NIJC - 11th Cir Finds No Jurisdiction Over Class Challenge By HRIFA Applicants

11th Cir Finds No Jurisdiction Over Class Challenge By HRIFA Applicants

Friday, 29 August 2008

Sicar et al. v. Chertoff et al, No. 07-14072 (11th Cir.) August 27, 2008

BLACK, Marcus, Evans

In Sicar et al, a group of Haitian applicants filed a class action complaint in district court, alleging that DHS had systematically misclassified their parole status for purposes of applying for adjustment of status pursuant to the Haitian Refugee Immigration Fairness Act (HRIFA). The lower court held that the Haitian nationals lacked standing and that it did not have subject matter jurisdiction over the claim. The 11th circuit disagreed with the lower court on the issue of standing, but agreed that subject matter jurisdiction was lacking pursuant to the jurisdiction-stripping provision of HRIFA at § 902(f).

The Haitian nationals, relying on Moore v. Ahcroft, 251 F.3d 919 (11th Cir. 2001), in which the 11th circuit had found jurisdiction over the threshold requirements at INA § 242(a)(2)(C), argued that the court could review the misclassification of their status as parolees because this was a threshold determination not subject to the limitation on judicial review at § 902(f). The court disagreed, however because the plain language of INA § 242(a)(2)(C) enumerated the elements that would divest the court of jurisdiction, and the court’s jurisdiction attached in determining whether these requirements were met to begin with. In contrast, § 902(f) does not contain language specific to parole determinations, rather it precludes review over the question of “whether the status of any alien should be adjusted under this section.” Based on this language, the court concluded that a parole determination is subsumed into the adjustment of status process and thus, not a reviewable threshold issue.

The court next turned to the allegations of systematic violations raised by the Haitian nationals in their complaint. Relying on the 11th circuit’s opinion in Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999), the Haitian nationals argued for jurisdiction in that they did not challenge individual decisions, rather, they challenged a systematic pattern of misclassification by the government. The court rejected this claim, stating that in Tefel (which dealt with a pre-IIRIRA judicial review scheme), the class challenged the retroactive application of the stop-time provision enacted by IIRIRA, which resulted in a systematic application of the provision and not an adjudication of individual claims. Here, the court found that the applicants’ challenge really amounts to a challenge of the individual decisions on parole classifications and not to a collateral interpretation of the adjustment proceedings, as was the case in Tefel. For similar reasons, the court likewise dismissed the petitioners’ reliance on McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), which involved a collateral attack on the adjustment of status process for SAW applicants and not challenges to individual adjudications.

As to the petitioners’ challenges under the Administrative Procedures Act (APA), again, the court dismissed this claim as another effort by the petitioners to challenge the individual results of their adjustment applications. On this point, the court noted that petitioners’ did not seek to have the policy of misclassifying parole categorizations invalidated, rather that the court declare that release on recognizance constitutes a parole for purposes of § 902(f).

Finally, the court rejected the constitutional challenges under the Equal Protection and Due Process clauses. The court disposed of these challenges by finding that because the petitioners fell under the category of aliens inadmissible to the United States, they have no constitutional rights as to their adjustment of status applications.

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