Tefel v. Reno

• Decision Date: 20 May 1997
• Docket Number: No. 97-0805-CIV.,97-0805-CIV.
• Citation: 972 F.Supp. 608
• Parties: Roberto TEFEL, et al., on behalf of themselves and all others similarly situated, Plaintiffs/Petitioners, v. Janet RENO, Attorney General of the United States; Robert Wallis, District Director; Immigration and Naturalization Service and Department of Justice, Board of Immigration Appeals, Defendants/Respondents.
• Court: U.S. District Court — Southern District of Florida

972 F.Supp. 608

Roberto TEFEL, et al., on behalf of themselves and all others similarly situated, Plaintiffs/Petitioners, v. Janet RENO, Attorney General of the United States; Robert Wallis, District Director; Immigration and Naturalization Service and Department of Justice, Board of Immigration Appeals, Defendants/Respondents.

No. 97-0805-CIV.

United States District Court, S.D. Florida.

May 20, 1997.

Order Denying Stay May 22, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ira J. Kurzban, Kurzban, Kurzban, Weinger & Tetzeli, P.A., Miami, FL, Elliot H. Scherker, Oscar Levin, Greenberg, Traurig, Hoffman, Rosen & Quentel, P.A., Esther Olavarria Cruz, Vincente Tome, Rebecca Sharpless, Florida Immigration Advocacy Center, Miami, FL, Mario Martin Lovo, Mario M. Lovo, P.A., Miami, FL, Mary E. Kramer, Law Offices of Mary E. Kramer, Miami, FL, Linda Kelly, St. Thomas Law School, Miami, FL, Mario Louis, Miami, FL, Ernesto Varas, Law Office of Ernesto Varas, Miami, FL, Kari Woodward Carranza, Jeannette Mirabal, Law Offices of Magda Montiel Davis, Miami, FL, Robert L. Boyer, Law Offices of Robert L. Boyer, Miami, FL, for Plaintiffs.

Dexter A. Lee, Asst. U.S. Atty., Miami, FL, David Bernal, Senior Litigation Counsel, Office of Immigration Litigation, Dept. of Justice, Washington, DC, F. Franklin Amanat, Nelda C. Reyna, Trial Attorney, Office

of Immigration Litigation, Dept. of Justice, Washington, DC, Ernesto Molina, Trial Attorney, Office of Immigration Litigation, Dept. of Justice, Washington, DC, Laura M. Friedman, Trial Attorney, Office of Immigration Litigation, Dept. of Justice, Washington, DC, for Defendants.

ORDER DENYING MOTION TO DISMISS, CERTIFYING CLASS AND APPOINTING LEAD COUNSEL, GRANTING TEMPORARY RESTRAINING ORDER, AND SETTING PRELIMINARY INJUNCTION HEARING FOR MAY 27, 1997

JAMES LAWRENCE KING, District Judge

THIS CAUSE is before the Court on the Plaintiffs' Motion for Temporary Restraining Order, Plaintiffs' Motion for Provisional Class Certification, and Defendants' Motion to Dismiss for Lack of Jurisdiction. The Court heard the Plaintiffs' evidence in support of the Motion for Temporary Restraining Order on May 13, 1997, and the Defendants, after having been given an overnight recess to determine whether they wished to present evidence in opposition to the motion, announced that they would not present any testimony or evidence. The Court thereupon heard the argument of counsel for the parties on the pending motions on May 14, 1997. Counsel were given full opportunity to present all arguments in support of their positions, and the Court has also had for its consideration the extensive and thorough memoranda submitted by the parties.

THE DEFENDANTS' MOTION TO DISMISS

The Defendants have moved to dismiss the complaint on several grounds: (1) that the Court does not have jurisdiction in this cause under § 242(g) of the Immigration and Nationality Act ("INA"), as enacted by Section 306 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"); (2) that only the United States Court of Appeals for the Eleventh Circuit has jurisdiction to review final orders of deportation; and (3) that the Plaintiffs have not exhausted their administrative remedies. After reviewing the parties' memoranda and hearing oral argument of counsel, the Court finds that the Defendants' motion is without merit and should be denied.

The well established standard for evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is whether the complaint, taken literally with all averments therein treated as true and correct, states a claim for relief. The controlling rule in the Eleventh Circuit is that a complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would support relief. E.g., Pataula Electric Membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir.), cert. denied, 506 U.S. 907, 113 S.Ct. 302, 121 L.Ed.2d 225 (1992). Applying this standard, and having carefully reviewed the parties' memoranda and their legal arguments at the hearing in this matter, the Court determines that it has jurisdiction in this cause.

First, there is a strong presumption that the actions of federal agencies are reviewable in the federal courts unless nonreviewability is explicitly demonstrated in the statutory language. E.g., Felker v. Turpin, ___ U.S. ___, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 2135-36, 90 L.Ed.2d 623 (1986); Rosas v. Brock, 826 F.2d 1004 (11th Cir. 1987); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967) ["Judicial review is the rule ... and nonreviewability is a narrow exception which must be clearly demonstrated."]

This presumption is even stronger where denial of review would preclude even colorable constitutional claims. Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988). Even where statutes have facially barred judicial review of agency action, the Supreme Court has interpreted them to permit review of constitutional claims. See, e.g., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 491-95 111 S.Ct. 888, 896-97, 112 L.Ed.2d 1005 (1991); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Most recently, the Fifth Circuit Court of Appeals in Anwar v. I.N.S., 107 F.3d 339 (5th Cir. 1997) reached the same conclusion notwithstanding language in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") precluding all review for criminal aliens.

The Defendants rely upon the language of § 242(g), which statute declares that, "[e]xcept as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any client arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." The Court has determined that the statute does not bar the exercise of the Court's federal question jurisdiction for several reasons.

First, the statute on its face does not bar this action. The plain statutory language only precludes judicial review of "the decision or action of the Attorney General." The statute does not bar the review of the decisions or actions of lower level government officials. The Immigration and Nationality Act ("INA") specifically defines the Attorney General as "the Attorney General of the United States" and no one else. INA § 101(a)(5), 8 U.S.C. § 1101(a)(5) ["The term `Attorney General' means the Attorney General of the United States"].

This Court's reading of INA § 242(g) is consistent with its plain language and the principles governing statutory construction of preclusion statutes. Where statutory language is clear on its face, as here, the inquiry ends and no review of the legislative history or administrative practice is necessary or appropriate. Ratzlaf v. U.S., 510 U.S. 135, 146 and n. 18, 114 S.Ct. 655, 662 and n. 18, 126 L.Ed.2d 615 (1994); Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 603, 112 L.Ed.2d 608 (1991); U.S. v. Kirkland, 12 F.3d 199 (11th Cir.1994).

Nor does this Court's reading of INA § 242(g) lead to an unreasonable result, although if it did, the plain language would still control. Commissioner of Internal Revenue v. Asphalt Products Co., 482 U.S. 117, 121, 107 S.Ct. 2275, 2278, 96 L.Ed.2d 97 (1987); Peabody Coal Co. v. Navajo Nation, 75 F.3d 457, 468 (9th Cir.1996). Restricting review of the specific decisions of the Attorney General only and not lower level governmental officials is consistent with the principle that persons at the highest levels of government may be accorded deference while lower level officials may not. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). Under the Defendants' reading of the statute any immigration decision of any person who works, in any way, for the Department of Justice would be insulated from review. A reading of the statute that broad should not be presumed where the statute on its face expresses an unambiguous contrary intent.¹

Defendants' interpretation of the statutes would also lead to a complete abolition of all judicial review for deportation cases commencing before April 1, 1997, a result that the Court cannot find to be explicitly commanded by the statutory language. Section 242(g)of the INA expressly prohibits judicial review of deportation orders "[e]xcept as provided in this section and notwithstanding any other provision of law." The remainder of INA § 242, which contains the only judicial review procedures excepted from this bar, does not apply to deportation proceedings that were initiated prior to April 1, 1997. Section 309(c) of IIRIRA provides that the new judicial review amendments under § 306 of IIRIRA (which create INA § 242) do not apply to deportation cases instituted prior to the April 1, 1997 effective date. IIRIRA § 309(c)(1)(A). Such proceedings, including judicial review, shall continue to be conducted without regard to § 242. IIRIRA § 309(c)(1)(B).

Because Plaintiffs are in deportation proceedings that were initiated prior to April 1, 1997, their cases would be governed by the pre § 242 statutory scheme. If, however, the Court were to adopt Defendants' construction of § 242(g), all judicial review of pre-April 1, 1997 deportation cases would be entirely barred, a result that would raise serious constitutional issues.² The Court, however, chooses to adopt a common-sense interpretation of the statutes, under which claims arising from pre-April 1, 1997 deportations will be governed by the statutes as they existed prior to § 242, while cases in which the Attorney General elects to proceed under the new statutory...