National Center for Immigrants Rights, Inc. v. I.N.S.

• Decision Date: 28 September 1984
• Docket Number: No. 84-5504,84-5504
• Citation: 743 F.2d 1365
• Parties: NATIONAL CENTER FOR IMMIGRANTS RIGHTS, INC., et al., Plaintiffs-Appellees, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

743 F.2d 1365

NATIONAL CENTER FOR IMMIGRANTS RIGHTS, INC., et al., Plaintiffs-Appellees, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants-Appellants.

No. 84-5504.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1984.

Decided Sept. 28, 1984.

John M. Rogers, Dept. of Justice, Washington, D.C., for defendants-appellants.

Peter A. Schey, Margaret L. Popkin, National Center for Immigrants Rights, Inc., Los Angeles, Cal., Susan Gzesh, Maureen O'Sullivan, National Immigration Project, Boston, Mass., Patrice Perillie, Central American Refugee Center, Washington, D.C., Antonio Rodriguez, Xavier Vega, Erin Moore, Los Angeles Center for Law & Justice, Los Angeles, Cal., for plaintiffs-appellees.

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

Before WRIGHT, FERGUSON and REINHARDT, Circuit Judges.

FERGUSON, Circuit Judge:

The Immigration and Naturalization Service (INS) appeals the district court's grant of a preliminary injunction restraining the INS from applying a new regulation which became effective December 7, 1983. The previous INS regulations provided that in his discretion the District Director, with the prior approval of the INS Regional Commissioner, could include a condition barring unauthorized employment in an appearance and delivery bond in connection with deportation proceedings. 8 C.F.R. Sec. 103.6(a)(2)(ii) (1983). In the regulation now being challenged, the INS does away with individualized determinations. The new regulation provides in part that "[a] condition barring employment shall be included in an appearance and delivery bond in connection with a deportation proceeding.... Only those aliens who upon application ... establish compelling reasons for granting employment authorization may be authorized to accept employment." 8 C.F.R. Secs. 103.6(a)(2)(ii)-(iii), 109.1(b)(8) (1984). ¹

On December 6, 1983, the plaintiffs brought suit to block implementation of the new regulation. The plaintiffs (referred to collectively as NCIR) include a number of nonprofit organizations which provide legal services to aliens with immigration problems and whose members and clients would be affected by the regulation, a United Auto Workers Union local affiliate, and 16 individuals currently in deportation proceedings. NCIR challenges the validity of the regulation under several different theories--that the regulation is without statutory authority, that it is not reasonably related to the purpose of assuring a detainee's appearance at future deportation proceedings, that it was promulgated unlawfully, that it violates fifth amendment due process and equal protection guarantees, and that it is inconsistent with and superseded by other federal laws.

On December 8, 1983, following a hearing, the district court denied a temporary

restraining order and scheduled a hearing on NCIR's motion for a preliminary injunction. After hearing evidence and testimony on December 16, 1983, the court granted an injunction against enforcement of the regulation. Addressing only two of NCIR's theories, the court concluded that NCIR has a fair chance of showing that the regulation is invalid because it is inconsistent with the statute and because it violates due process guarantees. The district court further found that the harm to the plaintiffs from application of the regulation would be irreparable. It noted that individuals subjected to the no-work condition will be unable to support themselves and their dependents pending their deportation hearings and will have more difficulty obtaining bonds and counsel. The court found that this harm clearly outweighed the government's harm from delay in implementing the regulation.

DISCUSSION

Jurisdiction of the District Court

The INS raises a two-pronged threshold attack on the district court's jurisdiction. First, the INS asserts that judicial review is available only through the habeas corpus provisions of 8 U.S.C. Sec. 1252(a). Second, the INS argues that this case is not ripe for adjudication.

The INS characterizes NCIR's challenge to the regulation as involving determinations concerning release on bond and thus as encompassed within the habeas corpus provision of section 1252(a), which states in part:

Any court of competent jurisdiction shall have authority to review or revise any determination of the Attorney General concerning detention, release on bond, or parole pending final decision of deportability upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability.

Precisely drawn statutory procedures, such as this habeas corpus procedure, are generally held to preempt more general grants of jurisdiction in cases to which they apply. See, e.g., Brown v. GSA, 425 U.S. 820, 834, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976). The INS states that the legislative history shows Congress' intent to make section 1252(a) an exclusive remedy:

An alien arrested and taken into custody may, pending the final determination of deportability, be continued in custody, released on bond or released on conditional parole, and the determination of the Attorney General concerning such detention, release on bond or parole shall be subject to judicial review only upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with reasonable dispatch to determine deportability.

H.R.Rep. No. 1365, 82d Cong., 2d Sess. 57, reprinted in 1952 U.S.Code Cong. & Ad.News 1653, 1711-12 (emphasis added). Since this suit was not brought as a habeas corpus action pursuant to section 1252(a), the INS argues that the district court lacked jurisdiction.

However, we conclude that section 1252(a) is inapplicable to this case. Section 1252(a) deals only with complaints about delays in determining deportability in individual cases. In Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir.1982), disapproved on other grounds, Jean v. Nelson, 727 F.2d 957, 976 n. 27 (11th Cir.1984) (en banc), the court drew a distinction between jurisdiction to rule on the merits of an individual deportation order and jurisdiction to rule on a pattern and practice of constitutional violations. The court held that although 8 U.S.C. Sec. 1105a(a) gave courts of appeals exclusive jurisdiction to review alleged procedural irregularities in an individual deportation hearing, an allegedly unlawful pattern, program, or scheme of immigration officials was subject to examination by the district court under federal question jurisdiction. Id. at 1033. Here, the NCIR challenges the imposition of an automatic employment prohibition in all release bonds on statutory and constitutional grounds. In its prayer for relief, NCIR does not seek a review on the merits of any individual determination by the INS regarding release on bond. See id. at 1033 n. 23. Thus, the district court properly has jurisdiction under 28 U.S.C. Sec. 1331 to examine the merits of NCIR's challenges and to enter declaratory and injunctive relief. The district court is also given jurisdiction over claims arising under the immigration statutes. 8 U.S.C. Sec. 1329.

The INS also asserts that this challenge to the regulation is not ripe, arguing that because one of NCIR's major contentions is that the procedures used in applying the regulation are inadequate, the court should await a more concrete case which may throw more light on the statutory and practical justifications for the regulation. See, e.g., Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967).

The relevant considerations in determining whether a challenge to administrative action is ripe are (1) whether the issues are fit for judicial determination, and (2) the hardship to the parties from withholding consideration. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The district court found that both considerations warranted present judicial review. The issues are "fit" for decision because the regulation is presently being enforced and is unquestionably final, because nothing in the Act precludes present review, and because the issues presented do not require further factual development by the administrative process. See id. More important, the district court found that the individual plaintiffs were suffering a significant and immediate hardship from the regulation. The court correctly concluded that the issue was ripe.

Standard of Review

We reverse an order issuing or denying a preliminary injunction only if the district court abused its discretion or based its decision in its preliminary review of the merits on erroneous legal principles. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980).

To obtain a preliminary injunction, the moving party must demonstrate either (1) probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships sharply favors the moving party. Beltran v. Myers, 677 F.2d 1317, 1320 (9th Cir.1982). These are not separate tests, but are the ends of a continuum; the greater the relative hardship to the moving party, the less probability of success must be shown. Benda v. Grand Lodge of the International Association of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979).

When, as here, the plaintiffs have shown that the balance of hardships sharply favors their side, the district court need only conclude that the plaintiffs have raised "serious questions" to justify the grant of a preliminary injunction. Beltran, 677 F.2d at 1320. The INS does not challenge the court's finding that the balance of hardships clearly favors ...