[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 07-14072 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 27, 2008
THOMAS K. KAHN
D. C. Docket No. 06-22502-CV-UU CLERK
FRANCOISE SICAR,
SONY SANEUS, et al.,
Plaintiffs-Appellants,
versus
MICHAEL CHERTOFF,
EMILIO T. GONZALEZ, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 27, 2008)
Before BLACK and MARCUS, Circuit Judges, and EVANS,* District Judge.
BLACK, Circuit Judge:
*
Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
Appellants Francoise Sicar, Sony Saneus, Kerby Sicar, Monushka Sicar, and
Emilien Honore appeal the dismissal of their class action complaint, which they
filed against a group of defendants we will refer to as “the Government.”1 In their
complaint, Appellants seek declaratory and injunctive relief, alleging the
Government has systematically misclassified their parole status during the course
of status adjustment determinations under the Haitian Refugee Immigration
Fairness Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681 (HRIFA). The district
court dismissed Appellants’ complaint, concluding the Appellants lacked standing
to bring the claims asserted therein and it lacked subject matter jurisdiction to hear
them. After review, we affirm because we lack subject matter jurisdiction.
I. BACKGROUND
A. Status Adjustment Under HRIFA
Under HRIFA § 902, an alien who has been ordered excluded, deported,
removed, or to voluntarily depart can apply for an adjustment of status, whereby
his immigration status is adjusted to that of an alien lawfully admitted for
1
Defendants are Michael Chertoff, Secretary of the Department of Homeland Security;
Emilio Gonzalez, Director of United States Citizenship and Immigration Services (CIS); Linda
Swacina, Miami District Director, CIS; Marion Dills, Officer in Charge, Krome Service
Processing Center, United States Immigration and Customs Enforcement (ICE), United States
Department of Security; and Michael Rozos, Field Office Director, Miami ICE Detention and
Removal Office, United States Department of Homeland Security.
2
permanent residence. See HRIFA § 902(a), (b). A status adjustment is available
to any Haitian alien who:
(1) was present in the United States on December 31, 1995, who--(A)
filed for asylum before December 31, 1995, (B) was paroled into the
United States prior to December 31, 1995, after having been
identified as having a credible fear of persecution, or paroled for
emergent reasons or reasons deemed strictly in the public interest, or
(C) was a child . . . at the time of arrival in the United States . . . .
HRIFA § 902(b). The present case involves the route for status adjustment
specified in § 902(b)(1)(B), which deals with Haitian aliens who have been
paroled into this country.
HRIFA also contains a jurisdiction-stripping provision that relates to status
adjustment determinations under § 902(b). Section 902(f) provides, “[a]
determination by the Attorney General as to whether the status of any alien should
be adjusted under this section is final and shall not be subject to review by any
court.”
B. Appellants’ Class Action Complaint
On October 10, 2006, Appellants filed a class action complaint in the
United States District Court for the Southern District of Florida. The members of
the purported class are Haitian nationals who, prior to December 31, 1995, arrived
3
in the United States without lawful immigration status, were taken into
immigration custody, and were released on their own recognizance.
In their complaint, Appellants assert four counts of statutory and
constitutional violations arising from the Government’s determinations that their
releases-on-recognizance do not qualify as “parole” for purposes of HRIFA
§ 902(b). First, Appellants claim the Government’s finding they had not been
paroled is improper as a matter of statutory interpretation. Second, Appellants
allege the Government’s unpromulgated policy, pursuant to which releases-on-
recognizance do not constitute paroles, violates the Administrative Procedure Act
(APA). In the third count, Appellants claim the Government has violated equal
protection by finding non-Haitians’ releases-on-recognizance qualify as paroles,
while Haitian aliens’ do not. Finally, Appellants claim their due process rights
have been violated by the Government’s alleged misclassifications.
Appellants’ complaint requests a declaratory judgment that the Government
has unlawfully misclassified their parole status and that their releases-on-
recognizance constitute parole for purposes of HRIFA § 902(b). They also seek
an order compelling the Government to allow them a reasonable time during
which to file, amend, or renew their status adjustment applications.
4
C. Procedural History
On November 22, 2006, the Government filed a motion to dismiss
Appellants’ complaint based on a lack of subject matter jurisdiction. The district
court, on March 9, 2007, issued an order dismissing Appellants’ complaint. The
court based its dismissal on Appellants’ lack of standing, so it did not address
whether it had subject matter jurisdiction. As to standing, the court concluded
Appellants had not demonstrated an actual injury, since they failed to allege they
had filed for asylum prior to December 31, 1995, a requirement under
§ 902(b)(1)(A).
Appellants filed a motion for relief from the district court’s dismissal order,
alleging the district court had erred in analyzing the status adjustment
requirements of § 902(b)(1)(A). On June 29, 2007, the district court entered the
order on which the current appeal is based. The court acknowledged it had
wrongly applied § 902(b)(1)(A) to Appellants’ case. Since the statute is
disjunctive and Appellants were proceeding under § 902(b)(1)(B), the parole
section, they did not need to show they had applied for asylum, a requirement
under § 902(b)(1)(A). However, the district court held that, even under
§ 902(b)(1)(B), Appellants still lacked standing, since their complaint did not
allege they had met the other requirements for status adjustment under
5
§ 902(b)(1)(B) besides having been paroled. Thus, the court found, Appellants
had not established any of the three standing requirements: injury in fact,
causation, or redressibility. The court also held it lacked subject matter
jurisdiction to review Appellants’ status adjustment determinations under § 902(f).
In doing so, the court rejected Appellants’ argument that the alleged
misclassification of their parole status was a reviewable threshold issue, one made
prior to the status adjustment determination and thus outside of § 902(f)’s
coverage. Moreover, the court concluded that despite Appellants’ characterization
of their cause of action as a challenge to the systemic violations carried out by the
Government, they effectively sought a declaration that they were entitled to adjust
their status under HRIFA, and the court was plainly precluded from considering
such a challenge under § 902(f).
II. DISCUSSION
A. Standard of Review
We review standing and subject matter jurisdiction de novo. Garcia v. Att’y
Gen. of U.S., 329 F.3d 1217, 1220 (11th Cir. 2003) (subject matter jurisdiction);
Fla. Ass’n of Med. Equip. Dealers, Med-Health Care v. Apfel, 194 F.3d 1227,
1229 (11th Cir. 1999) (standing).
6
B. Standing
To have standing in federal court, a plaintiff must meet three requirements.
First, he must have suffered an injury in fact: “an invasion of a legally protected
interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130,
2136 (1992). The injury must be “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” Id. (quotations and citations omitted).
Second, there must be a causal connection between his injury and the conduct he
challenges, i.e., his injury must be fairly traceable to the challenged actions of the
defendant. Id. Third, it must be likely that plaintiff’s injury will be redressed by a
favorable decision of the court. Id. at 561, 112 S. Ct. at 2136.
The district court determined Appellants failed to meet any of the three
standing requirements. The court concluded Appellants’ claim they had been
wrongfully denied status adjustments under § 902(b) was insufficient to allege an
injury in fact, since Appellants did not allege they would be eligible for
adjustments even if they were classified as having been paroled. In so concluding,
the court noted the complaint contained no allegations that Appellants were
present in the United States as of December 31, 1995, or that they had been
paroled “after having been identified as having a credible fear of persecution, or
paroled for emergent reasons or reasons deemed strictly in the public interest.”
7
See § 902(b)(1)(B). Even if the Appellants had shown an injury in fact, the court
noted they still had not shown their injury was fairly traceable to the
Government’s alleged misclassification because they failed to demonstrate they
were otherwise eligible for status adjustments. Finally, as to redressibility, the
court determined that even if it granted Appellants’ requested relief and
recognized their releases-on-recognizance as paroles, Appellants still would not be
eligible for status adjustments, since having been paroled alone is not sufficient to
qualify for adjustments under § 902(b)(1)(B).
The district court clearly read Appellants’ complaint as alleging their injury
to be the denial of status adjustments under § 902(b). However, a plain reading of
their complaint indicates the injury they allege is actually the misclassification of
their releases-on-recognizance, not the ultimate denial of their status adjustment
applications. Appellants claim they were denied a classification to which they
were entitled—that of parolees for purposes of § 902(b). This alleged
misclassification is an injury in fact for standing purposes, regardless of how
Appellants’ ultimate status adjustment determinations may be resolved. Also, this
injury is fairly traceable to the actions of the Government, as it was the
Government that allegedly misclassified Appellants’ releases-on-recognizance.
Moreover, this injury would be redressed by a favorable decision in federal court.
8
Were the court to find Appellants had been paroled, the misclassification would be
corrected, and Appellants could have another attempt to have their status adjusted,
this time without the allegedly incorrect initial classification. Thus, Appellants
have met the constitutional requirements of standing.2
C. Subject Matter Jurisdiction
As set forth above, HRIFA § 902(f) provides, “[a] determination by the
Attorney General as to whether the status of any alien should be adjusted under
this section is final and shall not be subject to review by any court.” Relying on
this provision, the district court dismissed Appellants’ complaint for lack of
subject matter jurisdiction. Despite the operation of § 902(f), Appellants contend
the district court had subject matter jurisdiction for two independent reasons.
First, Appellants claim whether they have been paroled for purposes of § 902(b) is
a threshold determination, one that precedes the status adjustment determination
and is thus reviewable by courts. Second, they argue their complaint, rather than
challenging individual status adjustment determinations, alleges systemic
violations by the Government in its alleged misclassification of Appellants’
2
Appellants’ complaint states they have been denied “certain immigration and non-
immigration benefits that depend on the proper classification of their ROR orders as paroles.”
To the extent Appellants contend this statement alleges an injury in fact outside the context of
their HRIFA status adjustments, we disagree. Having been denied unspecified “non-immigration
benefits,” without more, is far too speculative and not sufficiently particularized to constitute an
injury in fact.
9
releases-on-recognizance, and this pattern of misclassification remains subject to
judicial review.
1. Threshold determination
Relying on Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001), Appellants
claim whether they have been paroled is a threshold issue, one that arises prior to
the Government’s status adjustment decision and is thus reviewable, despite the
jurisdiction-stripping language of § 902(f). In Moore, we analyzed the following
jurisdiction-stripping provision found in INA § 242(a)(2)(C): “Notwithstanding
any other provision of law, no court shall have jurisdiction to review any final
order of removal against an alien who is removable by reason of having committed
[certain enumerated criminal offenses].” 251 F.3d at 923. We noted our prior
precedent, which is based on the plain language of this provision, allowed us to
review “the threshold issues of whether Petitioner is (1) an alien; (2) who is
removable; (3) based on having committed a disqualifying offense.” Id. Then, if
these conditions are satisfied, our jurisdiction over a petition for review would
disappear. Id.
Appellants contend that, under Moore, we have jurisdiction to review, as a
threshold matter, whether they have been granted paroles. However, unlike the
jurisdiction-stripping provision in Moore, § 902(f) contains no imbedded
10
threshold issues. Instead, it is quite clear: “A determination by the Attorney
General as to whether the status of any alien should be adjusted under this section
is final and shall not be subject to review by any court.” HRIFA § 902(f). In
Moore, the three reviewable threshold issues we recognized were found very
plainly in the language of INA § 242(a)(2)(C). In contrast, the threshold “parole”
issue Appellants ask us to read into § 902(f) is not in any way referenced in that
provision. Having been paroled is one of the requirements for status adjustment
under § 902(b), and the status adjustment determination under that provision is the
very determination we are prohibited from reviewing under the plain language of
§ 902(f). The only even arguable threshold issue set forth in § 902(f) is whether
there has been a determination by the Attorney General. If there has been, and in
this case there has, we have no jurisdiction to review it. The language of § 902(f)
could not be plainer. The district court did not err in disregarding Appellants’
threshold issue argument.
2. Systemic violations
Despite the general presumption in favor of judicial review, we have held
§ 902(f) plainly strips us of jurisdiction to review status adjustment
determinations. Alexis v. U.S. Att’y Gen., 431 F.3d 1291, 1294 (11th Cir. 2005).
However, we retain jurisdiction to consider substantial constitutional challenges to
11
the immigration statute itself. Id. at 1295. If a constitutional claim is meritless,
we do not have jurisdiction to consider it. Id.
a. Count one
Count one of Appellants’ complaint, in which they contest the
Government’s alleged misclassification of their parole status on statutory
interpretation grounds, fails to provide us with jurisdiction. This is because the
determination of whether an applicant has been paroled is inextricably bound up in
the actual status adjustment determination under § 902(b). It is a decision made
during, and as a part of, the ultimate status adjustment determination, judicial
review of which is plainly prohibited by § 902(f).
Appellants claim count one does not challenge the merits of individual
status adjustment determinations, but instead alleges a class-wide, systemic wrong
in the way the Government has misclassified and continues to misclassify their
releases-on-recognizance. Thus, relying on Tefel v. Reno, 180 F.3d 1286 (11th
Cir. 1999), they contend we have jurisdiction to consider this claim. In Tefel, the
plaintiffs advanced a challenge to the BIA’s interpretation of a newly enacted
“stop-time” provision. Id. at 1290. In order to be eligible for suspension of
deportation, an alien was required to establish four factors, one of which was that
he had been physically present in the United States for a certain period of time.
12
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) revised the INA and included a stop-time provision, under which the
period of physical presence is deemed to end once the alien is served with a notice
to appear or commits an enumerated criminal offense. The BIA held the stop-time
provision applied retroactively to aliens who had applied for suspension of
deportation prior to the enactment of IIRIRA. It was this interpretation that was
the subject of the plaintiffs’ class action complaint in Tefel. Id. at 1289-90.
The pre-IIRIRA judicial review scheme at play in Tefel gave appellate
courts exclusive jurisdiction over challenges to deportation proceedings. Id. at
1290, 1297. Yet, plaintiffs brought their class action complaint in federal district
court. Id. at 1290. We determined the plaintiffs, rather than challenging their
individual deportation proceedings, had asserted “a program, pattern or scheme by
immigration officials to violate the constitutional rights of aliens,” and this was
the type of challenge to INS practices that fell outside the pre-IIRIRA judicial
review scheme. Id. at 1297. Thus, the appellate court did not have exclusive
jurisdiction, and the district court had properly exercised jurisdiction over the
complaint. In so concluding, we noted, “[p]laintiffs do not challenge the specific
result in any single case and do not argue that any of the individual [p]laintiffs
would receive suspension of deportation if their applications received full
13
consideration.” Id. Had the plaintiffs lobbied such a challenge, it would have
fallen under the exclusive jurisdiction of the appellate courts.
Though Tefel dealt with a jurisdiction provision that differentiated between
district and appellate court jurisdiction, its distinction between challenges
involving the merits of an INS determination and those alleging a broad program
or scheme orchestrated to violate the rights of aliens is instructive. What the
plaintiffs did not challenge in Tefel is exactly what Appellants challenge in the
present case. Tefel involved an attack on the BIA’s interpretation of a piece of
legislation, an interpretation that applied uniformly to all similarly situated
applicants. Here, rather than challenging an interpretation made collaterally to the
status adjustment proceedings themselves and uniformly applicable in every case,
as the plaintiffs did in Tefel, Appellants challenge the Government’s findings, in
individual cases, that their releases are not paroles for purposes of status
adjustments. While each decision as to whether Appellants were paroled has come
out the same way and thus might be likened (in effect anyway) to a uniformly
applicable rule, the reality is each decision is made solely in the course of the
adjustment proceedings. This is fundamentally different from the BIA
interpretation challenged in Tefel. Appellants in effect seek to challenge the
Government’s resolutions of their status adjustment applications. They could not
14
do this were they to file individual complaints. The fact that they attempt to do so
as a class, rather than individually, does not give us jurisdiction.
Appellants also rely on McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,
111 S. Ct. 888 (1991), to support their contention that we have jurisdiction. At
issue in McNary was the procedure for status adjustment for “special agricultural
workers” (SAWs). The SAW program was part of the Reform Act of 1986 and,
like HRIFA § 902(b), offered SAWs the opportunity to apply for a status
adjustment as long as certain prerequisites were met. Id. at 481-83, 111 S. Ct. at
890-91. The Reform Act contained a jurisdiction-limiting provision which
prohibited judicial review of the final administrative determination of a SAW
status adjustment, except as part of the judicial review of an order of exclusion or
deportation. Id. at 485-86, 111 S. Ct. at 893. To administer the SAW program,
the INS adopted regulations, pursuant to which each applicant was afforded a
personal interview. Id. at 485, 111 S. Ct. at 892. Plaintiffs brought a class action
suit alleging the interview process was conducted in an arbitrary fashion that
deprived applicants of due process. Id. at 487, 111 S. Ct. at 893-94. Among the
alleged procedural deficiencies in the interview process were that applicants were
not given the opportunity to challenge adverse evidence, they could not present
witnesses on their behalf, non-English speaking applicants were not provided
15
translators, and no recordings of the interviews were made. Id. at 487-88, 111
S. Ct. at 893-94.
McNary involved a collateral attack on the process used to determine status
adjustment eligibility. The challenge lobbied there was clearly aimed at
procedural deficiencies present in the interview process, not at the outcome of the
status adjustment determinations. Here, as discussed above, Appellants’ claim is a
direct attack on a substantive determination—whether Appellants were
paroled—that is but one component of the ultimate status adjustment
determination. This is not an attack on some collateral, procedural aspect of the
status adjustment determination; it is an attack on an aspect of the substantive
determination itself. Under the plain terms of § 902(f), we do not have jurisdiction
to review such an attack.
b. Count two
In count two, Appellants claim the Government adopted an unpromulgated
policy, pursuant to which their releases-on-recognizance do not constitute paroles
for purposes of § 902(b), and this policy violates the APA, insomuch as the
Government did not publish notice in the Federal Register or provide the public an
opportunity to comment prior to implementing the policy. The district court made
no specific reference to this claim when dismissing Appellants’ complaint.
16
Despite being couched in terms of the APA, count two, at its heart, is but
another attempt by Appellants to challenge the merits of their status adjustment
determinations. This is confirmed by the relief they request in their complaint.
Appellants do not ask the court to invalidate the allegedly unpromulgated policy
and force the Government to undertake notice and comment. Instead, they seek a
declaration that their releases-on-recognizance constitute paroles for purposes of
§ 902(b). Thus, as with count one, Appellants’ APA claim is most properly
characterized as one seeking review of their status adjustment determinations, and
§ 902(f) prohibits us from exercising jurisdiction over such a claim.
c. Counts three and four
In counts three and four of their complaint, Appellants allege constitutional
violations. First, they claim their equal protection rights have been violated by the
differing treatment of Haitian and non-Haitian refugees in status adjustment
proceedings. Second, Appellants challenge on due process grounds the
Government’s alleged misclassification of their parole status.
In Alexis, the plaintiff argued aliens of different status and nationality were
treated differently under the many immigration laws governing admission into the
United States, and this divergent treatment violated due process. 431 F.3d at
1295. We concluded we lacked jurisdiction to consider this constitutional claim
17
under § 902(f) because it was not substantial. Id. We noted aliens seeking initial
admission into the United States are requesting a privilege; they do not have a
constitutional right regarding their applications. Id. “[E]xcludable aliens have no
constitutional right to admission into this country; they have only those rights
statutorily granted by Congress.” Id.; see also Garcia-Mir v. Smith, 766 F.2d
1478, 1484 (11th Cir. 1985) (noting excludable aliens do not have constitutional
rights with regard to their admission applications).
Appellants, like the plaintiff in Alexis, are inadmissible aliens.3 We know
this because they were taken into custody as they attempted to enter the United
States without lawful immigration status. Garcia-Mir, 766 F.2d at 1483-84. That
they have been and indeed are currently physically present in the United States,
having been released on their own recognizance, does not change this status. Id. at
1484. In fact, their HRIFA applications were submitted in hopes of having their
inadmissible alien status adjusted to that of lawfully admitted residents. See
Alexis, 431 F.3d at 1295-96. Because Appellants are inadmissible aliens, they
have no constitutional rights regarding their applications for status adjustments.
3
The IIRIRA replaced the term “excludable” with “inadmissible.” Garcia v. Att’y Gen. of
U.S., 329 F.3d 1217, 1221 (11th Cir. 2003).
18
Thus, their constitutional claims are not substantial, and we have no jurisdiction to
review them.
In sum, due to the operation of § 902(f), we have no jurisdiction to hear
Appellants’ statutory challenges to the Government’s alleged misclassification of
their releases-on-recognizance.4 We also lack jurisdiction to entertain their
constitutional challenges because they are not substantial.
III. CONCLUSION
For the foregoing reasons, we conclude the district court erred in finding
Appellants lacked standing to pursue their class action suit. However, because we
have no jurisdiction to hear the claims lobbied in Appellants’ complaint, the
district court’s dismissal of the complaint for lack of subject matter jurisdiction is
AFFIRMED.
4
In their brief, Appellants assert, “[i]ndependent of any link to HRIFA relief . . .
Appellants’ principal statutory claim was that there was no legal basis in the INA for the orders
of release on personal recognizance that the Haitian Refugees and members of their class
received . . . .” However, no such claim is made in their complaint, which focuses exclusively on
the Government’s alleged misclassification of their releases-on-recognizance during the HRIFA
status adjustment determinations. Because a claim independent of HRIFA was never raised, we
need not determine whether we have jurisdiction over it.
19