Hernandez v. Reno , 91 F.3d 776 ( 1996 )

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United States Court of Appeals,
Fifth Circuit.
No. 95-40186.
Adan Arturo HERNANDEZ, Individually and on behalf of all persons similarly situated, Plaintiff-
Appellant, Cross-Appellee,
v.
Janet RENO, in her official capacity as Attorney General of the United States, Defendant-
Appellee Cross-Appellant.
Aug. 21, 1996.
Appeals from the United States District Court for the Eastern District of Texas.
Before POLITZ, Chief Judge, and DeMOSS and DENNIS, Circuit Judges.
POLITZ, Chief Judge:
Adan Arturo Hernandez filed this action under the Administrative Procedure Act1 challenging
the Immigration and Naturalization Service regulations implementing the Family Unity Provision of
the Immigration Act of 1990.2 The district court granted part ial summary judgment in favor of
Hernandez and partial summary judgment in favor of the Attorney General. Both parties appeal. We
modify and affirm in part, reverse in part, and remand.
Background
In 1985 Hernandez, then 14 years of age, made an undocumented entry into the United States
to join his father who had emigrated several years earlier. In 1990 his father obtained lawful
permanent resident status under the amnesty program of the Immigration Reform and Control Act
of 1986.3 His father submitted a visa petition seeking to have Hernandez classified as the unmarried
child of a permanent resident alien under 8 U.S.C. § 1153(a)(2), which authorizes second preference
visas for unmarried children and spouses of permanent resident aliens.
The petition was granted. To avoid deportation while awaiting the grant of his permanent
1
5 U.S.C. § 701 et seq.
2
Immigration Act of 1990, § 310, Pub.L. No. 101-649, 104 Stat. 4978.
3
Pub.L. 99-603, 100 Stat. 3359.
residency,4 Hernandez applied under the Family Unity Provision for "voluntary departure," paying
the $75.00 filing fee required by 8 C.F.R. §§ 103.7 and 242.6(e).5 This application was approved but
it did not state that Hernandez was authorized to work; rather, it advised that if he chose to work
he could apply for employment authorization with the INS office having jurisdiction over his place
of residence. This process, which typically takes several months, required Hernandez to submit, inter
alia, a Form I-765 application and a $60.00 filing fee. Hernandez complied and in due course the
INS issued the employment authorization document.
Hernandez and Elizabeth Castillo, a legal alien, currently live together with their child who
was born in the United States. The record reflects that they desire to marry but have not done so
because of their belief that marriage would jeopardize Hernandez's Family Unity status. This
perceived impediment to marriage has caused great hardships for Hernandez and Castillo, who have
been ostracized by their families and the community for the deemed illicit cohabiting.
Hernandez, on behalf of himself and others similarly situated, filed this action under the APA
challenging certain regulations implementing the Family Unity Provision. Specifically, he claims that
the INS may not require the filing of a separate application, with an additional filing fee, to obtain
authorization for employment. He also challenges the INS interpretation of the statute which requires
an alien seeking Family Unity status as the spouse or unmarried child of a legalized alien, to be such
not only on May 5, 1988, but continuously thereafter until permanent residency is granted.
The district court entertained cross-motions for summary judgment and held that the INS may
not require an alien eligible for Family Unity status to apply separately for employment authorization,
but that the fee associated with the work authorization request was reasonable.6 Additionally, the
4
Cognizant of the statutory limit on the number of available visas, the district court noted the
likelihood that it would take four or more years before Hernandez could receive permanent
resident status.
5
The Family Unity Provision operates in conjunction with 8 U.S.C. § 1153 which sets forth the
criteria for a visa and the numbers of such visas which may be issued. The Family Unity Provision
provides that persons seeking visas under section 1153 may remain in the United States pending
action on their applications.
6
The summary judgment order states:
court held that the INS regulation interpreting the Family Unity Provision requiring the alien to
maintain the same relationship throughout the pendency of his petition was a permissible construction
of the statute. In light of its resolution of the motions for summary judgment, the trial court denied
the motion to certify a class, despite finding that Hernandez satisfied the requirements of Fed.R.Civ.P.
23(a). Finally, the district court declared the offending regulation impermissible and enjoined its
enforcement. Both parties timely appealed.
Analysis
We review a grant of summary judgment de novo, applying the same standards as the district
court.7 Under the APA, agency action is reviewed solely to determine whether it is arbitrary,
capricious, an abuse o f discretion, or otherwise not in accordance with law.8 Under the rubric
announced by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council
The court finds that once Defendant determines that an alien is eligible for
Family Unity status, she cannot require the alien to apply separately for
employment authorization or documentary evidence of such authorization,
which is inherent in the status.
The district court denied Hernandez's motion to alter or amend the judgment.
Fed.R.Civ.P. 59(e). Additionally, the court stated that to the extent the defendant sought
relief such was also denied. The ruling includes a "clarification" of the previous order on
the motions for summary judgment, stating:
The Order enjoins defendant from adopting or enforcing any regulation or
procedure that would require an alien with Family Unity status to apply separately
for a work permit. The Order does not prohibit sequential applications in instances
where the applicant chooses that option. The applicant, however, must be given
the option of simultaneous filing, and, in that event, the family unity status and
work permit must be issued at the same time.
The use of the phrase "simultaneous filing" suggests that two applications are
permitted provided they are filed at the same time. Such an interpretation, however,
appears contrary to the quoted summary judgment order. We conclude the district court
did not intend to amend its previous order, which unequivocally states that separate
applications are impermissible, considering its ruling on the Rule 59 motion, that, to the
extent the defendant sought relief from the adverse summary judgment, that relief was
denied.
7
Montgomery v. Brookshire,

34 F.3d 291

(5th Cir.1994).
8
5 U.S.C. § 706.
Inc.,9 an agency's interpretation of a statute whose administration is entrusted to it, generally is to be
accepted unless Congress has spoken directly on the issue.10 If Congress has, we give effect to the
congressional intent. If the language is ambiguous, we typically will defer to the agency's
interpretation.
A. Separate Application for Employment Authorization
Hernandez challenges the requirement that a qualifying applicant under the Family Unity
Provision must file a separate application and pay an additional filing fee in order to obtain
employment authorization and documentation thereof.11
The Family Unity Provision states, in relevant part:
The Attorney General shall provide that in the case of an alien who is an eligible immigrant
(as defined in subsection (b)(1)) [12] as of May 5, 1988, who has entered the United States
before such date, who resides in t he United States on such date, and who is not lawfully
admitted for permanent residence, the alien (1) may not be deported or otherwise required
to depart from the United States ... and (2) shall be granted authorization to engage in
employment in the United States and be provided an "employment authorized" endorsement
or other appropriate work permit.13
Congress unequivocally has mandated that eligible immigrants are entitled to: (1) a stay of
deportation, (2) authorization to be employed in the United States, and (3) documentary evidence of
that authorization. The INS regulation requiring an eligible immigrant to apply separately for
employment authorization and documentation effectively reads the components we number (2) and
(3) above out of the statute. This the INS may not do; it has no power to either ignore clear
9

467 U.S. 837

104 S. Ct. 2778

81 L. Ed. 2d 694

(1984).
10
White v. I.N.S.,

75 F.3d 213

(5th Cir.1996).
11
The INS maintains that Hernandez's challenge to these regulations is moot because he
received his employment authorization document before the district court ruled that requiring
separate applications violated the statute. The challenge is not moot because four years or more
may pass before Hernandez receives permanent resident status, thus making it likely that he will
be required to repeat the process at least once because Family Unity status is granted in two-year
increments. See Weinstein v. Bradford,

423 U.S. 147

96 S. Ct. 347

46 L. Ed. 2d 350

(1975)
(claim is not moot when it is capable of repetition yet evading review).
12
The term "eligible immigrant" means a qualified immigrant who is the spouse or unmarried
child of a legalized alien. Immigration Act of 1990, § 310, Pub.L. No. 101-649, 104 Stat. 4978.
13

Id. congressional intent

or amend the legislation. The trial court did not err in finding and concluding
that the agency's mandated separate application procedure was arbitrary, capricious, and otherwise
not in accordance with the law.
B. Reasonableness of the Fee
Hernandez contends that the district court should have certified a class of all similarly situated
persons so that the fees they paid to obtain employment authorization and documentation could be
returned. To address these contentions we first must determine whether the fee assessed was
reasonable. The district court held that the "defendant can require one reasonable fee for processing
the application and issuing whatever documents she decides are appropriate for evidence of status
and permission to work." In addressing the reasonableness of the fee, however, the district court
apparently did not consider the aggregate fee charged perso ns applying under the Family Unity
Provision. We view this as the proper inquiry, given the trial court's holding, which we affirm, that
requiring separate applications is violative of the statute.
We therefore must remand to the district court so that it might consider whether the aggregate
fee charged herein was reasonable. If the district court determines that the fee was unreasonable, it
should co nsider the propriety of certifying a class and conducting further proceedings consistent
therewith.
C. Based on Same Relationship Requirement
Hernandez challenges the requirement imposed by 8 C.F.R. § 242.6(c)(1)(ii) that an
applicant's claim to eligibility for Family Unity status be "based on the same relationship" to a
legalized alien as the relationship the person had on May 5, 1988.14 The district court deferred to the
INS interpretation of the statute, citing Chevron.
Chevron deference does not lie where the intent of Congress is clear from the words of the
14
The defendant states in a footnote that we lack jurisdiction on this claim because Hernandez
does not have standing and failed to exhaust his administrative remedies. No authority is cited
nor is a reasoned argument advanced and we do not consider these issues. L & A Contracting
Co. v. Southern Concrete Services, Inc.,

17 F.3d 106

(5th Cir.1994).
statute, but rather only where a statute is "silent or ambiguous with respect to the specific issue...."15
The statute requires that Hernandez be the spouse or unmarried child of a legalized alien on May 5,
1988. It requires no more. The INS regulation adding a requirement that the alien continuously
maintain that same relationship is in conflict with the plain language of the statute. Our duty is to give
effect to the clear, unambiguous intent of Congress. Whether Hernandez marries after May 5, 1988
is irrelevant to the inquiry under the Family Unity Provision of the Immigration Act of 1990.
D. Scope of the Injunction
The defendant contends that the district court's injunction is overly broad. The injunction
provides:
It is ORDERED that Defendant is permanently enjoined from promulgating or enforcing any
regulations or procedures that would require an alien with Family Unity status to apply
separately for a work permit.
Class-wide relief may be appropriate in an individual action if such is necessary to give the
prevailing party the relief to which he or she is entitled.16 The breadth of the injunction issued by the
trial judge in this case, however, is not necessary to remedy the wrong suffered by Hernandez.17 The
injunction is modified to apply to Hernandez only. Should the district court determine to certify a
class per our remand, this question of the breadth of the injunction may, in the trial court's discretion,
be revisited.
We MODIFY and AFFIRM in part, REVERSE in part, and REMAND for further
proceedings consistent herewith.
15
Sullivan v. Everhart,

494 U.S. 83

, 89,

110 S. Ct. 960

, 964,

108 L. Ed. 2d 72

(1990) (citing
Chevron ).
16
Bresgal v. Brock,

843 F.2d 1163

(9th Cir.1987). See also Washington v. Reno,

35 F.3d 1093

(6th Cir.1994) (upholding a nationwide preliminary injunction before class certification
because it was necessary to provide relief).
17
None of the cases cited by Hernandez support the scope of the injunction. See e.g., Bailey v.
Patterson,

323 F.2d 201

(5th Cir.1963), cert. denied,

376 U.S. 910

84 S. Ct. 666

11 L. Ed. 2d 609

(1964) (refusing to reach the propriety of certifying a class action where the plaintiff seeks
desegregation because the nature of the right sought to be vindicated requires the decree to run to
the benefit of others similarly situated); United Farmworkers v. City of Delray Beach, Fla.,

493 F.2d 799