Montes v. Thornburgh

• Decision Date: 16 November 1990
• Docket Number: No. 88-5682,88-5682
• Parties: Jose R. MONTES; Eduardo Castro; Juan A. Monterrosa, Plaintiffs-Appellees, v. Richard L. THORNBURGH; Roy Daniel, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 531

919 F.2d 531

Jose R. MONTES; Eduardo Castro; Juan A. Monterrosa Plaintiffs-Appellees, v. Richard L. THORNBURGH; Roy Daniel, Defendants-Appellants.

No. 88-5682.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 10, 1989.

Decided Nov. 16, 1990.

Ellen Sue Shapiro and Carl H. McIntyre, Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

Peter A. Schey, Center for Human Rights and Constitutional Law, Los Angeles, Cal.; Sandra Pettit, Legal Aid Foundation of Los Angeles, Los Angeles, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, FARRIS and CANBY, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

A group of political asylum applicants sought injunctive and declaratory relief against filing requirements imposed by Immigration Judge Daniel in addition to those required by INS regulations. After suit was filed, the Executive Office for Immigration Review (EOIR) suspended the additional requirements and reopened deportation proceedings in those cases in which asylum applications had been rejected for failure to comply with them. The district court dismissed the action as moot, but awarded fees to plaintiffs under the Equal Access to Justice Act (EAJA). The government appeals, raising no issues under EAJA but arguing the district court was without power to award fees because it lacked jurisdiction over the underlying action. We affirm.

I.

An INS regulation (8 C.F.R. Sec. 208.2) requires asylum applicants to complete form I-589, which calls for personal data regarding the applicant and conclusory recitations disclosing the basis for the application. In addition Immigration Judge Daniel required applicants to submit an affidavit setting forth in detail the specific factual basis of their claim, affidavits of witnesses or written offers of proof signed by counsel reflecting the testimony of all proposed witnesses, and copies of all documentary or other evidence to be offered at the hearing. Any applicant not meeting these requirements was "deemed to have ABANDONED his/her request for asylum." (emphasis in original notice). Judge Daniel also reviewed the contents of completed applications, including those accompanied by the additional documentation, and rejected those that failed to meet an unstated standard of sufficiency. ¹ Upon rejecting an application for filing Judge Daniel fixed a date for voluntary departure. If the applicant failed to comply, an order of deportation was entered.

Judge Daniel's refusal to permit the applicants to file their applications completed in accordance with the regulations denied those applicants the benefit of a number of rights. Applicants for political asylum who file complete and timely applications are eligible for asylum proceedings, deportation withholding proceedings and temporary employment authorization. See 8 C.F.R. Secs. 208.3, 208.4, 242.17(c). As the Board of Immigration Appeals (BIA) pointed out:

Under the facts presented and controlling regulations, the immigration judge was required to forward the application to the Bureau of Human Rights and Humanitarian Affairs for an advisory opinion, provide the respondent the opportunity to inspect, explain and rebut that opinion, provide the parties the opportunity to present evidence for the record in deportation proceedings regarding the application, and rule on merits of the application. See 8 C.F.R. Secs. 208.6 and 208.10(b), (c), (e) and (f).

In re Marina Isabel Palma-Callejas, No. A27 209 610 (BIA 1986).

A group of attorneys met with Judge Daniel informally to express concern over the additional filing requirements, but Judge Daniel took no action. As the trial court pointed out, district counsel for the Los Angeles District Office of the INS announced the practice "would continue, unless challenged by a lawsuit." The Chief Immigration Judge knew of Judge Daniel's filing requirements six months before appellees filed this lawsuit, but did nothing.

On June 23, 1986, appellees filed this suit on behalf of themselves and a proposed class of asylum applicants ². They sought injunctive and declaratory relief on the ground that the additional requirements violated INS regulations, the due process clause and the 1967 Protocol Relating to the Status of Refugees, TIAS 6577, 19 U.S.T.S. 6223. Two days later, the Chief Immigration Judge suspended Judge Daniel's additional requirements and directed that copies of the suspension order be sent to all parties whose asylum applications had been rejected for filing. In July, INS moved to reopen the cases of all members of the proposed class who could be identified.

In the meantime one of the applicants whose petition had been rejected as incomplete had sought administrative relief by appealing to the BIA. On August 1, 1986, the BIA declared Judge Daniel's filing requirements invalid. Palma-Callejas, supra. Shortly thereafter the Immigration Judge and the BIA granted the government's motions to reopen the remaining cases.

The district court rejected the government's claims that section 106(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a, vested exclusive jurisdiction to review deportation orders in the Courts of Appeal, and that administrative remedies were not exhausted as required by Sec. 1105a(c) and by applicable case law. Nonetheless, the district court found appellees no longer needed injunctive or declaratory relief because the government had agreed to stay the deportation of applicants whose applications had been rejected for filing, to reopen the deportation proceedings of these applicants, and to notify appellees before reinstating any of the challenged filing requirements.

Appellees requested attorneys' fees under the Equal Access to Justice Act. 28 U.S.C. Sec. 2412(d)(1)(B) (EAJA). The district court awarded fees against Judge Daniel but not against the Attorney General or the EOIR. The government appeals the award of attorneys' fees. ³

II.

The parties agree a court must have jurisdiction over an action before it may award fees under EAJA. See 28 U.S.C. Sec. 2412(d)(1)(A). We review questions of subject matter jurisdiction de novo. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989). The district court's factual findings on jurisdictional issues must be accepted unless clearly erroneous. Id.

The government's argument is that the district court did not have jurisdiction over the underlying cause of action because appellees are attacking final orders of deportation, and 8 U.S.C. Sec. 1105a(a) vests exclusive jurisdiction in the court of appeals to review "all final orders of deportation ... made against aliens within the United States pursuant to administrative proceedings under section 1252(b) [deportation hearings]". Appellees respond that they are not seeking review of individual orders of deportation, but are challenging the policy or practice followed by Judge Daniel in processing claims for asylum.

The Supreme Court has construed "final orders of deportation" under Sec. 1105a(a) as including rulings upon which the validity of the deportation order is contingent. INS v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983). Thus, orders denying requests for discretionary relief sought during deportation proceedings, Foti v. INS, 375 U.S. 217, 232, 84 S.Ct. 306, 315, 11 L.Ed.2d 281 (1963), or rejecting challenges to House vetoes of orders suspending deportation, Chadha, 462 U.S. at 938, 103 S.Ct. at 2777, come within the exclusive review provisions of Sec. 1105a(a).

Nevertheless, section 1105a(a) does not "embrace[ ] all determinations 'directly affecting the execution of' a final deportation order." Cheng Fan Kwok v. INS, 392 U.S. 206, 213, 88 S.Ct. 1970, 1975, 20 L.Ed.2d 1037 (1968). As the Supreme Court noted, "if Congress had wanted to go that far, presumably it would have known how to say so." Id. at 213-14, 88 S.Ct. at 1974-75. In Cheng Fan Kwok, the Supreme Court held an order denying a stay of deportation was not a final order encompassed within section 1105a(a)'s exclusive review provisions because the alien "did not attack the deportation order itself but instead [sought] relief not inconsistent with it." Id. at 213, 88 S.Ct. at 1975 (citation omitted).

Section 1105a(a) also does not apply to suits alleging a pattern and practice by immigration officials which violates the constitutional rights of a class of aliens. Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir.1982) (disapproved on other grounds, Jean v. Nelson, 727 F.2d 957, 976 n. 27 (11th Cir.1984) (en banc), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). See also International Union, United Automobile Workers v. Brock, 477 U.S. 274, 285, 106 S.Ct. 2523, 2530, 91 L.Ed.2d 228 (1986) (claims that a program is being operated in contravention of a federal statute or the Constitution may be brought in federal court even where statute bars review of individual eligibility determinations).

In Haitian Refugee Center v. Smith, plaintiffs sued in district court challenging INS' use of expedited administrative procedures to process Haitian asylum applications. The court distinguished the exclusive jurisdiction of the courts of appeal under Section 1105a to review "alleged procedural irregularities in an individual deportation hearing to the extent these irregularities may provide a basis for reversing an individual deportation order " from "the authority of a district court to wield its equitable powers" when confronted with "a program, pattern or scheme by immigration officials to violate the constitutional rights of aliens." 676 F.2d at 1033 (emphasis in original). The Fifth Circuit emphasized that the district court had no authority to rule on the merits of the underlying issue of deportability or entitlement to discretionary relief as to any...