Navarro v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS P. NAVARRO; BELEM 

CAROLINA NAVARRO, No. 04-70324

Petitioners, Agency Nos.

v.  A74-364-026

MICHAEL B. MUKASEY,* Attorney A74-789-491

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 20, 2006—Pasadena, California

Filed March 4, 2008

Before: Harry Pregerson, Ronald M. Gould, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Pregerson;

Concurrence by Judge Clifton

*Michael B. Mukasey is substituted for his predecessor, Alberto Gon-

zales, as Attorney General of the United States, pursuant to Fed. R. App.

P. 43(c)(2).

1983

1986 NAVARRO v. MUKASEY

COUNSEL

Kevin A. Bove, Escondido, California, for the petitioners.

NAVARRO v. MUKASEY 1987

Peter D. Keisler, Assistant Attorney General, Civil Division,

United States Department of Justice, David Bernal, Assistant

Director, Anthony C. Payne, Attorney, Office of Immigration

Litigation, Civil Division, Washington, D.C., for the respon-

dent.

OPINION

PREGERSON, Circuit Judge:

Petitioners Carlos Navarro and Belem Carolina Navarro

(the “Navarros”) moved the Board of Immigration Appeals

(“BIA”) to reopen their deportation proceedings on the basis

that they qualified for the benefits of the Barahona-Gomez v.

Ashcroft, 243 F. Supp. 2d 1029 (N.D. Cal. 2002) (“Barahona-

Gomez II”), class action settlement.1 That settlement allows

certain eligible aliens to apply for suspension of deportation

under the less stringent pre-Illegal Immigration Reform and

Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-

208, 110 Stat. 3009 (1996), as amended by Pub. L. No. 104-

302, 110 Stat. 3656 (1996), continuous physical presence

standard. Id. at 1033. The BIA found that the Navarros did not

qualify for Barahona-Gomez relief and denied their motion to

reopen. The Navarros now seek our review of the BIA’s

order. We have jurisdiction and, for the reasons that follow,

grant the Navarros’ petition for review.

BACKGROUND

Because this case requires us to interpret the Barahona-

Gomez settlement and to determine whether the Navarros

qualify for its benefits, we begin with a discussion of the

events that gave rise to the settlement followed by a discus-

sion of the settlement itself.

1

While we refer to Barahona-Gomez v. Ashcroft as “Barahona-Gomez

II,” we refer to the settlement therein as the Barahona-Gomez settlement.

1988 NAVARRO v. MUKASEY

I. The History of the Barahona-Gomez Settlement

Before IIRIRA took effect on April 1, 1997, an alien

against whom deportation proceedings had been commenced

could apply for suspension of deportation, if, among other

things, she had been continuously physically present in the

United States for seven years. See Jimenez-Angeles v. Ash-

croft, 291 F.3d 594, 597 (9th Cir. 2002) (citing 8 U.S.C.

§ 1254 (repealed 1997)). Under the pre-IIRIRA statutory

regime, an alien in deportation proceedings continued to

accrue time toward satisfying the seven-year residency

requirement during the pendency of her immigration proceed-

ings. See id. at 598. The pre-IIRIRA regime set no limit on

the number of applications for suspension of deportation that

the Attorney General could grant. See 8 U.S.C. § 1254(a)

(repealed 1997).

Relevant here, IIRIRA contained a “stop-clock” provision

which provided that an alien stopped accruing time toward the

residency requirement when she was served with a notice to

appear (or an order to show cause (“OSC”) — the pre-IIRIRA

equivalent). See Jimenez-Angeles, 291 F.3d at 598. IIRIRA

also provided that the Attorney General was limited to grant-

ing 4,000 applications for suspension of deportation per fiscal

year. See 8 U.S.C. § 1229b(e)(1). Both changes applied to all

applications for suspension of deportation pending at the time

of IIRIRA’s April 1, 1997, effective date. See Barahona-

Gomez v. Reno, 167 F.3d 1228, 1232 (9th Cir. 1999)

(“Barahona-Gomez I”).

As IIRIRA’s effective date drew near — specifically, by

February 11, 1997 — the Attorney General’s Executive

Office for Immigration Review had already granted approxi-

mately 3,900 applications for suspension of deportation that

fiscal year. See id. Chief Immigration Judge (“IJ”) Michael

Creppy was concerned that the number of suspension applica-

tions granted might exceed IIRIRA’s statutory 4,000 applica-

tion cap. See id. Accordingly, on February 13, 1997, Chief IJ

NAVARRO v. MUKASEY 1989

Creppy directed that all IJs reserve decision on any suspen-

sion of deportation application on which the IJ intended to

grant suspension of deportation, or to make such grants condi-

tional on the number of applications already granted. See id.

The BIA also stopped processing appeals in which a grant of

suspension of deportation relief might result. See id.

In March of 1997, several aliens who were eligible for sus-

pension of deportation under pre-IIRIRA law, but whose

applications would be denied under IIRIRA, sought and won

preliminary injunctive class relief that prevented IJs and the

BIA from implementing Chief IJ Creppy’s directive. See id.

at 1233. We upheld that preliminary injunction on appeal. See

id. at 1238.

In December 2002, the district court for the Northern Dis-

trict of California approved a settlement between Attorney

General John Ashcroft and the class of aliens who had been

adversely affected by Chief IJ Creppy’s directive or its BIA

equivalent. See Barahona-Gomez II, 243 F. Supp. 2d at 1030-

39 (reproducing settlement agreement). The settlement per-

mitted certain eligible aliens to apply for “renewed suspen-

sion” of deportation under the pre-IIRIRA rules. See id. at

1033.

Included among those eligible for relief, according to the

settlement, were “individuals for whom the Immigration

Judge . . . scheduled a merits hearing on a suspension applica-

tion . . . between February 13, 1997 and April 1, 1997, and

the hearing was continued until after April 1, 1997. . . .”

Barahona-Gomez II, 243 F. Supp. 2d at 1031-32. The settle-

ment also required the BIA to reopen cases where it had

denied an application for suspension of deportation “based

solely on [IIRIRA] Section 309(c)(5).” Id. at 1035.2

2

IIRIRA section 309(c)(5) prescribes the scope of application for the

stop-time rule. Congress stated that both paragraphs (1) and (2) of

§ 1229b(d) (which describes the special rules relating to continuous resi-

1990 NAVARRO v. MUKASEY

II. The Navarros’ Petition for Review

The Navarros, brother and sister, are natives and citizens of

Mexico. They entered the United States without inspection on

November 5, 1989, and have since remained.

On October 4, 1996, the Immigration and Naturalization

Service (“INS”)3 issued an OSC, charging the Navarros as

deportable under section 241(a)(1)(B) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. §1227(a)(1)(B), because

they entered the United States without inspection. They were

ordered to appear before an IJ.

After several pro se appearances and continuances, the

Navarros appeared with counsel for their deportation hearing

on March 3, 1997. They conceded deportability and indicated

that they wished to apply for suspension of deportation. The

IJ asked both parties to submit a brief about whether IIRIRA

— the “stop-clock” rule in particular — should apply to the

applications, and continued the Navarros’ deportation hearing

to April 1, 1997.

After receiving testimony from the Navarros and their

mother on April 1, 1997, the IJ denied their applications. The

IJ concluded that the “stop-clock” rule applied as of April 1,

1997 — the date of the hearing — and that, under the new

rule, the Navarros were unable to establish seven years of

continuous physical presence prior to service of the OSCs.

dence or physical presence) were to be applied in deportation proceedings

commenced “before, on, or after” April 1, 1997, IIRIRA’s effective date.

IIRIRA § 309(c)(5), Pub. L. 104-208, as amended by Pub. L. 104-302,

110 Stat. 3656 (1996); see also 8 U.S.C. § 1229b(d).

3

The INS was abolished on March 1, 2003, and its functions were trans-

ferred to the Department of Homeland Security. See Homeland Security

Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205. We refer

to the agency as the INS here, however, because all of the proceedings at

issue in this case took place before the transfer. See Minasyan v. Gonzales,

401 F.3d 1069, 1072 n.4 (9th Cir. 2005).

NAVARRO v. MUKASEY 1991

The Navarros appealed to the BIA. On November 28, 2001,

the BIA affirmed the IJ’s decision in an unpublished order.

On July 21, 2003, the Navarros filed a motion asking the BIA

to reopen their cases on the basis that they were eligible for

Barahona-Gomez relief. The BIA denied their motion,

explaining that they did not qualify as members in the

Barahona-Gomez class. This petition for review followed.

JURISDICTION

We have jurisdiction to review the BIA’s determination of

eligibility for benefits of the Barahona-Gomez settlement. See

Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005).

STANDARD OF REVIEW

Eligibility under Barahona-Gomez is a question of law

reviewed de novo. See id. Our interpretation of the settlement

agreement is governed by principles of California contract

law. See id.

DISCUSSION

I. The Navarros Are “Class Members Eligible for

Relief”

The settlement agreement defines class members eligible

for relief as:

individuals for whom the Immigration Judge either

reserved a decision, or scheduled a merits hearing on

a suspension application under Immigration and

Nationality Act (“INA”) § 244 (as such section

existed in 1996, before amendment by IIRIRA),

between February 13, 1997 and April 1, 1997, and

the hearing was continued until after April 1, 1997

(other than where all three of the following are pres-

ent: the continuance was at the request of the alien,

1992 NAVARRO v. MUKASEY

the alien was represented by an attorney, and the

transcript of the hearing was prepared following an

appeal, and makes clear which party requested the

continuance), and . . . (iv) a decision was issued

denying or pretermitting suspension based on

IIRIRA § 309(c)(5), the appeal was filed, and the

BIA denied the appeal based on IIRIRA § 309(c)(5)

(irrespective of whether further relief was pursued in

federal court, or whether a motion to reopen was

subsequently filed with the BIA).

Barahona-Gomez II, 243 F. Supp. 2d at 1031-32.

[1] This definition can be broken down into two require-

ments: First, the IJ must have (a) either reserved a decision or

“scheduled a merits hearing” on a suspension application

between February 13, 1997 and April 1, 1997, and (b) contin-

ued the hearing “until after April 1, 1997.” Second, the appli-

cation for suspension must have been denied on the basis of

the stop-clock rule. The parties agree that the Navarros’ appli-

cations for suspension of deportation were denied on the basis

of the stop-clock rule. Consequently, the Navarros satisfy the

second requirement. Both parts of the first requirement, how-

ever, require further analysis.

A. “Scheduled a Merits Hearing”

[2] The parties disagree about what it means to say that the

IJ “scheduled a merits hearing” between February 13, 1997,

and April 1, 1997. The Navarros argue that the clause requires

that the IJ undertook the act of setting the hearing between

February 13 and April 1. The Government, in contrast, argues

that to meet this requirement, the IJ must have scheduled the

hearing to take place between February 13 and April 1.4

4

Although a hearing was conducted on March 3, 1997, that hearing can-

not be considered the operative hearing for purposes of our calculations

because it was at that hearing that the Navarros first requested the opportu-

nity to apply for suspension of deportation.

NAVARRO v. MUKASEY 1993

[3] Because the interpretation of this settlement agreement

is governed by California contract law, see Sotelo, 430 F.3d

at 970, we first determine whether the contract language is

clear or ambiguous, see Bank of the West v. Superior Court,

10 Cal. Rptr. 2d 538, 545 (1992). If the contract language is

clear, we give effect to its plain meaning. See id.

[4] We believe that the settlement language is ambiguous

in that it does not support unambiguously either party’s inter-

pretation. To “schedule a merits hearing between x and y

dates” could simply require that the act of scheduling

occurred between x and y dates — the interpretation advanced

by the Navarros. This reading would be more obvious with

the addition of a few words, e.g., stating that the IJ undertake

the act of scheduling a merits hearing “between x and y

dates.” On the other hand, the Government’s interpretation,

that the hearing actually take place between x and y dates,

could also be inferred from the language. Like the Navarros’

interpretation, the Government’s reading would be more read-

ily apparent with the addition of a few words, e.g., it would

be more proper to say “schedule a merits hearing” for a cer-

tain period or to take place between x and y dates. The lan-

guage is reasonably ambiguous and thus the plain meaning of

the settlement agreement is not clear.

[5] Under California rules of contract law, where contract

language is susceptible to multiple interpretations, courts

attempt to discern which interpretation the parties intended.

See Cal. Civil Code § 1636 (“A contract must be so inter-

preted as to give effect to the mutual intention of the parties

as it existed at the time of contracting, so far as the same is

ascertainable and lawful.”); see also id. § 1641 (“The whole

of a contract is to be taken together, so as to give effect to

every part, if reasonably practicable, each clause helping to

interpret the other.”). For the reasons set forth below, we find

that the Navarros have the better reading.

[6] First, the definition of “class members” includes those

who “have had (or would have had) suspension of deportation

1994 NAVARRO v. MUKASEY

hearings conducted before April 1, 1997 . . . .” Barahona-

Gomez II, 243 F. Supp. 2d at 1030-31 (emphasis added).

Thus, the definition is not limited to those whose merits hear-

ings took place before April 1, 1997, but also includes those

whose hearings were scheduled to have taken place before

April 1, 1997, but did not because of a scheduling decision

during the operative period by the IJ.

Second, the Government’s definition does not adequately

cover the relevant group. The Barahona-Gomez settlement

includes those individuals whose suspension of deportation

hearings may have been rescheduled as a result of Chief IJ

Creppy’s February 11th directive. The Government’s defini-

tion, in contrast, would include individuals whose hearings

were not affected by the Creppy directive. For example, under

the Government’s definition, class membership would include

a petitioner whose hearing was scheduled to take place Febru-

ary 13th. Given that there are generally several weeks

between the date that an IJ undertakes the act of scheduling

a hearing and the date that the hearing occurs, it is highly

unlikely that there was adequate time for an IJ to read the

February 11th directive and schedule a hearing to take place

only two days later. Rather, the February 13th hearing would

likely have been scheduled sometime in December or Janu-

ary, long before Chief IJ Creppy issued his directive. As a

practical matter, it is therefore impossible to assume that all

of the hearings scheduled to take place between February 13th

and April 1st were scheduled as a result of the Creppy direc-

tive. Consequently, the Government’s definition is inade-

quate.

It is far more reasonable that the February 13th - April 1st

period refers to the time period that the IJs undertook the act

of rescheduling the suspension of deportation hearings —

something that they could do — for purposes of the

Barahona-Gomez settlement — only after they had read Chief

IJ Creppy’s directive. This definition better adheres to the set-

tlement’s intention that the class include all those whose hear-

NAVARRO v. MUKASEY 1995

ings were rescheduled as a direct result of Creppy’s February

11th directive.5

Two interpretative canons support our holding that the

Navarros’ definition is more appropriate. First, we have con-

sistently held that ameliorative immigration laws enacted by

the legislature to forestall harsh consequences should be inter-

preted in an ameliorative fashion. See Akhtar v. Burzynski,

384 F.3d 1193, 1200 (9th Cir. 2004). This case involves a set-

tlement reached between immigrants and the government

agency charged with interpreting immigration law — an

agreement intended to prevent the harsh consequences of a

government agency’s actions relating to suspension of depor-

tation. Accordingly, that agreement should be interpreted in

an ameliorative fashion. Second, because of the harsh conse-

quences that attach to removal of an alien from the United

States, we have held that doubts in interpretation should be

resolved in favor of the alien. See id. Thus, where the lan-

5

Of course, it is likely that those petitioners who had an interview

scheduled to take place before April 1, 1997, had a better chance of having

a hearing completed before IIRIRA went into effect. Nonetheless, if our

goal is to determine whether an alien’s hearing could have been held

before April 1, 1997, the Government’s interpretation is both over- and

under-inclusive. Many hearings scheduled to take place before April 1,

1997, might not have been completed in one session due to witness avail-

ability, court and attorney schedules, and the sheer amount of testimony

often required to prove elements such as “extreme hardship.” And more

importantly, many petitioners whose hearings were scheduled during the

operative period might have been able to complete the hearing before

April 1, 1997. As discussed above, it appears that the Navarros’ hearing

could have been held before April 1, 1997, but for the court’s request for

additional briefing on an issue that BIA precedent already foreclosed. It

is impossible to reconstruct the IJs’ schedules to determine whether the

adjudication of requests for suspension of deportation made by applicants

like the Navarros could have been completed before IIRIRA took effect.

Nevertheless, it is likely that the parties to the settlement contemplated

using the Navarros’ definition so that those who might have been affected

by Chief IJ Creppy’s order had the opportunity to demonstrate entitlement

to relief.

1996 NAVARRO v. MUKASEY

guage of the settlement is ambiguous, we resolve doubts in

favor of coverage under the settlement.6

[7] In short, if some IJs read Chief IJ Creppy’s directive to

encourage delaying suspension of deportation hearings until

IIRIRA applied — and it is now impossible to tell why a par-

ticular alien’s hearing was delayed and whether that hearing

could have been completed before April 1, 1997 — then a

reasonable person would think that the parties attempting to

remedy the harm caused by Chief IJ Creppy’s memorandum

would have provided a remedy to all such aliens. For this rea-

son, we adopt the Navarros’ interpretation of the scheduling

language. Because, on March 3 — a date that falls between

February 13 and April 1 — the IJ scheduled a merits hearing

to be continued to April 1, 1997, we hold that the Navarros

meet this part of the definition.

6

The settlement agreement’s definition is written so as to avoid inquiries

into an individual IJ’s motivation for delaying the hearing. Nonetheless,

the IJ’s conduct in this case raises some concerns. The IJ scheduled the

hearing for the first day that IIRIRA became effective. Because the IJ

knew (or should have known) that the Navarros’ applications would be

denied if the hearing were held on April 1 or later, the choice to set the

hearing for April 1, 1997, is conspicuous.

Ostensibly, the hearing was delayed because the IJ wanted additional

briefing — briefing that, on closer review, appears to have been largely

useless. In its brief the INS argued that the IIRIRA stop-clock rule applied

before April 1, 1997, and brought to the court’s attention that the BIA had

already so held. See Matter of N-J-B-, 21 I. & N. Dec. 812, 814 (1997),

abrogated by Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, as amended

by 250 F.3d 1271 (9th Cir. 2001) (subsequently holding that the BIA’s

interpretation was in error and offering relief to those whose applications

were wrongly denied). Thus, the question the IJ posed for further briefing

had already been answered by the BIA. If the IJ had followed BIA prece-

dent and not delayed the hearing, the Navarros’ applications would likely

have been adjudicated under pre-IIRIRA law. The irony is that, by asking

for the briefing, the IJ pushed the hearing to April 1, when it was beyond

question that the stop-clock rule would apply, rendering the briefing a

doubly futile effort.

NAVARRO v. MUKASEY 1997

B. “Continued after April 1, 1997”

[8] The Government also argues that the Navarros do not

qualify as Barahona-Gomez members because their hearing

was not continued “until after April 1, 1997,” but was held on

April 1, 1997. This argument is unavailing.

[9] The meaning of this phrase is unambiguous, but the lan-

guage, as memorialized in the written agreement, contradicts

the intentions of the parties. IIRIRA’s effective date was April

1, 1997 — not April 2, 1997. The definition of the class refers

to those who “had (or would have had) suspension of deporta-

tion hearings conducted before April 1, 1997,” Barahona-

Gomez II, 243 F. Supp. 2d at 1030-31 (emphasis added) —

the clear implication being that class members include those

who had their hearings April 1, 1997, or later. There is no rea-

son to believe that the parties to the Barahona-Gomez settle-

ment agreement meant to help all aliens whose hearings were

continued until after IIRIRA went into effect, except the

unfortunate few whose hearings were scheduled to occur on

the very first day that IIRIRA became effective.

[10] Under contract law, we have the power to “reform” a

contract where, due to mistake, the clear intention of the par-

ties is not reflected in the final agreement. See Hess v. Ford

Motor Co., 41 P.3d 46, 52 (Cal. 2002); 1 Witkins’ Summary

of California Law, Contracts § 276 (10th ed. 2005) (“Where

the parties come to an agreement, but by mistake (or fraud)

the written instrument does not express their agreement cor-

rectly, it may be reformed or revised on the application of the

party aggrieved. . . .”). Here, it appears that there was a mis-

take in reducing the agreement to written form. Consequently,

we read the settlement language as “continued until April 1,

1997, or after.” This interpretation is consistent with the pur-

pose of the Barahona-Gomez settlement. See Sotelo, 430 F.3d

at 972. The settlement remedy is simply the opportunity for

eligible class members to have their applications for suspen-

sion of deportation heard under the law which would, but for

1998 NAVARRO v. MUKASEY

the improper delay, have governed their cases. See Barahona-

Gomez II, 243 F. Supp. 2d at 1033.

CONCLUSION

[11] The Navarros were “scheduled” for a merits hearing

between February 13 and April 1, their hearing was continued

to a date after IIRIRA took effect, and they were denied relief

on the basis of the stop-clock rule. They are, accordingly,

class members eligible for relief. We therefore GRANT the

petition for review and REMAND their cases to the BIA to

determine their eligibility for renewed suspension of deporta-

tion.

CLIFTON, Circuit Judge, concurring in the judgment:

I do not agree with all that is contained in the majority

opinion, specifically Part I.A. of that opinion. (I do not quarrel

with Part I.B., involving the April 1, 1997 date.) Application

of the Barahona-Gomez settlement agreement should be

based on the facts of the particular situation, and I do not

think the broad interpretation stated by the majority opinion

will lead to sensible results in all cases.

But it seems to me that these petitioners fairly fall within

the definition of “the Class” contained in the settlement agree-

ment: “all persons who have had (or would have had) suspen-

sion of deportation hearings conducted before April 1, 1997,”

where the “immigration judge reserved or withheld granting

suspension of deportation” on the basis of the directive issued

by Chief Immigration Judge Creppy.

To briefly summarize, that directive was issued on Febru-

ary 13, 1997. On March 3, 1997, the Navarros and their attor-

ney appeared before the Immigration Judge, conceded

deportability, and stated that they wished to apply for suspen-

NAVARRO v. MUKASEY 1999

sion of deportation. The IJ instructed the Navarros to file

applications for suspension of deportation and scheduled a

merits hearing on their applications for April 1, 1997. On

April 1, 1997 the IJ held the merits hearing and denied the

Navarros’ applications for suspension of deportation pursuant

to the IIRIRA stop-clock rule which went into effect that day.

In 1997, April 1 fell on a Tuesday. If the Navarros’ hearing

had been scheduled one day earlier, on Monday, March 31,

the new law would not have applied and they might have been

eligible for and obtained the relief they sought. It cannot rea-

sonably be assumed that scheduling their hearing for March

31 or some earlier date was out of the question, so it is clearly

possible that the directive influenced the IJ to push the new

hearing date past the effective date of the stop-clock rule. If

so, then the Navarros were in the situation that the settlement

agreement was intended to cover. Thus, I agree that their peti-

tion for review should be granted and concur in the judgment.