Williams v. I.N.S.

• Decision Date: 24 July 1986
• Docket Number: No. 84-4186,84-4186
• Parties: Russel K. WILLIAMS, et ux., Petitioners-Appellees, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 738

795 F.2d 738

Russel K. WILLIAMS, et ux., Petitioners-Appellees, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.

No. 84-4186.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 3, 1986.

Decided July 24, 1986.

Robert J. Crotty, Spokane, Wash., for petitioners-appellees.

Donald A. Couvillon, Washington, D.C., for respondent-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, SNEED, and SCHROEDER, Circuit Judges.

SNEED, Circuit Judge:

The Immigration and Naturalization Service (INS) appeals from the district court's grant of a writ of habeas corpus reinstating the privilege of voluntary departure for the Williams's. We reverse.

I. FACTS

On September 19, 1974, Mr. and Mrs. Williams (hereafter referred to in the singular) entered the United States from Canada with a nonimmigrant visa. On April 14, 1981, because Williams had not complied with the terms of his visa, he conceded deportability before an immigration judge in Deportation Proceedings. He was granted three months voluntary departure. On December 2, 1981, the Board of Immigration Appeals (BIA) affirmed. On February 26, 1982, the period for voluntary departure expired, but Williams did not leave the country. On April 22, 1982, Williams secured a five-day temporary restraining order from a federal district judge in the Eastern District of Washington, preventing the INS from arresting him, and enabling him to file a petition for review with the Ninth Circuit and thus to avoid deportation. On April 27, 1982, Williams filed a petition for review by the Ninth Circuit of the BIA's affirmance of the Deportation Proceedings.

On October 7, 1982, Williams filed with the BIA a motion to reopen for suspension of deportation (Motion to Reopen # 1). The BIA denied that motion on December 17, 1982, and Williams appealed to the Ninth Circuit on February 16, 1983. On February 28, 1984, the Ninth Circuit affirmed, 730 F.2d 769, by memorandum disposition, the BIA's decisions on the Deportation Proceedings and on Motion to Reopen # 1.

Meanwhile, in October of 1982, Williams had applied to the Department of Labor for a labor certification. The Department of Labor issued such a certification on April 12, 1984, with a priority date of October 5, 1982. The May 1984 State Department bulletin established that Williams' priority date qualified him for the immediate issuance of an immigrant visa. At this point, Williams resembled Tantalus. To receive the immigrant visa he was required to leave the country and return to Canada, his country of origin; but his leaving the country under the recently affirmed order of deportation would have destroyed his right to obtain the immigrant visa, because such visas cannot be issued to persons who have been deported within the preceding five years.

Anticipating this frustrating development, on April 2, 1984, Williams filed a second motion to reopen his deportation proceedings to obtain reinstatement of the privilege of voluntary departure (Motion to Reopen # 2). This reinstatement would have extricated Williams. If he received voluntary departure, he could leave this country, receive his immigrant visa in Canada, and return directly to this country. But this avenue of escape was threatened by closure. On May 2, 1984, on the basis of the Ninth Circuit's affirmance of the BIA's decisions on the Deportation Proceedings and Motion to Reopen # 1, the INS issued a notice to report for deportation on May 10. On May 7, the District Director stayed these notices until June 21 so as to allow Williams' children to complete the school year. And on May 24, the BIA further clogged Williams' escape route by denying Motion to Reopen # 2. The BIA based its denial on defects in the petition, as well as on its own underlying discretion. At this point, Williams appeared trapped. He had no pending challenge to the notice to report for deportation on June 21, 1984. The INS, as if to lower the fruit for which Tantalus yearned, on June 13 approved the immigrant visa. Being scheduled for deportation shortly, Williams knew One more route was possibly open. On June 19, Williams filed a petition for a writ of habeas corpus in the federal district court for the Eastern District of Washington. It worked. Williams broke free. That court granted the writ, reversing the BIA's denial of Motion to Reopen # 2 and giving Williams the privilege of voluntary departure. Williams and his family returned to Canada, received the immigrant visa, and are now residing in this county as permanent resident aliens. Frustration now besets the INS. It can only appeal to us and does so with some spirit. The appeal, as the INS stoutly insists, raises some difficult jurisdictional issues that we must address before any consideration of the merits.

that if deported he would never get the visa.

II. MOOTNESS

Although Williams did not raise the argument in his brief and the INS rejects it, we must consider initially whether this case has become moot. See Canez v. Guerrero, 707 F.2d 443, 446 (9th Cir.1983). Because Williams has reentered this country as a permanent resident alien, it is not clear that the INS will have any remedy against him even if we should reverse the writ of habeas corpus entered by the district court. Because Williams did not contend that the case is moot, the government's brief does not detail the steps the government intends to take against Williams if it prevails on this appeal. At oral argument, however, the government firmly indicated its intention to attempt to deport Williams while he, belatedly, asserted mootness.

In deciding this question, we start with the basic question "whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties." 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3533, at 212 (2d ed. 1984). We also are mindful that the "burden of demonstrating mootness 'is a heavy one.' " County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) ).

For several reasons, we do not accept Williams' assertion of mootness made at oral argument. First of all, the government's continuing desire to deport Williams makes this controversy real for both parties. An order affirming the district court's order of habeas corpus would put an end to the government's efforts; an order reversing the writ would open the way for further government action. We need not know what that action might be, ¹ nor need we evaluate the likelihood that the government will succeed in deporting Williams to recognize that he still has a stake in this appeal. ²

Our conclusion is bolstered, although not controlled, by our statements that a continuing dispute as to jurisdiction is sufficient to prevent a finding of mootness. See Brown v. Board of Bar Examiners, 623 F.2d 605, 608-09 (9th Cir.1980); United States ex rel. Cobell v. Cobell, 503 F.2d 790, 794 (9th Cir.1974) (noting that "there is a public interest in having the issue now before the court resolved" because "it also directly involves the vital jurisdictional harmony of two sovereign entities"), cert. denied, 421 U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666 (1975); cf. United States v. Trans-Missouri Freight Association, 166 U.S. 290, 309-10, 17 S.Ct. 540, 546-47, 41 L.Ed. 1007 (1897) (relying on the government's interest in determining the legality of an agreement though the defendants voluntarily dissolved the association).

For these reasons, we do not believe the case is moot. Accordingly, we proceed to discuss the district court's jurisdiction.

III. JURISDICTION

The jurisdictional provisions of the Immigration and Nationality Act are not models of clarity. Resolution of the question presented by this case requires examination of two separate questions: first, the reach of the circuit court's exclusive jurisdiction under section 106(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a(a), and second, the manner in which that exclusive jurisdiction must be adjusted to accommodate the provision for habeas corpus in section 106(a)(9), 8 U.S.C. Sec. 1105a(a)(9). These are not issues never before addressed, but, interestingly enough, the second has been infrequently discussed.

A. Exclusive Jurisdiction Under Section 106(a)

In 1961, Congress amended the Immigration and Nationality Act to provide for exclusive judicial review in the courts of appeals of "all final orders of deportation ... made ... pursuant to administrative proceedings under section 242(b) of this Act." Act of Sept. 26, 1961, Pub.L. No. 87-301, Sec. 5(a), 75 Stat. 650, 651 (codified at 8 U.S.C. Sec. 1105a(a) ). The purpose of this change was to expedite the deportation process by eliminating district court review of these petitions, which customarily had been followed by an appeal to a court of appeals. See Foti v. INS, 375 U.S. 217, 221-27, 84 S.Ct. 306, 309-13, 11 L.Ed.2d 281 (1963).

The order in this case--the denial of a motion to reopen to reinstate voluntary departure--is not, strictly speaking, a final order of deportation. The Supreme Court's interpretation of section 106(a) makes clear, however, that this order comes within the reach of the section 106(a) grant of exclusive jurisdiction. In Foti, the Court held that section 106(a) extended to denials of discretionary relief occurring during section 242(b) proceedings. Foti left open, however, the status of motions to reopen, which are decided by the BIA. That issue was apparently resolved the following term in Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) (per curiam). Giova, a one-sentence disposition, reversed a Ninth Circuit decision that had refused to entertain an appeal from denial of a motion to reopen. See Giova v....