Perales v. Casillas

Decision Date25 June 1990
Docket NumberNo. 89-5515,89-5515
Citation903 F.2d 1043
PartiesZulema De La Garza PERALES, et al., Plaintiffs-Appellees, v. Richard CASILLAS, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Marshall Tamor Golding, Mark C. Walter, Dept. of Justice, Office of Immigration Litigation, Civ. Div., Washington, D.C., and Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for defendants-appellants.

Barbara Hines, Austin, Tex., and Lee J. Teran, San Antonio, Tex., for plaintiffs-appellees.

Appeal From the United States District Court Western District of Texas.

Before GOLDBERG, REAVLEY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The INS appeals from the district court's grant of an injunction specifying requirements for the adjudication of class members' requests for pre-hearing voluntary departure and employment authorization. Because the agency's decision to grant voluntary departure and work authorization has been committed to agency discretion by law, those parts of the injunction regulating what the INS may consider in making these decisions must be vacated.

I

The plaintiff sued on June 9, 1986, requesting declaratory, injunctive, and mandamus relief requiring the INS to change its method of considering petitions for voluntary departure and employment authorization for certain types of illegal aliens. The district court certified a class consisting of:

All immigrant visa applicants who reside within the San Antonio, Texas INS District and are immediate relatives of United States citizens or within sixty days of visa availability and who have applied or will apply for employment authorization and (1) whose applications for employment authorization have been or will be denied, or (2) whose applications for employment authorization have not been timely adjudicated.

After a two day trial in July 1988, the district court issued an injunction providing:

1. All requests for voluntary departure made by class members shall be adjudicated within 60 days, consistent with 8 C.F.R. 274(a). 13(d). Applications for employment authorization shall be considered together with applications for voluntary departure, unless the applicant has separately applied for and received voluntary departure, and applicants who only request employment authorization will also be deemed to have requested voluntary departure status;

2. All denials of requests for voluntary departure shall be made in writing, consistent with 8 C.F.R. 274a.13(c). The issuance of an Order to Show Cause and the commencement of deportation proceedings will not satisfy the requirement of a written reason(s) for the denial of a request for voluntary departure;

3. Defendants shall be prohibited from denying requests for employment authorization and voluntary departure on the grounds that applicants have failed to demonstrate economic necessity or humanitarian factors. Failure to diligently pursue the visa shall not be a reason for denying voluntary departure if the applicant has delayed the visa interview because of his/her inability to gain employment authorization from the Service. The alien's manner of entry shall not be a reason for denying voluntary departure or employment authorization, unless other adverse factors are present, and there are no factors which favor the applicant. In addition the Service may not consider the alien's willingness to wait for the visa interview abroad, economic need, diligent pursuit of the visa application by the alien's spouse, impact on the U.S. job market, or the filing of a frivolous request for political asylum, in making adjudications for employment authorization and voluntary departure.

4. The INS shall be prohibited from initiating deportation proceedings against class members in retaliation for their requests for relief. Unless INS reasonably believes that a class member is guilty of marriage fraud, has committed a serious criminal offense which would make him otherwise excludable from this country, or has a pattern of illegal entry violations, the Service may not initiate deportation proceedings against class members.

All of the class members entered the United States illegally, and thus are not eligible for adjustment of status within this country, 8 U.S.C. Sec. 1255a(c) (1970 & Supp.1987), and must travel to a United States consulate abroad to complete the immigration process. All class members have had initial immigration petitions (INS form I-130) filed on their behalf by their U.S. citizen spouses. After approval of their I-130 petitions it may take between three and six months for the U.S. consulates abroad to forward "Packet 3" application materials for plaintiffs' immigrant visas. There is no time limit set by statute or regulation for the completion of Packet 3 applications. Upon completion of the Packet 3 application, prospective immigrants will be scheduled for interviews at the consulates abroad, and at that time the consular official will determine whether they are legally admissible into the United States. The consular decision on the visa application is totally immune from review. Li Hing of Hong Kong v. Levin, 800 F.2d 970, 971 (9th Cir.1986); Kummer v. Shultz, 578 F.Supp. 341 (N.D.Tex.1984). One requirement for granting a visa is that class members prove that they are not, and will not likely become, "public charges." 8 U.S.C. Sec. 1182(a)(15). It can take anywhere from nine months to three years from approval of an I-130 to lawful permanent residence in the U.S.

During this interim application period plaintiffs have no legal status, and as illegal aliens they are subject to deportation by INS. Although the class members are subject to deportation, at times it has been the policy of the INS to allow those with approved I-130's to remain in the U.S. unlawfully through grants of voluntary departure, primarily for humanitarian reasons. The district court found that deporting these individuals would be "contrary to one of the central purposes of the immigration laws--family reunification."

The Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. Sec. 1324a, makes it unlawful for employers to hire undocumented workers. Thus, the alien class members find it difficult, if not impossible, to lawfully support their American citizen families until their visa applications are approved. In addition, they face possible exclusion from this country if they are unable to prove at the consular interview that they have the economic means to avoid public charge classification.

Before 1984 requests for voluntary departure and employment authorization were routinely granted by the San Antonio District Office of the INS. At one time aliens with approved visa petitions were automatically granted voluntary departure and employment authorization even if they did not request it.

The INS concedes that the San Antonio district failed to adjudicate requests for voluntary departure between August 1984 and May 1987. The legal effect was also to deny all requests for employment authorization. Since that time, requests for voluntary departure and employment authorization have been timely adjudicated and, except for a 5 week period in 1988, fully 80% of all requests have been granted.

The plaintiffs claim that several class members have been arrested and placed in deportation proceedings in retaliation for requesting work authorization and "participating" in this lawsuit. The district court found that the INS's departure from its normal practices in starting deportation proceedings was ample evidence of bad faith prosecution.

The district court found that the plaintiffs suffer irreparable injury from the denial of their applications for voluntary departure and work authorization, and granted the injunction. The INS has agreed to abide by those parts of the injunction requiring adjudication of requests for voluntary departure within 60 days, consistent with 8 C.F.R. 274a.13(d), and requiring all denials of such requests to be made in writing as required by 8 C.F.R. 274a.13(c). The INS appeals, attacking those portions of the injunction specifying the grounds that may be considered in deciding requests for voluntary departure and employment authorization, and setting limits on the INS's ability to initiate deportation proceedings.

II

The INS asserts that the district court had no authority to limit INS adjudicatory and prosecutorial discretion, arguing that a federal court can enjoin activities of the executive branch only where it is necessary to enforce specific legal rights. See Allen v. Wright, 468 U.S. 737, 761, 104 S.Ct. 3315, 3329, 82 L.Ed.2d 556 (1984).

When a plaintiff seeks to enjoin the activity of a government agency, ..., his case must contend with 'the well-established rule that the Government has traditionally been granted the widest latitude in the "dispatch of its own internal affairs." ' [citations omitted].

Allen v. Wright, 468 U.S. 737, 761, 104 S.Ct. 3315, 3329-30, 82 L.Ed.2d 556 (1984) (quoting Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 607-08, 46 L.Ed.2d 561 (1976)). Whether a complaint states a sound basis for equitable relief depends upon whether it is brought to enforce specific legal obligations, rather than seeking "a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties." Allen, 104 S.Ct. at 3330 (hesitating to recognize standing in such cases).

INS argues that although the district court purported to find specific legal rights to enforce in the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. Secs. 701-706, those provisions are inapplicable to agency action if the action is "committed to agency discretion by law." 5 U.S.C. Sec. 701(a)(2). Agency action is committed to agency discretion by law--and hence beyond the reach of "abuse of discretion" review--if there are no statutory or regulatory provisions creating standards against which the agency action can be...

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