Mada-Luna v. Fitzpatrick
Decision Date | 30 March 1987 |
Docket Number | No. 84-1988,MADA-LUN,P,84-1988 |
Citation | 813 F.2d 1006 |
Court | U.S. Court of Appeals — Ninth Circuit |
Parties | Migueletitioner-Appellee, v. Eugene M. FITZPATRICK, Acting District Director, Immigration & Naturalization Service, Respondent-Appellant. |
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.
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.
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 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) ( ). 4
802 (9th Cir.1979), he is entitled to judicial review of that determination. See footnote 2, supra.
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.
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).
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 Fitzpatrick maintains that both the 1978 and the 1981 Operating Instructions qualify for the "general statements of policy" exception contained in section 553. We agree. 5 U.S.C. Secs. 553(b)(A), 553(d)(2); Romeiro, 773 F.2d at 1025. Therefore, we conclude that the INS was not required under section 553 to conduct notice-and-comment proceedings either to repeal the 1978 Operating Instruction or to promulgate the 1981 Operating Instruction. Romeiro, 773 F.2d at 1025. 6
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) ( )(emphasis added), 553(b)-(d); Consumer Energy Council of America v. FERC, 673 F.2d 425, 446 & n. 76 (D.C.Cir.1982) (), 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....
To continue reading
Request your trial-
J.L. v. Cissna, Case No. 18-cv-04914-NC
...replaces agency discretion with a new "binding rule of substantial law." Colwell , 558 F.3d at 1124 (quoting Mada-Luna v. Fitzpatrick , 813 F.2d 1006, 1013–14 (9th Cir. 1987) ) (alterations in original).Here, some of the language used in the CHAP is couched in terms that appear to suggest t......
-
Envtl. Def. Fund v. U.S. Envtl. Prot. Agency
...in an individual case." Colwell v. Dep't of Health & Hum. Servs. , 558 F.3d 1112, 1124 (9th Cir. 2009) (quoting Mada–Luna v. Fitzpatrick , 813 F.2d 1006, 1013 (9th Cir. 1987) ). A rule that "merely provides guidance to agency officials in exercising their discretionary power while preservin......
-
S.A. v. Trump, Case No. 18-cv-03539-LB
...of policy that did not require notice and comment, it could also be rescinded without those procedures. This proposition finds support in Mada-Luna , in which we concluded that a deferred-action Operating Instruction constituted a general statement of policy, and thus could be validly repea......
-
Lake Mohave Boat Owners Ass'n v. National Park Service
...from food stamp program based on Agriculture Department's reliance on unpublished regulations in violation of FOIA); Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir.1987) (alien claimed INS relied on unpublished operating instructions in violation of APA). However, the aggrieved party need......
-
REASONABLE TAX RULES: ADVANCING PROCESS VALUES WITH REMEDIAL RESTRAINT.
...for enforcement action or other agency action to confer benefits or ensure the performance of duties"). But see Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir. 1987) (focusing on whether there is binding effect on the (268.) See Bullock v. IRS, 401 F. Supp. 3d 1144 (D. Mont. 2019); ......
-
SUBMERGED INDEPENDENT AGENCIES.
...unless he makes an 'initial showing' that 'he was adversely affected by the lack of publication.'" (quoting Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1018 (9th Cir. (194) See OFR Publishing Services, U.S. GOV'T PUBL'G OFF., https://www.gpo.gov/ofr-publishing-services [https://perma.cc/M9FX-3......
-
Reforming Federal Vacancies
...[an acting officer] may be doing things, but it might not come in a particular concrete action").107. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987) (first citing Guardian Federal Sav. & Loan Ass'n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 666-67 (D.C. Cir. 1968); and......
-
Section 404 Regulation of Irrigation Ditches in Colorado
...slip op. at 15-18 (S.D.Fla. Sept. 28, 2010). 33. Id. 34. Id. 35. Id. at 18. 36. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987) (agency policy statements operate not only to inform the public of the agency's future plans and priorities for exercising its discretionary auth......