CATHOLIC SOCIAL SERVICES INC AFL CIO v. RENO (1997)

This class action litigation challenges the lawfulness of an Immigration and Naturalization Service (“INS”) policy adopted in 1986 and revised in 1987 as part of the INS' administration of the Immigration and Nationality Act of 1986, 8 U.S.C. § 1255a (“IRCA”).   That statute established a legalization program under which certain aliens unlawfully present in the United States could apply for status as temporary residents, and then seek permission to reside permanently in the United States.   See 8 U.S.C. § 1255a(a), (b).   Among other requirements, IRCA provided that to be eligible, applicants had to prove continuous physical presence in the United States since November 6, 1986.  8 U.S.C. § 1255a(a)(3)(A).   The policy plaintiffs seek to challenge in this case is an INS directive interpreting the continuous physical presence requirement to mean that aliens must have obtained INS approval before leaving the United States for even the briefest of absences (the “advance parole policy”).

Plaintiffs include a number of concerned organizations and individuals, referred to collectively as Catholic Social Services.   They filed their original complaint in the district court in November of 1986 challenging the advance parole policy.   They contended that the policy violated the statutory proviso that an alien would not fail to maintain continuous physical presence by virtue of brief, casual and innocent absences from the United States.   See 8 U.S.C. § 1255a(a)(3)(B).   The district court certified a broad class of all persons who had not complied with the INS advance parole policy but were otherwise eligible for naturalization, and extended the deadline for application for class members.   The district court subsequently ruled that the policy was contrary to the intent of the statute and hence unenforceable.   Catholic Social Services, Inc. v. Meese, 685 F.Supp. 1149, 1159-60 (E.D.Cal.1988).

The case is now before this court for the third time.   In the first appeal from the district court's original ruling, we affirmed the district court in a consolidated appeal that also dealt with a related case challenging another INS policy.  Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992).   The Supreme Court granted certiorari and vacated our decision, holding that only those persons who had taken affirmative steps toward legalization and had their path blocked by INS representatives on account of the policy had standing to challenge the policy.  Reno v. Catholic Social Services, Inc., 509 U.S. 43, 58-59, 113 S.Ct. 2485, 2496, 125 L.Ed.2d 38 (1993).   It remanded the case for determination of whether there were class members who satisfied such standing requirements in order to confer jurisdiction.  Id. at 66-67, 113 S.Ct. at 2500-01.   We in turn remanded to the district court for further proceedings consistent with the Court's opinion.  Catholic Social Services, Inc. v. Reno, 996 F.2d 221 (9th Cir.1993).   The district court then entered the orders presently before us, certifying a modified and narrower class in an effort to comply with the Supreme Court's decision, and continuing its prior orders providing interim relief for the class.   This government appeal followed.

During the pendency of this appeal, Congress again amended the immigration laws by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).   Section 377 of the new Act purported to set limits on judicial review of legalization claims.

We therefore must consider the effect of this intervening legislation, which the government contends requires us to vacate the district court's orders and to direct the district court to dismiss the litigation.   We conclude we must do so.

The background of the case and its procedural history are set forth in detail in this court's prior opinion, 956 F.2d at 916-18, and in the Supreme Court's opinion.  509 U.S. at 46-53, 113 S.Ct. at 2489-93.   We do not elaborate further here.   The Supreme Court's decision is the springboard for our legal analysis in this appeal.

In that decision, the Court rejected on ripeness grounds the district court's certification of a broad class of all those who would have qualified for legalization but for the INS' advance parole policy.   Instead, the Court focused on those who had taken affirmative steps toward applying for legalization and had been somehow blocked by the INS policy.

The Court described at some length the INS' practice, known as “front desking,” pursuant to which legalization assistants were instructed to review applications in the applicants' presence and to reject the applications of any aliens who were statutorily ineligible for legalization.   Under this “front-desking” policy, aliens who disclosed unapproved trips outside the United States had their applications rejected before the applications could be filed.  509 U.S. at 61-62, 113 S.Ct. at 2497-98.

In addition to those persons who had actually attempted to apply for legalization and had their applications rejected at the front desk, the Supreme Court opinion referred to the possibility that there may have been other persons who had been sufficiently affected by the policy to maintain a justiciable claim, even though they had not actually been “front-desked.”  509 U.S. at 66 n. 28, 113 S.Ct. at 2500 n. 28.   The Supreme Court remanded for the lower courts to determine whether members of the class had been “front desked” and to thereby determine the extent of their jurisdiction over the claims of class members.

On remand, the district court modified the class definition so as to include persons who had actually been front desked and those who came within the purview of footnote 28 by being otherwise adversely affected by the practice.

It was against this background that Congress passed section 377, with a retroactive date as if it had been enacted as part of IRCA. Section 377 provides:

(a) LIMITATION ON COURT JURISDICTION.-Section 245A(f)(4) (8 U.S.C. § 1255a(f)(4)) is amended by adding at the end the following new subparagraph:

“(C) JURISDICTION OF COURTS.   Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1), or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that Officer.”

(b) EFFECTIVE DATE.-The amendment made by subsection (a) shall be effective as if included in the enactment of the Immigration Reform and Control Act of 1986.

The government maintains that the new statute requires dismissal of the action because there has been no showing that any of the class members or named plaintiffs meet the requirements of Section 377, i.e., by having actually filed an application or by having attempted to tender an application and fee but having them refused by a legalization assistant, within the times originally established by the statute.   Plaintiffs counter that the statute was not intended to apply to this case, and that if it was, the statute is unconstitutional as a violation of separation of powers.   We discuss each issue in turn.

APPLICABILITY OF THE STATUTE

Catholic Social Services contends that the new statute does not apply to this litigation because it applies only to those who have an interest under the provision it amends, 8 U.S.C. § 1255a(f).  Section 1255a(f) provides for a single level of administrative appellate review of determinations regarding an adjustment of status, and limits judicial review of denials of legalization to the administrative record.¹  That section, plaintiffs continue, applies only to those who have had applications denied, while these plaintiffs were never able to have their applications filed and accordingly could not have had them denied.   Plaintiffs rely on McNary v. Haitian Refugee Center, 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) where the Supreme Court dealt with a related provision of IRCA that included limitations on review similar to those in 8 U.S.C. § 1255a(f) before the 1996 amendment.   In that case, the Supreme Court held that such a statute was a limitation only on a district court's review of individual denials of status and did not deprive the district courts of jurisdiction to consider due process challenges to the manner in which the INS administered the relevant provisions.  Id. at 491-94, 111 S.Ct. at 895-97.   The Supreme Court's holding in McNary, however, focused on legislative intent, and on the absence of any indication in the statute or its history that Congress intended to preclude such general constitutional attacks.  Id. at 494, 498-99, 111 S.Ct. at 897, 899-900.   In the absence of any such indication, the Supreme Court relied on the general presumption in favor of judicial review.  Id. at 498-99, 111 S.Ct. at 899 (“The strong presumption in favor of judicial review of administrative action is not overcome either by the language or the purpose of the relevant provisions of the Reform Act.”).  Section 1255a(f) as amended in 1996 is a different statute from that considered in McNary.

The statute at issue here contains an express congressional directive that review should be limited to the claims of those persons who have actually tendered or attempted to tender an application and fee.   Accordingly, the statute would appear to rebut the presumption relied upon in McNary.   Were there any doubt of congressional intent, it is resolved by the language of the conference report spelling out that intent:

[Section 377] amends INA section 245A to put an end to litigation seeking to extend the amnesty provisions of the Immigration Reform and Control Act of 1986, and to limit claims under that section to aliens who in fact filed an application for legalization under that section within the prescribed time limits, or attempted to do so but their application was refused by an immigration officer.

H.R. Conf. Rep. No. 104-828, at 230 (1996).

Section 377 therefore applies to the claims of these class members.

CONSTITUTIONALITY OF SECTION 377

Catholic Social Services alternatively argues that if Congress did intend the section to apply to claims like theirs, then Congress has violated the Constitution's separation of powers principles.   They maintain that Congress has reached beyond the appropriate legislative sphere to intrude in the judicial process by dictating the result in this case.   They rely on United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871).

In Klein, the Supreme Court held that a statute was unconstitutional because it ordered federal courts to deny the effect of presidential pardons in certain cases where the Court had already determined their effect.  80 U.S. at 145.   The Court determined that by doing so, Congress had “prescribe[d] a rule for the decision of a cause in a particular way,” and had not created any new circumstances by enacting the legislation other than to prescribe such a rule.  Id. at 146-47.   Catholic Social Services thus contends that here, Congress acted improperly in enacting legislation intended to require the courts to dismiss their claims.

Catholic Social Services' theory is similar to that advanced and rejected in Robertson v. Seattle Audubon Soc'y, 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992).   The Court there held that a statute affecting pending cases, indeed designating them by name and number, did not offend separation of powers because Congress was changing the law applicable to those cases rather than impermissibly interfering with the judicial process.  Id. at 438-40, 112 S.Ct. at 1413-14;  see also Gray v. First Winthrop Corp., 989 F.2d 1564, 1569-70 (9th Cir.1993) (noting high degree of judicial tolerance for Congressional act that is intended to affect litigation as long as Congress changes underlying substantive law in any detectable way).

Catholic Social Services' argument concerning Congressional intervention in a particular case is even less compelling than that presented in Robertson.   Here, Congress has defined federal court jurisdiction to review claims of aliens seeking benefits under a statute.   Congress' authority to define federal court jurisdiction is well-recognized.   See Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 2040, 124 L.Ed.2d 118 (1993);  Palmore v. United States, 411 U.S. 389, 401, 93 S.Ct. 1670, 1678, 36 L.Ed.2d 342 (1973);  Duldulao v. INS, 90 F.3d 396, 400 (9th Cir.1996), as amended.   Its plenary authority with respect to immigration matters is also ingrained in our law.   See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (“[O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”) (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909));  see also Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 532-33, 96 L.Ed. 547 (1952);  Duldulao, 90 F.3d at 399-400.   Accordingly, the statute does not violate the separation of powers.   See Fiallo, 430 U.S. at 792, 97 S.Ct. at 1477-78;  Keene Corp., 508 U.S. at 207, 113 S.Ct. at 2040;  Gray, 989 F.2d at 1568-70.

Nor does the statute completely immunize IRCA or INS policy from constitutional attack so as to raise due process concerns.   See Bartlett v. Bowen, 816 F.2d 695 (D.C.Cir.1987), upon which Catholic Social Services relies.   See also Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974) (statutory bar to court's deciding constitutionality of legislation would raise serious constitutional questions).   This statute does not limit the issues courts may review;  it restricts individuals who may bring claims to those who have been directly affected by INS conduct.   Given Congress' sweeping power over immigration policy, we can not fault the statute on due process grounds.

Section 377 is constitutional and is applicable to the current action.   Because none of the class members or named plaintiffs allege that they physically tendered an application and fee or attempted to do so but were rebuffed by a legalization assistant, they do not meet the jurisdictional requirements of the statute.   Accordingly, we vacate the district court's orders and remand with instructions to dismiss this action for lack of jurisdiction.

VACATED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

FOOTNOTES

1.   18 U.S.C. § 1255a(f) reads:There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.․No denial of adjustment of status under this section based on a late filing of an application for such adjustment may be reviewed by a court of the United States or of any State or reviewed in any administrative proceeding of the United States Government.․The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of a determination described [above].․Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.․There shall be judicial review of such a denial only in the judicial review of an order of deportation under section 1105a of this title.․Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.8 U.S.C. § 1255a(f)(1)-(4).

SCHROEDER, Circuit Judge: