Xiao v. Reno, No. C-90-0350 WHO.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtOrrick
Citation963 F.Supp. 874
PartiesWang Zong XIAO, Plaintiff, v. Janet RENO, in her capacity as Attorney General of the United States, et al., Defendants.
Decision Date01 May 1997
Docket NumberNo. C-90-0350 WHO.
963 F.Supp. 874
Wang Zong XIAO, Plaintiff,
Janet RENO, in her capacity as Attorney General of the United States, et al., Defendants.
No. C-90-0350 WHO.
United States District Court, N.D. California.
May 1, 1997.

Cedric C. Chao, Ruth N. Borenstein, Sue C. Hansen, Morrison & Foerster, San Francisco, CA, for Plaintiff.

Michael Yamaguchi, U.S. Atty., Stephen L. Schirle, Chief, Civ. Div., Alberto E. Gonzales, Sp. Asst. U.S. Atty., San Francisco, CA, Janet Reno, Atty. Gen., Frank W. Hunger, Asst. Atty. Gen., Gary G. Grindler, Deputy Asst. Atty. Gen., Civ. Div., Washington, DC, Mark C. Walters, Asst. Director, Christine Bither, Michael Y.F. Sarko, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for Defendants.


ORRICK, District Judge.

Plaintiff's motion to obtain travel documents came before the Court on March 13, 1997. The Court, having considered the pleadings, and having had the benefit of oral argument of counsel, denies the motion for the reasons stated by the Court at the hearing, and for the reasons that:

Page 875

1. A preliminary question raised by the government is whether the recent passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("Act"), Pub.L. 104-208, 110 Stat. 3009 (Sept. 30, 1996), divests this Court of jurisdiction over this case. The government does not point to any specific provision in the Act, but the Court's reading of the lengthy enactment reveals one passage applicable to the government's argument concerning this Court's jurisdiction. That provision reads:

(g) Exclusive Jurisdiction

Except 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 alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. 104-208, § 306(a)(2), now codified at 8 U.S.C. § 1252(g) (Supp.1997). The Act further provides that its jurisdiction-stripping provisions apply retroactively. See id. at § 306(c) (codified at 8 U.S.C. § 1252 Note).

2. The final words of § 306(a)(2), however, limit the scope of the provision to proceedings and orders "under this chapter." "This chapter" refers to Chapter 12 of Title 8 entitled "Immigration and Nationality." See 8 U.S.C. § 1101 et seq. (1970) The Court did not retain jurisdiction to review any decision or action of the government with regard to its adjudication under the Title 8. Thus, the Act does not divest the Court of jurisdiction over this matter. Rather, as the Court of Appeals found, this Court's jurisdiction arose from its power to redress the government's due process violations. Wang Zong Xiao v. Reno, 81 F.3d 808, 816 (9th Cir.1996). Thus, the Act...

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