Tefel v. Reno, 98-4616.

• Decision Date: 14 July 1999
• Docket Number: No. 98-4616.,98-4616.
• Citation: 180 F.3d 1286
• Parties: Roberto TEFEL, et al., Plaintiffs-Appellees, v. Janet RENO, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

180 F.3d 1286

Roberto TEFEL, et al., Plaintiffs-Appellees, v. Janet RENO, et al., Defendants-Appellants.

No. 98-4616.

United States Court of Appeals, Eleventh Circuit.

July 14, 1999.

COPYRIGHT MATERIAL OMITTED

Frank Hunger, Asst. Attorney General, Laura M. Friedman, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Adalberto Jordan, Miami, FL, for Defendants-Appellants.

Ira Jay Kurzban, Miami, FL, for Plaintiffs-Appellees.

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.^*

HULL, Circuit Judge:

This class action involves the application of the recently enacted "stop-time" rule for determining eligibility for suspension of deportation. Appellants Janet Reno, Attorney General of the United States; Robert Wallis, Miami District Director of the Immigration and Naturalization Service; the Immigration and Naturalization Service; the United States Department of Justice; and the Board of Immigration Appeals (collectively the "INS") appeal two orders: (1) the district court's order entering a class-wide preliminary injunction prohibiting the enforcement of section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") as amended by the Nicaraguan and Central American Relief Act ("NACARA"), and (2) the district court's order denying the INS' motion to dissolve the preliminary injunction.

Appellees/Plaintiffs ("Plaintiffs") are members of a class of aliens within Georgia, Alabama, and Florida who were placed in deportation proceedings prior to IIRIRA. Plaintiffs challenge the application of IIRIRA § 309(c)(5), which effectively renders Plaintiffs ineligible for "suspension of deportation" under section 244 of the Immigration and Nationality Act ("INA") prior to the repeal of INA § 244 by IIRIRA. After review, we vacate the injunction, reverse the denial of the INS' motion to dissolve the injunction, and remand for further proceedings consistent with this opinion.

I. The Stop-Time Rule

Prior to IIRIRA's amendments to the INA, an alien facing deportation could apply for "suspension of deportation." In order to be eligible for suspension of deportation, an alien was required to establish four factors. INA §§ 244(a)(1) & (2), 8 U.S.C. §§ 1254(a)(1) & (2) (1991). One of these factors was that the alien had been "physically present in the United States for a continuous period of not less than" ten years after becoming deportable or seven years after applying for suspension of deportation. Id.¹ Prior to IIRIRA, the time an alien spent in deportation proceedings counted toward the physical-residence requirement.

Among its many revisions to the INA, IIRIRA repealed the suspension-of-deportation provision of INA § 244 and replaced it with new INA § 240A providing for the "cancellation of removal." IIRIRA § 304(a). IIRIRA also enacted the "stop-time" provision for determining an alien's eligibility for suspension of deportation or cancellation of removal. IIRIRA § 304(a)(3) (enacting INA § 240A(a)). Under new INA § 240A(a), a permanent resident alien is eligible for cancellation of removal if, among other things, the alien "has resided in the United States continuously for 7 years after having been admitted in any status." 8 U.S.C. § 1229b(a) (Supp.1998). Similarly, a nonpermanent resident alien is eligible for cancellation of removal if, among other things, the alien "has been physically present in the United States for a continuous period of not less than 10 years immediately preceding" the application for cancellation of removal. 8 U.S.C. § 1229b(b) (Supp.1998). Under the new "stop-time" provision, however, an alien's period of residence or continuous physical presence in the United States is deemed to end once the alien has been served with a "notice to appear" for removal proceedings or commits a criminal offense described in INA § 244A(d)(1), 8 U.S.C. § 1229b(d)(1) (Supp.1998).²

Shortly after the enactment of IIRIRA, the BIA held that the new "stop-time" rule applied to aliens who had applied for suspension of deportation prior to IIRIRA's enactment. Matter of N-J-B, Int. Dec. 3309 (BIA 1997).³ Citing IIRIRA § 309(c)(5), which provides the "Transitional Rule with Regard to Suspension of Deportation", the BIA concluded that the stop-time provision of INA § 240A(d) applied to aliens placed in deportation proceedings before the September 30, 1996 date of IIRIRA's enactment.⁴ Under the BIA's application of IIRIRA § 309(c)(5), an alien's continuous period of presence in the United States is deemed to end once deportation proceedings are commenced, even if the alien was facing deportation and had applied for suspension of deportation prior to IIRIRA's enactment on September 30, 1996.

II. Plaintiffs' Class-Action Complaint

On March 28, 1997, Plaintiffs filed a class-action complaint in the United States District Court for the Southern District of Florida challenging the BIA's interpretation of the applicability of the stop-time provision. The asserted Plaintiff class consisted of aliens from various countries including Nicaragua, Haiti, Malaysia, and Iran. All of the Plaintiffs had entered the United States more than seven years earlier but were placed in deportation proceedings before they had accumulated seven years of continuous physical presence in the United States.

In their complaint, Plaintiffs included four counts of alleged statutory and constitutional violations arising from the BIA's application of IIRIRA's new stop-time provision to aliens in deportation proceedings before IIRIRA's enactment. First, Plaintiffs claimed that the BIA's interpretation of IIRIRA § 309(c)(5) was arbitrary and capricious in violation of the Administrative Procedures Act. Second, Plaintiffs claimed that as applied to aliens in deportation proceedings prior to IIRIRA, the stop-time provision violated Plaintiffs' due process and equal protection rights. Third, the Plaintiffs from Nicaragua alleged an estoppel claim asserting that the INS induced these Plaintiffs into applying for suspension of deportation and then opposed the Nicaraguan Plaintiffs' applications for suspension. Fourth, Plaintiffs claimed that the alien facing deportation in the Matter of N-J-B was wrongfully denied representation during her deportation proceedings.⁵

III. Procedural History

A. Initial Proceedings

On April 17, 1997, Plaintiffs moved for a temporary restraining order or preliminary injunction prohibiting the BIA from deporting any members of the putative Plaintiff class. Plaintiffs also sought to enjoin the INS from applying the stop-time rule to any aliens in deportation proceedings prior to enactment of IIRIRA.

On May 20, 1997, the district court issued an order addressing a number of preliminary issues. First, the court denied the INS' motion to dismiss for lack of jurisdiction. Relying on McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), aff'd on other grounds, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985), and Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982), the district court concluded that it could exercise jurisdiction over Plaintiffs' claims because these claims were not covered by the provision of former INA § 106 that granted the court of appeals exclusive jurisdiction over challenges to deportation proceedings.

In addition to denying the INS' motion to dismiss for lack of jurisdiction, the court granted "provisional class certification" of Plaintiffs' class and appointed lead counsel. The court found that the requirements for class certification under Rule 23(a) were satisfied and that Mr. Kurzban, as lead counsel, was particularly qualified to represent the class.

Although Plaintiffs had moved for "provisional" class certification, the district court apparently granted Plaintiffs final class-action status. The court's May 20, 1997 order did not limit the certification to "provisional" certification, and the record does not indicate that the district court subsequently granted class certification. Indeed, in its subsequent order entering the preliminary injunction, the district court indicated that it had granted Plaintiffs class-action status and identified the class as follows:

All individuals within the states of Georgia, Alabama and Florida who have been or will be denied suspension of deportation as a result of the BIA's decision to apply the transitional rule of § 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) retroactively to persons who have sought or are seeking suspension of deportation.

Finally, in its May 20, 1997 order, the district court granted Plaintiffs' motion for a temporary restraining order enjoining the INS from, inter alia, deporting any members of the Plaintiff class. The district court first determined that Plaintiffs had established a substantial likelihood of success on their claim that the BIA had misinterpreted IIRIRA § 309(c)(5)(a) in Matter of N-J-B. The district court held that IIRIRA § 309(c)(5)(a) provided that the stop-time provision in INA § 240A(d) applied only to aliens who applied for suspension of deportation and were placed in removal proceedings after IIRIRA's general effective date of April 1, 1997. The court also found a likelihood of success on Plaintiffs' constitutional claims and the estoppel claims asserted by the class members from Nicaragua.

Furthermore, the district court found that Plaintiffs had established the other factors required for preliminary injunctive relief—(a) irreparable harm from class members being deported and in many cases separated from their families, (b) balance of the harms in favor of Plaintiffs since the only harm to the INS would be having to process Plaintiffs' applications for suspension of deportation, and (c) the public interest in avoiding the potentially wrongful deportation of a...