Fajardo Sotelo v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO FAJARDO SOTELO; PRISCA 
RAMIREZ ALEMAN; YADIRA BETZAVE No. 03-74083
FAJARDO ALEMAN, Agency Nos.
Petitioners,
v.  A72-538-378
A72-538-379
ALBERTO R. GONZALES, Attorney A72-538-380
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 16, 2005—Pasadena, California
Filed October 21, 2005
Before: Jerome Farris, David R. Thompson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Farris
14449
14452 SOTELO v. GONZALES
COUNSEL
Murray D. Hilts, San Diego, California, for the petitioners-
appellants.
S. Nicole Nardone and Leslie McKay, United States Depart-
ment of Justice, Civil Division, Office of Immigration Litiga-
tion, Washington, D.C., for the respondent-appellee.
OPINION
FARRIS, Circuit Judge:
Petitioners challenge the Board of Immigration Appeals’
denial of their motion to reopen deportation proceedings. The
motion was made in an attempt to avail themselves of the
class action settlement approved in Barahona-Gomez v. Ash-
croft, 243 F. Supp. 2d 1029 (N.D. Cal. 2002). That settlement
permitted eligible immigrants to apply for suspension of
deportation under the law as it existed prior to the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009, as amended by
Pub. L. No. 104-302, 110 Stat. 3656 (1996) (IIRIRA). The
record indicates that petitioners are not Barahona-Gomez
class members and therefore are not entitled to this relief. The
BIA did not err in denying their motion to reopen.
I
Petitioners Sergio Fajardo Sotelo, his wife Prisca Ramirez
Aleman, and their daughter Yadira Betzave Fajardo Aleman,
SOTELO v. GONZALES 14453
all natives and citizens of Mexico, entered the United States
without inspection in August 1989. Less than six years later,
on March 10, 1995, they were served with an Order to Show
Cause and charged with entering the country without inspec-
tion. Deportation proceedings were commenced against them.
Petitioners conceded deportability and subsequently applied
for asylum and withholding of removal.
Following a November 1995 hearing, an Immigration
Judge denied petitioners’ application. A timely appeal was
filed with the BIA on December 8, 1995. On February 11,
1998 the BIA affirmed the IJ’s decision and dismissed the
appeal. Review of the BIA’s dismissal was not sought; rather
petitioners filed, on March 6, 1998, a motion to reopen their
deportation proceedings, seeking suspension of deportation
based on their accrual of seven years of continuous physical
presence in the United States during the pendency of their
appeal.
On August 5, 1999 the BIA denied petitioners’ motion to
reopen based on section 309(c)(5) of the IIRIRA, which
amended the suspension of deportation provisions such that
any period of continuous physical presence in the United
States is terminated when an alien is served with notice and
placed in removal proceedings. This is commonly known as
the “stop time” rule.1 Compare 8 U.S.C. § 1254(a) (1996)
1
“Before IIRIRA, an alien was eligible for suspension of deportation if
(1) he or she ‘ha[d] been physically present in the United States for a con-
tinuous period of not less than seven years immediately preceding the date
of [the] application’ for suspension of deportation; (2) he or she was a
‘person of good moral character’; and (3) deportation would result in
‘extreme hardship’ to the alien or to an immediate family member who
was a U.S. citizen or a lawful permanent resident.” Guadalupe-Cruz v.
INS, 240 F.3d 1209, 1210 n.2 (9th Cir. 2001) (quoting Immigration and
Nationality Act § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994)). Furthermore,
“[b]efore IIRIRA, aliens accrued time toward the continuous physical
presence in the United States requirement until they applied for suspension
of deportation. Commencement of deportation proceedings had no effect
on this accrual.” Id. at n.3 (internal quotation marks omitted).
14454 SOTELO v. GONZALES
(repealed 1996) with 8 U.S.C. §§ 1229b(b)(1), 1229b(d)(1).
The IIRIRA amendments took effect on April 1, 1997, while
petitioners’ asylum appeal was pending before the BIA. Since
Fajardo Sotelo and his family were placed in deportation pro-
ceedings when fewer than six years had passed since their
entry from Mexico, the BIA concluded that they were not eli-
gible for suspension of deportation under the amended law.
The petitioners did not seek review.
In June 2003 petitioners again moved to reopen their depor-
tation proceedings claiming they were entitled to apply for
“renewed suspension” of deportation under pre-IIRIRA rules
as eligible class beneficiaries of the class action settlement
approved in Barahona-Gomez, 243 F. Supp. 2d 1029. On
October 10, 2003 the BIA concluded that petitioners were not
eligible for relief under the Barahona-Gomez settlement and
denied their second motion to reopen. Petitioners seek review
of this decision.
II
We have jurisdiction over this appeal under the IIRIRA’s
transitional rules. See IIRIRA § 309(c)(1); Arrozal v. INS, 159
F.3d 429, 431-32 (9th Cir. 1998) (“Sarmadi supports a finding
that the [IIRIRA] transitional rules do not deny this court
jurisdiction over motions to reopen.” (citing Sarmadi v. INS,
121 F.3d 1319, 1320, 1322 (9th Cir. 1997))). We review the
BIA’s denial of a motion to reopen for an abuse of discretion,
“although de novo review applies to the BIA’s determination
of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873,
876 (9th Cir. 2002). Our review of the interpretation of settle-
ment agreements is also de novo and is governed by princi-
ples of state contract law. See Botefur v. City of Eagle Point,
Or., 7 F.3d 152, 156-57 (9th Cir. 1993). Whether petitioners
are entitled to relief under the Barahona-Gomez settlement is
a question of law and our review is de novo.
SOTELO v. GONZALES 14455
III
[1] The Barahona-Gomez settlement was reached to
resolve a dispute over two directives issued by the BIA Chair-
man and Chief Immigration Judge in anticipation of the
IIRIRA amendments. These directives instructed Immigration
Judges and the BIA not to issue decisions or consider appeals
resulting in suspension of deportation between February 13
and April 1, 1997, the effective date of IIRIRA. See
Barahona-Gomez v. Reno, 167 F.3d 1228, 1232 (9th Cir.
1999), supplemented by 236 F.3d 1115, 1117 (9th Cir. 2001).
As a result, some immigrants who would have had their sus-
pension of deportation claims heard under pre-IIRIRA law
during this period were rendered ineligible by the stop time
rule when their cases were heard after April 1, 1997. As a
class these immigrants challenged the delay caused by the two
directives and the parties eventually agreed to settle the claim
by permitting eligible class members to reapply for suspen-
sion of deportation under the law as it existed before the stop
time amendment. See Barahona-Gomez, 243 F. Supp. 2d at
1033.
[2] Despite petitioners’ arguments, they are not persons
entitled to relief under the terms of the Barahona-Gomez set-
tlement. The settlement contains two provisions that define
persons entitled to relief — a “Definition of the Class” and a
“Definition of ‘Eligible class members.’ ” While the parties
expend most of their efforts arguing whether Fajardo Sotelo
and his family are “Eligible class members” entitled to relief,
this emphasis overlooks a necessary preliminary determina-
tion of class membership. Under the plain meaning of the set-
tlement no person can be a “class member[ ] . . . eligible for
the relief provided . . . by this agreement” if they do not first
fall within the “Definition of the Class.” Barahona-Gomez,
243 F. Supp. 2d at 1030-31; see Cal. Civ. Code § 1638 (“The
language of a contract is to govern its interpretation, if the
language is clear and explicit, and does not involve an absur-
dity.”); Botefur, 7 F.3d at 156 (“The interpretation of a settle-
14456 SOTELO v. GONZALES
ment agreement is governed by principles of state contract
law. This is so even where a federal cause of action is settled
or released.” (internal citations and quotations omitted)). Only
if petitioners are class members can we then decide whether
they are class members eligible for relief.
[3] In Section I(B) the Barahona-Gomez settlement defines
the class as follows:
all persons who have had (or would have had) sus-
pension of deportation hearings conducted before
April 1, 1997, within the jurisdiction of the Ninth
Circuit Court of Appeals, and who were served an
Order to Show Cause within seven years after enter-
ing the United States, where:
(a) the immigration judge reserved or withheld
granting suspension of deportation on the basis of
the . . . directive from Defendant Chief Immigration
Judge . . . ; or
(b) the suspension of deportation hearing was con-
cluded prior to April 1, 1997, the INS has appealed
or will appeal, at any time, on a basis that includes
the applicability of [the IIRIRA], and the case was
affected by the . . . directive[s] . . . ; or
(c) the Board of Immigration Appeals . . . has or had
jurisdiction but withheld granting suspension of
deportation (or reopening or remanding a case for
consideration of an application for suspension of
deportation) before April 1, 1997 on the basis of the
. . . directive from Defendant Board Chairman . . . .
Barahona-Gomez, 243 F. Supp. 2d at 1030-31 (emphasis
added). This definition makes plain that to be a member of the
Barahona-Gomez class an immigrant must show that 1) he or
she had a suspension of deportation hearing before April 1,
SOTELO v. GONZALES 14457
1997 (or would have had a hearing but for the directives at
issue), and 2) where a case was before the BIA, that before
April 1, 1997 the BIA withheld granting suspension of depor-
tation (or a motion to reopen or remand for the purpose of
hearing an application for suspension of deportation) because
of a challenged directive.
[4] Petitioners fail to meet either “Definition of the Class”
element and are not members of this class. They did not have
a suspension of deportation hearing before April 1, 1997, nor
would they have had a hearing if the challenged directives had
not been issued. Petitioners did not seek suspension of depor-
tation until their March 6, 1998 motion to reopen deportation
proceedings. They also failed to meet Section I(B)(c) of the
settlement. The BIA did not “withhold” reopening petitioners
deportation proceedings before April 1, 1997 — the BIA
denied the motion to reopen on August 5, 1999. Nor did the
BIA “withhold” any consideration of the motion to reopen or
petitioners’ eligibility for suspension of deportation on the
basis of either directive. The BIA denied petitioners’ motions
to reopen on the ground that they failed to accrue seven years
of continuous presence in the United States under the
IIRIRA’s stop time rule, which had taken effect before the
motion was made.2 Thus, the BIA made a decision on the
merits of petitioners’ motion, not a decision to “withhold”
relief based on any directive challenged in Barahona-Gomez.
Since petitioners are not members of the Barahona-Gomez
class, they are not entitled to any relief contained in the settle-
ment agreement.
2
We also reject petitioners argument that the BIA erred in applying the
IIRIRA’s stop time rule under Guadalupe-Cruz v. INS, 240 F.3d 1209 (9th
Cir. 2001). In Guadalupe-Cruz an Immigration Judge applied the stop
time rule before the IIRIRA took effect on April 1, 1997. Here, petitioners
first moved to reopen deportation proceedings in March 1998 and the BIA
denied the motion in August 1999, well after the stop time rule became
law. There was no error.
14458 SOTELO v. GONZALES
This interpretation is consistent with the purpose of the
Barahona-Gomez settlement. The plaintiffs in that case suf-
fered harm as a result of the delay caused by the directives of
the Chief Immigration Judge and BIA Chairman. See
Barahona-Gomez, 167 F.3d at 1233. The remedy won in the
settlement is simply the opportunity to have their applications
for suspension of deportation heard under the law which
would have governed but for the delay. See Barahona-Gomez,
243 F. Supp. 2d at 1033. It would be incongruous to afford
the same remedy to immigrants who were not harmed because
they did not have a suspension of deportation claim pending
while the directives were in effect. A contrary result would
create an exception to the application of IIRIRA’s stop time
rule neither contemplated by Congress nor sanctioned by any
court approved settlement.
[5] Since petitioners are not entitled to relief based on class
membership they cannot be “Eligible class members” under
the settlement agreement.
AFFIRMED