No. 98-703
In the Supreme Court of the United States
OCTOBER TERM, 1998
JANET RENO, ET AL., PETITIONERS
v.
MARIA WALTERS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-730
JANET RENO, ET AL., PETITIONERS
v.
MARIA WALTERS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
1. Jurisdiction. We explain in our certiorari petition (at 14-16) that the
district court lacked jurisdiction to enjoin respondents' deportation because
of 8 U.S.C. 1252(g) (Supp. II 1996). That Section provides that, notwithstanding
any other provision of law, no court (other than a court of appeals on petition
for review of a removal order) "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 proceedings, adjudicate cases,
or execute removal orders against any alien." Respondents' principal
argument (Br. in Opp. 16) is that this case does not fall within Section
1252(g)'s bar on district court jurisdiction because they are supposedly
challenging, not their deportation proceedings, but rather the separate
document-fraud proceedings commenced against them under 8 U.S.C. 1324c (1994
& Supp. II 1996). That contention cannot withstand scrutiny.
Respondents' case has always been predicated on the immigration-related
consequences of a final document-fraud order entered under Section 1324c-namely,
that such an order entered against an alien renders the alien deportable
and inadmissible. Respondents have not alleged, for example, that the notice
forms initiating the Section 1324c order were invalid because they failed
adequately to inform the recipient that a fine would result from entry of
a document-fraud order (cf. Br. in Opp. 22). Rather, they have contended
that the notice forms commencing Section 1324c proceedings are inadequate
because they fail adequately to inform the recipient that deportation or
exclusion will result from entry of a final order. See Resp. C.A. Br. 17-25.
Respondents therefore requested, in the prayer for relief in their complaint,
that the district court enjoin the Immigration and Naturalization Service
(INS) from relying on any final Section 1324c order as basis for an order
of deportation or exclusion, see C.A.E.R. 25, ¶ 3, and the district
court responded by prohibiting the INS from "enforcing or taking any
action" against respondents in reliance on a Section 1324c order, see
Pet. App. 94a.
The district court's injunction thus runs afoul of Section 1252(g) in that
it prevents the INS from deporting or excluding respondents. When the Attorney
General acts to remove an alien from the United States because that alien
has been found to have committed document fraud in violation of Section
1324c, she "commence[s] proceedings, adjudicate[s] cases, or execute[s]
a removal order[]" against that alien, within the meaning of Section
1252(g). Respondents' case is predicated on the theory that such a removal
is a deprivation of liberty without due process of law because they were
not adequately apprised that their removal would result from their waiver
of, or failure to request, a Section 1324c hearing. But if that is so, then
it must be equally true that their claim to prevent such a removal, based
on the contention that the removal would be an unconstitutional deprivation
of liberty, is a "claim arising from" the action of the Attorney
General to commence proceedings, adjudicate cases, or execute removal orders
under the Immigration and Nationality Act.1
Respondents suggest (Br. in Opp. 22) that not all of the class members'
claims may fall within the terms of Section 1252(g) because some class members
may accept voluntary departure rather than go through removal proceedings,
and the INS may neglect to pursue removal proceedings against others; thus,
they argue, such aliens would not be seeking to challenge their removal
proceedings. As an initial matter, we note that none of the named class-action
plaintiffs is in either situation, and so it is unclear how the named respondents'
maintenance of a class action on behalf of such persons would be proper.2
See Fed. R. Civ. P. 23(a)(3) (requiring that claims or defenses of class
representatives be "typical of the claims or defenses of the class").
In any event, respondents' objection is without substance, because the district
court's injunction would plainly prevent the INS from relying on a Section
1324c order in removal proceedings if the INS either (a) sought to remove
such an alien, if it has not done so already, or (b) sought to remove an
alien who had accepted voluntary departure, if such an alien ever attempted
to return to the United States, see 8 U.S.C. 1225(b)(2)(A) (Supp. II 1996).3
Thus, even as to those class members who have not yet been placed in removal
proceedings, the district court's injunction contravenes Section 1252(g).
Respondents also suggest (Br. in Opp. 20) that our jurisdictional argument
is unlikely to have relevance as to removal proceedings commenced after
April 1, 1997, when the permanent rules of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
Div. C, 110 Stat. 3009-546, came into effect. Nothing in the district court's
injunction, however, suggests that it does not apply to removal proceedings
that the INS might seek to commence after April 1, 1997, and it is difficult
to believe that respondents would agree to such a suggestion. Further, the
jurisdiction-limiting provision of Section 1252(g) took effect immediately
on IIRIRA's enactment on September 30, 1996, and continued in effect without
change after April 1, 1997. And although respondents state (see Br. in Opp.
20 n.18) that they based jurisdiction in part on 8 U.S.C. 1329 (1994), which
was amended by IIRIRA, they also alleged jurisdiction based on 28 U.S.C.
1331, which was not amended by IIRIRA.
Finally, respondents argue (Br. in Opp. 16-19) that the Court's decision
in Reno v. American-Arab Anti-Discrimination Committee (AADC), No. 97-1252
(argued Nov. 4, 1998), which also involves Section 1252(g), is unlikely
to have implications for this case. They argue (Br. in Opp. 18) that neither
party to AADC disputes that the respondents in that case are challenging
their removal proceedings within the meaning of Section 1252(g), and therefore
AADC does not involve the scope of that Section. The scope of Section 1252(g)
is at issue in AADC, however, and the Court's construction of it could affect
the outcome of this case. The court of appeals in AADC concluded that Section
1252(g) by its own terms did not apply to bar jurisdiction in that case,
for two reasons. First, it concluded that Section 1252(g) incorporates by
reference 8 U.S.C. 1252(f) (Supp. II 1996) (prohibiting classwide injunctions
in immigration cases), which it read as allowing the district courts to
take jurisdiction over cases involving "individual aliens against whom
deportation proceedings have been initiated." American-Arab Anti-Discrim.
Comm. v. Reno, 119 F.3d 1367, 1372 (9th Cir. 1997), cert. granted, No. 97-1252
(June 1, 1998). Second, it relied (ibid.) on the principle that jurisdiction-limiting
statutes should be interpreted to preserve the courts' authority to consider
constitutional claims. And the court of appeals in this case relied on its
decision in AADC to support its jurisdiction (Pet. App. 45a). Should this
Court in AADC reject the Ninth Circuit's rationales for its construction
of Section 1252(g) and conclude that the Section must be interpreted according
to its plain terms -requiring that challenges to deportation orders be heard
only in the courts of appeals on petitions for review-then a central basis
for the court of appeals' jurisdictional holding in this case will be eliminated.
2. Merits. As we explain in our certiorari petition (at 18-19), the court
of appeals' holding that the notice provided to respondents was inadequate
was based centrally on its conclusion (Pet. App. 21a-23a) that those forms
were inadequate under the balancing test of Mathews v. Eldridge, 424 U.S.
319, 335 (1976); see also Resp. C.A. Br. 11-31 (defending district court's
injunction under Mathews v. Eldridge). But as we have further explained,
that decision may well be undermined by this Court's decision this Term
in City of West Covina v. Perkins, No. 97-1230 (argued Nov. 3, 1998), in
which we have argued that the Mathews test is inapplicable to measuring
the adequacy of the notice that must be provided for a deprivation of a
property or liberty interest.
Respondents maintain (Br. in Opp. 25-26) that City of West Covina is irrelevant
here because it involves the adequacy of post-deprivation notice, whereas
this case involves a challenge to pre-deprivation notice. Our argument in
City of West Covina, however, is not limited to the position that Mathews
does not apply in the post-deprivation situation; we point out in our brief
in City of West Covina (at 25) that, in Memphis Light, Gas & Water Division
v. Craft, 436 U.S. 1 (1978), a pre-deprivation case, the Court did not rely
on Mathews when it evaluated the adequacy of the notice sent to the utility's
customers, but rather relied on notice cases such as Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306 (1950). See Memphis Light, 436
U.S. at 13-14.
Respondents also quote selectively (Br. in Opp. 26) from our brief in City
of West Covina, where, citing Memphis Light, we state (at 24) that, in the
pre-deprivation context, notice about available procedures for challenging
governmental action "may often be necessary to make the opportunity
for a hearing a meaningful one." But as we state further, "[i]n
Memphis Light, for example, customers were threatened with an immediate
termination of service, 'the continuity of which [was] essential to health
and safety.'" 97-1230 U.S. Amicus Brief at 24 (quoting Memphis Light,
436 U.S. at 15 n.16). In this case, by contrast, persons served with Section
1324c notices have 60 days in which to decide whether to contest the document-fraud
allegations against them, as both the forms and published regulations make
clear. See C.A.E.R. 598, 600; 8 C.F.R. 270.1-.3. Thus, recipients have sufficient
time in which to make inquiries about the legal implications of waiving,
or failing to request, a hearing on the Section 1324c charges. Furthermore,
Memphis Light found a violation of due process in the utility's failure
to inform its customers about procedures to challenge the proposed termination
of utility service, when information about those procedures was not publicly
available. See 436 U.S. at 15. That decision did not purport to establish
a requirement that persons must be informed of the legal consequences of
their failure to invoke a particular procedure, when those consequences
are explained fully in public statutes.
Finally, respondents argue (Br. in Opp. 27) that the deportation consequences
of final orders in Section 1324c proceedings cannot be considered collateral
to those orders because both sets of proceedings are initiated by the INS.
But as respondents elsewhere emphasize (id. at 1-2), Section 1324c proceedings
and deportation proceedings are entirely separate; the former are held before
administrative law judges (ALJs) and are reviewed by the Office of the Chief
Administrative Hearing Officer, whereas the latter are heard by immigration
judges and are reviewed by the Board of Immigration Appeals. An ALJ's determination
that an alien has committed document fraud in violation of Section 1324c
does not automatically lead to the alien's deportation, just as an alien's
conviction and sentencing for a crime rendering him deportable and ineligible
for discretionary relief from deportation does not. Cf. Pet. App. 3a (court
of appeals' conclusion that deportation is "automatic" when alien
is found to have violated Section 1324c). In both circumstances the INS
must exercise its discretion to initiate deportation proceedings against
the alien.
* * * * *
For the foregoing reasons, and for those set forth in the petition, the
petition for a writ of certiorari should be held for the Court's decisions
in Reno v. American-Arab Anti-Discrimination Committee, No. 97-1252, and
City of West Covina v. Perkins, No. 97-1230, and then disposed of as appropriate
in light of the decisions in those cases.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DECEMBER 1998
1 Respondents argue (Br. in Opp. 22-23) that they did not challenge only
the immigration-related consequences of the Section 1324c order, and that
they alleged, for example, that the forms commencing Section 1324c proceedings
failed to provide adequate notice because they were served only in English,
used unduly complicated language, and were served in tandem with forms used
to commence deportation proceedings. The difficulty with that argument is
that the allegedly defective forms have no constitutional significance unless
they affect a liberty or property interest under the Due Process Clause.
"Process is not an end in itself. Its constitutional purpose is to
protect a substantive interest to which the individual has a legitimate
claim of entitlement." Olim v. Wakinekona, 461 U.S. 238, 250 (1983).
Thus, without a claim that the allegedly defective forms impaired some ultimate
liberty or property interest, "there is no such interest for process
to protect." Ibid. Moreover, in their brief to the court of appeals,
respondents, in relying on the balancing test of Mathews v. Eldridge, 424
U.S. 319, 335 (1976), made clear that the "private interest" they
were seeking to vindicate (in other words, the liberty interest at stake)
was the interest in avoiding deportation. See Resp. C.A. Br. 11-13; see
id. at 21-29 (discussing risk of "erroneous deprivation" in terms
of potentially erroneous deportation).
2 We are informed by the INS that respondent Maria Walters was served with
an Order to Show Cause based on her overstaying her visa; respondents Caesar
Corona-Alvarez, Antonio Alvarez, Ninfa de Adames, and Camila Garcia-Cruz
were served with Orders to Show Cause based on their entering the United
States without inspection; and respondent Omar Kayyam Meziab was deported
from the United States in 1994 based on his overstay. Respondents William
Walters, Guadalupe Adames, and Leslie Meziab are United States citizens
who sued only as spouses of the above-named individual respondents, see
C.A.E.R. 3-4; their claims were dismissed by the district court for lack
of standing, see id. at 38-39, and that dismissal was not disturbed in the
court of appeals.
3 It is difficult to see in any event how a due process claim could be maintained
on behalf of an alien who has accepted voluntary departure, since aliens
abroad-especially aliens like the individual respondents who have not previously
been admitted for lawful permanent residence-ordinarily have no liberty
interest in their admission to the United States. See Fiallo v. Bell, 430
U.S. 787, 792-793 (1977); United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 542 (1950). A permanent resident alien returning to the United
States and detained at the border may have a right to due process in her
removal proceedings there, see Landon v. Plasencia, 459 U.S. 21, 32-35 (1983),
but any liberty interest of an alien formerly present here unlawfully who
has accepted voluntary departure and thereafter attempts to gain readmission
to the United States would not include a right to challenge the factors
that might have previously motivated her to waive a Section 1324c hearing
and accept voluntary departure from the United States. An alien who wishes
to preserve a due process claim similar to that presented in this case may,
when removal proceedings are commenced against her, elect not to accept
voluntary departure, but choose instead to pursue such removal proceedings,
raising her due process claim along with any other challenges and defenses
she may have to the charge of deportation against her. Cf. C.A.E.R. 19 (complaint,
noting that respondent Garcia-Cruz initially accepted voluntary departure
but then, after consulting with an attorney, requested a deportation hearing).
Once a final removal order is entered against that alien, she may challenge
such an order directly by filing a petition for review in the court of appeals,
pursuant to 8 U.S.C. 1252(a) (Supp. II 1996).