Thornburgh, In re
| Decision Date | 03 March 1989 |
| Docket Number | No. 88-5360,88-5360 |
| Citation | 869 F.2d 1503 |
| Parties | In re Richard THORNBURGH, et al., Petitioners. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Edward R. Cohen, Atty., U.S. Dept. of Justice, with whom Barbara L. Herwig, Atty., U.S. Dept. of Justice, Washington, D.C., was on the petition for a writ of mandamus, for petitioners.
Lloyd N. Cutler, with whom Stephen W. Preston, Washington, D.C., was on the response to the petition for a writ of mandamus, for respondent.
Wayne H. Matelski, Lynda S. Zengerle, Carolyn Waller, Washington, D.C., Deborah Sanders, Washington, D.C., Michael Rubin, Stephen Berzon, Altschuller and Berzon, San Francisco, Ca., entered appearances, for plaintiffs Ayuda, Inc., et al.
Before WALD, Chief Judge, MIKVA, Circuit Judge, and GREENE, * District Judge.
Opinion for the court filed by Chief Judge WALD.
Petitioners, Richard Thornburgh et al., 1 are defendants in an action now pending in the district court, in which four organizations and five "Doe" individual aliens ("plaintiffs"), purporting to represent a class of similarly-situated aliens, challenged a regulation of the Immigration and Naturalization Service ("INS") and sought remedies for alleged injuries to their rights as a consequence of the allegedly invalid regulation. Having ruled that the INS regulation was invalid, the district court entered two orders of referral to one or more special masters, instructing them to compile certain information about aliens adversely affected by the invalid regulation and to recommend what sort of relief, if any, the district court should order for the affected plaintiffs. Petitioners now seek a writ of mandamus directing the district court to withdraw the reference to special masters. It is conceded by the petitioners themselves that such a writ of mandamus may properly issue only if there is no conceivable form of relief that the district court could afford to the affected aliens. Because at this juncture in this case we cannot with confidence rule out the possibility of some valid relief ensuing from the masters' information-gathering and recommending functions, we deny the mandamus petition.
This proceeding arises out of Ayuda, Inc. v. Thornburgh, C.A. No. 88-00625 (D.D.C. filed March 8, 1988). Plaintiffs filed suit in Ayuda to challenge an INS regulation issued pursuant to the Immigration Reform and Control Act of 1986, Pub.L. No. 99-603 ("IRCA"). Among the major features of IRCA was an "amnesty" provision allowing the legalization of resident status for certain aliens who entered the United States (lawfully or unlawfully) before January 1, 1982, and who have resided in the United States in an unlawful status since that date. IRCA established a 12-month period to be designated by the Attorney General, beginning no later than May 5, 1987, in which such aliens could apply for adjustment of their status. 8 U.S.C. Sec. 1255a(a)(1)(A). The Attorney General designated May 5, 1987, as the starting date, and the deadline for applications as May 4, 1988. 8 C.F.R. Sec. 245a.2(a)(1) (1988).
The IRCA provision at issue in Ayuda concerns "nonimmigrants," persons who entered the United States lawfully but later violated restrictions on their status. Under IRCA, those nonimmigrants can qualify for amnesty only by establishing either (1) that their authorized stay expired through the passage of time before January 1, 1982, or (2) that their "unlawful status was known to the Government as of [January 1, 1982]." 8 U.S.C. Sec. 1255a(a)(2)(B).
The challenged INS regulation defined "Government" in the foregoing provision to mean "the Immigration and Naturalization Service." 8 C.F.R. Sec. 245a.1(d). In their complaint, plaintiffs sought a declaratory judgment that the regulation was invalid and that a nonimmigrant's unlawful status was "known to the Government" if it was known to any federal department, bureau or agency. Plaintiffs sought to have a plaintiff class certified and requested that the court issue orders (a) requiring petitioners to promulgate corrected regulations and notify members of the plaintiff class; (b) tolling the May 4, 1988, deadline to allow class members a full 12-month period in which to apply under corrected regulations; and (c) granting further relief as appropriate.
On March 30, 1988, United States District Judge Stanley Sporkin ("respondent") entered a declaratory judgment interpreting the statutory term "Government" to mean "the United States Government and not simply the INS" and declaring 8 C.F.R. Sec. 245a.1(d) to be invalid. Ayuda, Inc. v. Meese, 687 F.Supp. 650, 666 (D.D.C.1988). At the same time, respondent ordered the INS to "take steps to notify promptly all persons affected by the regulation in question of this court's determination" and to adopt measures to ensure that those aliens would have an opportunity to file timely applications in the 39 days remaining before the May 4 deadline. Id.
In the weeks following the March 30 ruling, respondent entered a series of supplemental orders. Orders entered on April 6 and 7 (Supplemental Orders I, II and III) clarified the March 30 ruling and enforced it by, inter alia, ordering the INS to reopen the cases of alien applicants who had been turned away as a result of 8 C.F.R. Sec. 245a.1(d). 687 F.Supp. at 666-67. The defendants (petitioners here) did not appeal those orders, nor did they appeal the March 30 ruling itself.
On April 28, plaintiffs moved for an order tolling the statutory deadline and submitted evidence purporting to show that the INS had failed to comply with the district court's prior notification and reprocessing orders. On May 2 and 4, respondent entered three orders (Supplemental Orders IV, V and VI) further implementing the court's ruling. 687 F.Supp. at 667-69. In particular, Supplemental Order V ordered the INS, for the first time, to accept applications from "known to the Government" aliens whose unlawful status as of January 1, 1982, stemmed from their willful violation of the mandatory reporting requirements of Sec. 265 of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1305 (repealed Dec. 29, 1981).
On May 4--the last day in the 12-month designated filing period--respondent entered Supplemental Order VII, which denied The district court subsequently moved to ascertain the identities of any aliens so misled. On June 9, in Supplemental Order IX, Judge Sporkin prescribed a form on which aliens affected by his ruling could submit sworn statements indicating their reasons for not applying before the deadline. 687 F.Supp. at 671-74. These "Statement of Reasons" forms were to be filed in the district court by plaintiffs' counsel.
" [p]laintiffs' request to toll the May 4, 1988 filing deadline for the class of aliens affected by this Court's prior orders." 687 F.Supp. at 669. At the same time, however, the court retained jurisdiction to provide any relief that might be appropriate, "in individual cases ... where an alien can demonstrate that he/she failed to exercise his/her right to apply for legalization by May 4, 1988, because he or she was misled directly or indirectly by the action or inaction of the INS or its agents." 687 F.Supp. at 670.
Petitioners initiated an appeal to this court on July 5 from certain parts of Supplemental Orders IV, V and VII. The appeal raised, inter alia, the question of whether the district court could properly retain jurisdiction to provide further relief to aliens who failed to meet the May 4 deadline. See Notice of Appeal, p 3, Respondent's Appendix F; Statement of Issues to be Raised on Appeal, p 7, Respondent's Appendix G. This particular question () was subsequently withdrawn from the appeal by petitioners. Defendants-Appellants Motion for Partial Withdrawal of Appeal, Respondent's Appendix H. The appeal, which now centers on the Supplemental Order V command that the INS accept applications from aliens whose unlawful status stemmed from their willful violation of INA Sec. 265, is still pending. Ayuda, Inc. v. Thornburgh, No. 88-5226 (D.C.Cir. filed July 18, 1988).
After a number of completed "Statement of Reasons" forms were filed in the district court, respondent issued Supplemental Order XI on September 27, 700 F.Supp. 49, stating his intention to appoint one or more special masters and prescribing their functions. The special masters would determine whether each alien "was in fact injured, prejudiced or misled by the Government's impermissive definition of 'known to the Government,' " and would submit to the court their findings in this regard as well as recommendations for any relief that might be legally provided to the alien. Respondent's Appendix D at 4. The court deferred consideration of whether to certify a plaintiff class pending the conclusion of the special masters' inquiry. See id. at 8. At the same time, the court "held in abeyance" its Supplemental Order VII, which had refused to toll the statutory deadline. Id. On October 28, in Supplemental Order XII, 700 F.Supp. 49, the court appointed a lead special master. Respondent's Appendix E.
Petitioners filed the present petition for mandamus in this court on November 18. The petition seeks a writ of mandamus directing the district court to withdraw those provisions of Supplemental Orders XI and XII that establish and implement a reference to special masters.
This court's authority to issue a writ of mandamus is derived from the All Writs Act, 28 U.S.C. Sec. 1651(a), which empowers federal courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
Mandamus, we are all aware, is a drastic remedy, " 'to be invoked only in extraordinary situations.' " In re Halkin, 598 F.2d 176, 198 (D.C.Cir.1979), quoting ...
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