952 F.2d 954 (7th Cir. 1991), 90-2787, Morales v. Yeutter

Docket Nº:90-2787.
Citation:952 F.2d 954
Party Name:Heriberto MORALES, et al., Plaintiffs-Appellees, v. Clayton K. YEUTTER, Secretary of Agriculture, et al., Defendants-Appellants.
Case Date:December 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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952 F.2d 954 (7th Cir. 1991)

Heriberto MORALES, et al., Plaintiffs-Appellees,


Clayton K. YEUTTER, Secretary of Agriculture, et al.,


No. 90-2787.

United States Court of Appeals, Seventh Circuit

December 18, 1991

Argued Sept. 13, 1991.

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Thomas F. Gardner, Jeffrey J. Baker (argued), James A. White, Jones, Day, Reavis & Pogue, Vincent H. Beckman, Jean Agathen, Manuel Sanchez, Kate Collins, Sanchez & Daniels, Chicago, Ill., for plaintiffs-appellees.

James G. Hoofnagle, Jr., Asst. U.S. Atty., Craig A. Oswald, Office of the U.S. Atty., Criminal Div., Chicago, Ill., Richard M. Evans, Mark C. Walters, Alice M. King (argued), Dept. of Justice, Office of Immigration Litigation, Washington, D.C., for defendants-appellants.

Before POSNER, FLAUM, and MANION, Circuit Judges.

POSNER, Circuit Judge.

Five years ago Congress overhauled the nation's immigration laws. Included in the overhaul was a grant of amnesty to illegal aliens who perform "seasonal agricultural services," defined as "the performance of field work related to planting, cultural practices, cultivating, growing and harvesting of fruits and vegetables of every kind and other perishable commodities, as defined in regulations by the Secretary of Agriculture." Immigration Reform and Control Act of 1986, § 210(h), 8 U.S.C. § 1160(h); and see 2 Charles Gordon & Stanley Mailman, Immigration Law and Procedure § 53.02 (rev. ed. 1991). In June of 1987, following notice and public comment, the Secretary issued a regulation which provided that the "other perishable commodities" produced by means of "seasonal agricultural services" were those that "have critical and unpredictable labor demands," a term defined in the regulation to require that "the period during which field work is to be initiated cannot be predicted with any certainty 60 days in advance of need." The regulation went on to list the commodities that meet this criterion (Christmas trees, cut flowers, herbs and spices, hops, sugar beets, tobacco, and a few others), and stated that anything not listed--and sod was singled out as not listed--is excluded. 52 F.R. 20372 (June 1, 1987). (Sod, or turfgrass, is grass that is grown on farms, cut into strips with the undersoil attached--like scalps--and transplanted to create lawns.) Illegal aliens working on sod farms were therefore not eligible for the "SAW" amnesty, as the section 1160 program is called (short for "seasonal agricultural worker").

Sod farmers, as well as illegal aliens working for them, brought suit in federal district court to invalidate the regulation as arbitrary insofar as it excluded sod from the perishable commodities encompassed by the SAW program. The district judge enjoined the exclusion and ordered the Department of Agriculture to reconsider its regulation. 702 F.Supp. 161 (N.D.Ill.1988). The statutory deadline for aliens to apply for amnesty was only a month away, so the judge also ordered the Immigration and Naturalization Service (which had been joined as a party) to accept applications from sod workers for SAW status, and this was done. There was no appeal. Instead the Department of Agriculture conducted a further hearing, but again it concluded that sod should be excluded. 53 F.R. 50375 (Dec. 15, 1988). The plaintiffs renewed their suit in the district court, which on June 11, 1990, ordered the Department to revise the regulation to include sod. 772 F.Supp. 1033 (N.D.Ill.1990). The Department (joined by the other federal defendants) then filed this appeal, but it did not seek a stay of the district court's order; and on November 3, 1990, it issued a new regulation in compliance with the order. This regulation made the sod workers eligible for amnesty--and on December 1, 1990,

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they all became permanent residents of the United States.

Is the suit therefore moot? All sod workers potentially eligible for amnesty under the SAW program have become permanent residents, having slipped through the window opened by the November 3 regulation. However, when an alien's status is adjusted from that of temporary to that of permanent resident, which is what happened to the sod workers, the government has five years within which to rescind the adjustment if "it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status." 8 U.S.C. § 1256(a). If we should hold the November 3 regulation invalid and reinstate the previous regulation excluding sod workers from the SAW program, the Attorney General might be entitled to rescind their permanent-resident status. That he could is the natural reading of section 1256(a). It would be consistent with the established policy against estopping the government--and the sod workers were on notice that the government had appealed the district court's order invalidating the original regulation. It has some support in cases that allow an adjustment of status to be rescinded on the basis not only of fraud (the usual ground) but...

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