Barahona-Gomez v. Reno

HALL, Circuit Judge,

dissenting.

I dissent because the district court lacks jurisdiction to consider plaintiffs’ claims under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009, amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656 (codified in part at 8 U.S.C. § 1252(g) (Supp. II 1996)). At the very least, we should defer this case pending the Supreme Court’s decision in American-Arab Anti-Discrimination Comm. v. Reno. 119 F.3d 1367 (9th Cir.1997), cert. granted, — U.S. -, 118 S.Ct. 2059 , 141 L.Ed.2d 137 (1998).

The plain language of 8 U.S.C. § 1252 (g) clearly deprives the district court, and this Court, of jurisdiction over the instant matter. The statute states in relevant part:

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.

8 U.S.C. § 1252 (g) (Supp. II 1996).

Section 1252(g)’s plain language becomes all the more compelling when one recalls the Supreme Court’s recent statement that “ ‘[f]or reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government. [Ojver no conceivable subject is the legislative power of Congress more complete.’” Reno v. Flores, 507 U.S. 292, 305 , 113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993) (quoting Mathews v. Diaz, 426 U.S. 67, 81 , 96 S.Ct. 1883 , 48 L.Ed.2d 478 (1976)) (internal citation and quotation omitted) (alteration in original). Importantly, “aliens have no constitutional right to judicial review of deportation orders.” Duldulao v. INS, 90 F.3d 396 , 400 (9th Cir.1996).

The majority relies on Walters v. Reno, 145 F.3d 1032 (9th Cir.1998), petition for cert. filed, 67 U.S.L.W. 3337 (U.S. Nov. 3, 1998) (No. 98-730), to argue that section 1252(g) does not deprive the district court of subject matter jurisdiction, notwithstanding its plain language to the contrary. Walters involved a due process challenge to the forms the INS used in document fraud proceedings. The plaintiffs in that case claimed that the forms did not adequately inform them of how to request a hearing or the results of failing to request such a hearing. See id. at 1036. In finding that it had jurisdiction to decide the case, Walters relied on (1) the procedural, not substantive, nature of the challenge, (2) the courts’ preference to retain authority to consider constitutional claims, and (3) the fact that the claims did not arise from any “ ‘decision or action by the Attorney General to commence proceedings, [or] adjudicate eases.’ ” Id. at 1052 (quoting 8 U.S.C. § 1252 (g)).

None of these considerations is at issue in this case. First, a decision on the merits of this case would actually be substantive, and not merely procedural. The district court has found that the plaintiffs are now eligible for suspension of deportation. The court has defined the class to include plaintiffs who *1239 have received favorable administrative determinations, and who therefore await only the final adjudication of their claims. If the district court finds that the administrative orders of Chief Immigration Judge Creppy and Chairman Schmidt were issued in error, the substance of the plaintiffs’ claims will have been effectively decided. The immigration judges will enter their final orders and suspend the plaintiffs’ deportation.

Thus, this is not like the situation in McNary, 498 U.S. 479, 495 , 111 S.Ct. 888 , 112 L.Ed.2d 1005 (1991) where the Supreme Court emphasized that “the individual respondents in this action do not seek a substantive declaration.... Rather, if allowed to prevail in this action, respondents would only be entitled to have their case files reopened and their applications reconsidered in light of the newly prescribed INS procedures.” McNary v. Haitian Refugee Ctr., Inc.; see also Walters, 145 F.3d at 1052 (stressing the procedural, not substantive, nature of plaintiffs’ claims).

Second, this Court retains its ability to review the plaintiffs’ claims, constitutional and otherwise. The plaintiffs would presumably be able to present their arguments to the Ninth Circuit in an appeal from a final order of removal. See 8 U.S.C. § 1252 (b)(9) (Supp. II 1996); see also Naranjo-Aguilera v. INS, 30 F.3d 1106 , 1114 (9th Cir.1994) (collecting cases supporting the proposition that “[petitioners appealing orders of deportation routinely bring statutory and constitutional challenges to INS regulations and policies.”). Any remaining constitutional claims could be reviewed in the district court via a petition for a writ of habeas corpus. See 28 U.S.C. § 2241 (1994); Magana-Pizano v. INS, 152 F.3d 1213 , 1216 (9th Cir.), amended by 159 F.3d 1217 (9th Cir.1998), petition for cert. filed, 67 U.S.L.W. 3364 (U.S. Nov. 18, 1998) (No. 98-836) (“the district court retains jurisdiction under 28 U.S.C. § 2241 when the petitioner has no other judicial remedy.”).

Numerous other courts have held that constitutional habeas review suffices to remove any weaknesses in the section 1252(g) process. See Henderson v. INS, 157 F.3d 106, 118 (2d Cir.1998), petition for cert. filed sub nom. Reno v. Navas, 67 U.S.L.W. 3409 (U.S. Dec. 17, 1998) (No. 98-996) (collecting eases from seven other circuits supporting the proposition that IRRIRA’s “repeal of jurisdiction suffers from no constitutional infirmity because the courts retain habeas jurisdiction under 28 U.S.C. § 2241 .”). Indeed, on facts quite similar to the case at bar, at least one court has found that the availability of habeas review removed any constitutional infirmity from section 1252(g)’s repeal of jurisdiction. See Jean-Baptiste v. Reno, 144 F.3d 212, 220 (2d Cir.1998) (finding that section 1252(g) deprived district court of jurisdiction over plaintiffs’ class-action claims that raised due process concerns, but that review under 28 U.S.C. § 2241 removed any constitutional impropriety).

Moreover, in Walters, plaintiffs were effectively deprived of any hearing whatsoever. See Walters, 145 F.3d at 1036 . Similarly, in McNary , the Court found that plaintiffs could receive no review of the agency action unless they were subsequently apprehended and deportation proceedings were initiated. See McNary, 498 U.S. at 496 , 111 S.Ct. 888 . In this case, however, plaintiffs were already in deportation proceedings and received a hearing. The immigration judges were only to reserve their final decision on the matter to ensure compliance with the new immigration laws. The Board of Immigration Appeals likewise delayed appeals only “until definitive guidance is provided by the Attorney General’s office.” Review is therefore available by either an appeal of a final removal order or, if appropriate, by a petition for habeas corpus. See 8 U.S.C. § 1252 (b)(9); Magana-Pizano, 152 F.3d at 1216.

Third, unlike Walters, which involved a challenge to the forms used by the INS, this case directly involves a “decision or action by the Attorney General to commence proceedings, [or] adjudicate cases.” 8 U.S.C. § 1252 (g). This suit involves a challenge to the decision of the Attorney General’s delegates to reserve final adjudications of grants of suspension of deportation pending further guidance from the Attorney General. The facts of this case are therefore squarely within the terms of section 1252(g).

It is also important to note that Walters may have erred in relying so heavily on McNary in interpreting section 1252(g). McNary specifically stated that if Congress *1240 had meant to limit the review provisions of the INS statute at issue in that ease, it could easily have used broader language that included “all causes ... arising under any of the provisions” in that statute. McNary, 498 U.S. at 494 , 111 S.Ct. 888 (internal quotation omitted) (alteration in original). Here, Congress did use broader language. Section 1262(g) states that “[e]xcept 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.” 8 U.S.C. § 1252 (g). It is difficult to fathom how Congress could have more clearly conveyed its intent.

As a result, the majority’s attempt to reconcile the facts of this case with Walters is unavailing. The majority appears to imply that whenever a class of plaintiffs seeks an injunction asserting some form of a constitutional due process claim, and the government attempts to invoke the clear mandate of section 1262(g), the district court should automatically have jurisdiction. But this conclusion ignores the fact that action by the district court in this case would be more of a substantive, instead of procedural, nature; that adequate avenues of review^ still remain; and that section 1252(g) clearly precludes general review of the Attorney General’s decision to adjudicate cases.

At the very least, we should defer this case until the Supreme Court issues a decision in American-Arab, argued on November 4, 1998. The Court granted a writ of certiorari to consider “Whether, in light of the Illegal Immigration Reform and Immigrant Responsibility Act, the courts below had jurisdiction to entertain respondents’ challenge to the deportation proceedings prior to the entry of a final order of deportation?” Reno v. American-Arab Anti-Discrimination Comm., — U.S. -, -, 118 S.Ct. 2059, 2059 , 141 L.Ed.2d 137 (1998). The Court’s resolution of this matter should resolve any remaining doubts regarding the question of jurisdiction under section 1252(g).

For the foregoing reasons, I respectfully dissent.