Hernandez v. Secretary Homeland , 138 F. App'x 473 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-8-2005
Hernandez v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3229
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 04-3229
RAMON HERNANDEZ,
Appellant
v.
MICHAEL CHERTOFF, Secretary of the U.S. Department
of Homeland Security*, EDGARDO AGUIRRE, Director,
U.S. Citizenship and Immigration Services;
PAUL NOVAK, Director, Vermont Service Center USCIS
*Caption amended pursuant to Rule 43(c), Fed. R. App. P.
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 04-cv-01340)
District Judge: Hon. Freda L. Wolfson
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 5, 2005
BEFORE: BARRY, AMBRO and COWEN, Circuit Judges
(Filed: July 8, 2005)
OPINION
COWEN, Circuit Judge.
Appellant Ramon Hernandez appeals the District Court’s order dismissing his suit
against Appellees Michael Chertoff, Secretary of the Department of Homeland Security,
et al. for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). Hernandez contends that the District Court erred in concluding that it lacked
jurisdiction over his challenges to the procedures employed by Appellees in denying his
application for temporary resident status as a Special Agricultural Worker (“SAW”)
pursuant to 8 U.S.C. § 1160. We have subject matter jurisdiction under 28 U.S.C. § 1291.
Because Hernandez’s claims do not fall within the exception to the statutory jurisdictional
bar established by McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), we will
affirm.
BACKGROUND
A. Statutory and Regulatory Scheme
The Immigration Reform and Control Act of 1986 (“IRCA”) 1 created an amnesty
program for undocumented alien agricultural workers. Those who applied for SAW
status during an eighteen-month period beginning on June 1, 1987, could have status
adjusted to that of a lawful temporary resident, and thereafter a permanent resident, if
certain requirements were met. See 8 U.S.C. § 1160(a)(1)-(2).
Any alien who files a nonfrivolous application for SAW status during the requisite
application period is granted an employment authorization allowing him or her to engage
1
Pub. L. No. 99-603, 100 Stat. 3359.
2
legally in paid employment while his or her application is pending. Id. § 1160(d)(2).
Employment authorization is issued in one-year intervals pending final determination of
an application for temporary resident status. See 8 C.F.R. § 210.4(b)(2). If an application
for employment authorization is not adjudicated within 90 days, an interim employment
authorization of 240 days shall issue. Id. § 274a.13(d). Employment authorization
automatically terminates upon the denial of temporary resident status. Id. §
274a.12(c)(20).
The SAW regulations provide for a personal interview of each applicant by a
legalization officer. Id. § 210.2(c)(2)(iv). At the conclusion of the interview and upon
review of the application materials, the legalization officer can deny the application or
recommend a denial to a Regional Processing Facility (“RPF”). If the legalization officer
recommends denial and the RPF agrees, the RPF sends the applicant a notice of intent to
deny setting forth the reasons for rejection and inviting the applicant to submit additional
evidence. See id. §§ 103.2(b)(16)(i), 210.2(f). A denial at either the local or regional
level may be appealed to the Administrative Appeals Unit (“AAU”)2 . Id. § 103.3(a)(3)(i),
(iii). At this stage, an applicant is permitted to submit additional or newly discovered
evidence not available at the time of the RPF’s determination. 8 U.S.C. § 1160(e)(2)(B).
The AAU is authorized to make the final administrative decision in each individual case.
8 C.F.R. § 103.3(a)(3)(iii).
2
Formerly named Legalization Appeals Unit.
3
The IRCA directs the Attorney General to establish a single level of administrative
review to examine the denial of a SAW application. 8 U.S.C. § 1160(e)(2)(A). Motions
to reopen or reconsider a decision “shall not be considered.” 8 C.F.R. §§ 103.5(b),
210.2(g). The Director of a RPF and Chief of the AAU may, however, sua sponte reopen
any proceeding and reconsider any decision rendered in that proceeding. Id.3
The IRCA prohibits judicial review of “a determination respecting an application
for adjustment of status” except in accordance with 8 U.S.C. § 1160(e). 8 U.S.C. §
1160(e)(1). Judicial review of a denial of an SAW application is available exclusively in
connection with “the judicial review of an order of exclusion or deportation.” Id. §
1160(e)(3)(A). Such judicial review is based “solely on the administrative record
established at the time of the review by the [administrative] appellate authority.” Id.
§1160(e)(3)(B). Presently, only courts of appeal have jurisdiction to review an order of
removal.
B. Procedural History
Hernandez, an undocumented alien from Mexico, applied for and was denied
adjustment to SAW status. He submitted an application for temporary resident status to
the Immigration and Naturalization Service (“INS”) in 1987 in accordance with the SAW
provisions of the IRCA, 8 U.S.C. § 1160 et seq. On December 20, 1991, the Director of
the RPF in the California Service Center denied Hernandez’s SAW application as a result
3
The Second Circuit has upheld these regulations as a permissible construction of the
IRCA. See Rahim v. McNary, 24 F.3d 440 (2d Cir. 1994).
4
of certain adverse information that Hernandez had failed to rebut. Hernandez appealed
this denial to the United States Citizenship and Immigration Services (“USCIS”)
Administrative Appeals Office (“AAO”)4 . On October 26, 1996, the AAO remanded the
appeal back to the California Service Center for further findings. The Service Center
reopened the matter, withdrew its initial decision, and issued a new decision again
denying Hernandez’s application. The AAO dismissed Hernandez’s subsequent appeal
on May 8, 2003. The employment authorization associated with this application expired
on December 10, 2003.
On June 5, 2003, Hernandez filed a “Motion to Sue Sponte Reopen and
Reconsider” his SAW application. Pursuant to this motion and 8 C.F.R. §
274a.12(c)(20), he submitted another application for employment authorization with the
Vermont Service Center on November 25, 2003. The Vermont Service Center denied the
application for employment authorization on March 8, 2004. Hernandez’s application for
interim employment authorization, submitted under 8 C.F.R. 274a.13(d), had been denied
on March 4, 2004.
On April 2, 2004, the AAO sent Hernandez a letter stating, inter alia, that his
motion to reopen
was not accepted or reviewed by the AAO. While the AAO has discretion
to sua sponte reopen its decisions, the AAO has exercised its discretion in
4
The Legalization Appeals Unit is part of the AAO. Although the regulations refer to
this administrative entity as the AAU, decisions involving denied applications under the
IRCA have been signed as coming from the AAO since 2000.
5
not reopening this decision. Consequently, the dismissal was effective as of
the date of its issuance on May 8, 2003, and the petitioner has no filings that
could be considered ‘pending’ at the AAO after that date.
(App. at 13.) Hernandez resubmitted his sua sponte motion to reopen or reconsider on
June 1, 2004.
Hernandez brought the instant action on March 24, 2004, filing a Motion for
Emergency Relief with the District Court. His Amended Complaint avers that Appellees
refused to entertain his sua sponte motion to reopen and reconsider and grant his
applications for employment authorization and interim employment authorization in
violation of federal law and the United States Constitution. He seeks a writ of mandamus
or mandatory injunctive and declaratory relief requiring Appellees to accept and review
sua sponte motions and grant him employment and interim employment authorizations.
Appellees filed a motion for summary judgment on May 11, 2004, contending that the
District Court lacked subject matter jurisdiction. The District Court agreed, and on June
21, 2004, dismissed Hernandez’s case under Fed. R. Civ. P. 12(b)(1). This appeal
followed.
DISCUSSION
We exercise plenary review over the District Court’s dismissal for lack of subject
matter jurisdiction. SEC v. Infinity Group Co., 212 F.3d 180, 186 (3d Cir. 2000).
Hernandez mounts three challenges to the Appellees’ adjudication of his SAW
application: (1) dismissal of his first sua sponte motion without review or acceptance in
6
violation of the established policy of the agency; (2) failure to provide employment
authorization during the pendency of his sua sponte motion; and (3) failure to issue
interim employment authorization in accordance with 8 C.F.R. § 274a.13(d). Appellees
argue that Hernandez’s claims represent “a determination respecting an application,” 8
U.S.C. § 1160(e)(1), and consequently do not fall within the exception to this statutory
jurisdictional bar created by the Supreme Court in McNary.
In McNary, the Supreme Court held that 8 U.S.C. § 1160(e)(1)’s reference to “a
determination” deprived federal district courts of jurisdiction over challenges to an
individual denial of SAW status, but not of jurisdiction to consider “general collateral
challenges to unconstitutional practices and policies used by the agency in processing
applications.” 498 U.S. at 492. Thus, subject matter jurisdiction existed over a class of
seventeen aliens denied SAW status who alleged the unconstitutionality of several INS
policies, including the agency’s failure to provide SAW applicants with notice and an
opportunity to challenge adverse evidence, its failure to allow applicants to present
witnesses on their behalf, its failure to provide competent interpreters for interviews
between applicants and legalization officers, and its failure to create a verbatim recording
of the interview. Id. at 487-88.
In arriving at its holding, the McNary Court distinguished claims “alleging a
pattern or practice” of unconstitutional conduct in the administration of the SAW program
from challenges to individual status determinations that 8 U.S.C. § 1160(e) shields from
7
judicial review. 498 U.S. at 483. The distinction rests, according to the Court, on §
1160(e)(1)’s specific denial of review over “a determination respecting an application”
for SAW status. 498 U.S. at 492 (emphasis in original). “Significantly, the reference to
‘a determination’ describes a single act rather than a group of decisions or a practice or
procedure employed in making decisions.” Id. Therefore, this provision does not bar
judicial review over “general collateral challenges” to the INS’s practices and procedures
in administering the SAW program. Id.The McNary Court reasoned that if judicial review over pattern and practice claims
were foreclosed by § 1160(e)(1), SAW plaintiffs “would not as a practical matter be able
to obtain meaningful judicial review” of those claims through review by the courts of
appeals of an individual applicant’s deportation or exclusion order. 498 U.S. at 496. This
is because the procedures attacked by the McNary plaintiffs are ones that impeded the
development of an adequate administrative record, and in the context of examining an
order of deportation or exclusion, the courts of appeals are restricted to that record. Id.Moreover, the courts of appeals would not be in a posture to meaningfully assess any
pattern and practice based claims, as these claims require evidence that is irrelevant in the
processing of a particular individual application. “Not only would a court of appeals
reviewing an individual SAW determination therefore most likely not have an adequate
record as to the pattern of the INS’s allegedly unconstitutional practices, but it also would
8
lack the factfinding and record-developing capabilities of a federal district court.” Id. at
497.
For subject matter jurisdiction to attach, therefore, an SAW applicant denied
adjustment of status must allege “that a consistently applied policy violated the rights of
an entire class of claimants.” Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996); see
also Ortiz v. Meissner, 179 F.3d 718, 721 (9th Cir. 1999) (“The [McNary] Court . . .
reasoned that § 1160(e), limiting judicial review over ‘determinations respecting an
application,’ referred to review of denials in individual cases, not attacks on collateral
procedures used in all cases.”); Naranjo-Aguilera v. INS, 30 F.3d 1106, 1110 (9th Cir.
1994) (characterizing McNary’s exception to statutory jurisdictional bar as applicable to
“lawsuits in which large groups of plaintiffs challenged across-the-board INS practices”).
Hernandez has not succeeded in doing so.
Although Hernandez’s complaints regarding Appellees’ practices are procedural in
nature, the Amended Complaint does not assert a general collateral challenge to these
procedures. Instead, the allegations focus almost exclusively on the history and
circumstances of the denial of his particular SAW application. With respect to his claim
regarding Appellees’ failure to consider his sua sponte motion, Hernandez avers that
Appellees are acting unlawfully in
refusing to accept or review the sua sponte motion of Plaintiff, as set forth
in its decision of April 2, 2004, and continuing to fail to issue employment
authorization after Plaintiff Hernandez resubmitted his pending sua sponte
motion on June 1, 2004, and have failed and continue to fail to carry out the
9
adjudicative functions delegated to them by law with regard to Plaintiffs’
[sic] case, and the similarly situated class of legalization applicants.
(App. at 227.) In his prayer for relief, Hernandez seeks an injunction compelling issuance
of employment authorization and interim employment authorization based on his June 5,
2003 motion for sua sponte reconsideration and associated November 25, 2003
application for employment authorization. In addition, he requests “granting such other
relief at law and in equity as justice may require, specifically including declaratory relief
which would require Defendants to process claims of similarly situated legalization
applicants for acceptance and review of their sua sponte motions, and provision of interim
and year employment authorizations.” (App. at 228.)
Conclusory allegations that presuppose the existence of a “similarly situated class”
are insufficient to sustain Hernandez’s burden of setting forth facts supporting
jurisdiction. The Amended Complaint fails to allege any facts supporting his argument
that the practices and policies complained of are generally employed by Appellees. Cf.
Malik, 82 F.3d at 561-3 (holding that conclusory allegation that unconstitutional INS
practices and procedures were “consistent with an unlawful and unconstitutional pattern
and practice,” in the absence of additional facts, was insufficient to meet burden of
showing subject matter jurisdiction over action challenging denial of SAW application).
Similarly, Hernandez’s supplemental certification of counsel, which he filed in an attempt
to properly allege subject matter jurisdiction and which identifies two cases of SAW
applicants who were not provided employment authorization during the pendency of their
10
sua sponte motions, and one case of an applicant who had not been provided interim
employment authorization despite a lapse of ninety days following his application for
employment authorization, is wanting. The supplemental certification provides no
particularized facts. Hernandez’s assertions amount to no more than argument that
Appellees wrongly applied its alleged practice and regulations in his case. 8 U.S.C. §
1160(e)(1) expressly forbids federal district courts from exercising subject matter
jurisdiction in these circumstances.5
Viewing Hernandez’s allegations in their proper light, the policies underlying the
decision in McNary are not forcefully implicated. Unlike the plaintiffs in McNary,
Hernandez has not been deprived of meaningful administrative review of his application.
Moreover, in the absence of pattern and practice allegations, the practice complained of,
unlike those in McNary, does not effectively prevent him from generating an adequate
administrative record for appeal. He does not claim that the record is unreliable or
inaccurate because of an agency practice.
Hernandez advances two arguments that we may quickly dispose of. First, he
maintains that the challenged procedures are broadly applicable to an entire class of
applicants whose sua sponte motions to reopen are dismissed without review, who are
denied employment authorization during the period in which their sua sponte motions are
5
Hernandez also contends that subject matter jurisdiction is appropriate under 28
U.S.C. §§ 1361 (mandamus), 2201 (declaratory judgment), and 5 U.S.C. § 701(Administrative Procedure Act). None of these provisions, however, provide an
independent basis for jurisdiction.
11
pending, and who are denied interim employment authorization upon expiration of ninety
days following their applications for employment authorization. While these allegations
are potentially applicable to a class of SAW applicants, no such pattern and practice
averments are contained in Hernandez’s Amended Complaint. Hernandez’s contention
that “broad based issues” are involved cannot act in lieu of pleading sufficient facts to
establish the type of general, collateral challenge required by McNary. At bottom,
Hernandez is attacking purported errors made with respect to his individual application.
Second, Hernandez incorrectly asserts that McNary created an independent “practice or
procedure” test that permits courts to exercise jurisdiction over those SAW cases
involving challenges to a “practice or procedure employed [by the INS] in making
decisions.” McNary, 498 U.S. at 491-2. This assertion omits an important portion of the
Court’s holding. Although setting forth a challenge to an INS practice or procedure in
administering the SAW program is a necessary condition for subject matter jurisdiction, it
is not a sufficient one. For subject matter jurisdiction to exist, the allegations must
concern a policy or procedure that violates the rights of an entire class of claimants.
Otherwise, exercising jurisdiction would run afoul of Congress’ mandate.
CONCLUSION
McNary allows courts to exercise jurisdiction under 28 U.S.C. § 1331 in those
cases in which a plaintiff alleges a broad pattern or practice of unlawful procedural
conduct in the administration of the SAW program. The allegations set forth by
12
Hernandez are plainly inadequate. Instead of providing allegations showing that the
challenged procedures constitute a general pattern or practice of Appellees, Hernandez
hones in on Appellees’ allegedly unlawful employment of regulations and practice to
deny his individual application. The District Court is prohibited from exercising
jurisdiction over determinations regarding an individual application.
For the foregoing reasons, the judgment of the District Court entered on June 22,
2004, will be affirmed.
13