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--------------------------------------------------------------------------------
Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
--------------------------------------------------------------------------------
Case Name:
BARAHONA GOMEZ V RENO  
Case Number: Date Filed: 
97-15952 02/11/99 
--------------------------------------------------------------------------------
 FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALONSO ANTONIO BARAHONA-
GOMEZ; CARMEN VICTORIA VAZQUEZ
DE BARAHONA; ALONSO ANTONIO
BARAHONA-VASQUEZ; BRENDA
VERZOSA; DINO VERZOSA;
HUMBERTO JAVIER-RIVAS; BOSCO
GUILLERMO RIVAS; CAROLE
BELTRAN; SANTIAGO RAMON
SEQUEIRA; GRACIELA DE LOS
ANGELES ISARIUZ; SANDRA LOS
                                                     No. 97-15952
ANGELES SEQUEIRA; MARTA
                                                     D.C. No.
AGUILAR,
                                                     CV-97-00895-CW
Plaintiffs-Appellees,

v.

JANET RENO, Attorney General;
EXECUTIVE OFFICE FOR IMMIGRATION
REVIEW; MICHAEL CREPPY, Chief
Immigration Judge; PAUL SCHMIDT,
Chairman of the Board of
Immigration Appeals,
Defendants-Appellants.

ALONSO ANTONIO BARAHONA-
                                                     No. 97-17156
GOMEZ; CARMEN VICTORIA VAZQUEZ
                                                     D.C. No.
DE BARAHONA; ALONSO ANTONIO
                                                     CV-97-00895-CW
BARAHONA-VASQUEZ; BRENDA
                                                     OPINION
VERZOSA; DINO VERZOSA;

                               1219


HUMBERTO JAVIER-RIVAS; BOSCO
GUILLERMO RIVAS; CAROLE
BELTRAN; SANTIAGO RAMON
SEQUEIRA; GRACIELA DE LOS
ANGELES ISARIUZ; SANDRA LOS
ANGELES SEQUEIRA; MARTA
AGUILAR,
Plaintiffs-Appellees,
        
v.

JANET RENO, Attorney General;
EXECUTIVE OFFICE FOR IMMIGRATION
REVIEW; MICHAEL CREPPY, Chief
Immigration Judge; PAUL SCHMIDT,
Chairman of the Board of
Immigration Appeals,
Defendants-Appellants.

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

Filed February 11, 1999

Before: Cynthia Holcomb Hall and Sidney R. Thomas,
Circuit Judges, and Robert H. Whaley,1 District Judge.

Opinion by Judge Sidney R. Thomas; Dissent by Judge Hall
_________________________________________________________________
1 Honorable Robert H. Whaley, United States District Judge for Eastern
Washington, sitting by designation.

                               1220

SUMMARY 

The summary, which does not constitute a part of the opinion of the court, 
is copyrighted C 1999 by West Group. 
_________________________________________________________________
Immigration/Deportation and Asylum

The court of appeals affirmed a judgment of the district
court. The court held that federal district courts have jurisdic-
tion to enjoin enforcement of a provision of the Illegal Immi-
gration Reform and Immigrant Responsibility Act (IIRIRA)
to deny suspensions of deportation against aliens who other-
wise qualify for them.

Prior to the enactment of IIRIRA, aliens who received a
discretionary suspension of deportation were eligible for an
adjustment of status to lawful permanent resident. There was
no limit on the number of suspensions of deportation and
adjustments of status that could be issued by immigration
judges or panels of the Board of Immigration Appeals (BIA).
However, an individual was not eligible for suspension of
deportation in most circumstances unless he or she had been
physically continuously present in the United States for seven
years.

In 1996, amendments to IIRIRA effected various changes
in immigration law. One of the changes (IIRIRA S 309(c)(7))
sets a new absolute maximum limitation of 4000 suspensions
of deportation that may be granted in any fiscal year. Another
(S 309(c)(5)) terminates an alien's accumulation of time
toward the "continuous physical presence" requirement when
the person is served with an Immigration and Naturalization
Service (INS) notice to appear. These changes became effec-
tive April 1, 1997.

New Immigration and Naturalization Act (INA) S 242(g)
also became effective on April 1, 1997. It states that except
as it provides and notwithstanding any other provision of law,
no court has jurisdiction to hear any cause or claim by or on
behalf of any alien arising from a decision or action of the

                               1221

Attorney General to commence proceedings, adjudicate cases,
or execute removal orders against any alien under the chapter
in which the section is located.

After April 1, 1997, some persons who had satisfied the
continuous physical presence requirement were no longer eli-
gible for suspension of deportation because the period was
calculated differently, and would likely never regain their eli-
gibility because they could no longer accrue time to be cred-
ited against the requirement. Also, enforcement of the annual
deportation-suspension limit meant that many applicants
already engaged in the INS administrative process, who
would have received suspensions under pre-IIRIRA law,
would not after April 1, 1997.

Appellants BIA Chairman Paul Schmidt and Chief Immi-
gration Judge Michael Creppy issued directives ordering a
halt to the issuance of suspensions of deportation. Appellant
Attorney General Janet Reno was to have issued regulations
by March 1, 1997 to guide the actions of the BIA and immi-
gration judges in appeals that might result in suspensions of
deportation, but failed to do so.

On March 14, 1997, appellee Alonso Barahona-Gomez and
other resident aliens sought injunctive relief against adminis-
trative deferral of their cases. On March 21, the district court
found that the balance of the hardships tipped sharply in favor
of the plaintiffs and granted a temporary restraining order,
concluding that there was a serious question as to whether
Chief Judge Creppy and Chairman Schmidt had exceeded
their authority in issuing their directives. The court issued a
preliminary injunction and provisional class certification on
March 28.

The injunction stayed the deportation of all class members
who might be deported after being denied deportation based
on S 309(c)(5). The district court found that an injunction was
necessary to prevent mass deportations before the aliens could

                               1222

obtain judicial review. The certified class consisted of all
aliens who had received favorable administrative determina-
tions, i.e., either the BIA or an immigration judge had deter-
mined that they qualified for a suspension of deportation, but
a final adjudication had not occurred.

The defendants moved to vacate the preliminary injunction
on the ground that the district court had lost subject-matter
jurisdiction by operation of INS S 242(g).

The district court denied the motion, ruling thatS 242(g)
was not intended to remove jurisdiction over procedural
claims arising out of deportation proceedings for which there
is no other judicial review. The court modified the prelimi-
nary injunction to require notification to class members of any
denials under S 309(c)(5), and requiring named plaintiffs to
exhaust administrative remedies. The defendants appealed
from both the order granting the preliminary injunction and
the order denying their motion to vacate.

After the issuance of the preliminary injunction, Congress
passed the Nicaraguan Adjustment and Central American
Relief Act (NACARA), which amended S 309(c)(5) to pro-
vide special rules governing applications for suspension of
deportation and cancellation of removal by certain persons.
Some of the applicants who qualified for special treatment
under NACARA were members of the certified class in this
case.

While the appeals were pending, the Ninth Circuit decided
Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998), another class
action, holding that S 242(g) does not prevent a district court
from exercising jurisdiction over aliens' due-process claims
challenging unconstitutional practices and policies employed
by immigration authorities.

[1] Like the class in Walters, the certified class in this case
sought injunctive relief staying deportation pending resolution

                               1223

of their constitutional claims. Like Walters, this was not a
case in which the plaintiffs asserted a constitutional challenge
to conceal the true nature of their claims. As in Walters, the
objectives of the plaintiffs in this case was not to obtain judi-
cial review of the merits of the INS proceedings, but to
enforce their constitutional rights to due process in the context
of those proceedings. [2] Because there was no principled dis-
tinction between this case and Walters on this issue, the
defendants' jurisdictional arguments were precluded and
could not be considered.

[3] The district court did not abuse its discretion in deter-
mining that a sufficiently serious question existed that justi-
fied the entry of a preliminary injunction.

[4] There was a legitimate question concerning whether
issuance of the directives violated the notice and comment
procedures of the Administrative Procedure Act. [5] Even if
the directives were properly issued, adherence to them may
have violated due process by interfering with the judgment of
the BIA in a suspension case. [6] The issue of whether the
directives were issued within regulatory authority remained.
[7] There was a serious question of statutory interpretation.
[8] By suspending the adjudicatory process, the directives had
the effect of imposing the restriction on pending cases, con-
trary to congressional intent.

[9] The district court also found that the balance of hard-
ships weighed heavily in the plaintiffs' favor. Without a pre-
liminary injunction, the plaintiffs might not have had an
opportunity to seek review of the actual cause of denial of
their applications for suspension of deportation.

[10] The district court did not err in requiring notice to the
class. The district court may make appropriate orders requir-
ing notice of any aspect of a class action for the protection of
members of the class. [11] In some instances, the defendant
may be able to perform a necessary task with less difficulty

                               1224

or expense than could the representative plaintiff. There was
no real burden on the government in providing notice because
it could easily be attached to an order denying a suspension
application. The INS was uniquely positioned to determine
class membership.

[12] Because some of the applicants who qualified for spe-
cial treatment under NACARA were also members of the cer-
tified class, the district court might consider class
composition, whether creation of a subclass was appropriate,
and whether certain named representatives should continue in
that role. NACARA did not require dismissal. However, it
might require further examination by the district court.

Judge Hall dissented, concluding that IIRIRA deprived the
district court of jurisdiction to consider the aliens' claims.
_________________________________________________________________
COUNSEL

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

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

THOMAS, Circuit Judge:

In this appeal, we consider the propriety of a preliminary
injunction enjoining enforcement of an amendment to the
Immigration and Naturalization Act ("INA") which (1)
imposes a 4,000 person annual limitation on the number of
suspensions of deportation and adjustments of status that the

                               1225

Attorney General may grant in each fiscal year, and (2) pro-
vides that a person's accumulation of time towards the contin-
uous physical presence requirement for suspension of
deportation ends when he or she is served with a notice to
appear. We conclude that the district court had jurisdiction to
enter the injunction and its issuance was not an abuse of dis-
cretion. We affirm the district court's notice and bond require-
ments, but remand in light of the passage of the Nicaraguan
Adjustment and Central American Relief Act.

I.

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, made a number of organic changes
to immigration law. This appeal concerns the confluence of
two of them: (1) a new absolute annual limitation on the num-
ber of deportation suspensions the Attorney General can
issue, and (2) the termination of time an applicant can accrue
toward the seven year continuous physical presence require-
ment for suspension upon receipt of an Immigration and Nat-
uralization Service ("INS") notice to appear. Prior to the
passage of IIRIRA, individuals who received a discretionary
suspension of deportation were eligible to receive an adjust-
ment of status to lawful permanent resident. There was no
limit on the number of persons who could receive a discre-
tionary suspension and adjustment of status; the decision was
left solely to immigration judges across the country and pan-
els of the Board of Immigration Appeals ("BIA"). See INA
S 244(a), 8 U.S.C. S 1254(a) (1994) (repealed). IIRIRA
S 309(c)(7) altered this, establishing a new absolute limitation
of 4,000 deportation suspensions and adjustments of status
that the Attorney General can make in a fiscal year. 2
_________________________________________________________________
2 The new annual limitation, codified in 8 U.S.C. S 1229b(e) provides:
"(1) AGGREGATE LIMITATION. Subject to paragraphs (2) and (3), the
Attorney General may not cancel the removal and adjust the status under

                               1226

Under IIRIRA as it applies to the plaintiffs under prior law,
an individual is not eligible for suspension of deportation in
most circumstances unless he or she has been physically con-
tinuously present in the United States for seven years. IIRIRA
S 309(c)(5) fundamentally altered this by terminating an indi-
vidual's accumulation of time toward the continuous physical
presence requirement when that person was served with an
INS notice to appear or when the alien commits certain
offenses that render him inadmissible or deportable, which-
ever comes first.3
_________________________________________________________________
this section, nor suspend the deportation and adjust the status under sec-
tion 1254(a) of this title (as in effect before the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996), of a total
of more than 4,000 aliens in any fiscal year. The previous sentence shall
apply regardless of when an alien applied for such cancellation and adjust-
ment, or such suspension and adjustment, and whether such an alien had
previously applied for suspension of deportation under section 1254(a) of
this title. The numerical limitation under this paragraph shall apply to the
aggregate number of decisions in any fiscal year to cancel the removal
(and adjust the status) of an alien, or suspend the deportation (and adjust
the status) of an alien, under this section or such section 1254(a) of this
title.

(2) Fiscal Year 1997. For Fiscal Year 1997, paragraph (1) shall only apply
to decisions to cancel the removal of an alien, or suspend the deportation
of an alien, made after April 1, 1997. Notwithstanding any other provision
of law, the Attorney General may cancel the removal or suspend the
deportation, in addition to the normal allotments for fiscal year 1998, of
a number of aliens equal to 4,000 less the number of such cancellations
of removal and suspensions of deportation granted in fiscal year 1997 after
April 1, 1997.
3 The new INA S 240A(d)(1), codified at 8 U.S.C. S 1229b(d)(1) (Supp.
II 1996), added by IIRIRA S 304(a)(3), 110 Stat. at 3009-595, provides:
"For purposes of this section, any period of continuous residence or con-
tinuous physical presence in the United States shall be deemed to end
when the alien is served a notice to appear under section 1229(a) of this
title or when the alien has committed an offense referred to in section
1182(a)(2) of this title that renders the alien inadmissible to the United
States under section 1182(a)(2) of this title or removable from the United
States under section 1227(a)(2) or (4) of this title, whichever is earliest."

                               1227

IIRIRA was signed into law on September 30, 1996, with
the 4,000 annual limit provided in IIRIRA S 309(c)(7) sched-
uled to become effective on April 1, 1997. The new provi-
sions placing new restrictions on the continuous physical
presence requirement also became effective April 1, 1997. See
Astrero v. INS, 104 F.3d 264, 266 (9th Cir. 1997). Thus, after
April 1, 1997, some persons who had satisfied the continuous
physical presence requirement were no longer eligible for sus-
pension of deportation because the time period was calculated
differently, and would probably never regain their eligibility
because they could no longer accrue time to be credited
against the requirement. Further, imposition of the annual
deportation suspension limit meant that many applicants in
the administrative pipeline who would have received suspen-
sions under pre-IIRIRA law, would not after April 1, 1997
because of the change in law.

As of February 11, 1997, the Executive Office for Immi-
gration Review had granted approximately 3,900 applications
for suspension of deportation and adjustment of status under
S 309(c)(7) for the fiscal year beginning October 1, 1996.
Concerned by the April 1 effective date for imposition of the
4,000 annual limitation, Board of Immigration Appeals Chair-
man Paul Schmidt and Chief Immigration Judge Michael
Creppy issued directives ordering a halt to the granting of any
more suspensions of deportation. Judge Creppy ordered all
immigration judges to:

      reserve decision in any case in which you intend to
      grant suspension of deportation. Decisions denying
      suspension of deportation may be issued; however,
      you are directed not to issue any decisions granting
      suspension until further notice. If in fact this is the
      only reason you are reserving decision you may
      advise the respondent that decision is reserved for
      the purpose of determining the availability of a num-
      ber consistent with 240A(e) of the statute.

                               1228

In a similar letter to members of the BIA, Chairman
Schmidt stated:

      [U]ntil further notice, please do not process any
      appeals which might result in the grant of suspension
      of deportation . . . . This is a temporary measure to
      maintain the status quo until definitive guidance is
      provided by the Attorney General's office . . . . In
      practical terms, the Board attorney and paralegal
      staff should not process any suspension appeals
      other than those which, upon initial review, would
      appear to result in the clear denial of relief.

The Attorney General was required to promulgate regula-
tions implementing IIRIRA by March 1, 1997,4 but she failed
to do so. Thus, on March 14, 1997, the plaintiffs 5 sought
_________________________________________________________________
4 See IIRIRA S 309(b) ("The Attorney General shall first promulgate
regulations to carry out this subtitle by not later than 30 days before the
title III-A effective date.")
5 According to their complaint, plaintiffs Alonso Antonio Barahona-
Gomez, his wife, and their three children are natives and citizens of Nica-
ragua. In February 1997, an immigration judge determined that the family
deserved a suspension of deportation, but declined to issue a formal deci-
sion to this effect because of the Creppy directive.

Plaintiffs Santiago Ramon Sequeira, his wife, and their daughter are
natives and citizens of Nicaragua. They entered the United States in 1985
and were served with an Order to Show Cause in 1989. In March 1994,
the Sequeiras moved the BIA to reopen their deportation proceedings so
that they could apply for a suspension of deportation. The BIA found they
had presented a prima facie case and granted the motion to reopen. Irre-
spective of the merits of their case, however, they were not be able to
obtain a final decision before April 1, 1997.

Plaintiffs Brenda Verzosa and her son Dino are natives and citizens of
the Philippines. They applied for and received a suspension of deportation
in October 1996. The INS appealed that decision to the BIA, arguing that
the Verzosas did not have the requisite ten years in the United States as
required by IIRIRA S 309(c)(5). After the Ninth Circuit issued its opinion
in Astrero, holding that S 309(c)(5) did not take effect until April 1, 1997,
the Verzosas moved the BIA to dismiss the Service's appeal. Due to the
Schmidt directive, the BIA has failed to act.

                               1229

injunctive relief against the deferral of their cases. On March
21, 1997, the district court granted a Temporary Restraining
Order, finding that there is "a serious question as to whether
the Chief Immigration Judge and the Chairman of the Board
exceeded their authority in issuing the directives. " The court
further found that:

       Plaintiffs have shown that the balance of hard-
      ships tips sharply in their favor. If Defendants refuse
      to adjudicate Plaintiffs' applications for suspension
      of deportation because of the Creppy and Schmidt
      directives, Plaintiffs will most likely be deported.
      Although they are currently eligible for suspension
      for deportation, Plaintiffs will no longer be eligible
      after April 1, 1997. Deportation will inflict severe
      and, at least in the case of one Plaintiff, even life-
      threatening, harm on Plaintiffs.

The court held a hearing on the motion for a preliminary
injunction on March 27, 1997, and one day later issued a pre-
liminary injunction and provisional class certification. The
injunction stayed the deportation of all class members who
may be ordered deported after being denied suspension of
deportation based on IIRIRA S 309(c)(5). The court found
that an injunction was necessary to prevent mass deportations
before the aliens could obtain judicial review. The certified
class consists of aliens who have had favorable administrative
determinations; that is, either the BIA or an immigration
judge has determined that they qualify for a suspension of
deportation, but the final adjudication has not yet occurred.
_________________________________________________________________
Plaintiff Carole Beltran is a 15-year old native and citizen of El Salva-
dor. After being denied asylum, she was granted deferred enforced depar-
ture. In March 1996, she moved the BIA to reopen her proceedings so that
she could apply for a suspension of deportation. That motion was granted
and Beltran had a hearing before an immigration judge on March 18,
1997.

                               1230

The court also required the plaintiffs to post a nominal bond
of $1,000 pursuant to Fed. R. Civ. P. 65(c) in the event that
the government is found to have been wrongly enjoined.

After IIRIRA became fully effective on April 1, 1997, the
defendants moved to vacate the preliminary injunction argu-
ing that the district court had lost subject matter jurisdiction
pursuant to new INA S 242(g), codified at 8 U.S.C. S 1252(g).
The court denied defendants' motion, holding that INA
S 242(g) was not intended to remove district court jurisdiction
over procedural claims arising outside of deportation proceed-
ings for which there is no other judicial review. Defendants
immediately appealed the denial.

The court modified the preliminary injunction on Septem-
ber 17, 1997, requiring defendants to provide notice to class
members when their applications for suspension of deporta-
tion are denied under IIRIRA S 309(c)(5). The court also
found that the named plaintiffs were required to exhaust their
administrative and judicial remedies, but general class mem-
bers were not. Defendants also appealed this preliminary
injunction order. We sua sponte consolidated both appeals.

II

Defendants argue that as of April 1, 1997, the district court
lost subject matter jurisdiction pursuant to INAS 242(g),
(codified at 8 U.S.C. S 1252(g) (Supp. II 1996)), which pro-
vides:

      Except as provided in this section and notwithstand-
      ing 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.

                               1231

Interpretation of this section in the context of this action
would provide an interesting question if it were one of first
impression in this circuit, but it is not. While the consolidated
appeals were pending, Walters v. Reno, 145 F.3d 1032 (9th
Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3337 (U.S.
Nov. 3, 1998) (No. 98-730), was decided. Walters  involved a
class action filed against the INS alleging a denial of due pro-
cess by inadequate notice of deportation procedures. The suit
sought injunctive relief, which the district court granted. On
appeal, the government cited 8 U.S.C. S 1252(g) [INA
S 242(g)] and, as it has in this case, challenged the district
court's subject matter jurisdiction. In rejecting this argument,
the 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] Like the class in Walters, the certified class in this case
seeks injunctive relief staying deportation pending resolution
of their constitutional claims. Like the class in Walters, "this
is not a case in which the plaintiffs have asserted a constitu-
tional challenge in order to conceal the true nature of their
claims." Id. As in Walters, the objective of plaintiffs in this
case "was not to obtain judicial review of the merits of their
INS proceedings, but rather to enforce their constitutional
rights to due process in the context of those proceedings." Id.
The government's primary jurisdictional argument in Walters,

                               1232

as here, is that "the district court did not have jurisdiction to
order any relief that interferes with its attempt to execute
deportation orders against the class members." Id. Walters
specifically rejected this contention and held jurisdiction
proper.

[2] Accordingly, because there is no principled distinction
to be made between this case and Walters on this issue, the
defendants' jurisdictional arguments are precluded and we
cannot consider them.6

III

Having resolved the district court's jurisdiction, we con-
sider the preliminary injunction order on its merits. An order
granting a preliminary injunction may be reversed only if the
district court abused its discretion, made an error of law, or
based its decision on an erroneous legal standard or on clearly
erroneous findings of fact. San Antonio Community Hosp. v.
Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230,
1233 (9th Cir. 1997). We review issues of law underlying the
preliminary injunction de novo. Id.

The traditional equitable criteria for granting preliminary
injunctive relief are: (1) a strong likelihood of success on the
merits; (2) the possibility of irreparable injury to the plaintiffs
if injunctive relief is not granted; (3) a balance of hardships
favoring the plaintiffs; and (4) advancement of the public
_________________________________________________________________
6 We are mindful that a petition for certiorari has been filed in Walters,
and that a writ of certiorari has been granted in American-Arab Anti-
Discrimination Committee v. Reno, 119 F.3d 1367 (9th Cir. 1997), cert.
granted, 118 S. Ct. 2059 (1998), the results of which may bear on this
issue. However, we note that this is an appeal from a preliminary injunc-
tion based in large measure on the irreparable hardships placed on the
plaintiffs absent injunctive relief during the pendency of the action. If
binding authority concerning these jurisdictional matters is altered during
the course of litigation, the district court will have ample opportunity to
act in accordance therewith.

                               1233

interest. Los Angeles Memorial Coliseum Commission v.
National Football League, 634 F.2d 1197, 1200 (9th Cir.
1980). A preliminary injunction is not a preliminary adjudica-
tion on the merits, but a device for preserving the status quo
and preventing the irreparable loss of rights before judgment.
Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,
1422 (9th Cir. 1984). "In this circuit, the moving party may
meet its burden by demonstrating either (1) a combination of
probable success on the merits and the possibility of irrepara-
ble injury or (2) that serious questions are raised and the bal-
ance of hardships tips sharply in its favor." Los Angeles
Memorial Coliseum Commission, 634 F.2d at 1201.

[3] The district court concluded that the plaintiffs raised
serious questions as to whether IIRIRA S 309(c)(7) limits the
number of suspensions of deportation unaccompanied by
adjustment of status, and whether the directives were properly
issued. Although we express no view on the ultimate disposi-
tion of these issues, we can readily agree that the district court
did not abuse its discretion in determining that a sufficiently
serious question existed that justified the entry of a prelimi-
nary injunction.

[4] First, there is a legitimate question concerning whether
issuance of the directives violated the Administrative Proce-
dures Act. "When a federal agency issues a directive concern-
ing the future exercise of its discretionary power, for purposes
of APA section 553, its directive will either constitute a sub-
stantive rule, for which notice-and-comment procedures are
required, or a general statement of policy, for which they are
not." Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir.
1987). Except in specified circumstances, an agency cannot
promulgate a rule without first following the APA's notice
and comment procedures. Section 553 of the APA specifically
exempts "general statements of policy" from these proce-
dures, as well as "rules of agency organization, procedure or
practice." Determining whether a directive is a substantive
rule or a general policy requires the reviewing court to exam-

                               1234

ine the amount of discretion retained by the recipients of the
directive. See Mada-Luna, 813 F.2d at 1013-14. The Creppy
and Schmidt directives were purportedly temporary and inter-
nal, but they did not leave any real discretion to the BIA
board members or the immigration judges. Whether or not the
directives constituted rules requiring notice and comment, or
merely general policy statements, is a question requiring fur-
ther examination by the district court. However, the issue is
"sufficiently serious" that we can conclude the district court
did not abuse its discretion in entering a preliminary injunc-
tion.

[5] Second, even if the directives were properly issued,
adherence to them may have violated due process under
United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260
(1954) , by interfering with the independent judgment of the
BIA in a suspension case. In deciding cases, the BIA is
required "to exercise its own judgment when considering
appeals." Id. at 266. Because of the directives, no applicant
received a suspension grant between February 13, 1997 and
October 3, 1997, when the Attorney General issued a regula-
tion allowing conditional grants contingent upon the availabil-
ity of a number. Over 3,000 decisions were withheld as a
result of the directives. See 62 Fed. Reg. 51760 (Oct. 3,
1997). Plaintiffs contend this violated due process under
Accardi; defendants claim that this was a temporary suspen-
sion of the adjudicatory process, without due process implica-
tions. We cannot, and do not, resolve this dispute. However,
it also suffices as a "sufficiently serious question" to warrant
the entry of a preliminary injunction.

[6] Third, the regulatory authority of Chairman Schmidt
and Chief Judge Creppy does not include the power to inter-
fere with the adjudicatory process. Nothing in the governing
regulations grants either the BIA Chair or the Chief Immigra-
tion Judge the power to withhold a decision, or to compel
others to do so. At best, the regulations would appear to grant
only internal supervisory authority. See 8 C.F.R. S 3.1(a)(2)

                               1235

("The Chairman [of the BIA] shall direct, supervise, and
establish internal operating procedures and policies of the
Board"); 8 C.F.R. S 3.9 (duties of the Chief Immigration
Judge include establishment of operational policy). The issue
of whether the directives were issued within regulatory
authority remains.

[7] Fourth, there is a serious question of statutory interpre-
tation. Plaintiffs contend that the language in IIRIRA
S 309(c)(7) does not actually impose a restriction on the num-
ber of deportation suspensions because the section limits the
Attorney General to granting 4,000 suspensions of deportation
and adjustments of status to permanent residence. Plaintiffs
note that status adjustment does not necessarily follow depor-
tation suspension. Thus, plaintiffs argue that if Congress
intended to limit only the number of suspensions, it could
have plainly done so. Drawing significance from the use of
the conjunction, plaintiffs claim that a statutory construction
limiting suspensions would render the phrase "and adjust-
ments of status to permanent residence" meaningless. Further-
more, they contend that new INA S 240A(b), 8 U.S.C.
S 1229b(b)(3) (1998), can arguably be read as establishing
two separate actions.

The government adamantly rejects this attempt to separate
suspensions of deportation from adjustment of status. Defen-
dants contend that adjustment has historically followed a
grant of a suspension of deportation in the past. Indeed, the
now-repealed INA section governing this procedure provided
for adjustment following cancellation of deportation. See INA
S 244, 8 U.S.C. S 1254 (1994) (repealed) ("Upon cancellation
of deportation in the case of any alien under this section, the
Attorney General shall record the alien's lawful admission for
permanent residence as of the date the cancellation of depor-
tation of such alien is made . . . ."). The new language is simi-
lar, but not identical. See INA S 240A(b), 8 U.S.C. S 1229b(b)
(1998). It provides the conditions under which the Attorney
General may cancel the removal of and adjust the status of an

                               1236

alien otherwise deportable, and does not make any real dis-
tinctions between the two procedures.

Given a colorable question of statutory interpretation, cou-
pled with precedent in the INA for distinguishing the two pro-
cedures, see 8 U.S.C. SS 1158-59 (asylum adjustments), the
district court did not abuse its discretion in finding that a suf-
ficiently serious question existed justifying entry of a prelimi-
nary injunction.

[8] The final "serious question " presented to the district
court concerned whether the directives had the effect of
applying the 4,000 annual limitation prior to the section's
effective date. Subsequent amendments to IIRIRAS 309(c)(7)
clarified that the cap did not apply to adjustments made prior
to April 1, 1997. See Nicaraguan Adjustment and Central
American Relief Act S 204(a), Pub. L. No. 105-100, 111 Stat.
2160 (Nov. 19, 1997). This clarification was not made until
November 19, 1997; in the meantime, by suspending the adju-
dicatory process, the directives had the effect of imposing the
restriction on pending cases. Thus, with the value of hind-
sight, it is clear that the directives were contrary to congres-
sional intent. However, even evaluating them in light of the
law as it stood at the time of the district court hearing, the
court did not abuse its discretion in determining this to be a
sufficiently serious issue to warrant issuance of the prelimi-
nary injunction.

[9] The district court also found that the balance of hard-
ships weighed heavily in the plaintiffs' favor. The record sup-
porting this finding is compelling. One of the plaintiffs was
suffering from cancer and risked losing any hope of life-
saving treatment if deported to Nicaragua. Another young girl
who has lived in the United States since the age of three had
already made a prima facie showing of extreme hardship if
forced to return to El Salvador, but the Creppy directive pre-
vented an immigration judge from deciding her application
before April 1. Without a preliminary injunction, the court

                               1237

found, the plaintiffs may never have an opportunity to seek
review of the actual cause of denial of their applications for
suspension of deportation.

IV

[10] Contrary to the government's assertions, the district
court did not err in requiring notice to the class. Under Fed.
R. Civ. P. 23(d)(2), the district court may make appropriate
orders requiring notice of any aspect of a class action "for the
protection of members of the class." Notice is not required in
Rule 23(b)(2) class actions. Nonetheless, the district court
amended the preliminary injunction on September 17, 1997,
and ordered the government to provide notice of the pending
action and the injunction via an inclusion into the deportation
notices sent to class members whose applications for suspen-
sion of deportation were denied under IIRIRA S 309(c)(5).
The court found that notice would not be unduly burdensome
and would prevent the irreparable harm of an erroneous
deportation.

[11] A class action plaintiff is normally expected to bear
the cost of notice to the class. Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 178-79 (1974). The Supreme Court has recog-
nized, however, that "[i]n some instances, . . . the defendant
may be able to perform a necessary task with less difficulty
or expense than could the representative plaintiff."
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356
(1978). As the plaintiffs point out, there is no real burden to
the government in providing notice because it can easily be
attached to an order denying a class member's suspension
application; the government made no presentation as to any
additional costs associated with providing this notice. The
plaintiffs also argued that notice was required to inform class
members that equitable relief may be available, and to ensure
that the INS did not mistakenly deport a class member. Plain-
tiffs also correctly note that the INS is uniquely positioned to

                               1238

ascertain class membership. Given these considerations, we
cannot say the district court erred in requiring notice.

V

The district court did not err in requiring the plaintiffs to
post a nominal bond of $1,000 pursuant to Fed. R. Civ. P.
65(c), which provides:

      Security. No restraining order or preliminary injunc-
      tion shall issue except upon the giving of security by
      the applicant, in such sum as the court deems proper,
      for the payment of such costs and damages as may
      be incurred or suffered by any party who is found to
      have been wrongfully enjoined or restrained. No
      such security shall be required of the United States
      or of an officer or agency thereof.

Our sister circuits have construed Fed. R. Civ. P. 65(c) as
investing the district court with discretion as to the amount of
security required, if any. See, e.g., Doctor's Associates, Inc.
v. Stuart, 85 F.3d 975, 985 (2d Cir. 1996) (affirming district
court's decision not to require bond); Moltan Co. v. Eagle-
Picher Industries, Inc., 55 F.3d 1171, 1176 (6th Cir. 1995)
(district court has discretion to require posting of security);
Stockslager v. Carroll Elec. Co-op. Corp., 528 F.2d 949, 951
(8th Cir. 1976) (amount of bond required upon the issuance
of a preliminary injunction vests within the sound discretion
of the trial court and will not be reversed on appeal unless
there is a clear abuse of discretion). We agree with this ratio-
nale. The district court is in a far better position to determine
the amount and appropriateness of the security required under
Rule 65, and we will review the court's determination only
for an abuse of discretion.

In this case, the court found that any cost to the govern-
ment, in the event it is found to have been wrongfully
enjoined, would be minimal. The court specifically noted the

                               1239

public interest underlying the litigation and the unremarkable
financial means of the class as a whole. The government
argued that its costs -- if forced to not deport aliens which it
would otherwise deport, and appealing this action -- were
substantial. However, defendants did not tender any evidence
on the issue. The plaintiffs noted that while they had not made
a showing of indigency, the vast majority of aliens were very
poor. Absent any showing by defendants of cost, we cannot
say the district court clearly abused its discretion in determin-
ing the bond amount.

VI

[12] Since the preliminary injunction was issued, Congress
has passed the Nicaraguan Adjustment and Central American
Relief Act ("NACARA"), Pub. L. No. 105-100, 111 Stat.
2160 (Nov. 19, 1997). Passage of NACARA was prompted in
part by the concerns underlying this action. Many class mem-
bers are potentially affected by the new continuous physical
presence requirements of IIRIRA S 309(c)(5). In Astrero, we
held that section 309(c)(5) became effective April 1, 1997,
and that individuals in deportation proceedings prior to that
date could continue to accrue credit toward the seven year
continuous physical presence requirement. 104 F.3d at 266.
Following Astrero, the BIA issued In Re N-J-B, Int. Dec.
3309 (BIA 1996) which reached the opposite conclusion. In
Re N-J-B was subsequently vacated by the Attorney General
on July 10, 1997, who concomitantly announced plans to sub-
mit clarifying legislation to Congress. The result was enact-
ment of NACARA, which amended IIRIRA S 309(c)(5) to
provide special rules regarding applications for suspension of
deportation and cancellation of removal by certain qualifying
individuals, particularly citizens of Guatemala, El Salvador,
and certain former Soviet bloc countries. Because some of the
applicants who qualify for special treatment under NACARA
are also members of the certified class, the district court may
wish to consider class composition, whether creation of sub-
classes is appropriate, and whether certain named representa-

                               1240

tives should continue in that role. NACARA does not, as the
government seems to imply, require dismissal. However, it
may require further examination by the district court.

VII

We express no opinion on the ultimate merits of this action,
but affirm the district court's entry of a preliminary injunc-
tion, which was within its jurisdiction under Walters. We hold
that the district court did not err in requiring notice to the cer-
tified class, nor in establishing the appropriate amount of
security. We remand for continuation of the litigation, and for
the district court's further examination of the class pursuant
to NACARA.

AFFIRMED AND REMANDED
_________________________________________________________________
HALL, Circuit Judge, dissenting.

I dissent because the district court lacks jurisdiction to con-
sider plaintiffs' claims under the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.
L. No. 104-208, 110 Stat. 3009, amended by Act of Oct. 11,
1996, Pub. L. No. 104-302, 110 Stat. 3656 (codified in part
at 8 U.S.C. S 1252(g) (Supp. II 1996)). At the very least, we
should defer this case pending the Supreme Court's decision
in American-Arab Anti-Discrimination Comm. v. Reno, 119
F.3d 1367 (9th Cir. 1997), cert. granted, 118 S. Ct. 2059
(1998).

The plain language of 8 U.S.C. S 1252(g) clearly deprives
the district court, and this Court, of jurisdiction over the
instant matter. The statute states in relevant part:

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

                               1241

      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).

Section 1252(g)'s plain language becomes all the more
compelling when one recalls the Supreme Court's recent
statement that " `[f]or reasons long recognized as valid, the
responsibility for regulating the relationship between the
United States and our alien visitors has been committed to the
political branches of the Federal Government. [O]ver no con-
ceivable subject is the legislative power of Congress more
complete.' " Reno v. Flores, 507 U.S. 292, 305 (1993) (quot-
ing Mathews v. Diaz, 426 U.S. 67, 81 (1976)) (internal cita-
tion and quotation omitted) (alteration in original).
Importantly, "aliens have no constitutional right to judicial
review of deportation orders." Duldulao v. INS, 90 F.3d 396,
400 (9th Cir. 1996).

The majority relies on Walters v. Reno, 145 F.3d 1032 (9th
Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3337 (U.S.
Nov. 3, 1998) (No. 98-730), to argue that section 1252(g)
does not deprive the district court of subject matter jurisdic-
tion, notwithstanding its plain language to the contrary.
Walters involved a due process challenge to the forms the INS
used in document fraud proceedings. The plaintiffs in that
case claimed that the forms did not adequately inform them
of how to request a hearing or the results of failing to request
such a hearing. See id. at 1036. In finding that it had jurisdic-
tion to decide the case, Walters relied on (1) the procedural,
not substantive, nature of the challenge, (2) the courts' prefer-
ence to retain authority to consider constitutional claims, and
(3) the fact that the claims did not arise from any" `decision
or action by the Attorney General to commence proceedings,

                               1242

[or] adjudicate cases.' " Id. at 1052 (quoting 8 U.S.C.
S 1252(g)).

None of these considerations is at issue in this case. First,
a decision on the merits of this case would actually be sub-
stantive, and not merely procedural. The district court has
found that the plaintiffs are now eligible for suspension of
deportation. The court has defined the class to include plain-
tiffs who have received favorable administrative determina-
tions, and who therefore await only the final adjudication of
their claims. See Draft Opinion, at 9. If the district court finds
that the administrative orders of Chief Immigration Judge
Creppy and Chairman Schmidt were in error, the substance of
the plaintiffs' claims will have been effectively decided. The
immigration judges will enter their final orders and suspend
the plaintiffs' deportation.

Thus, this is not like the situation in McNary, where the
Supreme Court emphasized that "the individual respondents
in this action do not seek a substantive declaration. . . .
Rather, if allowed to prevail in this action, respondents would
only be entitled to have their case files reopened and their
applications reconsidered in light of the newly prescribed INS
procedures." McNary v. Haitian Refugee Ctr., Inc., 498 U.S.
479, 495 (1991); see also Walters, 145 F.3d at 1052 (stressing
the procedural, not substantive, nature of plaintiffs' claims).

Second, this Court retains its ability to review the plaintiffs'
claims, constitutional and otherwise. The plaintiffs would pre-
sumably be able to present their arguments to the Ninth Cir-
cuit in an appeal from a final order of removal. See 8 U.S.C.
S 1252(b)(9) (Supp. II 1996); see also Naranjo-Aguilera v.
INS, 30 F.3d 1106, 1114 (9th Cir. 1994) (collecting cases sup-
porting the proposition that "[p]etitioners appealing orders of
deportation routinely bring statutory and constitutional chal-
lenges to INS regulations and policies."). Any remaining con-
stitutional claims could be reviewed in the district court via a
petition for a writ of habeas corpus. See 28 U.S.C. S 2241

                               1243

(1994); Magana-Pizano v. INS, 152 F.3d 1213, 1216 (9th
Cir.), amended by 159 F.3d 1217 (9th Cir. 1998), petition for
cert. filed, 67 U.S.L.W. 3364 (U.S. Nov. 18, 1998) (No. 98-
836) ("the district court retains jurisdiction under 28 U.S.C.
S 2241 when the petitioner has no other judicial remedy.").

Numerous other courts have held that constitutional habeas
review suffices to remove any weaknesses in the section
1252(g) process. See Henderson v. INS, 157 F.3d 106, 118
(2d Cir. 1998), petition for cert. filed sub nom. Reno v. Navas,
67 U.S.L.W. 3409 (U.S. Dec. 17, 1998) (No. 98-996) (collect-
ing cases from seven other circuits supporting the proposition
that IRRIRA's "repeal of jurisdiction suffers from no consti-
tutional infirmity because the courts retain habeas jurisdiction
under 28 U.S.C. S 2241."). Indeed, on facts quite similar to
the case at bar, at least one court has found that the availabil-
ity of habeas review removed any constitutional infirmity
from section 1252(g)'s repeal of jurisdiction. See Jean-
Baptiste v. Reno, 144 F.3d 212, 220 (2d Cir. 1998) (finding
that section 1252(g) deprived district court of jurisdiction over
plaintiffs' class-action claims that raised due process con-
cerns, but that review under 28 U.S.C. S 2241 removed any
constitutional impropriety).

Moreover, in Walters, plaintiffs were effectively deprived
of any hearing whatsoever. See Walters, 145 F.3d at 1036.
Similarly, in McNary, the Court found that plaintiffs could
receive no review of the agency action unless they were sub-
sequently apprehended and deportation proceedings were ini-
tiated. See McNary, 498 U.S. at 496. In this case, however,
plaintiffs were already in deportation proceedings and
received a hearing. The immigration judges were only to
reserve their final decision on the matter to ensure compliance
with the new immigration laws. The Board of Immigration
Appeals likewise delayed appeals only "until definitive guid-
ance is provided by the Attorney General's office. " Draft
Opinion, at 7. Review is therefore available by either an
appeal of a final removal order or, if appropriate, by a petition

                               1244

for habeas corpus. See 8 U.S.C. S 1252(b)(9); Magana-
Pizano, 152 F.3d at 1216.

Third, unlike Walters, which involved a challenge to the
forms used by the INS, this case directly involves a "decision
or action by the Attorney General to commence proceedings,
[or] adjudicate cases." 8 U.S.C. S 1252(g). This suit involves
a challenge to the decision of the Attorney General's dele-
gates to reserve final adjudications of grants of suspension of
deportation pending further guidance from the Attorney Gen-
eral. The facts of this case are therefore squarely within the
terms of section 1252(g).

It is also important to note that Walters may have erred in
relying so heavily on McNary in interpreting section 1252(g).
McNary specifically stated that if Congress had meant to limit
the review provisions of the INS statute at issue in that case,
it could easily have used broader language that included "all
causes . . . arising under any of the provisions " in that statute.
McNary, 498 U.S. at 494 (internal quotation omitted) (alter-
ation in original). Here, Congress did use broader language.
Section 1252(g) states that "[e]xcept as provided in this sec-
tion and notwithstanding any other provision of law, no court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien." 8 U.S.C. S 1252(g). It is difficult to
fathom how Congress could have more clearly conveyed its
intent.

As a result, the majority's attempt to reconcile the facts of
this case with Walters is unavailing. The majority appears to
imply that whenever a class of plaintiffs seeks an injunction
asserting some form of a constitutional due process claim, and
the government attempts to invoke the clear mandate of sec-
tion 1252(g), the district court should automatically have
jurisdiction. See Draft Opinion, at 11-12. But this conclusion
ignores the fact that action by the district court in this case
would be more of a substantive, instead of procedural, nature;
that adequate avenues of review still remain; and that section

                               1245

1252(g) clearly precludes general review of the Attorney Gen-
eral's decision to adjudicate cases.

At the very least, we should defer this case until the
Supreme Court issues a decision in American-Arab, argued on
November 4, 1998. The Court granted a writ of certiorari to
consider "Whether, in light of the Illegal Immigration Reform
and Immigrant Responsibility Act, the courts below had juris-
diction to entertain respondents' challenge to the deportation
proceedings prior to the entry of a final order of deportation?"
Reno v. American-Arab Anti-Discrimination Comm., 118 S.
Ct. 2059, 2059 (1998). The Court's resolution of this matter
should resolve any remaining doubts regarding the question of
jurisdiction under section 1252(g).

For the foregoing reasons, I respectfully dissent.

                               1246


					


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