Alvidres-Reyes v. Reno

Revised July 21, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 97-50872
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LUIS FERNANDO ALVIDRES-REYES; DANIEL NUNEZ; ROSANA DIAZ;
RICARDO FLORES; JOSE MANUEL LOPEZ; JUAN SEDILLO; MIGUEL
ANGEL PEREA; JULIO PUENTES; JOSE MANUEL ADAME; GENARO AMARO;
ARMANDO PALOMINO; VICENTE CHAVEZ; ESTELA HERNANDEZ; SANDRA
CASADO; JESUS REGALADO; EDUARDO RUBIO; ROBERTO VARGAS; JOSE
PILAR MORALES; ARTURO MARTINEZ; AMELIA TRUJILLO-CARMONA;
ESPERANZA GARCIA; FRANCISCA MEDRANO; GUADALUPE VASQUEZ;
LILIA GONZALEZ; PEDRO BARRIENTOS; ALFONSO JASSO; ROSA ELVA
OLIVAS; ELOISA MARTINEZ; ANA MARIA MARQUEZ; VERONICA GARDEA;
MARIA RAMIREZ; RAMIRO PAYAN DE SANTIAGO; ALBERTA OLIVAS;
MARIA REYES SEANES; RAMONA MARTINEZ; ESTELA GARCIA; JUAN
SEDILLO; GUILLERMINA JACQUEZ; MARIA IMELDA CHAVEZ; ARTURO
MARTINEZ FRACEL; NIDIA CORDERO; GERARDO CARREON AMAYA; MARIA
PATRICIA VARGAS; ROBERTO VARGAS; EDUARDO MONTOYA AGUIRRE;
GILBERTO DOMINUEZ SALCIDO; ALEJANDRO DOMINGUEZ SALCIDO;
ANGEL CORRALES; JORGE PINA QUIROZ; LILIA ANA DOMINGUEZ
BARRERA; MAR SOL FLORES; ALMA ALEJANDRA FLORES

Plaintiffs-Appellants,

JANET RENO, Attorney General of the United States; DORIS
MEISER, Commissioner, Immigration & Naturalization Service;
LUIS GARCIA, District Director, Immigration & Naturalization
Service

Defendants-Appellees.

_____________________

Appeal from the United States District Court for the
Western District of Texas
_____________________
June 29, 1999

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The plaintiffs, fifty resident aliens, brought this suit for

mandamus, declaratory, and injunctive relief in the district court

seeking to compel the Attorney General of the United States

(“Attorney General”) and the Immigration & Naturalization Service

(“INS”) to consider their applications for suspension of

deportation under a now-repealed provision of the Immigration and

Naturalization Act (“INA”) rather than the more onerous criteria

for cancellation of removal imposed by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.

No. 104-208, 110 Stat. 3009 (Sept. 30, 1996).

The district court dismissed the complaint under Federal Rule

of Civil Procedure 12(b)(6) because the plaintiffs failed to state

a claim upon which relief could be granted. As the district court

pointed out, IIRIRA continues INA’s requirement that an alien must

be adjudged removable (formerly “deportable”) before he may apply

for cancellation (formerly “suspension”) of removal (formerly

“deportation”). IIRIRA also maintains the Attorney General’s

executive discretion to decide when to commence proceedings,

adjudicate cases, and execute removal orders, which was formerly

established by comparable provisions of INA. Thus, the district

court was correct that, in the absence of these prerequisites, the

plaintiffs failed to state a claim to have the court require the

2
Attorney General to allow the filing or consideration of the

plaintiffs’ applications to suspend deportation.

There is, however, a more fundamental reason that the

plaintiffs’ cause cannot be heard –- the federal courts’ lack of

subject matter jurisdiction. The exclusive jurisdiction provision

of IIRIRA, 8 U.S.C. § 1252(g), applies retroactively to deprive

courts of jurisdiction to hear any cause by or on behalf of any

alien arising from the decision or action by the Attorney General

to commence proceedings, adjudicate cases, or execute removal

orders, subject to exceptions not applicable in the present case.

The Congressional aim of § 1252(g) is to protect from judicial

intervention the Attorney General’s long-established discretion to

decide whether and when to prosecute or adjudicate removal

proceedings or to execute removal orders. If successful, the

plaintiffs’ suit would substitute a court order for the Attorney

General’s decision to initiate and adjudge removals and require her

by judicial fiat to consider the plaintiffs’ applications for

deportation under the former rather than the current legal

standards. Consequently, the plaintiffs’ suit must be dismissed

because § 1252(g) protects from judicial intervention the Attorney

General’s exercise of her executive discretion whether to prosecute

and adjudicate removal cases by depriving the courts of

jurisdiction to hear such litigation or any cause arising

therefrom. Accordingly, we vacate the district court’s judgment

and dismiss the plaintiffs’ complaint for lack of subject matter

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jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs in this case are fifty illegal aliens who have

resided in the United States for at least seven years. Beginning

in June 1996, the plaintiffs, only one of whom currently is in

deportation proceedings, submitted applications to the INS to be

declared deportable and to have their deportations suspended under

the less exacting pre-IIRIRA provisions of INA, codified at 8

U.S.C. § 1254. In March 1997, before IIRIRA’s effective date of

April 1, 1997, defendant Luis Garcia, the INS district director,

allegedly selected at random 20 aliens, other than the plaintiffs,

for adjudication as deportable and for consideration of deportation

suspensions. According to the plaintiffs, Assistant Director

Garcia took the position that, because of lack of personnel, no

more than 20 such cases could be handled without interfering with

the INS’s first priority of deporting alien drug offenders.

In enacting IIRIRA, Congress repealed the suspension of

deportation relief contained in § 244 of INA, 8 U.S.C. § 1254

(1982), replacing it with a new § 240A, 8 U.S.C. § 1229b (Supp. III

1997), entitled “Cancellation of Removal; Adjustment of Status.”

See IIRIRA §§ 304, 308(b)(7), 110 Stat. 3009-587, 3009-614 (1996).

Both the suspension of deportation relief afforded under now-

repealed § 244, and the new cancellation of removal provisions in

§ 240A, enable statutorily eligible applicants who have been

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adjudged deportable (or removable) to apply for discretionary

suspension (or cancellation) of deportation (or removal) and for

adjustment of the alien’s status to that of being lawfully admitted

for permanent residence.

Before IIRIRA’s enactment, § 244 of INA permitted aliens with

seven years of residency to apply for suspension of deportation due

to extreme hardship to the alien or a close family member.1

Section 240A of IIRIRA requires that, to successfully apply for

suspension or cancellation of deportation, an alien must have ten

1
Section 244 provided in pertinent part:
Suspension of deportation
(a) Adjustment of status for permanent
residence; contents
As hereinafter prescribed in this section, the
Attorney General may, in his discretion,
suspend deportation and adjust the status to
that of an alien lawfully admitted for
permanent residence, in the case of an alien
(other than an alien described in section
1251(a)(4)(D) of this title) who applies to
the Attorney General for suspension of
deportation and --
(1) is deportable under any law of the
United States except the provisions specified
in paragraph (2) of this subsection; has been
physically present in the United States for a
continuous period of not less than seven years
immediately preceding the date of such
application, and proves that during all of
such period he was and is a person of good
moral character; and is a person whose
deportation would, in the opinion of the
Attorney General, result in extreme hardship
to the alien or to his spouse, parent, or
child, who is a citizen of the United States
or an alien lawfully admitted for permanent
residence.
8 U.S.C. § 1254(a)(1) (1988) (repealed 1996).

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years of residency and show exceptional and extremely unusual

hardship to the alien’s spouse, parent, or child, who is a citizen

of the United States or an alien lawfully admitted for permanent

residence.2 8 U.S.C. § 1229b. The new cancellation of removal

provisions became effective 180 days after the date of the

enactment of the IIRIRA, i.e., April 1, 1997. See IIRIRA § 309(a),

110 Stat. 3009-625 (1996); INS v. Yang, 519 U.S. 26, 29 n.1 (1996).

On March 31, 1997, one day before the general effective date

of IIRIRA, the plaintiffs filed suit in district court seeking

mandamus, declaratory, and injunctive relief compelling the

defendants to adjudicate their applications for suspension of

2
Section 240A provides in pertinent part:
Cancellation of removal; adjustment of status.
. . .
(b) Cancellation of removal and adjustment of
status for certain nonpermanent residents
(1) In general
The Attorney General may cancel removal
in the case of an alien who is inadmissible or
deportable from the United States if the alien
--
(A) has been physically present in the
United States for a continuous period of not
less than 10 years immediately preceding the
date of such application;
(B) has been a person of good moral
character during such period;
(C) has not been convicted of an offense
under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title; and
(D) establishes that removal would result
in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child, who
is a citizen of the United States or an alien
lawfully admitted for permanent residence.
8 U.S.C. § 1229b (Supp. III 1997).

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deportation under the more lenient, pre-IIRIRA provisions of INA.

In their complaint, the plaintiffs contend that they are eligible

for suspension of deportation under the pre-IIRIRA provisions of

INA; that, despite this eligibility, the INS has refused to

“process” their suspension applications; and that IIRIRA “takes

away their eligibility of present rights under Sec. 244(a) INA.”3

The defendants filed a Rule 12(b)(1) and 12(b)(6) motion to

dismiss for lack of subject matter jurisdiction and for failure to

state a claim upon which relief may be granted. The district court

did not reach the defendants’ jurisdictional challenge, concluding

that the plaintiffs stated no cause of action because illegal

aliens are not entitled to apply for suspension of deportation

under either § 244 of INA or § 240A of IIRIRA unless they have been

found to be deportable by an immigration judge. Alvidres-Reyes v.

Reno, 981 F. Supp. 1008, 1010 (W.D. Tex. 1997). The district court

also concluded that it lacked the power to compel the INS or the

Attorney General to initiate deportation or removal proceedings

against any of the plaintiffs because mandamus is not available to

compel the discretionary acts of executive officials. Id. at 1012.

3
The plaintiffs also alleged that the INS’s refusal to
consider their applications for suspension of deportation is
discriminatory, arbitrary, malicious, and violative of due process
and equal protection of the laws. Thereafter, the plaintiffs
amended their complaint to allege a class action, and to allege
that, after the filing of the complaint, one of the plaintiffs,
Rosana Diaz, was arrested by the INS, which “now seeks to deport
her.”

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According to the district court, the Attorney General, who is

responsible for enforcing the deportation laws through the INS, has

complete discretion in initiating deportation proceedings. Id. at

1012-13 (citing Johns v. Department of Justice, 653 F.2d 884, 889

(5th Cir. 1981)). Concluding that the plaintiffs were not entitled

as a matter of law to the relief sought, the district court

dismissed the action for failure to state a claim. This appeal

ensued.

II. DISCUSSION

In dismissing the complaint for failure to state a claim on

which relief can be granted, the district court declined to

consider the defendants’ jurisdictional arguments. A federal court

of appeals has a duty to inquire into the basis of its jurisdiction

and of the jurisdiction of the district court. New York Life Ins.

Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir. 1998).

During the pendency of this appeal, the Supreme Court in Reno

v. American-Arab Anti-Discrimination Committee, 119 S. Ct. 936

(1999), held that IIRIRA § 1252 deprives the federal courts of

jurisdiction of a suit by resident aliens against the Attorney

General seeking to prevent the initiation of deportation

proceedings against them, although the aliens’ suit was filed in

1987, and had been pending almost a decade before the enactment of

IIRIRA in 1996. In that case, the INS, a division of the

Department of Justice, instituted deportation proceedings against

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eight resident aliens, charging them with being aliens who had

advocated world communism under the now-repealed McCarran-Walter

Act, see 8 U.S.C. §§ 1251 (a)(6)(D), (G)(v), and (H) (1982); and

charging six of them, who were only temporary residents, with

routine status violations such as overstaying a visa and failure to

maintain student status, 8 U.S.C. §§ 1251(a)(2) and (a)(9) (1988).

American-Arab, 119 S. Ct. at 938-39. The aliens responded with

their own suit seeking declaratory and injunctive relief against

the Attorney General, the INS, and various immigration officials.

Id. at 939. The aliens alleged, inter alia, that they were being

subjected to selective enforcement of the immigration laws in

violation of their First and Fifth Amendment rights because they

belonged to the Popular Front for the Liberation of Palestine. Id.

The aliens’ suit made four trips through the California federal

district court and the Ninth Circuit. Id. The Attorney General’s

last appeal was pending when Congress passed IIRIRA which, inter

alia, repealed the old judicial-review scheme set forth in 8 U.S.C.

§ 1105a and established a new (and significantly more restrictive)

one in 8 U.S.C. § 1252. Id. at 940. After the Ninth Circuit

affirmed the existence of jurisdiction under § 1252 and the

district court’s injunctions against the Attorney General, 119 F.3d

1367 (9th Cir. 1997), the Supreme Court granted certiorari, 118 S.

Ct. 2059 (1998).

The Supreme Court in Reno v. American-Arab Anti-Discrimination

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Committee vacated the judgment of the Ninth Circuit and remanded

with instructions for it to vacate the judgment of the district

court “[b]ecause 8 U.S.C. § 1252(g) deprives the federal courts of

jurisdiction over [the aliens-]respondents’ claims[.]” American-

Arab, 119 S. Ct. at 947. Section 1252(g) provides:

(g) Exclusive Jurisdiction
Except as provided in this section and
notwithstanding any other provision of law, no
court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien
arising from the decision or action by the
Attorney General to commence proceedings,
adjudicate cases, or execute removal orders
against any alien under this Act.

8 U.S.C. § 1252(g) (Supp. III 1997).4 The Court stated that §

1252(g) does not cover “the universe of deportation claims” but

applies only to “three discrete actions that the Attorney General

may take: her ‘decision or action’ to ‘commence proceedings,

adjudicate cases, or execute removal orders.’” American-Arab, 119

S. Ct. at 943. The Court explained:

There was good reason for Congress to
focus special attention upon, and make special
provision for, judicial review of the Attorney
General’s discrete acts of “commenc[ing]
proceedings, adjudicat[ing] cases, [and]
execut[ing] removal orders” –- which represent
the initiation or prosecution of various
stages in the deportation process. At each
stage the Executive has discretion to abandon
the endeavor, and at the time IIRIRA was

4
Section 1252(g) applies “without limitation to claims
arising from all past, pending, or future exclusion, deportation,
or removal proceedings.” IIRIRA, Pub. L. No. 104-208, § 306(c)(1),
110 Stat. 3009, 3009-612 (1996).

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enacted the INS had been engaging in a regular
practice (which had come to be known as
“deferred action”) of exercising that
discretion for humanitarian reasons or simply
for its own convenience. . . . Section
1252(g) seems clearly designed to give some
measure of protection to “no deferred action”
decisions and similar discretionary
determinations, providing that if they are
reviewable at all, they at least will not be
made the bases for separate rounds of judicial
intervention outside the streamlined process
that Congress has designed.

Id. at 943-44. (emphasis added) (other alterations in original)

(internal citations and footnote omitted). According to the Court,

“Section 1252(g) was directed against a particular evil: attempts

to impose judicial constraints upon prosecutorial discretion.” Id.

at 944 n.9. The Supreme Court further said that “protecting the

Executive’s discretion from the courts . . . can fairly be said to

be the theme of the [IIRIRA] . . . . It is entirely understandable

. . . why Congress would want . . . the discretion-protecting

provision of § 1252(g) applied even to pending cases: because that

provision is specifically directed at the deconstruction,

fragmentation, and hence prolongation of removal proceedings.” Id.

at 945. (examples omitted).

Accordingly, the Court concluded that “[the aliens’] challenge

to the Attorney General’s decision to ‘commence proceedings’

against them falls squarely within § 1252(g) –- indeed . . . the

language seems to have been crafted with such a challenge precisely

in mind -— and nothing elsewhere in § 1252 provides for

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jurisdiction.” Id. Cf. § 1252(a)(1) (review of final orders); §

1252(e)(2) (limited habeas review for excluded aliens); §

1252(e)(3)(A) (limited review of statutes and regulations

pertaining to the exclusion of aliens).

In the present case, the plaintiffs-aliens, in effect,

challenge the Attorney General’s refusal to initiate proceedings,

adjudicate them deportable, and consider their applications for

suspension of deportation. Plaintiffs do not explicitly pray for

the court to order the Attorney General to initiate proceedings or

adjudicate their deportability. If successful, however,

plaintiffs’ suit would compel the Attorney General to do so in

order to consider their applications for suspension of

deportation.5 Thus, the plaintiffs’ suit necessarily calls for

5
The district court concluded that because the plaintiffs had
not been made subject to a deportation proceeding and found
deportable by an immigration judge, they were ineligible to apply
for suspension of deportation relief under pre-IIRIRA § 1254(a)(1).
Alvidres-Reyes, 981 F. Supp. at 1010.
We agree with the district court that the decision on
suspension of deportation (now termed “cancellation of removal”)
must be made in a pending deportation proceeding.
The current regulations governing applications for
cancellation of removal provide that “[a]n application for the
exercise of discretion under Section 240A of the Act shall be
submitted . . . to the Immigration Court having administrative
control over the Record of Proceeding of the underlying removal
proceeding under section 240 of the Act.” 8 C.F.R. § 240.20(a)
(1999) (emphasis added). Furthermore, these regulations provide
that the “application may be filed only with the Immigration Court
after jurisdiction has vested pursuant to § 3.14 of this chapter.”
8 C.F.R. § 240.20(b) (1999) (emphasis added). “Jurisdiction vests,
and proceedings before an Immigration Judge commence, when a
charging document is filed with the Immigration Court by the
Service [INS].” 8 C.F.R. § 3.14(a) (1999).

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judicial intervention to reverse the Attorney General’s exercise of

her discretion to not commence proceedings against the plaintiffs

and to not adjudicate their deportations, which necessarily was

included within her refusal to entertain their applications for

suspension of deportations.

We conclude from the Supreme Court’s discussion in American-

Arab, and the authorities cited and quoted therein, that the

Attorney General’s executive discretion to decide or act to

commence proceedings always has been considered inherently to

include the ability to choose not to do so. Otherwise, the

Attorney General would have no power of free decision or latitude

of choice with respect to the commencement or deferral of removal

proceedings. As was noted in American-Arab, “at the time IIRIRA

was enacted the INS had been engaging in a regular practice (which

had come to be known as ‘deferred action’) of exercising that

discretion for humanitarian reasons or simply for its own

convenience.” American-Arab, 119 S. Ct. at 943. “‘[T]he INS may

decline to institute proceedings, terminate proceedings, or decline

to execute a final order of deportation.’” Id. at 944 (quoting 6

Thus, pursuant to these regulations, which have the force and
effect of law, an application for discretionary cancellation of
removal may be filed only after an Immigration Court is vested with
jurisdiction over a removal proceeding by the filing of a charging
document by the INS. In this case, with the exception of one
plaintiff, the INS has not filed a charging document. Therefore,
those plaintiffs against whom no charging document has been filed
may not apply to the Immigration Court for cancellation of removal.

13
CHARLES GORDON ET AL., IMMIGRATION LAW AND PROCEDURE § 72.03[2][h] (1998)).

“‘[I]n each such instance, the determination to withhold or

terminate deportation is confined to administrative discretion. .

. .’” Id. (quoting 6 GORDON ET AL., supra § 72.03[2][a]).

Consequently, judicial intervention in cases in which the Attorney

General has exercised her discretion not to commence proceedings or

adjudicate cases would interfere with her discretionary

determinations and lead to the deconstruction, fragmentation, and

hence prolongation of removal proceedings at which the Supreme

Court concluded that § 1252(g) is directed. See id. at 945.

III. CONCLUSION

For the foregoing reasons, we conclude that the federal courts

lack jurisdiction to hear the plaintiffs-aliens’ challenge to the

Attorney General’s decision to decline to commence proceedings or

to adjudicate deportations, or to hear the plaintiffs’ claim for

suspension of their deportations which concomitantly arises

therefrom. All of these causes and claims fall within the

discretion-protecting provisions of § 1252(g), which apply

retroactively even to pending cases. Therefore, we vacate the

judgment of the district court and dismiss this suit for lack of

jurisdiction.

VACATED AND DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION

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