Immigrant Assistance Project, La County v. I.N.S.

Citation306 F.3d 842
Decision Date24 September 2002
Docket NumberNo. 99-35472.,99-35472.
PartiesIMMIGRANT ASSISTANCE PROJECT OF THE LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO); Travelers & Immigrants Aid of Chicago; Hermandad Mexicana Nacional; Washington Association of Churches; One Stop Immigration; International Institute, San Francisco; International Institute (East Bay); John Does Nos. 1 Through 8; Jane Does Nos. 1 Through 4, Plaintiffs-Appellees, v. IMMIGRATION AND NATURALIZATION SERVICE; James Ziglar, Commissioner of the INS;<SMALL><SUP>*</SUP></SMALL> Department of Justice; John Ashcroft, Attorney General of the United States;<SMALL><SUP>**</SUP></SMALL> Department of State; Colin L. Powell, Secretary of State,<SMALL><SUP>***</SUP></SMALL> Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
306 F.3d 842
IMMIGRANT ASSISTANCE PROJECT OF THE LOS ANGELES COUNTY FEDERATION OF LABOR (AFL-CIO); Travelers & Immigrants Aid of Chicago; Hermandad Mexicana Nacional; Washington Association of Churches; One Stop Immigration;

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International Institute, San Francisco; International Institute (East Bay); John Does Nos. 1 Through 8; Jane Does Nos. 1 Through 4, Plaintiffs-Appellees,
v.
IMMIGRATION AND NATURALIZATION SERVICE; James Ziglar, Commissioner of the INS;* Department of Justice; John Ashcroft, Attorney General of the United States;** Department of State; Colin L. Powell, Secretary of State,*** Defendants-Appellants.
No. 99-35472.
United States Court of Appeals, Ninth Circuit.
Submission Deferred January 6, 2000.
Re-Submitted September 17, 2001.****
Filed September 24, 2002.

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Lisa M. Arnold, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, and Christopher Pickrell, Assistant United States Attorney, Seattle, WA, for the defendants-appellants.

Robert Pauw, Gibbs, Houston & Pauw, Seattle, WA; Peter Schey, Center for Human Rights and Constitutional Law, Los Angeles, CA; and Michael Rubin, Altshuler, Berzon, Nussbaum, Berzon and Rubin, San Francisco, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington; Barbara Jacobs Rothstein, District Judge, Presiding. D.C. No. CV-88-00379-BJR.

Before HUG, PREGERSON, and FERGUSON, Circuit Judges.

OPINION

PREGERSON, Circuit Judge.


Plaintiffs-Appellees are illegal immigrants and organizations assisting such immigrants who seek to legalize their status under a legalization program in the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1255. The legalization program was established to benefit aliens who have unlawfully resided in the United States since 1982. Plaintiffs challenge policies and practices adopted by Defendant-Appellant Immigration and Naturalization Service ("INS") to implement IRCA's requirement that the aliens' unlawful status must have been "known to the government" since 1982 to receive legalization under the statute. See 8 U.S.C. § 1255a(a)(2)(B).

The District Court agreed with plaintiffs and issued a preliminary injunction that ordered the INS to use a specific burden-shifting mechanism for meeting the "known to the government" requirement. This Court affirmed, but the Supreme Court vacated, on jurisdictional grounds. After plaintiffs filed a Second Amended Complaint, the District Court found jurisdiction, certified a class, and granted another preliminary injunction based on the first one. This Court remanded, again on jurisdictional grounds. The District Court once more found jurisdiction and reinstated its class certification and also reinstated, in modified form, its preliminary injunction.

The INS appeals the District Court's reinstatement of the class certification and the preliminary injunction. In addition, the INS argues that the Second Amended Complaint is untimely and that, in any event, this action should be dismissed in its

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entirety because jurisdiction is lacking and venue in the Western District of Washington is improper. We hold that the District Court did not err when it reinstated the class certification and the preliminary injunction. We also hold that the Second Amended Complaint is timely because it relates back to the original Complaint. We hold, moreover, that those individual plaintiffs who alleged that they filed a legalization application satisfy all jurisdictional requirements. We finally hold that those individual plaintiffs who alleged that the challenged INS policies and practices prevented them from filing an application should be allowed to amend further the complaint to satisfy certain jurisdictional requirements that Congress adopted after the Second Amended Complaint was filed.1 After such further amendment, the District Court will have to determine whether venue in the Western District of Washington is proper.

FACTUAL AND PROCEDURAL BACKGROUND

Since this action was filed in 1988, it has gone from the District Court through the Ninth Circuit to the Supreme Court, back to the District Court, and now again to the Ninth Circuit, without ever being finally resolved. It is one of several actions filed in this and other circuits, with similar procedural histories, challenging different policies and practices used by Defendant-Appellant Immigration and Naturalization Service ("INS") to implement a legalization program adopted by Congress as part of the Immigration Reform and Control Act of 1986 ("IRCA"). See 8 U.S.C. § 1255a. During the course of this litigation, numerous decisions addressing equally numerous questions were issued. Because of these complexities, we summarize below only the most important decisions, and we do so only with respect to questions actually at issue in this appeal.

The IRCA provides, in relevant part, that the Attorney General shall adjust the status of an illegal alien to that of an alien lawfully admitted for temporary residence if the alien meets three requirements. See 8 U.S.C. § 1255a(a).2 First, the alien had to apply for such adjustment within the 12-month period between May 5, 1987, and May 4, 1988. See id. at § 1255a(a)(1)(A); 8 C.F.R. § 245a.2(a)(1). Second, the alien must establish that he continuously and unlawfully resided in the United States since January 1, 1982, until the date on which he filed for adjustment. See 8 U.S.C. § 1255a(a)(2)(A). Most importantly in the context of this lawsuit, as part of this requirement, "[i]n the case of an alien who entered the United States as a nonimmigrant before January 1, 1982, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the government as of such date." Id. at § 1255a(a)(2)(B) (emphasis added). Third, the alien must establish that he has been continuously physically present in the United States since November 6, 1986. See id. at § 1255a(a)(3)(A). "[B]rief, casual, and innocent absences from the United States" do not prevent the alien from meeting this continuous presence requirement. Id. at § 1255a(a)(3)(B). The House Report accompanying the IRCA stated that this legalization program "should be implemented in a liberal and generous

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fashion." H.R.Rep. No. 682(I) at 72, reprinted in 1986 U.S.C.C.A.N. at 5676.

On March 24, 1988, the original Complaint in this action was filed. Some of the plaintiffs were individual aliens who alleged that they wished to qualify for legalization but were made ineligible for legalization by the INS's interpretation of the IRCA's "continuous unlawful residence since 1982" and "known to the government" requirements. Plaintiffs argued that the INS's interpretation of these requirements violated the IRCA as well as the due process and equal protection clauses of the Fifth Amendment. Other plaintiffs were organizations who alleged that they provided legal and other assistance to aliens seeking legalization and that the INS's illegal interpretation of the IRCA's "continuous unlawful residence since 1982" and "known to the government" requirements made such assistance more difficult and less effective. The Complaint sought class certification and declaratory and injunctive relief.3

On November 4, 1988, the District Court entered an Order Granting in Part and Denying in Part Defendants' Motion to Dismiss. The District Court found that the organizational plaintiffs had standing to sue because they had alleged that the INS's policies and practices impaired their organizational goals and drained their resources, causing an injury to these organizational plaintiffs. The District Court also found, however, that the individual plaintiffs did not have standing to sue because only aliens who had actually filed legalization applications could obtain "meaningful judicial relief" and because none of the individual plaintiffs alleged that they had actually filed applications. Accordingly, the District Court dismissed all individual plaintiffs from the lawsuit. On the same day, the District Court also entered an Order Denying Plaintiffs' Motion for Provisional Class Certification. The District Court concluded that because the individual plaintiffs did not have standing and, therefore, did not have valid claims, they did not have "claims which are typical of those plaintiffs with valid claims." As a consequence, plaintiffs could not satisfy the "prerequisite" for class certification in Fed.R.Civ.P. 23(a)(3) that "the claims ... of the representative parties are typical of the claims ... of the class."4

On March 7, 1989, the District Court entered an Order Granting in Part Plaintiff's Motion for Summary Judgment, see Immigration Assistance Project of the Los Angeles County Fed'n of Labor v. INS (AFL-CIO), 709 F.Supp. 998 (W.D.Wash. 1989) ("IAP I"), which it amended on June 3, 1989, see Immigration Assistance Project of Los Angeles County Fed'n of Labor (AFL-CIO) v. INS, 717 F.Supp. 1444 (W.D.Wash.1989) ("IAP II").

The District Court granted relief to three groups of applicants. The first group of applicants to which the District Court granted relief consisted of "section 265 violators," i.e., applicants who alleged that: (1) they had failed to file quarterly address reports to the INS as required prior to January 1, 1982, by section 265 of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1305; (2) these section 265 violations made their status unlawful; and (3) the absence of the required address reports from their INS files made

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their unlawful status known to the government and thus entitled them to legalization under the IRCA. Under the INS's interpretation of the "known to the government" requirement,...

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