Catholic Social Services, Inc. v. Immigration & Naturalization Service

182 F.3d 1053
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 30, 1999
DocketNos. 98-16269, 98-16423
StatusPublished
Cited by1 cases

This text of 182 F.3d 1053 (Catholic Social Services, Inc. v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Catholic Social Services, Inc. v. Immigration & Naturalization Service, 182 F.3d 1053 (9th Cir. 1999).

Opinions

Opinion by Judge O’SCANNLAIN; Dissent by Judge SCHROEDER.

O’SCANNLAIN, Circuit Judge:

We must deal, once again, with the status of claims brought by some 45,000 illegal aliens, seeking legalization under 1986 immigration legislation, who failed to tender timely complete applications and fees.

I

The tortured history of this litigation has been recounted in detail in this court’s prior opinions, see Catholic Social Services, Inc. v. Reno, 134 F.3d 921, 922-24 (9th Cir.1998); Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914, 916-18 (9th Cir.1992), and in the Supreme Court’s opinion in Reno v. Catholic Social Services, Inc., 509 U.S. 43, 46-53, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). Suffice it to say that the Immigration and Naturalization Service (“INS”) adopted a policy in 1986, revised in 1987, as part of its administration of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a (“IRCA”), which is at the root of this dispute. IRCA established a legalization program under which certain aliens unlawfully present in the United States could apply for status as temporary residents, and then seek permission to reside permanently in the United States. See 8 U.S.C. §§ 1255a(a), (b). Among other requirements, IRCA provided that, to be eligible, applicants had to prove continuous physical presence in the United States since November 6, 1986. See id. § 1255a(a)(3)(A). The INS enforced the continuous physical presence requirement of § 1255a(a)(3)(A) by denying adjustment of status to aliens who failed to obtain INS approval before leaving the United States for even the briefest of absences (the “advance parole policy”).

In November 1986, a number of concerned organizations and individuals (collectively “Catholic Social Services” or “CSS”) filed a complaint challenging the advance parole policy. CSS had asserted that the advance parole policy violated the statutory proviso that an alien would not fail to maintain continuous physical presence by virtue of “brief, casual, and innocent absences from the United States.” Id. § 1255a(a)(3)(B). The district court certified a broad class of all persons who had not complied with the INS advance parole policy but were otherwise eligible for adjustment of status under 8 U.S.C. [1056]*1056§ 1255a, and subsequently ruled that the advance parole policy was contrary to the intent of the statute and hence unenforceable. See Catholic Social Services, Inc. v. Meese, 685 F.Supp. 1149, 1159-60 (E.D.Cal.1988) (“CSS I”). We affirmed the district court in a consolidated appeal. See Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992) (“CSS II”).

The Supreme Court, in turn, granted certiorari and vacated our decision, holding that only those persons who had taken affirmative steps toward legalization and had been stymied by the INS’ advance parole policy had ripe claims. See Reno v. Catholic Social Services, Inc., 509 U.S. 43, 58-59, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (“CSS III”). The Court described at some length the INS’ practice, known as “front-desking,” pursuant to which legalization assistants were instructed to review applications in the applicants’ presence and to reject the applications of any aliens who were statutorily ineligible for legalization. Under this front-desking policy, aliens who disclosed unapproved trips outside the United States in violation of the advance parole policy had their applications rejected before the applications could be filed. See id. at 61-62, 113 S.Ct. 2485. The Court held that “the front-desking of a particular class member is not only sufficient to make his legal claims ripe, but necessary to do so.” Id. at 66, 113 S.Ct. 2485 (emphasis added). The Court concluded, however, that it could not resolve the jurisdictional question regarding ripeness because the record did not contain evidence that particular class members were actually subjected to front-desking. See id. at 64-65, 113 S.Ct. 2485. Thus, the Supreme Court remanded to this court, with directions to remand to the district court for proceedings to determine which class members were front-desked. See id. at 66-67, 113 S.Ct. 2485. We, in turn, remanded to the district court for further proceedings consistent with the Supreme Court’s opinion. See Catholic Social Services, Inc. (Centro De Guadalupe Immigration Center) v. Reno, 996 F.2d 221, 222 (9th Cir.1993) (“CSS IV”).

On remand to the district court, CSS filed a Seventh Amended Complaint adding parties who had visited INS offices seeking to apply for legalization, but had been rebuffed by the INS without being provided application materials. The district court subsequently certified a modified and narrower class, and continued its prior orders providing interim relief for the class. The government appealed. During the pendency of the appeal from remand in CSS IV, Congress again amended the immigration laws by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”). Section 377 of IIRIRA provides:

(a) LIMITATION ON COURT JURISDICTION.-Section 245A(f)(4) (8 U.S.C. § 1255a(f)(4)) is amended by adding at the end the following new subpar-agraph:
“(C) JURISDICTION OF COURTS.
Notwithstanding any other provision of law, no court shall have jurisdiction of any cause of action or claim by or on behalf of any person asserting an interest under this section unless such person in fact filed an application under this section within the period specified by subsection (a)(1) of this section, or attempted to file a complete application and application fee with an authorized legalization officer of the Service but had the application and fee refused by that Officer.”
(b) EFFECTIVE DATE.-The amendment made by subsection (a) shall be effective as if included in the enactment of the Immigration Reform and Control Act of 1986.

In disposing of the appeal of CSS IV, we rejected CSS’ constitutional challenges to § 377, and held that, “[bjecause none of the class members or named plaintiffs have alleged that they actually tendered an application and fee or attempted to do so but were rebuffed by a legalization assistant, they do not have standing pursuant [1057]*1057to the limited grant of federal court jurisdiction set forth in § 377.” Catholic Social Services v. Reno, 134 F.3d 921, 927 (9th Cir.1997) (“CSS V”).

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