Navarro v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CARLOS P. NAVARRO; BELEM 
CAROLINA NAVARRO, No. 04-70324
Petitioners, Agency Nos.
v.  A74-364-026
MICHAEL B. MUKASEY,* Attorney A74-789-491
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
October 20, 2006—Pasadena, California

Filed March 4, 2008

Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Pregerson;
Concurrence by Judge Clifton

*Michael B. Mukasey is substituted for his predecessor, Alberto Gon-
zales, as Attorney General of the United States, pursuant to Fed. R. App.
P. 43(c)(2).

1983
1986 NAVARRO v. MUKASEY

COUNSEL

Kevin A. Bove, Escondido, California, for the petitioners.
 NAVARRO v. MUKASEY 1987
Peter D. Keisler, Assistant Attorney General, Civil Division,
United States Department of Justice, David Bernal, Assistant
Director, Anthony C. Payne, Attorney, Office of Immigration
Litigation, Civil Division, Washington, D.C., for the respon-
dent.

OPINION

PREGERSON, Circuit Judge:

Petitioners Carlos Navarro and Belem Carolina Navarro
(the “Navarros”) moved the Board of Immigration Appeals
(“BIA”) to reopen their deportation proceedings on the basis
that they qualified for the benefits of the Barahona-Gomez v.
Ashcroft, 243 F. Supp. 2d 1029 (N.D. Cal. 2002) (“Barahona-
Gomez II”), class action settlement.1 That settlement allows
certain eligible aliens to apply for suspension of deportation
under the less stringent pre-Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-
208, 110 Stat. 3009 (1996), as amended by Pub. L. No. 104-
302, 110 Stat. 3656 (1996), continuous physical presence
standard. Id. at 1033. The BIA found that the Navarros did not
qualify for Barahona-Gomez relief and denied their motion to
reopen. The Navarros now seek our review of the BIA’s
order. We have jurisdiction and, for the reasons that follow,
grant the Navarros’ petition for review.

BACKGROUND

Because this case requires us to interpret the Barahona-
Gomez settlement and to determine whether the Navarros
qualify for its benefits, we begin with a discussion of the
events that gave rise to the settlement followed by a discus-
sion of the settlement itself.
1
While we refer to Barahona-Gomez v. Ashcroft as “Barahona-Gomez
II,” we refer to the settlement therein as the Barahona-Gomez settlement.
1988 NAVARRO v. MUKASEY
I. The History of the Barahona-Gomez Settlement

Before IIRIRA took effect on April 1, 1997, an alien
against whom deportation proceedings had been commenced
could apply for suspension of deportation, if, among other
things, she had been continuously physically present in the
United States for seven years. See Jimenez-Angeles v. Ash-
croft, 291 F.3d 594, 597 (9th Cir. 2002) (citing 8 U.S.C.
§ 1254 (repealed 1997)). Under the pre-IIRIRA statutory
regime, an alien in deportation proceedings continued to
accrue time toward satisfying the seven-year residency
requirement during the pendency of her immigration proceed-
ings. See id. at 598. The pre-IIRIRA regime set no limit on
the number of applications for suspension of deportation that
the Attorney General could grant. See 8 U.S.C. § 1254(a)
(repealed 1997).

Relevant here, IIRIRA contained a “stop-clock” provision
which provided that an alien stopped accruing time toward the
residency requirement when she was served with a notice to
appear (or an order to show cause (“OSC”) — the pre-IIRIRA
equivalent). See Jimenez-Angeles, 291 F.3d at 598. IIRIRA
also provided that the Attorney General was limited to grant-
ing 4,000 applications for suspension of deportation per fiscal
year. See 8 U.S.C. § 1229b(e)(1). Both changes applied to all
applications for suspension of deportation pending at the time
of IIRIRA’s April 1, 1997, effective date. See Barahona-
Gomez v. Reno, 167 F.3d 1228, 1232 (9th Cir. 1999)
(“Barahona-Gomez I”).

As IIRIRA’s effective date drew near — specifically, by
February 11, 1997 — the Attorney General’s Executive
Office for Immigration Review had already granted approxi-
mately 3,900 applications for suspension of deportation that
fiscal year. See id. Chief Immigration Judge (“IJ”) Michael
Creppy was concerned that the number of suspension applica-
tions granted might exceed IIRIRA’s statutory 4,000 applica-
tion cap. See id. Accordingly, on February 13, 1997, Chief IJ
 NAVARRO v. MUKASEY 1989
Creppy directed that all IJs reserve decision on any suspen-
sion of deportation application on which the IJ intended to
grant suspension of deportation, or to make such grants condi-
tional on the number of applications already granted. See id.
The BIA also stopped processing appeals in which a grant of
suspension of deportation relief might result. See id.

In March of 1997, several aliens who were eligible for sus-
pension of deportation under pre-IIRIRA law, but whose
applications would be denied under IIRIRA, sought and won
preliminary injunctive class relief that prevented IJs and the
BIA from implementing Chief IJ Creppy’s directive. See id.
at 1233. We upheld that preliminary injunction on appeal. See
id. at 1238.

In December 2002, the district court for the Northern Dis-
trict of California approved a settlement between Attorney
General John Ashcroft and the class of aliens who had been
adversely affected by Chief IJ Creppy’s directive or its BIA
equivalent. See Barahona-Gomez II, 243 F. Supp. 2d at 1030-
39 (reproducing settlement agreement). The settlement per-
mitted certain eligible aliens to apply for “renewed suspen-
sion” of deportation under the pre-IIRIRA rules. See id. at
1033.

Included among those eligible for relief, according to the
settlement, were “individuals for whom the Immigration
Judge . . . scheduled a merits hearing on a suspension applica-
tion . . . between February 13, 1997 and April 1, 1997, and
the hearing was continued until after April 1, 1997. . . .”
Barahona-Gomez II, 243 F. Supp. 2d at 1031-32. The settle-
ment also required the BIA to reopen cases where it had
denied an application for suspension of deportation “based
solely on [IIRIRA] Section 309(c)(5).” Id. at 1035.2
2
IIRIRA section 309(c)(5) prescribes the scope of application for the
stop-time rule. Congress stated that both paragraphs (1) and (2) of
§ 1229b(d) (which describes the special rules relating to continuous resi-
1990 NAVARRO v. MUKASEY
II. The Navarros’ Petition for Review

The Navarros, brother and sister, are natives and citizens of
Mexico. They entered the United States without inspection on
November 5, 1989, and have since remained.

On October 4, 1996, the Immigration and Naturalization
Service (“INS”)3 issued an OSC, charging the Navarros as
deportable under section 241(a)(1)(B) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. §1227(a)(1)(B), because
they entered the United States without inspection. They were
ordered to appear before an IJ.

After several pro se appearances and continuances, the
Navarros appeared with counsel for their deportation hearing
on March 3, 1997. They conceded deportability and indicated
that they wished to apply for suspension of deportation. The
IJ asked both parties to submit a brief about whether IIRIRA
— the “stop-clock” rule in particular — should apply to the
applications, and continued the Navarros’ deportation hearing
to April 1, 1997.

After receiving testimony from the Navarros and their
mother on April 1, 1997, the IJ denied their applications. The
IJ concluded that the “stop-clock” rule applied as of April 1,
1997 — the date of the hearing — and that, under the new
rule, the Navarros were unable to establish seven years of
continuous physical presence prior to service of the OSCs.

dence or physical presence) were to be applied in deportation proceedings
commenced “before, on, or after” April 1, 1997, IIRIRA’s effective date.
IIRIRA § 309(c)(5), Pub. L. 104-208, as amended by Pub. L. 104-302,
110 Stat. 3656 (1996); see also 8 U.S.C. § 1229b(d).
3
The INS was abolished on March 1, 2003, and its functions were trans-
ferred to the Department of Homeland Security. See Homeland Security
Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205. We refer
to the agency as the INS here, however, because all of the proceedings at
issue in this case took place before the transfer. See Minasyan v. Gonzales,
401 F.3d 1069, 1072 n.4 (9th Cir. 2005).
 NAVARRO v. MUKASEY 1991
The Navarros appealed to the BIA. On November 28, 2001,
the BIA affirmed the IJ’s decision in an unpublished order.
On July 21, 2003, the Navarros filed a motion asking the BIA
to reopen their cases on the basis that they were eligible for
Barahona-Gomez relief. The BIA denied their motion,
explaining that they did not qualify as members in the
Barahona-Gomez class. This petition for review followed.

JURISDICTION

We have jurisdiction to review the BIA’s determination of
eligibility for benefits of the Barahona-Gomez settlement. See
Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005).

STANDARD OF REVIEW

Eligibility under Barahona-Gomez is a question of law
reviewed de novo. See id. Our interpretation of the settlement
agreement is governed by principles of California contract
law. See id.

DISCUSSION

I. The Navarros Are “Class Members Eligible for
Relief”

The settlement agreement defines class members eligible
for relief as:

individuals for whom the Immigration Judge either
reserved a decision, or scheduled a merits hearing on
a suspension application under Immigration and
Nationality Act (“INA”) § 244 (as such section
existed in 1996, before amendment by IIRIRA),
between February 13, 1997 and April 1, 1997, and
the hearing was continued until after April 1, 1997
(other than where all three of the following are pres-
ent: the continuance was at the request of the alien,
1992 NAVARRO v. MUKASEY
the alien was represented by an attorney, and the
transcript of the hearing was prepared following an
appeal, and makes clear which party requested the
continuance), and . . . (iv) a decision was issued
denying or pretermitting suspension based on
IIRIRA § 309(c)(5), the appeal was filed, and the
BIA denied the appeal based on IIRIRA § 309(c)(5)
(irrespective of whether further relief was pursued in
federal court, or whether a motion to reopen was
subsequently filed with the BIA).

Barahona-Gomez II, 243 F. Supp. 2d at 1031-32.

[1] This definition can be broken down into two require-
ments: First, the IJ must have (a) either reserved a decision or
“scheduled a merits hearing” on a suspension application
between February 13, 1997 and April 1, 1997, and (b) contin-
ued the hearing “until after April 1, 1997.” Second, the appli-
cation for suspension must have been denied on the basis of
the stop-clock rule. The parties agree that the Navarros’ appli-
cations for suspension of deportation were denied on the basis
of the stop-clock rule. Consequently, the Navarros satisfy the
second requirement. Both parts of the first requirement, how-
ever, require further analysis.

A. “Scheduled a Merits Hearing”

[2] The parties disagree about what it means to say that the
IJ “scheduled a merits hearing” between February 13, 1997,
and April 1, 1997. The Navarros argue that the clause requires
that the IJ undertook the act of setting the hearing between
February 13 and April 1. The Government, in contrast, argues
that to meet this requirement, the IJ must have scheduled the
hearing to take place between February 13 and April 1.4
4
Although a hearing was conducted on March 3, 1997, that hearing can-
not be considered the operative hearing for purposes of our calculations
because it was at that hearing that the Navarros first requested the opportu-
nity to apply for suspension of deportation.
 NAVARRO v. MUKASEY 1993
[3] Because the interpretation of this settlement agreement
is governed by California contract law, see Sotelo, 430 F.3d
at 970, we first determine whether the contract language is
clear or ambiguous, see Bank of the West v. Superior Court,
10 Cal. Rptr. 2d 538, 545 (1992). If the contract language is
clear, we give effect to its plain meaning. See id.

[4] We believe that the settlement language is ambiguous
in that it does not support unambiguously either party’s inter-
pretation. To “schedule a merits hearing between x and y
dates” could simply require that the act of scheduling
occurred between x and y dates — the interpretation advanced
by the Navarros. This reading would be more obvious with
the addition of a few words, e.g., stating that the IJ undertake
the act of scheduling a merits hearing “between x and y
dates.” On the other hand, the Government’s interpretation,
that the hearing actually take place between x and y dates,
could also be inferred from the language. Like the Navarros’
interpretation, the Government’s reading would be more read-
ily apparent with the addition of a few words, e.g., it would
be more proper to say “schedule a merits hearing” for a cer-
tain period or to take place between x and y dates. The lan-
guage is reasonably ambiguous and thus the plain meaning of
the settlement agreement is not clear.

[5] Under California rules of contract law, where contract
language is susceptible to multiple interpretations, courts
attempt to discern which interpretation the parties intended.
See Cal. Civil Code § 1636 (“A contract must be so inter-
preted as to give effect to the mutual intention of the parties
as it existed at the time of contracting, so far as the same is
ascertainable and lawful.”); see also id. § 1641 (“The whole
of a contract is to be taken together, so as to give effect to
every part, if reasonably practicable, each clause helping to
interpret the other.”). For the reasons set forth below, we find
that the Navarros have the better reading.

[6] First, the definition of “class members” includes those
who “have had (or would have had) suspension of deportation
1994 NAVARRO v. MUKASEY
hearings conducted before April 1, 1997 . . . .” Barahona-
Gomez II, 243 F. Supp. 2d at 1030-31 (emphasis added).
Thus, the definition is not limited to those whose merits hear-
ings took place before April 1, 1997, but also includes those
whose hearings were scheduled to have taken place before
April 1, 1997, but did not because of a scheduling decision
during the operative period by the IJ.

Second, the Government’s definition does not adequately
cover the relevant group. The Barahona-Gomez settlement
includes those individuals whose suspension of deportation
hearings may have been rescheduled as a result of Chief IJ
Creppy’s February 11th directive. The Government’s defini-
tion, in contrast, would include individuals whose hearings
were not affected by the Creppy directive. For example, under
the Government’s definition, class membership would include
a petitioner whose hearing was scheduled to take place Febru-
ary 13th. Given that there are generally several weeks
between the date that an IJ undertakes the act of scheduling
a hearing and the date that the hearing occurs, it is highly
unlikely that there was adequate time for an IJ to read the
February 11th directive and schedule a hearing to take place
only two days later. Rather, the February 13th hearing would
likely have been scheduled sometime in December or Janu-
ary, long before Chief IJ Creppy issued his directive. As a
practical matter, it is therefore impossible to assume that all
of the hearings scheduled to take place between February 13th
and April 1st were scheduled as a result of the Creppy direc-
tive. Consequently, the Government’s definition is inade-
quate.

It is far more reasonable that the February 13th - April 1st
period refers to the time period that the IJs undertook the act
of rescheduling the suspension of deportation hearings —
something that they could do — for purposes of the
Barahona-Gomez settlement — only after they had read Chief
IJ Creppy’s directive. This definition better adheres to the set-
tlement’s intention that the class include all those whose hear-
 NAVARRO v. MUKASEY 1995
ings were rescheduled as a direct result of Creppy’s February
11th directive.5

Two interpretative canons support our holding that the
Navarros’ definition is more appropriate. First, we have con-
sistently held that ameliorative immigration laws enacted by
the legislature to forestall harsh consequences should be inter-
preted in an ameliorative fashion. See Akhtar v. Burzynski,
384 F.3d 1193, 1200 (9th Cir. 2004). This case involves a set-
tlement reached between immigrants and the government
agency charged with interpreting immigration law — an
agreement intended to prevent the harsh consequences of a
government agency’s actions relating to suspension of depor-
tation. Accordingly, that agreement should be interpreted in
an ameliorative fashion. Second, because of the harsh conse-
quences that attach to removal of an alien from the United
States, we have held that doubts in interpretation should be
resolved in favor of the alien. See id. Thus, where the lan-
5
Of course, it is likely that those petitioners who had an interview
scheduled to take place before April 1, 1997, had a better chance of having
a hearing completed before IIRIRA went into effect. Nonetheless, if our
goal is to determine whether an alien’s hearing could have been held
before April 1, 1997, the Government’s interpretation is both over- and
under-inclusive. Many hearings scheduled to take place before April 1,
1997, might not have been completed in one session due to witness avail-
ability, court and attorney schedules, and the sheer amount of testimony
often required to prove elements such as “extreme hardship.” And more
importantly, many petitioners whose hearings were scheduled during the
operative period might have been able to complete the hearing before
April 1, 1997. As discussed above, it appears that the Navarros’ hearing
could have been held before April 1, 1997, but for the court’s request for
additional briefing on an issue that BIA precedent already foreclosed. It
is impossible to reconstruct the IJs’ schedules to determine whether the
adjudication of requests for suspension of deportation made by applicants
like the Navarros could have been completed before IIRIRA took effect.
Nevertheless, it is likely that the parties to the settlement contemplated
using the Navarros’ definition so that those who might have been affected
by Chief IJ Creppy’s order had the opportunity to demonstrate entitlement
to relief.
1996 NAVARRO v. MUKASEY
guage of the settlement is ambiguous, we resolve doubts in
favor of coverage under the settlement.6

[7] In short, if some IJs read Chief IJ Creppy’s directive to
encourage delaying suspension of deportation hearings until
IIRIRA applied — and it is now impossible to tell why a par-
ticular alien’s hearing was delayed and whether that hearing
could have been completed before April 1, 1997 — then a
reasonable person would think that the parties attempting to
remedy the harm caused by Chief IJ Creppy’s memorandum
would have provided a remedy to all such aliens. For this rea-
son, we adopt the Navarros’ interpretation of the scheduling
language. Because, on March 3 — a date that falls between
February 13 and April 1 — the IJ scheduled a merits hearing
to be continued to April 1, 1997, we hold that the Navarros
meet this part of the definition.
6
The settlement agreement’s definition is written so as to avoid inquiries
into an individual IJ’s motivation for delaying the hearing. Nonetheless,
the IJ’s conduct in this case raises some concerns. The IJ scheduled the
hearing for the first day that IIRIRA became effective. Because the IJ
knew (or should have known) that the Navarros’ applications would be
denied if the hearing were held on April 1 or later, the choice to set the
hearing for April 1, 1997, is conspicuous.
Ostensibly, the hearing was delayed because the IJ wanted additional
briefing — briefing that, on closer review, appears to have been largely
useless. In its brief the INS argued that the IIRIRA stop-clock rule applied
before April 1, 1997, and brought to the court’s attention that the BIA had
already so held. See Matter of N-J-B-, 21 I. & N. Dec. 812, 814 (1997),
abrogated by Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, as amended
by 250 F.3d 1271 (9th Cir. 2001) (subsequently holding that the BIA’s
interpretation was in error and offering relief to those whose applications
were wrongly denied). Thus, the question the IJ posed for further briefing
had already been answered by the BIA. If the IJ had followed BIA prece-
dent and not delayed the hearing, the Navarros’ applications would likely
have been adjudicated under pre-IIRIRA law. The irony is that, by asking
for the briefing, the IJ pushed the hearing to April 1, when it was beyond
question that the stop-clock rule would apply, rendering the briefing a
doubly futile effort.
 NAVARRO v. MUKASEY 1997
B. “Continued after April 1, 1997”

[8] The Government also argues that the Navarros do not
qualify as Barahona-Gomez members because their hearing
was not continued “until after April 1, 1997,” but was held on
April 1, 1997. This argument is unavailing.

[9] The meaning of this phrase is unambiguous, but the lan-
guage, as memorialized in the written agreement, contradicts
the intentions of the parties. IIRIRA’s effective date was April
1, 1997 — not April 2, 1997. The definition of the class refers
to those who “had (or would have had) suspension of deporta-
tion hearings conducted before April 1, 1997,” Barahona-
Gomez II, 243 F. Supp. 2d at 1030-31 (emphasis added) —
the clear implication being that class members include those
who had their hearings April 1, 1997, or later. There is no rea-
son to believe that the parties to the Barahona-Gomez settle-
ment agreement meant to help all aliens whose hearings were
continued until after IIRIRA went into effect, except the
unfortunate few whose hearings were scheduled to occur on
the very first day that IIRIRA became effective.

[10] Under contract law, we have the power to “reform” a
contract where, due to mistake, the clear intention of the par-
ties is not reflected in the final agreement. See Hess v. Ford
Motor Co., 41 P.3d 46, 52 (Cal. 2002); 1 Witkins’ Summary
of California Law, Contracts § 276 (10th ed. 2005) (“Where
the parties come to an agreement, but by mistake (or fraud)
the written instrument does not express their agreement cor-
rectly, it may be reformed or revised on the application of the
party aggrieved. . . .”). Here, it appears that there was a mis-
take in reducing the agreement to written form. Consequently,
we read the settlement language as “continued until April 1,
1997, or after.” This interpretation is consistent with the pur-
pose of the Barahona-Gomez settlement. See Sotelo, 430 F.3d
at 972. The settlement remedy is simply the opportunity for
eligible class members to have their applications for suspen-
sion of deportation heard under the law which would, but for
1998 NAVARRO v. MUKASEY
the improper delay, have governed their cases. See Barahona-
Gomez II, 243 F. Supp. 2d at 1033.

CONCLUSION

[11] The Navarros were “scheduled” for a merits hearing
between February 13 and April 1, their hearing was continued
to a date after IIRIRA took effect, and they were denied relief
on the basis of the stop-clock rule. They are, accordingly,
class members eligible for relief. We therefore GRANT the
petition for review and REMAND their cases to the BIA to
determine their eligibility for renewed suspension of deporta-
tion.

CLIFTON, Circuit Judge, concurring in the judgment:

I do not agree with all that is contained in the majority
opinion, specifically Part I.A. of that opinion. (I do not quarrel
with Part I.B., involving the April 1, 1997 date.) Application
of the Barahona-Gomez settlement agreement should be
based on the facts of the particular situation, and I do not
think the broad interpretation stated by the majority opinion
will lead to sensible results in all cases.

But it seems to me that these petitioners fairly fall within
the definition of “the Class” contained in the settlement agree-
ment: “all persons who have had (or would have had) suspen-
sion of deportation hearings conducted before April 1, 1997,”
where the “immigration judge reserved or withheld granting
suspension of deportation” on the basis of the directive issued
by Chief Immigration Judge Creppy.

To briefly summarize, that directive was issued on Febru-
ary 13, 1997. On March 3, 1997, the Navarros and their attor-
ney appeared before the Immigration Judge, conceded
deportability, and stated that they wished to apply for suspen-
 NAVARRO v. MUKASEY 1999
sion of deportation. The IJ instructed the Navarros to file
applications for suspension of deportation and scheduled a
merits hearing on their applications for April 1, 1997. On
April 1, 1997 the IJ held the merits hearing and denied the
Navarros’ applications for suspension of deportation pursuant
to the IIRIRA stop-clock rule which went into effect that day.

In 1997, April 1 fell on a Tuesday. If the Navarros’ hearing
had been scheduled one day earlier, on Monday, March 31,
the new law would not have applied and they might have been
eligible for and obtained the relief they sought. It cannot rea-
sonably be assumed that scheduling their hearing for March
31 or some earlier date was out of the question, so it is clearly
possible that the directive influenced the IJ to push the new
hearing date past the effective date of the stop-clock rule. If
so, then the Navarros were in the situation that the settlement
agreement was intended to cover. Thus, I agree that their peti-
tion for review should be granted and concur in the judgment.