Aparicio v. Blakeway, 00-51133.

• Decision Date: 15 August 2002
• Docket Number: No. 00-51133.,00-51133.
• Citation: 302 F.3d 437
• Parties: Javier APARICIO, Individually and on behalf of all persons similarly situated; Judith Rangel, Individually and on behalf of others similarly situated; Eliseo Realzola, Individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. Wiley BLAKEWAY, In his official capacity; Kenneth G. Pasquarell, Director, in his official capacity as District Director of the Immigration and Naturalization Service for the San Antonio Division; Immigration and Naturalization Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

302 F.3d 437

Javier APARICIO, Individually and on behalf of all persons similarly situated; Judith Rangel, Individually and on behalf of others similarly situated; Eliseo Realzola, Individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. Wiley BLAKEWAY, In his official capacity; Kenneth G. Pasquarell, Director, in his official capacity as District Director of the Immigration and Naturalization Service for the San Antonio Division; Immigration and Naturalization Service, Defendants-Appellees.

No. 00-51133.

United States Court of Appeals, Fifth Circuit.

August 15, 2002.

Richard Sheldon Fischer, Nacogdoches, TX, Mary A. Kenney, Carmen Ilene Garcia, Lawyers Committee for Civil Rights, San Antonio, TX, Barbara Hines (argued), Law Office of Barbara Hines, Austin, TX, for Plaintiffs-Appellants.

Nelda C. Reyna (argued), U.S. Dept. of Justice, Civ. Div. Immigration Litigation, Washington, DC, John Francis Paniszczyn, San Antonio, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, DEMOSS and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiffs-appellants Javier Aparicio, Judith Rangel and Eliseo Realzola filed this suit against the Immigration and Naturalization Service (INS), and against Wiley Blakeway, the head of the San Antonio INS Citizenship Branch, Kenneth Pasquarell, the Director of the San Antonio INS District, and Attorney General Janet Reno, all in their official capacities only. Plaintiffs alleged that the San Antonio INS office relied on information in their respective applications for Special Agricultural Worker status while reviewing their applications for naturalization, despite the confidentiality provision set forth in 8 U.S.C. § 1160(b)(6)(A)(i). Plaintiffs sought declarative and injunctive relief on behalf of a putative class that would have been affected by this policy. Because none of the class representatives had been denied citizenship after exhausting the statutorily mandated review process, their suit was dismissed by the district court for lack of subject-matter jurisdiction. For the same reason, we affirm the dismissal.

Background

A. The Applicable Laws

In 1986, Congress recognized that a "shadow population" of millions of illegal immigrants had been living in this country for a number of years. H.R. REP. 99-682(I), at 49 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5653; McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 891, 112 L.Ed.2d 1005 (1991). Yet, despite their contributions to employers and their communities, these immigrants were victimized because their undocumented status rendered them afraid to seek help from the governmental authorities. H.R. REP. 99-682(I), at 49 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5653. Because Congress found it undesirable that the INS would spend its resources intensifying interior enforcement or attempting to deport these aliens en masse, they amended the Immigration and Naturalization Act to legalize the immigration status of certain categories of these aliens. This would permit those aliens to openly contribute to American society and allow the INS to focus its efforts on border enforcement. Id. The legislation also made the burden on undocumented aliens more onerous by criminalizing the hiring of undocumented workers and denying them many federal welfare benefits. McNary, 111 S.Ct. at 891. One subsection of this legislation addressed the fact that producers of perishable agricultural commodities had come to heavily rely upon an undocumented labor force. In order to keep these laborers available for work at these farms but give them the independence to move from job to job at their discretion, Congress created the "Special Agricultural Worker" or "SAW" program. H.R. REP. 99-682(I), at 83-85 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5687-89. Under the SAW program, a worker could apply for "temporary resident" immigration status during a specified eighteen-month period if he could prove both that he has resided in the United States and that he performed "seasonal agricultural services" in the United States for at least ninety days during the period from May 1, 1985 to May 1, 1986. See 8 U.S.C. § 1160(a)(1). After a fixed period of either one or two years, depending on the number of applicants, those temporary resident workers would automatically receive permanent resident status. Id. at § 1160(a)(2).

A prominent feature of the SAW statute was its confidentiality guarantee. The government was forbidden to "use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application...." Id. at § 1160(b)(6)(A)(i). The government could, however, rely on any other information in its file as well as any information it could obtain from another source. Id. at § 1160(b)(6)(C)(i). Congress did not directly explain the purpose of this provision, but in regard to similar language elsewhere in the legislation Congress commented that "[t]he confidentiality of the records is meant to assure applicants that the legalization process is serious, and not a ruse to invite undocumented aliens to come forward only to be snared by the INS." H.R. REP. 99-682(I), at 73 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5677. This confidentiality provision has been strictly construed. In In re MASRI, Int. Dec. 3419 (BIA 1999), the Board of Immigration Appeals held that the confidential information could not be used in a later proceeding to rescind permanent resident status, even though the rescission was based on alleged fraud in the SAW application process. See also 8 C.F.R. § 210.2(e)(3) (implementing the statute strictly).

After five years of continuous residence following lawful admission to permanent residence, an alien becomes eligible to apply for naturalization. 8 U.S.C. § 1427(a). A naturalization applicant must demonstrate, inter alia, good moral character; the ability to read, write and speak English; and a basic knowledge of United States history and government. See 8 U.S.C. § 1423(a), § 1427(a)(3). The applicant also has the burden of proving he was "lawfully admitted to the United States for permanent residence." 8 U.S.C. § 1429. Once the application has been filed, an INS officer interviews the applicant and makes a determination to either approve or deny the application. 8 U.S.C. § 1446. If the application is denied, the applicant can request a hearing before an immigration officer. 8 U.S.C. § 1447(a). This second hearing must be before an officer of a higher grade level than the first. 8 C.F.R. § 336.2(b). If the INS again denies the application, or if 120 days elapse from the date of the first determination without the reconsideration taking place, the applicant may seek review of the denial in the United States District Court. 8 U.S.C. § 1421(c). Applicants may only appeal to the district court, however, if they either sought administrative review and the application was again denied, or if they sought administrative review and the review was delayed for more than 120 days. Id. at § 1421(d). Rather than conducting an administrative review, the district court reviews the case de novo and makes its own findings of fact and conclusions of law. Id.

B. The Present Appeal

1. The Class Representatives

The three appellant class representatives share a similar story. They are each Mexican nationals who applied for and received temporary resident status under the SAW program in 1988, and accordingly then received permanent resident status automatically in 1990. They each applied for naturalization in 1998 or 1999, and for that purpose were interviewed in 1999 and 2000 in the San Antonio office of the INS. During their interviews, each claims he or she was quizzed extensively about the agricultural work that had qualified him or her for SAW status and each claims the INS interviewer had reviewed the confidential information from his or her SAW application. For each of them, the interview was followed by a letter from the INS commanding him or her to produce evidence corroborating the legitimacy of his or her agricultural work.

From that point, their experiences diverged somewhat. Javier Aparicio responded to the follow-up letter by filing this class action lawsuit against the INS challenging their practice of reviewing the SAW information. The INS reiterated its demand for the corroborating evidence, and Aparicio's reply informed the INS that he was unable to acquire the information and alleged the request violated the SAW confidentiality provisions. On June 26, 2000, the INS informed Aparicio that it had independently investigated the lawfulness of his permanent resident status and approved his application for naturalization. This approval came before the district court considered the motion to dismiss at issue in this case.

Judith Rangel responded to the letter by providing some, but not all, of the requested corroboration. The INS denied her application on October 8, 1999, and she never sought any sort of review of that denial. On June 5, 2000, Aparicio amended his lawsuit to include Rangel as a class representative.

Eliseo Realzola received the letter and then submitted the proof he was able to obtain along with explanations why he could not obtain the rest. On October 19, 1999, the INS informed Realzola that his evidence was insufficient and ordered him to provide corroboration. He did not do so, and on June 5, 2000 he joined Aparicio's suit as a class representative. The INS finally approved Realzola's application for naturalization on February 21, 2001, four months after the present appeal was filed.

2. The Lawsuit

Aparicio filed his class action lawsuit on April 14, 2000, on behalf of himself and the class of persons who received permanent resident status through the SAW program and who had applied for or would apply...