Cruz v. Farquharson

United States Court of Appeals
For the First Circuit

No. 00-2261

MARIA ANTONIA CRUZ, ETC., ET AL.,
Plaintiffs, Appellants,

v.

STEVEN J. FARQUHARSON, AS DISTRICT DIRECTOR OF THE BOSTON
DISTRICT OF THE IMMIGRATION AND NATURALIZATION SERVICE,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Selya and Boudin, Circuit Judges,

and Schwarzer,* Senior District Judge.

Cristóbal Bonifaz, with whom John C. Bonifaz and Law Offices
of Cristóbal Bonifaz were on brief, for appellants.
Papu Sandhu, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Dep't of Justice,
with whom Stuart E. Schiffer, Acting Assistant Attorney General,
and Emily Anne Radford, Assistant Director, Office of
Immigration Litigation, were on brief, for appellee.

June 12, 2001
______________
*Of the Northern District of California, sitting by designation.
 SELYA, Circuit Judge. This case involves the manner

in which the Immigration and Naturalization Service (INS)

processes (or fails to process) petitions by citizens requesting

permanent residence in the United States for their alien

spouses. These importunings are commonly called "immediate

relative" visa petitions (IRV petitions). The pertinent statute

is 8 U.S.C. § 1154(a) (1994 & Supp. IV 1998), pursuant to which

a United States citizen may file an IRV petition on behalf of an

alien spouse to classify the spouse as a person who can apply

forthwith for an immigrant visa. Id.; see also id. §

1151(b)(2)(A)(i) (defining "immediate relatives" to include

spouses). The law assigns to the Attorney General the duty to

decide whether a petition reveals facts sufficient to allow the

alien spouse to satisfy the definition of "immediate relative."

Id. § 1154(b). After conducting an investigation, "the Attorney

General shall, if he determines that the facts stated in the

petition are true and that the alien in behalf of whom the

petition is made is an immediate relative . . . approve the

petition." Id.

Such approval clears the way for the affected alien

spouse to seek an adjustment of his or her status to that of a

lawful permanent resident of the United States. See id. §

1255(a). To so qualify, the alien spouse must make a four-fold

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showing: (1) that he or she was lawfully admitted into the

United States; (2) that he or she has duly applied for

adjustment of status; (3) that he or she is eligible to obtain

permanent residence in the United States; and (4) that, as a

result of the granting of an IRV petition or otherwise, an

immigrant visa is immediately available. See id.; see also

Ruckbi v. INS, 159 F.3d 18, 19 (1st Cir. 1998). Because "sham"

marriages historically have posed a problem in connection with

IRV petitions, the INS may impose certain conditions on approval

of adjustment-of-status applications involving recently married

alien spouses. See 8 U.S.C. § 1186a(a)(1), (g)(1) (stipulating

that if the marriage occurred within twenty-four months next

preceding the date of adjustment of status, permanent resident

status will be granted provisionally); see also id. § 1186a(c),

(d)(2) (describing procedure for converting conditional status

to unconditional status once two years have elapsed from date of

adjustment).

In this case, four named plaintiffs, all American

citizens, filed IRV petitions with the Boston office of the INS

on behalf of their alien spouses. The spouses, also named

plaintiffs, simultaneously applied for permanent residence. The

INS district director temporized, neither granting nor denying

any of these requests.

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 By mid-1999, these filings — which had been perfected

on various dates in 1997 — still lay fallow. The eight

plaintiffs, frustrated by the unexplained delay, sued the

district director on August 18, 1999. In their complaint,

purportedly filed on behalf of themselves and "[a]ll persons

within the jurisdiction of the Boston Office of INS who have

[had] adjustment of status applications pending in the Boston

Office of INS for more than one year," the plaintiffs prayed,

inter alia, for an order requiring the district director to

grant or deny residency to the named alien spouses and

comparably situated members of the putative class within twelve

months of the date on which properly completed IRV petitions and

adjustment-of-status applications had been filed.1 The complaint

also alleged that the INS had engaged in a variety of pernicious

practices and sought an order enjoining the district director

from continuing to conduct his office in that manner. The

practices cited by the plaintiffs (which are, at this point,

merely allegations) included, inter alia, (i) making status

determinations vis-à-vis alien spouses on racially

discriminatory bases, and (ii) effectively curtailing legal

1
The twelve-month period appears to be snatched out of thin
air. Moreover, such a timetable obviously has no bearing with
respect to the named plaintiffs, whose petitions and
applications were pending for upwards of twenty-two months when
they started suit.

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immigration into the United States by "shelving" adjudication

cases.

The complaint brought a swift response. Within twenty-

five days of the filing date, the district director granted the

residency status sought by one couple and began actively

processing the IRV petitions and adjustment-of-status

applications of the remaining named plaintiffs. By October 29,

1999 — roughly ten weeks after suit had been started — the

district director had granted all the named plaintiffs' IRV

petitions and had approved permanent resident status for the

four alien spouses.

Pointing to these changed circumstances, the district

director moved to dismiss the complaint on mootness grounds.

The plaintiffs opposed this motion and, on December 1, 1999,

moved for class certification. See Fed. R. Civ. P. 23. The

district court granted the district director's motion and,

accordingly, denied class certification as moot. This appeal

ensued.

We need not tarry. The Constitution confines the

federal courts' jurisdiction to those claims which embody actual

"cases" or "controversies." U.S. Const. art. III, § 2, cl. 1.

This requirement must be satisfied at each and every stage of

the litigation. Spencer v. Kemna, 523 U.S. 1, 7 (1998). When

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a case is moot — that is, when the issues presented are no

longer live or when the parties lack a legally cognizable

interest in the outcome — a case or controversy ceases to exist,

and dismissal of the action is compulsory. See City of Erie v.

Pap's A. M., 529 U.S. 277, 287 (2000); United States Parole

Comm'n v. Geraghty, 445 U.S. 388, 395-96 (1980); R.I. Ass'n of

Realtors v. Whitehouse, 199 F.3d 26, 34 (1st Cir. 1999).

Here, the named plaintiffs received complete relief

from the district director no later than October 29, 1999. By

that date, the INS had adjudicated and approved the IRV

petitions filed by all four named citizen plaintiffs and the

concomitant applications for adjustment of status filed by their

alien spouses. From that point forward, there was no longer a

live controversy between the plaintiffs and the district

director, and the plaintiffs — having previously received

favorable administrative action — lacked any cognizable stake in

the outcome of the proceedings. Thus, the case had become moot.

See County of Los Angeles v. Davis, 440 U.S. 625, 631-34 (1979);

Powell v. McCormack, 395 U.S. 486, 496-97 (1969); Thomas R.W. v.

Mass. Dep't of Educ., 130 F.3d 477, 479 (1st Cir. 1997).

Nothing that transpired between October 29, 1999, and June 22,

2000 (the date on which the district court ruled) filled this

void: no new plaintiffs tried to intervene, and the named

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plaintiffs made no effort to amend their complaint to add new

parties. Thus, it seems difficult to fault the district court

for dismissing the case.

The plaintiffs try. They seek to deflect the force of

this reasoning in two ways. We examine their handiwork.

The plaintiffs first argue that a different, more

relaxed conception of mootness should apply because this suit

was intended all along to be a class action. In maintaining

this stance, they rely heavily on the Supreme Court's decision

in Sosna v. Iowa, 419 U.S. 393 (1975). Their reliance is

mislaid.

To be sure, the Sosna Court held that even though the

named plaintiff's individual claim had become moot after proper

certification of a class, the class action itself was not

rendered moot. Id. at 400-01. The Court reasoned that when the

district court ordered certification, the class acquired a

separate legal status that survived the dissipation of the named

plaintiff's claim. Id. at 399. Here, however, the district

court had not certified a class at the time the named

plaintiffs' claims became moot — indeed, the plaintiffs had not

yet moved for class certification at that juncture.

This is a dispositive difference. Despite the fact

that a case is brought as a putative class action, it ordinarily

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must be dismissed as moot if no decision on class certification

has occurred by the time that the individual claims of all named

plaintiffs have been fully resolved.2 See Arnold v. Panora, 593

F.2d 161, 164 (1st Cir. 1979); Cicchetti v. Lucey, 514 F.2d 362,

365-66 (1st Cir. 1975); see also Ahmed v. Univ. of Toledo, 822

F.2d 26, 27 (6th Cir. 1987); Tucker v. Phyfer, 819 F.2d 1030,

1033 (11th Cir. 1987); Inmates of Lincoln Intake & Det. Facility

v. Boosalis, 705 F.2d 1021, 1023 (8th Cir. 1983).3 Only when a

class is certified does the class acquire a legal status

independent of the interest asserted by the named plaintiffs —

and only then is the holding in Sosna implicated.

The plaintiffs next seek to avoid the mootness bar by

asseverating that the questions presented in their complaint are

"capable of repetition, yet evading review." S. Pac. Terminal

2There is a narrow exception to this principle, exemplified
by Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). We discuss
this exception infra.
3We note that one court has taken a somewhat more expansive
view, concluding that a class action may endure even though the
named plaintiff's claims have become moot, as long as a motion
for class certification is pending at the time that mootness
overtakes the plaintiff's claims. See Holmes v. Pension Plan of
Bethlehem Steel Corp., 213 F.3d 124, 135 (3d Cir. 2000) ("So
long as a class representative has a live claim at the time he
moves for class certification, neither a pending motion nor a
certified class action need be dismissed if his individual claim
subsequently becomes moot."). Because no such motion was
pending when the claims of the named plaintiffs in this case
became moot, we have no occasion to consider the correctness of
the Third Circuit's singular rule.

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Co. v. ICC, 219 U.S. 498, 515 (1911). This asseveration fastens

upon a recognized, albeit narrow, exception to general

principles of mootness. E.g., Caroline T. v. Hudson Sch. Dist.,

915 F.2d 752, 757 (1st Cir. 1990). We have warned, however,

that "the exception is not a juju, capable of dispelling

mootness by mere invocation." Oakville Dev. Corp. v. FDIC, 986

F.2d 611, 615 (1st Cir. 1993). In cases — like this one — in

which no class has been certified, the exception pertains only

if there is some demonstrated probability that the same

controversy, involving the same parties, will reoccur. See

Murphy v. Hunt, 455 U.S. 478, 482 (1982); Weinstein v. Bradford,

423 U.S. 147, 149 (1975).

On the record as it stands, the plaintiffs' case does

not fit within this niche. Unlike pregnant women who are likely

to conceive again, see Roe v. Wade, 410 U.S. 113, 125 (1973), or

handicapped children who are virtually certain to require

placement in successive school years, see Caroline T., 915 F.2d

at 757, the plaintiffs have not shown, or even alleged, that

they have any prospect of seeking the same relief anew. 4

4
The "same parties" requirement — the requirement that a party
show that she is likely to experience a future reoccurrence of the
mooted dispute — is sometimes expressly stated, e.g., Murphy, 455 U.S.
at 482, sometimes not, e.g., Roe, 410 U.S. at 125. Arguably, some
cases may have diluted this requirement. See, e.g., id. (noting that
pregnancy often comes more than once to a woman of childbearing age,
without inquiring whether Roe herself was likely to become pregnant

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Moreover, it is hard to visualize why they would have any need

to do so. The citizen plaintiffs' IRV petitions have been

granted, and their alien spouses — the only other named

plaintiffs — have been reclassified as permanent residents.

These are one-time requirements, and the plaintiffs cannot

credibly argue that they are likely to be exposed afresh to the

same sort of bureaucratic gridlock that drove them to the

courthouse door on this occasion. It follows that the

plaintiffs' claims are not "capable of repetition" in the

requisite sense.5 See, e.g., Spencer, 523 U.S. at 18 (holding

that the petitioner had not demonstrated a reasonable likelihood

that he would again be paroled and have his parole revoked);

again); see also Erwin Chemerinsky, Federal Jurisdiction § 2.5.3 (3d
ed. 1999); 13A Charles Alan Wright et al., Federal Practice and
Procedure § 3533.8 (2d ed. 1984 & Supp. 2001). In the abstract, this
might be an interesting subject for a law review article. Here,
however, in view of the plaintiffs' inability to demonstrate that the
mooted dispute is likely to elude review, see text infra, it is
unnecessary for us to speculate on how strictly the Supreme Court will
enforce the "same parties" requirement in future cases.
5
The plaintiffs seemingly concede this point. They argue
instead that the district director's handling of IRV petitions
imperils other citizens who have a right to seek permanent
resident status for their alien spouses as well as other alien
spouses. Even if these predictions of imminent peril are well-
founded — a matter on which we take no view — they are
irrelevant: "the possibility . . . that others may be called
upon to litigate similar claims does not save a particular
plaintiff's case from mootness." Oakville Dev., 986 F.2d at 615
(citing, inter alia, Lane v. Williams, 455 U.S. 624, 634
(1982)).

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Murphy, 455 U.S. at 482-83 (finding no "reasonable expectation"

or "demonstrated probability" that appellant would once again be

forced to seek pretrial bail); Oakville Dev., 986 F.2d at 615

(finding it highly unlikely that appellant would secure another

mortgage with a federally insured bank that subsequently

failed).

In all events, the plaintiffs have not shown at this

juncture that the generic types of claims that they seek to

pursue are likely to evade review. To do so would necessitate

a showing that the claims are inherently transitory, e.g., Neb.

Press Ass'n v. Stuart, 427 U.S. 539, 546-47 (1976), or that

there is a realistic threat that no trial court ever will have

enough time to decide the underlying issues (or, at least, to

grant a motion for class certification) before a named

plaintiff's individual claim becomes moot, e.g., Gerstein v.

Pugh, 420 U.S. 103, 110 n.11 (1975). The record in this case

reflects no such showing.

To be sure, the plaintiffs say that their own

experience — the INS did nothing with their petitions and

applications for over twenty-two months, and then moved with

seemingly unaccustomed alacrity once suit was started —

comprises the necessary showing. But the plaintiffs'

experience, in and of itself, constitutes too frail a foundation

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to support the conclusion that they would have us draw. One

swallow does not a summer make, and we have no acceptable basis

to conclude, without a more substantial factual predicate, that

the INS has devised a scurrilous pattern and practice of

thwarting judicial review by allowing IRV petitions and

associated alien spouse applications to languish and then, when

and if a suit ensues, adjudicating them quickly to ensure that

no federal court ever will be in a position either to resolve

the underlying issues or to rule on a class certification

motion. We hold, therefore, that the plaintiffs have not shown,

on this exiguous record, that the claims asserted are likely to

evade meaningful judicial review.6 See Rocky v. King, 900 F.2d

864, 870-71 (5th Cir. 1990) (discerning no sufficient indication

that prison officials would remove from field work every inmate

who brought suit to challenge the conditions under which that

work was performed); see also Sze v. INS, 153 F.3d 1005, 1008

(9th Cir. 1998) (rejecting assertion that litigation had spurred

6
The plaintiffs themselves tell us that there are literally
"thousands" of similarly situated individuals who have IRV
petitions and/or residency applications pending in the INS's
Boston office. This datum suggests to us a likelihood that the
underlying issues here, if diligently pursued by aggrieved
parties, are susceptible of resolution in the courts. Cf. Rocky
v. King, 900 F.2d 864, 870 (5th Cir. 1990) (concluding that
claims were not likely to evade review and attaching
significance in that regard to the fact that "[h]undreds of
inmates . . . could file a claim identical to that filed by [the
named plaintiff]").

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INS to process plaintiffs' naturalization applications in favor

of theory that INS had acted "in due course, albeit

significantly delayed due course").

We need go no further. Although the charges that the

plaintiffs levy against the INS are serious, mootness goes to

the federal courts' jurisdiction. Iron Arrow Honor Soc'y v.

Heckler, 464 U.S. 67, 70 (1983) (per curiam); CMM Cable Rep.,

Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 622 (1st Cir.

1995). Its existence here effectively prevented the trial court

from digging into the veracity of the plaintiffs' allegations

(which, we emphasize, are at this point unproved). Accordingly,

we affirm the order for dismissal.

Affirmed.

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