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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