Morales v. Yeutter, 90-2787

• Citation: 952 F.2d 954
• Decision Date: 18 December 1991
• Docket Number: No. 90-2787,90-2787
• Parties: Heriberto MORALES, et al., Plaintiffs-Appellees, v. Clayton K. YEUTTER, Secretary of Agriculture, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 954

952 F.2d 954

Heriberto MORALES, et al., Plaintiffs-Appellees, v. Clayton K. YEUTTER, Secretary of Agriculture, et al Defendants-Appellants.

No. 90-2787.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1991.

Decided Dec. 18, 1991.

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 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 also of mistake, as in In re Tayabji, 19 I. & N. Dec. 264 (BIA 1985), or--the closest to our case--because the alien's marriage, which served as the basis for the adjustment, was later annulled although not on the ground of fraud against the immigration laws. In re Samedi, 14 I. & N. Dec. 625 (BIA 1974). It is also the reading of the Justice Department, which reserves the right to proceed against these workers in accordance with it. The possibility of such a proceeding, given the undemanding standard of Article III of which we spoke in North Shore Gas Co. v. Environmental Protection Agency, 930 F.2d 1239, 1242 (7th Cir.1991), and Harris v. Board of Governors, 938 F.2d 720, 723 (7th Cir.1991), is enough to make the present case a live controversy, notwithstanding the Agriculture Department's failure to seek a stay of the district judge's decision invalidating its regulation. (No doubt such a stay would have been denied, since the effect of granting it would have been to make the statutory deadline run out and thus disqualify the plaintiffs from participating in the SAW program even if the original regulation really was invalid.) This case is unlike Harris, where a similar failure really did moot the case because there was no counterpart to section 1256(a). 938 F.2d at 722.

We are not obliged to attempt a definitive interpretation of section 1256(a) in an effort to dispel uncertainty about what might happen to the sod workers if the original regulation is reinstated. Questions of ripeness to one side, Ubiera v. Bell, 463 F.Supp. 181, 185 (S.D.N.Y.1978), we do not have the power of definitive interpretation. Even if we held section 1256(a) inapplicable to the sod workers because their status had been adjusted in accordance with a regulation in force at the time, the Supreme Court might disagree. Yet if on the strength of our interpretation we dismissed the present case as moot and the Supreme Court refused to review our action, the government would be stymied, because there would be no mechanism for reinstating the original regulation.

A second jurisdictional question is whether the regulation can be challenged by a suit to enjoin it. At argument, the government withdrew its contention that it cannot be, but as the question is jurisdictional and therefore nonwaivable we shall consider it anyway. The SAW provision of the Immigration Reform and Control Act states: "There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this section." 8 U.S.C. § 1160(e)(1). The section goes on to provide that judicial review of such determinations shall be by means of court of appeals review of deportation orders, and, in the case of exclusion orders, district court review in habeas corpus proceedings. There is no provision for injunctive suits. Yet it is apparent from the language of the provision and from the character of immigration proceedings, and was so held by the Supreme Court in a case that also involved the SAW program, McNary v. Haitian Refugee Center, --- U.S. ----, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), that the provision is limited to cases brought by a worker whose application for adjustment of status under the SAW program is turned down. His only judicial remedy is to appeal from the order deporting him or, if he is being held in custody, the order excluding him. Either remedy presupposes a valid regulation defining entitlement to SAW status, so that the issue is merely whether the alien qualifies for an adjustment of status under the regulation. It is unlikely that Congress thought a deportation or habeas corpus proceeding an apt vehicle for determining the validity of a general regulation affecting an entire agricultural industry. The familiar and by now traditional method for obtaining such a determination is to bring an injunctive suit in federal district court under 28 U.S.C. § 1331, the grant of federal-question jurisdiction. We have no reason to suppose that Congress wanted to displace that method merely because it decided to channel judicial review of denials of individual applications for adjustment of status under the SAW program through the usual routes by which aliens obtain judicial review.

We are mindful of the concern expressed by the D.C. Circuit in Ayuda, Inc. v. Thornburgh, 948 F.2d 742, 753 (D.C.Cir.1991), with the danger of undermining the remedial scheme of the immigration laws by imputing patterns and policies behind determinations and then allowing those patterns and policies to be challenged in injunction suits under 28 U.S.C. § 1331. That danger is not present, however, when as in this case the challenge is to a formal regulation determining eligibility. And here as in McNary (a challenge to the procedures used by the immigration service in processing SAW applications), the procedure that the statute establishes for judicial review of denials of "determinations"...