IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

JIANJUN FU,
HONGWEI QIN, and
YUNING FU,

Plaintiffs
Civil Action No. 3:99-CV-0981-L

v.

JANET RENO, et al.

Defendants.
______________________________

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 them.

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. 1999).

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 (9^th 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 994.

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 (4^th 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 (5^th 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 (5^th Cir. Sept. 15, 1999); Zadvydas v. Underdown, 185 F.3d 279 (5^th 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 (1^st 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 (4^th 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. 1999).

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. 1990).

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 (5^th 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. Id.

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 applications.

Conclusion

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 3^rd day of November, 1999.

_______________________
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

Mary Kenney
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

Linton Joaquin
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 3^rd day of November, 1999:

James T. Reynolds
Special Assistant U. S. Attorney
8101 N. Stemmons Freeway
Dallas TX 75247
Counsel for Defendants

Jean Padberg
1776 Peachtree Street, Suite 518S
Atlanta GA 30309
Counsel for Plaintiffs

_______________________
NADINE K. WETTSTEIN

ENDNOTES
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.     Return to Brief


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
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