913 F.2d 1350 (9th Cir. 1990), 88-5774, National Center for Immigrants' Rights, Inc. v. I.N.S.

Docket Nº:88-5774.
Citation:913 F.2d 1350
Party Name:NATIONAL CENTER FOR IMMIGRANTS' RIGHTS, INC.; American Friends Service Committee; El Rescate (
Case Date:September 07, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1350

913 F.2d 1350 (9th Cir. 1990)

NATIONAL CENTER FOR IMMIGRANTS' RIGHTS, INC.; American

Friends Service Committee; El Rescate ("The Rescue");

United Automobile, Aerospace and Agricultural Implement

Workers of America, AFL-CIO, Local 645; Central American

Refugee Center (Carecen); El Concilio Manzo; Willamette

Valley Immigration Project, Plaintiffs-Appellees,

v.

IMMIGRATION AND NATURALIZATION SERVICE; Alan Nelson,

Commissioner of the Immigration and Naturalization

Service, Defendants-Appellants.

No. 88-5774.

United States Court of Appeals, Ninth Circuit

September 7, 1990

Argued and Submitted Sept. 19, 1989.

Page 1351

John F. Daly, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

Peter A. Schey, Nat. Center for Human Rights and Constitutional Law, Los Angeles, Cal., for plaintiffs-appellees.

Steven M. Schneebaum, Patton, Boogs and Blow; D. Lea Browning, Intern. Human Rights Law Group, Washington, D.C., for amicus.

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

Before FERGUSON, REINHARDT and TROTT, Circuit Judges.

FERGUSON, Circuit Judge:

This appeal concerns regulations promulgated in 1983 by the Immigration and Naturalization Service (INS), which imposed a condition against employment in appearance and delivery bonds of aliens awaiting deportation hearings. This is the third appeal to this court regarding this matter. Our earlier opinions, 743 F.2d 1365 (9th Cir.1984), 791 F.2d 1351 (9th Cir.1986) were vacated and remanded for further consideration in light of the Immigration Reform and Control Act of 1986 (IRCA). 481 U.S. 1009 (1987). On remand, the district court reiterated its earlier holding that the regulations were not authorized by the statute, and further held that the Attorney General's power to impose the blanket bond condition had not been modified or increased by the Immigration Reform and Control Act of 1986. The Immigration and Naturalization Service appeals the district court's grant of summary judgment in favor of the National Center for Immigrants' Rights, Inc. and other plaintiffs. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1983, the INS promulgated regulations which stated in part: "[a] condition against employment shall be included in an appearance and delivery bond in connection with a deportation proceeding...." 8 C.F.R. 103.6(a)(2)(ii) (1988). The previous regulations had provided that, in his discretion and with the prior approval of the INS Regional Commissioner, the District Director could include a condition barring "unauthorized employment" in individual appearance and delivery bonds based on consideration of many factors; a non-exclusive list of nine factors was included in the regulation. 8 C.F.R. Sec. 103.6(a)(2)(ii), (3)(iii) (1983).

One day before the regulations went into effect, an injunction was sought by the National Center for Immigrants Rights and a group of other nonprofit organizations, a local affiliate of the United Auto Workers Union, and individuals in deportation proceedings ("NCIR"). Ten days later, after hearing evidence and testimony, the district court granted a preliminary injunction against enforcement of the regulation. The INS appealed to this court, challenging the jurisdiction of the district court, the grant of the preliminary injunction, and the failure to certify a class. National Center for Immigrants Rights v. I.N.S., 743 F.2d 1365 (9th Cir.1984). We held that the district court had jurisdiction and affirmed the injunction, but we remanded for class certification. Id.

On remand, the district court certified a class of "all those persons who have been or may in the future be denied the right to work pursuant to 8 C.F.R. Sec. 103.6." The

Page 1352

INS moved for summary judgment, stating that no issue of material fact existed and that they were entitled to judgment as a matter of law. The district court granted summary judgment in favor of the NCIR, holding the regulations invalid because the discretion granted to the Attorney General under the Immigration and Naturalization Act must be limited to those conditions which are related to securing the alien's presence at future deportation hearings. National Center for Immigrants' Rights v. I.N.S., 644 F.Supp. 5 (C.D.Cal.1985). The Attorney General's discretion could not extend to the blanket imposition of a no-work condition on all aliens released on bond pending future deportation proceedings. Id. at 11.

The INS appealed, again challenging jurisdiction and arguing that the Attorney General had statutory authority to impose any condition in a bond that he deemed necessary to carry out the provisions of the act. National Center for Immigrants' Rights v. I.N.S., 791 F.2d 1351 (9th Cir.1986). We again upheld jurisdiction, id. at 1353-54, and affirmed the summary judgment, id. at 1354-56. The INS sought certiorari. In 1986, Congress enacted the Immigration Reform and Control Act (IRCA). 8 U.S.C. Sec. 1324a et seq. The Supreme Court granted certiorari, vacated the judgment, and remanded for further consideration in light of IRCA. 481 U.S. 1009 (1987). We remanded to the district court for this consideration. 818 F.2d 869 (9th Cir.1987).

The district court requested additional briefing from the parties on the effect of IRCA on the condition imposed by the regulation. The court found that, although IRCA was concerned with the impact of the employment of undocumented workers on the American workforce, IRCA had not conferred upon the Attorney General the authority to impose a blanket no-work rider on appearance and delivery bonds. Incorporating portions of the analysis from its earlier opinion, the court again granted summary judgment in favor of the plaintiffs. The INS timely appealed the district court's reaffirmance of summary judgment.

JURISDICTION

The INS again challenges the jurisdiction of the district court, reasserting its position that review is only available on habeas corpus under 8 U.S.C. Sec. 1252(a)(1). 1 As we held previously, Sec. 1252(a)(1) deals only with complaints about delays in determining deportability in individual cases. In Haitian Refugee Center v. Smith, 676 F.2d 1023, 1032-33 (11th Cir.1982), disapproved on other grounds, Jean v. Nelson, 727 F.2d 957, 976 n. 27 (11th Cir.1984) (en banc), the court distinguished between jurisdiction to rule on the merits of an individual deportation order and jurisdiction to rule on a pattern and practice of constitutional violations. See also Flores v. Meese, 913 F.2d 1315, 1318-1319 (9th Cir.1990); Salehi v. District Director, I.N.S., 796 F.2d 1286, 1290 (10th Cir.1986); Jean v. Nelson, 727 F.2d at 979-981 (statutory as well as constitutional questions), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (expressing no view on jurisdictional issues); cf. Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989) (no jurisdiction in district court for review of legalization decisions under IRCA). The district court had jurisdiction since NCIR challenged the blanket provision on constitutional and statutory grounds and did not seek a review on the merits of any individual determination regarding release on bond. 2

Page 1353

STANDARD OF REVIEW

Our prior judgments in this case were vacated when the Supreme Court remanded for consideration in light of IRCA. The district court incorporated portions of its earlier order by reference, considered the impact of IRCA, and reaffirmed its grant of summary judgment. When summary judgment is granted to the nonmoving party, the question is whether the moving party had an opportunity to fully and fairly litigate the issues. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir.1982). Here, the district court received evidence and heard testimony. The INS twice sought a decision on the merits of this issue, first in our initial review of the preliminary injunction, 743 F.2d at 1369, and then with its motion for summary judgment in the district court, 644 F.Supp. at 6. On remand, when providing additional briefing on IRCA, the INS raised no suggestion that any additional litigation was needed. We review the grant of summary judgment de novo, Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989), to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

I. THE IMPACT OF THE REGULATION

The challenged regulation states that a "condition barring employment shall be included in an appearance and delivery bond in connection with a deportation proceeding...." 8 C.F.R. Sec. 103.6(a)(2)(ii) (1990) (emphasis added). During this litigation, basic questions concerning the nature, scope, and impact of the regulation have been subject to debate: (a) whether the condition bars "employment" or only "unauthorized employment"; (b) whether it applies only to those who are unauthorized to work in any event; (c) whether it implicates only work or also freedom from detention; and (d) whether it is a "blanket condition" or affords individualized determinations which merely shift the burden of proof regarding work authorization. We examine each of these in turn before turning to our analysis of the statutory authority for the regulations.

  1. "EMPLOYMENT" OR "UNAUTHORIZED EMPLOYMENT"

    The INS asserts that the regulation only bars "unauthorized employment." The INS has used both terms--"employment" and "unauthorized employment"--at different times, though not quite interchangeably. In the text of the regulation and when put into operation on the face of the bonds, the condition refers broadly to "employment."

    The text of the...

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