Gonzales v. Department of Homeland Sec.

• Decision Date: 30 November 2007
• Docket Number: No. 07-35021.,07-35021.
• Parties: Aurelio Duran GONZALES; Maria C. Estrada; Maria Luisa Martinez De Munguia; Irma Palacios De Banuelos; Lucia Muniz De Andrade; Karina Noris; Adriana Pouparina, Plaintiffs-Appellees, v. DEPARTMENT OF HOMELAND SECURITY; Michael Chertoff, Secretary of the Department of Homeland Security, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

508 F.3d 1227

Aurelio Duran GONZALES; Maria C. Estrada; Maria Luisa Martinez De Munguia; Irma Palacios De Banuelos; Lucia Muniz De Andrade; Karina Noris; Adriana Pouparina, Plaintiffs-Appellees, v. DEPARTMENT OF HOMELAND SECURITY; Michael Chertoff, Secretary of the Department of Homeland Security, Defendants-Appellants.

No. 07-35021.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2007.

Filed November 30, 2007.

Peter D. Keisler (on the briefs); Thomas H. Dupree, Jr. (on the briefs and argued); David Kline (on the briefs); Papu Sandhu (on the briefs), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the defendant-appellants.

Matt Adams (on the briefs and argued), Northwest Immigrant Rights Project, Seattle, Washington; Trina Realmuto & Beth Werlin (on the briefs), American Immigration Law Foundation, Washington, DC; Marc Van Der Hout & Stacy Tolshin, Van Der Hout, Brigagliano & Nightingale, San Francisco, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV-06-01411-MJP.

Before: WILLIAM C. CANBY, JR., CYNTHIA HOLCOMB HALL, and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

On December 19, 2006, the District Court for the Western District of Washington entered an order granting preliminary injunctive relief to a class of aliens, enjoining defendants Department of Homeland Security and Secretary Michael Chertoff (collectively "DHS") from denying certain applications for permission to reapply for admission into the United States, or from acting on any denied applications. We vacate the order and remand because we defer to the decision by the Board of Immigration Appeals (BIA) in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), which is dispositive of plaintiffs' request for injunctive relief.

I

In 1994, Congress amended the Immigration and Nationality Act (INA), providing for adjustment of status for certain aliens otherwise ineligible for such relief because of their unlawful status in the United States. Pub.L. No. 103-317, Title V § 506(b), 108 Stat. 1724, 1765-66 (1994) (the special adjustment provision). The special adjustment provision excepted these aliens from certain admissibility requirements for adjustment of status. See 8 U.S.C. § 1255(a). It allowed the Attorney General to adjust the status of an alien who had entered the United States without inspection to that of a legal permanent resident provided that the alien (1) was admissible to the United States and the beneficiary of an immediately available immigrant visa, and (2) paid an application fee five times the usual fee. Pub.L. No. 103-317, § 506(b), 108 Stat. 1724, 1766 (1994). The 1994 law was effective for three years, from October 1, 1994, until October 1, 1997. Id.

In 1998, Congress extended the availability of the special adjustment provision to aliens who were the beneficiaries of an alien relative petition filed on or before January 14, 1998. Pub.L. No. 105-119, § 111, 11 Stat. 2440 (1997). Finally, in 2000 Congress revived the special adjustment provision to include beneficiaries of an alien relative petition filed on or before April 30, 2001. LIFE Act Amendment of 2000, Pub.L. No. 106-554, § 1502(a), 114 Stat. 2763 (2000). The 2000 provision required that the beneficiary of an alien relative petition filed after January 14, 1998, be physically present in the United States on December 20, 2000. Id. The special adjustment provision is codified at 8 U.S.C. § 1255(i).

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), effecting large scale changes to the INA. Pub.L. No. 104-208, div. C, 110 Stat. 3009 (1996). In addition to the special adjustment provision, two IIRIRA provisions pertaining to aliens who reenter the United States after being previously removed or deported are relevant here—8 U.S.C. §§ 1231(a)(5) (the reinstatement provision), and 1182(a)(9)(C)(i)(II) (the inadmissibility provision for previously removed aliens unlawfully present in the United States).¹

Section 1231(a)(5) provides for automatic reinstatement of an alien's prior removal or deportation order when an alien has reentered the United States illegally. It also states that "the alien is not eligible and may not apply for any relief" from removal. Section 1182(a)(9)(C)(i)(II) deems permanently inadmissible a previously removed alien who reenters the United States unlawfully. An alien inadmissible under this section, however, may seek admission into the United States if: (1) he has been absent from the United States more than ten years, and (2) he has received the consent of the Secretary of Homeland Security to the application for readmission. 8 U.S.C. § 1182(a)(9)(C)(ii). Agency regulations provide that permission to reapply is sought by the filing of an I-212 Form. 8 C.F.R. § 212.2. A successful applicant receives an "I-212 waiver."

In August 2004, we held that a previously removed alien unlawfully present in the United States was eligible to adjust his status under the special adjustment provision provided that he filed an I-212 waiver application prior to the initiation of reinstatement proceedings, notwithstanding the bar to relief from removal contained in IIRIRA's reinstatement provision and inadmissibility provision for previously removed aliens unlawfully present in the United States. Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004). Relying on this authority, plaintiffs commenced the present action in the district court.

II

The named plaintiffs in this case are seven Mexican citizens who have previously been deported or removed from the United States and have reentered without permission or detection. Each has applied for an I-212 waiver in conjunction with an application for adjustment of status under the special adjustment provision. The I-212 waiver application is pending in four of the cases and has been denied, along with the adjustment of status applications, in the remaining three cases.

On September 28, 2006, the named plaintiffs filed a complaint against DHS for injunctive and declaratory relief, a motion for a temporary restraining order and preliminary injunction, and a motion for class certification. The complaint alleged that a class of persons "have been denied the opportunity to apply for lawful permanent resident (LPR) status as a result of Defendants' refusal to comply with the precedent decision of the Ninth Circuit in Perez-Gonzalez v. Ashcroft[.]" Plaintiffs demonstrated DHS's non-compliance by submitting a March 31, 2006, Interoffice Memorandum from the United States Citizenship and Immigration Service's (USCIS) Acting Associate Director for Operations and Acting Chief Counsel, entitled "Effects of Perez-Gonzalez v. Ashcroft on adjudication of Form I-212 applications filed by aliens who are subject to reinstated removal orders under INA § 241(a)(5)" (Interoffice Memorandum). The Interoffice Memorandum instructs USCIS officers to adjudicate I-212 waiver applications before instituting reinstatement proceedings in the Ninth Circuit only when the alien meets § 1182(a)(9)(C)(ii)'s provision requiring the lapse of ten years since the date of the alien's last departure from the United States.

On November 13, 2006, the district court issued an order granting the motions for injunctive relief and class certification, and on December 19, 2006, it issued an order amending the injunction.² The district court held that the Interoffice Memorandum conflicted with Perez-Gonzalez because Perez-Gonzalez "did not read the exception to the [INA] § 212(a)(9)(C) ban as limiting the waiver available under 8 C.F.R. § 212.2" to those who had remained outside the United States for more than ten years. It pointed out that Mr. Perez-Gonzalez himself "was inadmissible under INA § 212(a)(9)(C) and had not remained outside the country for more than ten years since his last departure." It granted the injunction because plaintiffs were likely to succeed on their claim, and the harm faced by plaintiffs—the loss of eligibility to apply for adjustment of status, including work authorization, and potential reinstatement of removal orders— outweighed the government's administrative burden and its interest in deterring aliens from repeatedly entering the United States illegally.

The amended injunction enjoins DHS from "applying or enforcing the policy enumerated in Part 3(A) of the Perez-Gonzales [sic] Memo against any member of the class for the remainder of this action." It prevents DHS from "deny[ing] any class member's I-212 applications in the Ninth Circuit on the grounds that the applicant is inadmissible under INA § 212(a)(9)(C)(i)(II) and ten years have not elapsed since the applicant's last departure from the United States," (emphasis omitted) and from:

giv[ing] any legal effect to any denied I-212 applications of class members if: (a) the applicant's I-212 application was adjudicated in a USCIS District Office located with the Ninth Circuit, (b) the application was denied between August 13, 2004 (the date Perez-Gonzales [sic] was filed) and the date of this Order, and (c) the application was denied on the grounds that the applicant was inadmissible under INA § 212(a)(9)(C)(i)(II) and ten years had not elapsed since the applicant's last departure from the United States.

DHS timely appeals. The district court stayed discovery and ordered that the injunction remain in effect pending appeal.

III

We first review the district court's jurisdiction. We then examine whether the law supporting the district court's decision remains in effect in light of two post-Perez-Gonzalez decisions, Fernandez-Vargas v. Gonzales, ___ U.S. ___, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006), and In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006).

A. Standard of Review

The existence of subject matter...