Barahona-Gomez v. Reno
| Decision Date | 11 February 1999 |
| Docket Number | Nos. 97-15952,BARAHONA-GOMEZ,97-17156,s. 97-15952 |
| Citation | 167 F.3d 1228 |
| Parties | 99 Cal. Daily Op. Serv. 1118, 1999 Daily Journal D.A.R. 1391 Alonso Antonio; Carmen Victoria Vazquez De Barahona; Alonso Antonio Barahona-Vasquez; Brenda Verzosa; Dino Verzosa; Humberto Javier-Rivas; Bosco Guillermo Rivas; Carole Beltran; Santiago Ramon Sequeira; Graciela De Los Angeles Isariuz; Sandra Los Angeles Sequeira; Marta Aguilar, Plaintiffs-Appellees, v. Janet RENO, Attorney General; Executive Office for Immigration Review; Michael Creppy, Chief Immigration Judge; Paul Schmidt, Chairman of the Board of Immigration Appeals, Defendants-Appellants. Alonso Antonio Barahona-Gomez; Carmen Victoria Vazquez De Barahona; Alonso Antonio Barahona-Vasquez; Brenda Verzosa; Dino Verzosa; Humberto Javier-Rivas; Bosco Guillermo Rivas; Carole Beltran; Santiago Ramon Sequeira; Graciela De Los Angeles Isariuz; Sandra Los Angeles Sequeira; Marta Aguilar, Plaintiffs-Appellees v. Janet Reno, Attorney General; Executive Office for Immigration Review; Michael Creppy, Chief Immigration Judge; Paul Schmidt, Chairman of the Board of Immigration Appeals, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michelle Gluck, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the defendants-appellants.
Marc Van Der Hout, Zachary Nightingale, Van Der Hout & Brigagliano, San Francisco, California; Robert Jobe, Law Offices of Robert Jobe, San Francisco, California; Don Ungar, San Francisco, California; Linton Joaquin, National Immigration Law Center, Los Angeles, California; and Robert Rubin, San Francisco, Lawyers' Committee, San Francisco, California, for the plaintiffs-appellees.
Appeals from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding. D.C. No. CV-97-00895-CW.
Before CYNTHIA HOLCOMB HALL and SIDNEY R. THOMAS, Circuit Judges, and ROBERT H. WHALEY, 1 District Judge.
In this appeal, we consider the propriety of a preliminary injunction enjoining enforcement of an amendment to the Immigration and Naturalization Act ("INA") which (1) imposes a 4,000 person annual limitation on the number of suspensions of deportation and adjustments of status that the Attorney General may grant in each fiscal year, and (2) provides that a person's accumulation of time towards the continuous physical presence requirement for suspension of deportation ends when he or she is served with a notice to appear. We conclude that the district court had jurisdiction to enter the injunction and its issuance was not an abuse of discretion. We affirm the district court's notice and bond requirements, but remand in light of the passage of the Nicaraguan Adjustment and Central American Relief Act.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996), Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656, made a number of organic changes to immigration law. This appeal concerns the confluence of two of them: (1) a new absolute annual limitation on the number of deportation suspensions the Attorney General can issue, and (2) the termination of time an applicant can accrue toward the seven year continuous physical presence requirement for suspension upon receipt of an Immigration and Naturalization Service ("INS") notice to appear. Prior to the passage of IIRIRA, individuals who received a discretionary suspension of deportation were eligible to receive an adjustment of status to lawful permanent resident. There was no limit on the number of persons who could receive a discretionary suspension and adjustment of status; the decision was left solely to immigration judges across the country and panels of the Board of Immigration Appeals ("BIA"). See INA § 244(a), 8 U.S.C. § 1254(a) (1994) (repealed). IIRIRA § 309(c)(7) altered this, establishing a new absolute limitation of 4,000 deportation suspensions and adjustments of status that the Attorney General can make in a fiscal year. 2
Under IIRIRA as it applies to the plaintiffs under prior law, an individual is not eligible for suspension of deportation in most circumstances unless he or she has been physically continuously present in the United States for seven years. IIRIRA § 309(c)(5) fundamentally altered this by terminating an individual's accumulation of time toward the continuous physical presence requirement when that person was served with an INS notice to appear or when the alien commits certain offenses that render him inadmissible or deportable, whichever comes first. 3
IIRIRA was signed into law on September 30, 1996, with the 4,000 annual limit provided in IIRIRA § 309(c)(7) scheduled to become effective on April 1, 1997. The new provisions placing new restrictions on the continuous physical presence requirement also became effective April 1, 1997. See Astrero v. INS, 104 F.3d 264, 266 (9th Cir.1996). Thus, after April 1, 1997, some persons who had satisfied the continuous physical presence requirement were no longer eligible for suspension of deportation because the time period was calculated differently, and would probably never regain their eligibility because they could no longer accrue time to be credited against the requirement. Further, imposition of the annual deportation suspension limit meant that many applicants in the administrative pipeline who would have received suspensions under pre-IIRIRA law, would not after April 1, 1997 because of the change in law.
As of February 11, 1997, the Executive Office for Immigration Review had granted approximately 3,900 applications for suspension of deportation and adjustment of status under § 309(c)(7) for the fiscal year beginning October 1, 1996. Concerned by the April 1 effective date for imposition of the 4,000 annual limitation, Board of Immigration Appeals Chairman Paul Schmidt and Chief Immigration Judge Michael Creppy issued directives ordering a halt to the granting of any more suspensions of deportation. Judge Creppy ordered all immigration judges to:
reserve decision in any case in which you intend to grant suspension of deportation. Decisions denying suspension of deportation may be issued; however, you are directed not to issue any decisions granting suspension until further notice. If in fact this is the only reason you are reserving decision you may advise the respondent that decision is reserved for the purpose of determining the availability of a number consistent with 240A(e) of the statute.
In a similar letter to members of the BIA, Chairman Schmidt stated:
[U]ntil further notice, please do not process any appeals which might result in the grant of suspension of deportation.... This is a temporary measure to maintain the status quo until definitive guidance is provided by the Attorney General's office.... In practical terms, the Board attorney and paralegal staff should not process any suspension appeals other than those which, upon initial review, would appear to result in the clear denial of relief.
The Attorney General was required to promulgate regulations implementing IIRIRA by March 1, 1997, 4 but she failed to do so. Thus, on March 14, 1997, the plaintiffs 5 sought injunctive relief against the deferral of their cases. On March 21, 1997, the district court granted a Temporary Restraining Order, finding that there is "a serious question as to whether the Chief Immigration Judge and the Chairman of the Board exceeded their authority in issuing the directives." The court further found that:
Plaintiffs have shown that the balance of hardships tips sharply in their favor. If Defendants refuse to adjudicate Plaintiffs' applications for suspension of deportation because of the Creppy and Schmidt directives, Plaintiffs will most likely be deported. Although they are currently eligible for suspension for deportation, Plaintiffs will no longer be eligible after April 1, 1997. Deportation will inflict severe and, at least in the case of one Plaintiff, even life-threatening, harm on Plaintiffs.
The court held a hearing on the motion for a preliminary injunction on March 27, 1997, and one day later issued a preliminary injunction and provisional class certification. The injunction stayed the deportation of all class members who may be ordered deported after being denied suspension of deportation based on IIRIRA § 309(c)(5). The court found that an injunction was necessary to prevent mass deportations before the aliens could obtain judicial review. The certified class consists of aliens who have had favorable administrative determinations; that is, either the BIA or an immigration judge has determined that they qualify for a suspension of deportation, but the final adjudication has not yet occurred. The court also required the plaintiffs to post a nominal bond of $1,000 pursuant to Fed.R.Civ.P. 65(c) in the event that the government is found to have been wrongly enjoined.
After IIRIRA became fully effective on April 1, 1997, the defendants moved to vacate the preliminary injunction arguing that the district court had lost subject matter jurisdiction pursuant to new INA § 242(g), codified at 8 U.S.C. § 1252(g). The court denied defendants' motion, holding that INA § 242(g) was not intended to remove district court jurisdiction over procedural claims arising outside of deportation proceedings for which there is no other judicial review. Defendants immediately appealed the denial.
The court modified the preliminary injunction on September 17, 1997, requiring defendants to provide notice to class members when their applications for suspension of deportation are denied under IIRIRA § 309(c)(5). The court also found that the named plaintiffs were required to exhaust their administrative and judicial remedies, but general class members were not. Defendants also appealed...
To continue reading
Request your trial
-
Hernandez v. Cnty. of Monterey
...v. Rushen, 553 F.Supp. at 1378 ; Carrillo v. Schneider Logistics, Inc., 823 F.Supp.2d 1040, 1047 (C.D.Cal.2011) ; Barahona–Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.1999).220 See Melendres, 695 F.3d at 1002 ("[I]t is always in the public interest to prevent the violation of a party's cons......
-
Barapind v. Reno, Civ-F-98-5583 OWW.
...Circuit's narrow interpretation in Walters of § 242(g) resembles the Supreme Court's reading of the statute in AAADC. Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir.1999), addressed lawfulness of an INA amendment to limit the number of annual deportation suspensions, as applied to class-pla......
-
Falcon Carriche v. Ashcroft
...agree with the majority's analysis because it ignores the plain language of the streamlining criteria. 17. Cf. Barahona-Gomez v. Reno, 167 F.3d 1228, 1234 (9th Cir.1999) (noting that "the objective of plaintiffs in this case was not to obtain judicial review of the merits of their INS proce......
-
Disney Enters., Inc. v. VidAngel, Inc.
...that Rule 65(c) invests the district court "with discretion as to the amount of security required, if any." Barahona–Gomez v. Reno , 167 F.3d 1228, 1237 (9th Cir. 1999) (citing Doctor's Assoc., Inc. v. Stuart , 85 F.3d 975, 985 (2d Cir. 1996)). VidAngel asks the court to impose a substantia......
-
Case summaries.
...been wrongfully enjoined or restrained." FED. R. Cry. P. 65(c). (81) Save Our Sonoran, 381 F.3d at 915 (quoting Barshom-Gomez v. Rent, 167 F.3d 1228, 1237 (9th Cir. (82) Id. (83) 884 F.2d 394 (9th Cir. 1989). (84) Save Our Sonoran, 381 F.3d at 916 (quoting Sylvester, 884 F.2d at 397 n.2) (8......