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CERVANTES v. PERRYMAN

January 24, 1997

JUAN CERVANTES, ELVIA CERVANTES, CARLOS CERVANTES, and JUAN CERVANTES, JR., Plaintiffs,
v.
BRIAN PERRYMAN, Acting District Director of the Immigration and Naturalization Service, and JANET RENO, Attorney General of the United States, Defendants.



The opinion of the court was delivered by: ASHMAN

REPORT AND RECOMMENDATION

 I. Background

 On November 7, 1996, Plaintiffs filed a complaint seeking, inter alia, a writ of mandamus to compel the Defendant District Director to adjudicate their applications for suspension of deportation and to grant their applications for employment authorization. This complaint was amended on December 6, 1996 seeking the same relief from Janet Reno, Attorney General, who was added as a Defendant.

 The complaint alleges that Plaintiffs, who are of Mexican descent and who have listed their nationality and citizenship as Mexican, entered the United States prior to 1989. The Plaintiffs have several children, including one who was born in the United States and is consequently a United States citizen. The Plaintiffs filed applications for suspension of deportation, pursuant to 47 U.S.C. § 1254(a)(1) and for employment authorization, based on eligibility under 8 C.F.R. § 274a.12(c)(10). On October 31, 1996, the Plaintiffs' applications for employment authorization were denied based on Plaintiffs' alleged failure to establish eligibility under 8 C.F.R. § 274a.12(a) or (c). Additionally, Defendants rejected Plaintiffs' applications for suspension of deportation without written explanation. Plaintiffs allege that Defendants' failure to adjudicate their applications for suspension of deportation was unlawful, arbitrary, capricious and an abuse of discretion. Plaintiffs seek, inter alia, an order requiring the Defendants to accept and adjudicate the applications for suspension of deportation, a permanent injunction barring Defendants from refusing to adjudicate the Plaintiffs' applications, and attorney's fees.

 On December 6, 1996, the Plaintiffs filed this motion for a preliminary injunction, asking that the Defendants be enjoined from refusing to accept their applications for suspension of deportation without the Defendants' issuance of an order to show cause and from refusing to grant the Plaintiffs' applications for work authorization. Plaintiffs allege that, without such injunctive relief, they will suffer irreparable harm as a result of the Defendants' refusal to act, including loss of their right to remain in the United States, deprivation of their due process and equal protection rights under the Fifth Amendment, and the inability to obtain a future suspension of deportation after the implementation of the Immigration Reform Act of 1996 on April 1, 1997. Plaintiffs conclude that, while the issuance of an injunction will prevent their irreparable injury, such relief will not cause any loss or injury to the Defendants.

 II. Analysis

 Before discussing the merits of the case, the Court first addresses two threshold issues: (1) the procedural aspects of this motion and (2) the jurisdictional argument advanced by Defendants. As to the procedural aspects of this motion, the parties waived their rights to present evidence and agreed to stand on the facts as set out in their papers. In light of the absence of any factual disputes, the Court has made its ruling based strictly on the parties' written submissions.

 With respect to the jurisdictional issue raised by this motion, Defendants contend, pursuant to Section 306(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA") (amending Section 242(g) of the INA), that the Court lacks jurisdiction to hear this case. Section 306(a)(1) amends Section 242 of the INA to provide:

 
Exclusive Jurisdiction-- Except as provided in this section and not withstanding 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.

 Defendants contend that this section became effective September 30, 1996 by virtue of a technical amendment enacted by Congress on October 11, 1996. Pub. L. 104-302, 110 Stat. 3656. However, this technical amendment did not alter the effective date of the statute but rather, merely amended the language of the effective date provision, Section 306(c)(1). In an example of legislative draftsmanship that would cross the eyes of a Talmudic scholar, Section 306(c)(1) now reads:

 (c) Effective Date-

 
(1) In general- Subject to paragraph (2), the amendments made by subsections (a) and (b) shall apply as provided under Section 309, except that subsection (g) of Section 242 of the Immigration and Nationality Act (as added by subsection (a)), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act. *fn1"

 After a review of the IIRAIRA provisions governing judicial review, the Court concludes that Section 306(a)(1) does not adversely impact the Court's jurisdiction in this case because the exclusive jurisdiction provision does not become effective until April 1, 1997. In construing this labyrinthine provision of the IIRAIRA, the Court has adopted the interpretation of the statute advanced by the court in Walters v. Reno, C94-1204C, slip op. at 5-6 (W.D. Wash. Dec. 11, 1996).

 In ascertaining the effective date of the exclusive jurisdiction provision, the Walters Court started with IIRAIRA Section 309(a) which provides that, in general, the provisions of the Act governing judicial review "take effect on the first day of the first month beginning more than 180 days after the enactment of this Act." C94-1204C, slip op. at 5. The court concluded that, under these terms, the effective date is April 1, 1997. Id. While resort to that section would appear to clear up the entire issue, it does not do so since, under Section 306(c)(1), the specific provision governing exclusive jurisdiction "shall apply without limitation to claims arising from all past, pending or future exclusion, deportation, or removal proceedings under [the] Act." Id. Additionally, the court noted that, under IIRAIRA Section 309(c)(1), the new provisions of the Act regarding judicial review do not apply to aliens who are already in deportation proceedings prior to the effective date of April 1, 1997. Id.

 In analyzing this morass, the Walters court noted that the determination of the effective date under the Act was "unduly complicated" and that the "precise interaction between Sections 309(a)-(c) and 306(c)(1) [was] somewhat unclear." Id. However, the court concluded that the IIRAIRA provisions regarding judicial review were to "apply effective April 1, 1997 to the claims of aliens who were not in pending deportation proceedings immediately before April 1, 1997, except that the exclusive jurisdiction provision of the Act would apply effective April 1, 1997 to the claims of all aliens, regardless of whether those claims arise from past, pending or future deportation proceedings." Id. at 5-6. Thus, the Walters court concluded that the court's jurisdiction in that case would not be limited until April 1, 1997. Id.

 This Court agrees with the Walters court's analysis and thus concludes that the IIRAIRA's exclusive jurisdiction provision does not become effective until April 1, 1997 and therefore does not impact this Court's ability to hear this case. In plain English, the words of the statute which limit the Court's jurisdiction even as to past or pending proceedings do not go into effect until April 1, 1997. Thus, at this moment in time, the Court's jurisdiction is not ...


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