Barahona-Gomez v. Reno

CYNTHIA HOLCOMB HALL,

Circuit Judge, dissenting:

I dissent. The plain language of section 1252(g) deprives the district court, and this Court, of jurisdiction over the instant matter. The Supreme Court’s decision in Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 , 119 S.Ct. 936 , 142 L.Ed.2d 940 (1999), only strengthens the argument that the district court did not have jurisdiction over this issue of executive adjudication.

Section 1252(g) delineates three specific areas where Congress decided to streamline the immigration process by precluding judicial review. 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) (emphasis added).

The Supreme Court read section 1252(g) to prevent review of “three discrete actions” of the Attorney General. American-Arab, 525 U.S. at 482 , 119 S.Ct. 936 . As the Court explained, the “theme” of the IRRIRA is to shield certain executive decisions on immigration from judicial interference. Id. at 486 , 119 S.Ct. 936 . While the Court called for a “narrow reading” of section 1252(g), it found that the statute prevented judicial review of the claims of several resident aliens who alleged that they were the targets of selective enforcement by the INS. Id. at 487 , 119 S.Ct. 936 . The resident aliens’ claim that they had been targeted for deportation because of their affiliation with a politically unpopular group fell squarely within one of the three actions specified in section 1252(g): the Attorney General’s decision to “commence proceedings.”

Review is precluded in this matter because a different discrete action specified in section 1252(g) is involved: the Attorney General’s decision to “adjudicate cases.” First, section 1252(g) applies to both the Attorney General and her delegates. See id. at 492 , 119 S.Ct. 936 (applying section 1252(g) to decisions of the Immigration and Naturalization Service). BIA officials and immigration judges act under the authority of the Attorney General. See, e.g., 8 C.F.R. §§ 3.0, 3.1 (describing the authority delegated by the Attorney General to the Executive Office for Immigration Review). Thus, section 1252(g) applies to their conduct as well as to the conduct of the Attorney General herself.

Second, and more importantly, the matter at issue is a clear example of a “decision or action ... to ... adjudicate.” Section 1252(g). BIA Chairman Schmidt and Chief Immigration Judge Creppy ordered all immigration judges to temporarily stop *1123 processing appeals that could result in a grant of suspension of deportation. In other words, Schmidt and Creppy required the immigration judges to desist from deciding a selected set of cases. Within the discretion granted the Attorney General to decide to adjudicate cases is the inherent ability to choose not to adjudicate. Cf. Alvidres-Reyes v. Reno, 180 F.3d 199, 205 (5th Cir.1999) (“[T]he Attorney General’s executive discretion to decide or act to commence proceedings always has been considered inherently to include the ability to choose not to do so.”).

The decision of the BIA officials in this case to temporarily put a halt to suspension of deportation orders is precisely the sort of discretionary act that' section 1252(g) was meant to shield from review. As the Court explained in Arab-American, “Section 1252(g) seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process the Congress has designed.” See Arab-American, 525 U.S. at 485 , 119 S.Ct. 936 ; see also Alvidres-Reyes, 180 F.3d at 201 (“The Congressional aim of § 1252(g) is to protect from judicial intervention the Attorney General’s long-established discretion to decide whether and when to prosecute or adjudicate removal proceedings or to execute removal orders.”). The plaintiffs’ suit necessarily calls for court interference with the decision of BIA officials to exercise their discretion and temporarily halt the consideration of cases involving suspension of deportation. Plaintiffs are attempting to force immigration judges to adjudicate their suspension applications, but section 1252(g) forecloses district court review of the Attorney General’s decision to adjudicate or not adjudicate a matter.

The decision whether or not to adjudicate referred to in section 1252(g) should not be limited to the more informal choices of asylum officers as the majority suggests. Both asylum officers and immigration judges have the power to adjudicate the status of an alien. See 8 C.F.R. § 208.2 (allowing an asylum officer to adjudicate an alien’s asylum application if the alien appears to be deportable). Both exercise their discretion and determine the status of aliens through power conferred by Congress and the Attorney General. The language of section 1252(g) does not evidence a desire to shield one type of adjudication from review while leaving the other subject to district court interference.

The majority attempts to draw a distinction between formal, “mandatory” cases before an immigration judge and more informal uses of executive discretion. According to the majority, only the latter were meant to be exempted from judicial review under the statute. But if Congress’s goal in passing the IRRIRA and section 1252(g) was to streamline the immigration decisionmaking process, then immigration judges and the BIA should be exempted as well. As the Court noted in American-Arab, “Postponing justifiable deportation ... is often the principal object of resistance to a deportation proceeding.” 525 U.S. at 490 , 119 S.Ct. 936 . Congress’s desire to clamp down on delaying tactics in immigration cases surely fits proceedings before an immigration judge as well as it does the decisions of an asylum officer. Moreover, an ordinary reading of the word “adjudication” would suggest activities relating to judging and making legal decisions, activities that fit even more closely with the conduct of an immigration judge than an INS official. See Webster’s New Collegiate Dictionary 15 (1979) (defining “adjudicate” as “to settle judicially” or “to act as judge”).

An interpretation contrary to the majority’s would not immunize all decisions by immigration judges and the BIA from review. As the Court explained in Arab-American , there are many areas outside of adjudication that remain subject to judicial scrutiny under section 1252(g). The Court gave several examples of executive conduct that could still be examined by the courts: *1124 “[DJecisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order” all remain open to review. American-Arab, 525 U.S. at 482 , 119 S.Ct. 936 . None of these examples provided by the Court go to the core function of adjudication. Instead, they are separate decisions that Congress has left subject to court review.

Moreover, immigration plaintiffs subject to section 1252(g) have other ways of contesting the Attorney General’s procedures or her orders for removal. Courts may review alien detention orders, because although such an order is closely linked to efforts to deport, it “is not itself a decision to ‘execute removal orders’ and thus does not implicate section 1252(g).” Cardoso v. Reno, 216 F.3d 512, 516-17 (5th Cir.2000); see also Humphries v. Various Federal USINS Employees, 164 F.3d 936 (5th Cir.1999) (finding that claims for mistreatment while in detention and involuntary servitude due to threats of deportation were not barred by section 1252(g)). Direct review of constitutional claims that challenge deportation orders are available at the appellate level. See Singh v. Reno, 182 F.3d 504, 510-11 (7th Cir.1999); Naranjo-Aguilera v. INS, 30 F.3d 1106 , 1114 (9th Cir.1994). Constitutional claims can also be reviewed in district court via a petition for writ of habeas corpus. See Magana-Pizano v. INS, 152 F.3d 1213 , 1220 (9th Cir.1998). Thus, section 1252(g) removes a limited area of executive deci-sionmaking from judicial scrutiny, but other adequate avenues of review still remain.

The Arab-American decision shows that section 1252(g) was meant to exclude core acts of executive discretion from district court review while leaving other avenues for review open. One of these core acts is the decision to “adjudicate cases.” The administrative orders of Chief Immigration Judge Creppy and Chairman Schmidt were designed to temporarily postpone decisions on a selected group of cases. These representatives of the Attorney General decided to not adjudicate several cases, thus acting in a way that falls squarely within the language of section 1252(g). The majority’s interpretation of the statute crafts an artificially limited definition of “adjudication” and ignores the other legal channels open to plaintiffs whose claims are blocked by 1252(g). For the foregoing reasons, I respectfully dissent.