Catholic Social Services, Inc. v. Reno

• Decision Date: 30 April 1997
• Docket Number: AFL-CIO,No. 96-15495,96-15495
• Parties: 98 Cal. Daily Op. Serv. 428, 98 Daily Journal D.A.R. 623 CATHOLIC SOCIAL SERVICES, INC.; American Federation of Labor--Congress of Industrial Organizations; United Farm Workers of America,; Miguel Moran; Kamiel Abubakr; Maria Magana; Elias Velasquez; Maria Velasquez; Francisco Arizaga, Plaintiffs-Appellees, v. Janet RENO, Attorney General; Doris Meissner, Commissioner of Immigration and Naturalization Service, Defendants-Appellants. Ninth Circuit
• Court: U.S. Court of Appeals — Ninth Circuit

Page 921

134 F.3d 921

98 Cal. Daily Op. Serv. 428, 98 Daily Journal

D.A.R. 623

CATHOLIC SOCIAL SERVICES, INC.; American Federation of

Labor--Congress of Industrial Organizations; United Farm

Workers of America, AFL-CIO; Miguel Moran; Kamiel Abubakr;

Maria Magana; Elias Velasquez; Maria Velasquez;

Francisco Arizaga, Plaintiffs-Appellees,

v Janet RENO, Attorney General; Doris Meissner, Commissioner

of Immigration and Naturalization Service,

Defendants-Appellants.

No. 96-15495.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 11, 1997.

Decided April 30, 1997.

As Amended on Denial of Rehearing

En Banc Jan. 16, 1998.

Stephen W. Funk, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for defendants-appellants.

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

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Chief Judge, Presiding. D.C. No. CV-86-01343-LKK.

Before: SCHROEDER, ALARCON, and O'SCANNLAIN, Circuit Judges.

PER CURIAM Opinion; Dissent by Judge SCHROEDER.

PER CURIAM.

This class action litigation challenges the lawfulness of an Immigration and Naturalization Service ("INS") policy adopted in 1986 and revised in 1987 as part of the INS's administration of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a ("IRCA"). That statute established a legalization program under which certain aliens unlawfully present in the United States could apply for status as temporary residents, and then seek permission to reside permanently in the United States. See 8 U.S.C. §§ 1255a(a), (b). Among other requirements, IRCA provided that to be eligible, applicants had to prove continuous physical presence in the United States since November 6, 1986. 8 U.S.C. § 1255a(a)(3)(A). The policy plaintiffs seek to challenge in this case is an INS directive interpreting the continuous physical presence requirement of § 1255a(a)(3)(A) to mean that in order to qualify for adjustment of status, aliens must have obtained INS approval before leaving the United States for even the briefest of absences (the "advance parole policy").

Plaintiffs include a number of concerned organizations and individuals (collectively "Catholic Social Services"). They filed their original complaint in the district court in November of 1986 challenging the advance parole policy. They contended that the policy violated the statutory proviso that an alien would not fail to maintain continuous physical presence by virtue of brief, casual and innocent absences from the United States. See 8 U.S.C. § 1255a(3)(B). The district court certified a broad class of all persons who had not complied with the INS advance parole policy but were otherwise eligible for adjustment of status under 8 U.S.C. § 1250a, and extended the application deadline for class members. The district court subsequently ruled that the advance parole policy was contrary to the intent of the statute and hence unenforceable. Catholic Social Services The case is now before this court for the third time. In the first appeal from the district court's original ruling, we affirmed the district court in a consolidated appeal that also dealt with a related case challenging another INS policy. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992). The Supreme Court granted certiorari and vacated our decision, holding that only those persons who had taken affirmative steps toward legalization and had their path blocked by INS representatives on account of the policy had ripe claims. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 58-59, 113 S.Ct. 2485, 2496, 125 L.Ed.2d 38 (1993). The Court held that "the front-desking of a particular class member is not only sufficient to make his legal claims ripe, but necessary to do so." Id. at 66, 113 S.Ct. at 2500. The Court concluded that it could not resolve the jurisdictional question regarding ripeness because the record did not contain evidence that particular class members were actually subjected to front-desking. Id. at 64-65, 113 S.Ct. at 2499-500. The Court explained the basis for its disposition as follows: "Because only those class members (if any) who were front-desked have ripe claims over which the District Courts should exercise jurisdiction, we must vacate the judgment of the Court of Appeals, and remand with direction to remand to the respective District Courts for proceedings and determine which class members were front-desked." Id. at 66-67, 113 S.Ct. at 2500. In compliance with the Court's mandate, we remanded to the district court for further proceedings consistent with the Supreme Court's opinion. Catholic Social Services, Inc. v. Reno, 996 F.2d 221, 222 (9th Cir.1993). The district court then entered the orders presently before us, certifying a modified and narrower class, and continuing its prior orders providing interim relief for the class. The Government filed a timely appeal from the district court's orders.

Inc. v. Meese, 685 F.Supp. 1149, 1159-60 (E.D.Cal.1988).

During the pendency of this appeal, Congress again amended the immigration laws by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Section 377 of the new Act purported to set limits on judicial review of legalization claims.

We therefore must consider the effect of this intervening legislation, which the Government contends requires us to vacate the district court's orders and to direct the district court to dismiss the litigation. We conclude we must do so.

The background of the case and its procedural history are set forth in detail in this court's prior opinion, Thornburgh, 956 F.2d at 916-18, and in the Supreme Court's opinion. Reno, 509 U.S. at 46-53, 113 S.Ct. at 2489-93. We do not elaborate further here. The Supreme Court's decision is the springboard for our legal analysis in this appeal.

In that decision, the Court rejected the argument of the INS "that § 1255a(f)(1) precludes district court jurisdiction over an action challenging the legality of a regulation [regarding an application for legalization] without referring to or relying on the denial of any individual application." Id. at 56, 113 S.Ct. at 2495. The Court held that 28 U.S.C. § 1331 confers "a statutory source of jurisdiction" for class actions to review agency actions. Id.

The Court noted that since Catholic Social Services sought injunctive and declaratory judgment remedies, "courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy 'ripe' for judicial resolution." Id. at 57, 113 S.Ct. at 2495 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)).

In Reno, the Court described at some length the INS's practice, known as "front-desking," pursuant to which legalization assistants were instructed to review applications in the applicants' presence and to reject the applications of any aliens who were statutorily ineligible for legalization. Under this "front-desking" policy, aliens who disclosed unapproved trips outside the United States had their applications rejected before the applications could be filed. Id. at 61-62, 113 S.Ct. at 2497-98.

In addition to those persons who had actually attempted to apply for legalization and had their applications rejected at the front desk, in a footnote, the Supreme Court opinion referred to the possibility that there may have been other persons who had been sufficiently affected by the policy to maintain a justiciable claim, even though they had not actually been "front-desked." Id. at 66 n. 28, 113 S.Ct. at 2500 n. 28. ¹ Because the Court could not determine from the record before it whether the district court may have exercised its discretionary jurisdiction to review the action of the INS without first considering whether any of the named plaintiffs or class members had been front-desked, the Court remanded with directions that the district ascertain, in the first instance, whether any class members had been front-desked and therefore had ripe claims for its discretionary review. Id. at 66-67, 113 S.Ct. at 2500-01.

On remand, the district court modified the class definition so as to include persons who had actually been front-desked and those who came within the purview of the Court's dicta in footnote 28 by being otherwise adversely affected by the front-desking policy.

It was against this background that Congress passed section 377, with a retroactive date as if it had been enacted as part of IRCA. Section 377 provides:

(a) LIMITATION ON COURT JURISDICTION.-Section 245A(f)(4) (8 U.S.C. § 1255a(f)(4)) is amended by adding at the end the following new subparagraph:

"(C) JURISDICTION OF COURTS.

Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1) of this section, or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that Officer."

(b) EFFECTIVE DATE.--The amendment made by subsection (a) shall be effective as if included in the enactment of the Immigration Reform and Control Act of 1986.

The government maintains that the new statute requires dismissal of this action because there has been no showing that any of the class members or named plaintiffs meet the requirements of § 377, i.e., by having actually filed an application or by having attempted to tender an application and fee but having them refused by a legalization assistant, ² within the times originally established by the statute. Catholic Social Services...