Gao v. Jenifer

• Decision Date: 16 March 1999
• Docket Number: PLAINTIFF-APPELLANT,No. 98-1171,DEFENDANT-APPELLEE,ZHEN-HUA,98-1171
• Citation: 185 F.3d 548
• Parties: (6th Cir. 1999) GAO,, v. CAROL A. JENIFER, DISTRICT DIRECTOR IMMIGRATION & NATURALIZATION SERVICE (DETROIT DISTRICT), Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 548

185 F.3d 548 (6th Cir. 1999)

ZHEN-HUA GAO, PLAINTIFF-APPELLANT, v. CAROL A. JENIFER, DISTRICT DIRECTOR IMMIGRATION & NATURALIZATION SERVICE (DETROIT DISTRICT), DEFENDANT-APPELLEE.

No. 98-1171

U.S. Court of Appeals, Sixth Circuit

Argued: March 16, 1999

Decided and Filed: July 20, 1999

Appeal from the United States District Court for the Western District of Michigan at Lansing. No. 97-00012--Robert Holmes Bell, District Judge. [Copyrighted Material Omitted] Behzad Ghassemi (argued and briefed), Law Office of Behzad Ghassemi, Lansing, Michigan, for Plaintiff-Appellant.

W. Francesca Ferguson, Assistant U.S. Attorney, Office of the U.S. Attorney for the Western District of Michigan, Grand Rapids, Michigan, Marion E. Guyton (argued), Gretchen M. Wolfinger (briefed), U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Defendant-Appellee.

Before: Boggs, Clay, and Godbold,^* Circuit Judges.

OPINION

Boggs, Circuit Judge.

When he was sixteen years old, Zhen-Hua Gao entered the United States unaccompanied and without inspection. He was arrested by the United States Immigration and Naturalization Service ["INS"], which took him into custody and began deportation proceedings. The INS placed Gao in foster care detention with Lutheran Social Services of Michigan ("LSSM") pending the outcome of the deportation proceedings. LSSM petitioned the Ingham County, Michigan probate court to find Gao dependent and to declare that it would not be in Gao's best interest to be returned to China. The county court granted the petition and, based on the judgment, Gao petitioned the INS for Special Immigrant Juvenile ("SIJ") status. The INS district director denied the petition on the ground that the county court did not have jurisdiction to declare Gao dependent, because he was in the "legal custody" of the INS at the time. The Administrative Appeals Unit of the INS dismissed Gao's appeal, and he sued for declaratory relief in district court. The INS moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and the district court granted the motion.

On appeal, the INS argues that the county court had no jurisdiction to declare Gao dependent and that he has not, therefore, satisfied the statutory requirements for SIJ status. The INS bases its argument on the Supremacy Clause and the doctrine of sovereign immunity. We hold that (1) the Supremacy Clause does not divest the county court of jurisdiction over juvenile aliens in INS custody; (2) the decision of the county court did not restrain the federal government from acting, in the sense necessary to violate sovereign immunity, where any restraint is the result of the federal government's own immigration rules operating on the factual predicate of the court's action; and (3) the Ingham County Probate Court had jurisdiction to act and, therefore, Gao was entitled to SIJ status. Accordingly, we reverse the judgment of the district court.

I.

Zhen-Hua Gao was born in the People's Republic of China on August 1, 1977. On February 14, 1994, he entered the United States illegally and unaccompanied. He was arrested by the INS and taken into custody, and on February 17, 1994, deportation proceedings were begun under what was then 8 U.S.C. § 1251(a)(1)(B), now codified at 8 U.S.C. § 1227(a)(1)(B). The INS placed Gao in the care of Lutheran Social Services of Michigan, a contract foster care provider paid by the INS. The contract between the INS and LSSM provides that "[t]hese minors, although released to the physical custody of [LSSM], shall remain in the legal custody of the INS."

On May 9, 1994, LSSM filed a petition for temporary wardship of Gao in the Ingham County (Michigan) Probate Court, Juvenile Division. On June 22, 1994, the Probate Court determined that Gao was a juvenile dependent on the Probate Court, that he was eligible for foster care, and that it would not be in his best interest to be returned to China. Gao was placed with a foster family by order of the Probate Court.

On September 15, 1994, Gao petitioned the INS for Special Immigrant Juvenile status¹ under section 101(a)(27)(J) of the Immigration and Naturalization Act ["INA"], 8 U.S.C. § 1101(a)(27)(J). On June 19, 1995, the INS district director denied the petition. On August 28, 1995, Gao was placed on a $5,000 immigration bond. On July 23, 1996, the Administrative Appeals Unit dismissed Gao's appeal. On January 29, 1997, Gao filed the present action in district court. The INS reopened the matter and, on May 14, 1997, again denied Gao's appeal. The INS moved to dismiss Gao's action under Fed. R. Civ. P. 12(b)(6). On December 22, 1997, the district court granted the government's motion and dismissed Gao's complaint. Gao appeals the decision of the district court.

II.

Dismissal under Rule 12(b)(6) is proper when, even taking all of plaintiff's alleged facts to be true, he can prove no set of facts that would entitle him to relief. American Eagle Credit Corp. v. Gaskins, 920 F.2d 352, 355 (6th Cir. 1990). We review a district court's grant of a 12(b)(6) motion de novo. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir. 1990). In considering the motion, all factual allegations in the complaint are accepted as true. Nishiyama v. Dickson County, 814 F.2d 277, 279 (6th Cir. 1987) (en banc).

To be entitled to relief, a plaintiff must allege facts sufficient to show that the INS's denial of his petition amounted to an abuse of discretion. Gonzalez v. Immigration & Naturalization Serv., 996 F.2d 804, 808 (6th Cir. 1993). The INS abused its discretion if its decision was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group. Ibid.

Federal authority over immigration matters is very broad. Reno v. Flores, 507 U.S. 292, 305 (1993) ("[O]ver no conceivable subject is the legislative power of Congress more complete.") (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909))).

Until 1997, the INS defined a "special immigrant juvenile" as an immigrant

"(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed eligible by that court for long-term foster care, and"

"(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence"

8 U.S.C. § 1101(a)(27)(J) (1995) (in relevant part).

Pub.L. 105-119, § 113, 111 Stat. 2440, signed into law on November 26, 1997, amended the definition to: an immigrant who is present in the United States--

"(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect, or abandonment;"

"(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and"

"(iii) in whose case the Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status; except that--"

"(I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction."

8 U.S.C. § 1101(a)(27)(J) (1999) (in relevant part).

Congress did not explicitly state its intent regarding the retroactive application of the 1997 amendment. Consequently, we apply the teaching of Landgraf v. USI Film Products, 511 U.S. 244 (1994). Because the threat of deportation, and the ability to avoid that threat, implicate private rights, and Congress did not explicitly dictate that the 1997 amendment should have retrospective application, we decide this case according to the law in effect at the time Gao sought SIJ status.

We note in passing that as a result of the 1997 amendment, Gao is in a limited and closed class of immigrants. Similarly situated immigrants whose state dependency cases arose after November 26, 1997 are governed by the amended rule. In those cases, the Attorney General must consent for the juvenile court to have jurisdiction, and must consent for any dependency order to have its pre-amendment effect.

III.

Gao contends that the Ingham County Probate Court order, which placed him in the temporary custody of the court and found that his best interest would not be served by returning him to China, satisfies the requirements for SIJ status. The INS argues that the Ingham County Probate Court lacked jurisdiction to declare Gao dependent, and that Gao's reliance on its order is, therefore, unavailing. The INS asserts two grounds for its claim: the doctrine of sovereign immunity, and the Supremacy Clause of the United States Constitution, U.S. Const. Art. VI, c1.2, coupled with the text and structure of the INA.

Prior to the 1997 amendments to § 1101(a)(27)(J), the INS Office of the General Counsel issued several Legal Opinions stating that "[a]liens who are in INS custody are not eligible for special immigrant juvenile status." INS Legal Opinion, 73 Interpreter Releases 1148, April 23, 1996; INS Legal Opinion No. 97-6, May 30, 1997; see also INS Genco Opinion 95-11, CO 215.2 and 232.1, June 30, 1995.² The rationale for the opinions is the one argued before us--that state courts lack...