Barahona-Gomez, et al. v. Reno, et al.: 9th Circuit Affirms Preliminary Injunction in Class Action Case for Suspension Applicants

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BARAHONA-GOMEZ, ET AL. V. RENO, ET AL.: 9TH CIRCUIT AFFIRMS PRELIMINARY INJUNCTION IN CLASS ACTION CASE FOR SUSPENSION APPLICANTS
Immigrants' Rights Update, Vol. 15, No. 1, Feb. 28, 2001

[FOR MORE INFORMATION, SEE http://www.nilc.org/immlawpolicy/index.htm#litigation.]

The Ninth Circuit Court of Appeals has issued a supplemental decision affirming the federal district court's preliminary injunction in Barahona-Gomez v. Reno, a class action lawsuit challenging the actions of Executive Office for Immigration Review officials 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). The court originally issued a decision affirming the injunction in February 1999 (see "9th Circuit Affirms Preliminary Injunction in Class Action Suspension Case," Immigrants' Rights Update, Apr. 30, 1999, p. 7). However, after the Supreme Court decided Reno v. American-Arab Anti-discrimination Committee, 525 U.S. 471 (1999) (AADC), the court requested further briefing addressing the district court's jurisdiction in light of AADC. The supplemental decision affirms the court's jurisdiction and remands the case to the district court for further proceedings.

This litigation challenges directives that were issued by Chairman Paul W. Schmidt of the Board of Immigration Appeals and Chief Immigration Judge Michael J. Creppy on Feb. 13, 1997. These directives instructed the BIA and the immigration courts not to grant further suspension applications pending additional guidance. The directives were based on the concern of these officials that, under their interpretation of section 309(c)(7) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the EOIR had nearly reached the 4,000-person cap for the fiscal year that began on Oct. 1, 1997. The directives had the most severe impact on applicants served with an Order to Show Cause (OSC) before accumulating seven years' continuous physical presence in the United States. For these individuals, the directives imposed more than a mere delay in the resolution of their cases. They faced the loss of their eligibility for suspension, since under the BIA's interpretation of IIRIRA section 309(c)(5), they would no longer be eligible once the "stop-time" rule took effect on Apr. 1, 1997. (For a further discussion of this issue, see "9th Circuit Decides Stop-Time Rule Applies to Suspension Cases, Bars Accumulating Time after Issuance of OSC," this page).

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 appealed both rulings, and the Ninth Circuit consolidated the appeals.

In its first decision, the Ninth Circuit upheld the district court's jurisdiction and the issuance of the preliminary injunction. The court reviewed the traditional criteria for granting preliminary injunctive relief and determined that the plaintiffs met the requirement that moving parties 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. 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. The appeals court also agreed with the lower court's finding that the balance of hardships weighed heavily in the plaintiffs' favor. Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999) (Barahona I).

After issuing the decision in Barahona I, the court requested further briefing from the parties concerning the district court's jurisdiction. On Jan. 10, 2001, the court issued a supplemental opinion affirming the district court's jurisdiction. The court found that the Supreme Court's decision in AADC lends further support to the Ninth Circuit's finding of jurisdiction in Barahona I. AADC concerned the scope of INA section 242(g), which limits the authority of courts to review claims arising from a "decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders" except as authorized by section 242. The Ninth Circuit noted that the Supreme Court in AADC "repeatedly characterized this statutory provision as 'narrow.'" Moreover, the Supreme Court explicitly rejected the contention that section 242(g) applies to any claims arising from deportation proceedings apart from the "three discrete events along the road to deportation" stated in the statute-the decision to commence proceedings, adjudicate cases, or execute removal orders. AADC, 525 U.S. at 482. And as an example of decisions that are not barred from review under section 242(g), the Court mentioned a decision to reschedule a deportation hearing.

The Ninth Circuit concluded that the reference in section 242(g) to claims arising from decisions to "adjudicate cases" encompasses only challenges to determinations not to decide cases, in the exercise of discretion. Accordingly, the court concluded that section 242(g) does not bar jurisdiction over this case. The court also rejected the argument that section 242(f) bars the injunction issued in this case. Section 242(f) limits injunctive relief in cases challenging specified provisions of the INA. However, as the court found, this provision does not apply to deportation proceedings.

Having affirmed the district court's jurisdiction, the court remanded the case to the district court for further proceedings, including determining the impact of the Nicaraguan Adjustment and Central American Relief Act (NACARA) on the class. In its first decision, the court had identified questions concerning the composition of the Barahona class raised by the NACARA's enactment and advised the district court to examine them further. The appellate court had 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 the composition of the class, the propriety of creating subclasses, and whether certain named plaintiffs should continue in that role.

Barahona-Gomez, et al. v. Reno, et al., __ F.3d __, No. 97-15952 (9th Cir. Jan. 10, 2001).