FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL ORTIZ; PEDRO
VASQUEZ; LUIS MONTOYA; JUAN
VILLANUEVA; PASCUAL VILLALOBOS;
IMELDA CAMPOS; HECTOR LARA;
REGINALDO DIAN; RICARDO
FERNANDEZ; JOSE YEPEZ; MELITON
No. 98-16471
MARTINEZ; RAJINDER RANDHAWA;
LEONEL ACOSTA; GUILLERMO
D.C. No.
DUARTE,
CV-96-02272-MJJ
Plaintiffs-Appellees,
v.
DORIS M. MEISSNER, INS
Commissioner,
Defendant-Appellant.
MIGUEL OLIVARES; MARIA
GONZALEZ; LETICIA CHAVEZ;
ROBERTO VENTURA; DARSHAN
No. 98-16472
SINGH,
D.C. No.
Plaintiffs-Appellees,
CV-96-03583-MJJ
v.
OPINION
DORIS M. MEISSNER, INS
Commissioner,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
February 9, 1999--San Francisco, California
5449
Filed June 3, 1999
Before: Mary M. Schroeder, Ferdinand F. Fernandez, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Schroeder
_________________________________________________________________
SUMMARY
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5451
_________________________________________________________________
COUNSEL
Thankful T. Vanderstar, United States Department of Justice,
Washington, DC, for the defendant-appellant.
5452
Jonathan M. Kaufman, Kaufman Law Office, San Francisco,
California, for the plaintiffs-appellees.
_________________________________________________________________
OPINION
SCHROEDER, Circuit Judge:
Plaintiffs are all aliens who have been administratively
denied legalization under one of two amnesty programs estab-
lished by Congress in 1986. The first program is for "special
agricultural workers" ("SAWs"), 8 U.S.C.S 1160, and the
second program is for aliens who have resided in the United
States since January 1, 1982, 8 U.S.C. S 1255a. The programs
contain parallel provisions that allow persons who file a non-
frivolous or prima facie legalization application to receive
authorization to work in this country pending a "final
determination" on their legalization application. The plaintiffs
maintain that the statute entitles unsuccessful applicants to
retain their interim work authorization beyond the conclusion
of administrative proceedings on their application and until
the completion of judicial review of their deportation order.
The district court agreed and issued an injunction requiring
the government to issue work permits to the plaintiffs. The
government appeals.
We must decide, first, whether the district court had juris-
diction to consider plaintiffs' claim, and if so, whether the dis-
trict court correctly interpreted the statutory provisions. We
hold that the plaintiffs' claim is within the jurisdiction of the
district court, but that the government is correct that the stat-
ute provides for interim work authorization only until admin-
istrative proceedings on the application have ended.
The Statute and Procedural Background
Congress passed the Immigration Reform and Control Act
5453
of 1986 ("IRCA"), Pub. L. No. 99-603, 100 Stat. 3359, in
response to the flood of illegal immigrants that had produced
a "shadow population" of millions of undocumented aliens
within this country. See McNary v. Haitian Refugee Ctr., Inc.,
498 U.S. 479, 481 (1991). Congress simultaneously sought to
aid existing aliens by creating two broad amnesty programs
that would enable qualifying aliens to emerge from the shad-
ows, while enacting other provisions to make the plight of
non-qualifying undocumented aliens more difficult. Id. at
481-83. Both of the amnesty programs at issue are set out in
parallel provisions of IRCA. Section 1160 comprises the
SAW program and S 1255a the program for aliens who have
continuously resided in this country since 1982. 1
_________________________________________________________________
1 Sections 1160 and 1255a are materially identical for purposes of this
appeal. Thus, we quote here only the relevant portions of S 1160. Section
1160 states in pertinent part:
S 1160. Special agricultural workers
(a) Lawful residence
(1) In general
The Attorney General shall adjust the status of an alien to
that of an alien lawfully admitted for temporary residence if
the Attorney General determines that the alien meets the fol-
lowing requirements:
(A) Application period
The alien must apply for such adjustment during the 18-
month period beginning on the first day of the seventh
month that begins after November 6, 1986.
(B) Performance of Seasonal Agricultural Services and
residence in the United States
The alien must establish that he has--
(i) resided in the United States, and
(ii) performed seasonal agricultural services in the
United States for at least 90 man-days, during the 12-
month period ending on May 1, 1986. For purpose of
the previous sentence, performance of seasonal agricul-
tural services in the United States for more than one
5454
In order to procure the legalization benefits offered by the
amnesty programs, the statute requires aliens to apply within
a specified time period, ending November 30, 1988 for S 1160
SAW applicants, and May 4, 1988 for S 1255a applicants. See
_________________________________________________________________
employer on any one day shall be counted as perfor-
mance of services for only 1 man-day.
(C) Admissible as immigrant
The alien must establish that he is admissible to the
United States as an immigrant, except as otherwise pro-
vided under subsection (c)(2) of this section.
* * * *
(d) Temporary stay of exclusion or deportation and work authori-
zation for certain applicants
(1) Before application period
The Attorney General shall provide that in the case of an
alien who is apprehended before the beginning of the appli-
cation period described in subsection (a)(1) of this section
and who can establish a nonfrivolous case of eligibility to
have his status adjusted under subsection (a) of this section
(but for the fact that he may not apply for such adjustment
until the beginning of such period), until the alien has had
the opportunity during the first 30 days of the application
period to complete the filing of an application for adjust-
ment, the alien--
(A) may not be excluded or deported, and
(B) shall be granted authorization to engage in employ-
ment in the United States and be provided an
"employment authorized" endorsement or other appropri-
ate work permit.
(2) During application period
The Attorney General shall provide that in the case of an
alien who presents a nonfrivolous application for adjustment
of status under subsection (a) of this section during the appli-
cation period, and until a final determination on the applica-
tion has been made in accordance with this section, the
alien--
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SS 1160(a)(1)(A), 1255a(a)(1)(A). Aliens must also establish
that they meet the requirements of the particular section. See
SS 1160(a)(1), 1255a(a). The statute entitles aliens to a single
level of administrative appellate review of the agency deter-
mination on their application. See SS 1160(e)(2)(A),
1255a(f)(3)(A). Aliens may obtain judicial review of the
determination only upon a final order of deportation or exclu-
_________________________________________________________________
(A) may not be excluded or deported, and
(B) shall be granted authorization to engage in employ-
ment in the United States and be provided an
"employment authorized" endorsement or other appropri-
ate work permit.
* * * *
(e) Administrative and judicial review
(1) Administrative and judicial review
There shall be no administrative or judicial review of a
determination respecting an application for adjustment of
status under this section except in accordance with this sub-
section.
(2) Administrative review
(A) Single level of administrative appellate review
The Attorney General shall establish an appellate
authority to provide for a single level of administrative
appellate review of such a determination.
(B) Standard for review
Such administrative appellate review shall be based
solely upon the administrative record established at the
time of the determination on the application and upon such
additional or newly discovered evidence as may not have
been available at the time of the determination.
(3) Judicial review
(A) Limitation to review of exclusion or deportation
There shall be judicial review of such a denial only in
the judicial review of an order of exclusion or deportation
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sion. See SS 1160(e)(3)(A), 1255a(e)(4)(A). In its review of
the administrative denial of the application, the court may
only look to the administrative record established at the time
of the administrative review proceeding. SeeSS 1160(e)
(3)(B), 1255a(e)(4)(B).
We have consolidated for this decision two appeals from
cases filed in the district court in 1996. Treating them as
related cases, the district court granted summary judgment in
favor of the plaintiffs. The parties agree that the only issues
before us are issues of law that we review de novo. See
Naranjo-Aguilera v. INS, 30 F.3d 1106, 1109 (9th Cir. 1994);
Farr v. U.S. West Communications, Inc., 151 F.3d 908, 913
(9th Cir. 1998).
District Court Jurisdiction
The government contends that the district court lacked
jurisdiction of these cases because the statute vests exclusive
jurisdiction for review in the court of appeals following the
final order of deportation. The critical statutory provision
states in relevant part:
There shall be no administrative or judicial review of
a determination respecting an application for adjust-
ment of status under this section except in accor-
_________________________________________________________________
under section 1105a of this title (as in effect before Octo-
ber 1, 1996).
(B) Standard for judicial review
Such judicial review shall be based solely upon the
administrative record established at the time of the review
by the appellate authority and the findings of fact and
determinations contained in such record shall be conclu-
sive unless the applicant can establish abuse of discretion
or that the findings are directly contrary to clear and con-
vincing facts contained in the record considered as a
whole.
5457
dance with this subsection. . . . The Attorney General
shall establish an appellate authority to provide for
a single level of administrative appellate review of
such a determination.
. . . There shall be judicial review of such a denial
only in the judicial review of an order of exclusion
or deportation . . . .
S 1160(e); see also, S 1255a(f)(1) (review upon order of
deportation only).
The Supreme Court has decided two cases interpreting this
provision. See McNary, 498 U.S. 479 (1991); Reno v. Catho-
lic Social Servs., 509 U.S. 43 (1993) ("CSS"). Two guiding
principles have emerged from those decisions and those of the
lower courts that have interpreted the statute. See, e.g.,
Naranjo-Aguilera, 30 F.3d at 1112-13; Ayuda, Inc. v. Reno,
7 F.3d 246, 249 (D.C. Cir 1994).
The first principle is that district court jurisdiction under 28
U.S.C. S 1331 remains for challenges to certain Immigration
and Naturalization Service ("INS") procedures or practices in
handling applications. See McNary, 498 U.S. at 493; Naranjo-
Aguilera, 30 F.3d at 1112-13 (recognizing that district court
jurisdiction exists for "collateral, procedural challenges to
INS practices in the processing of applications" (internal quo-
tations omitted)). This jurisdiction exists because the limited
review scheme of S 1160(e)(1) would not produce an ade-
quate administrative record to allow for meaningful judicial
review of these collateral claims. See McNary , 498 U.S. at
493.
In McNary, for example, the plaintiffs alleged that the INS
conducted the SAW interview process in an arbitrary fashion.
Id. at 487. They claimed that the INS denied applicants the
opportunity to present witnesses on their own behalf, that the
INS did not provide competent interpreters, and that the lack
5458
of any verbatim recording of the interview inhibited meaning-
ful administrative review of denials. Id. The Court held that
the district court had jurisdiction over these claims. It rea-
soned that S 1160(e), limiting judicial review over
"determinations respecting an application," referred to review
of denials in individual cases, not attacks on collateral proce-
dures used in all cases. Id. at 492. The Court pointed out that
if the district court did not have jurisdiction over such collat-
eral claims, meaningful judicial review of them would be
thwarted due to the inadequate record and the inability of
courts of appeals to find facts and develop a record. Id. at
496-97. Our circuit law is consistent. See Campos v. Nail, 43
F.3d 1285, 1290 (9th Cir. 1994) (district court had jurisdiction
over asylum seekers' claim challenging a particular Immigra-
tion Judge's practice of refusing to grant change of venue
motions, notwithstanding similar jurisdictional limitations in
the relevant section).
The second principle is that aliens may challenge INS inter-
pretation or application of IRCA's substantive eligibility
criteria only on review of an order of deportation. See
Naranjo-Aguilera, 30 F.3d at 1113; see also CSS, 509 U.S. at
60 (aliens whose applications had been denied due to an
unduly restrictive INS interpretation of the continuous resi-
dency requirement, S 1255a(a)(3)(A)&(B), could obtain
review only in the courts of appeals upon a final order of
deportation). In Naranjo-Aguilera, this court held that the dis-
trict court lacked jurisdiction over a challenge to the substan-
tive interpretation of an IRCA provision that concerned the
eligibility for SAW status of aliens who had been convicted
of one felony or three misdemeanors. 30 F.3d at 1109, 1113.
The District of Columbia Circuit has similarly held that a
challenge to the INS's interpretation of anotherS 1255a
requirement, relating to the government's knowledge of a pre-
viously legal immigrant's illegal status, 8 U.S.C.
S 1255a(a)(2)(B), was maintainable only in the review of a
deportation order. See Ayuda, 7 F.3d at 249; c.f. Massieu v.
Reno, 91 F.3d 416, 423-24 (3d Cir. 1996) (alien must chal-
5459
lenge the constitutionality of the statute under which deporta-
tion was brought in the context of court of appeals review of
his deportation order).
[1] In sum, applicants may not sue in district court to estab-
lish their eligibility for these programs, but must instead con-
fine themselves to the administrative and judicial review
provided in the sections. At the same time, if the administra-
tive record is insufficient to provide a basis for meaningful
judicial review of a procedure or policy that is collateral to an
alien's substantive eligibility for these programs, then resort
to the district court to ensure fair procedures is warranted.
[2] This case involves the interim status to be accorded
applicants whose eligibility for legalization has been admin-
istratively denied. The plaintiffs do not challenge the INS's
interpretation of the substantive eligibility requirements for
legalization, nor do they challenge the application of these
requirements in any particular case. The government asserts
that the issues here integrally relate to an alien's eligibility for
legalization, yet the requirements for work authorization and
legalization are different. The statute requires only that an
alien file a nonfrivolous or prima facie application to attain a
work authorization. To attain legalization, an alien must fulfill
all of the substantive requirements of the relevant section.
Presumably the INS made a determination that each of these
plaintiffs filed either a nonfrivolous or prima facie applica-
tion. The subsequent denial of the application does not affect
this initial conclusion.
[3] More important, unless the district court has jurisdic-
tion, there will be no meaningful opportunity for these plain-
tiffs to obtain a resolution of this claim. Plaintiffs, according
to the government, must wait until they have been ordered
deported to seek interim work authorization in a court of
appeals review of the deportation proceeding. Yet by that
time, the period in which plaintiffs claim they are entitled to
work authorization would already have passed. The legal
5460
issue would be moot. District court jurisdiction is therefore
available because limiting judicial review of the INS's con-
struction of the statute here would be "the practical equivalent
of a total denial of judicial review" of this claim. McNary,
498 U.S. at 497; see also Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 212-13 (1994) (claims considered collateral
when otherwise, all meaningful judicial review would be fore-
closed); Campos, 43 F.3d at 1291 (finding district court juris-
diction over pattern and practice claim because "appropriate
relief would not be available under the statutory scheme for
appeals"). Thus, the district court properly exercised jurisdic-
tion over these plaintiffs' actions.
The Merits of the Appeal
The government appeals the district court's holding that
aliens were entitled to work authorization through completion
of judicial review of their legalization application, which can
only occur after a final order of deportation. The pertinent
language of the statute reads:
The Attorney General shall provide that in the case
of an alien who presents a nonfrivolous application
for adjustment of status under subsection (a) of this
section during the application period, and until a
final determination on the application has been
made in accordance with this section, the alien - (A)
may not be excluded or deported, and (B) shall be
granted authorization to engage in employment in
the United States . . . .
S 1160(d)(2) (emphasis added). Section 1255a(e)(2) contains
materially identical language.
The INS contends that the phrase "final determination" sig-
nifies the final administrative determination, and that if there
is any ambiguity, the agency's interpretation is entitled to def-
5461
erence under Chevron v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-43 (1984).
The district court rejected the INS's interpretation of the
phrase "a final determination has been made in accordance
with this section" because both SS 1160 and 1255a contain
subsections providing for judicial review. See SS 1160(e)(3),
1255a(f)(4). The district court, citing INS v. Cardoza-
Fonseca, 480 U.S. 421, 446 n.30 (1987), also found the INS
did not merit Chevron deference because it had changed its
interpretation of the statute during the course of the litigation.2
[4] On appeal the government renews its claim that
Chevron deference is appropriate. We need not defer, how-
ever, if we can ascertain congressional intent using the tradi-
tional tools of statutory construction. See Cardoza-Fonseca,
480 U.S. at 446. Using traditional tools, we conclude that
Congress intended that the automatic stay of deportation and
the work authorization last only until the final administrative
determination on the application.
[5] We look first to the statutory language. Congress con-
sistently used the word "determination" in the two sections
before us to refer to agency, not court, decisions. See, e.g.,
SS 1160(b)(4), 1255a(c)(3) (qualified designated entities may
not make determinations that Attorney General charged with
making under the section); S 1160(b)(6)(A)(i), 1255a(c)(5)
(A)(i) (Department of Justice may only use information fur-
_________________________________________________________________
2 The government had initially argued that applicants' work authoriza-
tion expired at the time of their first administrative denial. When plaintiffs
informed the court that this litigation position conflicted with the INS's
actual practice, which was to extend work permits until the completion of
administrative review, the INS conceded its error and conformed its liti-
gating position to its practice. That practice is in accord with INS regula-
tions, which allow for work authorization during the administrative review
period. See, e.g., 8 C.F.R. SS 245a.2(n)(4), 245a.3(i), 274a.12(c)(22). The
record reflects that the INS position has been consistent and that its coun-
sel had mistakenly described it.
5462
nished by applicant to make a determination under the sec-
tion); SS 1160(c)(2), 1160(c)(2)(C), 1255a(d)(2), 1255a(d)(2)
(B)(iii) (grounds for exclusion taken into account by INS
when making determination on admissibility); SS 1160(e)(1),
1160(e)(2)(A), 1160(e)(2)(B), 1160(e)(3)(B), 1255a(f)(1),
1255a(f)(3)(A), 1255a(f)(3)(B), 1255a(f)(4)(B) (administra-
tive and judicial review of agency's determinations respecting
an application). In fact, the only time the word is used outside
the agency context is in S 1255a(d)(2)(C), which requires
applicants "to undergo . . . a medical examination (including
a determination of immunization status)." Neither section
refers to any judicial "determination."
[6] The description of the review as "final" lends little sup-
port to plaintiffs' interpretation. The last stage of administra-
tive review is frequently described as "final " so as to trigger
the time for seeking judicial review. See, e.g. , 8 U.S.C.
S 1252(b) (judicial review of final order); 8 U.S.C.
S 1324a(e)(7)-(8) ("decision and order of an administrative
law judge shall become the final agency decision " and alien
may petition the court of appeals within forty-five days to
review the final order); 8 U.S.C. S 1324b(i)(1) (court of
appeals will review final order); 5 U.S.C. S 704 (provision in
APA for judicial review of final agency action).
The district court's holding that the plaintiffs were entitled
to work authorization until the completion of judicial review
of their administrative legalization denial rested on the lan-
guage providing for work authorization until "a final determi-
nation . . . has been made in accordance with this section."
Because "this section" contains provisions for administrative
and judicial review, the district court found it arbitrary to dis-
tinguish between the two for work authorization purposes.
Once we understand the phrase "final determination" to mean
final agency decision, then the phrase "made in accordance
with this section" must refer to INS's processing and adjudi-
cating the application in accordance with the criteria of the
relevant section.
5463
[7] We look not only to the language but also to the aims
of the statutory amnesty programs. See Cardoza-Fonseca, 480
U.S. at 449. Extending work authorization through judicial
review of deportation orders would not be consistent with the
overall congressional objectives in enacting this legislation.
Congress intended to make the plight of undocumented work-
ers more onerous while at the same time allowing existing
undocumented aliens, who can qualify for legalization, to
emerge from the shadows. See McNary, 498 U.S. at 481-83.
With both of these goals in mind, it is unlikely that Congress
intended applicants under these amnesty programs to be per-
mitted to work legally during the institution and pendency of
deportation proceedings and through the subsequent judicial
review of the deportation order. Indeed Congress must have
intended to separate administrative proceedings on a legaliza-
tion application from deportation proceedings, for it prohib-
ited the INS from using information garnered from the alien
in the amnesty process to institute deportation proceedings.
See SS 1160(b)(6), 1255a(c)(5).
[8] The Supreme Court's McNary and CSS decisions also
support our conclusion that automatic work authorization and
stay of deportation are for the duration of the final administra-
tive proceedings on the legalization application, not through
the uncertain duration of deportation proceedings, which
might never be instituted. In McNary, the Court characterized
the work authorization received by an applicant as one that
"would remain valid during the entire period that the applica-
tion was being processed." 498 U.S. at 484. The Court indi-
cated the application process was separate from deportation
proceedings. It described the limited allowance for judicial
review of the "final administrative determination " on the
application, pointing out that review would only occur if
"deportation proceedings against an unsuccessful applicant"
were initiated. Id. at 485-86. The Court also identified Con-
gress' purpose in creating the SAW program as improving
only the lot of those who qualify for amnesty, not of those
5464
who do not qualify and must face lack of work and possible
deportation. Id. at 490-91. The Court explained that
[SAW] status not only protects the alien from depor-
tation; it also creates job opportunities that are not
available to an alien whose application is denied.
Indeed, the denial of SAW status places the alien in
an even worse position than he or she was in before
[IRCA] was passed because lawful employment
opportunities are no longer available to such persons.
Thus, the successful applicant for SAW status
acquires a measure of freedom to work and to live
openly without fear of deportation or arrest that is
markedly different from that of the unsuccessful
applicant.
Id.
In CSS, the Court similarly explained the diminished status
of aliens whose applications have been rejected by the INS,
in comparison to the status of aliens whose applications are
still pending:
[A]n alien whose appeal has been rejected by the
Associate Commissioner stands (except for a latent
right to judicial review of that rejection) in the same
position he did before he applied: he is residing in
the United States in an unlawful status, but the Gov-
ernment has not found out about him yet.
509 U.S. at 54.
[9] Plaintiffs' interpretation would put the alien whose
administrative appeal has been rejected in a better position
than the alien enjoyed before he applied. That result is not
consistent with congressional intent embodied in the language
of the statute and as understood by the Supreme Court. We
conclude that SS 1160(d)(2) and 1255a(e)(2) provide for work
5465
authorization through the completion of administrative pro-
ceedings on an alien's legalization application, but not
through judicial review of subsequent deportation proceed-
ings.
The judgment of the district court is REVERSED and the
case REMANDED FOR ENTRY OF SUMMARY JUDG-
MENT in favor of the United States. The permanent injunc-
tion issued by the district court is VACATED.
5466
the end