Pablo v. Immingration & Naturalization Serv., 97-16694

• Decision Date: 08 October 1998
• Docket Number: No. 97-16694,97-16694
• Citation: 189 F.3d 1130
• Parties: (9th Cir. 1999) PROYECTO SAN PABLO; JOHN A.; JOHN F.; JOHN M., individually and on behalf of others similarly situated; JANE T., individually and on behalf of others similarly situated; JOHN G., individually and on behalf of others similarly situated; JANE B., individually and on behalf of others similarly situated; JANE R.; JANE L.; JOHN V.; JOHN H.; JANE F.; JOHN J.; JOHN T.; JOHN L.; JOHN S.,Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE; DEPARTMENT OF STATE; JANET RENO, Attorney General; DORIS MEISSNER, Commissioner, INS; MARY MULREAN, Director, Legalization Appeals Unit; WARREN CHRISTOPHER, Secretary of State, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1130

189 F.3d 1130 (9th Cir. 1999)

PROYECTO SAN PABLO; JOHN A.; JOHN F.; JOHN M., individually and on behalf of others similarly situated; JANE T., individually and on behalf of others similarly situated; JOHN G., individually and on behalf of others similarly situated; JANE B., individually and on behalf of others similarly situated; JANE R.; JANE L.; JOHN V.; JOHN H.; JANE F.; JOHN J.; JOHN T.; JOHN L.; JOHN S.,Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE; DEPARTMENT OF STATE; JANET RENO, Attorney General; DORIS MEISSNER, Commissioner, INS; MARY MULREAN, Director, Legalization Appeals Unit; WARREN CHRISTOPHER, Secretary of State, Defendants-Appellees.

No. 97-16694

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 8, 1998--San Francisco, California

Decided September 3, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Robert Pauw, Gibbs Houston Pauw, Seattle, Washington, for the plaintiffs-appellants.

M. Jocelyn Lopez Wright, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; William D. Browning, District Judge, Presiding. D.C. No. CV-89-00456-WDB.

Before: Procter Hug, Jr., Chief Judge, Betty B. Fletcher and Stephen S. Trott, Circuit Judges.

B. FLETCHER, Circuit Judge:

Plaintiffs, a class of non-citizens whom the Immigration and Naturalization Service (INS) deems are unlawfully present in the United States, appeal the district court's order dismissing for lack of subject matter jurisdiction their complaint against the INS. Plaintiffs contend that the district court erred in concluding that it lacked jurisdiction over their constitutional and statutory challenges to the procedures followed by the INS in administering a legalization program under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, 8 U.S.C. S 1255a (IRCA). We reverse in part, affirm in part, and remand.

BACKGROUND

I. IRCA and the Legalization Application Process

IRCA established a scheme under which certain aliens unlawfully present in the United States can apply to become legal residents. The scheme allows aliens to apply first for lawful temporary resident status, and then, after a one-year wait, for permanent residency. See generally 8 U.S.C. S 1255a. This process is known as "legalization."

The general eligibility requirements for legalization are fourfold. Legalization applicants must have: (1) applied for legalization during a twelve month period beginning May 5, 1987; (2) resided unlawfully in the United States continuously since at least January 1, 1982; (3) been physically present in the United States continuously since November 6, 1986; and (4) been otherwise admissible as an immigrant. See 8 U.S.C. SS 1255a(a)(1)-(4). Any alien applying for legalization is required to submit a completed application and fee to an INS office or designated private organization. See 8 U.S.C. S 1255a(c)(1); 8 C.F.R. S 245a.2(e). When applying for legalization, the applicant must include supporting documents establishing certain elements of eligibility, including continuous residence in the United States. After an interview with a legalization officer, the application form, supporting documents, and any notes taken by the legalization officer are forwarded to a Regional Processing Facility (RPF) for adjudication. See generally 8 C.F.R. S 245a.2.

The RPF bases its determination on both the application materials and whatever prior file the INS has pertaining to the applicant. The INS does not provide the applicant with a copy of that prior file. If the file indicates that the applicant was deported after January 1, 1982, the RPF denies the application. See 8 U.S.C. S 1255a(g)(2)(B)(i). The INS then sends the applicant a notice stating the reasons for denial, and informing the applicant that he may appeal the denial within thirty days. The notice of denial also informs the applicant that if he chooses to appeal, he may submit additional evidence, a brief, or other written statements in support of his application. See 8 C.F.R. S 103.3(a)(2)(x)(3).

The Legalization Appeals Unit (LAU) reviews appeals from RPF denials. This review is based on the administrative record established at the time of the RPF's denial, and on any newly discovered information not previously available. See 8 U.S.C. S 1255a(f)(3)(B). If a legalization applicant wishes to gain access to documents in his prior deportation file for use in his appeal, he must submit a request for information pursuant to the Freedom of Information Act/Privacy Act (FOIA). See generally 8 C.F.R. S 103.21. The procedures for making a FOIA request were published in the federal register, but the INS does not directly notify legalization applicants of those procedures.

Judicial review of the LAU's decision is available only in the court of appeals, as part of its review of a separate order of deportation. See 8 U.S.C. 1255a(f)(4)(A). Thus, until the INS initiates deportation proceedings against an alien who unsuccessfully applies for legalization, that alien has no access to substantive judicial review of the LAU's denial.¹ When judicial review is available, it is based solely on the administrative record established at the time of the LAU's denial. See id. at (f)(4)(B). Thus, if an applicant submits a FOIA request for his prior deportation file while his LAU appeal is pending but does not receive the file until after the LAU renders its decision, information in the file can play no role in any judicial review of the LAU's decision.

II. The Class

Named Plaintiffs are one organization² and fourteen individuals. The district court certified the class as comprising "those aliens who, at an INS legalization office located within the INS Western and Northern Regions of the United States, made application for change of status under the IRCA; to whose application 8 U.S.C. S 1255a(g)(2)(B)(i) was applied; and whose application was denied." Proyecto San Pablo v. INS, 784 F. Supp. 738, 740 (D. Ariz. 1991) (San Pablo I).³ Thus, individual Plaintiffs are aliens who applied for legalization and were denied on the basis of alleged prior deportations on or after January 1, 1982.

III. Procedural Background

Plaintiffs first filed suit in August, 1989, alleging that the INS interpreted and implemented IRCA in an unlawful manner. Specifically, Plaintiffs alleged that the INS wrongly interpreted its own regulations to mean that any prior departure from the United States by an alien against whom an order of deportation had been issued was "based on an order of deportation," regardless of the actual circumstances of the departure. Plaintiffs also alleged that the INS unlawfully refused to accept their requests to have waived their ineligibilty for legalization.

The district court granted partial summary judgment in Plaintiffs' favor, and ordered the INS to make certain substantive changes to its interpretation and administration of IRCA. The INS appealed the district court's ruling. A panel of this Circuit reversed the district court's order for lack of subject matter jurisdiction. Specifically, the panel held that the district court's order constituted substantive review of denials of legalization applications. Such review violated IRCA's exclusive review provisions, which specify that only the court of appeals has jurisdiction to exercise such review, and only when reviewing a subsequent order of deportation. See Pro

yecto San Pablo v. INS, 1995 WL 688845, 70 F.3d 1279 (9th Cir. Nov. 20, 1995) (unpublished memorandum disposition) (San Pablo II). The panel then remanded the case for the district court to determine whether Plaintiffs raised any procedural claims. Specifically, the panel directed the district court to clarify the reasons for its original order:

If the district court ordered the changes to allow the aliens to present an adequate record for appeal, then the order was within the court's jurisdiction. If the order was issued solely to cause the INS to change its interpretation of 8 U.S.C. S 1255a(g)(2)(B)(i), then the order is invalid.

Id. at *4.

On remand, Plaintiffs moved for and received leave to file an amended complaint. The amended complaint added some new named Plaintiffs, and focused on the procedural aspects of the original complaint. The INS then moved to dismiss Plaintiffs' amended complaint under Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief can be granted). The district court granted the motion on June 17, 1997, focusing solely on its lack of subject matter jurisdiction.⁴ See Proyecto SanPablo v. INS, 4 F. Supp. 2d 881 (D. Ariz. 1997) (San Pablo III). This appeal followed.

DISCUSSION

We review de novo the district court's dismissal for lack of subject matter jurisdiction. See Naranjo-Aguilera v. INS, 30 F.3d 1106, 1109 (9th Cir. 1994).

I. District Court Jurisdiction Under IRCA -General Principles

Under 8 U.S.C. S 1255a(f)(1) as contained in IRCA, "[t]here shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection." Furthermore, "[t]here shall be judicial review of a [denial by the LAU] only in the judicial review of an order of deportation." 8 U.S.C. S 1255a(f)(4)(A). Judicial review of orders of deportation is confined to the courts of appeals. Id. at S 1105a (as in effect before Oct. 1, 1996). Whether this exclusive review scheme precludes district court jurisdiction over Plaintiffs' claims is the gravamen of this appeal.⁵

In Reno v. Catholic Social Services, 509 U.S. 43 (1993) (CSS), the Supreme Court held that district court jurisdiction over IRCA-related claims depends on the satisfaction of two conditions. First, the claim must fall outside the...