Catholic SS Inc. v. INS
| Decision Date | 30 June 1999 |
| Docket Number | DELGADILLO-URIBE,QUTBE-E-ALAM,PLAINTIFFS-APPELLEES,DEFENDANTS-APPELLANTS,98-16423,DEFENDANTS-APPELLEES,Nos. 98-16269,AFL-CIO,QUTB-E-ALAM,PLAINTIFFS-APPELLANTS,s. 98-16269 |
| Citation | 182 F.3d 1053 |
| Parties | (9th Cir. 1999) CATHOLIC SOCIAL SERVICES, INC.; AMERICAN FEDERATION OF LABOR CONGRESS OF INDUSTRIAL ORGANIZATIONS; UNITED FARM WORKERS OF AMERICA,; MIGUEL GALVEZ MORAN; IMMIGRATION PROGRAM; ESAUL; GUSTAVO RODRIGUEZ; ANIL K. URMIL; ISMAEL DE LA CRUZ; ELMA BARBOSA;KAHN; MOHAMMED HAQ; JESUS REYNA REYNA,, v. IMMIGRATION AND NATURALIZATION SERVICE; JANET RENO, ATTORNEY GENERAL; DORIS MEISSNER, COMMISSIONER OF IMMIGRATION AND NATURALIZATION SERVICE, CATHOLIC SOCIAL SERVICES, INC.; UNITED FARM WORKERS OF AMERICA,; ESAUL; GUSTAVO RODRIGUEZ; ANIL K. URMIL; ISMAEL DE LA CRUZ; MIGUEL GALVEZ MORAN; ELMA BARBOSA; JESUS REYNA REYNA;KHAN; MOHAMMED HAQ,, v. JANET RENO, ATTORNEY GENERAL; DORIS MEISSNER, COMMISSIONER OF IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE, |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted] M. Jocelyn Lopez Wright (argued), Keisha Dawn Bell, Department of Justice, Washington, D.C., for the defendants-appellants-cross-appellees.
Peter A. Schey (argued), Carlos Holguin (argued), Center for Human Rights and Constitutional Law, Los Angeles, California, for the plaintiffs-appellees-cross-appellants.
Appeals from the United States District Court for the Eastern District of California Lawrence K. Karlton, Chief District Judge Emeritus, Presiding D.C. No. CV-98-00629-LKK/JFM
Before: Mary M. Schroeder, Arthur L. Alarcon and Diarmuid F. O'Scannlain, Circuit Judges
Opinion by Judge O'SCANNLAIN; Dissent by Judge SCHROEDER.
We must deal, once again, with the status of claims brought by some 45,000 illegal aliens, seeking legalization under 1986 immigration legislation, who failed to tender timely complete applications and fees.
The tortured history of this litigation has been recounted in detail in this court's prior opinions, see Catholic Social Services, Inc. v. Reno, 134 F.3d 921, 922-24 (9th Cir. 1998); Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914, 916-18 (9th Cir. 1992), and in the Supreme Court's opinion in Reno v. Catholic Social Services, Inc., 509 U.S. 43, 46-53 (1993). Suffice it to say that the Immigration and Naturalization Service ("INS") adopted a policy in 1986, revised in 1987, as part of its administration of the Immigration Reform and Control Act of 1986, 8 U.S.C. S 1255a ("IRCA"), which is at the root of this dispute. IRCA 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. SS 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. See id. S 1255a(a)(3)(A). The INS enforced the continuous physical presence requirement of S 1255a(a)(3)(A) by denying adjustment of status to aliens who failed to obtain INS approval before leaving the United States for even the briefest of absences (the "advance parole policy").
In November 1986, a number of concerned organizations and individuals (collectively "Catholic Social Services" or "CSS") filed a complaint challenging the advance parole pol icy. CSS had asserted that the advance parole 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." Id. S 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 S 1250a, and subsequently ruled that the advance parole policy was contrary to the intent of the statute and hence unenforceable. See Catholic Social Services, Inc. v. Meese, 685 F. Supp. 1149, 1159-60 (E.D. Cal. 1988) ("CSS I"). We affirmed the district court in a consolidated appeal. See Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir. 1992) ("CSS II").
The Supreme Court, in turn, granted certiorari and vacated our decision, holding that only those persons who had taken affirmative steps toward legalization and had been stymied by the INS' advance parole policy had ripe claims. See Reno v. Catholic Social Services, Inc., 509 U.S. 43, 58-59 (1993) ("CSS III"). The Court described at some length the INS' 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 in violation of the advance parole policy had their applications rejected before the applications could be filed. See id. at 61-62. 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 (emphasis added). The Court concluded, however, 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. See id. at 64-65. Thus, the Supreme Court remanded to this court, with directions to remand to the district court for proceedings to determine which class members were front-desked. See id. at 66-67. We, in turn, remanded to the district court for further proceedings consistent with the Supreme Court's opinion. See Catholic Social Services, Inc. (Centro De Guadalupe Immigration Center) v. Reno, 996 F.2d 221, 222 (9th Cir. 1993) ("CSS IV").
On remand to the district court, CSS filed a Seventh Amended Complaint adding parties who had visited INS offices seeking to apply for legalization, but had been rebuffed by the INS without being provided application materials. The district court subsequently certified a modified and narrower class, and continued its prior orders providing interim relief for the class. The government appealed. During the pendency of the appeal from remand in CSS IV, Congress again amended the immigration laws by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Section 377 of IIRIRA provides:
In disposing of the appeal of CSS IV, we rejected CSS' constitutional challenges to S 377, and held that, "[b]ecause none of the class members or named plaintiffs have alleged that they actually tendered an application and fee or attempted to do so but were rebuffed by a legalization assistant, they do not have standing pursuant to the limited grant of federal court jurisdiction set forth in S 377." Catholic Social Services v. Reno, 134 F.3d 921, 927 (9th Cir. 1998) (" CSS V"). Accordingly, we vacated the district court's interlocutory orders and remanded with instructions to dismiss for lack of jurisdiction.
The case before us now is a new class action, filed by CSS following dismissal on remand, alleging similar claims challenging the INS' advance parole and front-desking policies and again challenging the constitutionality of S 377. The plaintiffs in this incarnation of Catholic Social Services attempted to meet the jurisdictional requirements ofS 377 by alleging that various claimants were front-desked after tendering a complete application and fee or were discouraged from doing so by the front-desking policy. The district court concluded that it lacked jurisdiction under S 377 over the claims of those who failed to tender a complete application and fee, but nonetheless entered a class-wide preliminary injunction against the deportation or revocation of employment authorization of any members of the former class until a plan was approved to identify which of the former class members were front-desked and, thus, part of the new class. See Catholic Social Services v. Reno, No. 98-629 (E.D. Cal. filed July 2, 1998) ("CSS VI").
The government appeals the district court's entry of the class-wide injunction. CSS cross-appeals the district court's determination that, under S 377, it lacked jurisdiction over the claims of aliens who failed to tender a complete application form and fee.
The question in the cross appeal of whether the district court had jurisdiction over any claims brought by aliens desiring legalization who did not tender a complete application and the requisite fee is quickly answered by the express statutory language and by our opinion in CSS V.
Section 377 of IIRIRA amended IRCA to provide, in relevant part, that:
"no court shall have jurisdiction of any... claim by or on behalf of any person... unless such person in fact filed an application... within the period specified... or attempted to file a complete application and application fee with an authorized...
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