Mada-Luna v. Fitzpatrick, MADA-LUN

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore TANG and FLETCHER; FLETCHER; IRVING HILL
Citation813 F.2d 1006
PartiesMigueletitioner-Appellee, v. Eugene M. FITZPATRICK, Acting District Director, Immigration & Naturalization Service, Respondent-Appellant.
Decision Date30 March 1987
Docket NumberNo. 84-1988,MADA-LUN,P

Page 1006

813 F.2d 1006
Miguel MADA-LUNA, Petitioner-Appellee,
v.
Eugene M. FITZPATRICK, Acting District Director, Immigration
& Naturalization Service, Respondent-Appellant.
No. 84-1988.
United States Court of Appeals,
Ninth Circuit.
Argued May 17, 1985.
Submitted Dec. 10, 1985.
Decided March 30, 1987.

Page 1008

A. Melvin McDonald, Richard K. Willard, Barbara L. Herwig, John M. Rogers, Washington, D.C., for respondent-appellant.

Antonio D. Bustamante, Tucson, Ariz., for petitioner-appellee.

Appeal from the United States District Court for the District of Arizona.

Before TANG and FLETCHER, Circuit Judges, and HILL, * District Judge.

FLETCHER, Circuit Judge:

Eugene Fitzpatrick, an acting district director of the Immigration and Naturalization Service (INS), appeals from the district court's order directing him to reconsider Miguel Mada-Luna's application for deferred action status under INS Operating Instruction 103.1(a)(1)(ii). The district court ruled that Fitzpatrick improperly reviewed Mada's application under the 1981 version of the Operating Instruction. 1 The

Page 1009

court held the 1981 instruction invalid because the INS promulgated it without the notice-and-comment procedures required by the Administrative Procedure Act (APA), 5 U.S.C. Sec. 553(b)-(d) (1982), and without publishing it in the Federal Register, as required by the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552(a)(1)(D)-(E) (1982). The district court ruled that, as a result, the original, 1978 version of the Operating Instruction was never validly superseded, and that Fitzpatrick was required to review Mada's application under its more "generous" standard. 2 The court therefore granted Mada's habeas petition and remanded his application to the INS. Fitzpatrick appeals. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

In light of our recent decision in Romeiro De Silva v. Smith, 773 F.2d 1021 (9th Cir.1985), issued after the district court's decision, we must reverse and remand. We reject Mada's claim that the INS's promulgation of the 1981 version of the Operating Instruction violated the notice-and-comment requirements of the APA, because the amended Operating Instruction qualifies under the APA's exception for "general statements of policy." We also reject Mada's claim that the application of the 1981 Instruction in his case violated the FOIA's publication requirements. Therefore, we conclude that the district court

Page 1010

had no authority to overturn Fitzpatrick's decision.
FACTUAL BACKGROUND

Mada is a Mexican alien, convicted in 1981 for a narcotics violation. He was incarcerated for one year and then paroled. When he was released, the INS initiated deportation proceedings against him based upon his conviction, and he was ordered deported in 1983. Mada then applied to Fitzpatrick, as the acting district director, for deferred action status under the 1978 version of Operating Instruction 103.1(a)(1)(ii). Fitzpatrick denied the application in November, 1983, and in December, 1983, denied a supplemental application. 3

To support his application for deferred action, Mada stated that he had resided in the United States for seventeen years, and had no criminal record other than his single narcotics conviction. He submitted letters from prison officials and his parole officer characterizing him as a model prisoner and an outstanding parolee. Moreover, Mada stated that between the time of his narcotics arrest and trial, he had worked as an undercover operative for the United States Drug Enforcement Agency (DEA), and furnished evidence that this involvement has subjected him and his family to significant danger. While working for the DEA in Sonora, Mexico, Mada and his wife allegedly were kidnapped by drug traffickers, held at gunpoint, and released only when they promised to pay a ransom of about $20,000. According to Mada, he has not paid the ransom, and has, as a result, received a series of telephone calls from Mexico threatening his life if he returns there, several of which he transcribed and submitted to the INS. Finally, Mada indicated in his applications that both his wife and daughter are United States citizens.

Fitzpatrick rejected both of Mada's applications for deferred action status, concluding that besides his narcotics conviction, Mada had been "a habitual violator of the Immigration laws" and had lied to the INS under oath on at least two occasions. Furthermore, Fitzpatrick concluded, based on the evidence presented to him, that the death threats against Mada did not result directly from his work for DEA, but instead were made by his former criminal associates who are now seeking repayment for the narcotics seized from Mada when he was arrested in 1981. For all these reasons, Fitzpatrick chose not to defer action on Mada's deportation.

Mada initiated the present action for habeas relief in district court. The court granted his petition, concluding that application of the 1981 Operating Instruction in Mada's case violated the APA and FOIA. The court remanded Mada's case to the INS for consideration of his deferred action application pursuant to the original, 1978 Operating Instruction.

ANALYSIS

Mada's challenge to Fitzpatrick's denial of his application for deferred action status focuses exclusively upon the validity of the 1981 Operating Instruction and its applicability to his petition. Mada contends that the 1981 Operating Instruction was never validly promulgated because of the INS's failure to comply with the APA's notice-and-comment requirements and the FOIA's publication requirements, and that it therefore never validly superseded the original, 1978 Operating Instruction. He maintains that as a result, he is entitled to have his petition reviewed under the 1978 Operating Instruction, and that based upon our decision in Nicholas v. INS, 590 F.2d

Page 1011

802 (9th Cir.1979), he is entitled to judicial review of that determination. See footnote 2, supra.

Mada does not challenge the manner in which Fitzpatrick applied the 1981 Operating Instruction in his case or the decision that Fitzpatrick reached based upon it. Mada conceded at the district court that he would have "no claim of entitlement nor substantive rights" if the 1981 Operating Instruction applied to his petition. Moreover, any challenge to the merits of Fitzpatrick's determination under the 1981 Operating Instruction would be foreclosed by our decision in Romeiro, where we held that courts have no authority to review denials of deferred action status petitions under the 1981 version of the Instruction. See Romeiro, 773 F.2d at 1024-25; see also 5 U.S.C. Sec. 701(a)(2) (limiting judicial review of agency actions where they have been "committed to agency discretion by law"--presumably, the provision applied in Romeiro ). 4

We conclude that Mada's challenges based on the APA and the FOIA to the application of the 1981 Operating Instruction in his case are without merit. We conclude that Fitzpatrick properly applied the amended Operating Instruction in reviewing Mada's petition, and that the district court had no authority to remand Mada's petition to the INS for review under the 1978 Operating Instruction.

A. STANDARD OF REVIEW

We review de novo the district court's decision on Mada's petition for writ of habeas corpus. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir.1986); Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir.1986); see also Staatz v. Dupnik, 789 F.2d 806, 808 (9th Cir.1986). We also review de novo the district court's determinations on issues of statutory interpretation, including the scope of the notice-and-comment and publication requirements imposed by the APA and the FOIA. See Swanson v. United States, 789 F.2d 1368, 1370 (9th Cir.1986); Sierra Switchboard Co. v. Westinghouse Electric Corp., 789 F.2d 705, 707 (9th Cir.1986); In re Nunn, 788 F.2d 617, 618 (9th Cir.1986).

B. MADA'S CHALLENGE UNDER THE APA

Mada challenges the validity of the 1981 Operating Instruction based on the INS's failure, when it promulgated the amended Instruction, to follow the notice-and-comment procedures prescribed in APA section 553. 5 The INS's replacement of the original,

Page 1012

1978 version of the Operating Instruction with the 1981 version involves two separate procedural aspects: (1) the repeal of the 1978 Instruction; and (2) the promulgation of the 1981 Instruction. Each of these two agency "actions" constitutes "rulemaking" under the APA, and therefore each action independently triggers section 553's notice-and-comment requirements unless it qualified for one of the exceptions contained in that provision. See 5 U.S.C. Secs. 551(5) (defining "rule making" under the APA as "agency process for formulating, amending, or repealing a rule") (emphasis added), 553(b)-(d); Consumer Energy Council of America v. FERC, 673 F.2d 425, 446 & n. 76 (D.C.Cir.1982) ("the APA expressly contemplates that notice and an opportunity to comment will be provided prior to agency decisions to repeal a rule"), aff'd sub nom. Process Gas Consumers Group v. Consumer Energy Council of America, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 1403, 1413, reh'g denied, 436 U.S. 1250, 104 S.Ct. 40, 77 L.Ed.2d 1457 (1983); accord Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 816-17 (D.C.Cir.1983); Brown Express, Inc. v. United States, 607 F.2d 695, 699 & n. 3 (5th Cir.1979); Arlington Oil Mills, Inc. v. Knebel, 543 F.2d 1092, 1098-99 (5th Cir.1976); National Wildlife Federation v. Clark, 577 F.Supp. 825, 828 (D.D.C.1984); see also Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 41, 51-52, 103 S.Ct. 2856, 2865, 2870-71, 77 L.Ed.2d 443 (1983); Flores v. Bowen, 790 F.2d 740, 742 (9th Cir.1986) ("properly enacted regulations have the force of law and are binding on the government until properly repealed").

Fitzpatrick maintains that both the 1978 and...

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