El Rescate Legal Services, Inc. v. Executive Office of Immigration Review

• Decision Date: 10 March 1992
• Docket Number: No. 90-55292,90-55292
• Citation: 959 F.2d 742
• Parties: EL RESCATE LEGAL SERVICES, INC., Central American Refugee Center, Shamila Ramin, Fereshteh Entemadi, et al., Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW; David Milhollan, William R. Robie, Robert M. Moschorak, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 742

959 F.2d 742

EL RESCATE LEGAL SERVICES, INC., Central American Refugee Center, Shamila Ramin, Fereshteh Entemadi, et al Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW; David Milhollan William R. Robie, Robert M. Moschorak, et al Defendants-Appellants.

No. 90-55292.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 10, 1991.

Decided Aug. 12, 1991.

As Amended on Grant of Rehearing and Denial of Rehearing En

Banc March 10, 1992.

Francesco Isgro, Office of Immigration Litigation, Washington, D.C., for defendants-appellants.

Lee A. O'Connor, San Fernando Valley Neighborhood Legal Services, Pacoima, Cal. and Linton Joaquin, National Immigration Law Center, Los Angeles, Cal., for plaintiffs-appellees.

Maureen B. Callahan, Salem, Or. and Richard J. Higgins, Immigration Reform Law, Washington, D.C., for amici curiae.

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

Before BEEZER, HALL and TROTT, Circuit Judges.

ORDER

The panel has unanimously voted to grant the petition for rehearing filed August 26, 1991, and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no judge in active service has requested a vote to rehear the matter en banc. An amended

opinion is filed herewith and the clerk shall issue the mandate forthwith.

OPINION

BEEZER, Circuit Judge:

The district court granted Plaintiffs' request for a permanent injunction requiring full interpretation of all immigration court proceedings on the ground that partial interpretation violates rights established by the Immigration and Nationality Act (I & NA). The Executive Office of Immigration Review (EOIR) appeals, arguing that the district court had no jurisdiction to consider Plaintiffs' claims and that the court erred on the merits. We hold that the district court did have jurisdiction, and we reverse. We remand for consideration of Plaintiffs' claims that the EOIR's application of the Board of Immigration Appeals' (BIA) policy, not to interpret many portions of immigration court hearings, denies Plaintiffs their rights, privileges and opportunities under the I & NA and the Constitution.

I

Plaintiffs brought a class action on behalf of all non- and limited-English-speaking individuals who currently are or will be subject to immigration court proceedings in the Los Angeles, El Centro and San Diego immigration courts. El Rescate Legal Servs. v. Executive Office for Immigration Review, 727 F.Supp. 557, 558 n. 1 (C.D.Cal.1989). Their complaint alleges that the EOIR ¹ engages in a policy and practice of using incompetent translators and of not interpreting many portions of immigration court hearings. ² The complaint alleges that this practice deprives class members of their statutory rights to present evidence, to cross-examine witnesses, and to be represented and effectively assisted by retained counsel. The complaint alleges further that the same policy and practice violates the due process and equal protection guarantees of the Fifth Amendment. Finally, the complaint alleges a violation of the Administrative Procedure Act (APA).

The district court concluded that the

EOIR's failure to require full interpretation of immigration court proceedings seriously undermines the plaintiffs' statutory right to be present at their proceedings, their right to counsel, their right to examine evidence, and their right to confront and cross-examine witnesses.

Id. at 560. For the same reasons, the court concluded that the EOIR policy violated the APA. Id. at 564. The court granted summary judgment in favor of Plaintiffs and permanently enjoined the EOIR "from failing to provide for interpretation of the entire proceedings in immigration court when an immigration judge concludes that an interpreter is required for non- or limited-English speaking class members." ³ The EOIR appeals this judgment. ⁴

II

The EOIR argues that the district court did not have jurisdiction to entertain Plaintiffs' suit because Plaintiffs did not exhaust their administrative remedies. The EOIR claims that both statutory and prudential considerations require exhaustion before a federal court may address Plaintiffs' claims. We review a question of subject matter jurisdiction de novo. Montes v. Thornburgh, 919 F.2d 531, 534 (9th Cir.1990).

"When a statute requires exhaustion, a petitioner's failure to do so deprives this court of jurisdiction." Reid v. Engen, 765 F.2d 1457, 1462 (9th Cir.1985). The I & NA establishes review by the courts of appeals as the exclusive means of reviewing final orders of deportation. 8 U.S.C. § 1105a(a). Final orders of exclusion may be reviewed only in a habeas corpus proceeding. Id. § 1105a(b). "An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations." Id. § 1105a(c).

The statutory exhaustion requirement of section 1105a(c) is coextensive with the exclusivity provision of section 1105a(a). Montes, 919 F.2d at 537. Therefore, exhaustion of administrative remedies is statutorily required only if appellees are seeking to attack a final order of deportation or exclusion.

We have joined a number of other circuits in drawing a distinction between jurisdiction to rule on the merits of an individual deportation order and jurisdiction to rule on an alleged pattern and practice of constitutional or statutory violations. See Montes, 919 F.2d 531; National Center for Immigrants' Rights, Inc. v. INS (NCIR III), 913 F.2d 1350, 1352 (9th Cir.1990), rev'd on other grounds, --- U.S. ----, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991); National Center for Immigrants' Rights, Inc. v. INS (NCIR I), 743 F.2d 1365, 1368-69 (9th Cir.1984); see also Salehi v. District Director, INS, 796 F.2d 1286, 1290 (10th Cir.1986); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1032-33 (5th Cir.1982), overruled on other grounds, Jean v. Nelson, 727 F.2d 957 (11th Cir.1984); Jean v. Nelson, 727 F.2d 957, 979-80 (11th Cir.1984) (statutory as well as constitutional questions), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985).

In Montes, a class of asylum applicants brought suit in district court for injunctive relief regarding requirements for filing for asylum. We determined that we did not have exclusive jurisdiction under section 1105a(a) and therefore that exhaustion was not required. 919 F.2d at 534-38. We adopted the distinction, first drawn by the Eleventh Circuit, between

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 " [and] "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." [Haitian Refugee Center ], 676 F.2d at 1033 (emphasis in original).

Montes, 919 F.2d at 535. We concluded that the district court had jurisdiction over the claim because the "appellees were not seeking to set aside individual deportation orders, but to obtain injunctive and declaratory relief to protect the rights of a class." Id. at 536.

The Supreme Court recognized a similar distinction in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), in which an alien petitioned this court for review of his deportation order, arguing that a provision of the I & NA allowing either the Senate or the House of Representatives unilaterally to invalidate the Attorney General's suspension of his deportation was unconstitutional. The Supreme Court held that the alien properly appealed directly to the court of appeals. In reaching its conclusion, the Court distinguished Chadha, in which the alien "directly attack[ed] the deportation order itself, and the relief he [sought]--cancellation of deportation--[was] plainly inconsistent with the deportation order," id. at 939, from a case such as the one before us, in which the alien "did not attack the deportation order itself but instead [sought] relief not inconsistent with it." See id. at 938 (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968)).

The plaintiffs in the present case do not challenge the validity of any deportation or exclusion order or of any ruling in an immigration proceeding. They challenge instead the failure of the INS to require translation of all exclusion or deportation proceedings in their entirety. As in Montes, "the relief ... sought [is] not inconsistent with a valid deportation order, because if appellees prevailed they 'would gain only the right to remain in this country so long as it took the Attorney General to rule' " on their eligibility to be admitted into or to remain in the United States. See Montes, 919 F.2d at 536 (quoting Salehi, 796 F.2d at 1291; citing Cheng Fan Kwok, 392 U.S. at 213, 88 S.Ct. at 1974-75); see also NCIR III, 913 F.2d at 1352 ("The district court had jurisdiction since [plaintiffs] challenged the blanket provision on constitutional and statutory grounds and did not seek a review on the merits of any individual determination."). Because the appellees do not challenge final orders of deportation or exclusion, they are not required by statute to exhaust administrative remedies.

The EOIR urges us to require exhaustion even if we find no statutory requirement. In the absence of a statutory mandate, we have applied a prudential exhaustion requirement in cases in which:

(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the...