Dominguez-Perez v. Chertoff , 294 F. App'x 981 ( 2008 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    October 7, 2008
    No. 07-40934
    Summary Calendar                   Charles R. Fulbruge III
    Clerk
    ANTELMA DOMINGUEZ-PEREZ; MARIA GUADALUPE SALINAS-
    GRIMALDO; PATRICIA BOONE-GOMEZ; ARMANDO BOONE-GOMEZ,
    Individually and on behalf of all others similarly situated,
    Petitioners–Appellants,
    v.
    MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND
    SECURITY; EDUARDO AGUIRRE, Acting Director of the Bureau of
    Citizenship and Immigration Services; ALFONSO DE LEON, Interim
    District Director of Bureau of Citizenship and Immigration Services,
    Harlingen, Texas; MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL
    SECURITY,
    Respondents–Appellees.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:96-CV-116
    Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    In 1994, Plaintiff Antelma Dominguez-Perez filed her Application for
    Certificate of Citizenship (N-600). Dominguez-Perez’s husband, Jose Luis, filed
    an Application to Register Permanent Residence or Adjust Status (I-485) and,
    pursuant to 8 C.F.R. § 274a.12(c)(9), also filed an Application for Employment
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
    47.5.4.
    No. 07-40934
    Authorization (I-765) resulting in the issuance of an employment authorization
    document (EAD).     However, unlike for I-485 applicants, the then-existing
    regulations precluded issuance of EADs to N-600 applicants such as Dominguez-
    Perez. In July 1996, Dominguez-Perez and several other N-600 applicants
    seeking EADs (Petitioners) filed a petition under 
    28 U.S.C. § 2241
     claiming, inter
    alia, Equal Protection violations.
    The magistrate judge recommended certification of a class consisting of
    “all people who have filed or will file an N-600 application with the INS District
    Office in Harlingen, Texas, in whose cases there has been no final adjudication
    of their claim to United Sates [sic] citizenship.” The magistrate judge further
    recommended granting the requested declaratory and injunctive relief—allowing
    the class to obtain EADs while their N-600s were pending. The district court
    adopted the magistrate judge’s recommendations in its written order.
    The parties subsequently entered into a settlement agreement and the
    district court issued its “Amended Final Order,” requiring, in relevant part, that
    “applications for EADs based on pending applications for Certificates of
    Citizenship be adjudicated in the same manner and in the same time frame as
    applications for EADs filed by aliens who have applied for adjustment of status
    under Section 245 of the Act.”
    Subsequent to the injunction, the United States Citizenship and
    Immigration Services (CIS) instituted a “90-Day Program” for adjudication of all
    I-485 and N-600 applications. Key to this program is the use of a “stop-time”
    rule. The stop-time rule tolls the running of any time limit relating to I-485 and
    N-600 applications as well as derivative applications (such as I-765 applications
    for EADs) when a Request for Further Evidence form is issued. Believing this
    new program violated the court’s injunction, Petitioners filed a motion seeking
    to enforce the Amended Final Order and to hold the CIS District Director of the
    2
    No. 07-40934
    Harlingen District in contempt. Petitioners also sought a declaration that the
    applicable regulations did not authorize tolling with regard to I-765 applications
    for EADs.
    Finding compliance with the previous injunctive order, the district court
    held that CIS could apply the tolling rule to N-600 applicants as long as it
    applied the same rule to I-485 applicants. However, the district court declined
    to address whether the regulations authorize tolling with regard to I-765
    applications for EADs on the grounds that no actual case or controversy existed.
    Petitioners appeal only the district court’s refusal to address whether the
    regulations authorize tolling with regard to I-765 applications for EADs.
    The proper method to enforce an injunction is through the “power of
    contempt.”1 Like the imposition of costs, attorney’s fees, and Rule 11 sanctions,
    the imposition of a contempt sanction is not a judgment on the merits of an
    action.2 “Rather, it requires the determination of a collateral issue” and thus
    may be considered after an action is no longer pending.3
    Petitioners appeal the district court’s refusal to decide an issue not raised
    in their complaint or included in the Amended Final Order. Deciding such a
    question would result in an improper advisory opinion.4
    AFFIRMED.
    1
    Gunn v. Univ. Comm. to End the War in Viet Nam, 
    399 U.S. 383
    , 388 (1970); see also
    United States v. United Mine Workers of Am., 
    330 U.S. 258
    , 303-04 (1947) (“Judicial sanctions
    in civil contempt proceedings may, in a proper case, be employed for either or both of two
    purposes: to coerce the defendant into compliance with the court’s order, and to compensate
    the complainant for losses sustained.”).
    2
    Cooter & Gell v. Hartmarx Corp., 
    496 U.S. 384
    , 396 (1990).
    3
    
    Id. at 395-96
    .
    4
    See John Doe #1 v. Veneman, 
    380 F.3d 807
    , 819 (5th Cir. 2004) (noting that enjoining
    conduct not challenged in the complaint would constitute “an impermissible advisory opinion”).
    3
    

Document Info

Docket Number: 07-40934

Citation Numbers: 294 F. App'x 981

Judges: Owen, Per Curiam, Southwick, Stewart

Filed Date: 10/7/2008

Precedential Status: Non-Precedential

Modified Date: 8/2/2023