Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-86-1343-LKK. Lawrence K. Karlton, District Judge, Presiding.
Before: Alfred T. Goodwin, Joseph T. Sneed and Procter Hug, Jr., Circuit Judges. Opinion by Judge Hug.
The Immigration and Naturalization Service ("INS") appeals several district court orders resulting from successful class action challenges by aliens and immigration rights groups to the INS's implementation of the Immigration Reform and Control Act of 1986 ("IRCA" or "the Act"). In separate district court actions, Catholic Social Services, Inc. ("CSS") and the League of United Latin American Citizens ("LULAC") obtained declaratory and injunctive relief against the INS for its administration of IRCA's legalization program for aliens living illegally in this country. For certain aliens, the injunctions extended the period for filing legalization applications beyond the deadline set by the Attorney General. The United States contends that the district courts lacked jurisdiction under IRCA to hear the suits and that the courts exceeded their authority in extending the application period. CSS cross appeals, contending that the trial court erred in refusing to order the Government to allow all deported class members to reenter the United States to reap the benefits of the deadline extension. We conclude that the district courts had jurisdiction and affirm the judgments.
In response to growing concerns over the influx of illegal aliens into the United States, Congress passed IRCA in 1986 as an amendment to the Immigration and Naturalization Act of 1952. IRCA consists of two main parts. One part, not at issue here, imposes sanctions for the employment of undocumented aliens in American businesses. 8 U.S.C. § 1324a (1988). The other part established two provisions under which undocumented aliens could obtain legal resident status. The first provision, also not at issue here, was directed at special agricultural workers ("SAW"). 8 U.S.C. § 1160 (1988). The second provision set up a one-time only legalization program through which aliens could apply for lawful temporary resident status and then, after a one-year waiting period, could apply for permanent residency. 8 U.S.C. § 1255a (1988). The program required the alien to have resided continuously and unlawfully in the United States since January 1, 1982, 8 U.S.C. § 1255a(a)(2)(A), and to have been continuously physically present in the United States since November 6, 1986, the date of IRCA's enactment, 8 U.S.C. § 1255a(a)(3)(A). Aliens residing outside the United States could not be admitted to the United States in order to apply for legalization. 8 U.S.C. § 1255a(a)(3)(C). The Act provided that the aliens would have a twelve month period in which to file applications. The Act authorized the Attorney General to set the dates of the application period. 8 U.S.C. § 1255a(a)(1)(A). The Attorney General set the period to run from May 5, 1987, to May 4, 1988. See 8 C.F.R. § 245a.2(a)(1) (1988).
CSS initiated its action in the district court in November 1986 in response to the INS's administration of IRCA's provision concerning casual and innocent absences from the United States. Under IRCA, an alien could enjoy "brief, casual, and innocent absences" from the country without violating the continuous physical presence requirement. 8 U.S.C. § 1255a(a)(3)(B) (1988). In November 1986, in a nationwide telegram to its offices, the INS promulgated an interpretation of section 1255a(a)(3)(B) that required that aliens obtain INS approval, or "advance parole," before taking casual absences. The INS immediately enforced this interpretation and began to apprehend and deport aliens who left the United States after November 6, 1986, without receiving advance parole. CSS went to court to bar the implementation of this regulation.
On November 24, 1986, the district court provisionally certified the case as a class action and issued a temporary restraining order to prevent the INS from deporting aliens who were prima facie eligible for legalization except for an unauthorized absence from the United States. The Government appealed that order to a motions panel of this court and sought a stay. That panel characterized the order as a preliminary injunction and issued a stay pending review. In April 1987, a merits panel of this court declined to address the dispute over the advance parole condition on the grounds that the district court had not had an opportunity to decide the issue or to resolve some factual questions. The panel limited its holding to the Conclusion that the trial court had abused its discretion by finding that CSS was likely to succeed on the merits of the absence argument. It reversed the temporary restraining order and remanded the case for further consideration. Within a month of that decision, however, the INS announced that it would apply the advance parole provision only to aliens who departed or wished to depart the country after May 1, 1987. See 8 C.F.R. § 245a.1(g) (1991). In light of this change, the panel withdrew its opinion, which focused on the policy of requiring advance parole as of November 1986, but vacated the temporary restraining order and remanded the case without prejudice for further proceedings. Catholic Social Services, Inc. v. Meese, 820 F.2d 289 (9th Cir. 1987).
Upon remand, the district court issued an order in May 1988, invalidating the INS's interpretation of section 1255a(a)(3)(B) and enjoining the INS from enforcing it. See Catholic Social Services, Inc. v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988). On May 3, 1988, the court certified a class of plaintiffs consisting of "all persons prima facie eligible for legalization under INA § 245A [8 U.S.C. § 1255a] who departed and reentered the United States without INS authorization (i.e., "advance parole") after the enactment of IRCA following what they assert to have been a brief, casual and innocent absence from the United States." The Government does not challenge the court's invalidation of the INS's casual absence interpretation or the constitution of the certified class.
Both parties, however, find fault with the remedies ordered by the district court. The court issued its first of three remedial orders in June 1988. In that order the district Judge instructed the INS to extend the filing deadline from May 4, 1988 to November 30, 1988, for class members who were deterred from seeking legalization by the INS's casual absences regulation.*fn1 The court, citing 8 U.S.C. § 1255a(3)(C), refused to order readmission into the country of the subclass members who had been deported or allowed to voluntarily depart. CSS appeals this refusal to readmit class members living outside the United States.
Within days after the filing of the June order, the Supreme Court issued its decision in Immigration and Naturalization Serv. v. Pangilinan, 486 U.S. 875, 100 L. Ed. 2d 882 , 108 S. Ct. 2210 (1988). The Government immediately moved the district court to dissolve the extension of the application deadline on the grounds that it violated Pangilinan. When the court had not acted on the motion by August 8, 1988, the Government withdrew the motion and filed the first of its two appeals.
On August 11, 1988, the trial court entered the second and third of its remedial orders, which took the form of supplements to the June injunction. In the first August order, the court concluded that Pangilinan did not invalidate the deadline extension. Acknowledging that its decision might be reversed, however, the court provided for an alternative remedy, which would have prohibited the INS from deporting or removing from the country any class member on grounds related to the CSS litigation and would have obligated the INS to provide class members with permanent work authorization documents. Since we find the extension appropriate, we need not consider the alternative remedy. In the second August order, the court mandated a set of procedures for the INS to use in determining whether an apprehended alien fell under the scope of the June injunction. The Government's second appeal in this case challenges the August orders.
After receiving the three appeals discussed above, we granted first a temporary stay of the original injunction and its supplements, and then a stay for the pendency of the appeal. We also directed the INS to release detained class members and grant them temporary work permits until we resolved this case.
Shortly before oral argument, we ordered the parties to brief the impact of IRCA's judicial review provisions, 8 U.S.C. §§ 1255a(f)(1)-(4) on the case. We withdrew submission pending Supreme Court decisions in McNary v. Haitian Refugee Center, Inc., 112 L. Ed. 2d 1005, 111 S. Ct. 888 (1991) and Ayuda, Inc. v. Thornburgh, 112 L. Ed. 2d 1174, 111 S. Ct. 1068 (1991). We now resubmit the case. The Government contends that those provisions barred district court jurisdiction ...