Gomez v. Reno
| Decision Date | 10 January 2001 |
| Docket Number | Nos. 97-15952,97-17156,JAVIER-RIVAS,BARAHONA-VASQUEZ,s. 97-15952 |
| Citation | 236 F.3d 1115 |
| Parties | (9th Cir. 2001) ALONSO ANTONIO BARAHONA GOMEZ; CARMEN VICTORIA VAZQUEZ DE BARAHONA; ALONSO ANTONIO; BRENDA VERZOSA; DINO VERZOSA; HUMBERTO; 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 BARAHONAGOMEZ; CARMEN VICTORIA VAZQUEZ DE BARAHONA; ALONSO ANTONIO; BRENDA VERZOSA; DINO VERZOSA; HUMBERTO; 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, Van Der Hout & Brigagliano, San Francisco, California, Robert Jobe, Law Offices of Robert Jobe, Law Offices of Robert Jobe, San Franscico, California, Don Ungar, San Franciso, California, Linton Joaquin, National Immigration Law Center, Los Angeles, California, Robert Rubin, San Francisco, California, of counsel for 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.
Opinion by Judge Thomas; Dissent by Judge Hall
In Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999) ("Barahona I"), we affirmed a district court's entry of a preliminary injunction against delegates of the Attorney General. Shortly after that opinion was filed, the Supreme Court issued its opinion in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) ("American-Arab"). Although the parties to Barahona I did not seek rehearing of their case, we sua sponte requested that they provide supplemental briefing concerning the effect of American-Arab on the district court's jurisdiction to enter the preliminary injunction. Having now considered our decision in light of American-Arab, as well as other circuit court cases decided in the wake of American-Arab, we reaffirm our original judgment.
The salient facts of the controversy were described in Barahona I. In brief, this appeal concerns the propriety of a preliminary injunction enjoining the application of two directives issued by Board of Immigration Appeals ("BIA") Chairman Paul Schmidt and Chief Immigration Judge Michael Creppy that plaintiffs contend improperly halted consideration of their applications for suspension of deportation. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996), as amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656, amended the Immigration and Nationality Act ("INA") to (1) impose 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) provide that a person's accumulation of time toward the continuous physical presence requirement for suspension of deportation ends when he or she is served with a notice to appear. Concerned by the April 1, 1997, effective date for imposition of the 4,000 person annual limitation, BIA Chairman Schmidt and Chief Immigration Judge Creppy issued directives ordering a halt to the issuance of decisions granting suspension of deportation. Immigration judges ("IJ") were directed not to issue any decisions granting suspension of deportation until further notice; the BIA was instructed "not to process any appeals which might result in the grant of suspension of deportation."
In response to these directives, the plaintiffs sought injunctive relief against the deferral of their cases. As an example of the relief sought, plaintiff Barahona-Gomez alleges that in February 1997, an IJ determined that he and his family deserved a suspension of deportation, but declined to issue a formal decision to that effect because of the Creppy directive. Other examples are contained in Barahona I. After considering the parties' evidentiary tenders, the district court granted plaintiffs' preliminary injunction.
In Barahona I, defendants argued that, as of April 1, 1997, the district court lost subject matter jurisdiction pursuant to INA S 242(g) (codified at 8 U.S.C. S 1252(g)). We concluded that the district court had jurisdiction under S 1252(g) to enter the preliminary injunction, and also that its issuance was not an abuse of discretion. After reconsidering our decision in light of American-Arab, we reach the same conclusion.
In Barahona I, we relied upon Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998), cert. denied, 119 S. Ct. 1140 (1999), in holding that S 1252(g) did not preclude jurisdiction in this action. Walters involved a class action filed against the Immigration and Naturalization Service ("INS") alleging a denial of due process by inadequate notice of deportation procedures. The suit sought injunctive relief, which the district court granted. On appeal, the government cited S 1252(g) and, as it has in this case, challenged the district court's subject matter jurisdiction. In rejecting this argument, the Walters court wrote:
By its terms, the statutory provision relied upon by the government does not prevent the district court from exercising jurisdiction over the plaintiffs' due process claims. Those claims do not arise from a "decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien," but instead constitute "general collateral challenges to unconstitutional practices and policies used by the agency." McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991).
145 F.3d at 1052 (footnote omitted).
The Supreme Court's decision in American-Arab confirmed Barahona I's interpretation of S 1252(g). In American Arab, the Court repeatedly characterized this statutory provision as "narrow." 525 U.S. at 482, 487. Moreover, it made clear its disapproval of the "unexamined assumption that S 1252(g) covers the universe of deportation claims--that it is a sort of `zipper' clause that says `no judicial review of deportation cases unless this section provides judicial review.' " 525 U.S. at 482. In fact, the Supreme Court chided circuit courts for their "strained" and overly broad readings of the provision: "It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings." Id. According to American-Arab, "Section 1252(g) was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion." Id. at 485 n.9. By way of illustration, the Court articulated a non-exclusive list of events that might seem to be contemplated by the language of S 1252(g) but are nevertheless reviewable. For example, a decision to reschedule a deportation hearing is not unreviewable under S 1252(g); neither is a decision "to include various provisions in the final order that is the product of the adjudication." Id. at 482.
The situation from which plaintiffs seek relief is closely akin to a decision to include provisions in a final deportation order: Essentially, the Schmidt and Creppy directives result in a decision not to include certain provisions in a final decision. Moreover, there is no rational way to find that, in pressing for a final and just resolution of their deportation proceedings, plaintiffs are contributing to the "deconstruction, fragmentation, and hence prolongation of removal proceedings"--the evils meant to be remedied by the statute. 525 U.S. at 487.
Our reading of S 1252(g) is consistent with the illuminating philosophy of IIRIRA, which limits judicial review of decisions committed to the unfettered discretion of the INS. See, e.g., Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997) (). Various sections of IIRIRA identify specific discretionary acts not subject to judicial review.2
The Supreme Court recognized this in American-Arab, noting that "[o]f course many provisions of IIRIRA are aimed at protecting the Executive's discretion from the courts-indeed, that can fairly be said to be the theme of the legislation." 525 U.S. at 486 (emphasis in original). This, the Supreme Court reasoned, was the purpose of S 1252(g). In protecting the Attorney General's prosecutorial discretion, the Court concluded that S 1252(g) "applies only to actions that the Attorney General may take: her `decision or action' to `commence proceedings, adjudicate cases, or execute removal orders'." Id. at 482. The Court noted that Congress had "good reason" to focus on these three discrete events, because "[a]t each stage the Executive has discretion to abandon the endeavor . . . ." Id. The Executive may elect to forego prosecution of a removal proceeding, to defer action, 3 to grant asylum, or to refer the asylum claim to an IJ for...
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