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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
Case Name:
Case Number: Date Filed: 
97-15952 01/10/01 



                                                     No. 97-15952
                                                     D.C. No.


JANET RENO, Attorney General;
Immigration Judge; PAUL SCHMIDT,
Chairman of the Board of
Immigration Appeals,

ALONSO ANTONIO BARAHONA-                              No. 97-17156
                                                     D.C. No.



JANET RENO, Attorney General;
Immigration Judge; PAUL SCHMIDT,
Chairman of the Board of
Immigration Appeals,

Appeals from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Argued and Submitted
June 8, 1998--San Francisco, California

Opinion Filed February 11, 1999
Supplemental Opinion Filed January 10, 2001
Supplemental Dissent Filed January 10, 2001

Before: Cynthia Holcomb Hall and Sidney R. Thomas,
Circuit Judges, and Robert H. Whaley,1 District Judge.
1 Honorable Robert H. Whaley, United States District Judge for the East-
ern District of Washington, sitting by designation.


Opinion by Judge Thomas;
Dissent by Judge Hall

Michelle Gluck, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C., for the

Marc Van Der Hout, Van Der Hout & Brigagliano, San Fran-
cisco, California, for the plaintiffs-appellees.

THOMAS, Circuit Judge:

In Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999)
("Barahona I"), we affirmed a district court's entry of a pre-
liminary injunction against delegates of the Attorney General.
Shortly after that opinion was filed, the Supreme Court issued


its opinion in Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471 (1999) ("American-Arab").
Although the parties to Barahona I did not seek rehearing of
their case, we sua sponte requested that they provide supple-
mental briefing concerning the effect of American-Arab on
the district court's jurisdiction to enter the preliminary injunc-
tion. Having now considered our decision in light of
American-Arab, as well as other circuit court cases decided in
the wake of American-Arab, we reaffirm our original judg-


The salient facts of the controversy were described in
Barahona I. In brief, this appeal concerns the propriety of a
preliminary injunction enjoining the application of two direc-
tives issued by Board of Immigration Appeals ("BIA") Chair-
man Paul Schmidt and Chief Immigration Judge Michael
Creppy that plaintiffs contend improperly halted consideration
of their applications for suspension of deportation.

The Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat.
3009 (1996), as amended by Act of Oct. 11, 1996, Pub. L. No.
104-302, 110 Stat. 3656, amended the Immigration and
Nationality Act ("INA") to (1) impose a 4,000 person annual
limitation on the number of suspensions of deportation and
adjustments of status that the Attorney General may grant in
each fiscal year; and (2) provide that a person's accumulation
of time toward the continuous physical presence requirement
for suspension of deportation ends when he or she is served
with a notice to appear. Concerned by the April 1, 1997,
effective date for imposition of the 4,000 person annual limi-
tation, BIA Chairman Schmidt and Chief Immigration Judge
Creppy issued directives ordering a halt to the issuance of
decisions granting suspension of deportation. Immigration
judges ("IJ") were directed not to issue any decisions granting
suspension of deportation until further notice; the BIA was


instructed "not to process any appeals which might result in
the grant of suspension of deportation."

In response to these directives, the plaintiffs sought injunc-
tive relief against the deferral of their cases. As an example
of the relief sought, plaintiff Barahona-Gomez alleges that in
February 1997, an IJ determined that he and his family
deserved a suspension of deportation, but declined to issue a
formal decision to that effect because of the Creppy directive.
Other examples are contained in Barahona I. After consider-
ing the parties' evidentiary tenders, the district court granted
plaintiffs' preliminary injunction.

In Barahona I, defendants argued that, as of April 1, 1997,
the district court lost subject matter jurisdiction pursuant to
INA S 242(g) (codified at 8 U.S.C. S 1252(g)). We concluded
that the district court had jurisdiction under S 1252(g) to enter
the preliminary injunction, and also that its issuance was not
an abuse of discretion. After reconsidering our decision in
light of American-Arab, we reach the same conclusion.


In Barahona I, we relied upon Walters v. Reno, 145 F.3d
1032 (9th Cir. 1998), cert. denied, 119 S. Ct. 1140 (1999), in
holding that S 1252(g) did not preclude jurisdiction in this
action. Walters involved a class action filed against the Immi-
gration and Naturalization Service ("INS") alleging a denial
of due process by inadequate notice of deportation proce-
dures. The suit sought injunctive relief, which the district
court granted. On appeal, the government cited S 1252(g) and,
as it has in this case, challenged the district court's subject
matter jurisdiction. In rejecting this argument, the Walters
court wrote:

      By its terms, the statutory provision relied upon by
      the government does not prevent the district court
      from exercising jurisdiction over the plaintiffs' due


      process claims. Those claims do not arise from a
      "decision or action by the Attorney General to com-
      mence proceedings, adjudicate cases, or execute
      removal orders against any alien," but instead consti-
      tute "general collateral challenges to unconstitutional
      practices and policies used by the agency." McNary
      v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492, 111
      S. Ct. 888, 112 L. Ed. 2d 1005 (1991).

145 F.3d at 1052 (footnote omitted).

[1] The Supreme Court's decision in American-Arab con-
firmed Barahona I's interpretation of S 1252(g). In American-
Arab, the Court repeatedly characterized this statutory provi-
sion as "narrow." 525 U.S. at 482, 487. Moreover, it made
clear its disapproval of the "unexamined assumption that
S 1252(g) covers the universe of deportation claims--that it is
a sort of `zipper' clause that says `no judicial review of depor-
tation cases unless this section provides judicial review.' "
525 U.S. at 482. In fact, the Supreme Court chided circuit
courts for their "strained" and overly broad readings of the
provision: "It is implausible that the mention of three discrete
events along the road to deportation was a shorthand way of
referring to all claims arising from deportation proceedings."
Id. According to American-Arab, "Section 1252(g) was
directed against a particular evil: attempts to impose judicial
constraints upon prosecutorial discretion." Id. at 485 n.9. By
way of illustration, the Court articulated a non-exclusive list
of events that might seem to be contemplated by the language
of S 1252(g) but are nevertheless reviewable. For example, a
decision to reschedule a deportation hearing is not unreview-
able under S 1252(g); neither is a decision "to include various
provisions in the final order that is the product of the adjudi-
cation." Id. at 482.

[2] The situation from which plaintiffs seek relief is closely
akin to a decision to include provisions in a final deportation
order: Essentially, the Schmidt and Creppy directives result in


a decision not to include certain provisions in a final decision.
Moreover, there is no rational way to find that, in pressing for
a final and just resolution of their deportation proceedings,
plaintiffs are contributing to the "deconstruction, fragmenta-
tion, and hence prolongation of removal proceedings"--the
evils meant to be remedied by the statute. 525 U.S. at 487.

[3] Our reading of S 1252(g) is consistent with the illumi-
nating philosophy of IIRIRA, which limits judicial review of
decisions committed to the unfettered discretion of the INS.
See, e.g., Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997)
("Congress clearly intended to limit judicial review over the
discretionary decisions of the Attorney General and her dele-
gates during the transitional period."). Various sections of
IIRIRA identify specific discretionary acts not subject to judi-
cial review.2

[4] The Supreme Court recognized this in American-Arab,
noting that "[o]f course many provisions of IIRIRA are aimed
at protecting the Executive's discretion from the courts--
indeed, that can fairly be said to be the theme of the legisla-
tion." 525 U.S. at 486 (emphasis in original). This, the
Supreme Court reasoned, was the purpose of S 1252(g). In
protecting the Attorney General's prosecutorial discretion, the
Court concluded that S 1252(g) "applies only to actions that
the Attorney General may take: her `decision or action' to
`commence proceedings, adjudicate cases, or execute removal
orders'." Id. at 482. The Court noted that Congress had "good
reason" to focus on these three discrete events, because "[a]t
each stage the Executive has discretion to abandon the
endeavor . . . ." Id. The Executive may elect to forego prose-
2 See, e.g., IIRIRA S 309(c)(4)(E) (precluding judicial review of discre-
tionary decisions made pursuant to INA SS 212(c), 212(h), 212(i), 244 or
245); 8 U.S.C. S 1252(a)(2)(A) (limiting review of any claim arising from
inspection of aliens arriving in the United States);S 1252(a)(2)(B) (pre-
cluding review of denials of discretionary relief authorized by various stat-
utory provisions); S 1252(b)(4)(D) (limiting review of asylum
determinations for resident aliens).


cution of a removal proceeding, to defer action, 3 to grant asy-
lum, or to refer the asylum claim to an IJ for formal

[5] Such actions by the Executive are sharply different
from the quasi-judicial, as opposed to quasi-prosecutorial,
role of immigration judges. Section 1252(g) was aimed at pre-
serving prosecutorial discretion. Neither IIRIRA nor the
Supreme Court's decision in American-Arab endows immi-
gration judges with such discretion. Indeed, this circuit has
emphasized the narrow scope of discretion of immigration
judges. See, e.g., Yao v. INS, 2 F.3d 317, 319 (9th Cir. 1993)
("As the BIA points out, the IJ was not empowered to termi-
nate or suspend proceedings once initiated."); Lopez-Telles v.
INS, 564 F.2d 1302, 1303-04 (9th Cir. 1977) (holding that
"[i]mmigration judges are creatures of statute" and that, under
Ninth Circuit law, "the immigration judge is without discre-
tionary authority to terminate deportation proceedings so long
as enforcement officials of the INS choose to initiate proceed-
ings against a deportable alien and prosecute those proceed-
ings to a conclusion"). In Lopez-Telles, we stated specifically
that "[t]he immigration judge is not empowered to review the
wisdom of the INS in instituting the proceedings. His powers
are sharply limited . . . . This division between the functions
of the immigration judge and those of INS enforcement offi-
cials is quite plausible and has been undeviatingly adhered to
by the INS." Id. at 1304.
3 "Deferred action" refers to an exercise of administrative discretion by
the INS district director under which the INS takes no action "to proceed
against an apparently deportable alien" based on a prescribed set of factors
generally related to humanitarian grounds. 6 C. Gordon, S. Mailman, & S.
Yale-Loehr, Immigration Law and ProcedureSS 72.03[2][a] & [2][h]
(1998). The INS may "decline to institute proceedings, terminate proceed-
ings, or decline to execute a final order of deportation." Id. "A case may
be selected for deferred action treatment at any stage of the administrative
process." Id.


[6] The regulations governing immigration judges and the
BIA plainly support this long-held understanding of their lim-
ited discretion. Upon the filing of an application for asylum
or withholding of deportation by an alien the INS "shall adju-
dicate the claim of each asylum applicant whose application
is complete." 8 C.F.R. S 208.9. In contrast to the informal
conferences conducted by asylum officers, formal rules of
procedure govern the conduct of immigration court proceed-
ings. See 8 C.F.R. S 292.3. Testimony of witnesses is taken
under oath at a transcribed hearing, see 8 C.F.R. S 3.3, and
subpoenas may be issued to compel witnesses to attend, see
8 C.F.R. S 3.35(b)(1). When a timely appeal from an IJ's
decision to the BIA is taken, the BIA is obligated by regula-
tion to consider the record and render a decision. See general-
ly 8 C.F.R. SS 3.1-3.8. Formal procedural rules also govern
the BIA's actions. See 8 C.F.R. S 292.3. These are quasi-
judicial functions, not discretionary acts. See 8 C.F.R. S 3.1
(BIA shall perform "quasi-judicial function of adjudicating
cases"); S 240.31.4

[7] In this context, the meaning of a discretionary decision
to "adjudicate" is readily apparent: the discretionary, quasi-
prosecutorial decisions by asylum officers and INS district
directors to adjudicate cases or to refer them to IJs for hearing
4 The distinctions drawn between the discretionary, quasi-prosecutorial
decisions of asylum officers and the mandatory quasi-judicial actions of
IJs are found throughout the regulations. For example, with respect to
plaintiffs' claims seeking resolution of their applications for suspension of
deportation, an asylum officer is accorded with the authority to grant sus-
pension of deportation if an applicant is eligible for such relief. See 8
U.S.C. S 240.70(b). However, the asylum officer is required to refer an
application for suspension of deportation to an IJ for adjudication under
several enumerated conditions. See id. S 240.70(d). Moreover, the INS
district director is specifically authorized to withhold the adjudication of
a visa petition or other application if it is determined that an "investigation
has been undertaken involving a matter relating to the eligibility or the
exercise of discretion . . . in connection with the petition or application"
and the adjudication of the petition or application would prejudice the
ongoing investigation. See 8 C.F.R. S 103.2(18).


are not reviewable under S 1252(g). See Alvidres-Reyes v.
Reno, 180 F.3d 199, 205 (5th Cir. 1999). If an asylum appli-
cation precedes the filing of an Order to Show Cause with the
immigration court, the application is first considered by an
asylum officer. See 8 C.F.R. S 208.9. The officer meets infor-
mally with the applicant, considers the documents presented
with the asylum application, then decides whether asylum
should be granted or whether the matter should be referred to
an IJ for formal adjudication. See 8 C.F.R.S 208.2(a);
S 208.14(b)(2). In other words, the asylum officer decides
whether the removal action should be "abandoned " and asy-
lum granted, or whether the formal adjudicatory process
should proceed. It is this very decision to either "abandon the
endeavor" or to adjudicate it that Congress wished to preserve
from judicial review. See 525 U.S. at 484 ("Since no generous
act goes unpunished, however, the INS's exercise of this dis-
cretion opened the door to litigation in instances where the
INS chose not to exercise it." (emphasis in original)).

By affording asylum officers discretion to grant relief, Con-
gress did not wish to open the door to judicial review of this
purely discretionary, quasi-prosecutorial act. Thus, the asylum
officer's "decision to adjudicate" is immunized from judicial
review. Indeed, there is no other point in the asylum or
removal process in which a "decision" is made whether or not
to adjudicate.

In short, after the case has been initiated before an IJ, there
is no longer any discretion as to whether a matter should be
adjudicated or not. Unlike the Supreme Court, immigration
courts do not have the power to decline to hear cases. There-
fore, 1252(g) does not remove from judicial review actions in
violation of mandatory duties of IJs and the BIA conducted
pursuant to the usual rules of administrative procedure. Given
the clear purpose of the statutory provision, not only is there
nothing in American-Arab that alters our determination in
Barahona I; it greatly strengthens our conclusion. If a "deci-
sion[ ] . . . to reschedule a hearing" is judicially reviewable,


see 525 U.S. at 482, a decision to indefinitely suspend action
on a case surely is. Subsequent developments in this circuit
and our sister circuits also buttress our original judgment.

Recently, we considered en banc a similar argument in
Catholic Social Services, Inc. v. Reno, 232 F.3d 1139, 1150
(9th Cir. 2000) (en banc), and reached the same conclusion:
that S 1252(g) does not remove federal jurisdiction to grant
injunctive relief to classes of aliens challenging deportation
procedures. We specified that "this provision applies only to
the three specific discretionary actions mentioned in its text,
not to all claims relating in any way to deportation proceed-
ings." Id. Our decision in this case goes no further.

As in Barahona I, Walters, and Catholic Social Services,
other circuits have consistently held that decisions or actions
that occur during the formal adjudicatory process are not ren-
dered unreviewable because of S 1252(g). For example, in
Selgeka v. Carroll, 184 F.3d 337 (4th Cir. 1999), the Fourth
Circuit held that S 1252(g) did not deny the court jurisdiction
to review plaintiff's procedural due process claim seeking to
require an impartial IJ hear his asylum application and pre-
pare an administrative record, instead of an INS officer who
merely conducted an informal interview. Id. at 341-42. Like-
wise, in Singh v. Reno, 182 F.3d 504 (7th Cir. 1999), the Sev-
enth Circuit held that the petitioner had stated a reviewable
constitutional claim that the INS had denied his due process
rights by failing to timely calendar his deportation hearing. Id.
at 510. The court determined that INS "foot-dragging" had
practically prevented petitioner from applying for a discre-
tionary waiver. Id. Despite the government's contention that
an alien had no substantive right to have a claim heard at any
particular time, such an "abstract" concern was held to be
irrelevant in the "very unusual circumstance" where the peti-
tioner rather than the INS was pressing for a resolution of an
alien's status. Id.; see also Mustata v. Dep't of Justice, 179
F.3d 1017, 1022 (6th Cir. 1999) (ineffective assistance of
counsel claim raised in habeas petition not within "adjudicate


cases" element of S 1252(g)); Garcia-Guzman v. Reno, 65 F.
Supp. 2d 1077, 1082 (N.D. Cal. 1999) (change of venue deci-
sion by IJ not covered by S 1252(g)).


The government also claims that 8 U.S.C. S 1252(f) fore-
closes plaintiffs' suit for injunctive relief. Section 1252(f)(1)
specifically mandates that no court (other than the Supreme
Court) has jurisdiction "to enjoin or restrain the operation" of
8 U.S.C. SS 1221-1231 "other than with respect to the appli-
cation of such provisions to an individual alien against whom
proceedings under such part have been initiated. " 8 U.S.C.
S 1252(f)(1). However, S 1252(f) is a permanent rule provi-
sion. See IIRIRA S 309(c)(1). With the exception of
S 1252(g), which was immediately effective to all cases, the
permanent rules do not apply to aliens in exclusion or depor-
tation proceedings prior to April 1, 1997, as were the plain-
tiffs in this instance. See Kalaw, 133 F.3d at 1150. As the
Supreme Court noted in American-Arab,

      the general rule set forth in S 309(c)(1) of IIRIRA is
      that the revised procedures for removing aliens,
      including the judicial review procedures of S 1252,
      do not apply to aliens who were already in either
      exclusion or deportation proceedings on IIRIRA's
      effective date.

525 U.S. at 477.

Further, by its own terms, S 1252(f) applies to the operation
of SS 1221-1231 which are provisions relating to the new "re-
moval" proceedings under the permanent rules rather than
"deportation" and "exclusion" proceedings which were opera-
tive under pre-IIRIRA law and under the transitional rules.
Thus, S 1252(f) plainly does not apply to the plaintiffs who
are all in deportation or exclusion proceedings and subject to
IIRIRA's transitional rules. Because the issue is not before us,


we do not opine on the impact of S 1252(f) on permanent rule
cases. Thus, the district court properly exercised jurisdiction
over plaintiffs' claim that the Creppy and Schmidt directives
improperly halted consideration of their applications for sus-
pension of deportation.


Except for the further explanation of our jurisdiction as
occasioned by the issuance of American-Arab, our original
decision in Barahona I stands. Thus, we affirm the district
court's entry of a preliminary injunction, which was within its
jurisdiction. The district court did not err in requiring notice
to the certified class, nor in establishing the appropriate
amount of security. We remand for continuation of the litiga-
tion, and for the district court's further examination of the
class pursuant to NACARA.

HALL, Circuit Judge, dissenting:

I dissent. The plain language of section 1252(g) deprives
the district court, and this Court, of jurisdiction over the
instant matter. The Supreme Court's decision in Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471
(1999), only strengthens the argument that the district court
did not have jurisdiction over this issue of executive adjudica-

Section 1252(g) delineates three specific areas where Con-
gress decided to streamline the immigration process by pre-
cluding judicial review. The statute states in relevant part:

      Except as provided in this section and notwith-
      standing any other provision of law, no court shall


      have jurisdiction to hear any cause or claim by or on
      behalf of any alien arising from the decision or
      action by the Attorney General to commence pro-
      ceedings, adjudicate cases, or execute removal
      orders against any alien under this chapter.

8 U.S.C. S 1252(g) (Supp. II 1996) (emphasis added).

The Supreme Court read section 1252(g) to prevent review
of "three discrete actions" of the Attorney General. American-
Arab, 525 U.S. at 482. As the Court explained, the "theme"
of the IRRIRA is to shield certain executive decisions on
immigration from judicial interference. Id. at 486. While the
Court called for a "narrow reading" of section 1252(g), it
found that the statute prevented judicial review of the claims
of several resident aliens who alleged that they were the tar-
gets of selective enforcement by the INS. Id.  at 487. The resi-
dent aliens' claim that they had been targeted for deportation
because of their affiliation with a politically unpopular group
fell squarely within one of the three actions specified in sec-
tion 1252(g): the Attorney General's decision to "commence

Review is precluded in this matter because a different dis-
crete action specified in section 1252(g) is involved: the
Attorney General's decision to "adjudicate cases. " First, sec-
tion 1252(g) applies to both the Attorney General and her del-
egates. See id. at 492 (applying section 1252(g) to decisions
of the Immigration and Naturalization Service). BIA officials
and immigration judges act under the authority of the Attor-
ney General. See, e.g., 8 C.F.R. SS 3.0, 3.1 (describing the
authority delegated by the Attorney General to the Executive
Office for Immigration Review). Thus, section 1252(g)
applies to their conduct as well as to the conduct of the Attor-
ney General herself.

Second, and more importantly, the matter at issue is a clear
example of a "decision or action . . . to . . . adjudicate." Sec-


tion 1252(g). BIA Chairman Schmidt and Chief Immigration
Judge Creppy ordered all immigration judges to temporarily
stop processing appeals that could result in a grant of suspen-
sion of deportation. In other words, Schmidt and Creppy
required the immigration judges to desist from deciding a
selected set of cases. Within the discretion granted the Attor-
ney General to decide to adjudicate cases is the inherent abil-
ity to choose not to adjudicate. Cf. Alvidres-Reyes, 180 F.3d
199, 205 (5th Cir. 1999) ("[T]he Attorney General's executive
discretion to decide or act to commence proceedings always
has been considered inherently to include the ability to choose
not to do so.").

The decision of the BIA officials in this case to temporarily
put a halt to suspension of deportation orders is precisely the
sort of discretionary act that section 1252(g) was meant to
shield from review. As the Court explained in Arab-
American, "Section 1252(g) seems clearly designed to give
some measure of protection to `no deferred action' decisions
and similar discretionary determinations, providing that if
they are reviewable at all, they at least will not be made the
bases for separate rounds of judicial intervention outside the
streamlined process the Congress has designed." See Arab-
American, 525 U.S. at 485; see also Alvidres-Reyes, 180 F.3d
at 201 ("The Congressional aim of S 1252(g) is to protect
from judicial intervention the Attorney General's long-
established discretion to decide whether and when to prose-
cute or adjudicate removal proceedings or to execute removal
orders."). The plaintiffs' suit necessarily calls for court inter-
ference with the decision of BIA officials to exercise their dis-
cretion and temporarily halt the consideration of cases
involving suspension of deportation. Plaintiffs are attempting
to force immigration judges to adjudicate their suspension
applications, but section 1252(g) forecloses district court
review of the Attorney General's decision to adjudicate or not
adjudicate a matter.

The decision whether or not to adjudicate referred to in sec-
tion 1252(g) should not be limited to the more informal


choices of asylum officers as the majority suggests. Both asy-
lum officers and immigration judges have the power to "adju-
dicate" the status of an alien. See 8 C.F.R. S 208.2 (allowing
an asylum officer to adjudicate an alien's asylum application
if the alien appears to be deportable). Both exercise their dis-
cretion and determine the status of aliens through power con-
ferred by Congress and the Attorney General. The language
of section 1252(g) does not evidence a desire to shield one
type of adjudication from review while leaving the other sub-
ject to district court interference.

The majority attempts to draw a distinction between for-
mal, "mandatory" cases before an immigration judge and
more informal uses of executive discretion. According to the
majority, only the latter were meant to be exempted from
judicial review under the statute. But if Congress's goal in
passing the IRRIRA and section 1252(g) was to streamline
the immigration decisionmaking process, then immigration
judges and the BIA should be exempted as well. As the Court
noted in American-Arab, "Postponing justifiable deportation
. . . is often the principal object of resistance to a deportation
proceeding." 525 U.S. at 490. Congress's desire to clamp
down on delaying tactics in immigration cases surely fits pro-
ceedings before an immigration judge as well as it does the
decisions of an asylum officer. Moreover, an ordinary reading
of the word "adjudication" would suggest activities relating to
judging and making legal decisions, activities that fit even
more closely with the conduct of an immigration judge than
an INS official. See Webster's New Collegiate Dictionary 15
(1979) (defining "adjudicate" as "to settle judicially" or "to
act as judge").

An interpretation contrary to the majority's would not
immunize all decisions by immigration judges and the BIA
from review. As the Court explained in Arab-American, there
are many areas outside of adjudication that remain subject to
judicial scrutiny under section 1252(g). The Court gave sev-
eral examples of executive conduct that could still be exam-


ined by the courts: "[D]ecisions to open an investigation, to
surveil the suspected violator, to reschedule the deportation
hearing, to include various provisions in the final order that
is the product of the adjudication, and to refuse reconsidera-
tion of that order" all remain open to review. American-Arab,
525 U.S. at 482. None of these examples provided by the
Court go to the core function of adjudication. Instead, they are
separate decisions that Congress has left subject to court

Moreover, immigration plaintiffs subject to section 1252(g)
have other ways of contesting the Attorney General's proce-
dures or her orders for removal. Courts may review alien
detention orders, because although such an order is closely
linked to efforts to deport, it "is not itself a decision to `exe-
cute removal orders' and thus does not implicate section
1252(g)." Cardoso v. Reno, 216 F3d 512, 516-17 (5th Cir.
2000); see also Humphries v. Various Federal USINS
Employees, 164 F.3d 936 (5th Cir. 1999) (finding that claims
for mistreatment while in detention and involuntary servitude
due to threats of deportation were not barred by section
1252(g)). Direct review of constitutional claims that challenge
deportation orders are available at the appellate level. See
Singh v. Reno, 182 F.3d 504, 510-11 (7th Cir. 1999);
Narangjo-Aguilera v. INS, 30 F.3d 1106, 1114 (9th Cir.
1994). Constitutional claims can also be reviewed in district
court via a petition for writ of habeas corpus. See Magana-
Pizano v. INS, 152 F.3d 1213, 1220 (9th Cir. 1998). Thus,
section 1252(g) removes a limited area of executive decision-
making from judicial scrutiny, but other adequate avenues of
review still remain.

The Arab-American decision shows that section 1252(g)
was meant to exclude core acts of executive discretion from
district court review while leaving other avenues for review
open. One of these core acts is the decision to "adjudicate
cases." The administrative orders of Chief Immigration Judge
Creppy and Chairman Schmidt were designed to temporarily


postpone decisions on a selected group of cases. These repre-
sentatives of the Attorney General decided to not adjudicate
several cases, thus acting in a way that falls squarely within
the language of section 1252(g). The majority's interpretation
of the statute crafts an artificially limited definition of "adju-
dication" and ignores the other legal channels open to plain-
tiffs whose claims are blocked by 1252(g). For the foregoing
reasons, I respectfully dissent.