The Ninth Circuit Court of Appeals has affirmed the federal district court’s preliminary injunction in Barahona-Gomez v. Reno, a class action lawsuit challenging the actions of officials of the Executive Office for Immigration Review purporting to implement the 4,000-person cap on suspension/adjustment grants imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

In ruling against the government’s appeal, the Ninth Circuit affirmed the district court’s subject matter jurisdiction to issue the injunction and concluded that the lower court had acted properly in issuing it.  The appellate court also rejected a separate appeal filed by the government challenging a requirement that it provide notice to class members when their suspension applications are denied.  Finally, the court remanded for further consideration certain issues relating to the composition of the case’s class, issues that emerged following the enactment of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA).

Of the many changes to immigration law wrought by the IIRIRA, two precipitated the underlying litigation.  First, IIRIRA section 309(c)(7) imposed a 4,000-person cap on suspension of deportation and adjustment of status grants the attorney general may grant in a fiscal year. Under prior law, no such cap existed.  Second, as the Ninth Circuit observed, "IIRIRA section 309(c)(5) fundamentally altered [the seven-year continuous physical presence requirement for suspension of deportation] by terminating an individual’s accumulation of time . . . when that person [is] served with an Immigration and Naturalization Service notice to appear." Both changes were slated to become effective on Apr. 1, 1997.

Concerned that the EOIR had nearly reached the 4,000-person cap for the fiscal year that began on Oct. 1, 1997, Chairman Paul W. Schmidt of the Board of Immigration Appeals and Chief Immigration Judge Michael J. Creppy both issued directives on Feb. 13, 1997, instructing the BIA and immigration courts not to grant further suspension applications pending additional guidance.  (For more on these directives, see "Suspension Grants Near 4,000 Cap," Immigrants’ Rights Update, Mar. 17, 1997, p. 2).

Soon after, the plaintiffs in Barahona filed suit in the U.S. District Court for the Northern District of California, seeking injunctive relief against the postponement of their cases.  On Mar. 28, 1997, the district court issued a preliminary injunction and provisional class certification for individuals who may have been ordered deported after being denied suspension based on IIRIRA section 309(c)(5).  Six months later, the lower court modified the injunction to require the government to notify class members when their suspension applications are denied based on the new rule for calculating accumulated continuous physical presence.  The government filed separate appeals, one challenging the district court’s denial of its motion to vacate the preliminary injunction and the other contesting the notice requirement.  This decision consolidates both appeals.

The Ninth Circuit first considered the government’s contention that after the IIRIRA became fully effective on Apr. 1, 1997, the district court lost subject matter jurisdiction under new Immigration and Nationality Act section 242(g).  In rejecting this argument, the court followed the reasoning set forth in Walters v. Reno, another class action that was litigated in the Ninth Circuit.  The court noted a number of important parallels, highlighting the due process dimension common to the claims made in both cases.  In neither case, the court held, do the plaintiffs assert constitutional challenges to mask their claims’ true nature.  And in both cases, the plaintiffs’ objective is not to seek judicial review of the merits of their INS proceedings "‘but rather to enforce their constitutional rights to due process in the context of those proceedings.’"  Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998).  Accordingly, despite INA section 242(g) (which disallows all courts from hearing "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"), the Ninth Circuit affirmed the district court’s jurisdiction to issue its preliminary injunction.

The court then considered whether the preliminary injunction order was properly issued.  After noting the bases on which such orders can be reversed, the court reviewed the traditional criteria for granting injunctive relief and determined that the plaintiffs met the requirement established by Ninth Circuit case law that the moving party demonstrate "‘either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of the hardships tips sharply in its favor’" (citation omitted).  While the court declined to comment on their ultimate resolution, it identified five legitimate questions raised by the plaintiffs that warranted the injunction’s issuance.  Such questions included (1) whether the Creppy and Schmidt directives violated the Administrative Procedures Act; (2) whether the directives violated the due process requirement articulated in U.S. ex. rel. Accardi v. Shaughnessy (i.e., that the BIA must exercise its own judgment when considering appeals); (3) whether the directives were issued within the regulatory authority granted to the BIA chair and chief immigration judge; (4) whether the language of the statute, which links suspensions of deportation with adjustments of status, does not actually impose a restriction on the number of deportation suspensions the attorney general may grant; and (5) whether the directives had the effect of applying the 4,000 annual limitation prior to the section’s Apr. 1, 1997 effective date.  In addition to the "serious questions" raised, the appeals court agreed with the lower court’s finding that the balance of hardships weighed heavily in the plaintiffs’ favor.

Next, the Ninth Circuit rejected the government’s assertion that the district court erred in requiring that the INS give notice to class members.  While plaintiffs in class actions are normally expected to bear the cost of providing notice to the class, in this case the defendants would not be unduly burdened by having that requirement placed on them, the Ninth Circuit held.  The appellate court agreed that it would be simple for the defendants to attach notices to orders denying class members’ suspension applications, especially in light of the government’s failure to make a showing as to any additional costs it would bear as a result of the notice requirement.

The Ninth Circuit closed its opinion by identifying questions concerning the composition of the Barahona class that are raised by the NACARA’s enactment and advised the district court to examine them further.  The appellate court noted that the NACARA, whose passage was prompted in part by concerns raised in the underlying litigation, amended IIRIRA section 309(c)(5) to provide special rules governing applications for suspension of deportation and cancellation of removal by certain qualifying individuals.  Because of the high likelihood that such persons may also be members of the certified class, the Ninth Circuit advised the lower court to reexamine class composition, the propriety of creating subclasses, and whether certain named plaintiffs should continue in that role.  The entire matter was remanded for continued litigation, as were the questions concerning class composition in light of the NACARA.