Cite as "AILA InfoNet Doc. No. 00010103 (posted Jan. 1, 2000)"
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
HONGWEI QIN, and
Civil Action No. 3:99-CV-0981-L
JANET RENO, et al.
BRIEF OF AMICI CURIAE IN SUPPORT OF
PLAINTIFFS’ MOTION FOR RECONSIDERATION
Amici curiae the American Immigration Law Foundation,
Texas Lawyers Committee for Civil Rights Under Law, and the
National Immigration Law Center file this brief in support of
plaintiffs’ motion for reconsideration of the Court’s order dated
October 15, 1999. In that order, the court adopted the
Magistrate’s Judge’s findings that the Court lacks jurisdiction
and dismissed this action. Amici respectfully submit that the
Court indeed has jurisdiction over this action and urge the Court
to reject that portion of the Magistrate Judge’s decision finding
otherwise. Amici offer no opinion on whether the case should be
dismissed for some other reason found by the Magistrate Judge,
including that plaintiffs may have another remedy available to
I. Recent Supreme Court Precedent Confirms That This Court
Retains Jurisdiction Over This Action.
The Magistrate Judge found that section 242(g) of the
Immigration and Naturalization Act, 8 U.S.C. section 1252(g),
deprives this Court of jurisdiction over this action. However,
the Supreme Court recently rejected the INS’s argument that
section 242(g) has such a broad scope. Reno v. American-Arab
Anti-Discrimination Committee (AADC), __ U.S. __, 119
S. Ct. 936, 142 L. Ed. 2d 940 (1999). The Court held that
Immigration and Nationality Act (INA) section 242(g) applies only
to three discrete, discretionary actions that the Attorney
General may take: to "the Attorney General’s discrete acts
of ‘commencing proceedings, adjudicating cases, [and] executing
removal orders.’" 119 S.Ct. at 944. It is not, the Court
said, "a sort of ‘zipper’ clause that says ‘no judicial
review in deportation cases unless this section provides judicial
review.’"Id. at 943. Nor is section 242(g) a "broad,
catchall" clause, the Court said.
Id. at 944, n. 9
To emphasize that section 242(g) is to apply narrowly, the
Court listed examples of decisions or actions that occur during
the deportation process to which section 242(g) does not apply.
These decisions or actions include:
"the decisions to open an investigation, to surveil the
suspected violator, to reschedule the deportation hearing, to
include various provisions in the final order that is the product
of the adjudication, and to refuse reconsideration of that
order." 119 S.Ct. at 943.
The Court explained that, in its view, "Section 1252(g)
seems clarly designed to give some measure of protection to ‘no
deferred action’ decisions and similar discretionary
determinations." Id. at 944, emphasis added.
Many circuit courts have followed the Supreme Court’s
direction to adopt a narrow interpretation of section 242(g) and
to limit it to purely discretionary decisions. For example, the
Fifth Circuit very recently said that until the Supreme Court
spoke on the matter, most courts and parties erroneously assumed
that section 242(g) covered the spectrum of deportation cases and
drastically reduced judicial review in all of them.
Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 1999 U.S.
App. Lexis 22424 (Sept. 15, 1999). In Requena-Rodriguez,
in fact, the INS agreed at oral argument that AADC meant
that section 242(g) did not control Requena’s case. 1999 U.S.
App. Lexis 22424 at *8-9.
After AADC, the Sixth Circuit observed that because
some of the examples the Supreme Court gave "could be
squeezed into one of the three" actions listed in § 242(g)
"if the actions were to be read expansively," the
examples reinforce the Court’s express statement that § 242(g)
applies only to those three actions, and is to be read
narrowly. Mustata v. U.S. DOJ, 179 F.3d 1017, 1021 (6th
Cir.1999). Similarly applying AADC, the Eleventh Circuit
held that review of final deportation orders falls outside INA §
242(g). Mayers v. U.S. INS, 175 F.3d 1289 (11th Cir.
Shortly after the Supreme Court’s AADC decision,
the Ninth Circuit, in an en banc decision, reconsidered and
reissued a panel decision interpreting § 242(g). Hose v.
INS, 180 F.3d 992 (9th Cir. 1999) (en banc). The panel’s
decision had construed § 242(g) as divesting federal courts of
all jurisdiction to hear any claim by an alien involving an
immigration proceeding. 141 F.3d 932 (9th Cir. 1998).
The en banc court observed that in AADC, the Supreme Court
clarified the scope of section 242(g), rejecting the INS’s claim
that it "covers the universe of deportation claims" and
holding that section 242(g) only applies to three of the discrete
actions the Attorney General may take. Hose, 180 F.3d at
The Fourth Circuit has held that the district court’s
jurisdiction under both 28 U.S.C. 2241 and 28 U.S.C. 1331
survives section 242(g). Selgeka v. Carroll, 184 F.3d
337, 342 (4th Cir. 1999). The Fourth Circuit noted
that the Supreme Court’s AADC decision had
"significantly narrow[ed] the coverage of section
242(g)" and noted that the court’s interpretation was
instructive in a jurisdictional challenge in the asylum context,
even though none of the lower court cases cited by the Supreme
Court dealt with asylum claims. Id. at 342.
The Selgeka decision held that section 242(g) did not
preclude jurisdiction in either the district court or the court
of appeals over a habeas corpus action by a stowaway who sought
to have his asylum application heard by an immigration judge in a
full administrative procedure rather than solely by an asylum
officer. 184 F.3d at 342. The Fourth Circuit rejected the
government’s argument that Selgeka challenged the Attorney
General’s authority "to adjudicate cases." Id. On the
contrary, it said, Selgeka expressly recognized that the Attorney
General, through her designee, the BIA, will eventually
adjudicate his case. Id.
Selgeka also is significant for what the court could
have said, but did not. The court could have found that the AG’s
discretion to decide how she would adjudicate
stowaway asylum cases – whether by asylum officer or by IJ was at
issue in the case. Instead, the court said that Selgeka was
not challenging the AG’s authority to adjudicate cases, but
rather recognized the AG’s authority to adjudicate his case
through her designee, the BIA. 184 F.3d at 342.
Similarly, in this case, the plaintiffs do not challenge
the AG’s discretionary decision about whether to grant their
applications. They do not challenge the AG’s authority to
adjudicate their applications. On the contrary, they beseech the
AG to exercise her discretion to either grant or deny. Their
claim is not one of the three discrete, discretionary actions
described by the Supreme Court in ADC.
In sum, courts around the country – lead by the Supreme Court
and including the Fifth Circuit in a post-Alvidres-Reyes
case – have rejected the INS’s broad interpretation of section
242(g). The Supreme Court and lower courts have restricted
section 242(g)’s preclusive effect to the three discrete
categories of purely discretionary actions enumerated by the
Supreme Court. As will be explained in more detail in Section III
below, the plaintiffs’ suit does not challenge the Attorney
General’s exercise of discretion. Therefore, under applicable
Supreme Court and Fifth Circuit law, this Court retains
jurisdiction, notwithstanding section 242(g).
II. Repeals by Implication Are Not Favored, and the IIRIRA
Did Not Expressly Repeal This Court’s Jurisdiction Under 28
U.S.C. section 1331.
Plaintiffs correctly alleged that this Court has
jurisdiction over this action under 28 U.S.C. section 1331. The
Magistrate Judge found that section 242(g) deprives this Court of
jurisdiction under section 1331, citing Alvidres-Reyes v.
Reno, 180 F.3d 199 (5th Cir. 1999) (discussed
below). The Magistrate Judge did not take into consideration the
well-accepted doctrine that legislative repeal of jurisdictional
statute is recognized by courts only where congressional intent
is clearly expressed. Felker v. Turpin, 518 U.S. 651,
660-61 (1996) (noting the longstanding doctrine disfavoring
repeal of jurisdictional statutes by implication). SEE NOTE 1
This doctrine was applied by the Fifth Circuit in two
post-Alvidres-Reyes cases. In each, the Fifth Circuit
held that it retained jurisdiction under an analogous statute, 28
U.S.C. 2241, notwithstanding section 242(g). Requena-Rodriguez
v. Pasquarell, 190 F.3d 299 (5th Cir. Sept. 15,
1999); Zadvydas v. Underdown, 185 F.3d 279 (5th
Cir. Aug. 11, 1999). These two decisions were consistent with
the decisions of many other courts, holding that jurisdiction
under 28 U.S.C. section 2241 may not be repealed or restricted by
implication, and was not repealed or restricted by section
242(g). See Goncalves v. Reno, 144 F.3d 110, 119,122
(1st Cir. 1998), cert. denied, 119 S.Ct. 1140,143
L.Ed.2d 208 (Mar. 8, 1999); Henderson v. INS, 157 F.3d
106, 117-122 (2d Cir. 1998); Sandoval v. Reno, 166 F.3d
225,237-38 (3d Cir. 1999; Selgeka v. Carroll, 184 F.3d
337, 341-42 (4th Cir. 1999); Mendoza-Guerra v.
Reno, __ F.Supp. 2d __, 1999 U.S. Dist. Lexis 8175 (N.D. Cal.
June 2, 1999); Yu v. Brown, 36 F. Supp. 2d 922 (D.N.M.
In IIRIRA, Congress did not amend 28 U.S.C. 1331 to remove
this Court’s jurisdiction. Selgeka, 184 F.3d at 341-42.
The Fourth Circuit’s holding that 242(g) did not deprive the
district court of jurisdiction under section 1331 in cases
seeking to have applications processed is on all fours with the
instant case. Further, Congress was no more explicit in
reference to district courts’ jurisdiction under 28 U.S.C. 1331
than it was in reference to district courts’ jurisdiction under
28 U.S.C. 2241. The numerous authorities holding that
jurisdiction under section 2241 was not repealed by implication
stand also for the proposition that jurisdiction under 1331 was
not repealed by implication. This Court retains jurisdiction
under section 1331 over this action.
III. The Fifth Circuit’s Decision in Alvidres-Reyes
is Entirely Distinguishable, Did Not Discuss 28 U.S.C. 1331, and
Does Not Control This Case.
The INS has a non-discretionary duty to process
applications for adjustment of status, as well as other
immigration applications. Yu v. Brown, 36 F. Supp. 2d
922, 931 (D.N.M. 1999) (collecting cases). The INS and the
Magistrate judge apparently confused the agency’s discretion over
how it resolves the applications with its discretion over
whether it resolves them. Yu, supra, citing
Dabone v. Thornburgh, 734 F. Supp. 195, 200 (E.D. Pa.
The INA and applicable regulations mandate the INS to
adjudicate – though not necessarily to grant – applications for
adjustment of status that are properly filed. INA section
245(b), 8 U.S.C. 1255(b) says, in pertinent part: Upon the
approval of an application for adjustment made under subsection
(a), the Attorney General shall record the alien’s lawful
admission for permanent residence as of the date ….." INA
section 203(e)(1), 8 U.S.C. 1153(e)(1) says, in pertinent part:
"Immigrant visas made available under subsection (a) or (b)
shall be issued to eligible immigrants in the order in which a
petition in behalf of each such immigrant is filed with the
Attorney General …" See also, 8 U.S.C. section
1103(a)(1), INA section 103(a)(1) (Attorney General shall be
charged with the administration and enforcement of this chapter
and all other laws relating to the immigration and naturalization
of aliens"); 8 C.F.R. 245.2(a)(5)(i) ("The applicant
shall be notified of the decision of the director, and if the
application is denied, the reasons for the denial."); 8
C.F.R. 245.2(a)(5)(ii) ("If the application is approved, the
applicant’s permanent residence shall be recorded as of the date
of the order approving the adjustment of status."); 8 C.F.R.
245.6 ("Each applicant for adjustment of status under this
part shall be interviewed by an immigration officer.").
Alvidres-Reyes v. Reno 180 F.3d 199 (5th
Cir. 1999) presented an entirely different factual and legal
situation. There, the Court was faced with plaintiffs’ demands
that it mandate the INS to take action the INS is not required or
obligated to take. The plaintiffs were 50 Texas residents who,
before IIRIRA’s effective date, submitted applications to the INS
to be declared deportable and to qualify for suspension of
deportation under the pre-IIRIRA law. The local district
director (DD) refused to initiate deportation or removal
proceedings against them.
The INS has no obligation under the law to place any
particular person in deportation (now removal) proceedings.
Individuals have no statutory or regulatory right to be placed in
deportation or removal proceedings. The plaintiffs in
Alvidres-Reyes simply wanted to be placed in proceedings
before IIRIRA became law, so they could avail themselves of the
pre-IIRIRA standards for suspension of deportation. Thus, the
court was being asked to compel the INS to do something that is
entirely within its prosecutorial discretion.
By contrast, the defendants herein are obligated to
adjudicate the plaintiffs’ properly filed adjustment
applications. It is not within their discretion to refuse. It
is within the defendants’ discretion to grant or deny the
applications, but it is not within their discretion to refuse or
delay unreasonably to process them.
The Court in Alvidres-Reyes held that section
242(g) removed its jurisdiction because:
[T]he plaintiffs’ suit necessarily calls for 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 deportation.
180 F.3d at 205. SEE NOTE 2
In this case, the plaintiffs do not seek judicial
intervention to reverse the Attorney General’s discretionary act.
Rather, this case seeks to have the Attorney General fulfill her
statutory and regulatory duties to process plaintiffs’
applications. The result of that process may be within the
exercise of the Attorney General’s discretion, but fulfilling her
statutory and regulatory duties is not.
The Magistrate Judge cited Alvidres-Reyes for the
proposition that this Court no longer has jurisdiction under 28
U.S.C. 1331. However, that case does not provide support for
this proposition. Neither the Fifth Circuit nor the district
court discussed section 1331 as a jurisdictional basis, and it is
not apparent that the plaintiffs even invoked that jurisdictional
basis in their original complaint. See Alvidres-Reyes
v. Reno, 981 F. Supp. 1008 (W.D. Texas 1997).
For these reasons, the Magistrate Judge erred in holding
that Alvidres-Reyes controls this case and determines its
outcome. Even assuming Alvidres-Reyes was correctly
decided, it is distinguishable factually and legally. This Court
retains jurisdiction over this action.
IV. Section 242(g) Concerns Only Deportation or Removal
Proceedings, Not the Adjudication of an Adjustment Application
Outside That Context.
Even before the Supreme Court issued the AADC
decision, district courts had held that section 242(g) did not
apply to this type of case. In Shanti v. Reno, 36 F.
Supp. 2d 1151 (D. Minn. 1999), the court reviewed the structure
and legislative history of section 242 and section 242(g). It
found that the legislative history did not refer to visa
petitions or any other procedures outside the purview of removal
proceedings. Id. at 1158. Similarly, the language employed by
IIRIRA section 306(c)(1) to establish section 242(g)’s effective
date provided that it shall apply "without limitation to
claims arising from all past, pending, or future exclusion,
deportation, or removal proceedings under such Act." Id.
The court said this language implicitly limits the scope of
section 242(g) to exclusion, deportation or removal proceedings.
The disposition of a visa petition, the court continued,
has been held to be a collateral issue not within the scope of
deportation, removal or exclusion proceedings. Id., collecting
cases. Consequently, the court concluded, section 242(g) did not
apply to strip the court of jurisdiction to review the denial of
an H-1B nonimmigrant visa petition.
Similar rulings have been issued by other district
courts, including in the Northern District of Texas, Dallas
Division: Dominance Industries, Inc. v. INS, __ F.Supp. 2d
__, 1998 U.S. Dist. Lexis 19856 (N.D. Texas Nov. 24, 1998) (cited
with approval in Shanti, 36 F. Supp. at 1158); Yu v.
Brown, 36 F. Supp. 2d 922 (D.N.M. 1999); Paunescu v.
INS, __ F.Supp 2d __, 1999 U.S. Dist. Lexis 3499 (N.D. Ill
Mar. 16, 1999).
The plain language of section 242(g), its legislative
history, and its effective date language do not refer to
adjudications of adjustment applications or visa petitions.
Section 242(g) applies only to specified discretionary actions
that are part of deportation, exclusion, or removal proceedings.
Section 242(g) does not apply to plaintiffs’ adjustment
For the foregoing reasons and authorities, amici
respectfully submit that the Magistrate Judge erred in finding
that INA section 242(g) deprives this Court of jurisdiction. On
the contrary, as the Supreme Court has clarified, section 242(g)
has a narrow scope. It did not explicitly repeal the district
court’s jurisdiction under 28 U.S.C. 1331 any more than it
repealed the district court’s jurisdiction under 28 U.S.C. 2241.
Amici urge the court to amend the Magistrate Judge’s findings
with respect to section 242(g) and 28 U.S.C. 1331.
RESPECTFULLY SUBMITTED this 3rd day of
NADINE K. WETTSTEIN
American Immigration Law Foundation
1300 Eye Street, N.W., Suite 490E
Washington, D.C. 20005
Phone: (202) 371-6450
Fax: (202) 371-6459
Attorney for Amicus Curiae AILF
Texas Lawyers’ Committee for Civil Rights
2311 N. Flores
San Antonio TX 78212
Phone: (210) 736-11503
Fax: (210) 736- 3958
Attorney for Amicus Curiae Texas Lawyers’ Committee
J. David Swaim, Jr.
Tidwell Swaim & Healy
12770 Coit Road, Suite 700
Dallas TX 75251
Phone: (972) 385-7900
Fax: (972) 385-8029
Of Counsel on the Brief
National Immigration Law Center
3435 Wilshire Blvd. Suite 2850
Los Angeles CA 90010
Phone: (213) 639-3900
Fax: (213) 639-3911
Attorney for Amicus Curiae NILC
CERTIFICATE OF SERVICE
The undersigned hereby affirms that a copy of the Motion
for Leave to File Brief in Support of Plaintiffs’ Motion for
Reconsideration and the foregoing Brief of Amici Curaie in
Support of Plaintiffs’ Motion for Reconsideration were served on
counsel for both parties, as follows, by placing a copy in the
U.S. Mail, postage prepaid, this 3rd day of November,
James T. Reynolds
Special Assistant U. S. Attorney
8101 N. Stemmons Freeway
Dallas TX 75247
Counsel for Defendants
1776 Peachtree Street, Suite 518S
Atlanta GA 30309
Counsel for Plaintiffs
NADINE K. WETTSTEIN
1. As discussed below, the Magistrate Judge also erred in
citing Alvidres-Reyes to support his decision on 1331's
continuing viability as neither the Fifth Circuit nor the
district court below had discussed 1331 and it is not clear that
that statute was even invoked by the plaintiffs.
2. Although of course this Court is not free to disregard the
Fifth Circuit's decision in Alvidres-Reyes, the decision is open
to criticism as conflicting with the Supreme Court's
interpretation of section 242(g). Specifically, the Supreme
Court expressly listed as an example of something outside the
scope of section 242(g) "the decision to open an
investigation." 119 S.Ct. at 943. If the decision to open an
investigation is outside the reach of setion 242(g), then the
decision not to open an investigation also should be outside the
statute's reach. The Fifth Circuit did not discuss this aspect
of the Supreme Court's AADC opinion. Return to Brief
Copyright © 2000
American Immigration Law Foundation