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Hernandez v. Napolitano

United States District Court, Eighth Circuit

December 17, 2013

MARIO MAZARIEGOS HERNANDEZ, Plaintiff,
v.
JANET NAPOLITANO, Secretary of the Department of Homeland Security, in her official capacity as head of the Department of Homeland Security; ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration Services; KENNETH MADSEN, Director of Chicago Asylum Office; ERIC H. HOLDER, JR., Attorney General, in his official capacity as head of the Department of Justice; JOHN F. KERRY, Secretary of State, in his official capacity as head of the Department of State; and DEPARTMENT OF HOMELAND SECURITY, Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on the defendants' (hereinafter, "the Government's") motion to dismiss for lack of subject matter jurisdiction and for failure to state claim on which relief can be granted. Filing No. 21. This action involves an alleged breach of the stipulated Class Action Settlement Agreement approved in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991) (the "ABC Agreement") by the defendants (hereinafter, collectively, "DHS" or "immigration authorities"). The plaintiff contends that the defendants[1] erroneously concluded that he did not timely invoke the benefits of the ABC Agreement and was not entitled to relief thereunder. He seeks declaratory and injunctive relief, including, but not limited to, the right to apply for special cancellation of removal. Jurisdiction is premised on 28 U.S.C. § 1346 (United States as defendant in contract disputes of less than $10, 000), 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. §§ 2201-2202 (actions for declaratory relief).

I. FACTS

A. Historical Background

In 1985, "thousands of Salvadorian and Guatemalan asylum seekers... filed a lawsuit against [immigration authorities] claiming their asylum applications had not been fairly adjudicated.'" Molina Jerez v. Holder, 625 F.3d 1058, 1062 (8th Cir. 2010) (quoting Cuadra v. Gonzales, 417 F.3d 947, 948 (8th Cir. 2005)); Jacobo v. Attorney General of the United States, 459 Fed.App'x 112, 114-15 (3d Cir. 2012) (quoting In re Morales, 21 I. & N. Dec. 130, 132 (BIA 1996)) (noting that the litigation "arose out of systemic challenges by certain Salvadorans and Guatemalans in the United States to the processing of asylum claims.'"). The United States had denied many applicants asylum because it had favorable relations with El Salvador and Guatemala and therefore concluded that many applicants could not have a "well-founded fear of persecution" in those countries. See American Baptist Churches v. Thornburgh, 760 F.Supp. 796, 799 (N.D. Cal. 1991) ("ABC"). In 1991, a district court approved a class action settlement agreement in that case. Id. at 799, 804-05. The ABC Settlement offered asylees of those countries another chance to seek asylum and relief from the consequences of prior asylum denials. Id. The United States "agreed not to deport class members (commonly referred to as the ABC class), to give each class member a proper de novo asylum interview, and to give class members work authorization while they awaited these interviews.'" Molina-Jerez, 625 F.3d at 1061 (quoting Cuadra, 417 F.3d at 948). "The settlement was intended to provide additional review procedures' to asylees." ABC, 760 F.Supp. at 804. Also, "the ABC settlement provided that [e]ligible class members... [would] not be placed in [deportation] proceedings nor will proceedings be resumed before the[ir] adjudication is completed." Jacobo v. Attorney General of United States, 459 Fed.App'x 112, *115 (3d Cir. 2012) (quoting ABC, 760 F.Supp. at 803).

The de novo adjudications provided to ABC class members were designed to be procedurally robust. Jacobo, 459 Fed.App'x at 115. For instance, every adjudication was to include a new interview. Id. Every application was guaranteed a "preliminary assessment" by an asylum officer, and a second read by a supervisor. Id.

The ABC settlement class was broadly defined as "Guatemalans in the United States as of October 1, 1990" and "Salvadorans in the United States as of September 19, 1990." Id. at 114. The benefits of the agreement were available to "Guatemalans who indicate to the INS in writing their intent to apply for a de novo asylum adjudication before an Asylum Officer, or otherwise to receive the benefits of this agreement, within the period of time commencing July 1, 1991 and ending on December 31, 1991." Id. at 800; see Chaly-Garcia v. United States, 508 F.3d 1201, 1204 (9th Cir. 2007). Also, the ABC Agreement explicitly grants jurisdiction to federal district courts if an ABC class member is determined ineligible for benefits. Id. at 809-810; see Molina-Jerez, 625 F.3d 1058, 1069 (8th Cir. 2010) (holding that courts of appeals lack jurisdiction to review the Department of Homeland Security/USCIS's factual determination that a purported asylee failed to timely register for ABC Agreement benefits); Molina Jerez II, 2012 WL 1072581 at *3.[2]

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009-546. The legislation made a number of changes to immigration law including replacing suspension of deportation with cancellation of removal and strengthening the reinstatement of removal provisions. Molina Jerez, 625 F.3d at 1062. "Before IIRIRA, aliens with pending asylum claims were able to apply for suspension of deportation' which granted the Government more discretion to grant permanent resident status to aliens." Id. (quoting Cuadra, 417 F.3d at 948-49). IIRIRA replaced the suspension of deportation with the "much more restrictive form of immigration relief" called cancellation of removal. Cuadra, 417 F.3d at 949. However, in 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"), 111 Stat. 2160, which "allows ABC class members to seek relief under conditions approximating pre-IIRIRA suspension of deportation.'" Molina Jerez, 625 F.3d at 1063 (quoting Cuadra, 417 F.3d at 949). Such relief is called "special rule cancellation of removal."[3] Id. (noting that legislation was enacted to ameliorate some of IIRIRA's adverse effects upon ABC class members). Also, in 2000, Congress passed the LIFE Act Amendments of 2000, 114 Stat. 2763A-324 through 2763A-327, which exempt "ABC class members from IIRIRA's strengthened reinstatement-of-removal provision and thereby extend[s] NACARA's benefits to a category of aliens previously ineligible for NACARA relief.'" Id. (quoting Aguilar de Polanco v. United States Dep't of Justice, 398 F.3d 199, 202 (2d Cir. 2005)).

The INS "delayed implementation of the [ABC] settlement for years, and what were once strong asylum claims became stale as conditions improved in El Salvador and Guatemala." See Cuadra 417 F.3d at 948; Molina Jerez, 625 F.3d at 1061. In the intervening years, Congress amended immigration laws several times. The Eighth Circuit Court of Appeals explains:

By the mid-1990s, many ABC class members accrued the requirements for suspension of deportation under 8 U.S.C. § 1254 (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) on September 30, 1996), which gave the Attorney General discretion to grant permanent resident status to an alien who had been in the United States for seven years, was of good moral character, and whose deportation would cause extreme hardship for the alien or certain lawfully present relatives. For many ABC class members, relief through suspension of deportation was a better alternative than their now-stale asylum claims.
As ABC class members began to apply for suspension of deportation, however, Congress passed IIRIRA, which replaced suspension of deportation with a much more restrictive form of immigration relief-cancellation of removal. See 8 U.S.C. § 1229b. To make relief easier for ABC class members, Congress passed NACARA, which allows ABC class members to seek relief under conditions approximating pre-IIRIRA suspension of deportation.
ABC class members who were placed in removal proceedings prior to IIRIRA's effective date are eligible for NACARA suspension of deportation; ABC class members who were not placed in deportation proceedings prior to IIRIRA's effective date (like Cuadra) are eligible for special rule cancellation of removal.

Cuadra, 417 F.3d at 948-49.

The United States Citizenship and Immigrations Services ("USCIS") later issued guidance on the proper application of the terms of the ABC Agreement. See Filing No. 26, Index of Evid., Ex. 4, USCIS Director Joseph Langlois Memorandum dated August 5, 2008, "Making ABC Determinations, Chaly-Garcia v. U.S., 508 F.3d 1201 (9th Cir. 2007)" ("Langlois Memo II"); Ex. 3, USCIS Director Joseph Langlois Memorandum dated June 8, 2006, ...


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