a)(1)(A), (B), (C). Either one or two years thereafter (depending on the length of the alien's prior agricultural labor), the alien's status was to be adjusted to that of a lawful permanent resident. Id. Secs. 1160(a)(2)(A), (B).

Deportable or excludable aliens (e.g., those convicted of narcotics violations) could not acquire even temporary resident status under the SAW program, because they were not admissible to the United States as immigrants. Id. Sec. 1160(a)(1)(C). In the Immigration Nursing Relief Act of 1989, Pub.L. No. 101-238, 103 Stat. 2099, Congress amended IRCA to provide for the denial of permanent resident status, and the termination of temporary resident status, for those farmworkers who had succeeded in acquiring temporary resident status through the SAW program, but who had been convicted of one felony or three misdemeanors:

(3) Termination of temporary residence

* * * * * *

(B) Before any alien becomes eligible for adjustment of status [from temporary to permanent residence], the Attorney General may deny adjustment to permanent status and provide for termination of the temporary resident status granted such alien under paragraph (1) if....

(ii) the alien commits an act that (I) makes the alien inadmissible to the United States as an immigrant, except as provided under subsection (c)(2) of this section, or (II) is convicted of a felony or 3 or more misdemeanors committed in the United States.

8 U.S.C. Sec. 1160(a)(3)(B)(ii)(II) (emphasis added) (Supp. I 1989) [hereinafter "the one/three rule"]. The instant lawsuit challenges the INS's interpretation of this section.

Without giving the public advance notice or the opportunity to comment, the INS published an interim rule implementing the one/three rule on April 5, 1990. 55 Fed.Reg. 12,629 (Apr. 5, 1990). The rule took effect on the date of publication. It provided not only for the termination of temporary resident status on the basis of the one/three rule, ¹ but also for the denial of temporary resident status in the first place. Id. at 12,630; see 8 C.F.R. Sec. 210.3(d)(3) (1993). The farmworkers argued that this rulemaking procedure violated the Fifth Amendment and the Administrative Procedures Act, 5 U.S.C. Sec. 701 et seq. (APA). The district court rejected the due process claim, but held the APA claim meritorious and invalidated the interim rule's application of the one/three rule to deny temporary resident status. Order of June 29, 1992, at 32-35. Neither party appeals these holdings.

The farmworkers also contended that the interim rule's application of the one/three rule to deny temporary resident status contravened the plain language of 8 U.S.C. Sec. 1160(a)(3)(B)(ii)(II), which applies only to terminations of such status. The district court agreed, and the INS does not appeal that ruling.

In addition to challenging the regulation, the farmworkers also alleged that the INS wrongly denied or terminated their temporary resident status based on its unlawful policy of applying the one/three rule to convictions secured prior to December 18, 1989 (the enactment date of INRA). The district court agreed, and held that the present-tense statutory language of Sec. 1160(a)(3)(B) applies only to post-enactment convictions. Order of June 29, 1992 at 16-21. The INS appeals this holding.

Finally, the farmworkers argued that the INS has an unlawful policy of treating the one/three rule as a per se ground for denial or termination of temporary resident status, rather than as one factor to be weighed, in the INS's discretion and on a case-by-case basis, along with other positive and negative factors. ² The district court rejected this argument, id. at 21-24, and the farmworkers challenge this ruling in their cross-appeal.

II

The INS contends that the district court lacked subject matter jurisdiction to adjudicate the immigrant's claims. It argues that jurisdiction is precluded by the doctrines of ripeness, exhaustion, and finality, as well as by IRCA's exclusive judicial review provision, 8 U.S.C. Sec. 1160(e)(1). ³ The district court disagreed. Order of June 29, 1992, at 14-16. We review de novo. Xiao v. Barr, 979 F.2d 151, 153 (9th Cir.1992).

The district court held that the "plaintiffs in the instant case allege a pattern or practice of unlawful conduct by the INS in its administration of the SAW program; they do not seek review on the merits of the denial of a particular application." Order of June 29, 1992, at 15. In holding that such plaintiffs are not covered by the exclusive statutory review scheme of Sec. 1255a(f)(1), the court relied on the U.S. Supreme Court's analysis in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). However, we must consider McNary's significance in light of Reno v. Catholic Social Servs., Inc., --- U.S. ----, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ("CSS" ), which was decided after the district court's decision in this case. ⁴

A.

In McNary, organizations and individual plaintiffs filed suit in federal district court, challenging the INS's practices and policies in processing SAW applications. The challenged practices included (1) failing to allow applicants the opportunity to rebut adverse evidence; (2) denying applicants the opportunity to present witnesses on their own behalf; (3) failing to provide interpreters for non-English speaking applicants; and (4) failing to make a verbatim recording of the application hearing, which could be used for a subsequent appeal. McNary, 498 U.S. at 487-88, 111 S.Ct. at 893-94. The INS contended that district court jurisdiction to consider these challenges was precluded by the exclusive review provision of 8 U.S.C. Sec. 1160(e)(1). The Supreme Court rejected this argument, holding that Sec. 1160(e)(1)'s language, which covered "a determination respecting an application" for legalization, did not apply to lawsuits in which large groups of plaintiffs challenged across-the-board INS practices. The Court held that Sec. 1160(e)(1)

describ[es] the process of direct review of individual denials of SAW status, rather than as referring to general collateral challenges to unconstitutional practices and policies used by the agency in processing applications.

Id. at 492, 111 S.Ct. at 896 (emphasis added). The Court also noted that the administrative appeal process "does not address the kind of procedural and constitutional claims respondents bring in this action," and therefore could not generate a factual record sufficient to assist a reviewing court in evaluating such claims. Id. at 493, 111 S.Ct. at 896-97. ⁵ On these grounds, the court...