Loa-Herrera v. Department of Homeland Security , 239 F. App'x 875 ( 2007 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FILED
June 5, 2007
Charles R. Fulbruge III
No. 06-40561 Clerk
JULIO LOA-HERRERA; RAMIRO CANTU-GRACIA; JUANA GUZMAN-ASCENCIO;
EFRAIN MERINO; ARTURO LOZANO-LOPEZ; ALEJANDRA GUTIERREZ; JUAN
SANCHEZ-SALINAS; ADELITA CANTU DE CABRERA
Plaintiffs - Appellants
v.
DEPARTMENT OF HOMELAND SECURITY, Harlingen Division
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas, Brownsville
USDC No. 1:94-CV-215
Before KING, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
The plaintiff class, which consists of lawful permanent
residents facing pending deportation or exclusion proceedings,
appeals the district court’s grant of summary judgment for the
government, contending that the court improperly limited the
scope of proceedings on remand from their prior appeal, Loa-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Herrera v. Trominski, 231 F.3d 984 (5th Cir. 2000). For the
following reasons, we AFFIRM in part, VACATE in part, and REMAND
for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff class includes all lawful permanent residents
(“LPRs”) who are faced with pending deportation or exclusion
proceedings in which no final order of deportation or exclusion
has yet been entered, who are not presently held in detention,
and whose immigration documents have been confiscated by the
Harlingen, Texas, office of the Department of Homeland Security
(“DHS”).1 Plaintiffs’ class action challenges DHS’s practice of
seizing an LPR’s laminated Form I-151 or I-551 (“green card”) and
issuing in its place an I-94 “Temporary Evidence of Lawful
Permanent Resident” form with extraneous notations revealing that
the holder is facing removal proceedings. Plaintiffs also
contend that DHS improperly confiscates other government
documents from LPRs, such as driver’s licenses and social
1
Many of the events of this case involved the Immigration
and Naturalization Service (“INS”). However, as of March 1,
2003, the INS’s administrative, service, and enforcement
functions were transferred to the newly formed DHS. See Zaidi v.
Ashcroft, 374 F.3d 357, 358 n.1 (5th Cir. 2004). To avoid
confusion, we will refer solely to DHS as the relevant government
agency in this opinion.
2
security cards, and fails to provide LPRs with notice and a
hearing to determine whether they should be paroled within the
United States pending a final determination in their removal
proceedings.
In January 1999, the district court granted injunctive
relief to plaintiffs, issuing an order regulating DHS’s
confiscation of green cards and issuance of I-94 forms, requiring
DHS to afford parole hearings to LPRs placed under expulsion
proceedings, and prohibiting DHS from confiscating other
government documents from LPRs absent a good faith belief that
the documents are bona fide evidence of unlawful conduct.2 This
2
The order provides:
1. Pursuant to the intent of the McNary Memorandum,
Defendants shall only confiscate the laminated Form
I-151 or I-551 of a non-arriving lawful permanent
resident placed under expulsion proceedings, and
not held in custody, when the INS District
Director, chief patrol agent, or officer in charge
determines that a temporary document is needed for
a justifiable, particularized reason, based on the
individual facts of the case. When such a
resident's green card is confiscated, Defendants
shall provide temporary evidence of lawful
3
court vacated that order in October 2000 and remanded for further
permanent resident status, which shall be prepared
in accordance with Operation Instruction 264.2, and
shall be issued for at least six months, and shall
contain a notation that it is renewable.
2. When a permanent resident applying for admission
to the U.S. is placed under expulsion proceedings,
Defendants may confiscate the resident's green
card, but shall afford said person a prompt hearing
before an Immigration Judge, in accordance with 8
C.F.R. § 236.1, to determine whether he or she
should be paroled into the U.S. during the pendency
of said proceedings, and if so, under what
conditions. If the person is so paroled, and not
held in custody, Defendants shall provide a
substitute document evidencing permanent resident
status, and entitlement to be employed in the U.S.;
and
3. Defendants shall not confiscate any other
lawfully issued documents from permanent residents,
absent a good faith belief that such documents
constitute bona fide evidence of unlawful conduct.
4
proceedings. Loa-Herrera v. Trominski, 231 F.3d 984, 987 (5th
Cir. 2000). Specifically, this court held, inter alia, that the
district court improperly relied on an internal government policy
memorandum in granting plaintiffs relief on the question of
confiscation and issuance of immigration documents, and we
remanded “so the [district] court can determine whether an
injunction is appropriate in light of” 8 C.F.R. § 264.5(g)
(2000). Id. at 989. This court further noted the government’s
claim that the district court failed to give the government an
opportunity to present argument before issuing its order, and we
observed that on remand, DHS “assuredly will have ample
opportunity to press any additional legal or factual arguments it
wishes to make and thereby to cure any procedural defects
regarding the order.” Id. at 988. We also held that the
district court lacked jurisdiction to adjudicate deprivations of
plaintiffs’ rights to parole under 8 U.S.C. § 1226(e).
On remand, plaintiffs initially sought to obtain additional
discovery on the parole question but were denied when the
district court granted the government’s motion for a protective
order. The district court also denied plaintiffs’ motion for
leave to amend the pleadings. In September 2002, the magistrate
judge determined that two issues remained on remand: first,
whether the manner in which DHS exercises its parole authority
with respect to LPRs who were not arrested on a warrant is
constitutional, and second, whether certain legal authorities
5
limit DHS’s ability to place notations on temporary green cards
that disclose personal information. After briefing, the
magistrate judge recommended that summary judgment be granted in
favor of the government on the first issue, finding that
plaintiffs’ challenge on the parole issue was foreclosed by
Supreme Court precedent. The judge further recommended that
summary judgment be granted in favor of plaintiffs on the second
issue, determining that the placement of extraneous notations on
immigration documents issued per 8 C.F.R. § 264.5(g) violates
LPRs’ confidentiality rights under 8 U.S.C. § 1304(b).
In February 2006, the district court declined to adopt in
part and modified in part the magistrate judge’s recommendation.
On the parole claim, the district court found that “[t]he Fifth
Circuit did not remand any portion of this issue to this Court”
and held that it therefore did not have jurisdiction to consider
additional arguments on the parole issue. With regard to the
extraneous notations claim, the district court construed the sole
issue on remand as whether an injunction was appropriate under
the terms of 8 C.F.R. § 264.5(g) and held that the provision does
not prohibit notations on the documents. Accordingly, the court
granted summary judgment for the government and denied the
plaintiffs’ sought injunction. The court did not explicitly
address the third issue from the original order, which was
whether DHS improperly confiscates other government documents
from plaintiffs.
6
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, viewing all
evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor. See
Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.
2000). “Summary judgment is proper when the evidence reflects no
genuine issues of material fact and the non-movant is entitled to
judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)).
The denial of a preliminary or permanent injunction is reviewed
for abuse of discretion. See Speaks v. Kruse, 445 F.3d 396, 399
(5th Cir. 2006); Test Masters Educ. Servs., Inc. v. Singh, 428
F.3d 559, 576 (5th Cir. 2005). Moreover, “[w]e review de novo a
district court's interpretation of our remand order, including
whether the law-of-the-case doctrine or mandate rule forecloses
any of the district court's actions on remand.” United States v.
Pineiro, 470 F.3d 200, 204 (5th Cir. 2006) (italics omitted).
III. DISCUSSION
Plaintiffs contend that the district court improperly
limited proceedings on remand in three ways. First, plaintiffs
argue that the panel in the first appeal relied on an erroneous
premise in disposing of their parole claim and that the district
court thus erred in refusing to reconsider the claim. They also
contend that the district court erred in limiting its analysis on
the extraneous notations issue to only 8 C.F.R. § 264.5(g),
7
urging that the court should have also considered the effect of 8
U.S.C. § 1304(b) and the Privacy Act, 5 U.S.C. § 552a(b).
Finally, plaintiffs object to the district court’s failure to
address the legality of DHS’s practice of confiscating other
government documents, a claim that plaintiffs believe was not
disposed of in their prior appeal.
“This court has a limited scope of review after remand.”
Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 476 (5th
Cir. 2006). On a second appeal following remand, we must
consider whether the court below reached its decision in due
pursuance of our previous opinion and mandate, Volk v. Gonzalez,
262 F.3d 528, 533 (5th Cir. 2001), and “[t]he district court's
statements about our prior opinion and that opinion's binding
effect on the district court are properly analyzed under the law
of the case doctrine.” United States v. Elizondo, 475 F.3d 692,
695 (5th Cir. 2007). Under this doctrine, “an issue of law or
fact decided on appeal may not be reexamined either by the
district court on remand or by the appellate court on a
subsequent appeal.” United States v. Becerra, 155 F.3d 740, 752
(5th Cir. 1998) (internal quotation marks omitted) (quoting Ill.
Cent. Gulf R.R. Co. v. Int’l Paper Co., 889 F.2d 536, 539 (5th
Cir. 1989)), abrogated on other grounds as recognized by United
States v. Farias, 481 F.3d 289, 291-92 (5th Cir. 2007). “This
prohibition covers issues decided both expressly and by necessary
implication, and reflects the jurisprudential policy that once an
8
issue is litigated and decided, ‘that should be the end of the
matter.’” Pineiro, 470 F.3d at 205 (quoting United States v.
Lee, 358 F.3d 315, 320 (5th Cir. 2004)) (internal quotation marks
omitted). The mandate rule is a corollary of this doctrine and
provides “that a lower court on remand must implement both the
letter and spirit of the appellate court’s mandate” and may not
deviate from the directives of that court. Becerra, 155 F.3d at
753 (internal quotation marks, alteration marks, and citation
omitted).
A. Parole
Plaintiffs concede that the mandate rule generally bars
reconsideration of their parole claim, but contend that
exceptions to the rule spare them this consequence. “Three
exceptions to the imposition of this rule are recognized: (1)
[i]ntroduction of evidence at a subsequent trial that is
substantially different; (2) an intervening change in controlling
authority; and (3) a determination that the earlier decision was
clearly erroneous and would work a manifest injustice.” Pineiro,
470 F.3d at 205-06. Plaintiffs argue that the second and third
exception apply here.
With regard to the clear error and manifest injustice
exception, plaintiffs argue that the panel in their first appeal
relied on an error in determining that 8 U.S.C. § 1226(e) barred
jurisdiction over their parole claims. According to plaintiffs,
9
they never invoked § 1226 as the governing authority, and the
government is to blame for representing to this court that § 1226
was the relevant statute permitting parole of the LPRs involved
in this class action. The statute authorizes, inter alia,
conditional parole of LPRs arrested “[o]n a warrant issued by the
Attorney General,” 8 U.S.C. § 1226(a), and plaintiffs point out
that 8 U.S.C. 1182(d)(5) governs discretionary parole of arriving
aliens who were not arrested, such as the LPRs in the plaintiff
class. Because § 1182(d)(5) is not subject to the jurisdictional
bar of § 1226(e), plaintiffs argue that they are entitled to
pursue their constitutional claims related to parole under
§ 1182(d)(5).
The government now acknowledges that § 1182(d)(5) is the
proper mechanism for parole of the class members in this case,
but argues that the prior appeal’s focus on § 1226 originated
from plaintiffs, as the district court’s original order on the
parole issues, which was drafted by plaintiffs, required parole
hearings “in accordance with 8 C.F.R. § 236.1.” The government
observes that the portions of that provision detailing an
immigration judge’s authority with regard to aliens in custody is
based in the authority granted by 8 U.S.C. § 1226, which is why
the prior appeal’s parole inquiry centered on that provision.
Assuming arguendo that the previous panel’s reliance on
§ 1226 was clearly erroneous, we disagree with plaintiffs’
contention that it caused a manifest injustice. In response to
10
the government’s contention in the prior appeal that § 1226 was
applicable, plaintiffs only responded that the relevant parole
authority stemmed instead from 8 U.S.C. § 1225(b)(2)(C). We
rejected this contention because § 1225(b)(2)(C) “only authorizes
the Attorney General to return an applicant for admission to
Mexico pending the exclusion proceedings,” whereas § 1226 relates
to parole within the United States. Loa-Herrera, 231 F.3d at
991. Nowhere in their brief did plaintiffs cite § 1182(d)(5),
much less contend that the § 1226(e) jurisdictional bar did not
apply to that statutory provision. Plaintiffs had the motivation
and the opportunity to respond to the government’s § 1226(e)
argument by citing § 1182(d)(5) as the proper authority, and we
decline to revisit the prior panel’s conclusions merely because
plaintiffs have thought of better arguments after the disposition
of their parole claim. Cf. United States v. Becerra, 155 F.3d at
755-56 (finding no manifest injustice “where the party claiming
injustice had all the means and incentive to provide the relevant
information in the first appeal”); Lyons v. Fisher, 888 F.2d
1071, 1075 (5th Cir. 1989) (declining to find manifest injustice
where the party claiming injustice failed to adduce the relevant
evidence before the first appeal “despite his having both the
reason and opportunity to do so”). The circumstances in this
case simply do not rise to the “extraordinary level” required to
11
find manifest injustice.3 Becerra, 155 F.3d at 755-56.
We also disagree with plaintiffs’ contention that the
“intervening change in controlling authority” exception to the
law-of-the-case doctrine is applicable here. Plaintiffs argue
that recent Supreme Court cases hold that constitutional
challenges to the statutory framework detailed in § 1226 are not
barred by § 1226(e). See Demore v. Kim, 538 U.S. 510, 516-17
(2003); Zadvydas v. Davis, 533 U.S. 678, 688 (2001). But even if
plaintiffs are correct, they now clarify that their challenge is
to the exercise of the parole authority detailed in § 1182(d)(5),
not § 1226. Accordingly, any change in the law governing
challenges to § 1226 is irrelevant to the arguments that
plaintiffs seek to pursue.
We therefore affirm the district court’s grant of summary
judgment on the parole claim.
B. Extraneous Notations
For purposes of the extraneous notations claim, the prior
3
Moreover, we have recognized that “courts rarely invoke
this exception to the law of the case doctrine and when they do,
it is because of post-decision changes in evidentiary facts or in
the applicable law and not because the subsequent panel disagreed
with the earlier panel's legal conclusions.” Af-Cap Inc. v.
Republic of Congo, 383 F.3d 361, 367 n.6 (5th Cir. 2004).
Neither of these circumstances exists here.
12
panel remanded “so the court can determine whether an injunction
is appropriate in light of § 264.5(g).” Loa-Herrera, 231 F.3d at
989. The district court construed this mandate narrowly, looking
only at whether the terms of § 264.5(g) proscribe extraneous
notations on the relevant immigration documents. Guided by the
prior panel’s observation that “[t]he regulation plainly does not
restrict [DHS] from attaching additional notations,” id.
(emphasis omitted), the district court granted summary judgment
for the government. Plaintiffs argue that the district court
excessively limited the scope of proceedings on remand and should
have considered their claims that extraneous notations are barred
by other legal authority, such as 8 U.S.C. § 1304(b) and the
Privacy Act, 5 U.S.C. § 552a(b).
We agree with plaintiffs that the proper scope of remand was
broader than the district court construed it to be. When our
court analyzed the legal authority regulating issuance of
temporary documents to LPRs in exclusion and deportation
proceedings, remand was required because the district court had
improperly relied on an internal government policy memorandum
instead of § 264.5(g), a regulation that was cited by neither the
district court nor any party. Although the mandate required
consideration of plaintiffs’ sought injunction “in light of”
§ 264.5(g), we do not read this as restricting the inquiry on
remand solely to the question of whether the terms of § 264.5(g)
prevent DHS from including extraneous notations on the temporary
13
documents. Rather, we read the mandate as directing the district
court to determine whether an injunction is appropriate on the
grounds proffered by plaintiffs in support of the injunction,
given that § 264.5(g) regulates issuance of the temporary
documents instead of the internal government policy memorandum on
which the district court previously relied.
This reading of the mandate is confirmed by the panel’s
observations regarding the scope and meaning of § 264.5(g), which
were meant to guide the district court on remand. Our court
recognized that § 264.5(g) does not prohibit the placement of
extraneous notations on temporary immigration documents and that
“[a]bsent any legal authority to the contrary,” the district
court may not interfere with the Attorney General’s statutory
discretion as expressed in the terms of the regulation. Loa-
Herrera, 231 F.3d at 989-90. The panel plainly expected the
district court to consider whether other legal authority
interferes with § 264.5(g) and to deny the sought injunction if
no such authority is identified. Consideration of the injunction
“in light of” § 264.5(g) would be incomplete if plaintiffs were
unable to challenge the legality of actions taken pursuant to
that regulation.
Accordingly, we vacate the district court’s grant of summary
judgment on the temporary documents issue and remand so that the
court can determine whether an injunction is appropriate given
the requirements of § 265.5(g), with consideration devoted to
14
whether any other legal authority contravenes the Attorney
General’s statutory discretion to balance the interests of LPRs
and employers as reflected in § 264.5(g). See Loa-Herrera, 231
F.3d at 989-90.
C. Other Government Documents
As plaintiffs point out, the prior panel vacated the
district court’s entire order. Although the panel’s opinion
explicitly described the portion of the district court’s order
prohibiting DHS from confiscating other government documents from
LPRs under certain circumstances, the opinion was not explicit
about what should be done on remand with that portion of the
order. The plaintiffs urge that we reinstate it.
Although the prior panel’s mandate did not specifically
order the district court to consider plaintiffs’ claim regarding
the confiscation of other government documents, the scope of
remand did not exclude its consideration either. In vacating the
entire order and remanding to give the government an opportunity
to press its legal and factual arguments against the order——an
opportunity that the government claimed it was denied the first
time around——the panel implicitly permitted the entire order be
considered again except as otherwise mandated by the opinion.
See Loa-Herrera, 231 F.3d at 988. And while the panel disposed
of the aspects of the order involving plaintiffs’ parole claim
and directed the appropriate inquiry on the extraneous notations
15
claim, the claim with respect to the other government documents
was unaddressed.
On remand, the district court did not explicitly address
this claim, and it is unclear whether the court believed that it
was prevented from doing so under the terms of the mandate or
whether the court disposed of the claim for some other reason.
We therefore vacate the district court’s order to the extent that
it finds the claim outside of the scope of remand, and we remand
for the district court’s consideration of plaintiffs’ sought
injunction concerning the confiscation of other government
documents.4
We also note that on remand, the government remains free to
“press any additional legal or factual arguments it wishes to
make,” both with respect to the extraneous notations claim and
the other government documents claim, as provided in the previous
mandate. See Loa-Herrera, 231 F.3d at 988.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment to the government on the parole issue,
VACATE the grant of summary judgment on the extraneous notations
4
Although the government asks this court to hold that the
claim was not properly pled by the plaintiffs, such an argument
would be more appropriately presented to the district court on
remand.
16
and other government documents issues, and REMAND for
consideration of the extraneous notations and other government
documents claims as specified in this opinion.
17