Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 1 of 31

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO.

805

ROBERTO TEFEL AND FAMILY

MEMBERS, KHADIJEH AIDENEZHAD, JUAN GOUZAGA BAEZ, WILBUR BAEZ AND FAMILY MEMBERS, NORMA J. BALDIZON, ZULEMA BALLADARES,ROBERTO

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BARBERENA, ROBERTO R. AMAYA

CLASS ACTION VERIFIED

BAUTISTA AND FAMILY MEMBERS, JUAN COMPLAINT FOR DECLARATORY,

BERMUDEZ AND RICARDO BERMUDEZ,

INJUNCTIVE AND MANDATORY

ANA BORGE, RICARDO FONSECA-

RELIEF AND WRIT OF HABEAS

CHAMORRO AND FAMILY MEMBERS,

CORPUS

ALEXANDRA CHARLES, JESUS CHOW,

EDGAR ENRIQUEZ, JAIME ENRIQUEZ,

MARTHA ENRIQUEZ, LORENA GARCIA AND FAMILY MEMBERS, GLORIA GUERRERO AND FAMILY MEMBERS, IGNACIO HERRERA AND FAMILY MEMBERS, JUSTINA llRON AND FAMILY MEMBERS, ARMANDO LARGAESPADA, MANUEL MANTILLA, LEONEL MARTINEZ AND FAMILY MEMBERS,

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LEONTE MARTINEZ AND FAMILY MEMBERS,

HERENIA MATUTE, NIDIA MERCADO AND

FAMILY MEMBERS, CARLOS MORALES,

SEBASTIAN MURILLO AND FAMILY MEMBERS,

BOANERGES PAO, DUDLEY ROCHA-PETTERSON,

LILIAM PORTILLO, FREDDY QUINTERO AND

FAMILY MEMBERS, LUCRECIA RAUDES,

CARLOS RIVAS AND FAMILY MEMBERS,

ROBERTO RIVERA, VIRGINIA RODRIGUEZ

AND FAMILY MEMBERS, ERNESTO TORRES

SANDOVAL, ENRIQUE SEQUEIRA, FRANKLIN

SIU AND FAMILY MEMBERS, AND

SUBALECTHUMY VENGADASALAM,

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Petitioners/Plaintiffs,

vs.

Kurzban Kurzban Weinger and Tetzeli, P.A. * 2650 S.W. 27th Avenue, 2nd Floor, Miami, Florida 33133 * (305) 444-0060

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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 2 of 31
JANET RENO, Attorney General ofthe United States; ROBERT WALLIS, District Director; IMMIGRATION AND NATURALIZATION SERVICE and DEPARTMENT OF JUSTICE, BOARD OF IMMIGRATION APPEALS,
Respondents/Defendants.
------------------------~/
The Petitioners/Plaintiffs, ROBERTO TEFEL AND FAMILY MEMBERS, KHADIJEH AIDENEZHAD, JUAN GOUZAGA BAEZ, WILBUR BAEZ AND FAMILY MEMBERS, NORMA J. BALDIZON, ZULEMA BALLADARES, ROBERTO BARBERENA AND FAMILY MEMBERS, ROBERTO BAUTISTA AND FAMILY MEMBERS, JUAN BERMUDEZ AND RICARDO BERMUDEZ, ANA BORGE, RICARDO FONSECACHAMORRO AND FAMILY MEMBERS, ALEXANDRA CHARLES, JESUS CHOW, EDGAR ENRIQUEZ, JAIME ENRIQUEZ, MARTHA ENRIQUEZ, LORENA GARCIA AND FAMILY MEMBERS, GLORIA GUERRERO AND FAMILY MEMBERS, IGNACIO HERRERA AND FAMILY MEMBERS, JUSTINA JIRON AND FAMILY MEMBERS, ARMANDO LARGAESPADA, MANUEL MANTILLA, LEONEL MARTINEZ AND FAMILY MEMBERS, LEONTE MARTINEZ AND FAMILY MEMBERS, HERENIA MATUTE, NIDIA MERCADO AND FAMILY MEMBERS, CARLOS MORALES, SEBASTIAN MURILLO AND FAMILY MEMBERS, BOANERGES PAO, DUDLEY ROCHA-PETTERSON, LILIAM PORTILLO, FREDDY QUINTERO AND FAMILY MEMBERS, LUCRECIA RAUDES, CARLOS RIVAS AND FAMILY MEMBERS, ROBERTO RIVERA, VIRGINIA RODRIGUEZ AND FAMILY MEMBERS, ERNESTO
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TORRES SANDOVAL, ENRIQUE SEQUEIRA, FRANKLIN SIU AND FAMILY MEMBERS, AND SUBALECTHUMY VENGADASALAM, by and through their undersigned counsel, on behalf of themselves and all those similarly situated, sue the Respondents/Defendants, JANET RENO, Attorney General of the United States; ROBERT WALLIS, District Director; IMMIGRATION AND NATURALIZATION SERVICE; DEPARTMENT OF JUSTICE; and BOARD OF IMMIGRATION APPEALS and state as
follows: INTRODUCTION
This action seeks declaratory, injunctive and mandatory relief to end the defendants' policy of denying Plaintiffs and members of their class the right to seek suspension of deportation in the United States. Pursuant to INA sect. 244(a), 8 U.S.C. 1254(a), Plaintiffs and members of their class, who number in the thousands, filed applications for suspension of deportation. Many of these applications were submitted at the invitation of the defendants, who, in 1995, encouraged members of the class who are Nicaraguan to come forward and seek this form of relief from deportation. As a result of coming forward and applying for suspension of deportation, the defendant Immigration and Naturalization Service ("INS") received millions of dollars in application fees. After coming forward, and in many cases, winning suspension of deportation before an immigration judge, the Attorney General, through the defendant Board of Immigration Appeals, has now determined that all class members are ineligible for suspension of deportation. The defendants determination that Plaintiffs and members of their class are ineligible for suspension is based on an erroneous interpretation of the applicability of Section 309(a) ofthe Illegal Immigration Reform and Immigrant Responsibility Act of 1996
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("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 to Plaintiffs and class members. This action challenges that erroneous legal interpretation which affects all Plaintiffs and class members. This action also challenges the conduct of the defendants in inducing Nicaraguan applicants to pay millions of dollars in application fees to seek suspension of deportation on the promise that their applications would be considered when, in fact, they have now rejected same, without consideration.
STATEMENT OF THE CASE 1. The Immigration and Nationality Act ("INA") provides at section 244(a), 8 USC 1254(a) that a person who is deportable from the United States may have his or her deportation suspended and may become a resident of the United States if he/she meets certain criteria. In order to obtain suspension of deportation an applicant must demonstrate that he or she: "has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application,...proves that during all of such period he was and is a person of good moral character...and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. INA 244(a)(1). 2. The Petitioners/Plaintiffs and the class they represent have demonstrated or can demonstrate their eligibility to receive suspension of deportation. They meet all the criteria necessary to obtain suspension of deportation. They have all been physically present in the United States for a continuous period oftime of more than seven years. They all are persons of
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good moral character. And they or their US citizen or lawful permanent resident family members would suffer extreme hardship if they were deported. Many of the named plaintiffs and class members have already been granted suspension of deportation by the immigration court, but the defendants have appealed their cases.
3. In 1995 and again in 1996, the defendants encouraged and requested that Plaintiffs and class members who were Nicaraguan who had been in the United States for seven years pay application fees to reopen their immigration proceedings and to apply for suspension of deportation proceedings. The defendants by public announcements and by their actions also encouraged Nicaraguan citizens who had sought political asylum in the United States to now come forward, withdraw, in many instances, their asylum applications, and apply for suspension of deportation paying the applicable fees for such applications. See, Memo of General Counsel ofiNS ofNov. 14, 1995 attached as Exhibit 1; Letter of August 19, 1996 ofiNS Commissioner Doris Meissner attached as Exhibit 2; INS Notice to Nicaraguan citizens dated Sept 21, 1995 attached as Exhibit 3; INS Press Release with attached Fact Sheet dated May 24, 1996 attached as Exhibit 4. As a result of the defendants' actions in inducing and encouraging Plaintiffs and members of their class to come forward, apply to reopen their cases and/or apply for suspension of deportation, the defendants collected millions of dollars in application fees.
4. On September 30, 1996, the Congress passed and the President signed into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act of 1997, Pub. L. No. 104-208, 110 Stat. 3009 ("IIRIRA"). This Act dramatically transformed immigration proceedings in the United States. It replaces deportation and exclusion proceedings
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with one unified removal proceeding for any proceedings initiated after April 1, 1997. INA 240, 8 USC 1229a. Generally, cases which were initiated before that date would continue under the old legal regime. Section 309(c)(l) ofiiRIRA. Persons such as Plaintiffs and class members who applied for suspension of deportation in proceedings that were begun before April 1, 1997 would remain eligible for suspension even after April 1, 1997, notwithstanding the new law which eliminated suspension of deportation and replaced it with a more restrictive version of the relief called cancellation of removal. INA 240A, 8 USC 1229b. The new cancellation of removal added a provision which would terminate the accrual of the necessary physical presence (which is now ten years instead of seven) if a person was served with a charging document known as a notice to appear. INA 240A(d)(1), 8 USC 1229b(d)(l). Thus, if a person was served with a notice to appear on the sixth year of his entry into the United States he would be precluded from seeking cancellation of removal even if his removal hearing was not held until he was in the United States for fifteen years. Congress also enacted certain transition rules governing what would happen to persons such as Plaintiffs and class members who were in proceedings prior to April1, 1997. Section 309(c)(1) ofiiRIRA provides a "general rule that [the] new rules do not apply" to persons who were in exclusion or deportation proceedings as of April 1, 1997. In section 309(c)(5) Congress said that there would be a transitional rule regarding 240A(d)(1),(2) so that the provisions cutting off physical presence would "apply to notices to appear issued before, on, or after the date of enactment of this Act."
5. Plaintiffs and class members are persons who have applied for suspension of deportation and have been physically present in the United States for more than seven years. They have all payed substantial fees to apply for suspension. In many cases, Plaintiffs and class
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members entered the United States through Southern Texas in the early 1980s, were stopped by the INS and were subsequently permitted to come to Miami to apply for political asylum. In all cases they were issued orders to show cause before they were physically present in the United States for seven years. In all cases, however, the defendants did not pursue deportation within the seven year period and they otherwise encouraged the Plaintiffs and class members to reopen their deportation cases so they could apply for suspension.
6. After the passage of IIRIRA many Plaintiffs and class members were granted suspension of deportation or had suspension cases pending on appeal by the defendants before the BIA after they had been granted suspension by the immigration judge. Other class members were in front of immigration judges awaiting a hearing or final determination on their suspension claim.
7. On Feb. 21, 1997, the BIA decided Matter ofNJB, Int. Dec.# 3309 (BIA 1997). In a seven to five decision the BIA held that section 309(c)(5) ofiiRIRA was applicable to pending suspension of deportation cases. The BIA determined that if a person had been served with an Order to Show Cause before he or she had accrued seven years of continuous physical presence in the United States then he or she was now ineligible for suspension even if the hearing on suspension had occurred many years after the seven year period and even if the case was on appeal after obtaining suspension before an immigration judge.
8. As a result ofthe BIA's split decision in Matter ofNJB, supra, all Plaintiffs and class members are precluded from eligibility for suspension of deportation even in cases where the immigration judge had granted suspension on the merits and the Defendants did not oppose relief on the merits. The BIA has determined that such persons are pretermitted from seeking
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suspension irrespective of their equities or hardship and is ordering across-the-board the mass deportation of Plaintiffs and members of their class.
JURISDICTION 9. Jurisdiction is conferred on this Court with respect to the Petition for Writ of Habeas Corpus by 28 USC § 2241. Jurisdiction is conferred with respect to the Complaint for Declaratory, Injunctive and Mandatory Reliefby 28 USC§ 1331 which grants original jurisdiction to the district courts for matters arising under the Constitution, laws and treaties of the United States including the Administrative Procedures Act, 5 USC § 552 et seq. Jurisdiction is also conferred by 28 USC§ 1361, which allows for mandamus actions to compel officers and employees ofthe United States to perform a duty owed to Plaintiff; 28 USC§§ 2201-2202, and Rules 57 and 65 ofthe Federal Rules of Civil Procedure, permitting declaratory and injunctive actions.
VENUE 10. Pursuant to 28 USC§ 1391(e), venue lies in the Southern District of Florida because it is here, where the Petitioners/Plaintiffs reside, where the erroneous legal interpretation was implemented and therefore the cause of action arose, and where the Respondent/Defendant, ROBERT WALLIS resides.
THE PARTIES Plaintiffs
11. The Plaintiff, Roberto Tefel, his wife and child pursuant to INS policy statements that Nicaraguan applicants should reopen their cases for suspension of deportation, successfully moved to reopened their cases before the BIA on November 24, 1995. They paid the defendants
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substantial fees to reopen their cases and to apply for suspension of deportation. They received suspension of deportation from an immigration judge in Miami, Florida on November 19, 1996. The Service did not oppose the relief, but reserved appeal solely on the issue that section 309(c)(5) ofiiRIRA precludes any consideration of the Petitioners/Plaintiffs' request for suspension. The Tefels have lived in the United States, through the actions of the defendants in not seeking their deportation, for over a decade. They own their home. One of their children, age nine, is a United States Citizen. The other child is thirteen years old and has spent most of his life in the United States. Mr. Tefel is an ordained deacon with extensive community service. His entire family resides in Miami, Florida.
12. The Plaintiff, Lucrecia Raudes, moved to reopen her case before the BIA and to apply for suspension of deportation. She paid the requisite fees. She was granted suspension of deportation on October 11, 1996. Her husband and daughter were granted suspension from the same Immigration Judge at the same time. As a result, they are now lawful permanent residents. Her case, however, was appealed because she received an OSC before attaining seven years. Ms. Raudes' entire family is here and all ofthem are citizens or residents. The Raudes have substantial savings, are homeowners, and engage in community activities.
13. The Plaintiff, Leonel Martinez, his wife and child sought to have their cases remanded from the BIA. They payed the requisite fees to reopen their cases and to apply for suspension of deportation. They were granted suspension of deportation on October 23, 1996. The Martinez's are medical doctors and their children- one Nicaraguan, the other Americanattend magnet schools, having been classified as gifted students by the our school system. They own their own home and have a bright future as professionals in this country.
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14. The Plaintiff, Manuel Mantilla, moved to reopen his case before the BIA and apply for suspension of deportation. He paid the requisite fees to reopen and for suspension. The Board rendered a decision acknowledging prima facie eligibility for suspension relief. He owns his home, is the father of two United States citizen children, and his alien son, Lucas, is a high school student with a 4.15 GPA who has been invited by a myriad of Ivy League schools to apply. He came before an Immigration Judge in February 1997 simply to hear that his case was pretermitted under Section 309(c)(5) ofiiRIRA. He has appealed the decision.
15. The Plaintiff, Carlos Morales, moved to reopen and remand his case from the BIA and to apply for suspension of deportation. He paid all requisite fees to apply. He was granted suspension of deportation on February 5, 1997. His wife and daughter also were granted relief by the same Immigration Judge. His case was appealed by the Defendants. The Morales have two United States citizen daughters; own their home; and all of their children go to magnet schools. Mrs. Morales runs an important business and they are active in community activities. Most of their relatives are here and are either residents or citizens. Fourteen witnesses, included a priest, attended their hearing. The BIA based on Matter ofNJB, supra, will dismiss his appeal.
16. The Plaintiffs, Jaime Enriquez, Martha Enriquez, and Edgar Enriquez, all reopened their cases before the BIA. The Service did not oppose reopening pursuant to the policy statements publicly announced by Defendants. The Enriquez' paid the requisite fees to reopen their cases and to seek suspension. The family received suspension on December 18, 1996. Edgar works for the City of Miami as an computer programmer, owns his home, has a United States citizen child who suffers from a heart condition and is fully Americanized. Similarly, Martha and Jaime each have one United States citizen child, have excellent community service
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records, and a superb job history. Their entire family is here and are residents or citizens. They will now all be deported unless this Court enjoins the Defendants from enforcing Matter ofNJB, supra.
17. The Plaintiff, Roberto Barberena, moved to reopen his case before the BIA, paid the requisite fees and was granted suspension of deportation on January 23, 1997. His wife and son Lenin were granted suspension of deportation last year. Lenin works as a banker. His other son Roberto Jr. received asylum from the INS. He has his own air conditioning business. They all live together in their own home. Mr. Barberena has commendations from the City of Miami for his community service record.
18. The Plaintiff, Lorena Garcia and her three children, filed for the reopening of their cases on January 8, 1996 to seek suspension of deportation. They paid the requisite fees. The Immigration Judge reopened their cases and on November 8, 1996 granted suspension of deportation to them. The Service appealed based on IIRIRA. The three Garcia children came at a very young age; are good students; fully assimilated to the American society; and the entire family is engaged in many community activities. Ms. Garcia, a single mother, raised her children while working at a Hialeah factory.
19. The Plaintiffs, Freddy Quintero and his wife, moved to reopen their cases and to apply for suspension of deportation. They paid the requisite fees. They were granted relief on October 18, 1996. Mr. Quintero's suspension of deportation application contained many letters from the community praising his unique community involvement ranging from cleaning streets to donating blood for the Red Cross. They own their home and have two United States citizen children. One of them suffers from a congenital renal condition.
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20. The Plaintiffs, Carlos Rivas and his family, moved to reopen their cases and to seek suspension of deportation. They paid the requisite fees. They received suspension relief on October 29, 1997. The Service did not oppose relief, but reserved on the question ofwhether Section 309(c)(5) ofiiRIRA bars their relief. They came to the United States in 1985. They have an excellent work history in this country, and have a United States citizen child. They have relatives who are residents and citizens. They own their own home, and he is trying to validate his lawyer's license.
21. The Plaintiff, Ana Borge, moved to reopen her case and to apply for suspension of deportation. She paid the requisite fees. She was granted suspension of deportation on February 19, 1997. She came to this country at an early age, is a college student, and donated one ofher kidneys to her sister. Her record is replete with community activities and recommendation letters on her behalf. Her entire family is here. The INS reserved appeal on the issue of the applicability of section 309(c)(5) of IIRIRA.
22. The Plaintiffs, Ignacio Herrera and his wife, moved to reopen their cases and to seek suspension of deportation. They paid all appropriate fees. They were granted suspension of deportation on February 19, 1997. They have one United States citizen child, an excellent work history, and a panoply of relatives here in this country. Similarly, the Service only reserved appeal on the applicability of Section 309(c)(5) ofiiRIRA to their case.
23. The Plaintiff, Wilbur Baez, moved to reopen his case and to seek suspension of deportation. He paid all appropriate fees. He received suspension on February 11, 1997. He came at a very young age to this country, is a college student, and has a very good work history. His mother and brother also received suspension. The Service reserved appeal in his case on the
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applicability of Section 309(c)(5) ofiiRIRA to him.

24. The Plaintiff, Nidia Mercado, was granted suspension of deportation on January 8,

1997, together with her minor son. She owns her home, has qualifying relatives in this country,

and her son came to this country as a toddler. She, as all of the above-named individuals, relied

on the Defendants' permissive policy to reopen her case. She paid all appropriate fees pursuant to

the invitation to reopen her case. The Service has appealed her case to the BIA on the

applicability of Section 309(c)(5) of IIRIRA.

25. The Plaintiff, Liliam Portillo, moved to reopen her case and to apply for

suspension of deportation. She paid all requisite fees. She has two United States citizen children,

works for a huge international company, and is on her way to becoming a pharmacist. The

immigration judge congratulated her, but terminated her suspension of deportation case, because

of Section 309(c)(5) ofiiRIRA finding that it precluded him from granting any relief.

26. The Plaintiffs, Sebastian Murillo and his family, moved to reopen their cases

before the BIA and to apply for suspension. They paid all the requisite fees. They were granted

suspension of deportation on February 12, 1997. The Murillos own their own trailer home, and

their children are excellent students. He manages a restaurant and will sit for the CPA exam

within the next six months. Their children teach Sunday school classes and are all going to go to

college. The INS did not oppose relief, but reserved on the applicability of Section 309(c)(5) of

IIRIRA. 27.

The Plaintiff, Jesus Chow, moved to reopen his case and applied for suspension of

deportation. He paid all requisite fees. On February 26, 1997 Mr. Chow and his wife came before

the immigration court seeking suspension of deportation. The immigration judge pretermitted Mr.
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Chow's case, but his wife, Cora Chow, received relief at the same hearing. He, however, because ofthe erroneous interpretation ofthe BIA regarding Sect. 309(c)(5) ofiiRIRA, left the courtroom remediless.
28. The Plaintiffs, Gloria Guerrero and her family, entered the United States in 1986. Gloria and two of her children moved to reopen their cases in April 1996 and pay all appropriate fees to seek suspension of deportation. They received suspension of deportation on October 2, 1996. Gloria has a United States citizen daughter. She also has a son who is married to a United States citizen who has an application for adjustment of status pending. The Guerrero family are all gainfully employed or attend school. They have filed tax returns every year since arriving in the United States. They currently rent their home with an option to purchase.
29. The Plaintiffs, Douglas Membreno-Murillo and Damarys Contreras, have both been in the United States for over nine years. They have sought suspension of deportation and their applications have been pretermitted. They have been married for the last seven years and have two United States citizen children. Douglas studied at night at an adult education program and has been employed with the same company for over six years. Damarys' parents were granted political asylum, her three minor siblings were derivative beneficiaries, and they are now all permanent residents. Damarys' other brother and wife are currently in suspension proceedings. They have three United States citizen children and own their own home. The sister-in-law has no family at all in Nicaragua. They have continuously paid taxes and have no history of any criminal activity. INS has filed an appeal to the BIA solely on the issue of continuous physical presence.
30. The Plaintiffs, Virginia Rodriguez and her three sons, have been in the United States for the past ten years. A motion to reopen was filed and granted on October 4, 1996. The
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immigration judge granted the Rodriguez family suspension of deportation on January 17, 1997. The Service subsequently filed an appeal on February 3, 1997 claiming that the respondents were statutorily precluded from establishing the requisite time period. The three children arrived in this country at the respective ages of four, five and six years old and are fully Americanized.
31. The Plaintiff, Roberto R. Amaya Bautista, has been in the United States for ten years. His wife and two children have been in the United States for twelve years. The Amayas are Salvadoran citizens and have dutifully filed tax returns and have no criminal histories. Their daughter graduated from the University of Miami and is presently employed as an informational graphic artist for a Georgian newspaper. Their son is an honors student at Georgia Tech studying engineering and was awarded the Silver Knight award by the Miami Herald for his volunteer service. The entire family has health insurance and has never been on public assistance. Each of the parents hold down two jobs. On January 17, 1989, Roberto was interviewed on his application for asylum and withholding of deportation which included his wife and two children. On January 14, 1991, the proceedings were ordered administratively closed by written order of the Chief Immigration Judge. The Respondents subsequently applied for temporary protected status which was granted and has since received work authorization on an annual basis. The INS moved to recalendar the cases and the Amaya family was granted suspension of deportation on February 6, 1997. The Service appealed the final decision on the pretermission issue.
32. The Plaintiff, Alexandra Charles, is an orphan who came to the United States from Haiti when she was ten years old, after the military invaded her home and brutally murdered her mother in her presence. Alexandra is now eighteen years old and she is self-supporting. She holds down two jobs and attends college full-time. She is an above average student. Alexandra has over
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a dozen lawful permanent resident or United States citizen relatives, including both her grandmothers and a grandfather. All her siblings reside in the United States. She has virtually no relatives in Haiti. Alexandra was served with an Order to Show Cause six and a half years after her arrival. On December 5, 1996, the immigration judge denied the INS' Motion to pretermit and granted suspension. The government appealed the denial of the motion to pretermit.
33. The Plaintiffs, Juan Bermudez and Ricardo Bermudez, eighteen and fourteen years old, have been in the United States for the past ten years, have attended public school and are fully Americanized. They reopened their cases. On January 31, 1997, they were granted suspension of deportation. The Service appealed based on§ 309(c)(5) and Matter ofNJB, supra.
34. The Plaintiff, Leonte Martinez, has been in the United States since 1986. He is married to a lawful permanent resident (granted suspension) and has three children, one a lawful permanent resident (granted suspension) and two United States citizens. Mr. Martinez's mother-inlaw, a lawful permanent resident, resides with their family. Mr. Martinez was granted suspension of deportation on January 17, 1997. According to the immigration judge, his was the best case she ever had. Two priests testified in his behalf concerning extensive community service helping underprivileged youths of all nationalities in several church-sponsored programs. Mr. Martinez owns his own home and earns approximately $38,000.00 per year with medical benefits for the entire family. The INS appealed on the ground that he was pretermitted from obtaining suspension because of section 309(c)(5) ofthe IIRlRA.
35. The Plaintiff, Roberto Rivera, has been in the United States since 1988. He is an Assistant Pastor, Treasurer, youth school teacher and a church leader. In addition he is very active in the Seventh Day Adventist Church youth group. Mr. Rivera has one ten year old daughter who
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 17 of 31
has been in the United States since she was one and a half and whose psychological evaluation indicates she would suffer extreme hardship in Nicaragua. Mr. Rivera has one brother who is a lawful permanent resident and the other brother was granted asylum. Mr. Rivera's application for suspension of deportation was pretermitted and is currently on appeal.
36. The Plaintiff, Zulema Balladares, has been in the United States since 1986. Her husband and four children were previously granted suspension and are now lawful permanent residents. The Balladares' own their own home. Two oftheir children serve in the U.S. Army. Both served in Bosnia. The children's ages range from thirteen to twenty-one and have all resided in Miami for the past ten years. Mrs. Balladares' application for suspension was pretermitted and is currently on appeal.
37. The Plaintiffs, Boanerges Pao, his wife and two children have been in the United States for ten years. The Pao' s own their own home, have medical coverage and significant community service. They Pao's also have one United States grandchild. Both children are attending college and high school respectively. The Pao's Motion to Reopen to apply for suspension of deportation was granted and the case was pretermitted by the immigration judge. The case is currently on appeal.
38. The Plaintiffs, Franklin Siu, his wife, and three children, ages 14, 17 and 19, entered the United States twelve years ago. The children all attend school and have good grades. The Siu's were granted suspension of deportation and the Service appealed. Mr. Siu's elderly mother is a lawful permanent resident as are his two brothers. In total the Siu's have seventeen family members that are lawful permanent residents or United States citizens. Franklin Siu's sister has three United States citizen children. Her case was pretermitted.
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 18 of 31
39. The Plaintiff, Justina Jiron, reopened her case. The case was pretermitted by the immigration judge. She has appealed. She and other family members entered the United States twelve years ago. She has two United States citizen children. The baby is in need of surgery and ongoing medical treatment as a result of a birth defect. All medical expenses are covered by msurance. This type of medical treatment is unavailable in Nicaragua and is life threatening to the child.
40. The Plaintiff, Khadijeh Aidenezhad, has been in the United States since 1985 and lives with her elderly mother who is a lawful permanent resident and suffers from several medical problems. Ms. Aidenezhad has a sister who is a lawful permanent resident, a brother who is a United States citizen and nieces and nephews that are either lawful permanent residents or citizens. Ms. Aidenezhad has a B.A., is a Board certified Phlebotomist and Ultrasound Technician, and has a solid employment history in her field. Ms. Aidenezhad has no criminal record and has performed a substantial amount of volunteer work at a variety ofhospitals and medical centers. Ms. Aidenezhad has been blacklisted in Iran and would, if deported, be subjected to severe oppression, including an inability to work in her field. The INS attorney agreed that deportation would cause her extreme hardship, and that she was a person of good moral character. The immigration judge granted suspension of deportation and the INS appealed the issue of continuous physical presence under Sect. 309(c)(5) ofiiRIRA.
41. The Plaintiffs, Ricardo Fonseca, his wife, daughter and grandson, were granted suspension of deportation on October 24, 1996. The immigration judge denied the INS Motion to Pretermit. The INS appealed on the limited issue of the family's eligibility based on Sect. 309(c)(5) of IIRIRA. Although an appeal is pending, the Fonseca family will be denied suspension of
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 19 of 31
deportation granted to them as a result of the BIA decision in Matter ofNJB. 42. The Plaintiffs, Juan Gonzaga Baez and his family, have all been in the United States
since 1986. Mr. Baez is employed as a deliveryman, Mrs. Baez is a housewife. Their oldest son, Juan Neftali, works as an engineer for a nation-wide engineering firm. Their son, Juan Jacobo, is a college student. Both Jacobo and Neftali financed their college educations through work and merit scholarships. Juan Rafael and his younger sister Gabriela are in school. Both are fully Americanized and are excellent students. Their eldest daughter is married to a U.S. citizen, is a lawful permanent resident and has a United States citizen child. The Baez's family moved to reopen their case in 1995. The immigration judge granted suspension of deportation on October 28, 1996. The INS has appealed the case and if this Court does not reverse Matter ofNJB, supra, the Baez family will be left remediless.
43. The Plaintiff, Armando Largaespada, entered the United States in 1989. He is 69 years old, suffers from chronic arthritis, is on a daily regimen of a variety of medications and has never taken any public assistance. Mr. Largaespada has eight children in the United States, two of which are lawful permanent residents, and seven grandchildren. On May 24, 1996, Mr. Largaespada paid the requisite fees and filed an unopposed Motion to Reopen and for suspension of deportation. On January 14, 1997, an Immigration Judge denied the INS's Motion to Pretermit and granted suspension of deportation. The Service has appealed on the issue of§ 309(c)(5) and unless this Court reverses the decision in Matter ofNJB, supra, Mr. Largaespada will be denied the suspension he was granted.
44. The Plaintiff, Herenia Matute, has been in the United States since 1984. She is married with three children, two of which are United States citizens. After several hearings and the
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 20 of 31
withdrawal of their political asylum application, the Immigration Judge denied the INS' Motion to Pretermit and granted the Matute family suspension of deportation. The INS appealed only on the issue ofthe applicability of section 309(c)(5) ofiiRIRA. Unless this Court enjoins the enforcement of Matter ofNJB, supra, Mrs. Matute and her entire family will be deported from the United States.
45. The Plaintiff, Enrique Sequeira, is a 21 year old citizen ofNicaragua who entered the US on October 10, 1988 at the age ofthirteen. He has maintained an outstanding academic record in the US receiving numerous academic awards. He is a member of JROTC and has been involved extensively in community work in Miami. He was granted suspension of deportation on Nov. 29, 1996. The INS has appealed the decision based upon the applicability of section 309(c)(5) of IIRIRA. Unless this Court reverses the decision in Matter of NJB, supra, Mr. Sequeira will be deported from the United States.
46. The Plaintiff, Subalecthumy Vengadasalam, is a native and citizen of Malaysia. On Nov. 8, 1996 she was granted suspension of deportation in light of her extensive and outstanding community service and support. The INS appealed the decision based upon the applicability of section 309(c)(5) ofiiRIRA. Unless this Court reverses the decision in Matter ofNJB, supra, Mrs. Vengadasalam will be deported from the United States.
47. The Plaintiff, Dudley Rocha-Petterson, is a twenty seven year old Nicaraguan national who entered the United States in 1987. Pursuant to the Defendants inducements to Nicaraguans to pay application fees and file motions to reopen, on Oct 27, 1995, Mr. Rocha filed a motion to reopen and an application for suspension of deportation. On Oct. 4, 1996 his wife was granted suspension of deportation because she had the requisite seven years prior to the service of an order to show cause. The Defendants in Mr. Rocha's case, however, moved to pretermit his application for
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 21 of 31
suspension based upon section 309(c)(5) ofiiRIRA. Mr. Rocha's two United States born children suffer from a rare genetic disease which has occurred in only 12 documented cases in the United States. This disease can only be treated in the US and Canada and there is no readily available treatment in Central or South America. Mr. Rocha is a deacon in his church and a valued employee at a local company who has paid all of his income taxes and owns real estate. If Matter ofNJB, supra, is applied in his case he will be deported without relief to Nicaragua. His deportation will de facto cause the deportation of his two U.S. citizen children.
48. The Plaintiff, Norma J. Baldizon, is a fifty one year old Nicaraguan national who entered the United States in 1987. Ms. Baldizon's application for suspension of deportation was denied by an immigration judge on August 14, 1994. Her counsel, Emesto Varas appealed the decision to the defendant Board of Immigration Appeals. On Feb. 21, 1997, the BIA decided that Ms. Baldizon could not apply for suspension because section 309(c)(5) ofiiRIRA precluded a her from applying for suspension of deportation because she was not in the United States for seven years prior to the service of an order to show cause. Matter ofNJB, Int. Dec. 3309 (BIA 1997). Although the BIA was aware of Ms. Baldizon's counsel, her counsel was never given an opportunity to brief or argue the issue decided by the BIA in Matter ofNJB. Although the BIA sought and permitted amicus briefs to be filed on the issue of the interpretation of section 309(c)(5), it did not permit Ms. Baldizon's lawyer to participate and argue the case on her behalf. Ms. Baldizon was therefore deprived of counsel and due process in the very case that has set the precedent for Plaintiffs and members of her class.
49. The Plaintiff, Emesto Torres Sandoval, entered the United States in 1987 and sought political asylum in our country. Pursuant to the inducements of the Defendants, Mr. Torres filed a
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 22 of 31
Motion to Reopen and a Request for Suspension of Deportation in August of 1995. He has paid all requisite fees. His case was reopened in November. Mr. Torres is a university graduate with a degree in Electrical Engineering, who has a United States Citizen child who would suffer extreme hardship if Mr. Torres were deported from the United States. Mr. Torres has paid income taxes each year he has worked and has made contributions to his community. Notwithstanding his strong case of Suspension of Deportation, the Immigration Judge pretermitted the application on November 13, 1996. An appeal was taken from that decision and is pending before the Board of Immigration Appeals. The decision of the Board in the Matter ofNJB forecloses the possibility of Mr. Torres receiving a hearing on his claim for suspension. Unless this Court enters injunctive relief, Mr. Torres will be deported from the United States.
Defendants 50. The Defendant, Janet Reno, Attorney General (hereinafter referred to as "RENO") is the Attorney General of the United States and in that capacity has the ultimate authority over the decisions of all other defendants in this case. In her capacity as Attorney General she encouraged and induced Nicaraguan Plaintiffs and Nicaraguan class members to pay substantial fees to apply for suspension of deportation. In the same capacity, she has permitted the Board of Immigration Appeals to enter an order that precludes the very persons she induced to pay application fees to apply for suspension from obtaining such suspension. 51. The Defendant, Robert Wallis, (hereinafter referred to as "WALLIS") is the District Director of District VI of the Immigration and Naturalization Service. District VI encompasses the State of Florida and includes the area in which Plaintiffs and class members reside. District Director WALLIS is charged with the responsibility of arresting and deporting Plaintiffs and class members
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 23 of 31
who are or will be subject to final orders of deportation. 52. The Defendant, Immigration and Naturalization Service, is the agency responsible
for implementing the immigration laws of the United States and is the agency responsible for encouraging Nicaraguan Plaintiffs to pay fees and come forward while seeking to prevent their applications from being considered.
53. The Defendant, Department ofJustice, (hereinafter referred to as "DOJ") is the branch of the United States government having ultimate authority over both the INS and Executive Office of Immigration Review. The Executive Office of Immigration Review has the responsibility of overseeing the Board of Immigration Appeals which has entered the order disenfranchising all Plaintiffs and class members from the possibility of obtaining suspension of deportation in the United States.
54. The Defendant, Board of Immigration Appeals ("BIA''), is the administrative appellate body governed by rules set forth at 8 CFR § 3 et. seq. of Title 8 ofthe Code of Federal Regulations. The BIA entered the order in Matter ofNJB in a manner contrary to law, arbitrary and capricious and a violation of Plaintiff and class members constitutional rights.
(Class Action Allegations) 55. ROBERTO TEFEL, et. al., Plaintiffs/Petitioners, bring this action as a class action pursuant to Rule 23(a) and (b)(l)(A) and/or (b)(2) on behalf of himself and all others similarly situated. The class consists of the following ascertainable members, who can be ascertained from the defendants' records:
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 24 of 31
All individuals within the states of Georgia, Alabama and Florida who have been or will be denied suspension of deportation as a result of the BIA' s decision to apply the transitional rule of § 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) retroactively to persons who have sought or are seeking suspension of deportation.
This case also consists of a subclass of members within the class who are Nicaraguan nationals who paid substantial fees to reopen their cases and/or to seek suspension of deportation as a result of the defendants' inducements and promises that their applications for suspension would be considered when in fact the defendants now refuse to consider such applications.
56. The class and subclass are so numerous that joinder of all members is
impracticable.
57. A community of interest exists between Tefel, et. al. and members ofthe class in
that there are questions of law and fact which are common to all. All Plaintiffs/Petitioners seek a
determination of whether the BIA, consistent with the Constitution and statutes, properly applied
§ 309(c)(5) ofiiRIRA retroactively to preclude Plaintiffs/Petitioners from eligibility for
suspension of deportation. In addition, this case raises an identical legal question for a subclass
of Nicaraguans who have sought suspension of deportation regarding whether the defendants
violated due process and whether they should otherwise be estopped from pretermitting
Nicaraguan suspension cases in light of their inducements and promises to Nicaraguan nationals
that the defendants would consider Nicaraguan suspension cases if the Nicaraguan nationals paid
fees to reopen their cases and apply for suspension.
58. The claims or defenses of the representative party is typical of the claims or
defenses of the class;
59. The representative parties Roberto Tefel, et. al. will fairly and adequately protect
the interests of the class because they have been denied suspension of deportation which they -24-
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 25 of 31
would otherwise have been entitled to have, and because the BIA has not properly applied section 309(c)(5) ofiiRIRA or otherwise violated the constitution. This legal outcome is identical to that which the members of the respective class have been subjected to, threatened with, or will be subjected to.
60. Individual suits by each member of the class would be impracticable because: (1) They would create a risk of inconsistent or varying adjudications with
respect to the individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(2) Defendants have acted or have threatened to act, on grounds generally applicable to each member of the class, making appropriate final declaratory and injunctive relief with respect to the class as a whole. 61. The number of individual suits would impose an undue burden on the courts. Although the exact number of class members is currently unknown, on information and belief the class numbers in the thousands. 62. Many members of the class are unaware oftheir rights and/or they were intentionally misled into coming forward by the Defendants. 63. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 64. Plaintiffs' counsel are experienced in class action litigation and can adequately represent the interests of class members as well as the named Plaintiff. 65. The class members have suffered a denial of a previously available right as a result of the defendants' illegal conduct.
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 26 of 31
66. As a result of Defendants' illegal and improper conduct, the members of the Plaintiff class will continue to suffer the effects of the Attorney General's interpretation of the transitional rule depriving Plaintiffs of their right to suspension of deportation. The Plaintiff class members will suffer irreparable harm for which there is no adequate remedy at law if the defendants' discriminatory practices are not enjoined as they will be deported from the United States, separated from their families, and deprived of the opportunity to present their cases to an impartial hearing officer.
67. As a result of Defendants' conduct Plaintiffs were required to retain counsel and to pay counsel a reasonable attorneys fee as well as all reasonable costs, fees, and expenses in prosecuting this case. Plaintiffs intend to seek fees under the Equal Access to Justice Act.

COUNT I

ARBITRARY AND CAPRICIOUS AGENCY ACTION

68. Petitioners/Plaintiffs incorporate by reference herein paragraphs 1 through 67

above, as if stated at length and in full herein. 69. The defendants/respondents interpretation of section 309(c)(5) ofiiRIRA to apply

to Plaintiffs and class members is arbitrary and capricious conduct in violation of the INA and

the APA.

COUNT II

VIOLATION OF INS STATUTES. REGULATIONS AND THE CONSTITUTION

70. The Petitioners/Plaintiffs herein incorporate by reference paragraphs 1 through 67

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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 27 of 31
as if stated at length and in full herein. 71. The Defendants/Respondents' interpretation of section 309(c)(5) ofiiRIRA is
contrary to, inconsistent with and violates the Immigration and Nationality Act, the IIRIRA, and the due process clause of the Fifth Amendment, and the equal protection guarantees of the due process clause.
COUNT III Estoppel by the Government 72. The Petitioners/Plaintiffs herein incorporate by reference paragraphs 1 through 67 as if set forth at length and in full herein. 73. The Respondents/Defendants' induced and lured the Plaintiffs and members of their class who are Nicaraguan nationals into paying substantial applications fees on the false promise that their applications for suspension of deportation would not be pretermitted and would be decided on the basis of the equities in each case. Despite these representations, the defendants now seek to pretermit all suspension applications ofNicaraguans who were not in the United States for seven years at the time they were served with orders to show cause. The respondents/defendants, however, never informed Nicaraguan Plaintiffs or Nicaraguan class members, when they induced them to come forward and pay substantial fees, that they would object to their applications and pretermit them. 74. The Defendants/Respondents' conduct in inducing and luring Nicaraguan Plaintiffs and class members into paying fees without providing them any right to even apply for suspension of deportation amounts to a due process violation contrary to the due process clause
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 28 of 31
of the fifth amendment to the United States Constitution.
COUNT IV DUE PROCESS VIOLATIONS 75. The Petitioners/Plaintiffs herein incorporate by reference paragraphs 1 through 67 as if set forth at length and in full herein. 76. The Defendants/Respondents denied PlaintiffBaldizon the right to counsel to represent her before the BIA in the very matter that affects all Plaintiffs and class members in this case. The deprivation of the right to counsel in Matter ofNJB, supra, affects not only Ms. Baldizon, but all members of the class in that the BIA has utilized the case as a precedent decision without giving counsel the opportunity to represent his client. A deprivation of the right to counsel is a deprivation of due process. Because the deprivation occurred in the very case the Defendants seek to use to pretermit Plaintiffs and class members applications for suspension of deportation the rule arising from the case can not be permitted to stand. WHEREFORE, Roberto Tefel, et. al. and the class members whom they seek to represent, pray for certification of the class and entry ofjudgment against the Defendants, awarding them: (I) a declaration that the Defendants/Respondents' conduct violates IIRIRA, the INA, the APA, and the due process clause ofthe Constitution ofthe United States; (ii) permanent injunctive relief against the Defendants' conduct against class members baring the use of Matter ofNJB, supra, to preclude eligibility for relief; (iii) reasonable attorneys fees; (iv) costs and expenses of suit; and (v) all other relief this Court deems just, necessary, and proper.
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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 29 of 31

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Class Action Verified

' Complaint for Declaratory, Injunctive and Mandatory Relief and Writ of Habeas Corpus, was
'o-·1 .::u.-.,..U-·
hmul delivet=ed to: Dexter A. Lee, Esq. Assistant United States Attorney, 99 N.E. 4th Street,

:2~ Miami, FL 33132, on this

day ofMarch, 1997.

Respectfully submitted,

KURZBAN,KURZBAN,WEINGER

& TETZELI, P.A.

2650 S.W. 27th Avenue, Second Floor

Miami, FL 33

Telephone (3 Facsimile (3

5))444444-.3:~orolf3ib

/ /

'

i

/'

By·. \'.(/ . .

/
.•

/. /........----.

AND

Mario Martin Lovo, Esq. Law Offices of Mario M. Lovo, P.A. 10404 W. Flagler Street, Suite 13 Miami, FL 33174 Telephone (305)229-1994 Facsimile (305)229-1802 Florida Bar No. 887838

Esther Olavarria Cruz, Esq. Vicente Tome, Esq. Rebecca Sharpless, Esq. Florida Immigrant Advocacy Center 3000 Biscayne Boulevard Miami, FL 33137 Telephone (305)573-11 06 Facsimile (305)576-6273 Florida Bar Nos. 654371, 22039, N/A

Emesto Varas, Esq. Law Offices ofEmesto Varas, Esq. 1840 Coral Way, Suite 201 Miami, FL 33145 Telephone (305)859-8840 Facsimile (305)857-0898 Florida Bar No. 494429

Robert L. Boyer, Esq. Law Offices of Robert L. Boyer, Esq. 2100 Coral Way Miami, FL 33145 Telephone (305)858-7660 Facsimile (305)858-1644 Florida Bar No. 255912

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Case 1:97-cv-00805-PAS Document 1 Entered on FLSD Docket 04/02/1997 Page 30 of 31
AND
Mary E. Kramer, Esq. Law Offices of Mary E. Kramer, Esq. 230 Biscayne Boulevard, Suite 310 Miami, FL 33132 Telephone (305)374-2300 Facsimile (305)374-3748 Florida Bar No. 831440
VERIFICATION
I, Roberto Tefel, hereby verify that to the best of my knowledge and belief all matters
contained in the above Class Action Verified Complaint for Declaratory, Injunctive and
Mandatory Relief and Writ of Habeas Corpus are true and correct.

STATE OF FLORIDA) )ss
COUNTY OF DADE )

The foregoing instrument was acknowledged before me this:..-lf day of March, 1997 by

ROBERTO TEFEL, who is personally known to me or has presented

as

a photographic identification, and who did/did not take an oath.

-~:._..-'_>{__:\ _~_'; ______ \c

< . / / / { (___ \· )/!

__:____'_'--·--.,

Typed/Printed Narne

NOTARY PUBLIC,

STATE OF FLORIDA AT LARGE

My Commission Expires:

k:\njblappwrithab
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r

( Case 1:97-cv-00805-PAS Document 1

Entered on FLSD Doc(ket 04/02/1997

Page 31 of 31

ADDITIONAL
... ... .

ATTACHMENTS ., .,

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PLEASE REFER TO COURT FILE

 </s> Case 1:97-cv-00805-PAS Document 80 Entered on FLSD Docket 06/10/1997 Page 1 of 6

ROBERTO TEFEL et al., Plaintiffs,

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 97-0805-CIV-KING

v.
JANET RENO, Attorney General of the United States et al.,
Defendants.
________________________________ !

ORDER COMPELLING DISCLOSURE OF CERTAIN DOCUMENTS; FINDING PRIVILEGE APPLIES TO CERTAIN OTHER DOCUMENTS THIS CAUSE comes before the Court in relation to the Court's ruling, at a hearing conducted Friday, May 30, 1997, directing that Defendants provide certain documents- -nine in number- -for the Court's in camera review. 1 Defendants have provided the Court with the responsive documents along with a declaration of Commissioner Doris Meissner of the Immigration and Naturalization Service. (Defs.' Notice of Filing Declaration, etc. (May 30, 1997) . ) Commissioner Meissner asserts the deliberative process privilege for each of the nine

documents. In Nadler v. U.S. Department of Justice, 955 F.2d 1479 (11th
Cir. 1992), the Eleventh Circuit Court of Appeals discussed the deliberative process privilege and the framework for its

1

The Court also ordered Defendant to disclose those

documents to Plaintiffs but effectively stayed that order

pending the Court's in camera review.

Case 1:97-cv-00805-PAS Document 80 Entered on FLSD Docket 06/10/1997 Page 2 of 6

application. 2 This Court finds the following portion of Nadler
instructive with regard to the instant matter:
The deliberative process privilege protects the internal decisionmaking processes of the executive branch in order to safeguard the quality of agency decisions. Two prerequisites must be met before the Government properly may withhold a document from production pursuant to the deliberative process privilege. First the document must be "predecisional, " i.e. , "prepared in order to assist an agency decisionmaker in arriving at his decision." Second, it must be "deliberative," that is, "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. " Moreover, purely factual material that does not reflect the agency deliberative process generally is not protected. Factual material may be withheld, however, when that material is so inextricably connected to the deliberative material that its disclosure would reveal the agency's decision making processes or when it is impossible to segregate in a meaningful way portions of the factual information from the deliberative information.
Id. at 1490-91 (citations omitted) .
This Court used the Nadler framework in conducting its in
camera review of the following nine documents, as identified in
Defendants' Second Amended Privilege Log dated May 30, 1997: Nos.
9P, 11P, 117P, 119P, 129P, 135P, 138P, 139P, and 141P.
The Court finds that the following three documents are covered
by the deliberative process privilege and, therefore, need not be
disclosed to Plaintiffs: Nos. 9P, 11P, and 139P. These three
documents are both predecisional and deliberative.
The Court finds that the following six documents are not
covered by the deliberative process privilege: 117P, 119P, 129P,

2

Nadler discusses the deliberative process privilege in

the context of "Exemption 5," 5 U.S.C. § 552 (b) (5), of

the Freedom of Information Act, 5 U.S.C. § 552.

2

Case 1:97-cv-00805-PAS Document 80 Entered on FLSD Docket 06/10/1997 Page 3 of 6

135P, 138P, and 141P. Although these documents appear to be

predecisional (indeed, some if not all of the documents are clearly

drafts), they comprise factual material markedly unvarnished by

opinions or recommendations.

Accordingly, after a careful review of the record, and the

Court being otherwise fully advised, it is

ORDERED and ADJUDGED that Defendants be and are hereby

COMPELLED to provide Plaintiffs' with the following documents, as

identified in Defendants' Second Amended Privilege Log dated May

30, 1997: 117P, 119P, 129P, 135P, 138P, and 141P.

It is FURTHER ORDERED that Defendants shall, in the absence of

a contrary order from a higher court, comply with this Order by 5

p.m. Tuesday, June 3, 1997.

It is FURTHER ORDERED and ADJUDGED that the following

documents, as identified in the manner discussed supra, be and are

hereby covered by the deliberative process privilege and need not

be disclosed to Plaintiffs: Nos. 9P, 11P, and 139P. The Court shall

return these documents to Defendants at the earliest convenience.

DONE and ORDERED in chambers at the James IJawrence King

Federal Justice Building and United

Miami,

Florida, this 3rd day of June 1997.

cc: Dexter A. Lee, AUSA Mary E. Kramer, Esq. Elliot H. Scherker, Esq.

. BROWN MAGISTRATE JUDGE RN DISTRICT OF FLORIDA

3

Case 1:97-cv-00805-PAS Document 80 Entered on FLSD Docket 06/10/1997 Page 4 of 6

CASE:

1:97-cv-00805

DOCUMENT: DATE:

81 06/10/97

CLERK:

hd

Case 1:97-cv-00805-PAS Document 80 Entered on FLSD Docket 06/10/1997 Page 5 of 6
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 97-0805-CIV-KING
ROBERTO TEFEL et al.,
Plaintiffs,
v.
JANET RENO, Attorney General of the United States et al.,
Defendants.
________________________________!
OTRODEPRLAOIVNETRIRFUFLSI'NGPRDOEPFOESNEDDANDTISSC' OOVBEJREYCTOIRODNESR THIS CAUSE comes before the Court upon the 11 0bjections To Plaintiffs' Proposed Discovery Order Submitted May 29, 1997, 11 filed by Defendants on May 29, 1997. Defendants raise two objections regarding the Court's oral rulings and those rulings as reflected in a Proposed Order drafted
by Plaintiffs. First, Defendants state that Plaintiffs, on May 29, 1997,
delivered to Defendants a Proposed Order that would require Defendants to search nationwide for documents responsive to Plaintiffs' Request Nos. 1, 2, 3, and 5 of their Notice To Produce of April 24, 1997. Defendants assert that such a search misstates the Court's Order of May 28, 1997. They state that the Court did not order a nationwide search, but rather 11 directed defendants to search for responsive documents only in the State of Texas. 11
Second, Defendants state that the Proposed Order requires Defendants to produce all responsive documents by 9 a.m. Saturday May 31, 1997. Defendants state that the Court ordered Defendants to

Case 1:97-cv-00805-PAS Document 80 Entered on FLSD Docket 06/10/1997 Page 6 of 6

commence production, as opposed to complete production, by that

time.

The Court, at a hearing conducted Friday, May 30, 1997,

overruled both of Defendants' objections.

Accordingly, after a careful review of the record, and the

Court being otherwise fully advised, it is

ORDERED and ADJUDGED that Defendants' Objections To

Plaintiffs' Proposed Discovery Order be and are hereby OVERRULED.

DONE and ORDERED 1n chambers at the James Lawrence King

Federal Justice Building and United

Miami,

Florida, this 2nd day of June 1997.

cc: Dexter A. Lee, AUSA
Mary E. Kramer, Esq. Elliot H. Scherker, Esq.

~~~u~N T. BROWN MAGISTRATE JUDGE DISTRICT OF FLORIDA

2

 </s> Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 1 of 12

FILED by

JUN- 5 f997
C.l,R~OS Ju:.;·r·.::_ CLE RA U.S. DISl. CT. S.D. OF FLA. • MIAMI
ROBERTO TEFEL,

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 97-0805-CIV-KING

Plaintiff,

v. JANET RENO, et al.,

ORDER

Defendant.
-----------------1
THIS CAUSE comes before the Court upon two emergency appeals by the Defendants (collectively "the Government") seeking review of discovery Orders entered by Magistrate Judge Brown on June 3, 1997. Both appeals were filed on June 4, 1997. The Plaintiffs filed memoranda in opposition to the Government's appeals, and the Court took argument on the appeals during the afternoon and evening of June 4th. After a thorough review of the record and pleadings, and having considered the argument of counsel and conducted an ex parte, in camera review of the disputed documents, the Government's appeals are GRANTED IN PART and DENIED IN PART. The Government shall, at or before 12 noon on June 6, 1997, produce to the Plaintiffs the items identified as: 117P, 119P, 129P, 135P, 138P, 141P, 45P, 49P and SOP. The materials identified as 30P and 79P need not be produced.

I.
This lawsuit is brought by a class of Nicaraguan immigrants seeking to challenge a decision by the Board of Immigration Appeals that allegedly infringes the rights of these individuals. The case

111 (~

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 2 of 12
was assigned to United states District Judge James Lawrence King, who entered, and subsequently extended, a temporary restraining Order precluding the Government from deporting individuals or otherwise adjudicating cases based on the challenged decision. A preliminary injunction hearing has been scheduled for June 12, 1997 before Judge King. Due to the absence of Judge King, who is out of the district, Magistrate Judge Stephen T. Brown has been presiding over the pre-trial process including the production of documents by the Government. In late May, the Government supplied Magistrate Judge Brown with a privilege log, identifying the documents that it believes need not be disclosed. The log was thereafter amended on multiple occasions. The Magistrate Judge has entered a number of rulings with respect to the Government's claims of privilege; the instant appeals, which were assigned to this Court due to Judge King's absence, arise out of two of the Magistrate's rulings.
II.
The Government's first appeal concerns a written Order entered by Magistrate Brown on June 3, 1997, which in pertinent part compelled the Government to produce six {6) documents over which a deliberative process privilege had been claimed. These documents are identified as items 117P, 119P, 129P, 135P, 138P and 141P. This Court stayed the Magistrate Judge's production Order pending its review of the Government's arguments.
The Government claims that the items in dispute are drafts of documents that were intended to reflect and explain changes in INS policy with respect to certain groups of Nicaraguan immigrants.
2

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 3 of 12
The materials submitted to Magistrate Judge Brown (including an affidavit from the Commissioner of the INS) articulated the circumstances surrounding the creation of these items at a very high order of abstraction. In its "objections" to the Magistrate's Order, the Government claims that the disputed items are drafts of an "emerging policy statement." When pressed on this point during oral argument before this Court, Government counsel provided a somewhat different explanation. He suggested that the items were essentially drafts of "fact sheets" eventually disseminated to the public and Nicaraguan immigrants who would be affected by the changes in policy. Counsel indicated that the actual policy changes to which the fact sheets referred were announced in the Federal Register.
We start by making two observations. First, our review of Magistrate Judge Brown's Order is not wholly de novo. Rule 72(a) of the Federal Rules of Civil Procedure provides that a Magistrate Judge's Order on a non-dispositive motion cannot be set aside on appeal unless it is found to be "clearly erroneous or contrary to
law." ,Se.e .al.aQ 28 u.s.c. §636(b)(l)(A). The Supreme Court has
recognized that "[a] finding is 'clearly erroneous• when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. " United States y. United States Gypsum, 333 U.S. 364, 395 (1948). Pursuant to this highly deferential standard of review, Magistrate Judges are afforded broad discretion in resolving discovery disputes, and reversal is
3

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 4 of 12

appropriate only if that discretion is abused.

s u ' §...a...S..s_'

Commodities Future Trad. Comm'n y. Standard Forex, Inc., 882 F.

Supp. 40, 42 (S.D.N.Y. 1995}.

Second, we observe that Fed. R. Civ. P. 26(b) (1} permits discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, (and] need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." In order to preserve the liberal discovery contemplated by the Federal Rules, the burden falls on the party opposing discovery - in this context, the Government - to prove its entitlement to a privilege for otherwise relevant documents. ,Su, ~' In re Air Crash Disaster at Sioux City, Iowa, 133 F.R.D. 515, 518 (N.D. Ill. 1990) (reaffirming the well-settled proposition that "the party seeking the privilege has the burden of establishing all of its essential elements").

The six documents at issue here are culled from a set of nine items addressed in the Magistrate Judge's written Order. After conducting his review, Magistrate Judge Brown allowed three documents to be withheld, but denied protection for the six now in dispute. After citing the leading Eleventh Circuit case on point, Nadler y. Department of Justice, 955 F.2d 1479 (11th Cir. 1992), Magistrate Brown explained that "(a] lthough (the six] documents appear to be predecisional (indeed, some if not all of the documents are clearly drafts}, they comprise factual material markedly unvarnished by opinions or recommendations. " In open

4

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 5 of 12

Court on June 3d (sometime after he released his Order), Magistrate Brown stated that he denied the Plaintiffs access to the three documents not because he thought that a privilege applied, but rather because he felt that, after applying a "balancing test," the documents were "of no value" and "insignificant" to the Plaintiffs' case.

As one court has explained, the deliberative process

privilege, in the context of administrative agencies, "encourages

free-ranging discussion of alternatives; prevents public confusion

that might result from the premature release of such nonbinding

deliberations; and insulates against the chilling effect likely

were officials to be judged not on the basis of their final

decisions, but 'for matters they considered before making up their

minds. 1 "

City of Virginia Beach y. United States Pep' t of

Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993). As this excerpt

suggests, because the privilege is designed to protect "the inter-

governmental exchange of thoughts that actively contribute to the

agency's decisionmaking process," post-decisional documents

explaining or justifying a decision already made are not shielded.

Texas Puerto Rico, Inc. y. Department of Consumer Affairs, 60 F.Jd

867, 884-85 (1st Cir. 1995). In Nadler, the Eleventh Circuit

discussed the contours of the deliberative process privilege. The

court explained that the privilege "protects the internal decision

making processes of the executive branch in order to safeguard the

quality of agency decisions." Two prerequisites must be met before

the privilege will be sustained: "First, the document must be

5

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 6 of 12

'predecisional, ' i.e. , 'prepared in order to assist an agency decisionmaker in arriving at his decision.' Second, it must be 'deliberative,' that is 'a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. ' " 955 F. 2d at 1491. 1 Once this threshold showing

1Somewhat different considerations come to the fore when purportedly protected documents contain facts (as opposed to

the

explicit recommendations or opinions):

(P]urely factual material that does not reflect the agency's deliberative process generally is not protected. Factual material may be withheld, however, when that material is so inextricably connected to the deliberative material that its disclosure would reveal the agency's decision-making processes, or when it is impossible to segregate in a meaningful way portions of the factual information from the deliberative information.

HIeb9bdx6eeo1ay.cumoasFnue(pds.cl2oeeidtt,fhaiRtet9thi4eoe1cppnourCsrn(ev1otsioa1eueimtnrwnhttisatoCottweiffivdhrAet).ahs).tpe,pmyecAd.aiegeslUshrlNittnbu.aibpetddeehrldeaeesntlrdeiSiveestndeuaa,gtdepag5ssreeo0ls6Di"ctbefseUea,spsrc.aSaatrp.tstmid.rv"o9ieve6cn9uitlpmIenor(ego1fnecF9tCe9losiso2sismr)mi,mdnpafeolorytcre,

exemption under FOIA census data prepared

for statistically adjusted by Census Bureau officials

"block level" who proposed to

the Secretary of Commerce that results using this methodology

published headcount

in lieu of (which had

results obtained through the traditional been compiled through questionnaires and

be

door-to-door inquiries). The Secretary declined to adopt the

tt9Bhh4uea9r-te5bae0luov.'cseknTptlrhueoeavplpoelyaslenwddealamstmaeratechdjoeoednccostllteeoidatguyrbt.etyhdtTahahteea"ppEcerlooersvpuoeornntstahsilnhCoocurihlrdracerucfgiooetmc.u"hmseelnIdoddna.tthiaoantt

"examin[ing] the document were used, or put another professional approval pro

s in way, cess.

the context in within the co
" Id. at 948.

which the documents ntext of the agency's
Thus, "if, looking

at or

the deliberative process as a whole, data opinion, it is necessarily deliberative."

can be deemed advice
Id. For this

reason, the Magistrate Judge's finding that the disputed contain only "unvarnished facts" may not completely answ question of whether the privilege applies.

it er

ems the

6

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 7 of 12

is made, the court may "weigh competing interests" and determine

whether the need for access to the documents outweighs any

perceived harm from disclosure. ~' ~' Texas Puerto Rico, 60

F.3d at 885. Nadler itself sustained the Government's claim of a

privilege over a prosecutive memoranda from a Justice Department

lawyer to his supervising attorney that summarized the status of a

criminal investigation and made recommendations as to how to

proceed. While some courts outside this Circuit have suggested

that draft material "particularly when presented by a subordinate

to a superior for revision, is likely to receive deliberative

process protection," Virginia Beach, 995 F.2d at 1253, the fact

that a document is a draft plainly does not absolve the Government

of its burden of establishing that the draft relates to a

deliberative process with respect to matters of law or policy.

The Magistrate Judge did not apply an incorrect legal standard

in evaluating the Government's contextually-driven claim of

privilege.

The question becomes, therefore, whether the

Magistrate's eventual finding that no privilege applies to the six

items constitutes clear error. On this record, the Government

cannot surmount this substantial hurdle. To begin with, we do not

agree that, under these facts and circumstances, the drafts (or the

handwritten edits on the drafts) pertain to or arise out of a

deliberation about agency policy. During oral argument, Government

counsel acknowledged that the final versions of these drafts were

not designed or intended to formulate policy; rather, they were

intended to explicate, in layman's terms, a policy change already

7

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 8 of 12
fashioned at a different time and published separately in the Federal Register. From this standpoint, the items in dispute can be analogized to press releases. And while we suggest no brightline standard governing the kinds of materials that constitute policy-making (since even the drafting of a press release or public information sheet may embody some measure of deliberation and some exercise of discretion on the part of agency officials), we are not convinced that the six items at issue here genuinely were components of the process of reshaping federal policy concerning Nicaraguan immigrants. As Nadler makes clear, for a privilege to apply, the documents play a direct and active role in the "deliberative process" with respect to "legal or policy matters." 955 F.2d at 1491. Notably, the purportedly privileged drafts do not differ markedly from the final versions eventually disseminated to the public. 2
Equally troubling is the fact that the Government has failed to provide a meaningful evidentiary foundation for its claims of privilege. With respect to five of the six documents, for example, it is unclear who prepared the drafts, who was intended to receive the drafts, who actually received the drafts or who added the
2At this court's prompting, the Government clarified that the drafts actually related to items eventually released in "final" form. The Government thereafter submitted these "final" documents for the Court's inspection. In a Notice of Correction served on this Court shortly after the submission of the "final" version of the documents, the Government indicates that one of the "final" fact sheets, dated July 24, 1995, was actually a draft prepared on June 24, 1995. This "correction" underscores our concern with the absence or murkiness of many critical foundational details.
8

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 9 of 12
handwritten notations, let alone how these individuals fit into the agency's policymaking hierarchy. Absent these details, it is impossible to confirm that the drafts were part of INS's deliberative process. Moreover, not until oral argument before this Court in conjunction with the Government's appeal did the Government provide significant details about the context of the disputed items and the circumstances surrounding their creation. These details were not supplied to the Magistrate Judge, and plainly were not recounted in the Government's privilege log.
As the party seeking a privilege, the burden falls on the Government to provide a persuasive foundation for its right to withhold relevant evidence. We cannot say, on this record, that the Government has met its burden. More to the point, we cannot say that Magistrate Judge Brown's ruling was clearly erroneous or contrary to law. Accordingly, the Magistrate Judge's ruling must be affirmed.
II. The Government's second appeal relates to five additional documents that Magistrate Judge Brown orally directed the Government to produce. Three of these documents - 45P, 49P and SOP - are claimed to be subject to the deliberative process privilege. For all of the reasons stated above, we do not agree that the Magistrate committed clear error or acted contrary to law with respect to these items, which the Government again suggests are drafts of materials eventually disseminated to the public outlining changes in policy concerning Nicaraguan immigrants. The Government
9

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 10 of 12

simply has not established (1} an adequate foundation for its claims of privilege, or (2} a sufficient showing that the disputed materials reflect the formulation of policy as opposed to explications of a policy already fashioned through the exchange or publication of other materials at other times.

A different result obtains for the two items - 30P and 79P -

with respect to which the Government claimed an attorney-client

privilege. These items are identical, and consist of a single

document entitled "Background for Attorney General's Meeting with

Nicaraguan Foreign Minister, March 31, 1997 Re: Suspension of

Deportation." The document was prepared by a member of the INS's

legal staff, and reviewed by the agency's general counsel. The

bulk (although not the entirety} of the document is devoted to an

analysis of the provisions and legal consequences of the Illegal

Immigration and Immigrant Responsibility Act of 1996.

The

Magistrate Judge refused to recognize a privilege for the document.

The purpose of the attorney-client privilege is to encourage

open and complete communication between a client and its attorney

by eliminating the possibility of subsequent compelled disclosure

of their confidential communications. ~, ~' United States y.

Noriega, 917 F.2d 1543, 1550 (11th Cir. 1990}, cert. denied sub

ngm, 498 u.s. 976 (1991}. In order to invoke this privilege, the

claimant must establish the following:

(1} .

the asserted holder of the privilege is • a client; (2} the person to whom the

co a in

mmunication was made (a} is [the] member bar of a court, or his subordinate and
connection with this communication

of (b) is

acting as a lawyer; (3} the communication

10

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 11 of 12
relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (I) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Ia. (quoting United States y. Kelly, 569 F.2d 928, 938 (5th cir.),
cert. denied, 439 U.S. 829 (1978)). The privilege undoubtedly may apply to communications by government lawyers to other government officials. ~' ~' United States y. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.), cert. denied, 522 U.S. 1005 (1991). Contrary to the Plaintiffs' suggestion, an in camera review of the document makes clear that it cannot be deemed a "non-legal" policy or fact oriented communication between individuals acting solely in their capacity as government employees rather than lawyers. The document does more than explicate or formulate policy; rather, it contains legal analysis compiled by agency attorneys and designed to advise and assist the Attorney General (in her role as the chief law enforcement officer of the United states) or her representatives with respect to the elements and ramifications of a new statute she is empowered to enforce. Recognizing a privilege for this document is in no plausible sense "tantamount to a ruling that any attorney employed by the government represents all persons within the same department of government in the capacity of an attorney employed to provide legal advice to a client." While we acknowledge that the Government cannot state with certainty the recipient or recipients of this document, other materials in the
11

Case 1:97-cv-00805-PAS Document 117 Entered on FLSD Docket 06/12/1997 Page 12 of 12

record, as well as the title of the document itself, provides a

sufficiently persuasive foundation to sustain the claim of

privilege. Accordingly, we conclude that the Magistrate Judge

committed clear error by ordering the production of items 30P and

79P. 3

Consistent with the foregoing, it is hereby

ORDERED AND ADJUDGED that the Magistrate Judge's written Order

of June 3, 1997 is AFFIRMED, and items 117P, 119P, 129P, 135P, 138P

and 141P shall be produced no later than 12 noon on June 6, 1997.

The Magistrate Judge's oral Order of June 3, 1997 is AFFIRMED IN

PART. Items 45P, 49P and SOP shall be produced no later than 12

noon on June 6th; items 30P and 79P are privileged and need not be

produced.

DONE AND ORDERED in Miami, this

day of June, 1997.

copies to: Magistrate Judge Brown counsel of record

UNITED STATES DISTRICT JUDGE

3In any event, the documents appears to convey little information not already known or avaflable to the Plaintiffs.
12 I

 </s> Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 1 of 13

ROBERTO TEFEL, eta!.,

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 97-0805-CIV-SEITZ/GARBER

CLOSED CIVIL CASE

Plaintiffs,

vs.

JOHN ASHCROFT, Attorney General ofthe United States, eta!.,
Defendants.
______________________!

JAN 2 4 2002
CLARENC£ MIIDDOX
CLER.; u.s. D!Sl. CT. s. D. OF FL":. . Ml~ "''

ORDER GRANTING DEFENDANTS' MOTION FOR DECERTIFICATION OF CLASS AND MOTION FOR SUMMARY JUDGMENT

This immigration-related class action involving the "stop-time" rule for determining eligibility for

suspension of deportation is before the Court on Defendants' Motion for Decertification of Class, Motion

to Dismiss Counts III & IV for Lack of Jurisdiction, and Motion for Judgment on the Pleadings or for

Summary Judgment [DE-246]. Pursuant to the Eleventh Circuit's remand, directing this Court to reconsider

its certification of the class and reexamine whether any of the named Plaintiffs remain appropriate class

representatives, the Court finds that because passage of recent immigration legislation afforded relief to all

but one of the named Plaintiffs, and because groups within the previously defined class have different and

competing claims, the class must be decertified. Moreover, as Plaintiffs' remaining due process and estoppel

claims lack merit, Defendants are entitled to summary judgment as to all of Plaintiffs' remaining claims.

I

Factual and Procedural Background

A. The Illegal Immigration Reform and Immigrant Responsibility Act and the Stop-Time Rule

On September 30, 1996, Congress passed the Illegal Immigration Reform and Immigrant

Responsibility Act ("IIRIRA"), which amended, in part, the Immigration and Nationality Act ("INA"). Prior

Page I of 15

~

Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 2 of 13
to the passage of IIRIRA, an alien facing deportation could apply for suspension of deportation under INA
§244 if the alien had been physically present in the United States for a continuous period of not less than ten
years after becoming deportable or seven years after applying for suspension of deportation. 1 Prior to
IIRIRA, time spent in deportation proceedings counted toward the alien's physical presence requirement.
Among its numerous amendments to the INA, IIRIRA repealed the suspension of deportation
provision of INA §244 and replaced it with INA §240A which provided for the "cancellation of removal."
See IIRIRA §304(a). IIRIRA also created a "stop-time" provision for determining an alien's eligibility for
cancellation of removal. See IIRIRA §304(a)(3)(enacting INA §240A(a)). Under the new "stop-time"
provision, an alien's period of residence or continuous physical presence in the United States is terminated
once the government serves the alien with a notice to appear for removal proceedings or the alien commits
a criminal offense under INA §244A(d)(l). See 8 U.S.C. §1229b(d)(l).2 Shortly after Congress enacted
IIRIRA, the Board of Immigration Appeals ("BIA'') held, in Matter ofN-J-8, Int. Dec. #3415 (BIA 1997),
that due to the provision of the transitional rule embodied in §309(c)(5), the new stop-time rule applied retroactively to applications for suspension of deportation filed prior to the passage ofliRIRA.3 Thus, once
the government commences deportation proceedings, an alien's continuous period of presence in the United
1 Pursuant to INA §244(a)(2), the Attorney General could order "suspension of deportation" if: ( l) deportation was based on certain specified grounds; (2) the alien had been physically present in the United States for a continuous period of not less than ten years after becoming deportable or seven years after applying for suspension of deportation; (3) during that time was a person of good moral character; and (4) in the opinion of the Attorney General, deporting the alien would cause exceptional and extremely unusual hardship to the alien or to the alien's spouse, parent, or child who is a United States citizen. INA §244(a)(2), 8 U.S.C. §1254(a)(2). However, even if an alien established these four factors, the Attorney General retained the discretion whether to grant suspension of deportation. See Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (lith Cir. 1982).
2 8 U.S.C. §1229b(d)(l) provides: For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear under section l229(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 J227(a)(4) of this title, whichever is earliest. 3 On July 10, 1997, the Attorney General, Janet Reno, vacated the BIA 's decision in Matter ofN-J-8 and certified the case to herself for review pursuant to 8 C.F.R. §3.1 (h)( I)(i).
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Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 3 of 13
States ends, even if the alien had applied for suspension of deportation or cancellation of removal prior to IIRIRA 's effective date of September 30, 1996.4 B. Plaintiffs' Class Action Complaint
On March 28, 1997, Plaintiffs filed a class action Complaint challenging the BIA's interpretation of the retroactive application of the stop-time rule. The asserted class included aliens from various places such as Nicaragua, Cuba, Guatemala, El Salvador, Haiti, Malaysia, Iran, and various Eastern European countries. Although all Plaintiffs had allegedly entered the United States more than seven years earlier, the government subjected them to deportation proceedings before they had acquired seven years of continuous physical presence in the United States. Plaintiffs' Complaint alleged four counts of statutory and constitutional violations arising from the BIA's interpretation ofiiRIRA's retroactive stop-time provision. Count I alleged that the BIA' s interpretation ofiiRIRA §309(c)(5) was arbitrary and capricious in violation of INA and the Administrative Procedures Act ("APA"). Count II alleged that the BIA's interpretation of IIRIRA §309(c)(5) and the stop-time provision violated Plaintiffs' due process and equal protection rights under the Constitution.5 Count III, an estoppel claim against the government, alleged that the INS unlawfully induced and lured Plaintiffs and members oftheir class who are Nicaraguan nationals into paying substantial fees on applications for suspension, and then opposed the Nicaraguan Plaintiffs' applications. Finally, Count IV alleged that the individual alien facing deportation in the Matter of N-J-B was denied representation during her deportation hearings, and thus denied due process.6
4 IIRIRA §309(c)(5) provides: TRANSITIONAL RULE WITH REGARD TO SUSPENSION OF DEPORTATION.--Paragraphs (I) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence of physical presence) shall apply to notices to appear issued before, on, or after the date of enactment of this Act [i.e. September 30, 1996]. IIRIRA § 309(c)(5). 5 Plaintiffs have voluntarily dismissed all equal protection claims under Count II. (See Tr., Nov. 8, 200 I). 6 Plaintiffs have also voluntarily dismissed Count IV. (See Tr., Nov. I, 200 I).
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Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 4 of 13
C. Class Certification and Injunctive Relief On April 17, 1997, Plaintiffs moved for a temporary restraining order or preliminary injunction
prohibiting the BIA from deporting any members of the Plaintiff class. Plaintiffs also sought to enjoin the INS from applying the stop-time rule retroactively. On May 20, 1997, the Honorable James Lawrence King denied the INS's motion to dismiss for lack of jurisdiction, granted "provisional class certification" of Plaintiffs' class, and appointed Ira J. Kurzban as lead class counsel. 7 The Court also granted Plaintiffs' motion for a temporary restraining order enjoining the INS from deporting any members of the Plaintiff class.8 D. Subsequent Legal Changes
Following the Court's granting of injunctive relief to Plaintiffs, a number of subsequent legal changes occurred. On July I0, 1997, the Attorney General vacated the BIA's decision in Matter ofN-J-B. Moreover, subsequent to the entry ofthe preliminary injunction, Congress enacted, and the President signed into law theN icaraguan and Central American Relief Act ("NACARA"). Pub.L. I05-100, Ill Stat. 2160 (1997). Section 203(a)(l) ofNACARA amended IlRIRA §309(c)(5), changing the language "notices to appear" to "orders to show cause" which initiated deportation proceedings prior to IIRIRA.9 In essence, NACARA clarified that "the stop-time provision applies to aliens who were facing deportation and/or had applied for suspension of deportation before IIRIRA's enactment, because it precludes any argument that
7 The Court identified the class as follows: All individuals within the states of Georgia, Alabama and Florida who have been or will be denied suspension of deportation as a result of the BIA 's decision to apply the transitional rule of §309(c)(5} of the Illegal Immigration Reform and Immigrant Responsibility Act (llR!RA) retroactively to persons who have sought or are seeking suspension of deportation. 8 The Court determined that Plaintiffs established a substantial likelihood of success on their claim that the BIA misinterpreted §309(c)(5) in Matter ofN-J-8, and that the stop-time rule did not apply retroactively. The Court also found a likelihood of success on Plaintiffs' due process, equal protection, and estoppel claims. In addition, the Court found that Plaintiffs established the other factors required for preliminary injunctive relief. See Tefel v. Reno, 972 F. Supp. 623 (S.D. Fla. I997). ~ Section 203(f) ofNACARA also specified that the NACARA amendments are effective as of IIRIRA 's original enactment date.
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Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 5 of 13
the reference to 'notices to appear' suggested that Congress intended the stop-time rule to apply only to postIIRlRA removal proceedings, which are initiated with 'notices to appear."' Tefel v. Reno, 180 F.3d I286, I293 (II th Cir. 1999).
In light of NACARA's amendments to the IIRIRA, on December 22, 1997, the INS moved to dissolve the preliminary injunction and moved for summary judgment on all of Plaintiffs' claims. On February I0, I998, the Court denied INS's motions. The Court agreed that Plaintiffs could no longer demonstrate a likelihood ofsuccess on their claim that the BIA incorrectly interpreted §309(c)(5). However, the Court reaffirmed its previous conclusion that Plaintiffs established a likelihood of success on the merits of their due process, equal protection, and estoppel claims. Although the Court acknowledged that NACARA afforded aliens from Nicaragua, Cuba, Guatemala, El Salvador, and Eastern Europe the opportunity to apply for relief, the Court noted that some unidentified class members might not qualify for relief under NACARA. The INS appealed. E. Appeal to the Eleventh Circuit
On appeal, the Eleventh Circuit held that due to the passage ofNACARA and other developments during the appeal, only two named Plaintiffs were facing "the same legal and factual situation that they faced when the district court entered its injunction in this case." 10 Tefel v. Reno, 180 F.3d I286, 1295 (II th Cir. 1999). The Eleventh Circuit also addressed the merits ofthe district court's preliminary injunction. First, the Eleventh Circuit held that the district court erred in finding that Plaintiffs established a substantial likelihood of success on the merits of their constitutional equal protection and due process claims. See id. at I298-I302. Second, the Eleventh Circuit held that the district court erred in finding that Plaintiffs established a likelihood of success on the merits of their estoppel claim. See id. at I302-04. Moreover, the Eleventh Circuit questioned the status ofPiaintiffs' class and noted that "significant issues do exist regarding
10 As of today' s date, only one named Plaintiff remains. See discussion infra Section I.F.I.
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Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 6 of 13
the scope and propriety ofthe class as certified by the district court." 11 lQ.,_ at 1304. Consequently, on July 14, 1999, the Eleventh Circuit vacated the district court's preliminary injunction and remanded this case for further proceedings. 12 See id. at 1305.
On remand, the Eleventh Circuit directed that "before any further proceedings are conducted relating to the merits of Plaintiffs' claims, the district court [must] reconsider its certification of the class and reexamine whether any of the named Plaintiffs remain appropriate class representatives. Any final determinations on the merits of this case cannot be made until Plaintiffs and their respective claims are accurately identified and defined." lQ.,_ at 1305. On December I, 1999, Defendants moved to decertify the class, to dismiss counts Ill & IV for lack ofjurisdiction, and for judgment on the pleadings or for summary judgment. F. More Recent Developments
l. Remaining Named Plaintiffs As of the date of this Order, the only remaining named Plaintiff in this action who has not been afforded complete relief is Subalecthumy Vengadasalam ("Vengadasalam"), a native and citizen ofMalaysia who entered the United States on or about April 3, 1989. The INS served Vengadasalam with an Order to Show Cause and a Notice of Hearing on February 4, 1993 before she acquired seven years of continuous physical presence in the United States. On November 8, 1996, after she had accrued seven continuous years of physical presence in the United States, the Immigration Judge granted her suspension of deportation on the grounds that her removal from the United States would cause her extreme hardship. However, on October 12, 2001, pursuant to an appeal by the INS, the BIA reversed the Immigration Judge's grant of suspension ofdeportation, finding that due to the retroactive application ofthe stop-time rule, Vengadasalam
11 The Eleventh Circuit observed that the class appears to be overly broad, does not appear to satisfy the commonality requirement of Rule 23(a)(2), and includes groups of aliens whose deportation proceedings are governed by entirely different statutory provisions. See id. at 1304-05.
12 This case was originally assigned to the Honorable James Lawrence King. On November II, 1998, the case was reassigned to the undersigned District Judge.
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Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 7 of 13
had not accrued seven years of physical presence at the time the INS served her with an order to show cause, and is thus statutorily ineligible for suspension of deportation. By Order of the BIA, Vengadasalam had thirty (30) days from October 12,200 I to voluntarily depart from the United States. On November 13, 200 I, Vengadasalam filed, prose, a petition for review of the BIA's October 12,2001 Order with the Eleventh CircuitY Vengadasalam's appeal is currently pending in the Eleventh Circuit.
2. Remaining Class Members When Plaintiffs moved for class certification in May of 1997, Plaintiffs' documentary evidence indicated that there were hundreds of thousands of persons nationwide who would be adversely affected by INS's retroactive application ofthe stop-time rule. Plaintiffs presented evidence that between 130,000 and 320,000 Nicaraguans, and approximately 150,000 Salvadorans, would be adversely affected by the stop-time rule's retroactive application. (See Pl.'s Submission Pursuant to Nov. 9, 2001 Order, Exhs. F & G). Additionally, Plaintiffs presented evidence that INS determined that there were 33,914 Nicaraguans in deportation or exclusion proceedings, and that approximately I0,000 within the Miami District would become eligible for suspension ofdeportation under the traditional standards. (See id., Exh. H). In addition, Plaintiffs submitted evidence demonstrating that hundreds of individuals had been denied suspension of deportation by the BIA following INS' retroactive application ofthe stop-time provision under Matter ofNJ-B. (See id., Exh. I). Today, however, the facts have changed dramatically, as most ofthe individual class members within the class certified by Judge King on May 20, 1997 have been afforded relief under NACARA and the Haitian Refugee Immigration Fairness Act ("HRIFA"). Pursuant to the November 8, 2001 status conference and this Court's November 9, 2001 Order, Defendants submitted a detailed statistical analysis ofthe following two categories of class members, concluding that: (I) approximately sixty-six (66) aliens within the states of Florida. Georgia, and Alabama who were eligible to apply for suspension ofdeportation and had applications
13 That petition for review is docketed as Case No. 01-163840.
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Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 8 of 13
for suspension of deportation pending on September 30, 1996, were subsequently denied suspension of deportation solely based on the "stop-time" rule effected by IIRIRA § 309(c)(S)(A), and were not eligible for reliefunderNACARA and HRIFA; and (2) approximately seven (7) to nine (9) Nicaraguan aliens within the states ofFlorida, Georgia, and Alabama who were eligible to apply for suspension ofdeportation and had applications for suspension of deportation pending on September 30, 1996, were subsequently denied suspension of deportation solely based on the stop-time rule effected by IIRIRA § 309(c)(S)(A), and have not received relief under NACARA. (See Def.'s Submission of Statistical Analyses Pursuant to Court's Nov. 9, 200 I Order). It is in light of these changed circumstances that the Court must consider Defendants' motion for class decertification, motion to dismiss, and motion for summary judgment.
II Discussion A. Class Decertification In order to bring a class action, the plaintiff class must establish that: ( 1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a). Based upon the changed factual circumstances in this case, the Court agrees with Defendants that the class should be decertified, as it fails to satisfy the commonality and typicality requirements for the following reasons: ( 1) the class as defined is overly broad; (2) Nicaraguan class members have claims different from other class members; (3) Salvadoran, Guatemalan, Eastern European, and Haitian nationals have claims different from one another and the rest of the class based on different relief available to them; and (4) the only remaining named Plaintiff and class representative, Vengadasalam, is inadequate to represent the interests of all class members. 1. The Defined Class is Overly Broad The Honorable James Lawrence King previously granted Plaintiffs class action status and identified Page 8 of 15

Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 9 of 13
the class as follows: All individuals within the states of Georgia, Alabama, and Florida who have been or will be denied suspension of deportation as a result of the BIA's decision to apply the transitional rule of §309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) retroactively to persons who have sought or are seeking suspension of deportation. Tefel, 180 F.3d at 1291 (emphasis added).
As the Eleventh Circuit cautioned, however, "[a]s defined, the class includes aliens who had applied for but been denied suspension of deportation and aliens who have never applied for suspension." l.!;l at 1304. Thus, because the defined class includes aliens without claims that are ripe for resolution, the inclusion of such aliens in the class is improper. See id. at 1304-05 (citing Reno v. Catholic Social Servs, Inc., 509 U.S. 43, 58-59 (1993) (holding that aliens' claims challenging the INS' regulations interpreting the "continuous physical presence" requirement for legalization under the Immigration Reform and Control Act of 1986 are not ripe until the aliens seek and are denied legalization)). 14
2. Groups Within the Plaintiff Class Have Different and Competing Claims As the Eleventh Circuit correctly observed, "the class does not appear to satisfy the commonality requirement of Rule 23(a)(2)." l.!;l 180 F.3d at 1305. The class as defined includes groups of aliens whose deportation proceedings are governed by entirely different statutory provisions. See id. For example, NACARA places the Nicaraguan plaintiffs in a legal position that differs greatly from the non-Nicaraguan plaintiffs, and essentially divides the Plaintiff class into four separate categories of aliens: (I) Nicaraguan and Cuban aliens who are eligible for relief under NACARA §202; 15 (2) Salvadoran, Guatemalan, and East
14 Plaintiffs rely upon Kilgo v. Bowman Transport, Inc., 789 F.2d 859, 878 (1 Jth Cir. 1986), a sex discrimination case, for the proposition that future Plaintiffs can be added once their claims are ripe. However, Kilgo did not decide the issue of whether a class definition is proper even if it includes members whose claims are not yet ripe. Rather, Kilgo merely held that the district court did not abuse its discretion by finding that the plaintiffs had met their numerosity requirement. See Kilgo, 789 F.2d at 878.
15 Under NACARA, Nicaraguan and Cuban nationals are eligible for adjustment of status if they have been present in the United States since December 1, 1995, and apply for such adjustment before April 1, 2000. NACARA §202(b).
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Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 10 of 13

European aliens who are exempt from the stop-time rule under IIRIRA §309(c)(5) 16; (3) Haitian aliens who

are

eligible

for

adjustment

under

H

RIF

A

17 ;

and

(4)

aliens

who

are

not

eligible

for

any

of the

foregoing

relief

provisions. Moreover, the estoppel claim in Count lii, which deals solely with Nicaraguan plaintiffs, creates

a sub-group of plaintiffs whose claims differ from those ofthe non-Nicaraguan plaintiffs. 1M

3. Vengadasalam is an Inadequate Class Representative

To this date, all but one of the originally named Plaintiffs have received relief. Moreover, the only

remaining named Plaintiff, Vengadasalam, is inadequate to represent the remaining issues in the case. See

Lewis v. Casey, 518 U.S. 343, 357-58 (1996) (holding that named plaintiffs who represent a class must

allege and show personal injury). As a Malaysian, Yengadasalam is an inadequate representative for any

Nicaraguans, Cubans, Salvadorans, Guatemalans, Eastern Europeans, or Haitians who are eligible for

alternative forms of relief. Moreover, Vengadasalam cannot prosecute the estoppel claim in Count III raised

on behalf of Nicaraguan Plaintiffs and class members who are Nicaraguan nationals.

Plaintiffs argue that even ifYengadasalam is an inadequate representative, the Court should permit

Plaintiffs to substitute a new class representative. See Sosna v. Iowa, 419 U.S. 393, 401 ( 1975) (holding that

the mootness of a particu Jar class representative's claim does not moot the entire action where the class has

been previously certified). However, Sosna is inapplicable in this case, as Plaintiffs' remaining claims are

without legal merit, and therefore the substitution of a new class representative would be futile.

Additionally, even though Plaintiffs' claims are foreclosed under Eleventh Circuit precedent, the Court

should decertify the class so as to ensure that parties who fall within the previously defined class are not

16 NACARA §203 provides to certain Salvadorans, Guatemalans, and Eastern Europeans an exception to the stop-time provision of IIRIRA §309(c)(5).
17 HRIFA §902(a)(l) provides that aliens described in HRFA §902(b) may adjust their status to that of a lawful permanent resident provided that: ( l) they apply for such adjustment before April l, 2000; and (2) they are otherwise admissible to the United States, with certain exceptions.
18 Plaintiffs contend that at the time they filed the Complaint, and until NACARA and HRlFA, all plaintiffs were equally barred from applying for a previously available form of relief. However, Plaintiffs concede that "Congress' post hoc creation of alternative immigration options to certain national groups in the class did solve many class members problems." (Pl.'s Opposition at 8).
Page 10 of 15

Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 11 of 13
forever bound by the Court's disposition of the claims in this case. B. Plaintiffs' Remaining Claims in Counts I, II & III
1. Standard of Review
Summary judgment is appropriate when "the pleadings ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 ( 1986). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must "come forward with 'specific facts showing that
there is a genuine issue for trial."' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
( 1986) (quoting Fed. R. Civ. P. 56(e)). Applying this standard, the Court must view the record and all factual
inferences therefrom in the light most favorable to the non-moving party and decide whether '"the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."' Allen v. Tyson Foods, Inc., 121 F.3d 642,646 (ll'h Cir. 1997) (quoting Anderson, 477 U.S. at 251-52).
2. Count 1- Violations of the INA and APA In Count I, Plaintiffs allege that the Defendants have arbitrarily and capriciously interpreted section 309(c)(5) ofiiRIRA as applying to Plaintiffs, and such conduct violates the INA and the APA. However,
this claim lacks merit, as Congress clarified, with the passage ofNACARA, that the stop-time provision under section 309(c)(5) was intended to have retroactive effect. 19 Moreover, the Eleventh Circuit has
19 In Tefel, the Eleventh Circuit held that the enactment ofNACARA clarified §309(c)(5): First, NACARA §203(a)( I) amends IIRIRA §309(c)(5) and changes the language "notices
to appear" to "orders to show cause." In addition, NACARA §203(f) specifies that the amendments made by NACARA §203 are effective as if originally enacted with IIRIRA. Thus, NACARA, by expressly referring to "orders to show cause," which initiated deportation proceedings prior to IIRIRA, resolves any potential linguistic ambiguity in IIRIRA §309(a)(c) with respect to the applicability ofthe stop-time provision of INA §240A(d). With this amendment, NACARA clarifies that the stop-time provision applies to aliens who were facing deportation and/or had applied for suspension of deportation before IIRIRA 's enactment, because it precludes any argument that the reference to "notices to appear" suggested that Congress intended the stop-time rule to apply only to post-IIRIRA removal proceedings, which are initiated with "notices to appear." Tefel, 180 F.3d at 1293.
Page 11 of 15

Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 12 of 13
reaffirmed Tefel, holding in AI Najjar v. Ashcroft, 257 F.3d 1262 (lith Cir. 2001) that an alien's physical presence clock stops upon being served with an order to show cause, even if the order to show cause was served before the enactment of IIRIRA. Tacitly conceding this legal reality, Plaintiffs have not responded to or challenged Defendants' motion for summary judgment as to Count I. Therefore, Defendants are entitled to summary judgment as to Count I.
3. Count II- Due Process Plaintiffs contend in Count II that Defendants' interpretation of section 309(c)(5) of IIRIRA is "contrary to, inconsistent with and violates the Immigration and Nationality Act, the liRIRA, and the due process clause of the Fifth Amendment. ..." However, the Eleventh Circuit in Tefel rejected Plaintiff's contention and found that Plaintiffs have not established a likelihood of success on the merits of their due process claim. 180 F.3d at 1301. First, the Eleventh Circuit held that "the failure to receive discretionary relief in the immigration context does not deprive an alien of a constitutionally protected liberty interest." 180 F.3d at 1300. Thus, Plaintiffs have no constitutionally protected interest in their expectancy of receiving suspension, and enjoy no liberty or property interest in being eligible to be considered for suspension. See id. at 1301. Second, the Eleventh Circuit rejected Plaintiffs' argument that the stop-time rule violates the general presumption against retroactive statutory provisions, and held that NACARA §203(a)( 1) clearly mandates the retroactive application of the stop-time rule. See id. at 1302. Therefore, because Congress expressly provided for the retroactive application of the stop-time rule, Plaintiffs have suffered no due process violation. Plaintiffs argue that the Supreme Court's decision in INS v. St. Cyr, 121 S. Ct. 2271 (200 1), revives Plaintiffs' due process claims. However, St.Cyr is distinguishable from Tefel, as it applies to a different section ofiiRIRA. The critical issue before the Court in St. Cyr was whether the language in IIRIRA clearly and specifically required the retroactive application of IIRIRA to repeal INA §212. The Court held that nothing in IIRIRA "unmistakably indicat[ed] that Congress considered the question whether to apply its repeal of §212(c) retroactively to such aliens [as St. Cyr.)" St. Cyr, 121 S. Ct. at 2293.
Page 12 of 15

Case 1:97-cv-00805-PAS Document 293 Entered on FLSD Docket 01/25/2002 Page 13 of 13

conclude that the government's actions and subsequent litigation position were reasonable." See Dec. 14,

1999 Order. Because Plaintiffs have not established that the Eleventh Circuit's opinion is not based on law

or fact, this Court reaffirms Magistrate Judge Garber's December 14, 1999 Order and denies Plaintiffs'

renewed motion for costs, fees and other expenses.

Conclusion

Based upon the foregoing reasons, it is hereby

ORDERED that:

(I) Defendants' Motion for Decertification of Class [DE-246] is GRANTED, and the previously

certified class in this action is decertified;

(2) Defendants' Motion for Judgment on the Pleadings or for Summary Judgment [DE-246] is

GRANTED. Summary judgment is granted in favor of Defendants as to Counts I, II & III;

(3) Defendants' Motion to Dismiss Counts III & IV for Lack of Jurisdiction [DE-246] is DENIED

as MOOT;

(4) Plaintiffs's claims in Count IV, and Plaintiffs' equal protection claims 111 Count II are

DISMISSED WITH PREJUDICE;

(5) All pending motions not otherwise ruled upon are DENIED as MOOT, and this case is CLOSED.

this~~ DONE and ORDERED in Miami, Florida,

of January, 2002.

cc:
Ira J. Kurzban, Esq. Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 S. W. 27th Ave., 2nd Floor Miami, FL 33133 fax 305-444-3503

Dexter A. Lee, AUSA 99 N.E. 4th St. Miami, FL 33132 fax 305-530-7139

Ernesto H. Molina, Jr., Esq. U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, DC 20044 fax 202-616-4975

Page 15 of 15

 </s> Case 1:97-cv-00805-PAS Document 299 Entered on FLSD Docket 04/05/2002 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 97-0805-CIV-SEITZ/GARBER
ROBERTO TEFEL, et al.,
Plaintiffs,
v.
JOHN ASHCROFT, Attorney General of the United States, et al.,
Defendants.

APR 4 2002
CLAREI~CE IA.~DDOX CLEfl,; U.S. !:JIST. CT S.D. OF Fll\~. "'''Mr'

ORDER DENYING PLAINTIFFS' MOTION TO ALTER AND AMEND THIS COURT'S FINAL JUDGMENT
THIS MATTER is before the Court on Plaintiffs' Motion to Alter and Amend This Court's Final Judgment [DE-295]. Pursuant to Fed. R. Civ. P. 59(e), three grounds justify a court's reconsideration of an order: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice. See Wendy's Int'l, Inc. v. Nu-Cape Construction, Inc., 169 F.R.D. 680, 684 (M.D. Fla. 1996). The disposition of a motion to alter and amend is committed to the sound discretion of the district court. Mincey v. Head, 206 F.3d 11 06, 113 7 (lith Cir. 2000). "The function of a motion to alter or amend a judgment is not to serve as a vehicle to relitigate old matters or present the case under a new legal theory...[or] to give the moving party another 'bite at the apple' by permitting the arguing of issues and procedures that could and should have been raised prior to judgment." Id. at 1137 n.69.
In their motion to alter and amend, Plaintiffs attempt to merely rehash and reargue points already made in response to Defendants' motions for class decertification and summary judgment. Plaintiffs have not established an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice. See Wendy's lnt'l, Inc., 169 F.R.D. at 684. Moreover, Plaintiffs' contention that "(t]his Court also failed to address the Plaintiffs' request for attorney's fees, which was reiterated as part ofPiaintiffs' October 12,2001 Opposition and Response to Defendants' Motions for Class Decertification, Summary Judgment, and Judgment on the Pleadings"
Page 1 of 2

Case 1:97-cv-00805-PAS Document 299 Entered on FLSD Docket 04/05/2002 Page 2 of 2

is inaccurate. To the contrary, the Court explicitly addressed the issue of attorney's fees in its January 24,2002 Order

Granting Defendants' Motion for Decertification of Class and Motion for Summary Judgment [DE-293]:

In response to Defendants' motions, Plaintiffs reassert that they are entitled to fees and expenses, notwithstanding the fact that on December 14, 1999, Magistrate Judge Garber ordered that "[b]arring a determination...that the Eleventh Circuit's opinion [in Tefel] is not based upon law or fact, the Court must conclude that the government's actions and subsequent litigation position were reasonable." See Dec. 14, 1999 Order. Because Plaintiffs have not established that the Eleventh Circuit's opinion is not based on law or fact, this Court reaffirms Magistrate Judge Garber's December 14, 1999 Order and denies Plaintiffs' renewed motion for costs, fees and other expenses. (Order, Jan. 24, 2002, at 14-15).

Accordingly, it is hereby

ORDERED that Plaintiffs' Motion to Alter and Amend This Court's Final Judgment [DE-295] is DENIED.

~ DONE "'d ORDERED in Miami, Flodda, this!/:- day of

, 2002.

cc: Ira J. Kurzban, Esq. fax 305-444-3503 Dexter A. Lee, AUSA fax 305-530-7139 Ernesto H. Molina, Jr., Esq. fax 202-616-4975

Page 2 of 2

 </s> 972 F.Supp. 608 (1997)
Roberto TEFEL, et al., on behalf of themselves and all others similarly situated, Plaintiffs/ Petitioners, v.
Janet RENO, Attorney General of the United States; Robert Wallis, District Director; Immigration and Naturalization Service and Department of Justice, Board of Immigration
Appeals, Defendants/Respondents.
No. 97-0805-CIV.
United States District Court, S.D. Florida.
May 20, 1997. Order Denying Stay May 22, 1997.
601901 *609 *610 *611 Ira J. Kurzban, Kurzban, Kurzban, Weinger & Tetzeli, P.A., Miami, FL, Elliot H. Scherker, Oscar Levin, Greenberg, Traurig, Hoffman, Rosen & Quentel, P.A., Esther Olavarria Cruz, Vincente Tome, Rebecca Sharpless, Florida Immigration Advocacy Center, Miami, FL, Mario Martin Lovo, Mario M. Lovo, P.A., Miami, FL, Mary E. Kramer, Law Offices of Mary E. Kramer, Miami, FL, Linda Kelly, St. Thomas Law School, Miami, FL, Mario Louis, Miami, FL, Ernesto Varas, Law Office of Ernesto Varas, Miami, FL, Kari Woodward Carranza, Jeannette Mirabal, Law Offices of Magda Montiel Davis, Miami, FL, Robert L. Boyer, Law Offices of Robert L. Boyer, Miami, FL, for Plaintiffs.
Dexter A. Lee, Asst. U.S. Atty., Miami, FL, David Bernal, Senior Litigation Counsel, Office of Immigration 612 Litigation, Dept. of Justice, Washington, DC, F. Franklin Amanat, Nelda C. Reyna, Trial Attorney, Office *612 of
Immigration Litigation, Dept. of Justice, Washington, DC, Ernesto Molina, Trial Attorney, Office of Immigration Litigation, Dept. of Justice, Washington, DC, Laura M. Friedman, Trial Attorney, Office of Immigration Litigation, Dept. of Justice, Washington, DC, for Defendants.
ORDER DENYING MOTION TO DISMISS, CERTIFYING CLASS AND APPOINTING LEAD COUNSEL, GRANTING TEMPORARY RESTRAINING ORDER, AND SETTING PRELIMINARY INJUNCTION HEARING FOR MAY 27, 1997
JAMES LAWRENCE KING, District Judge
THIS CAUSE is before the Court on the Plaintiffs' Motion for Temporary Restraining Order, Plaintiffs' Motion for Provisional Class Certification, and Defendants' Motion to Dismiss for Lack of Jurisdiction. The Court heard the Plaintiffs' evidence in support of the Motion for Temporary Restraining Order on May 13, 1997, and the Defendants, after having been given an overnight recess to determine whether they wished to present evidence in opposition to the motion, announced that they would not present any testimony or evidence. The Court thereupon heard the argument of counsel for the parties on the pending motions on May 14, 1997. Counsel were given full opportunity to present all arguments in support of their positions, and the Court has also had for its consideration the extensive and thorough memoranda submitted by the parties.
THE DEFENDANTS' MOTION TO DISMISS
The Defendants have moved to dismiss the complaint on several grounds: (1) that the Court does not have jurisdiction in this cause under § 242(g) of the Immigration and Nationality Act ("INA"), as enacted by Section 306 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"); (2) that only the United States Court of Appeals for the Eleventh Circuit has jurisdiction to review final orders of deportation; and (3) that the Plaintiffs have not exhausted their administrative remedies. After reviewing the parties' memoranda and hearing oral argument of counsel, the Court finds that the Defendants' motion is without merit and should be denied.

The well established standard for evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is whether the complaint, taken literally with all averments therein treated as true and correct, states a claim for relief. The controlling rule in the Eleventh Circuit is that a complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would support relief. E.g., Pataula Electric Membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir.), cert. denied, 506 U.S. 907, 113 S.Ct. 302, 121 L.Ed.2d 225 (1992). Applying this standard, and having carefully reviewed the parties' memoranda and their legal arguments at the hearing in this matter, the Court determines that it has jurisdiction in this cause.
First, there is a strong presumption that the actions of federal agencies are reviewable in the federal courts unless nonreviewability is explicitly demonstrated in the statutory language. E.g., Felker v. Turpin, ___ U.S. ___, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 2135-36, 90 L.Ed.2d 623 (1986); Rosas v. Brock, 826 F.2d 1004 (11th Cir. 1987); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967) ["Judicial review is the rule ... and nonreviewability is a narrow exception which must be clearly demonstrated."]
This presumption is even stronger where denial of review would preclude even colorable constitutional claims. Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988). Even where statutes have facially barred judicial review of agency action, the Supreme Court has interpreted them to permit review of 613 constitutional claims. See, e.g., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 491-95, *613 111 S.Ct. 888, 896-97, 112 L.Ed.2d 1005 (1991); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Most recently, the Fifth Circuit Court of Appeals in Anwar v. I.N.S., 107 F.3d 339 (5th Cir. 1997) reached the same conclusion notwithstanding language in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") precluding all review for criminal aliens.
The Defendants rely upon the language of § 242(g), which statute declares that, "[e]xcept as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any client arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." The Court has determined that the statute does not bar the exercise of the Court's federal question jurisdiction for several reasons.
First, the statute on its face does not bar this action. The plain statutory language only precludes judicial review of "the decision or action of the Attorney General." The statute does not bar the review of the decisions or actions of lower level government officials. The Immigration and Nationality Act ("INA") specifically defines the Attorney General as "the Attorney General of the United States" and no one else. INA § 101(a)(5), 8 U.S.C. § 1101(a)(5) ["The term `Attorney General' means the Attorney General of the United States"].
This Court's reading of INA § 242(g) is consistent with its plain language and the principles governing statutory construction of preclusion statutes. Where statutory language is clear on its face, as here, the inquiry ends and no review of the legislative history or administrative practice is necessary or appropriate. Ratzlaf v. U.S., 510 U.S. 135, 146 and n. 18, 114 S.Ct. 655, 662 and n. 18, 126 L.Ed.2d 615 (1994); Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 603, 112 L.Ed.2d 608 (1991); U.S. v. Kirkland, 12 F.3d 199 (11th Cir.1994).
Nor does this Court's reading of INA § 242(g) lead to an unreasonable result, although if it did, the plain language would still control. Commissioner of Internal Revenue v. Asphalt Products Co., 482 U.S. 117, 121, 107 S.Ct. 2275, 2278, 96 L.Ed.2d 97 (1987); Peabody Coal Co. v. Navajo Nation, 75 F.3d 457, 468 (9th Cir.1996). Restricting review of the specific decisions of the Attorney General only and not lower level governmental officials is consistent with the principle that persons at the highest levels of government may be accorded deference while lower level officials may not. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). Under the Defendants' reading of the statute any immigration decision of any person who works, in any way, for the Department of Justice would be insulated from review. A reading of the statute that broad should not be presumed where the statute on its face expresses an unambiguous contrary intent.[1]
614 *614 Defendants' interpretation of the statutes would also lead to a complete abolition of all judicial review for deportation cases commencing before April 1, 1997, a result that the Court cannot find to be explicitly

commanded by the statutory language. Section 242(g)of the INA expressly prohibits judicial review of deportation orders "[e]xcept as provided in this section and notwithstanding any other provision of law." The remainder of INA § 242, which contains the only judicial review procedures excepted from this bar, does not apply to deportation proceedings that were initiated prior to April 1, 1997. Section 309(c) of IIRIRA provides that the new judicial review amendments under § 306 of IIRIRA (which create INA § 242) do not apply to deportation cases instituted prior to the April 1, 1997 effective date. IIRIRA § 309(c)(1)(A). Such proceedings, including judicial review, shall continue to be conducted without regard to § 242. IIRIRA § 309(c)(1)(B).
Because Plaintiffs are in deportation proceedings that were initiated prior to April 1, 1997, their cases would be governed by the pre § 242 statutory scheme. If, however, the Court were to adopt Defendants' construction of § 242(g), all judicial review of pre-April 1, 1997 deportation cases would be entirely barred, a result that would raise serious constitutional issues.[2] The Court, however, chooses to adopt a common-sense interpretation of the statutes, under which claims arising from pre-April 1, 1997 deportations will be governed by the statutes as they existed prior to § 242, while cases in which the Attorney General elects to proceed under the new statutory scheme by virtue of § 309(c)(3) will be governed by § 242(g). This interpretation is consistent with the Court's responsibility to avoid an unconstitutional result, see, e.g. Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988); Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977), that would occur here if INA § 242(g) was applied to pending deportation proceedings.
The Defendants argue that the only exception to the purported total bar to judicial review under § 242(g) is that set forth in former § 106(a) of the INA, under which provision "the sole and exclusive procedure" to review "final orders of deportation" is in the court of appeals. The Defendants' effort to add the § 106(a) exception to the language of INA § 242 is not based on the language of the statute itself. INA § 242(g) simply does not provide an exception for proceedings under INA § 106 because § 106 is repealed in the same section 0907 IIRIRA 306(b) 0907 that creates INA § 242(g).
Although INA § 106 does not apply, as Defendants suggest, as an exception to INA § 242(g), it nevertheless applies as the preexisting law for deportation review. The Defendants, however, read INA § 106 to deny all district court review, while requiring that all issues be resolved in the circuit court of appeals. This action, however, presents class-wide challenges to policies of the Defendants and does not challenge the resolution of the merits 615 of any individual's claim for *615 relief from deportation. Here, the Plaintiffs seek to challenge Defendants procedural decision to bar all suspension of deportation claims as a result of Matter of N-J-B-. The Plaintiffs also challenge the Defendants' alleged unconstitutional conduct. Plaintiffs' success on these issues would not result in the grant of suspension of deportation in any case. It would simply remove the procedural bars to the right to be heard on the suspension claim. The Court finds that such claims are beyond the scope of former § 106(a). McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033-36 (5th Cir.1982); Montes v. Thornburgh, 919 F.2d 531, 535-36 (9th Cir.1990).
Moreover, the Plaintiffs' estoppel and due process claims, as set forth in their complaint and the evidence presented at the temporary restraining order hearing, are matters that cannot be addressed by an Immigration Judge ("IJ") or the Board of Immigration Appeals ("BIA"). Such claims are external to the deportation process itself and are beyond the jurisdiction of an IJ or the BIA to consider. Matter of Hernandez-Puente, 20 Int. Dec. 335, 338 (BIA 1991). Plaintiffs provided testimony that they have been lulled into a change of position, and an abandonment of substantial liberty and property rights, by the importuning of the INS to abandon their claims for political asylum and apply for suspension hearings, paying hundreds of dollars in fees. Their claim, which the Court finds to be very persuasive, is not one which IJs have any jurisdiction to consider. A record could therefore never be created before the IJ or the BIA that a Court of Appeals could review. As the Court of Appeals is bound by the record that the BIA presents, INA § 106(a)(4), 8 U.S.C. § 1105a(a)(4), it would have nothing to review in light of Matter of Hernandez-Puente. Further, the Court heard convincing testimony from lawyers practicing before the Immigration Court that they sought to raise estoppel claims before the IJs and were uniformly denied the right to do so. The Plaintiffs would be unable to develop a factual record before the IJ or BIA to support their estoppel claims.

Absent the existence of federal question jurisdiction in this Court to consider Plaintiffs' estoppel and due process claims, judicial review is entirely foreclosed. The Eleventh Circuit, on review of orders of the IJ and BIA, neither of which would have jurisdiction to review the estoppel claims in the first instance, would not be a forum in which the Plaintiffs could press such claims.
Because an IJ could not develop a record on which the estoppel or due process claims fairly could be tried, there can be no review except by means of a record created in this Court, from which the Court of Appeals ultimately can pass on the merits of the claim. It is only after the development of an appropriate factual record in the United States District Court on constitutional issues that are beyond the power of the immigration authorities to adjudicate in the administrative context that the Court of Appeals may properly consider these issues. The Court therefore finds that former § 106(a) cannot be construed to prohibit this Court from exercising its federal question jurisdiction to determine the estoppel claim in the first instance.
Nor can § 242(g) or former § 106(a) be construed to bar this Court's consideration of Plaintiffs' claims for deprivation of equal protection rights under the Fifth Amendment to the Constitution of the United States. That claim, like the estoppel and due process claim, cannot be addressed before the IJ or BIA. A factual record for the Eleventh Circuit to review can only be developed in the district court. To the degree that the Defendants urge the view that jurisdiction only resides in the Court of Appeals to consider the constitutional issues, Plaintiffs would be precluded from creating a record on the due process and equal protection issues. As the Plaintiffs' due process and equal protection claims rest on the development of a factual record in the district court, requiring them to raise such claims only before the Court of Appeals is tantamount to denying Plaintiffs' a forum before which they can raise their constitutional claims.
616 *616 Although the Congress may define the jurisdiction of the federal courts, it may not intrude upon the judiciary's essential function by denying any judicial forum to a plaintiff who asserts a violation of constitutional rights. There are constitutionally-protected liberty interests at stake when an alien is threatened with deportation and liberty and property interests where the right to seek suspension is removed. Persons who are so threatened must have the opportunity under the framework of our laws to raise their constitutional claims. Again, a contrary interpretation would seriously call into question the constitutionality of § 242(g) or § 106(a). See, e.g. Webster v. Doe. The Court chooses to interpret the statutes as not barring a plaintiff from asserting a federal constitutional violation in the United States District Court.
The Defendants' argument that all plaintiffs and class members should pursue their constitutional and nonconstitutional claims exclusively in the Court of Appeals upon receiving a final order of deportation from the immigration court also ignores the testimony introduced at trial that in many circumstances class members are being deported without any remedy to the circuit court. Nicaraguan members of the class who filed motions to reopen their proceedings for suspension of deportation at the invitation of the Defendants have had those motions pending before the BIA or IJs for months or years. During the pendency of the motions the Defendants agreed not to deport the Nicaraguan class members and in fact assured them there would be no problem. Thereafter, the BIA decided Matter of N-J-B-. As a binding precedent it is clear that Plaintiffs motions will not be granted. However, their cases have not yet been dismissed so they can not go to the circuit court to seek review. The class members are subject to immediate deportation because there is no stay in effect. Nor could they obtain a stay administratively because under Matter of N-J-B- they have no right to seek suspension. They may now be removed from the United States prior to the BIA acting on their motion to reopen. If their motion to reopen is not ruled upon by the IJ or BIA, there is no basis to seek circuit court review. Moreover, once deported, class members would lose all opportunity to have their claims heard.
The Court also rejects the Defendants' argument that Plaintiffs should be barred from pursing their action for failure to exhaust administrative remedies. As the Eleventh Circuit held in Garcia-Mir v. Smith, 766 F.2d 1478, 1488 (11th Cir.1985), a party need only present his claim to the agency. Here, each and every class member has presented his claim to the BIA or IJ. All claims are being denied for one reason 0907 Matter of N-J-B-.
Moreover, the courts have always recognized exceptions to the exhaustion doctrine. A plaintiff will not be required to exhaust remedies when it is utterly futile to do so. E.g., Honig v. Doe, 484 U.S. 305, 326-27, 108 S.Ct. 592, 605-06, 98 L.Ed.2d 686 (1988). Exhaustion would be futile here because the BIA has definitively spoken in

Matter of N-J-B-. No judicial interest would be served by requiring the Plaintiffs or other class members to wait until an administrative decision is rendered as that decision is compelled by Matter of N-J-B-.
There is also no exhaustion requirement where a party is asserting constitutional claims that the agency cannot adjudicate. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1560 (11th Cir.1989). Exhaustion of administrative remedies is also not required where, as here, the party is challenging a policy rather than the outcome of any particular case. Haitian Refugee Center, supra; Jean v. Nelson, 727 F.2d 957 (11th Cir.1984) (en banc), aff'd as to judgment to remand only, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985); Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982). Exhaustion of administrative remedies is also not required where, as here, claims requiring exhaustion and those not requiring exhaustion are "so intimately entwined ... as to make the application of the exhaustion requirement improvident even if technically permissible." Haitian Refugee Center, Inc. v. Civiletti, 503 F.Supp. 442, 468 (S.D.Fla.1980) affirmed, Haitian Refugee Center, 617 Inc. v. *617 Smith, 676 F.2d 1023, 1033-36 (5th Cir. Unit B 1982).
Moreover, there was substantial evidence introduced at the temporary restraining order hearing indicating that many persons will be deprived of their appellate rights to the circuit court simply because they do not have the finances to appeal their cases. Without the existence of this case, these Plaintiffs will be denied any forum to raise their constitutional and statutory claims.
The Defendants' argument would require the Court to rule that there is simply no remedy available for the 30-40,000 Nicaraguan refugees and others who have sought suspension of deportation. The Court declines to do so, under well established constitutional principles and rules of statutory construction. Many of the Plaintiffs and class members who have been in this country for as long as 12 or 14 years are now at risk of deportation under the INS' newly-announced interpretation in Matter of N-J-B-. The Defendants' Motion to Dismiss for Lack of Jurisdiction is therefore DENIED. The Court has jurisdiction in this cause.
PROVISIONAL CLASS CERTIFICATION
Plaintiffs have moved for provisional class certification. The class allegations in the complaint are that the named Plaintiffs either have been or will be denied suspension of deportation, for which they otherwise would have been entitled to apply had the BIA lawfully applied the governing statutes. The complaint further alleges that denial of suspension to the named Plaintiffs is identical to that which the members of the respective class have been subjected, with which they have been threatened, or to which they will be subjected. Having reviewed the pleading and memoranda, and having heard the argument of counsel, the Court finds that Plaintiffs have satisfied the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure.
First, the Plaintiffs, as set forth in the complaint, are adequate representatives of their class. The common goal of each member of the class is to enjoin the application of the BIA's decision in Matter of N-J-B-, to have orders entered establishing that their constitutional and statutory rights have been violated, and ultimately to establish that the BIA's interpretation of the governing statutes is incorrect. If the Plaintiffs succeed, the benefits will inure to all class members. Where the named plaintiffs in a class action are seeking the same type of relief for themselves as they seek for class members, the adequacy of representation requirement of Rule 23(a)(4) of the Federal Rules of civil Procedure is satisfied.[3]
The Court further finds that it is in a unique position to acknowledge the abilities of class counsel, Ira J. Kurzban, having presided over another matter, some 18 years ago, in which Mr. Kurzban, as lead counsel for the class, brought a class action on behalf of Haitian refugees. The Court is satisfied that the class will not only be 618 adequately *618 represented, but will be well represented, by Mr. Kurzban.
The Court is also satisfied that there is a predominantly common interest and that the requirements of "commonality" and "typicality" are satisfied. The complaint raises class-wide issues that are not directed to individual plaintiffs. Plaintiffs also challenge the manner in which the INS is administering its suspension program generally against Nicaraguan refugees, rather than challenging individual INS decisions. The issues raised in the complaint are precisely the type of common issues that Rule 23 envisions as properly subject to class action treatment.

The Defendants also raise a jurisdictional argument with respect to class certification, claiming that INA § 242(f) (1) bars injunctive relief for the class. The Court finds that INA § 242(f)(1) does not apply. It does not apply because all of INA § 242 does not apply to deportation and exclusion proceeding that were begun before April 1, 1997. IIRIRA § 309(c)(1)(B). All class members began their proceedings before April 1, 1997 and are therefore covered by IIRIRA § 309(c)(1)(B). Also, the section only applies to injunctions of a "provision of Part IV." Plaintiffs do not seek to enjoin the statute. They seek to enjoin constitutional violations and policies and practices of the Defendants that result in pretermission and deportation. Rather than seeking to enjoin the statute, they are seeking its implementation under the appropriate standard.
The Plaintiffs' Motion for Provisional Class Certification is therefore GRANTED.
THE MOTION FOR TEMPORARY RESTRAINING ORDER
The Plaintiffs have asked the Court to restrain the Defendants, including the Attorney General, the BIA, and officials and employees of the INS, from (1) enforcing the INS policy of pretermitting suspension of deportation applications based upon the interpretation of § 309(c)(5) of IIRIRA in Matter of N-J-B-, and (2) deporting named plaintiffs or class members during the pendency of this action. The Court has applied the traditional four-part test for determining whether a temporary restraining order ("TRO") is appropriate, i.e., whether (1) there is a substantial likelihood of success on the merits, (2) the TRO is necessary to prevent irreparable injury, (3) the injury to the plaintiff outweighs any harm to the nonmovant, and (4) the TRO would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995). The Court finds, based on the testimony presented by Plaintiffs at the May 13, 1997 hearing, the memoranda submitted by the parties, and counsel's legal argument to the Court, that each of these factors is satisfied and that the issuance of a TRO is mandated.
First, the Court finds that there is a substantial likelihood that Plaintiffs will prevail on the merits of their challenge to the INS' interpretation of § 309(c)(5). The decision in Matter of N-J-B-, a 7-5 ruling of the BIA, holds that § 309 (c)(5) of IIRIRA operates to terminate the right to seek suspension of deportation by Plaintiffs and class members, all of whom were served with orders to show cause prior to obtaining seven years of physical presence in the United States. Plaintiffs have presented a convincing argument that the BIA misinterpreted § 309(c)(5)of IIRIRA, which provision appears to have been intended only to apply to persons who apply for suspension of deportation and who are thereafter placed in removal proceedings by the Attorney General after April 1, 1997. This interpretation gives effect to all the words, United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955), including those in the relevant sections of IIRIRA (§ 309(c)(5)) and the INA (§ 240A (d)(1)).[4]
619 *619 Other rules of statutory construction also support the Plaintiffs' likelihood of success on the merits. Doubts in statutory construction should be resolved in favor of aliens. INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); INS v. Errico, 385 U.S. 214, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966); Barber v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 825, 98 L.Ed. 1009 (1954). To the degree that the statute is deemed to be ambiguous, it should not be read to disenfranchise tens of thousands of people who would otherwise qualify for suspension of deportation. INS v. Errico, supra.
There is also a strong presumption against the retroactive application of legislation. Landgraf v. USI Film Products, 511 U.S. 244, 268-69, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994). In Lynce v. Mathis, ___ U.S. ___, ___, 117 S.Ct. 891, 895, 137 L.Ed.2d 63 (1997) the Supreme Court reaffirmed this principle this term when it stated: "The presumption against the retroactive application of the laws is an essential thread in the mantle of protection that the law affords the individual citizen.... In both the civil and the criminal context, the Constitution places limits on the sovereign's ability to use its law-making power to modify bargains it has made with its subjects ..." This Court finds that the application of these rules to § 309(c)(5) of IIRIRA, even if there was an ambiguity in the statute, compels a different determination then that rendered by the majority in Matter of N-J-B-. The statute cannot be applied to disenfranchise so many who would have otherwise qualified for suspension of deportation.

Defendants' argument that the Court must be bound by INS' interpretation of the statute fails, because the Court is not bound by a plainly erroneous agency interpretation. E.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).
This Court accordingly finds that Plaintiffs have demonstrated a substantial likelihood that they will succeed on the merits of their challenge to the BIA's ruling in Matter of N-J-B-.
In addition, the Court finds that Plaintiffs have demonstrated a substantial likelihood that they will prevail on their claims of estoppel and Fifth Amendment violations. The Plaintiffs' argument that the United States government lured them into coming forward with applications for suspension of deportation and abandoning their applications for political asylum is very persuasive and satisfies the "substantial likelihood" requirement for a TRO.
Plaintiffs are also likely to prevail on their equal protection claims. The distinction between those persons who have been here substantially in excess of seven years but who were served with papers within seven years and those who are eligible for suspension because they evaded such service for seven years is "wholly irrational". Yeung v. INS, 76 F.3d 337 (11th Cir.1995) modified, Jan. 2, 1996; Garberding v. INS, 30 F.3d 1187 (9th Cir.1994); Francis v. INS, 532 F.2d 268 (2d Cir.1979).
Second, the Court finds, based on the evidence presented by Plaintiffs at the May 13, 1997 hearing in this cause, that Plaintiffs and class members would suffer irreparable harm if they are deported to their native countries after having been denied an opportunity to have a hearing on their claims for suspension of deportation. The denial of the suspension of deportation hearing also constitutes irreparable harm. The Court heard compelling testimony, which testimony was credible and persuasive, that Plaintiffs and their class members would suffer extreme hardship if they are denied the right to seek suspension and they are deported to their native countries. The failure to issue a TRO would result in irreparable harm, as Plaintiffs and class members would, in many instances, be separated from their families, forced to return to a country where they would face extreme hardship, 620 *620 suffer severe emotional trauma, fear, apprehension and panic. In addition there would be a significant financial and emotional hardship.
Third, the Court finds that the harm to the Plaintiffs and their class members substantially outweighs any possible harm to Defendants from a TRO. The failure to issue an injunction would result in irreparable harm to the plaintiffs and the class members. They would be separated in many instanced from their families and forced to go to a country where they may or will suffer extreme hardship. By contrast, the Defendants will be required only to establish a process whereby they will provide the Plaintiffs and class members precisely what was promised to them prior to the advent of the N-J-B- decision. That is, Plaintiffs and their class members will be accorded the suspension of deportation hearings that were widely publicized, that they paid application fees for, and that they were promised by INS prior to the adoption of IIRIRA. If Defendants ultimately prevail, they will have suffered no harm from the delay in going forward with deportations.
Finally, a TRO will greatly serve the public interest, particularly in this community. On the basis of the testimony presented to the Court by Plaintiffs, the Court finds that Plaintiffs and their class members have lived, worked, and raised their families in this community and that their deportation would have a devastating impact on their lives, as well as on the community itself. Many of Plaintiffs and class members have established homes in this community and work in the private sector, paying taxes and sending their children to school. The Court finds that the deportation of 30-40,000 otherwise eligible suspension applicants, from Nicaragua and elsewhere, would have an enormous impact on this community.
For these reasons, the Motion for Temporary Restraining Order is GRANTED in its entirety. The Defendants are restrained, as of the pronouncement of the Court's order in open Court at 6:00 P.M. on May 14, 1996, from deporting the Plaintiffs and class members pending further order of this Court. The Defendants are also temporarily restrained from enforcing Matter of N-J-B- and otherwise pretermitting applications for suspension of deportation based on Matter of N-J-B- or its rationale.
The Court recognizes, based upon the necessity for discovery before counsel effectively may represent their respective clients in a hearing on a preliminary injunction and its experience in similar class action cases, that counsel cannot reasonably be expected to go forward with a preliminary injunction hearing on an expedited

basis. However, given the position of the Defendants in demanding compliance with the provision of Fed.R.Civ.P. 56(b), the Court does hereby set an evidentiary hearing on a preliminary injunction in this matter, for 8:30 a.m., May 27, 1997, at the James Lawrence King Federal Justice Building, Miami, Florida. The government has specifically moved the Court to set the preliminary injunction hearing for May 27, 1997. Said motion was granted at the hearing held May 20, 1997.
The Defendants having insisted upon the immediate setting of a $50,000 bond, and the Court being aware of the impecunious state of the Plaintiffs from the testimony presented at the hearing, and that the potential damage to Defendants from the TRO is all but nonexistent, the Court rejects the Defendants' request as arbitrary and unreasonable. Bond is hereby set in the amount of $100.00.
This Order is in effect for ten days until May 24, 1997, but, may be extended for good cause.
ORDER DENYING MOTION TO STAY
The Defendants seek a stay of this Court's order granting Plaintiff Class' motion for expedited discovery which became imperative upon the Court's granting of the defense motion for an expedited hearing on preliminary injunction for 9:00 a.m. Tuesday, May 27, 1997.
The Defendants, having demanded and been granted their right to a preliminary injunction hearing within the ten 621 day period *621 specified in Fed.R.Civ.P. 65(b)[1] now object to the Court requiring expedited discovery of
essential testimony and documents the Plaintiff Class requires to support its contention of serious irreparable injury, and deprivation of significant rights guaranteed by the Constitution of the United States.[2]
Since it is the government's inflexible insistence upon their right to a preliminary injunctive hearing within the ten day period from entry of a temporary restraining order that rendered mandatory the entry of this Court's order of May 20, expediting discovery, it would appear that no further discussion is necessary. However, since the Defendants have not clearly set forth in their Mandamus Petition that the preliminary injunction hearing is to be held Tuesday, May 27, and that they were given the opportunity by the Court during the hearings held May 19 and 20, to have orderly discovery procedure (on a non-emergency basis), the Court feels impelled to set forth the procedural history, reflecting the extraordinary length to which the trial court has gone to avoid requiring depositions and discovery on May 24 and 26, 1997.[3] The Defendants, by demanding a preliminary injunction hearing next Tuesday, forced the Court to grant Plaintiffs' motion to expedite discovery.
HEARINGS HELD TO SET PRELIMINARY INJUNCTION HEARING DATES
At the conclusion of the evidentiary hearing held May 13 and 14, 1997, the Court orally entered a temporary restraining order, dictating its findings and conclusions into the record in open court and in the presence of all parties.[4]
A hearing was then scheduled (May 19) for the specific purpose of picking a date for the preliminary injunction hearing that would enable counsel for both sides to complete essential discovery in an orderly fashion, avoid conflict with prior court commitments and fully comply with Fed.R.Civ.P. 65(b)[5] as requested by Defendants.
Attorneys for the Plaintiff Class estimated the preliminary injunction hearing would require one and one-half to two weeks of full day trial time. Defendants estimated four hours is all that would be required. Counsel argued the length of time yet needed for Defendants to comply with the motions to produce pending since April 24, 1997, and a second motion to produce filed May 18, 1997. The government pointed out the complexities and 622 massiveness of hours involved to furnish the documentary evidence, but indicated that *622 they could commence complying by May 23, 1997.[6]

Plaintiffs' attorneys asked that they be furnished with the requested documentation within thirty days followed by a two week period to analyze the data and take depositions. The Plaintiffs indicated they could be ready for either a preliminary injunction hearing or a final hearing on the issues raised in this case within sixty to ninety days.

The government insisted that the hearing on preliminary injunction be set for commencement within the ten day period after entry of the temporary restraining order; arguing, firmly but very politely, that the Defendants had an absolute right to have the Court consider the legal issues of this case (after entry of a TRO) at a preliminary injunction hearing within the ten-twenty day period.

The parties were advised that the Court had a planned overseas vacation during the period May 28 to June 14, 1997. Lead counsel for the Plaintiffs, Mr. Ira Kurzban, announced that he and his family planned to attend the graduation of his daughter from Wellesley College May 29 through June 3, 1997.

In consideration of the difficulty in accomplishing essential discovery and conducting a preliminary injunction hearing within the ten-twenty day limit of Rule 65(b), while fully committed to preserving Defendants' right to have the hearing within that time limit if humanly possible, the Court suggested that the parties consider consenting to a continuation of the temporary restraining order entered May 14, for a period of up to sixty days, at which time the Court would conduct a one and one-half to two week preliminary injunction hearing. The Defendants, after discussion among themselves, stated that they did not consent. They further argued that under Defendants' interpretation of the law, they could commence deporting members of the Plaintiffs Class when the temporary restraining order automatically dissolved at the end of either the ten or twenty day period.

The Court then suggested that the parties agree to scheduling the temporary restraining order on June 16, 1997, thus enabling the undersigned and counsel for the Plaintiffs to adhere to their scheduled family and vacation plans. Defendants again stated that they could not agree to this suggestion.

The Court then announced that it would follow the mandate of Rule 65 and schedule the preliminary injunction hearing within the ten or twenty day period. The hearing adjourned to be reconvened the following morning at nine o'clock when the parties were required to report to the Court the time estimates for conducting the hearing (more sharply defined), the number of absolutely essential witnesses that would be required to be present, and the extent of documents to be produced.

The hearing resumed on May 20, again for the express purpose of selecting a date within the ten or twenty day period and within which essential discovery could be completed. The government was again asked if they could agree to a short thirty or sixty day delay so that the emergency nature of these proceedings would be eliminated, which the Defendants declined.

Upon consideration of the essential discovery that yet needed to be done, and in consideration of the Defendants' inflexible demand to commence resolving these issues at the preliminary injunction hearing within the ten or twenty day period, the Court ruled as follows:

1. The government's motion for a preliminary injunction hearing to be set for May 27, 1997 at 9:00 a.m. was granted.[7]

623

*623 2. The Court granted Plaintiff Class' motion for expedited discovery, setting the deposition for

the only two working days left before the commencement of the preliminary injunction hearing on

May 27 namely, for Saturday, May 24 and Monday, May 26.

3. The Court granted Plaintiff Class' motion for expedited document discovery to be furnished on Friday, May 23, 1997, in order that counsel for Plaintiffs could review the materials over night before commencing the discovery depositions on Saturday, May 24, 1997.

It is this order expediting discovery that Defendants seek to have reviewed by Writ of Mandamus in the Eleventh Circuit Court of Appeals.[8]

CONCLUSION
For the foregoing reasons, it is clear that the Court was forced to order expedited discovery by the action of the Defendants in insisting upon a hearing within the ten-twenty day mandate of Rule 65.
The Court made abundantly clear that if the government could simply agree to a short continuance of the temporary restraining order that the issues presented in this litigation could be resolved in an orderly fashion without requiring anyone to travel or be deposed on weekends and holidays.
The Court is still willing to schedule the preliminary restraining order at a more convenient time for the parties and litigants subject to the preservation of the status quo until these matters can be resolved.
Wherefore, it is
ORDERED, ADJUDGED and DECREED that the Defendants' motion to stay, filed with the Court at 8:10 a.m., May 22, 1997 be, and the same is hereby DENIED. It is further
ORDERED, ADJUDGED and DECREED that the Defendants cause to be forthwith filed with the Clerk of the United States Court of Appeals for the Eleventh Judicial Circuit, a transcript of testimony of the two hearings held on Monday and Tuesday, May 19 and 20, 1997, wherein the Court exhaustively explored all reasonable options for an orderly processing of the issues raised in this case. It is further
ORDERED, ADJUDGED and DECREED that a copy of this order be transmitted by facsimile to Ira J. Kurzban, Esq., Dexter Lee, AUSA, and Clerk of Court, Eleventh Circuit Court of Appeals.
[1] The Defendants claim that when lower level officials make immigration decisions those are the decisions of the Attorney General because the INA provides for delegation of authority by the Attorney General. The Defendants claim that since the plaintiffs are challenging the Board of Immigration Appeals ("BIA") decision in Matter of N-J-B-, Int. Dec. 3309 (BIA 1997) the BIA's decision is the decision of the Attorney General and review is therefore barred.
But the decision of the BIA is not factually, nor legally, the decision of the Attorney General. The Supreme Court recognized in U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) that there was a clear separation between the Attorney General and the BIA and that the Attorney General could not, without violating due process, interfere in the deliberative processes of the BIA. Moreover, the Defendants presented no evidence that the Attorney General ordered or directed the specific actions challenged. If the Attorney General wanted to "adjudicate" Matter of N-J-B-, she could have exercised her regulatory authority to do so under 8 C.F.R. § 3.1(h) as she recently did in another matter, see, Matter of Soriano, Int. Dec. 3289 (AG 1997).
Although the Attorney General may delegate her authority under the INA to lower level government officials in limited circumstances, see INA § 103(a)(4), (a)(6) and (c), she cannot determine the extent of federal jurisdiction by delegating her authority. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1560 n. 9 (11th Cir.1989), aff'd, 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991); Jean v. Nelson, 727 F.2d 957, 966 n. 11 (11th Cir.1984) aff'd as to remand only, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985); Abdelhamid v. Ilchert, 774 F.2d 1447, 1450 (9th Cir.1985). To allow the Executive Branch of our government to determine the extent of federal jurisdiction would be contrary to the fundamental principle that "it is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).
[2] The Defendants believe that INA § 242(g) applies to deportation proceedings because of § 306(c)(1) of IIRIRA which states that INA § 242(g) "shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation or removal proceedings under such Act." This provision, as the title states, goes not to the application of INA § 242(g) but to its "Effective Date." Section 306(c)(1) simply provides the timing, i.e., the "effective date" as to when § 242(g) will apply. However, once the language of § 242(g) itself is applied, the

language limits it to removal proceedings. The only sensible way to harmonize § 306(c)(1) of IIRIRA and INA § 242(g) is to find that INA § 242(g) applies to proceedings that began as exclusion or deportation proceedings but were changed into removal proceedings under § 306(c)(3) of IIRIRA. This provision allows the Attorney General, as part of a transition process, to change deportation proceedings into removal proceedings after April 1, 1997. If that were to be done, then § 242(g)'s language applying it "without limitation to claims arising from all past (or) pending ... deportation ... proceedings" would be given effect to bar the claims specified in the statute. The Attorney General has not exercised her authority to do that in this or, to the Court's knowledge, any other case.
[3] The Defendants claim that Plaintiffs are not adequate representatives for the class because there is a statutory cap of 4,000 on the number of persons who can receive suspension of deportation. This, the Defendants claim, places the named Plaintiffs' at odds with the class because they will be fighting with class members over the scarce number of suspension slots that may be left. However, there is no 4000 limitation to cause antagonism. The 4000 cap addressed in § 309(c)(7) is a cap on adjustment of status not on granting suspension of deportation. The statute provides that the "Attorney General may not suspend the deportation and adjust the status under section 244 of the Immigration and Nationality Act of more than 4,000 aliens in any fiscal year ..." (emphasis added). The word "and" must "be accepted for its conjunctive connotation rather than as a word interchangeable with `or'" unless such a "strict grammatical construction [would] frustrate clear legislative intent." Bruce v. First Federal Savings and Loan Ass'n of Conroe, Inc., 837 F.2d 712, 715 (5th Cir.1988). The Court concludes that IIRIRA 309(c)(7) prohibits the Attorney General from performing both 0907 rather than either 0907 of suspension and adjustment for more than 4,000 people in a fiscal year. The Attorney General is free, therefore, to grant as many suspension applications as she finds eligible provided that no more than 4,000 aliens are adjusted to permanent residency in any fiscal year. This reading of the cap is consistent with the former law that differentiated between obtaining suspension and obtaining residency. Compare former INA § 244(c) and (d). Moreover, even if there were a limited number of suspension slots open to class members each fiscal year, that would have no effect on the issue of whether the named plaintiffs can adequately represent the class.
[4] The two sections at issue are IIRIRA § 309(c)(5) and INA § 240A(d)(1). The new law replaces suspension of deportation with a new form of relief called cancellation of removal. Section 240A(d)(1) provides that the right to seek cancellation of removal is cut off if within ten years of entry the person has been placed in a removal proceedings, i.e., "served a notice to appear under section 239(a)". Section 309(c)(5) is a transition rule that states 240A(d)(1) "shall apply to notices to appear issued before, on, or after the date of enactment of this Act." When the statutes are read together, the only reading that gives effect to all the language in both statutes is that § 309(c)(5) applies only to a person who is issued (but not served with) an Order to Show Cause before September 30, 1996 and thereafter is served with a notice to appear for a removal proceeding under INA § 239 (a). The only time that this can occur actually or constructively is when the Attorney General elects under § 309(c) (2) or (3) of IIRIRA to put a person in a removal proceeding who was (or could have been) in a deportation proceeding.
[1] This can be extended for good cause, for an additional ten day period, for a total of twenty days.
[2] Although Defendants' motion to stay was not received in the chambers of the undersigned Judge until 8:10 a.m. on this date, the Defendants have taken the extraordinary step of seeking a Writ of Mandamus in the Eleventh Circuit Court of Appeals to prevent furnishing the testamentary and documentary evidence essential for presentation at the evidentiary hearing on preliminary injunction commencing next Tuesday.
The Plaintiff Class has not had an opportunity to respond to the motion to stay nor has the Court entered an order from which an appeal can be taken as required by Rule 8(a), Federal Rules of Appellate Procedure.
The Defendants furnished a courtesy copy of the Writ of Mandamus filed with the Eleventh Circuit at the same time the above motion for stay was filed.
[3] The Defendants have not furnished a transcript record of two hearings held before the Court on Monday and Tuesday (May 19 and 20) for the express purpose of exploring the options available to the parties to conduct this litigation in an orderly and non-emergency manner.

[4] Because of the lateness of the hour, and the necessity for the Court to orally announce its decisions on the Defendants' motion to dismiss the complaint, provisional class certification, and the plethora of legal issues involving estoppel, exhaustion of remedies, due process and equal protection issues, the Court did not announce a date for a preliminary injunction hearing.
[5] The Defendants have not filed transcripts to the Court of Appeals of any of the four hearings held thus far, in the record. The Court directed the official court reporter, upon noting this omission at 8:10 a.m. today, to expedite preparation of a transcript in order that a complete record would be available.
For the reason that no transcript has as yet been completed, the Court will be unable to make reference to transcript pages and will have to rely upon memory of what took place.
[6] Mr. Dexter Lee, attorney for the Defendants, said that full compliance could not be had in less than two weeks.
[7] The government agreed that a hearing commenced on that date would be within the ten days contemplated by Fed.R.Civ.P. 65(b) and that the temporary restraining order would continue to be in full force and effect until that date.
The government announced that it took the legal position that the Court would have to (a) conduct the hearing, and (b) complete its judicial labor by entering whatever opinion would be forthcoming at that time on the preliminary restraining order issue within the ten day extended to twenty day time frame.
[8] At the time the Mandamus was sought, as noted above, counsel for the Plaintiffs had not had an opportunity to respond nor has the Court had an opportunity to enter an order on Defendants' motion for stay filed at 8:10 a.m. May 22, 1997. In short, the government sought mandamus from a ruling not yet moved for or ruled upon.
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 </s> 972 F.Supp. 623 (1997)
Roberto TEFEL, et al., on behalf of themselves and all others similarly situated, Plaintiff/ Petitioners, v.
Janet RENO, Attorney General of the United States; Robert Wallis, District Director; Immigration and Naturalization Service and Department of Justice, Board of Immigration
Appeals, Defendant/Respondents.
No. 97-0805-CIV.
United States District Court, S.D. Florida.
June 24, 1997.
6245 *624 *625 Ira J. Kurzban, Kurzban, Kurzban, Weinger & Tetzeli, P.A., Miami, FL, Elliot H. Scherker, Oscar Levin, Greenberg, Traurig, Hoffman, Rosen & Quentel, P.A., Ester Olavarria Cruz, Vincente Tome, Rebecca Sharpless, Florida Immigration Advocacy Center, Miami, FL, Mario Martin Lovo, Mario M. Lovo, P.A., Miami, FL, Mary E. Kramer, Law Offices of Mary E. Kramer, Miami, FL, Linda Kelly, St. Thomas Law School, Miami, FL, Mario Louis, Miami, FL, Ernesto Varas, Law Office of Ernesto Varas, Miami, FL, Kari Woodward Carranza, Jeannette Mirabal, Law Offices of Magda Montiel Davis, Miami, FL, Robert L. Boyer, Law Offices of Robert L. Boyer, Miami, FL, for Plaintiffs.
Dexter A. Lee, Asst. U.S. Atty., Miami, FL, David Bernal, Senior Litigation Counsel, Office of Immigration Litigation, Dept. of Justice, Washington, DC, F. Franklin Amanat, Nelda C. Reyna, Trial Attorney, Office of Immigration Litigation, Dept. of Justice, Washington, DC, Ernesto Molina, Trial Attorney, Office of Immigration Litigation, Dept. of Justice, Washington, DC, Laura M. Friedman, Trial Attorney, Office of Immigration Litigation, Dept. of Justice, Washington, DC, for Defendants.
PRELIMINARY INJUNCTION
JAMES LAWRENCE KING, District Judge.
Prologue
With the drums of war beating an ever increasing cadence of death, destruction and misery across Central America during the 1980s, refugees, in the tens of thousands, fled their homelands. They came with the hope that a nation renowned throughout the civilized world for justice, fairness and respect for human rights would help them in their time of need.
These people, a trickle at first, then a torrent, and finally a flood, crossed illegally into the southwestern United States.
626 Many of these people, within a few days, weeks or months, reported to immigration *626 authorities, explained their plight, and sought help in obtaining government-issued work permits to enable them to find employment to support themselves and their families.
Throughout the administrations of three United States presidents, the Immigration and Naturalization Service carried out the policies of those administrations and responded in a humane and compassionate manner by issuing the necessary documentation, granting work permits, and helping them integrate into our society. Along with the work permits, issued year after year by the Defendants, was a document described as an "Order to Show Cause," advising the individual refugees that although they were being permitted to remain in this country, they were subject to deportation.

While the bloody civil conflicts continued in Nicaragua and El Salvador, tens of thousands of these refugees commenced new lives in America.
With the blessing of successive administrations and the Defendant Immigration and Naturalization Service, they found employment, established homes, married, had children and grandchildren, started businesses, paid taxes, obeyed our laws and contributed to their community, state and new country.
Although they did not know, these persons, who had lived here for many years, were about to be uprooted from their homes, separated from their families and deported.
Procedural Background[1]
On March 28, 1997, a Verified Class Action Complaint for Declaratory, Injunctive and Mandatory Relief and Writ of Habeas Corpus was filed with this Court by forty-one (41) Plaintiffs on behalf of themselves and a class representing thousands of persons similarly situated.
The class of persons in this case consists of:
All individuals within the states of Georgia, Alabama and Florida who have been or will be denied suspension of deportation as a result of the BIA's decision to apply the transitional rule of § 309(c) (5) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) retroactively to persons who have sought or are seeking suspension of deportation.[2]
The action was also brought on behalf of a subclass of persons, "who are Nicaraguan nationals who paid substantial fees to reopen their cases and/or to seek suspension of deportation as a result of the defendants' inducements and promises that their applications for suspension would be considered when in fact the defendants now refuse to consider such applications."[3] This subclass alone numbers in the tens of thousands. [4]
This lawsuit seeks to challenge the Defendants'[5] policy that deprives them of their right to seek suspension of deportation in the United States. The Defendants' policy, as expressed in the decision of Defendant Board of Immigration Appeals in Matter of N-J-B, Interim Decision No. 3309, 1997 WL 107593 (BIA 1997), is to strip the Plaintiffs and class members of their right to seek suspension of deportation by applying § 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice and State, and the Judiciary Appropriations Act of 1997, Pub.L. No. 104-208, 110 Stat. 3009 ("IIRIRA"), retroactively to bar such claims.
627 The Plaintiffs challenge the Government's conduct in four counts. Count I of the Complaint *627 challenged the Defendants' interpretation of § 309(c)(5) of IIRIRA as being arbitrary and capricious in violation of both the Immigration and Nationality Act and the Administrative Procedures Act. Count II challenged the Government's conduct as violative of the Immigration and Nationality Act and the Due Process Clause and Equal Protection guarantees of the Due Process Clause of the Fifth Amendment. The due process claims relate to the Government's conduct in creating, and thus denying, Plaintiffs' liberty and property interest in applying for suspension of deportation. Plaintiffs raise an equal protection claim based upon Defendants' dissimilar treatment of persons similarly situated in regard to suspension of deportation. Count III of Plaintiffs' Complaint sought estoppel against the Government by virtue of its conduct with regard to the subclass of Nicaraguan nationals seeking suspension of deportation. This count sought to challenge the conduct of the Defendants in inducing Nicaraguans to come forward and pay substantial fees to the Immigration and Naturalization Service on the promise that they would have a hearing on their claims for suspension of deportation. The Plaintiffs contend that the Defendants invited and encouraged tens of thousands of Nicaraguans to apply for suspension of deportation and to pay fees, knowing Congress was considering eliminating the right of Nicaraguans to seek suspension of deportation in the United States. Count IV of the Complaint addressed the alleged denial of due process in Matter of N-J-B itself, because the Defendant Board of Immigration Appeals ("BIA") had ex parte communication with the Defendant Immigration and Naturalization Service, invited them to submit a brief on the issue that the case was

ultimately decided upon, and never contacted or gave N-J-B-'s counsel the opportunity to brief the issue that formed the basis for the Defendant BIA's decision.
On April 17, 1997, after class members received letters to report for deportation,[6] Plaintiffs filed an application for a temporary restraining order and a motion for provisional class certification. The temporary restraining order sought to restrain the Defendants from enforcing their policy of pretermitting suspension of deportation applications based on an erroneous interpretation of § 309(c)(5) of IIRIRA as expressed in Matter of N-J-B, and to restrain the Defendants from deporting Plaintiffs and class members during the pendency of this action.[7] At the same time, Plaintiffs filed a motion for provisional class certification, seeking to certify the class and subclass as stated in their Complaint. On April 21, 1997, Defendants filed a memorandum of law in opposition to the application for temporary restraining order and in support of a motion to dismiss. On May 1, 1997, Defendants filed their opposition to Plaintiffs' motion for provisional class certification. An evidentiary hearing was held in this matter on May 13, 1997, and argument of counsel on all pending motions was heard on May 14, 1997. At the conclusion of counsel's argument, the Court, in open court in the presence of all parties, orally announced its decision (and the reasons therefor), granting the TRO. On May 20, 1997, this Court entered a formal written Order, embodying its oral decision, denying Defendants' motion to dismiss, certifying the class and appointing lead counsel, granting a temporary restraining order, and setting a preliminary injunction hearing for May 27, 1997. The Court addressed Plaintiffs' and Defendants' jurisdictional arguments extensively in that Order, which are incorporated herein by reference.[8]

THE TEMPORARY RESTRAINING ORDER

The Court's oral ruling, announced in open court, in the presence of all parties held:

"It is 5:30 in the evening. I suppose we have been at this since about 2:30 this afternoon, roughly,

628

but I suppose that everybody would just as soon find what's *628 going to happen to not only their

case, but, in some instances, or, indeed, many instances, their lives.

First, let's turn to a consideration of the motion to dismiss the complaint filed by the Defendant Janet Reno, Attorney General of the United States, et al.

The standard, as we all know for a motion to dismiss, under Federal Rules of Civil Procedure 12 (B)6, is whether or not the complaint states a claim, when taken literally with all the averments, is true and correct and accurate.

Eleventh Circuit cases teach us a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. I am citing from an Eleventh Circuit case at 951 F.2d 1238.

The Court has concluded after careful examination of all the briefs of the parties and the evidence that's been presented and the legal argument of counsel that it does have jurisdiction in this matter to rule upon this complaint.

The motion to dismiss, therefore, will be and is denied for the following reasons:

As counsel for the Plaintiffs have pointed out in their memorandum and brief, there is a strong presumption that actions by any federal agency are judicially reviewable in the federal courts unless expressly mandated otherwise.

The Government has pointed out, quite correctly, the explicit language of Section 242(g), and they rely heavily on Section 106, sub (a), which, on the surface, contains language that is not inconsistent with the position taken by the Government, but which, upon thorough and careful examination and scrutiny, as you all have forced me to do in this case by your well-written and thoroughly prepared briefs, memorandum and argument, impelled the conclusion that Section 242

(g), under the circumstances of the issues raised in this complaint, do not bar the Court's consideration and determination of these issues.

This case makes class-wide challenges to I.N.S. policies and does not purport to or attempt to address the merits of individual cases; thus, in this Court's view, it is not precluded by Section 106 (a).

The estoppel claims raised in the complaint, the constitutional claims of estoppel are certainly beyond the scope of an immigration judge to review, Board of Immigration Appeals to review, and are, therefore, external to the deportation process envisioned by the jurisdiction of the provisions of the law pertaining to the authority of the immigration judge and the Board of Immigration Appeals.

Therefore, these claims could not be reviewed except here. They could not be reviewed by the Eleventh Circuit Court of Appeals. Certainly, any interpretation of these laws on any record developed in the United States District Court for the Southern District of Florida can be properly, and should be properly, reviewed by the Court of Appeals.

But, without a record, and none can be developed by an immigration judge under the current posture of the interpretation of the law, as articulated by the various decisions of the immigration judges and the Board of Immigration Appeals, there can be no development of a record; therefore, there can be no review.

Section 106(a) does not bar claims, as I've indicated, that the court 0907 that they cannot consider because there is no factual record, or indeed any process by which a record can be developed; so, therefore, the Court of Appeals under its own rules and the law cannot consider those issues.

The only place the Court of Appeals can properly, carefully and thoroughly consider these issues is upon development of a record here in the United States District Court on these constitutional issues which are beyond the pale of the immigration authorities, immigration courts.

Section 242(g) certainly does not, in the opinion of this Judge at least, bar the constitutional claims

of estoppel, due process and equal protection. There are constitutionally protected liberty interests

629

when an alien is threatened by deportation that that person should have the opportunity *629

somewhere, some place within our frame of the law, to able to contest, raise or discuss and have

determined. I do not believe 242(g) does bar those constitutional claims.

The issue raised by the Government, which is a very interesting and well-reasoned and thoroughly thought out one about exhaustion of administrative remedies, bears comment.

It seems to me that all of the law that is applicable to those cases where it has been held time and again that it is futile to take an issue to a court because that court has already determined or acted upon or pronounced the law to be, or pronounced its position to be, that it does not have jurisdiction to consider an issue come into play.

That is to say, that if it is futile to take an issue to a court, then that matter may be reviewed in the appropriate process of our federal and state system and administrative system without the requirement that exhaustion be fully effected. Exhaustion is futile; it need not be required.

The arguments advanced by whether or not these actions by the immigration judges and the Board of Immigration Appeals are, indeed, actions of the Attorney General of the United States, the Honorable Janet Reno, as advanced by the Plaintiffs, are persuasive.

The arguments advanced by the Plaintiffs that they have been lulled into a change of position and an abandonment of substantial property and liberty rights, at least liberty rights, by being importuned by the Immigration and Naturalization Service to come into the process, abandon their political asylum claims, and apply for suspension hearings and pay the fees that were required for

that, that argument makes a lot of sense; it is very persuasive. That certainly is something that the immigration courts have held they have no jurisdiction to consider at this point.

So, going back to basic, basic concepts in all of our jurisprudence, one that we all learn the first year in law school: For every wrong, or let me say for every perceived wrong, there is a remedy.

From what I have heard in this case yesterday and today in a very well articulated legal argument of both sides, there simply is no remedy for the perceived wrongs of these thirty to forty thousand Nicaraguan refugees who are here in this country under this 0907 and are at risk under this procedure, and this new law and the interpretation of this new law as advanced by the Department of Justice.

Therefore, the motion to dismiss is denied. The Court finds and holds that it does have jurisdiction to consider the application for temporary restraining order.

Before turning to that, though, perhaps along with that, it seems that the Court should address the problem of whether or not we are dealing with a class or whether or not we are dealing with two plaintiffs.

The Court finds that this record establishes on the pleadings, briefs, memoranda and argument of counsel, based upon all of the testimony that has been taken during the proceeding, and also in considering that the Plaintiffs have satisfied the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure.

The Court is satisfied that the Plaintiffs are adequate representatives of the class. It is unique and unusual perhaps in the history or time span of a judicial or legal career, that the Court would have some knowledge of the ability of the attorneys who seek to represent the class, this particular class, would have some personal knowledge based upon 0907 a professional knowledge based upon other cases or other matters that have come before the Court. But as counsel reminded me today, and I have forgotten the number of years, but it's been eighteen years ago that Mr. Kurzban brought a substantial class action or sought class action certification for a substantial number of Haitian refugees.

The Court, having had the experience eighteen years ago, as he reminds me or he tells me,

eighteen years ago this month, of observing Mr. Kurzban and his colleagues in that case in their

representation of the class, the Court is comfortable and satisfied that the class would be

630

adequately, *630 I could say well adequately represented, in this matter by Mr. Kurzban and his

colleagues in this case.

Another element that the Court has to consider is whether or not there is a predominantly common interest that is indigenous to the class. The Court is satisfied with the showing made by the Plaintiffs in this matter of commonality and typicality in the issues, the legal issues that are raised. As I've said, they are classwide in their assertion; they are not directed individually. And they are the type of common issues that Rule 23 of the Federal Rules of Civil Procedure envision are properly the subject matter of class action treatment.

Mr. Kurzban has cited back to me my own opinions, which is somewhat rude of him, I say facetiously, but I have been here long enough I guess it happens, and it is starting to happen in cases. But he says that I said in the Haitian Refugee Center case that the matter in which the entire program is being implemented rather than challenging individual treatment determines the underlying application of class action treatment.

And I think within a framework similar to that we could deal with this problem and thus perhaps save the United States Court of Appeals for the Eleventh Circuit whatever number of thousands or tens of thousands of cases that might otherwise have to go there, provided, of course, that it could be demonstrated that the people could or would take that step and follow that process or procedure.

Therefore, the motion for class action treatment is granted.

I know you are all getting tired of listening, but I suppose we might as well go ahead and decide the only remaining at this point, or the last remaining substantial issue, and that is whether or not a temporary restraining order should issue.

The Court has concluded that it should.

The Plaintiffs in this matter have sought by their pleadings and argument to restrain the Defendants, being the Honorable Janet Reno, Attorney General of the United States, Robert Wallis, District Director of the Immigration and Naturalization Service, the Board of Immigration Appeals, and any persons acting by or under or with their authority, including any employees, staff, counsel or supervisory personnel that act within the framework of any of those administrative agencies, from enforcing the policy of pretermitting suspension of deportation applicants based upon an interpretation of Section 309(c)(5) of the Immigration Reform and Responsibility Act of 1996 as expressed in the Matter of N-J-B and the Board of Immigration Appeals 1997, and restraining the Defendants from deporting Plaintiffs and class members during the pendency of this action.

The Court finds that the Plaintiffs have established a substantial likelihood that they will prevail on the merits of their claim with respect to Section 309(c)(5) of the Immigration Reform and Responsibility Act of 1996. And that that section they have made the requisite showing that that does not apply to persons in deportation proceedings.

Secondly, the Court finds that the Plaintiffs and their class members would suffer irreparable harm if denied an opportunity to have a hearing on their claims for suspension of deportation and instead are deported to their home countries.

The Court finds on the basis of this record that the Plaintiffs and their class members would suffer extreme hardship if they are returned to their home countries at this point in time under the status of this case as it now stands.

Three, the Court finds the harm to Plaintiffs substantially outweighs any possible harm to the Defendants from the entry of an injunction. The failure to issue an injunction would result in irreparable harm to the Plaintiffs and the class members. They would be separated in many instances from their families and forced to go to a country where they may or will suffer extreme hardship.

By contrast, the Defendants, if the Plaintiffs prevail ultimately on their claim, will only be required

631

to maintain a process whereby they provide this class before it *631 was promised to them in the

widely disseminated application, widely disseminated notice to Nicaraguan class members to

come in and seek a hearing on the suspension 0907 to seek the suspension hearing.

Four, a temporary restraining order would serve the public interest. The Court finds on the basis of this record that the Plaintiffs and the class members herein have lived, worked and raised families in this community and elsewhere and the deportation of these persons would have a devastating impact on not only their lives but the community, the state and perhaps other parts of this nation.

Many of the class members at risk have established homes, settled families, have attended school, worked in the private sector and paid taxes to this community and this state.

The Court finds that the deportation of as many as thirty to forty thousand otherwise possibly eligible Nicaraguan suspension applicants would have an enormous impact on this community.

For all of these reasons, the Court will enter, and does enter, a temporary restraining order as sought by the Plaintiffs in their papers and the Defendants are enjoined from deporting the Plaintiffs and all class members pending further orders of this Court."

In light of the Defendants' insistence that the Court commence a preliminary injunction hearing before expiration of the temporary restraining order, the Court issued an Order on Pending Motions on May 21, 1997, expediting discovery. The Court noted in that Order that, "due to the insistence" of the Defendants, "it is therefore necessary that discovery be expedited in order to insure that a record is fully developed, that Plaintiffs be given an opportunity to fully present their case, and that this Court has all information necessary to render a complete and informed decision on the serious issues before the Court."[9]
On May 27, 1997, the Court commenced the preliminary injunction hearing. The Defendants were unable to fully comply with the discovery within the time period, and Plaintiffs were therefore unable to present a full case on May 27, 1997.[10] On May 27, 1997, after hearing some testimony, the Court entered an Order extending the temporary restraining order through Thursday, June 12, 1997, and referred the matter to the Magistrate Judge to hear the remaining testimony in the case.[11] The extension of the temporary restraining order to June 12, 1997, was consistent with the requirements of Federal Rule of Civil Procedure 65(b).[12]
From May 27, 1997, through June 12, 1997, Plaintiffs and Defendants conducted extensive discovery in this case. Discovery continued during and through the Memorial Day weekend and each and every weekend between those time periods. As the Defendants insisted that they would treat any extension of the temporary restraining order beyond June 12, 1997, as a preliminary injunction subject to appeal, both sides made substantial efforts to complete discovery and hold evidentiary hearings. Evidence was presented before the Magistrate Judge on June 3, 4, 9, 10 and 11, 1997.[13] During this time period, Plaintiffs presented testimony from expert and lay witnesses, including a statistician,[14] the Assistant County Manager of Dade County,[15] several clergymen,[16] 632 prominent members of the Nicaraguan business *632 community,[17] and class members.[18] Previously plaintiffs had presented evidence from a media representative[19] and from attorneys representing Nicaraguan class members.[20] The Plaintiffs also presented substantial documentary evidence in support of their claims.[21] The Court incorporated by reference the Transcript and Exhibits offered at the temporary restraining order hearing.[22] The Defendants presented no live testimony. The documentary evidence they entered was solely directed to what they regarded as the legislative history of § 309(c)(5) of IIRIRA.[23] The Defendants also offered a small number of the named Plaintiffs' depositions as evidence.[24]
THE MAGISTRATE JUDGE'S RULING AND RECOMMENDATION
After hearing the extensive evidence presented and reviewing the transcripts, Magistrate Judge Brown concluded that the Plaintiffs had established three of the four criteria necessary for a preliminary injunction, ruling:[25]
"That a preliminary injunction is necessary to prevent irreparable harm ... that the injury to the Plaintiffs would clearly outweigh any harm to the non-movant ... [and] that a preliminary injunction would serve the public interest."[26]
THE PRELIMINARY INJUNCTION EVIDENTIARY HEARING VS. TRIAL
It is easy for the distinction to become blurred between a preliminary injunction evidentiary hearing and a trial on the entitlement to permanent injunction, because of the similarities between the two proceedings in the trial court. It is imperative however, particularly in the context of the proceedings in this case that the distinction be clearly understood.
The Defendants have, consistently, unequivocally, and respectfully asserted: (1) reliance upon Fed.R.Civ.P. 65 (b), mandating automatic expiration of the TRO on June 12, 1997, and if extended beyond the twenty-day period of the Rule, their intention to ask the Court of Appeals to treat the stay as a preliminary injunction; and (2) resisted discovery sought by the Plaintiff class on the theory the Plaintiffs are not entitled to get full discovery since procedurally this case is at the preliminary injunction stage and is not a final permanent injunction trial.

With Defendants applying these two defensive positions as trial strategy (which they had every right to do under the Federal Rules of Civil Procedure), the result was an intense hard-fought struggle by the Plaintiffs, on the one hand, to obtain the evidence they needed and, by the Defendants, on the other hand, to resist discovery by all lawful and proper means.
The twenty days following entry of the Temporary Restraining Order on May 14, 1997, taxed the talents and resources of all counsel far beyond normal professional limits. The parties, and their counsel, literally worked around the clock, through Memorial Day weekend and all other weekends, in their struggle to present (and to resist) a record on the issues for the Court to consider.[27]
633 *633 Nothing should be inferred from the Court's foregoing recital of the intense activity of counsel that the Court is criticizing Defendants or their counsel for their respectfully stated positions and reliance upon the defenses available to them under the Federal Rules of Civil Procedure and case law.
It does, however, bring into sharp focus the procedural differences between preliminary and permanent injunctions, and the scope of judicial consideration of the evidence necessary to meet the requirements for issuance of a preliminary injunction versus the magnitude of evidence to be considered at a trial on the question of issuance of a permanent injunction.
As stated in University of Texas v. Camenisch, 451 U.S. 390, 394, 101 S.Ct. 1830, 1833, 68 L.Ed.2d 175 (1981), the preliminary injunction prerequisite factor of "likelihood of success" on the merits must not be improperly equated with "success" on the merits. Blending "likelihood of success" with "success" would be particularly wrong in the case at bar, given the defense strategy of resisting discovery on the claim that the Plaintiffs are not entitled to get full discovery at this preliminary injunction stage.

LEGAL REQUIREMENTS FOR PRELIMINARY INJUNCTION RELIEF

The Court has applied the traditional four-part test for determining whether a preliminary injunction is appropriate, as articulated most recently in Warren Publishing, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1516-17 (11th Cir.1997). To succeed, the Plaintiff class must show: (1) that there is substantial likelihood of success on the merits, (2) that the preliminary injunction is necessary to prevent irreparable injury, (3) that the injury to the Plaintiff outweighs any harm to the non-movant, and (4) the preliminary injunction would serve the public interest.

The Fifth Circuit Court of Appeals in Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 576-77 (5th Cir.1974) suggested guidelines to be applied by district courts considering preliminary injunction applications in the following language:

First and foremost, we reemphasize the importance of the general requirements for a preliminary injunction. It is an extraordinary remedy, not available unless the plaintiff carries his burden of persuasion as to all of the four prerequisites. The primary justification for granting a preliminary injunction is to preserve the court's ability to render a meaningful decision after a trial on the merits.

It is often loosely stated that the purpose of a preliminary injunction is to preserve the status quo.

* * * * * *

It must not be thought, however, that there is any particular magic in the phrase "status quo." The

purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the

court's ability to render a meaningful decision on the merits. It often happens that this purpose is

furthered by preservation of the status quo, but not always. If the currently existing status quo

itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to

prevent the injury, either by returning to the last uncontested status quo between the parties,

Ross-Whitney Corp. v. Smith Kline & French Laboratories (9th Cir. 1953), 207 F.2d 190, by the

634

issuance of a *634 mandatory injunction, see 7 Moore's Federal Practice Chapter 65.04[1], or by

allowing the parties to take proposed action that the court finds will minimize the irreparable injury. The focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo. The parties have not made a major issue of the requirement that plaintiff demonstrate a substantial likelihood of prevailing on the merits, and the various court orders do not discuss the issue. However, it is important to consider this requirement, since, regardless of the balance of relative hardships threatened to the parties, the granting of a preliminary injunction would be inequitable if the plaintiff has no chance of success on the merits. The importance of this requirement varies with the relative balance of threatened hardships facing each of the parties.
Although a showing that plaintiff will be more severally prejudiced by a denial of the injunction than defendant would be by its grant does not remove the need to show some probability of winning on the merits, it does lower the standard that must be met. Conversely, if there is only slight evidence that plaintiff will be injured in the absence of interlocutory relief, the showing that he is likely to prevail on the merits is particularly important. Wright & Miller, Federal Practice and Procedure: Civil § 2948. In this context, the district court should consider the relevance of Gulf Oil Corp. v. Morton (9th Cir.1973), 493 F.2d 141.
Applying these principles, we turn to consideration of the four-part test.
I. LIKELIHOOD OF SUCCESS ON THE MERITS
The Plaintiff class contends that the interpretation that § 309(c)(5) of IIRIRA[28] be applied retroactively is erroneous. The interpretation of § 309(c)(5) is embodied in the various memoranda of the Office of the Attorney General, the office of the General Counsel of INS, and other decision making and high-ranking officials of the offices of the several Defendants. The retroactivity application interpretation by the Defendants is also embodied in the seven-to-five majority opinion of the Board of Immigration Appeals in the Matter of N-J-B, Interim Decision No. 3309, 1997 WL 107593 (BIA 1997).
Conversely, the Defendants' extensive memorandum of law in opposition to the class application for preliminary injunction takes the position that Congress, not the Defendants in this litigation, legislated the retroactivity of § 309(c)(5).
Additionally, the Plaintiff class has presented substantial evidence (even at this preliminary stage of the proceedings in this case) supporting their challenge to the Defendants' interpretation of IIRIRA upon due process, equal protection of law, and estoppel claims. These issues will be addressed at a subsequent portion of this opinion.
Turning first to whether Plaintiffs have met the requisite burden of proof of likelihood of success on the merits on their contention of the erroneous interpretation by Defendants of IIRIRA, the issue is whether the Act was meant to be applied retroactively to cut off the seven years of physical presence needed to qualify for suspension of deportation.
Any deportation and exclusion proceedings ongoing prior to April 1, 1997, continued unchanged under IIRIRA, including ongoing suspension of deportation proceedings under § 244 of the former Immigration and Nationality Act ("INA"). IIRIRA 309(c)(1). Suspension of deportation under former § 244 required that a person have seven years of physical presence to be eligible for this relief. Persons who were in deportation proceedings prior to April 1, 1997, such as the class members in this case, could continue to apply for suspension of deportation under former § 244, and have their cases adjudicated under the old law.
635 *635 Two exceptions to continuing under the old law provision were written into IIRIRA. Sections 309(c)(2) and (3) allow the Attorney General to elect to place persons who were in deportation proceedings into the new removal proceedings under certain circumstances. Additionally, a "transition" rule provided that the new § 240A (d)(1) will cut off physical presence if the respondent is "served with a notice to appear under § 239(a)." This transition provision applies "to notices to appear issued before, on, or after the date of enactment" of IIRIRA. IIRIRA § 309(c)(5).

On October 3, 1996, the INS General Counsel issued a memorandum interpreting § 309(c)(5) to apply retroactively to persons in suspension of deportation proceedings. This analysis starts with the assumption that an order to show cause is identical to a notice to appear, thus service of an order to show cause cuts off physical presence in the United States. A majority on the Board of Immigration Appeals agreed with this interpretation several months later in Matter of N-J-B, thereby building upon the original erroneous assumption.
On the basis of the record as compiled before this Court during the proceedings at both temporary restraining order and preliminary injunctive hearings, careful analysis of the legal authorities cited by counsel for the respective parties, and a plain reading of the statutory language impelled the conclusion that the Defendants' original assumption and ultimate interpretation is wrong.
Section 309(c)(5) incorporates the provisions of § 240A(d)(1), which reads:
"(d) Special rules relating to continuous residence or physical presence.
(1) Termination of continuous period.
For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear under § 239(a) or when the alien has committed an offense referred to in § 212(a)(2) that renders the alien inadmissible to the United States under § 212(a)(2) or removable from the United States under § 237(a)(2) or 237(a)(4), whichever is earliest."
Clearly, the above-quoted section does not terminate the period of continuous physical presence necessary for suspension until "when the alien is served a notice to appear under Section 239(a)." (Emphasis added.) Defendants' interpretation, firstly, overlooks the service requirement of § 240A(d)(1).
Secondly, Defendants' interpretation of § 309(c)(5) changes the plain language of § 240A(d) requiring service upon an alien to simply issued after the date of enactment of the new law (September 30, 1996). The Defendants' analysis and interpretation of § 309(c)(5) relies upon an interpretation that the old "Order to Show Cause" and the new "Notice to Appear" are identical. An Order to Show Cause, particularly prior to 1992, was a very different instrument from the current Notice to Appear.
The Court finds that a prior-issued Order to Show Cause can terminate a suspension applicant's physical presence only when and if the Attorney General elects to apply the new law to those persons under §§ 309(c)(2) or (3), and actually or constructively serves the applicant with a Notice to Appear under § 239. Since neither § 240A(d)(1) nor § 309 took effect until April 1, 1997, no such designation by the Attorney General of the United States has taken place.
It is a basic canon of statutory interpretation that legislative purposes are expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 191-92, 104 S.Ct. 584, 590-91, 78 L.Ed.2d 401 (1984); Ardestani v. INS, 502 U.S. 129, 135-37, 112 S.Ct. 515, 519-21, 116 L.Ed.2d 496 (1991). In statutory interpretation, it is clear that each word is given its proper and usual meaning with no word stricken as surplusage. Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988); U.S. v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955). Also, statutory sections must be construed harmoniously so as to give effect to each section. Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corp., 489 U.S. 561, 573, 109 S.Ct. 1361, 1368-69, 103 L.Ed.2d 602 (1989). Review of the legislative 636 history of this Act, considered in light of the analysis of the *636 respective parties in their thoroughly written briefs in this case, brings one to the conclusion that Congress did not intend for § 309(c)(5) to be interpreted so broadly as to eliminate the right of aliens to apply for suspension of deportation where they played no role in delaying their cases.
The Court's interpretation of this statute is supported by the testimony of Mr. Peter Deutsch, a member of the United States House of Representatives from District 20 in the State of Florida. Congressman Deutsch voted for IIRIRA, including § 309(c)(5), but testified that the interpretation of the Defendants was not contemplated by the legislation. Congressman Deutsch stated that "our feeling was that the interpretation by the Board was an

incorrect interpretation. I'm someone who actually voted for the legislation, but I don't think really anyone contemplated that the legislation would have specifically changed the issue of suspension ... I don't think anyone who voted on this legislation contemplated the effect of the ruling ... If this was something that Congress wanted to occur we wouldn't be debating this issue now. It would have been expressed much more clear in the legislation."[29] Congressman Deutsch's sentiments were also expressed in a letter that he and other members of Congress sent to the Attorney General of the United States.[30]
THE DUE PROCESS CLAIM
Turning to a consideration of whether the Plaintiff class has established a likelihood of success on the merits on their due process claim of deprivation of their right to a hearing on their claim for suspension of deportation, the record establishes Plaintiffs' reliance on a myriad of statutes, regulations, administrative policy and official conduct giving rise to due process property and liberty interests.
The Defendants initiated a policy in May and June of 1995 that was designed to induce and encourage Nicaraguan class members to come forward and submit applications for suspension of deportation.[31] The purpose of this special program was to induce Nicaraguans to come forward and to apply for, and pay fees for, suspension of deportation. In order to accomplish the goal of inducing and encouraging Nicaraguans to come forward, the INS specifically set out to offer them a benefit not given to other nationals. To encourage Nicaraguans to file motions to reopen and applications for suspension of deportation, they were informed that they would be given work authorization upon the filing of motions to reopen 0907 a benefit not accorded other nationals. In her memo to the field, Joan Higgins, Assistant Commissioner for Detention and Deportation, stated that special treatment would be accorded Nicaraguans who filed motions to reopen and sought suspension of deportation. She stated: "In order to be eligible for suspension of deportation, under normal circumstances, such an alien must have a motion to reopen their immigration hearing granted by the Executive Office for Immigration Review (EOIR). However, in order to avoid lapses in employment authorization for Nicaraguans who appear eligible for suspension, the INS will accept employment authorization applications from Nicaraguans with final orders of deportation provided they submit evidence that they have filed 0907 not been granted 0907 a motion to reopen in conjunction with an application for suspension of deportation. ..."[32] Similarly, local INS officers in the Miami District noted in drafts concerning the new suspension program that, "normally this [a motion to reopen] must be granted before INS considers the application properly filed for purposes of work authorization eligibility...."[33] Even Gerri Ratliff, Counsel to the Deputy Attorney General, in a draft memo to various persons in the Department 637 of Justice, acknowledged the special inducement that the INS provided to Nicaraguans *637 to make them come forward to pay fees and apply for suspension of deportation. She stated that: "Without this new policy, INS would not grant the motion to reopen, which could take several months ..."[34] The policy was published in the Federal Register, thus providing notice to the world as to the special policy for Nicaraguans.[35] The notice stated that "specifically, the INS will treat the filing of a motion to reopen deportation proceedings accompanied by an application for suspension of deportation as a sufficient basis upon which such a person may apply for work authorization." The matter was also widely publicized in the press.[36] The INS' policy was also distributed in the mass media via television programs that cover 99% of Hispanic households in Dade and Broward Counties.[37]
In addition, INS established a policy of not opposing any motion to reopen that was filed by Nicaraguans. David Martin, General Counsel of the Immigration and Naturalization Service, sent a letter to Paul Schmidt, Chairman of the Board of Immigration Appeals, that stated that "the Service has reconsidered its position regarding motions to reopen filed by Nicaraguans since the phaseout of the Nicaraguan Review Program.... The Service has determined that it will not oppose a motion to reopen to apply for suspension of deportation if the alien appears to be statutorily eligible for that relief.... Upon the filing of a motion to reopen the Service may grant work authorization upon finding that the physical presence requirement for suspension of deportation has been met." [38] During the same time period, memos were sent out to trial attorneys around the United States "not to oppose MTR's (motions to reopen) filed by Nicaraguans who are eligible for suspension."[39]

This policy was also reinforced by the Defendant BIA because it developed a far lower standard for reopening Nicaraguan cases than those of other nationals. Matter of L-O-G, Interim Decision No. 3281 (BIA 1996) ("Given the fact the Service has taken no action to deport these respondents and indeed, indicated its acquiescence in the filing of suspension of deportation applications by similarly situated individuals, we find no reason to deny reopening as a matter of discretion".)
When this program during the first year resulted in only approximately 2,500[40] Nicaraguans reopening their cases, the INS increased its efforts. INS not only republished the notice in the Federal Register, extending the program to June 12, 1997,[41] but it initiated an extensive media promotion. The Defendants also circulated the notice to Interpreter Releases, a journal widely read by immigration lawyers throughout the United States.[42] They developed fact sheets to submit to the press and the public.[43] They developed a question-and-answer sheet for "media guidance."[44] The Commissioner herself sent letters to community leaders such as Haydee Marin, stating that the Defendants had decided to extend the program through June 12, 1997, because "this will allow advocates for and within the Nicaraguan community in the United States additional time to publicize the opportunity to file for suspension of deportation and to secure legal assistance for eligible Nicaraguans."[45]
At the local INS office, special procedures were established to notify Nicaraguans that they should apply for 638 suspension of deportation.[46] Even Nicaraguans who were taken *638 into detention would be released and
allowed to apply for suspension of deportation if they had seven years at that time.[47] People were also given specific instructions by INS at Miami on how and under what circumstances to file motions to reopen.[48]
While the Government was liberally granting these motions to reopen if Nicaraguan nationals paid the fees, they were also approving their suspension of deportation applications in South Florida at a rate significantly higher than normal for INS. By February, 1996, approval rates were as high as 87% in Miami, and 81% nationwide.[49] These extraordinarily high rates would unquestionably induce people to come forward when compared with the 60% approval rate nationwide for non-Nicaraguans.[50]
The Government's policy and conduct without question created an expectation in the Nicaraguan community, even absent the statutory right to seek suspension of deportation. Nicaraguans in substantial numbers paid the $280 fee to reopen their cases and apply for suspension and employment authorization. Nicaraguans came forward in substantial numbers with the expectation that they "just had to file, do the paperwork, file what was necessary, the case would be open, I would have my day in court."[51] The number of Nicaraguan suspension applications during this period increased dramatically. Between June 13, 1995, and February 21, 1997, (the date that Matter of N-J-B was issued), there was a 557% increase in the number of Nicaraguan suspension applications that were filed.[52] Howard Gitlow, a statistician who analyzed the number of suspension applications for Nicaraguans and non-Nicaraguan class members, presented evidence at the preliminary injunction hearing, demonstrating the dramatic increase in the applications. In addition to the 557% increase in applications that were filed during the suspension of deportation program for Nicaraguans, there was a 650% decrease in the applications when comparing the time period June 13, 1995, to February 21, 1997, and postFebruary 21, 1997. Mr. Gitlow compared non-Nicaraguans for the same period of pre- and post-June 13, 1995, and found that Nicaraguan applications increased 239% more than applications of non-Nicaraguans. In analyzing motions to reopen, he found that during the pre-June 13, 1995, and post-June 13, 1995, periods, there was a 315% increase in applications, and a 2,000% decrease subsequent to February 21, 1997, when Matter of N-J-B was publicly announced. Mr. Gitlow testified that there was a precipitous rise in applications during the June 13, 1995, to February 21, 1997, period, and a precipitous decline in applications subsequent to that period.[53]
As the result of the program to induce Nicaraguans to come forward, the Nicaraguans paid substantial fees to the Immigration and Naturalization Service. Haydee Marin estimated that the fees solely for the applications for suspension of deportation and motions to reopen were over $1.5 million. Mr. Gitlow did a cluster sample of fees paid during the period June 13, 1995, to February 21, 1997. He determined that the total amount paid in Miami alone was a minimum of $1.161 million. He stated that if there were other files that could be reviewed, the amounts could go as high as $1.4 or $1.7 million. The Plaintiffs also made a financial commitment to their cases,

not only in the fees they paid to the INS, but also in the substantial attorneys' fees and other resources that were necessary to reopen their cases.[54]
639 Numerous witnesses testified that they came forward and applied for suspension. *639 Ms. Olga Lazo said that she applied based on the news reports because "we were almost 100% sure that we really had suspension."[55] As a result of coming forward, the Nicaraguan class members gave up substantial benefits. Many of them gave up their right to continue to seek political asylum in the United States.[56] At the time of these hearings the INS estimated that there were approximately 15,200 long-term asylum applications pending, of which 80% would be facially eligible for suspension because they were here for seven years or more.[57]
There is no doubt that the Government's conduct created a substantial expectation in the community that, when coupled with the statutory right to seek asylum, created a property or liberty interest in the right to a hearing on their claims for suspension of deportation. On February 21, 1997, as a result of the change in policy by the Defendants, Plaintiffs were deprived of the right to have a hearing on their claims for suspension of deportation. As a result of the change of policy, class members had their applications for suspension of deportation "pretermitted."[58] Class members were denied suspension of deportation.[59] The BIA began dismissing appeals because Matter of N-J-B pretermitted their cases.[60] Class members whose cases are now pending will be subject to pretermission.[61] One lawyer testified that over 250 clients of his were no longer eligible for suspension of deportation in light of the Defendants' change of policy.[62]
The Defendants' policy is to continue to initiate deportation proceedings.[63] Ms. Little testified that in a meeting with Robert Bach, INS Executive Associate Commissioner for Policy and Planning, she was informed that INS would execute deportation orders. This is reflected in the Government's issuance of "bag and baggage" letters, which are notices to appear to be physically removed from the United States. These letters have been given to class members.[64]
An interpretation of a statute that has the effect of barring completely access to the courts irrespective of the merits of a person's claim has been held to violate due process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). A retroactive application of § 309(c)(5) violates due process by barring persons completely from even applying for suspension of deportation.
Deportable aliens, such as Plaintiffs and class members, have long been recognized as having full due process rights. Bridges v. Wixon, 326 U.S. 135, 152, 65 S.Ct. 1443, 1451-52, 89 L.Ed. 2103 (1945); Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir.1987). In paying fees to the government for an application, the Plaintiffs and class 640 members have a *640 property interest in obtaining a hearing on their applications.
This record establishes that persons who came forward, who were placed in deportation proceedings prior to seven years of presence (but had their hearing after seven years), and who then won their suspension case are now being denied the right to seek suspension of deportation, even if they have now been in the United States for more than seven years. Conversely, someone who evaded INS successfully for seven years is eligible for suspension of deportation. The latter person is eligible even if he has been here less time than a person who has been served with an Order to Show Cause but where INS took no action to deport the person until many years after the seven years were reached. Any scheme which grants relief to persons who did not come forward and denies relief to persons who did come forward is irrational and in violation of equal protection. Similarly, any analysis which turns on whether someone is served with a charging document, even if the actual hearing does not occur for many years thereafter, is irrational and violates equal protection.
As the evidence at the hearings before this Court demonstrated, the Defendants' policy produced conflicting results. Douglas Lux, a lawyer representing hundreds of Nicaraguan clients, testified that he has clients who have been granted suspension who have been in the United States for seven years, and others who have been denied suspension who have been here for 14 years or more, because of Matter of N-J-B. Similarly, Plaintiffs who had their application for suspension pretermitted under N-J-B have been here 12 years,[65] 11 years,[66] and 10

years.[67] There was also testimony of families who came during the same year where, in one case, the husband's application was pretermitted because he was issued an order to show cause before seven years,[68] and where, in another case, the wife and children where pretermitted because they were served with orders to show cause within seven years while the husband was not.[69] A witness testified concerning the applications of a husband, wife and children heard together before an Immigration Judge, in which the husband and children were granted suspension of deportation, but the wife's application was pretermitted because she was served with an order to show cause prior to the seven years.[70] Distinctions such as these are wholly irrational and not related to any legitimate governmental interest. This is particularly so in light of an overriding congressional interest under the Immigration and Nationality Act in unifying families. See generally INA § 201(a)(1) and (b)(2)(A) (i).
Equal protection is also offended when distinctions are drawn between Nicaraguan and other potential applicants for suspension. The Defendants induced only Nicaraguans to come forward and apply for suspension thereby targeting them for unlawful treatment. By establishing a special program that targeted Nicaraguans and that ultimately resulted in their being ordered deported, the Defendants have violated due process. Yeung v. INS, 76 F.3d 337 (11th Cir.1995); Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994); Francis v. INS, 532 F.2d 268 (2nd Cir.1976).
THE ESTOPPEL CLAIM
The traditional elements of estoppel are: (1) a misrepresentation by another party, (2) which has been reasonably relied upon, (3) to the claimant's detriment. Pinnacle Port Community Assn., Inc. v. Orenstein, 872 F.2d 1536, 641 1542 (11th Cir.1989); *641 United States v. Asmar, 827 F.2d 907, 912 (3d Cir.1987).
The Defendants suggest in their brief at page 27, that a fourth element of estoppel must be established and proven by a party asserting this theory against the government, namely affirmative misconduct.
The Plaintiff class takes the position in its brief (page 45) that the Eleventh Circuit has declined to adopt this fourth element of affirmative misconduct as the burden of proof for a party asserting estoppel against the government. The Defendants seemed to agree with this analysis at page 27 of their brief, citing Chiles v. Thornburgh, 865 F.2d 1197, 1202 (11th Cir.1989); Brundidge Banking Co. v. Pike County Agrig. Stabiliz. and Conserv., 899 F.2d 1154, 1161 n. 5 (11th Cir. 1990); Eagle v. Sullivan, 877 F.2d 908, 912 n. 7 (11th Cir.1989).
Regardless of whether the fourth element of estoppel has been recognized by the Eleventh Circuit, and therefore must be applied in this case, or not, Plaintiffs contend that all the elements of estoppel have been met in this case (Brief, p. 45).
Plaintiffs' contention, and the evidence they were able to present at this very preliminary stage of this case, relies upon the fact that the Defendants, while inducing and encouraging Nicaraguans to apply for the special Review Program in June 1995, and subsequently extending the policy until June 1996, did so with knowledge that Congress was considering drastic changes in the suspension laws which would eliminate the right of Nicaraguans to obtain suspension.
This special Nicaraguan Review Program notified Nicaraguan nationals that if they had seven or more years of physical presence in the United States, they might be eligible for relief from deportation by applying for suspension of deportation.[71]
Mr. Anthony C. Moscato, Director of the Executive Office for Immigration Review, testified that he was aware as early as June of 1995 that Congress was considering proposals that "would drastically reduce or eliminate the right of people to seek suspension of deportation."[72] Mr. Moscato had cleared his testimony with supervisors in the Department of Justice, including the Office of Legislative Affairs.[73] His testimony was consistent with his earlier testimony before Congress, where he expressly recognized that "suspension of deportation is drastically curtailed," under Congress' proposal in H.R. 1915.[74] The Defendants knew that Congress was making these proposals as early as June of 1995, at the time that they announced the suspension of deportation program and

publicized it in the Nicaraguan community. The Defendants continued to publicize and induce Nicaraguans to come forward to apply for relief which Defendants could reasonably have known would not be available. The Defendants wrote to Congressman Gephardt on March 13, 1996, supporting this treatment of § 309(c)(5),[75] while continuing to promote and induce Nicaraguans to come forward for the next year. Plaintiffs argue that Defendants were willing to "go along" with the proposal to cut off the right of the same Nicaraguans who they were inviting to come forward to make such applications.
The Defendants were well aware by June 1995 that there was a substantial likelihood that suspension of deportation in one manner or another would be "drastically curtailed." They did not disclose this to the Nicaraguans and, in fact, continued during all of 1995 and 1996 to encourage and induce Nicaraguans to pay the fees and to come forward seeking suspension of deportation. This action by INS affirmatively induced 642 Nicaraguans to apply for due process suspension hearings, knowing that, in all probability, they would *642 never have an opportunity to obtain the relief they were induced to request.
INS had already interpreted the new law concerning the time required for physical presence to be of retroactive application at least three months prior to BIA's announced opinion in N-J-B.
A memorandum dated November 29, 1996, (unsigned) from Robert A. Wallis, INS' acting district director in Miami, to Thomas C. Leupp, INS' acting Eastern regional director stated:
The recent changes in Immigration Law have dramatically limited the opportunity for adjustment of status which has adversely affected a large number of the Nicaraguan cases in the category 3 docket in Miami.
Moreover, guidance issued by General Counsel now dictates that motions to reopen for the purpose of filing for suspension of deportation are to be opposed where, as in the case under review, the order to show cause was issued prior to the alien's accrual of the required physical presence requirement.
(Pls.' Ex. 52 at 2) (emphasis added). The Court has not found anything in the record, including in acting District Director Wallis' deposition, that elucidates the point that INS apparently knew before the BIA ruled in N-J-B that the new, more restrictive physical presence requirement would apply retroactively, thus rendering ineligible for suspension tens of thousands of previously eligible class members.
Plaintiffs assert that Defendants' acts and conduct go beyond mere misrepresentation and reach the level of affirmative misconduct, citing Akbarin v. INS, 669 F.2d 839, 842 (1st Cir.1982). The Court does not, at this time, consider the District Director's statement to be a "smoking gun" on the Plaintiffs' estoppel argument. But the exhibit does raise questions about INS policy at the time they were encouraging Plaintiffs to seek suspension. It supports Plaintiffs' contention that they deserve a full opportunity to take discovery in the case and that they should not be shackled with the expedited discovery necessitated by Defendants' insistence that the preliminary injunction hearing proceed immediately. District Director Wallis' statement is an example of the type of evidence that Plaintiffs should be permitted to develop in reasonable discovery prior to trial.
With reference to the other prongs of the estoppel claim, it appears from the evidence presented thus far that Plaintiff class members relied on the representations made by the Defendants. An unresolved issue, looming large as an issue to be developed in discovery and at trial, is the serious question of whether the representations that were unquestionably made by Defendants, were intentional misrepresentations.
The Plaintiffs paid substantial fees,[76] and in many cases withdrew their applications for political asylum.[77] The Plaintiffs filed these applications in extraordinarily large numbers. During the relevant time period there was a 557% increase in the number of Nicaraguan suspension applications. This represented a 239% increase over applications of non-Nicaraguan class members.[78]
There is also no question that Plaintiffs and class members relied on the Defendants' representations to their detriment. They paid substantial fees to the Government and to attorneys to represent them in a suspension hearing that they never received or which has now been taken away from them by Defendants' policy.[79]

The detriment to Plaintiffs and class members also occurred in a far more profound way than simply by the payment of funds they could ill afford. After learning of the program, their hopes and expectations of remaining in 643 the United States were raised and *643 then dashed by the Defendants' change in policy.[80]
The Defendants, although given a full opportunity to present live testimony through witnesses at both the hearing on temporary restraining order and preliminary injunction, declined to do so. As set forth in the earlier portion of this opinion, the Defendants relied instead upon the introduction of documentary exhibits primarily dealing with the subject matter of the legislative history of IIRIRA. The testimony of the Plaintiff class is largely, if not entirely, uncontradicted.
The Plaintiffs have chosen to rely instead upon their interpretation of § 309(c)(5) pertaining to retroactivity of the new Act, as well as their oft-stated assertion that the United States District Court has no jurisdiction in this matter. The Defendants rely upon legal analysis and oral argument of their theories of law, as contrasted with the presentation of live witnesses, to establish their position.
With respect to the estoppel claim of the Plaintiffs, and whether or not the Plaintiffs have a likelihood of success on the merits on this issue, defense counsel raises the following theories: (1) the Plaintiff class relied upon their own attorneys and not the widespread announcement of the Nicaraguan Review Program for information regarding motions to reopen their applications, (2) the Plaintiffs would have been subject to deportation anyway, so there is no detrimental reliance upon the Program so widely publicized by INS, (3) the Plaintiffs could have gone to immigration judges concerning their estoppel claim (citing Matter of Hernandez[Puente], 20 I. & N. Decision 335, 338, 1991 WL 353520 (BIA 1991)), and (4) Plaintiffs' estoppel claims must be made in the Circuit Court of Appeals by petition for review from administrative judge rulings (not in the U.S. District Court).
The Plaintiff class has correctly pointed out that, with respect to the source of information, the testimony of Leonel Martinez (Defs.' Ex. L at 49) and the testimony of Ignatio Herrera (Defs.' Ex. K at 34) established that some of the Plaintiffs obtained information directly from the Defendants about the Program. Further, the record established that the Defendants used announcements through the news media, met with community leaders and urged them to announce the Program, and published in the Federal Register notification of the Program. The Defendants exercised great effort to advise all interested parties with the widest possible dissemination of information what they were inviting the Plaintiffs to do respecting applications for suspension of deportation.
Regarding Defendants' theory that the Plaintiffs were subject to deportation anyway, and therefore suffered no detrimental reliance, the record is clear that many of the Plaintiffs were not subject to deportation. A number of other Plaintiffs withdrew their claims for political asylum and submitted applications for suspension, according to the testimony of William Gaitan (Tr. of June 10, 1997, at 65), and the testimony of Dudley Rocha Pettersen (Tr. of May 27, 1997, at 149).
With respect to the BIA case of Hernandez[Puente], the decision states: "The Board itself and the Immigration Judges are without authority to apply the doctrine of equitable estoppel against the Service so as to preclude it from undertaking a lawful course of action that it is empowered to pursue by statute and regulation." Mario Lovo testified, (Tr. of May 13, 1997, at 161), that an equitable estoppel claim could not be raised before the Immigration Court in any form whatsoever.
Lastly, with respect to the legal theory of Defendants' counsel that these claims should be presented in the first instance to the United States Court of Appeals, Plaintiffs rely upon Abedi-Tajrishi v. INS, 752 F.2d 441, 443 (9th Cir.1985), wherein this argument was rejected. There, the Ninth Circuit found that an allegation of affirmative misconduct by INS raised factual issues that had not been given an adequate hearing in the Immigration Court, 644 and held that the proper forum to seek review was the United States District Court, where a hearing could be *644 conducted, enabling the creation of a factual record. Clearly, the Court of Appeals, by its own rules, is not the proper forum for the creation of a reviewable record.

II. IRREPARABLE HARM
Seldom, if ever, has such a dramatic, heartrending and powerfully persuasive case of irreparable harm to literally tens of thousands of human beings been presented to this federal court.
A. THE UNCONTRADICTED TESTIMONY
Maria Esperanza Vargas de Chavarria, a Nicaraguan wife and mother, entered the United States on November 11, 1988, with her husband and infant daughter. They applied for political asylum, and after three appearances before an Immigration Judge, the application for asylum was denied in 1994. Mrs. Chavarria filed an appeal from the decision. Her appeal has yet to be ruled upon. In 1995, Mrs. Chavarria, her husband and daughter applied for suspension of deportation. Mrs. Chavarria and her husband had a hearing on November 12, 1997, but their daughter has had no hearing. Mrs. Chavarria's request for suspension of deportation was denied, and she appealed this decision to the Board of Immigration.
Mrs. Chavarria's daughter, who is now seventeen years old, suffers from San Filippo's Down syndrome, and as a result of this illness, her bones "turn and twist and crumble up". (Tr. of June 11, 1997, at 132 11. 912.) Mrs. Chavarria stated that her daughter will eventually stop speaking, understanding, moving and walking. In addition, the child suffers from scoliosis of the back. She required extensive surgery because her back was "so twisted that it was affecting her lungs and pressing on them." (Tr. of June 11, 1997, at 132 11. 1-18.) Mrs. Chavarria's daughter's wounds from her back surgery became infected, affecting her bones as she remained hospitalized for two months.
Mrs. Chavarria testified that deportation of her daughter would be a "death sentence," because the necessary treatment is not available in Nicaragua. (Tr. of June 11, 1997, at 133-34.)
Dudley Rocha Petterson, a 27-year-old Nicaraguan husband and father of three, entered the United States on August 28, 1987, by way of Brownsville, Texas, at the age of 17. Mr. Petterson and various members of his family belonged to the Nicaraguan military and because of their background were victims of harassment, arrest and death. Mr. Petterson was arrested on two separate occasions before his escape from Nicaragua. (Tr. of June 11, 1997, at 146 11. 5-6.)
A few months after his arrival in the United States, Mr. Petterson applied for political asylum. When his application for asylum was rejected in 1992, he immediately appealed the decision of the Immigration Judge. After hearing media reports about possible suspension of deportation for Nicaraguans, he contacted Legal Aid. Mr. Petterson, upon the advice of his assigned attorney from Legal Aid, withdrew his pending application for political asylum and applied with his wife for suspension of deportation in consolidated applications. Mr. Petterson's application was denied and his wife's application was granted because "she never received an Order to Show Cause." (Tr. of June 11, 1997, at 154 11. 24-25.) Mr. Petterson stated his Immigration Judge advised him to "wait awhile, because there would certainly be changes in the law because the law was extremely unjust." (Tr. of June 11, 1997, at 155 11. 24-25, and at 156 1. 1.)
The Pettersons have three daughters who were all born in Miami, Florida and are U.S. citizens. Two of his young daughters (ages 7 and 6) suffer from Argininemia, a rare form of cerebral palsy. Only 40 cases of Argininemia have been documented in the world. Mr. Petterson explained that one of his daughters was born blind and the other daughter "just looked off into space ... doesn't walk, ... didn't talk, ... didn't move." (Tr. of June 11, 1997, at 150 11. 22-25.) Mr. Petterson was informed by researchers at Jackson Memorial Hospital that the necessary treatment for Argininemia is not available anywhere in the world, except in the United States and Canada. (Id. at 645 151 1. 11.) The daughters' diets are closely monitored by a nutritionist and Jackson Hospital *645 because the children require special formulas available only at Jackson. Mr. Petterson's oldest daughter is fed through a tube. In addition, Mr. Petterson's daughters receive treatment from an orthopedic physician because neither of them can walk. The daughters must consult a neurologist. Mr. Petterson's daughters have improved considerably from

the extensive treatment they have received from their doctors in the United States and also from the education and care they received at the United Cerebral Palsy School.
Mr. Petterson is unable to appeal his case because he does not have adequate finances. His daughters demand the complete attention of Mrs. Petterson, and Mr. Petterson is the sole financial provider. If Mr. Petterson is deported, Mrs. Petterson and her daughters will be homeless because neither Mrs. Petterson nor Mr. Petterson will be able to make the mortgage payments.
Alexandra Charles, a 19-year-old Haitian, entered the United States in September 1989 with a tourist visa after witnessing the beating and murder of her parents by the Haitian military as a 10-year-old child. Ms. Charles applied for political asylum but her request was denied because the Immigration Judge "didn't think it was enough evidence." (Tr. of May 13, 1997, at 133 1. 22). Ms. Charles appealed the decision to the Board of Immigration Appeals, but a decision has yet to be rendered. She applied for suspension of deportation and her request was granted. Immigration Services is now appealing this order. Based on the N-J-B interpretation of the new law and according to INS, Ms. Charles has only lived in the United States for six and a half years, falling short of the seven-year requirement for suspension of deportation. Although Ms. Charles has actually resided in the United States for eight years, INS takes the position that she is ineligible for suspension of deportation.
Ms. Charles attends Miami-Dade Community College and works as a reservationist at Club Limousine Service to pay for her tuition. She has a 3.3 GPA and hopes to attend the University of Florida upon her graduation from Miami-Dade. Ms. Charles' family lives in the United States.
Ms. Charles is a full-time student and cannot afford an appeal before the Eleventh Circuit Court of Appeals. She faces deportation to Haiti, where she witnessed the vicious murder of her parents and where she no longer has any ties. Not only will her education goals be shattered, her life may be at stake.
Lauren Correa is a 27-year-old housewife who entered the United States in 1988 and applied for asylum in Texas upon her arrival. Ms. Correa's application was denied, and she appeared before an Immigration Judge in 1991. The Judge's decision allowed Ms. Correa one year for a voluntary departure. After the year elapsed, Ms. Correa applied for multiple extensions of her voluntary departure. Ms. Correa received no response from INS although she continued to receive work permits until 1994. In 1996, Ms. Correa moved to reopen her case, seeking a suspension of deportation. Ms. Correa is scheduled to appear in July of this year regarding her application.
Ms. Correa is the mother of two American children, ages 7 and 3. Her 7-year-old, Marcos, is autistic and has been twice hospitalized for asthma. Marcos attends a school for exceptional children where he receives speech therapy three to four times weekly. If Marcos remains in a special school and continues his current therapy, he is likely to become a normally functioning adult. If he does not attend a special school and receive regular therapy, his progress will stop and he will never mature beyond his current mental capacity.
Ms. Correa's 3-year-old child, David, was born with a "tiny ball in his eye" that has been surgically excised. (Tr. of June 3, 1997, at 109.) A biopsy revealed nothing wrong; however David's neurologist suggests that David continue to be closely monitored through periodic M.R.I.s. David has demonstrated early signs of autism and is being monitored for this condition. Both of Ms. Correa's American children require frequent medical monitoring and regular therapy to continue their progress.
646 Lorena Mesa, a 32-year-old Nicaraguan, entered the United States in 1989 by crossing *646 through the Texas border. Ms. Mesa immediately applied for political asylum in Miami upon her arrival. Although Ms. Mesa was never given an appointment for an interview with INS, she continued to receive work permits. Ms. Mesa has yet to receive a final decision from the Immigration Judge regarding her application. Ms. Mesa is married to a Nicaraguan man whose initial asylum case was denied and is currently being appealed.
Ms. Mesa has been in the United States for more than seven years, and during that time has given birth to a daughter. Ms. Mesa's daughter is currently 3 years old and has been diagnosed with Down's syndrome, recurring heart murmurs, a kidney abnormality, and a cleft palate. She has had surgery to treat her heart condition and is likely to require a second surgical procedure to fully correct her heart condition. She also will likely need surgery to correct her cleft palate. She receives physical therapy, occupational therapy and language therapy almost monthly.

If Ms. Mesa is deported, her daughter will also have to leave the country to be with her parents and will likely die without the technology and health care the United States has available to aid her treatment.
Khadijeh Aidinezhad is an Iranian who entered the United States in July 1985, on a visitor visa. Ms. Aidinezhad's visa was extended, and eventually she received a student visa to complete her master's degree in the United States. After losing her student visa, Ms. Aidinezhad contacted an attorney who advised her that she might be eligible for political asylum. At her asylum hearing, Ms. Aidinezhad was denied asylum, and she appealed. The "Court of Appeals" returned Ms. Aidinezhad's case to the Immigration Judge, stating that there was no evidence to support the denial of Ms. Aidinezhad's application and that the case should be reopened. Ms. Aidinezhad was then informed by the "Court of Appeals" that she was eligible for suspension of deportation.
Before the Immigration Judge reviewed Ms. Aidenezhad's application for asylum, Ms. Aidenezhad withdrew her application for asylum and applied for and was granted suspension of deportation. The attorney for INS agreed that Ms. Aidinezhad would suffer extreme hardship if deported to Iran and that Ms. Aidinezhad was a person of good moral character. INS appealed Ms. Aidinezhad's grant of suspension, contending that the law had changed and was no longer applicable to her case. This appeal is still pending.
Ms. Aidinezhad is the sole care-giver and financial provider to her 79-year-old mother, a U.S. resident, who suffers from severe osteoporosis and thyroid problems. Ms. Aidinezhad's mother requires constant medical attention and care and relies entirely on Ms. Aidinezhad to provide her with basic necessities and medicine. Although currently employed as a stenographer ultrasound specialist, Ms. Aidinezhad hoped to continue her education in the United States and complete her master's degree, an option not available to women in Iran.
If Ms. Aidinezhad is deported, she will lose the chance to continue her education, and more importantly, her elderly and dependent mother will lose the only financial support and care giver she has.
Olga Isabel Martos Rodriguez del Cazo arrived in the United States in 1988 with her husband and two children, then ages 7 and 1. Since arriving, Ms. Cazo has had an American child, now age 7. Ms. Cazo has three brothers who were granted asylum, and eventually became U.S. citizens. Ms. Cazo filed an application for asylum upon her arrival, and was denied the following month. Ms. Cazo reapplied in February 1989. While awaiting her hearing with the judge, Ms. Cazo learned of the seven-year rule. After contacting her attorney, and believing her chances of success in a suspension of deportation hearing to be favorable, Ms. Cazo withdrew her application for asylum. At Ms. Cazo's suspension hearing, she was denied suspension of deportation and is currently appealing.
Carla Patricia Centeno, an 18-year-old mother, came to the United States from Nicaragua in August 1989 with her 6-month-old son, aunt, and three cousins. They fled their native land because of political persecution and crossed into the United States by way of Texas.
647 *647 Four days after Ms. Centeno's arrival in the United States, she presented herself to the INS in Texas and applied for asylum. Due to financial restraints Ms. Centeno could not travel from Miami to Texas to appear at her asylum hearing, and her case was closed in her absence. (Tr. of June 3, 1997, at 119 1. 14.) Ms. Centeno filed a second request for asylum with the INS in Miami, but she has yet to be notified of the status of her asylum request.
Finally, Ms. Centeno applied for suspension of deportation in September 1996 after being in the United States for seven years. Ms. Centeno testified that she learned about suspension of deportation relief from the print and television news media. (Tr. of June 3, 1997, at 120, 1 12.) She believed that she would receive a suspension of deportation if she fulfilled the requirements of the law. However, her belief was groundless because her request for suspension was denied. Ms. Centeno has appealed this decision to the Immigration Board of Appeals and is still awaiting a decision.
Four months after Ms. Centeno arrived in the United States her son was diagnosed with cerebral palsy. Her son, who is now 8 years old, is confined to a wheelchair because he is unable to walk. His disease requires that he receive medical supervision by a neurologist, physical therapist, and an occupational therapist. Ms. Centeno's son also applied for a suspension of deportation and his request was denied. This denial ensures that the

hardships of this family will grow because the special classes and medical treatment that her son needs are not available in Nicaragua. (Tr. of June 3, 1997, at 124, 1. 11.)
Although Ms. Centeno has appealed this decision, her attorney has advised her that her appeal will be denied and that she will have to appeal to a higher court. (Tr. of June 3, 1997, at 123, 11. 23-24.) The appeal to a higher court is out of Ms. Centeno's reach because she will not be able to afford counsel to represent her. (Tr. of June 3, 1997, at 124, 11 4-5.)
Juan Raphael Baez, an 18-year-old Nicaraguan, entered the United States with his oldest brothers and his younger sister by crossing the Mexican border in September 1986 at the age of 7. Mr. Baez and his family applied for and were granted suspension of deportation on October 28, 1996. INS has appealed this decision.
Mr. Baez will graduate in June 1997 from Miami Coral Park Senior High, where he actively participated in student government and various extracurricular activities. Mr. Baez, if allowed to stay in the United States, plans to enroll at a local community college and major in video production and advertising. Mr. Baez aspires to attend the University of Miami and to enroll in the cinematography program, one of best programs in the country. Mr. Baez explains that he has spent his formative years in the United States, and it has become his society and his culture. (Tr. of May 13, 1997, at 199 1. 20.)
Mr. Baez does not have the funds to pursue an appeal in the Court of Appeals. If deported, Mr. Baez will have to drop out of school and leave his home, his culture and his country.
Yade Lacayo, a 20-year-old Nicaraguan, entered the United States with a tourist visa on February 5, 1987, at the age of 10. Mr. Lacayo has lived in the United States for the last ten years and has received a final order of deportation. His parents and siblings received residency, and one brother became a citizen of the United States. He has applied for suspension of deportation but his request was denied based on the Defendants' N-J-B interpretation. Mr. Lacayo, for immigration purposes, has been in the United States for only three years (not ten years). He received a final order of deportation on April 21, 1997.
Mr. Lacayo has attended school in the United States since the fifth grade and is presently a junior at Florida International University, where he maintains a 3.0 GPA. He expects to graduate in December 1998, in Mathematics Education. He works as a substitute teacher at Miami Senior High School to pay for his education, plans to acquire a master's degree in leadership and aspires to be a school principal. In addition to his curricular 648 activities and his employment, he is an active member of the community. He *648 belongs to the Holy Ghost Church, "attend[s] Camillus House, organize[s] food drives, walk-a-thons." (Tr. of May 13, 1997, at 145 11. 4-6.)
Mr. Lacayo is unable to appeal the immigration decision because he does not have the necessary funds. If deported Mr. Lacayo will lose his family, his home for the last ten years, and his community.
Lucille Barrow Hodgson, an 86-year-old Nicaraguan widow, mother of six and grandmother of twelve, entered the United States on April 29, 1984, with a tourist visa. Mrs. Hodgson has resided in the United States for the last thirteen years. In 1987, Mrs. Hodgson applied for political asylum but was denied. She applied for suspension of deportation with the help of Florida Immigrant Advocacy Center, but that request was denied. Mrs. Hodgson appealed this decision, but her request for an appeal to the Board of Immigration was denied.
Mrs. Hodgson, who lives with her oldest daughter, suffers from high blood pressure and bronchitis. Mrs. Hodgson's children, most of whom live in the United States, presently take care of her.
If Mrs. Hodgson is deported, she will have no one to take care of her, and she be not be able to care for herself financially. Mrs. Hodgson has no other means of support but her children who reside in the United States.
Frank Lopez, a 16-year-old, came from Nicaragua with his mother and brother in 1988. Mr. Lopez's mother filed applications for political asylum for herself and her two sons but later withdrew them so that she could join their case with her husband's deportation proceedings. (Tr. of June 3, 1997 at 131 11. 14-15.) Mr. Lopez testified that he is very emotionally distressed over the possibility that his father's application of suspension of deportation will be denied. Mr. Lopez's father, who had not been in the United States seven years when he filed his application,

will not be eligible for suspension under the terms of § 309(c)(5) of the Illegal Immigration Reform and Responsibility Act of 1996. (Tr. of June 3, 1997, at 132 11. 17, 19 and 22.)
Mr. Lopez also testified that his father is the main financial support of his family, and if his father is forced to return to Nicaragua, his mother cannot support the family alone. (Tr. of June 3, 1997, at 132, 11. 23 and at 133, 11. 6-7.) He testified that his 17-year-old brother, who is classified as learning disabled because he cannot read or write, will not be able to get any help for his learning disability in Nicaragua. (Tr. of June 3, 1997, at 133, 11. 17, 20, 22 and 23.) It is Mr. Lopez's belief that his brother will suffer extraordinarily from his father's leaving because his father gives his brother needed extra support and attention. (Tr. of June 3, 1997, at 134 11. 7-9.)
Mr. Lopez testified that he has no future in Nicaragua, (Tr. of June 3, 1997, at 134 1. 16), because he has not been back to Nicaragua since he was 6 years old. He testified he would not return to Nicaragua with his father if his father were deported. (Tr. of June 3, 1997, at 134, 11. 14, 20-21 and at 35, 1. 5.) As Mr. Lopez so poignantly put it: "I have everything here. I have a future here." (Tr. of June 3, 1997, at 134, 1. 16.)
The preceding twelve summaries of individual cases of persons who testified in this preliminary injunctive hearing are a cross-section of the Plaintiff class. There are thousands of other cases that could be developed at the ultimate trial in this case.
This testimony, as indicated above, is unrebutted. The Defendants have elected to forgo the presentation of any evidence disputing any of the testimony set forth herein. They have, as observed in the preceding opinion, elected to rely upon the policies established by INS for retroactivity of the calculus by which presence in the United States is computed and upon lack of jurisdiction in the United States District Court.
As Defendants have so correctly stated at page 44 of their brief "A showing of irreparable injury is the sine qua non of injunctive relief." Northeastern Fla. Chapter of the Ass'n of Gen. Contractors of America v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990). Plaintiffs agree, citing Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1974).
649 *649 The Defendants have respectfully, but forcefully, made it clear that they will continue to deport class members. This was confirmed by the testimony of Congressman Peter Deutsch that he had received requests for assistance from many people who had received their "bag and baggage" letters. (Tr. of May 13, 1997, at 17.)
According to Plaintiffs' Exhibits 33, 41 and 42, and the testimony of Mr. Lux, Ms. Little, Mr. Turtletaub, Mr. Lovo, Mr. Lacayo, (Tr. of May 13, 1997, at 145.) A substantial number of Plaintiffs have had their suspension hearings denied, appeals dismissed or motions to reopen denied based on the Defendants' policies and interpretation of IIRIRA and N-J-B. Mr. Turtletaub testified, (May 13, 1997, at 58) that he had a client who did not want to send his child to school because of the situation.
Fear and panic have swept through the community, causing families to move from their homes, refuse to send children to school or the doctor, or bring their children to the hospital for medical attention. (Trs. of June 11, 1997, at 72 and 81; June 3, 1997, at 37-38; May 13, 1997, 171 and 183.)
The Director of the Human and Labor Rights Institute at Florida International University, Haydee Marin, testified that one family refused to bring their child to a hospital for medical attention, fearing deportation. The child died.
"The purpose of a preliminary injunction is to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United States v. State of Alabama, 791 F.2d 1450, 1459 (11th Cir.1986). The Court finds that the Plaintiff class has established that class members will sustain substantial irreparable harm if a preliminary injunction is not issued. Accordingly, the Court orders a preliminary injunction to preserve the Court's jurisdiction until orderly and meaningful discovery can be completed and a trial held.
III. BALANCING HARM OF PLAINTIFFS TO HARM OF DEFENDANTS
The Court considers first the Defendants' position, as set forth at pages 55-57 of their memorandum, as to harm flowing to the federal government if a preliminary injunction is entered. The Defendants assert that "... the

granting of a preliminary injunction would interfere with the federal government's ability to control the flow of immigration and ... the ability of the Executive Office of Immigration Review to effectively process the cases within its jurisdiction." (Defs.' Mem. at 56.)
The Plaintiff class argues that this is an imagined harm because Plaintiffs do not seek "... an injunction of deportation proceedings or even a particular outcome in any deportation case. Defendants are free to move forward with deportation proceedings as quickly as they wish. If Defendants claim that giving someone a suspension of deportation hearing interferes with their processing of cases, then they ignore their statutory responsibility to permit hearings where they are provided by law. Plaintiffs seek deportation hearings under proper standards." (Pls.' Mem. at 57.)
Upon balance, the administrative inconvenience the Defendants may sustain does not outweigh the serous and substantial irreparable harm to thousands of class plaintiffs as set forth in the preceding portions of this opinion.
IV. DOES ENTRY OF A PRELIMINARY INJUNCTION SERVE THE PUBLIC INTEREST?
The uncontradicted testimony of Assistant County Manager Jose Antonio Ojeda that there would be approximately a $1 billion loss in revenue to Dade County if Nicaraguan class members were deported, (Tr. of June 11, 1997, at 108), would seem to resolve this issue. He went on to testify that the deportation of class members would affect the County's efforts in regard to new welfare legislation that requires welfare recipients to find work. A major source of employment for such people is in small businesses such as those operated in the Nicaraguan community in Dade County. The departure of such businesses would affect those efforts.
650 State Representative Jorge Rodriguez Chomat, attorney and state representative *650 for District 114 of the State of Florida, testified that the Nicaraguan community of Sweetwater is becoming increasingly concerned and worried about the effect deportation will have on their community. The community, as it understands the law, fears that families will be separated and that the entire community will be uprooted. Rep. Chomat explained that parents were fearful they would be deported to Nicaragua and forced to abandon their minor children who are U.S. citizens. In addition, Rep. Chomat testified about the detrimental economic effect deportation would have on the community of Sweetwater. He stated that the "city would have to stop existing" if a substantial number of the Nicaraguan community was deported. According to Rep. Chomat, the community is experiencing feelings of panic.
An application of the law as presently interpreted in N-J-B would negatively affect Dade County, and particularly, the City of Sweetwater, economically as well as emotionally.
Robert Arguello, a U.S. citizen born in Managua, Nicaragua, is a prominent Nicaraguan in the Miami community. He has testified before Congress on two occasions regarding the needs of the Nicaraguan community, and he is a member of the United States Hispanic Task Force. Mr. Arguello testified that the recent ruling in N-J-B has had tremendous effect, both socially and economically, on Nicaraguans living in Miami. He described the situations of numerous Nicaraguans who have been unable to get work permits and have lost their jobs as a consequence. Also affected are American children of Nicaraguan parents. The children are afraid to go to school, fearing that their parents will be deported in their absence. He estimated that as a result of the government's changed policy, 100,000 Nicaraguans will lose their jobs and will no longer be able to afford the basic necessities of food, rent and utilities. (Tr. of June 3, 1997, at 27.)
Mario Lovo, a Nicaraguan attorney educated in the United States, testified that suspension of deportation is a form of relief that no longer exists for his Nicaraguan clients, since the ruling of N-J-B. (Tr. of May 13, 1997, at 154.) Under the current process, if a Nicaraguan does not have a suspension of deportation hearing pending, he cannot renew his work authorization. Since 1995, if a Nicaraguan filed a motion to reopen and a suspension of deportation (and paid a $110 fee) he would be given work authorization. (Id. at 155.) Mr. Lovo testified he does not know of any other nationalities that received the same treatment, and that this was inducement for Nicaraguans to submit applications for suspension of deportation.

Mr. Lovo further testified that since the ruling in N-J-B many of his clients have been denied work authorization. ( Id. at 156.) Mr. Lovo submitted documents (Exs. 8 and 9) signifying a denial of an application and work authorization based on N-J-B. Mr. Lovo testified that under the current circumstances, clients can be deported without having the ability to appeal to the Eleventh Circuit, as they do not have a final administrative ruling. (Id. at 160.)
CONCLUSION
The Court finds, for the reasons set forth in the foregoing opinion, that the Plaintiff class members have demonstrated their entitlement to preliminary injunctive relief prayed for in their complaint by establishing: (1) that there is substantial likelihood of success on the merits, (2) that the preliminary injunction is necessary to prevent irreparable injury, (3) that the injury to the Plaintiff class outweighs any harm to the Defendants, and (4) that the preliminary injunction would serve the public interest. It is, therefore
ORDERED, ADJUDGED and DECREED that the Defendants, Janet Reno, Attorney General of the United States, Robert Wallis, District Director, Immigration and Naturalization Service, Department of Justice, and Board of Immigration Appeals, and their agents, employees, lawyers and persons acting under the direction and control, be and they are hereby, preliminarily enjoined from (1) deporting any member of the Plaintiff class, and (2) 651 enforcing Matter of N-J-B or otherwise pretermitting applications for suspension of deportation based on *651 the Defendants' policy as expressed in said Matter of N-J-B.
It is further ORDERED, ADJUDGED and DECREED that the bond heretofore posted by the Plaintiff class upon the entry of the temporary restraining order on May 14, 1997, shall constitute the appropriate and proper bond to stand as security under Fed. R.Civ.P. 65(c) during the pendency of this preliminary injunction.
It is further ORDERED, ADJUDGED and DECREED that a trial in this case shall commence on January 5, 1998.
DONE AND ORDERED.
[1] The parties have each submitted excellent memoranda concerning their respective positions. The factual recital of the procedural background, as set forth in the brief of the Plaintiff class, has been adopted, in part, into this opinion as a concise statement of the intensive litigation occurring in this case over the past thirty days. In adopting this recital, the Court has carefully eliminated from Plaintiffs' summary any fact believed to be in dispute. This is done solely in the interest of enabling the Court to comply with its announcement at the conclusion of the hearing on June 12, 1997, that the Court would render this Opinion as quickly as possible.
[2] Complaint at ¶ 55.
[3] Id.
[4] Plaintiffs' Ex. 12, indicating that approximately 31,000 Nicaraguans have been in the United States for 7 years or more who are in INS docket control. An additional 22,000 Nicaraguans have submitted applications for asylum, 80% of whom are long-term applicants eligible for suspension of deportation. Plaintiffs' Exs. 12 and 13.
[5] Janet Reno, Attorney General of the United States; Robert Wallis, District Director; Immigration and Naturalization Service; Department of Justice; and the Board of Immigration Appeals.
[6] Plaintiffs' Exs. 2 an 6.
[7] Motion for Temporary Restraining Order at 1.
[8] Order of May 20, 1997, denying Motion to Dismiss, Certifying Class and Appointing Lead Counsel, Granting Temporary Restraining Order, and Setting Preliminary Injunction Hearing.
[9] Order on Pending Motion of May 21, 1997, at 2.

[10] Order Extending Temporary Restraining Order Through Thursday, June 12, 1997; Order of Reference to Magistrate Judge of May 27, 1997.
[11] Id.
[12] Id.
[13] Trs. of June 3, 4, 9, 10 and 11, 1997.
[14] Testimony of Howard Gitlow, Tr. of June 10, 1997, at 46.
[15] Testimony of Jose A. Ojeda, Tr. of June 11, 1997, at 106.
[16] Testimony of Monsignor Emilio Vallina and Rev. Ramon Aymerich, Tr. of June 11, 1997.
[17] Testimony of Roberto Arguello, Tr. of June 3, 1997.
[18] Testimony of Juan Fuentes, Francisco Palma, William Gaitan and others, Trs. of June 10-11, 1997.
[19] Testimony of Ana Vazquez Aldana, Tr. of May 27, 1997.
[20] Testimony of Philip Turtletaub, Douglas Lux, Cheryl Little, Mario Lovo, Tr. of May 13, 1997 and Testimony of Ernesto Varas, Tr. of May 27, 1997.
[21] Plaintiffs' Exs. 1-82.
[22] Plaintiffs' Ex. 10A.
[23] Defendants' Exs. C to H.
[24] Defendants' Exs. I to R.
[25] Tr. of June 11, 1997, at 116-17. Magistrate Judge Stephen Brown made no finding as to likelihood of success on the merits because he believed that issue should be considered and determined by an Article III U.S. District Judge. He directed his opinion solely to the other criteria.
[26] Tr. of June 11, 1997, at 116-17.
[27] For example, the Immigration and Naturalization Service, according to their pleadings, resisting Plaintiffs' motion to hold them in contempt for failure to give discovery in compliance with this Court's order, asserted that they had incurred approximately $18,000 in overtime payment to scores of staff employees, in a good faith attempt to comply with the Court's order. The same pleadings also reflected that they were not able to gather the information and furnish it to Plaintiffs in timely fashion. The record also reflects that the Department of Justice dispatched attorneys from Washington to assist Mr. Dexter Lee, lead counsel, in processing the six appeals from Magistrate Judge Brown's discovery orders entered during this twenty-day phase, and to assist in the preparation of the voluminous briefs and documents filed herein.
Counsel for the Plaintiff class labored under a similar, or perhaps even greater, handicap, working with more limited resources and carrying the burden of establishing the record.
[28] The section states: "Transitional Rule with Regard to Suspension of Deportation. Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) shall apply to notices to appear issued before, on, or after the date of the enactment of this Act."
[29] Testimony of Congressman Peter Deutsch, Tr. of May 13, 1997, at 14.
[30] Plaintiffs' Ex. 1.
[31] Plaintiffs' Exs. 16, 17, 18, 39, 51, 52, 58, 59, 61, 62, 63, 69, 76, and 78.
[32] Plaintiffs' Ex. 16.

[33] Plaintiffs' Ex. 77. [34] Plaintiffs' Ex. 69. [35] Plaintiffs' Ex. 18. [36] Plaintiffs' Exs. 39 and 46. [37] Plaintiffs' Ex. 37; Testimony of Ana Vazquez-Aldana at 129. [38] Plaintiffs' Ex. 15. [39] Plaintiffs' Ex. 54. [40] Plaintiffs' Ex. 69 at 1-2. [41] Plaintiffs' Ex. 25. [42] Plaintiffs' Ex. 57. [43] Plaintiffs' Exs. 22 and 23. [44] Plaintiffs' Ex. 24. [45] Plaintiffs' Ex. 10. [46] Plaintiffs' Ex. 18A. [47] Id. [48] Testimony of Philip Turtle Taub, Tr. of May 13, 1997, at 38. [49] Plaintiffs' Exs. 19 and 63 at page 3. [50] Plaintiffs' Ex. 72 at 4 [Memo to Attorney General of 2/27/97 at page 3 of the document]. [51] Testimony of Philip Turtletaub, Tr. of May 13, 1997, at 44-45. [52] Expert testimony of Howard Gitlow, Tr. of June 10, 1997, at 54. [53] Id. [54] Testimony of Philip Turtletaub, Tr. of May 13, 1997, at 59. [55] Testimony of Olga Lazo, Tr. of June 3, 1997, at 91. [56] Testimony of William Gaitan, Tr. of June 10, 1997, at 65; Testimony of Olga Lazo, Tr. of June 3, 1997, at 91; Testimony of Douglas Lux, Tr. of May 13, 1997, at 119-21; Testimony of Dudley Rocha Petterson, Tr. of May 27, 1997 at 153-54; Testimony of Khadijeh Aidinezhad, Tr. of June 3, 1997, at 48. [57] Plaintiffs' Ex. 81. [58] Testimony of Philip Turtletaub and Douglas Lux, Tr. of May 13, 1997, at 30 and 106. [59] Plaintiffs' Ex. 41 is a small sample of the number of class members denied suspension of deportation. [60] Plaintiffs' Exs. 33 and 42 are a small sampling of the class members who have BIA decisions dismissing their cases. [61] Plaintiffs' Ex. 43 is a sample of those cases. See also Testimony of Maria Esperanza Vargas Chavaria, Tr. of May 27, 1997; Testimony of William Gaitan, Tr. of June 3, 1997; Testimony of Dudley Rocha Pettersen, Tr. of May 27, 1997.

[62] Testimony of Philip Turtletaub, Tr. of May 13, 1997 at 42. [63] Testimony of Cheryl Little, Tr. of May 13, 1997, at 90. [64] Plaintiffs' Exs. 2 and 6. Congressman Peter Deutsch also testified that the INS had not stopped deportations, and that he had talked with persons who had received bag and baggage letters. Testimony of Congressman Peter Deutsch, Tr. of May 13, 1997, at 17. [65] Testimony of Ms. Aidinezhad, Tr. of June 3, 1997, at 45; Ms. Largaespada, Tr. of June 11, 1997, at 4; Mr. Rivas, Defs.' Exhibit P at 8; and Ms. Portillo, Defs.' Exhibit O at 7. [66] Testimony of Roberto Tefel Defs.' Exhibit R at 5; Testimony of Palma, Tr. of June 10, 1997, at 30. [67] Testimony of Dudley Rocha Pettersen, Tr. of May 27, 1997, at 144. [68] Testimony of Dudley Rocha Pettersen, Tr. of May 27, 1997, at 154. [69] Testimony of William Gaitan, Tr. of June 10, 1997, at 66. [70] Testimony of Mirna Largaespada, Tr. of June 11, 1997, at 10. [71] The Nicaraguan Review Program was to originally end June 12, 1995. The Defendant INS instituted an additional one-year period for allowing Nicaraguans who had final orders of deportation prior to June 13, 1995, the opportunity to apply. At the end of this one-year period, the INS extended the transition period for one more year until June 12, 1997. [72] Testimony of Anthony Moscato at Plaintiffs' Exhibit 49 at 6. [73] Id. at 7. [74] Plaintiffs' Ex. 34. [75] Defendants' Mem. at 16; Defendants' Ex. B4 at 38. [76] Testimony of Howard Gitlow, Tr. of June 10, 1997, at 52; Testimony of Haydee Marin, Tr. of May 13, 1997, at 180. [77] Testimony of William Gaitan and others. [78] Testimony of Howard Gitlow, Tr. of June 10, 1997, at 54. [79] Testimony of Philip Turtletaub, Tr. of May 13, 1997, at 59; Testimony of Douglas Lux, Tr. of May 13, 1997, at 119-21. [80] Id.
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 </s> 996 F.Supp. 1 (1998)
Roberto TEFEL, et al., Plaintiffs, v.
Janet RENO, Attorney General of the United States, et al., Defendants.
No. 97-0805-CIV-KING.
United States District Court, S.D. Florida.
February 10, 1998.
2 *2 Ira Kurzban and Elliot H. Scherker, Miami, FL, for Plaintiffs.
Dexter Lee, Asst. U.S. Attorney, Miami, FL, David Bernal, Asst. Director, Office of Immigration Litigation Civil Division, Washington, DC, for Defendants.
ORDER DENYING DEFENDANTS' MOTION TO DISSOLVE INJUNCTION, MOTION TO DISMISS, AND MOTION FOR SUMMARY JUDGMENT
JAMES LAWRENCE KING, District Judge.
THIS CAUSE comes before the Court on Defendants' Motion to Dissolve Injunction, Motion to Dismiss as Moot as to Certain Class Members, and Motion for Summary Judgment as to the Remaining Class, filed December 22, 1997. Plaintiffs responded on January 6, 1998, and Defendants replied on January 16, 1998.
I. Factual and Procedural Background
A. Events Culminating in the Preliminary Injunction
Just like the statutes that spawned it, this case has a complicated history. Plaintiffs, who represent a class consisting of aliens, primarily Nicaraguans, under the threat of deportation, brought suit in this Court to challenge Defendants' interpretation and retroactive application of section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, Div. C, 110 Stat. 3009, 3009-545 to 3009-724. Section 309(c)(5) is one of the statute's transitional rules, which serve to phase in the substantial changes that IIRIRA made to the nation's immigration laws, codified in the Immigration and Nationality Act ("INA").
Section 309(c)(5) governs the timing of applications for suspension of deportation. Prior to IIRIRA, that form of relief required that the applicant establish continuous physical presence in the United States for a period of seven years prior to the filing of her application for suspension. IIRIRA changed the way in which the applicant's continuous physical presence is counted by ending that period when the applicant was issued a notice to appear, instead of when the applicant filed an application for suspension. This is IIRIRA's so-called "stop-time" provision. Section 309(c)(5) applied the stop-time provision's methodology to "notices to appear issued before, on, or after the date of the enactment of this Act [Sept. 30, 1996]." IIRIRA § 309(c)(5), 110 Stat. at 3009-627.
One of the many complexities engendered by IIRIRA, however, was that "notices to appear" were termed "orders to show cause"[1] before IIRIRA was passed. Thus, it was unclear whether IIRIRA's stop-time provision applied to aliens issued orders to show cause prior to September 30, 1996. In Matter of N-J-B, Int. Dec. 3309 (B.I.A.1997), the Board of Immigration Appeals ("BIA") decided that the stop-time provision did indeed cover orders to show cause issued prior to IIRIRA's enactment. As a result, many aliens placed in deportation proceedings prior to the passage of IIRIRA found themselves subject to its more stringent requirements. If they had been issued an order to show cause before being continuously present in the United States for more than seven years, then they failed to meet the statutory requirements for suspension. Consequently, their applications, if already filed, were pre-termitted.

When they initially filed this lawsuit, Plaintiffs sought to enjoin Defendants from enforcing N-J-B's interpretation of IIRIRA section 309(c)(5), which, if implemented, would have deprived Plaintiffs of a hearing on their applications for suspension of deportation. Among other things, Plaintiffs alleged in their Complaint that this interpretation 3 conflicted with both statutory and constitutional mandates. On May 14, 1997, *3 this Court denied Defendants' Motion to Dismiss for lack of subject matter jurisdiction, and on June 24, 1997, granted Plaintiffs a preliminary injunction. In so doing, the Court found that Plaintiffs were likely to succeed on their constitutional due process claim. The Court thus enjoined Defendants from "(1) deporting any member of the Plaintiff class, and (2) enforcing Matter of N-J-B or otherwise pretermitting applications for suspension of deportation based on the Defendants' policy as expressed in said Matter of N-J-B." (Prelim.Inj. at 64.) The Court described the Defendants' policy as "to strip the Plaintiffs and class members of their right to seek suspension of deportation by applying § 309(c)(5) of [IIRIRA] retroactively to bar [claims for suspension of deportation]." (Id. at 4.)
B. Events Subsequent to the Preliminary Injunction
After the Court issued the preliminary injunction, both the executive and legislative branches took actions that bear directly on the issues in this case. First, on July 10, 1997, Attorney General Janet Reno vacated the BIA's decision in Matter of N-J-B pending further review. Shortly thereafter, Defendants appealed this Court's preliminary injunction and order denying Defendants' motion to dismiss to the U.S. Court of Appeals for the Eleventh Circuit. In light of the Attorney General's vacatur of Matter of N-J-B, Plaintiffs/Appellees filed a motion to dismiss Defendants' appeal as moot. That motion is still pending before the Eleventh Circuit.
Meanwhile, Congress was working on legislation to temper some of IIRIRA's harsher effects. On November 19, 1997, the President signed into law the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"), Pub.L. 105-100, tit. II, 111 Stat. 2160, 2193-2201, amended by Pub.L. 105-139, 111 Stat. 2644. NACARA effects several more changes to the nation's immigration scheme. First, it codifies Matter of N-J-B's interpretation of IIRIRA section 309(c)(5) Thus, NACARA clarifies that IIRIRA's stop-time provision does apply to orders to show cause issued before IIRIRA's effective date, cutting off an alien's continuous physical presence at the point when she is issued the order to show cause. NACARA § 203(a)(1).
While NACARA thus purports to strip many aliens of the right to apply for suspension of deportation, it simultaneously exempts large classes of aliens from this very result. Certain qualifying Salvadorans, Guatemalans, and Eastern Europeans are exempted from the stop-time provision, and may apply for suspension of deportation (or cancellation of removal, as it is now termed) using the old method for calculating continuous physical presence. Id. In addition, another section of NACARA, while not exempting Nicaraguans and Cubans from the stop-time provision, renders that provision irrelevant by granting them the opportunity to apply directly for legal permanent residency status. Id. § 202. In effect, this amnesty provision grants those aliens who qualify far greater relief than they could have obtained even under pre-IIRIRA law.
All of these events have led Defendants to now argue that the Court should dissolve its injunction; dismiss the action as moot as to those class members, namely Nicaraguans, Cubans, Salvadorans, Guatemalans, and Eastern Europeans, to whom NACARA either grants amnesty or exempts from the stop-time provision; and grant Defendants summary judgment as to the remaining class members, because of NACARA's codification of Matter of N-J-B. In response, Plaintiffs argue that the preliminary injunction has not been mooted as to certain class members by the passage of NACARA because at this point it is still impossible to determine exactly which Plaintiffs will benefit from NACARA's exemption and amnesty provisions; and that a motion for summary judgment as to the remainder of the class is premature in the absence of further factual discovery.
II. Analysis

A. The Court Will Not Exercise Its Discretion To Dissolve the Preliminary Injunction Because Plaintiffs Continue To Have Viable Constitutional Claims

4 Inherent in a district court's equitable power is the authority to revisit and, if *4 necessary, to modify the terms of an ongoing preliminary injunction.

There is no doubt that the district court has continuing jurisdiction over a preliminary injunction. In the exercise of that jurisdiction, the court is authorized to make any changes in the injunction that are equitable in light of subsequent changes in the facts or the law, or for any other good reason.

Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 578 (5th Cir.1974)[2] (citations omitted); accord League of United Latin Am. Citizens v. Pasadena Indep. Sch. Dist., 672 F.Supp. 280, 281 (S.D.Tex.1987). When deciding whether to grant such a modification, "a court is charged with the exercise of the same discretion it exercised in granting or denying injunctive relief in the first place." Sierra Club v. United States Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir.1984). A court's determination in this regard is reversible only for an abuse of discretion. See SeaLand Serv., Inc. v. International Longshoremen's Ass'n of N.Y., 625 F.2d 38, 40 (5th Cir.1980).

The Court agrees with Defendants that an intervening change in the governing law would be one circumstance warranting a reappraisal of a court's injunction. Indeed, a change in the law is also grounds for modification of a permanent injunction, even though permanent injunctions need not be altered absent a more stringent showing of changed circumstances. For example, in Rufo v. Inmates of Suffolk County Jail, the Supreme Court noted, in the context of consent decrees in institutional reform litigation, that there is "no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen." 502 U.S. 367, 380, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) (quoting System Fed'n No. 91 v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961)); accord Hodge v. Department of Hous. & Urban Dev., 862 F.2d 859, 861-62 (11th Cir.1989); Elgin Nat'l Watch Co. v. Barrett, 213 F.2d 776, 780 (5th Cir.1954).

Based on this reasoning, Defendants argue that the passage of NACARA justifies dissolution of this Court's injunction. Without question, NACARA impacts on the issues in this case. Its codification of the BIA's interpretation of IIRIRA section 309(c)(5) directly refutes this Court's conclusion that Matter of N-J-B was likely wrongly decided. Therefore, Plaintiffs' allegation that Defendants are misapplying and thus violating IIRIRA necessarily fails. Plaintiffs cannot continue with that claim in the face of NACARA's unambiguous directive.

However, only to the extent just noted are Plaintiffs' arguments invalidated. As Plaintiffs point out, their Complaint also alleges that retroactive enforcement of section 309(c)(5), as interpreted in Matter of N-J-B and now explicitly codified through NACARA, violates the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-559, 701-706, 3105, 3344 (1994 & Supp.1997), and Fifth Amendment due process. The Court considered these arguments in its order granting the preliminary injunction and specifically found that Plaintiffs had a likelihood of success on the merits of their constitutional claim. Examining the scheme by which Defendants were pretermitting certain aliens' applications for adjustment, the Court concluded, "Distinctions such as these are wholly irrational and not related to any legitimate governmental interest." (Prelim.Inj. at 37.)

The passage of NACARA does nothing to change this. Because NACARA only amends IIRIRA, with the

amendments to take effect as if originally enacted in IIRIRA, see NACARA § 204(e), it is still the retroactive

application of IIRIRA section 309(c)(5) that Plaintiffs are challenging on constitutional grounds. In fact, Plaintiffs in

their Verified Complaint specifically seek "a declaration that the Defendants/Respondents' conduct violates

5

IIRIRA, the INA, the APA, and the due process of the Constitution *5 of the United States." (Compl. at 28.)[3] That

conduct is the practice of applying section 309(c)(5) so as to bar, retroactively, suspension of deportation relief in

certain cases. The Court cannot now ignore this viable argument in order to dissolve the preliminary injunction.

The protection it affords Plaintiffs is needed pending a resolution of Plaintiffs' constitutional claim.

B. The Preliminary Injunction Is Not Moot
Defendants' next argument is that the preliminary injunction is moot as to those class members who are granted specific relief in NACARA. As the Supreme Court has explained, "mootness [is] the `doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).'" United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Henry Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). This requirement devolves from the constitutional prohibition on federal courts issuing advisory opinions. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975).
As Defendants correctly argue, a statutory change may be sufficient to render moot pending litigation. See, e.g., Native Village of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir.1994); Hodge, 862 F.2d at 859; National Black Police Ass'n v. District of Columbia, 108 F.3d 346 (D.C.Cir.1997). Regardless of whether the intervening change is legal or factual, however, the key in determining mootness is whether the Court can still "affect the rights of litigants in the case before [it]." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971).
As noted above, NACARA provides two categories of relief from application of section 309(c)(5). First, qualifying Nicaraguans and Cubans, although not technically exempt from section 309(c)(5), receive amnesty in the form of the ability to apply for adjustment of status. They therefore can apply directly to become legal permanent residents and need not worry about applying for suspension of deportation. Second, other qualifying aliens who are Salvadoran, Guatemalan, or Eastern European are exempt from section 309(c)(5). As a result, they may apply for suspension of deportation under the pre-IIRIRA rules and have a hearing on their petition.
Defendants argue that because NACARA grants these class members the ultimate relief they seek, namely avoiding deportation due to an inability to pursue applications for suspension, the injunction is now moot as to them. The Court disagrees. Although NACARA makes it clear that certain class members will receive the relief they seek, it is not clear at this time who those class members are. Plaintiffs point to the INS's failure to implement regulations as evidence that it is impossible to currently ascertain which members of the class will be protected by NACARA's provisions. Regulations are not necessary in order for a statute to create a mootness problem. Rather, the lack of regulations points to the potential that some of the class members purportedly protected by NACARA will be bereft of relief once future regulations specify who is a "qualifying" Nicaraguan, Cuban, Salvadoran, Guatemalan, and Eastern European.
Defendants themselves have recognized this possibility. In their response to Plaintiffs' Motion to Dismiss Appeal as Moot, currently pending before the Eleventh Circuit, Defendants stated to the court that "even some Salvadoran, Guatemalan, and Eastern European members of the class may not qualify for the exception from the stop-time provision" and that "[i]t is possible, however, that that [sic] there may be some Nicaraguans and Cubans who will be ineligible for amnesty under NACARA." (Appellants' Opp'n to Appellees' Mot. to Dismiss Appeal as Moot at 23, 25-26) (internal footnotes omitted). In light of these representations to the Eleventh Circuit, 6 it is disingenuous for *6 Defendants to now argue to this Court that "there are no unidentified plaintiffs and class members who are entitled to seek relief under NACARA." (Defs.' Reply at 6.) In light of these uncertainties, the Court will not deprive Plaintiffs of the protection of the preliminary injunction by dismissing their claims as moot.
C. Defendants Are Not Entitled to Summary Judgment
Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) .

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. If the movant meets this burden, the burden then shifts to the nonmoving party to establish that a genuine dispute of material fact exits. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993). If the evidence relied on is such that a reasonable jury could return a verdict in favor of the nonmoving party, then the Court should refuse to grant summary judgment. See id. at 919.
As discussed above, Plaintiffs continue to have a viable constitutional claim, and they have presented evidence to support it. In the absence of further discovery, and in light of the fact that Defendants have failed to meet their burden of showing that there is no genuine dispute of material fact, the Court will deny summary judgment at this point.
Accordingly, after a careful review of the record, and the Court being otherwise fully advised, it is
ORDERED and ADJUDGED that Defendants' Motion to Dissolve Injunction, Motion to Dismiss as Moot as to Certain Class Members, and Motion for Summary Judgment as to the Remaining Class be, and the same is hereby, DENIED.
DONE and ORDERED at the James Lawrence King Federal Justice Building and United States District Courthouse, Miami, Florida, this 10th day of February, 1998.
[1] Both of these terms refer to documents issued by the Immigration and Naturalization Service to aliens in order to commence deportation proceedings against them.
[2] The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued prior to October 1, 1981. See Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
[3] The Court acknowledges, however, that both the legislative activity and the changes in executive practice that have occurred may necessitate amendments in the pleadings presently before the Court.
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U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:97-cv-00805-PAS

CLOSED

Tefel, et al v. US Attorney General, et al Assigned to: Judge Patricia A. Seitz Demand: $0 Cause: 28:2201 Declaratory Judgment Plaintiff Roberto Tefel and family members
Plaintiff Khadijeh Aidenezhad

Date Filed: 03/28/1997 Jury Demand: None Nature of Suit: 460 Deportation Jurisdiction: Federal Question
represented by Ira Jay Kurzban Kurzban Kurzban Weinger & Tetzeli 2650 SW 27th Avenue 2nd Floor Miami, FL 33133 305-444-0060 Fax: 444-3503 Email: ira@kkwtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Vicente Agustin Tome Legal Services of Greater Miami 3000 Biscayne Boulevard Suite 500 Miami, FL 33137 305-576-0080 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address)

1 of 44

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Plaintiff Juan Gouzaga Baez
Plaintiff Wilbur Baez and family members TERMINATED: 06/09/1997
2 of 44

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Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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represented by Ira Jay Kurzban (See above for address) TERMINATED: 06/09/1997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Plaintiff Norma J. Baldizon
Plaintiff Zulema Balladares
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Plaintiff Roberto Barberena
Plaintiff Roberto R. Amaya Bautista and family members
Plaintiff
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Juan Bermudez
Plaintiff Ricardo Bermudez
Plaintiff Ana Borge
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Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Plaintiff Jesus Chow
Plaintiff Edgar Enriquez
Plaintiff Jaime Enriquez
7 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY

8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Martha Enriquez
Plaintiff Lorena Garcia and family members
8 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Gloria Guerrero and family members
Plaintiff Ignacio Herrera and family members
9 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Justina Jiron and family members
Plaintiff Armando Largaespada
Plaintiff Manuel Mantilla
10 of 44

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represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Leonel Martinez and family members
Plaintiff Leonte Martinez and family members
11 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Herenia Matute
Plaintiff Nidia Mercado and family members
Plaintiff
12 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Carlos Morales
Plaintiff Sebastian Murillo and family members
Plaintiff Boanerges Pao
13 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Dudley Rocha-Petterson
Plaintiff Liliam Portillo
14 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Freddy Quintero and family members
Plaintiff Lucrecia Raudes
Plaintiff Carlos Rivas and family members
15 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY

8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Roberto Rivera
Plaintiff Virginia Rodriguez and family members
16 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Ernesto Torres Sandoval
Plaintiff Enrique Sequeira
17 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report
Plaintiff Franklin Siu and family members
Plaintiff Subalecthumy Vengadasalam
V. Defendant US Attorney General Attorney General of the United States
18 of 44

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mario Martin Lovo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lewis Boyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vicente Agustin Tome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee United States Attorney's Office 99 NE 4 Street Miami, FL 33132
8/14/2007 2:13 PM

CM/ECF - Live Database - flsd - Docket Report

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?460909372909545-L_92...

Defendant Robert Wallis District Director
Defendant United States Department of Immigration and Naturalization Service
Defendant Board of Immigration Appeals Department of Justice

305-961-9320 Fax: 530-7139 Email: dexter.lee@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Molina United States Justice Department Immigration Litigation 1331 Pennsylvania Avenue, NW Room 700 S Washington, DC 20530 202-616-9344 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/28/1997 03/28/1997 03/28/1997 03/28/1997

#

Docket Text

1 COMPLAINT filed; FILING FEE $150.00 RECEIPT # 674711; A-7; STB (Former Deputy Clerk) (Entered: 04/02/1997)
2 SUMMONS(ES) issued for Janet Reno (Former Deputy Clerk) (Entered: 04/02/1997)
3 SUMMONS(ES) issued for Robert Wallis (Former Deputy Clerk) (Entered: 04/02/1997)
4 SUMMONS(ES) issued for Immigration c/o Doris Meissner, INS Commissioner (Former Deputy Clerk) (Entered: 04/02/1997)

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03/28/1997 03/28/1997 03/28/1997 03/28/1997 03/31/1997 03/31/1997 04/08/1997 04/08/1997 04/08/1997 04/08/1997 04/17/1997 04/17/1997 04/17/1997 04/17/1997 04/17/1997 04/21/1997
04/21/1997

5 SUMMONS(ES) issued for Board of Immigration Appeals, Paul Schmidt, Chair (Former Deputy Clerk) (Entered: 04/02/1997)
6 SUMMONS(ES) issued Department of Justice c/o Janet Reno (Former Deputy Clerk) (Entered: 04/02/1997)
7 SUMMONS(ES) issued William Keefer, U.S. Attorney General for Southern District of FL (Former Deputy Clerk) (Entered: 04/02/1997)
Magistrate identification: Magistrate Judge Stephen T. Brown (Former Deputy Clerk) (Entered: 04/02/1997)
8 NOTICE of Pendency of Other Action, by All Plaintiffs (lk, Deputy Clerk) (Entered: 04/07/1997)
8 MOTION by All Plaintiffs to transfer case (lk, Deputy Clerk) (Entered: 04/07/1997)
9 ORDER granting [8-1] motion to transfer case ( signed by Judge K. M. Moore on 4/7/97 and Judge King 4/8/97) CCAP (lk, Deputy Clerk) (Entered: 04/14/1997)
CASE reassigned to Judge James L. King (lk, Deputy Clerk) (Entered: 04/14/1997)
10 RETURN OF SERVICE executed for Robert Wallis on 4/1/97 Answer due on 4/21/97 for Robert Wallis (lk, Deputy Clerk) (Entered: 04/14/1997)
11 RETURN OF SERVICE executed for Janet Reno on 4/1/97 Answer due on 4/21/97 for Janet Reno (lk, Deputy Clerk) (Entered: 04/14/1997)
12 MOTION with memorandum in support by All Plaintiffs for provisional class certification (hd, Deputy Clerk) (Entered: 04/18/1997)
13 MOTION by All Plaintiffs for temporary restraining order (hd, Deputy Clerk) (Entered: 04/18/1997)
14 MEMORANDUM by All Plaintiffs in support of [13-1] motion for temporary restraining order (hd, Deputy Clerk) (Entered: 04/18/1997)
15 APPENDIX to: [14-1] support memorandum by All Plaintiffs (hd, Deputy Clerk) (Entered: 04/18/1997)
16 MOTION by All Plaintiffs for emergency Hearing (hd, Deputy Clerk) (Entered: 04/18/1997)
17 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration for leave to file in excess of 20 pages memorandum of law in opposition to request for emergency hearing and motion for temporary restraining order, and memorandum of law in support of motion to dismiss (hd, Deputy Clerk) (Entered: 04/23/1997)
18 MEMORANDUM by Janet Reno, Robert Wallis, Immigration, Board of Immigration in opposition to [16-1] motion for emergency Hearing, [13-1] motion for temporary restraining order (hd, Deputy Clerk) (Entered: 04/23/1997)

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04/21/1997 04/23/1997 04/23/1997
04/24/1997 04/24/1997 04/25/1997 04/25/1997 04/25/1997 04/25/1997 04/25/1997
04/25/1997 04/28/1997

18 MOTION with memorandum in support by Janet Reno, Robert Wallis, Immigration, Board of Immigration to dismiss the complaint (hd, Deputy Clerk) (Entered: 04/23/1997)
19 ORDER granting [16-1] motion for emergency Hearing Motion hearing before Judge James L. King set for 9:30 5/13/97 for [13-1] motion for temporary restraining order ( signed by Judge James L. King on 4/23/97) CCAP (lk, Deputy Clerk) (Entered: 04/28/1997)
20 ORDER granting [17-1] motion for leave to file in excess of 20 pages memorandum of law in opposition to request for emergency hearing and motion for temporary restraining order, and memorandum of law in support of motion to dismiss ( signed by Judge James L. King on 4/23/97) CCAP (lk, Deputy Clerk) (Entered: 04/28/1997)
21 EMERGENCY MOTION with memorandum in support for joinder as plaintiff , and to stay deportation (lk, Deputy Clerk) (Entered: 04/28/1997)
38 MOTION with memorandum in support by All Plaintiffs to shorten time to answer and to provide documents pursuant to Rule 34 (hd, Deputy Clerk) (Entered: 05/12/1997)
22 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration for Hearing on Motion to Dismiss, in conjunction with hearing on Temporary Restraining order on 5/13/97 (Former Deputy Clerk) (Entered: 04/29/1997)
23 MEMORANDUM by Janet Reno, Robert Wallis, Immigration, Board of Immigration in opposition to Motion to shorten time to answer and to provide documents pursuant to Rule 34 (Former Deputy Clerk) (Entered: 04/29/1997)
23 MOTION with memorandum in support by Janet Reno, Robert Wallis, Immigration, Board of Immigration to stay all discovery pending ruling on defedants' Motion to Dismiss for lack of jurisdiction (Former Deputy Clerk) (Entered: 04/29/1997)
Motion hearing re: [21-1] motion for joinder as plaintiff, [21-2] motion to stay deportation (hd, Deputy Clerk) (Entered: 05/02/1997)
24 Minutes of motion hearing held before Judge James L. King on 4/25/97; granting [21-1] motion for joinder as plaintiff, granting [21-2] motion to stay deportation, pending further resolution of matter, set brief by COB due for 5/12/97 , hearing set for 9:30 5/13/97, granting application for release of petitioner Court Reporter Name: Larry Herr (hd, Deputy Clerk) Modified on 05/02/1997 (Entered: 05/02/1997)
25 ORDER granting [21-2] motion to stay deportation and releasing German Reyes forthwith from custody ( signed by Judge James L. King on 4/25/97) CCAP (hd, Deputy Clerk) (Entered: 05/02/1997)
26 ORDER granting [21-1] motion for joinder as plaintiff, granting [21-2] motion to stay deportation and release from custody remain in effect as per 4/25/97 order, Motion hearing set for 5/13/97 before Judge James L. King for [13-1] motion for temporary restraining order, and continuing this matter , to post a surety bond of $25,000.00 by 5:00 4/28/97 , and for leave to file amended papers in connection with relief sought in emergency moiton, due 5/12/97 ( signed by Judge James L.

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04/28/1997
04/28/1997 04/29/1997
04/30/1997
05/01/1997 05/05/1997 05/06/1997 05/06/1997 05/06/1997 05/06/1997 05/07/1997 05/09/1997 05/09/1997 05/09/1997

King on 4/28/97) CCAP (hd, Deputy Clerk) (Entered: 05/02/1997)
27 REPLY by All Plaintiffs to response to [23-1] motion to stay all discovery pending ruling on defendants' Motion to Dismiss for lack of jurisdiction and to shorten time to answer and provide documents pursuant to Rule 34 (hd, Deputy Clerk) (Entered: 05/02/1997)
28 NOTICE of correction as to due date for response to motion for provisional class certification by Janet Reno, Robert Wallis, Immigration, Board of Immigration (hd, Deputy Clerk) (Entered: 05/02/1997)
29 ORDER granting [22-1] motion for Hearing on Motion to Dismiss, in conjunction with hearing on Temporary Restraining order on 5/13/97 ( signed by Judge James L. King on 4/28/97) CCAP (hd, Deputy Clerk) (Entered: 05/05/1997)
30 REPLY by Janet Reno, Robert Wallis, Immigration, Board of Immigration to response to [23-1] motion to stay all discovery pending ruling on defendants' Motion to Dismiss for lack of jurisdiction (hd, Deputy Clerk) (Entered: 05/05/1997)
31 RESPONSE by Janet Reno, Robert Wallis, Immigration, Board of Immigration in opposition to [12-1] motion for provisional class certification (hd, Deputy Clerk) (Entered: 05/06/1997)
36 APPEARANCE BOND entered by German Antonio Reyes in Amount $ 25,000.00 Receipt # AS25 800208 Approved by Judge James L. King (hd, Deputy Clerk) (Entered: 05/09/1997)
32 MOTION by All Plaintiffs for leave to file brief in excess of page limits (hd, Deputy Clerk) (Entered: 05/08/1997)
33 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration for protective order prohibiting the deposition of Robert Wallis (hd, Deputy Clerk) (Entered: 05/08/1997)
34 Statement of counsel regarding issues raised in motion for protective order regarding Robert Wallis' deposition: by Janet Reno, Robert Wallis, Immigration, Board of Immigration (hd, Deputy Clerk) (Entered: 05/08/1997)
35 REPLY by All Plaintiffs to response to [13-1] motion for temporary restraining order (hd, Deputy Clerk) (Entered: 05/08/1997)
37 NOTICE of attorney appearance for German Antonio Reyes by Oscar Levin and Elliot H. Scherker (hd, Deputy Clerk) (Entered: 05/09/1997)
39 RESPONSE by All Plaintiffs in opposition to [31-1] opposition response (hd, Deputy Clerk) (Entered: 05/15/1997)
40 MOTION with memorandum in support by German Antonio Reyes to amend habeas corpus allegations in [21-1] motion for joinder as plaintiff (hd, Deputy Clerk) (Entered: 05/15/1997)
41 Emergency MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration to stay deposition scheduled for 5/12/97 (hd, Deputy Clerk) (Entered: 05/15/1997)

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05/12/1997 05/12/1997 05/12/1997 05/12/1997
05/13/1997 05/14/1997
05/15/1997 05/15/1997 05/16/1997 05/16/1997 05/19/1997 05/19/1997 05/19/1997 05/20/1997

42 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration to dismiss misjoined party (German Antonio Reyes) (hd, Deputy Clerk) (Entered: 05/16/1997)
43 REPLY by Janet Reno, Robert Wallis, Immigration, Board of Immigration to response to [18-1] motion to dismiss the complaint (hd, Deputy Clerk) (Entered: 05/16/1997)
44 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration for leave to file reply to response to motion to dismiss in excess of 10 pages (hd, Deputy Clerk) (Entered: 05/16/1997)
45 NOTICE of filing omitted Exhibit 1 to defendants' memorandum in reply to plaintiffs' opposition to defendants' motion to dismiss for lack of jurisdiction by Janet Reno, Robert Wallis, Immigration, Board of Immigration (hd, Deputy Clerk) (Entered: 05/16/1997)
46 ORDER granting [32-1] motion for leave to file brief in excess of page limits ( signed by Judge James L. King on 5/12/97) CCAP (hd, Deputy Clerk) (Entered: 05/19/1997)
47 MOTION with memorandum in support by Janet Reno, Robert Wallis, Immigration, Board of Immigration to strike testimony of representative Peter Deutsch as irrelevant to issue of legislative intent (hd, Deputy Clerk) (Entered: 05/19/1997)
48 NOTICE of filing receipt number 223671 for bond payment per oral order of court by Kurzban Kurzban Weinger and Tetzeli by Roberto Tefel, et al. (hd, Deputy Clerk) (Entered: 05/21/1997)
51 NOTICE to produce documents by All Plaintiffs (hd, Deputy Clerk) (Entered: 05/23/1997)
49 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration that hearing on motion for preliminary injunction be set for 5/27/97 (hd, Deputy Clerk) (Entered: 05/23/1997)
50 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration to set Bond for $50,000.00 as security for issuance of temporary restraining order (hd, Deputy Clerk) (Entered: 05/23/1997)
52 MEMORANDUM by All Plaintiffs in support of scheduling of preliminary injunction hearing (hd, Deputy Clerk) (Entered: 05/27/1997)
53 Objections/RESPONSE by Janet Reno, Robert Wallis, Immigration, Board of Immigration in opposition to draft order on pending motions, provided by plaintiff's counsel on 5/19/97 (hd, Deputy Clerk) (Entered: 05/27/1997)
54 MEMORANDUM by Janet Reno, Robert Wallis, Immigration, Board of Immigration in opposition to re: applicability of time limitations in Rule 65(b) (hd, Deputy Clerk) (Entered: 05/27/1997)
55 ORDER granting in part, denying in part [50-1] motion to set Bond for $50,000.00 as security for issuance of temporary restraining order, granting [49-1] motion that hearing on motion for preliminary injunction be set for 5/27/97, denying [18-1] motion to dismiss the complaint, granting [13-1] motion

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05/20/1997 05/20/1997 05/21/1997 05/21/1997
05/22/1997
05/23/1997 05/23/1997 05/27/1997 05/27/1997 05/27/1997 05/28/1997

for temporary restraining order, granting [12-1] motion for provisional class certification and appointing lead counsel set evidentiary hearing for 8:30 5/27/97 before Judge James King , to set Bond at $100.00 ( signed by Judge James L. King on 5/20/97) CCAP (hd, Deputy Clerk) (Entered: 05/29/1997)
56 RESPONSE by All Plaintiffs in opposition to [53-1] opposition response (hd, Deputy Clerk) (Entered: 05/29/1997)
57 Witness and exhibit list by All Plaintiffs (hd, Deputy Clerk) (Entered: 05/29/1997)
58 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration to stay production of documents ordered for 5/23/97 and depositions ordered for 5/24/97, pending appellate review (hd, Deputy Clerk) (Entered: 05/30/1997)
59 ORDER ON PENDING MOTIONS: granting [49-1] motion that hearing on motion for preliminary injunction be set for 8:30 5/27/97, denying [47-1] motion to strike testimony of representative Peter Deutsch as irrelevant to issue of legislative intent, granting [44-1] motion for leave to file reply to response to motion to dismiss in excess of 10 pages, denying as moot [33-1] motion for protective order prohibiting the deposition of Robert Wallis, granting [32-1] motion for leave to file brief in excess of page limits, granting [38-1] motion to shorten time to answer and to provide documents pursuant to Rule granting [17-1] motion for leave to file in excess of 20 pages memorandum of law in opposition to request for emergency hearing and motion for temporary restraining order, and memorandum of law in support of motion to set discovery due for 5:00 5/23/97 ( signed by Judge James L. King on 5/21/97) CCAP (hd, Deputy Clerk) Modified on 05/30/1997 (Entered: 05/30/1997)
60 ORDER denying [58-1] motion to stay production of documents ordered for 5/23/97 and depositions ordered for 5/24/97, pending appellate review, defendants cause to be forthwith filed with Clerk, USCA, 11th Circuit ( signed by Judge James L. King on 5/22/97) CCAP (hd, Deputy Clerk) (Entered: 05/30/1997)
62 ORDER amending order of May 20, 1997 ; amending nunc pro tunc to read, "this order is in effect for ten days until 5.29.97." ( signed by Judge James L. King on 5.23.97) CCAP (lk, Deputy Clerk) (Entered: 06/03/1997)
63 MEMORANDUM by All Defendants in support on application of rule 65 (b) (lk, Deputy Clerk) (Entered: 06/03/1997)
64 ORDER reset preliminary injunction evidentiary hearing for 6/12/97 before Magistrate Stephen T. Brown , for temporary restraining order extended through 6/12/97 ( signed by Judge James L. King on 5/27/97) CCAP (hd, Deputy Clerk) (Entered: 06/04/1997)
65 RESPONSE by German Antonio Reyes in opposition to [42-1] motion to dismiss misjoined party (German Antonio Reyes) (hd, Deputy Clerk) (Entered: 06/05/1997)
Evidentiary hearing held re: preliminary injunction (hd, Deputy Clerk) (Entered: 06/24/1997)
Status conference held (hd, Deputy Clerk) (Entered: 06/05/1997)

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05/28/1997 05/28/1997 05/28/1997
05/29/1997 05/29/1997 05/29/1997 05/29/1997
05/30/1997
05/30/1997 05/30/1997 05/30/1997 05/30/1997 05/30/1997 06/02/1997 06/02/1997

66 Minutes of status conference re: privilege log hearing, evidentiary hearing, and discovery matters held before Magistrate Stephen T. Brown on 5/28/97; Court Reporter Name: Randy Belsvik (hd, Deputy Clerk) (Entered: 06/05/1997)
67 EXHIBIT 10-A: in support of preliminary injunction by All Plaintiffs (hd, Deputy Clerk) (Entered: 06/05/1997)
68 Transcript of hearing on temporary restraining order and motion to dismiss filed as plaintiff's Exhibit 10-A in support of preliminary injunction Date: 5/13/97 Before Judge: James Lawrence King Volume No.: 1 Number of pages: 316 (hd, Deputy Clerk) (Entered: 06/05/1997)
73 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration to extend time to file answer to complaint (hd, Deputy Clerk) (Entered: 06/06/1997)
74 OBJECTIONS/RESPONSE by All Defendants in opposition to plaintiffs' proposed discovery order submitted on 5/29/97 (hd, Deputy Clerk) (Entered: 06/06/1997)
Status conference held (hd, Deputy Clerk) (Entered: 06/06/1997)
75 Minutes of status conference held before Magistrate Stephen T. Brown on 5/29/97; defendant's amended privilege log due by 4:00 5/30/97 reconvene status conference at 4:00 5/30/97 before Magistrate Stephen T. Brown , order on pending discovery to be revise Court Reporter Name: not provided (hd, Deputy Clerk) (Entered: 06/06/1997)
69 ORDER on pending discovery motions: all parties to meet prior to 9:30 5/29/97 to discuss feasibility of compiling statistical information, set discovery decision due by 5:00 5/30/97 either to produce documentation, or alternatively, provide statistical information ( signed by Magistrate Stephen T. Brown on 5/30/97) CCAP (hd, Deputy Clerk) (Entered: 06/06/1997)
70 NOTICE to produce documentation within 7 days of the date of this notice by All Plaintiffs (hd, Deputy Clerk) (Entered: 06/06/1997)
71 Transcript filed re: hearing on temporary restraining order and motion to dismiss Date: 5/13/97 Before Judge: James Lawrence King Volume No.: 1 Number of pages: 209 (hd, Deputy Clerk) Modified on 06/06/1997 (Entered: 06/06/1997)
72 Transcript filed re: continued hearing on temporary restraining order and motion to dismiss Date: 5/14/97 Before Judge: James Lawrence King Volume No.: 1 Number of pages: 106 (hd, Deputy Clerk) (Entered: 06/06/1997)
76 MOTION by Janet Reno, Robert Wallis, Immigration, Board of Immigration for partial relief from order on pending discovery motions (hd, Deputy Clerk) (Entered: 06/09/1997)
Status conference held re: privilege log/pending discovery motions (hd, Deputy Clerk) Modified on 06/13/1997 (Entered: 06/13/1997)
61 EXHIBITS : by All Plaintiffs (hd, Deputy Clerk) (Entered: 06/02/1997)
77 ORDER granting [73-1] motion to extend time to file answer to complaint reset answer due for 6/19/97 for All Defendants, for Board of Immigration, for Immigration, for Robert Wallis, for Janet Reno ( signed by Magistrate Stephen T.

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06/02/1997 06/02/1997
06/02/1997 06/02/1997 06/02/1997 06/02/1997 06/02/1997 06/03/1997 06/03/1997
06/03/1997 06/04/1997
06/04/1997 06/04/1997
06/04/1997

Brown on 6/2/97) CCAP (hd, Deputy Clerk) (Entered: 06/10/1997)
78 ORDER staying portion of Judge James Lawrence King's 5/21/97 order regarding 4 current or former INS officials ( signed by Magistrate Stephen T. Brown on 6/2/97) CCAP (hd, Deputy Clerk) (Entered: 06/10/1997)
79 ORDER granting, as amended, [76-1] motion for partial relief from order on pending discovery motions reset discovery due for 5:00 6/3/97 ( signed by Magistrate Stephen T. Brown on 6/2/97) CCAP (hd, Deputy Clerk) (Entered: 06/10/1997)
80 ORDER compelling disclosure of certain documents , finding privilege applies to certain other documents ( signed by Magistrate Stephen T. Brown on 6/3/97) CCAP (hd, Deputy Clerk) (Entered: 06/10/1997)
81 ORDER overruling [74-1] opposition response to proposed discovery order ( signed by Magistrate Stephen T. Brown on 6/2/97) CCAP (hd, Deputy Clerk) (Entered: 06/10/1997)
82 MEMORANDUM by All Plaintiffs in opposition to amended privilege log (hd, Deputy Clerk) (Entered: 06/10/1997)
83 RENEWED MOTION by All Plaintiffs for contempt (hd, Deputy Clerk) (Entered: 06/10/1997)
84 NOTICE of filing declaration (copy attached) of INS Commissioner Doris Meissner and in camera filing of certain discovery material ordered by court on 5/30/97 by All Defendants (hd, Deputy Clerk) (Entered: 06/10/1997)
85 EMERGENCY MOTION by All Defendants for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) Modified on 06/12/1997 (Entered: 06/10/1997)
86 OBJECTIONS/RESPONSE by All Defendants in opposition to [80-1] relief compelling disclosure of certain documents, [80-2] relief finding privilege applies to certain other documents, [80-3] order (hd, Deputy Clerk) (Entered: 06/10/1997)
Status conference/oral argument held on preliminary injunction (hd, Deputy Clerk) Modified on 06/11/1997 (Entered: 06/11/1997)
87 Minutes of status conference/oral argument held before Magistrate Stephen T. Brown on 6/3/97; reset status conference/oral argument on preliminary injunction for 10:00 6/4/97 before Magistrate Stephen T. Brown Court Name: Randy Belsvik (hd, Deputy Clerk) Modified on 06/11/1997 (Entered: 06/11/1997)
Status conference/oral argument held on preliminary injunction (hd, Deputy Clerk) Modified on 06/11/1997 (Entered: 06/11/1997)
88 Minutes of status conference/oral argument held before Magistrate Stephen T. Brown on 6/4/97; reset status conference/oral argument on preliminary injunction for 6/10/97 before Magistrate Stephen T. Brown Court Reporter Name: Randy Belsvik (hd, Deputy Clerk) (Entered: 06/11/1997)
89 RESPONSE by All Defendants in opposition to [70-1] shortening time period to respond to third notice to produce (hd, Deputy Clerk) (Entered: 06/11/1997)

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06/04/1997 06/04/1997 06/04/1997 06/04/1997 06/04/1997 06/04/1997
06/04/1997 06/04/1997 06/04/1997 06/04/1997 06/04/1997 06/04/1997
06/04/1997 06/04/1997
06/05/1997

89 MOTION by All Defendants for protective order with respect to requests 2 and 4 of the notice to produce of 5/30/97 (hd, Deputy Clerk) (Entered: 06/11/1997)
90 NOTICE of filing omitted exhibit to defendants' opposition to shortening time period to respond to third notice to produce and motion for protective order by All Defendants (hd, Deputy Clerk) (Entered: 06/11/1997)
91 NOTICE regarding filing of similar matter by All Defendants (hd, Deputy Clerk) (Entered: 06/11/1997)
92 SECOND EMERGENCY MOTION by All Defendants for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) (Entered: 06/11/1997)
93 OBJECTIONS/RESPONSE by All Defendants in opposition to [79-1] relief reset discovery due for 5:00 6/3/97, [79-2] order compelling release of privileged documents (hd, Deputy Clerk) Modified on 06/11/1997 (Entered: 06/11/1997)
95 RESPONSE by All Plaintiffs in opposition to [93-1] opposition response, [92-1] motion for stay of magistrate judge's order compelling release of documents pending appeal, [85-1] motion to stay of Magistrate Judge's order compelling release documents pending appeal (hd, Deputy Clerk) (Entered: 06/11/1997)
96 NOTICE of filing final documents pursuant to Court's order dated 6/4/97 by All Defendants (hd, Deputy Clerk) Modified on 06/12/1997 (Entered: 06/11/1997)
97 Statement of counsel: by All Defendants (hd, Deputy Clerk) (Entered: 06/11/1997)
98 Certification of emergency by All Defendants (hd, Deputy Clerk) (Entered: 06/11/1997)
99 MOTION by All Plaintiffs to have exhibit No. 37 temporarily returned to plaintiff in order to translate video tape into English language (hd, Deputy Clerk) (Entered: 06/11/1997)
100 ORDER staying order of 6/3/97, parties shall appear before Judge Marcus at 5:00 on 6/4/97 ( signed by Magistrate Stephen T. Brown on 6/4/97) CCAP (hd, Deputy Clerk) Modified on 06/12/1997 (Entered: 06/11/1997)
101 ORDER granting [99-1] motion to have exhibit No. 37 temporarily returned to plaintiff in order to translate video tape into English language, exhibit to be released for 3 days commencing 6/4/97 ( signed by Magistrate Stephen T. Brown on 6/4/97) CCAP (hd, Deputy Clerk) (Entered: 06/11/1997)
102 SEALED DOCUMENT placed in vault (hd, Deputy Clerk) (Entered: 06/12/1997)
108 ORDER granting [92-1] motion for stay of magistrate judge's order compelling release of documents pending appeal compelling defendants to produce to plaintiffs and to the Court ( signed by Magistrate Stephen T. Brown on 6.4.97) CCAP (lk, Deputy Clerk) (Entered: 06/12/1997)
103 SEALED DOCUMENT placed in vault (hd, Deputy Clerk) (Entered: 06/12/1997)

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06/05/1997 06/05/1997 06/05/1997 06/05/1997 06/05/1997 06/05/1997 06/05/1997 06/05/1997
06/05/1997
06/05/1997 06/05/1997
06/05/1997 06/06/1997

104 SEALED DOCUMENT placed in vault (hd, Deputy Clerk) (Entered: 06/12/1997)
109 MOTION by All Plaintiffs to require deponents Wallis and Moscato to review their transcripts no later than 6/9/97 (hd, Deputy Clerk) (Entered: 06/12/1997)
111 NOTICE of correction to defendants' notice of filing final documents by All Defendants (hd, Deputy Clerk) (Entered: 06/12/1997)
112 THIRD EMERGENCY MOTION by All Defendants for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) (Entered: 06/12/1997)
113 THIRD OBJECTIONS/RESPONSE by All Defendants in opposition to [79-1] relief reset discovery due for 5:00 6/3/97, [79-2] order compelling release of privileged documents (hd, Deputy Clerk) (Entered: 06/12/1997)
114 Certification of emergency re: third emergency motion for stay of magistrate judge's order compelling release of documents pending appeal by All Defendants (hd, Deputy Clerk) Modified on 06/17/1997 (Entered: 06/12/1997)
115 NOTICE regarding filing of similar matter by All Defendants (hd, Deputy Clerk) (Entered: 06/12/1997)
116 SUPPLEMENTAL RESPONSE by All Plaintiffs in opposition to [93-1] opposition response, [92-1] motion for stay of magistrate judge's order compelling release of documents pending appeal, [85-1] motion to stay of Magistrate Judge's order compelling release documents pending appeal (hd, Deputy Clerk) (Entered: 06/12/1997)
117 ORDER granting in part, denying in part [92-1] motion for stay of magistrate judge's order compelling release of documents pending appeal, granting in part, denying in part [85-1] motion for stay of magistrate judge's order compelling release of documents pending appeal set discovery due for 12:00 6/6/97 ( signed by Judge Stanley Marcus on 6/5/97) CCAP (hd, Deputy Clerk) (Entered: 06/12/1997)
118 ORDER re: hearing of 6/4/97: compelling production to plaintiffs of certain documents; compelling defendants to provide to the court certain other documents for in camera review ( signed by Magistrate Stephen T. Brown on 6/5/97) CCAP (hd, Deputy Clerk) (Entered: 06/12/1997)
119 ORDER staying order of 6/5/97 entitled "Order re: hearing of 6/4/97; compelling production to plaintiffs of certain documents; compelling defendants to provide certain other documents for in camera review, parties shall appear before Judge Marcus at 9:00 on 6/6/97 ( signed by Magistrate Stephen T. Brown on 6/5/97) CCAP (hd, Deputy Clerk) (Entered: 06/12/1997)
110 NOTICE of submission of deposition transcript pages 164 and 165 (attached), taken on 5/23/97, of Robert Wallis regarding document 109P of defendants' privilege log by All Plaintiffs (hd, Deputy Clerk) (Entered: 06/12/1997)
105 SEALED DOCUMENT placed in vault (hd, Deputy Clerk) (Entered: 06/12/1997)

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06/06/1997 06/06/1997 06/06/1997 06/06/1997 06/06/1997 06/06/1997
06/06/1997
06/06/1997 06/06/1997
06/06/1997 06/06/1997
06/09/1997 06/09/1997

106 SEALED DOCUMENT placed in vault (hd, Deputy Clerk) (Entered: 06/12/1997)
120 NOTICE TO PRODUCE/REQUEST for Production of Documents by All Plaintiffs (hd, Deputy Clerk) (Entered: 06/13/1997)
121 MOTION by All Plaintiffs to shorten time within which to comply with notice to produce (hd, Deputy Clerk) (Entered: 06/13/1997)
122 MOTION by All Defendants for consideration of privilege assertion for document inadvertently omitted from in camera submission (hd, Deputy Clerk) (Entered: 06/13/1997)
123 RESPONSE by All Defendants to [109-1] motion to require deponents Wallis and Moscato to review their transcripts no later than 6/9/97 (hd, Deputy Clerk) (Entered: 06/13/1997)
124 ORDER granting [122-1] motion for consideration of privilege assertion for document inadvertently omitted from in camera submission, granting in part, denying in part [112-1] motion for stay of magistrate judge's order compelling release of documents pending appeal, motion for a stay with respect to omitted document is denied as moot, set discovery due: any of the disputed materials not entitled to a privilege shall be produced to plaintiffs forthwith, to the extent production has not already been made ( signed by Judge Stanley Marcus on 6/6/97) CCAP (hd, Deputy Clerk) (Entered: 06/13/1997)
125 Minutes of status conference held before Magistrate Stephen T. Brown on 5/30/97; reset status conference for 9:30 6/3/97 before Magistrate Stephen T. Brown , privilege log discussed and reviewed, order entered on pending discovery motions, amended privilege log submitted; Court Name: Randy Belsvik (hd, Deputy Clerk) Modified on 06/13/1997 (Entered: 06/13/1997)
Motion hearing re: [112-1] motion for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) (Entered: 06/13/1997)
126 Minutes of motion hearing held re: magistrate judge's discovery order before Judge Stanley Marcus on 6/6/97; defendants ordered to produce certain documents; order to follow; Court Reporter Name: Bob Ryckoff (hd, Deputy Clerk) Modified on 06/13/1997 (Entered: 06/13/1997)
Status conference held (hd, Deputy Clerk) (Entered: 06/13/1997)
127 Minutes of status conference/oral argument held before Magistrate Stephen T. Brown on 6/6/97; reset status conference/oral argument for 11:00 6/9/97 before Magistrate Stephen T. Brown Court Reporter Name: Randy Belsvik (hd, Deputy Clerk) (Entered: 06/13/1997)
107 SEALED DOCUMENT placed in vault (hd, Deputy Clerk) (Entered: 06/12/1997)
128 MOTION by All Defendants for leave to file objections to magistrate judge's order compelling release of privileged documents in excess of twenty pages (hd, Deputy Clerk) (Entered: 06/17/1997)

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06/09/1997 06/09/1997 06/09/1997 06/09/1997 06/09/1997 06/09/1997 06/09/1997
06/09/1997 06/09/1997
06/09/1997 06/09/1997 06/09/1997 06/09/1997

129 EMERGENCY MOTION by All Defendants to extend time of stay pending District Court review of defendants' objections to magistrate judge's order compelling release of documents (hd, Deputy Clerk) (Entered: 06/17/1997)
130 NOTICE regarding filing of similar matter by All Defendants (hd, Deputy Clerk) (Entered: 06/17/1997)
131 FOURTH EMERGENCY MOTION by All Defendants for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) (Entered: 06/17/1997)
132 Certification of emergency re: fourth emergency motion for stay of magistrate judge's order compelling release of documents pending appeal by All Defendants (hd, Deputy Clerk) (Entered: 06/17/1997)
133 NOTICE of withdrawal of Wilber Manuel Baez-Hernandez as a class member by All Plaintiffs (hd, Deputy Clerk) (Entered: 06/17/1997)
134 ORDER denying [70-1]"motion to shorten time"/third notice to produce within 7 days of the date defendants received notice set document production/discovery due for 5:00 6/9/97 ( signed by Magistrate Stephen T. Brown on 6/9/97) CCAP (hd, Deputy Clerk) Modified on 06/17/1997 (Entered: 06/17/1997)
135 ORDER granting [131-1] fourth emergency motion for stay of magistrate judge's order compelling release of documents pending appeal, staying until 6/10/97 [134-1] relief set document production/discovery due for 5:00 6/9/97, staying until 6/10/97 [134-2] order ( signed by Judge Lenore C. Nesbitt on 6/9/97) CCAP (hd, Deputy Clerk) (Entered: 06/17/1997)
136 OBJECTIONS/RESPONSE by All Defendants in opposition to order compelling release of privileged documents, [134-1] relief set document production/discovery due for 5:00 6/9/97, [134-2] order (hd, Deputy Clerk) (Entered: 06/17/1997)
137 OBJECTIONS/RESPONSE by All Plaintiffs in opposition to [127-2] magistrate judge's orders at 6/6/97 hearing re: denying production of documents on grounds of privilege and denying request to shorten time for production of documents requested in plaintiffs' third notice to produce (hd, Deputy Clerk) Modified on 06/17/1997 (Entered: 06/17/1997)
138 OBJECTIONS/RESPONSE by All Plaintiffs in opposition to [134-2] magistrate judge's order denying production of documents on grounds of privilege (hd, Deputy Clerk) (Entered: 06/17/1997)
Status conference held (hd, Deputy Clerk) (Entered: 06/17/1997)
139 Minutes of status conference/oral argument held before Magistrate Stephen T. Brown on 6/9/97; reset status conference/hearing for 3:30 6/9/97, reset status conference/oral argument for 4:15 6/9/97 before Magistrate Stephen T. Brown Court Name: Criss Bertling (hd, Deputy Clerk) (Entered: 06/17/1997)
Motion hearing re: [131-1] motion for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) (Entered: 06/17/1997)

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06/09/1997
06/10/1997 06/10/1997 06/10/1997 06/10/1997 06/10/1997 06/10/1997 06/10/1997 06/10/1997 06/10/1997 06/10/1997 06/10/1997 06/10/1997

140 Minutes of motion hearing held before Judge Lenore C. Nesbitt on 6/9/97; granting [131-1] motion for stay of magistrate judge's order compelling release of documents pending appeal, until 10:00 on 6/10/97 in order for defendants to lodge objections to the documents to be produced Court Reporter Name: Francine Salopek (hd, Deputy Clerk) (Entered: 06/17/1997)
94 Transcript filed re: preliminary injunction hearing Date: 6/9/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 48 (hd, Deputy Clerk) (Entered: 06/11/1997)
141 FIFTH EMERGENCY MOTION by All Defendants for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) Modified on 06/17/1997 (Entered: 06/17/1997)
142 Certification of emergency re: fifth motion for stay of magistrate judge's order compelling release of documents pending appeal by All Defendants (hd, Deputy Clerk) (Entered: 06/17/1997)
143 SIXTH EMERGENCY MOTION by All Defendants for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) Modified on 06/17/1997 (Entered: 06/17/1997)
144 Certification of emergency re: sixth emergency motion for stay of magistrate judge's order compelling release of documents pending appeal by All Defendants (hd, Deputy Clerk) (Entered: 06/17/1997)
145 OBJECTIONS/RESPONSE by All Defendants in opposition to magistrate judge's order compelling release of privileged documents re: 6/9/97 oral bench order concerning privilege log item numbers 234P and 312P (hd, Deputy Clerk) Modified on 06/18/1997 (Entered: 06/17/1997)
146 SIXTH OBJECTIONS/RESPONSE by All Defendants in opposition to magistrate judge's order compelling release of privileged documents re: 6/10/97 oral bench order concerning privilege log item numbers 278P and 302P (hd, Deputy Clerk) Modified on 06/18/1997 (Entered: 06/17/1997)
147 RESPONSE by All Defendants in opposition to plaintiff's motion to hold defendants in contempt of court, and renewed motion for contempt (hd, Deputy Clerk) Modified on 06/17/1997 (Entered: 06/17/1997)
148 MEMORANDUM by All Defendants in support of investigatory files privilege relating to Document #222P (hd, Deputy Clerk) (Entered: 06/17/1997)
149 MEMORANDUM by All Plaintiffs in opposition to [148-1] support memorandum re: investigatory files privilege relating to Document #222P (hd, Deputy Clerk) (Entered: 06/17/1997)
150 OBJECTIONS/RESPONSE by All Plaintiffs in opposition to [134-1] relief set document production/discovery due for 5:00 6/9/97, [134-2] order (hd, Deputy Clerk) (Entered: 06/18/1997)
151 ORDER re: hearing of Monday afternoon, 6/9/97; granting, as modified, plaintiffs' motion to shorten time for defendants to comply with (fourth) notice to produce ; compelling defendants to produce certain documents; compelling defendants to provide the court with certain other documents for in camera

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06/10/1997
06/10/1997
06/10/1997 06/10/1997 06/11/1997 06/11/1997 06/11/1997 06/11/1997
06/11/1997
06/11/1997 06/11/1997 06/11/1997

review ( signed by Magistrate Stephen T. Brown on 6/10/97) CCAP (hd, Deputy Clerk) (Entered: 06/18/1997)
152 ORDER granting [129-1] motion to extend time of stay pending District Court review of defendants' objections to magistrate judge's order compelling release of documents, staying [134-1] document production/discovery due for 5:00 6/9/97, staying [134-2] order ( signed by Judge Lenore C. Nesbitt on 6/10/97) CCAP (hd, Deputy Clerk) (Entered: 06/18/1997)
153 ORDER on item 234P: overruling [145-1] opposition response, denying, as moot [141-1] motion for stay of magistrate judge's order compelling release of documents pending appeal reset discovery/production of item 234P due for 5:00 6/10/97 ( signed by Judge Lenore C. Nesbitt on 6/10/97) CCAP (hd, Deputy Clerk) (Entered: 06/18/1997)
Motion hearing re: [131-1] motion for stay of magistrate judge's order compelling release of documents pending appeal (hd, Deputy Clerk) (Entered: 06/18/1997)
Evidentiary hearing held re: preliminary injunction (hd, Deputy Clerk) (Entered: 06/20/1997)
154 Transcript filed re: emergency motion hearing Date: 6/9/97 Before Judge: Lenore C. Nesbitt Volume No.: 1 Number of pages: 17 (hd, Deputy Clerk) (Entered: 06/18/1997)
155 Transcript filed re: emergency motion hearing Date: 6/10/97 Before Judge: Lenore C. Nesbitt Volume No.: 1 Number of pages: 15 (hd, Deputy Clerk) (Entered: 06/18/1997)
156 NOTICE of filing attached copies of declarations of Attorney General Janet Reno, INS Commissioner Doris Meissner, and EOIR Director Anthony C. Moscato by All Defendants (hd, Deputy Clerk) (Entered: 06/18/1997)
157 ORDER ON OBJECTIONS: overruling [138-1] opposition response, overruling [137-1] opposition response, overruling in part, sustaining in part [136-1] opposition response set discovery/document production due for 5:00 6/10/97, with the exception of item 80P and the second paragraph of item 83P, which shall be redacted ( signed by Judge Lenore C. Nesbitt on 6/10/97) CCAP (hd, Deputy Clerk) Modified on 06/18/1997 (Entered: 06/18/1997)
158 Minutes of motion hearing held before Judge Lenore C. Nesbitt on 6/10/97; set discovery due for 5:00 6/10/97, item 80P should not be produced, item 83P should be produced in redacted form , objections by defendants overruled, objections to shorten time overruled Court Reporter Name: Francine Salopek (hd, Deputy Clerk) (Entered: 06/18/1997)
Evidentiary hearing held re: preliminary injunction (hd, Deputy Clerk) (Entered: 06/20/1997)
165 ORDER granting [143-1] motion for stay of magistrate judge's order compelling release of documents pending appeal ( signed by Judge Donald L. Graham on 6/11/97) CCAP (tb, Deputy Clerk) (Entered: 06/23/1997)
172 Transcript filed re: prelinimary injunction hearing Date: 6/10/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 88 (hd, Deputy Clerk)

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06/12/1997 06/12/1997 06/12/1997
06/12/1997 06/12/1997
06/12/1997
06/12/1997 06/12/1997 06/12/1997 06/12/1997 06/12/1997 06/12/1997 06/12/1997

Modified on 06/26/1997 (Entered: 06/26/1997)
159 MOTION by All Defendants for leave to file memorandum of law in opposition to plaintiffs' request for preliminary injunction (hd, Deputy Clerk) (Entered: 06/20/1997)
160 MEMORANDUM by All Defendants in opposition to plaintiffs' oral request for preliminary injunction (hd, Deputy Clerk) (Entered: 06/20/1997)
161 ORDER re: hearing of Tuesday, 6/10/97; compelling defendants to produce certain documents , set discovery due for 12:00 6/11/97 , denying plaintiffs' request regarding attendance of witness at hearing ( signed by Magistrate Stephen T. Brown on 6/11/97) CCAP (hd, Deputy Clerk) (Entered: 06/20/1997)
162 SUPPLEMENTAL ORDER re: production of defendants' privilege log items 278P and 302P ( signed by Magistrate Stephen T. Brown on 6/12/97) CCAP (hd, Deputy Clerk) (Entered: 06/20/1997)
163 Minutes of evidentiary hearing re: preliminary injunction held before Magistrate Stephen T. Brown on 6/10/97; set evidentiary hearing for 9:30 6/11/97 before Magistrate Stephen T. Brown Court Reporter Name: Criss Bertling (hd, Deputy Clerk) (Entered: 06/20/1997)
164 Minutes of evidentiary hearing re: preliminary injunction held before Magistrate Stephen T. Brown on 6/11/97, report and recommendation in favor of plaintiffs to be entered; Court Reporter Name: Criss Bertling (hd, Deputy Clerk) (Entered: 06/20/1997)
173 Transcript filed re: preliminary injunction hearing Date: 6/11/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 119 (hd, Deputy Clerk) Modified on 06/26/1997 (Entered: 06/26/1997)
174 Transcript filed re: preliminary injunction hearing Date: 5/19/97 Before Judge: James Lawrence King Volume No.: 1 Number of pages: 34 (hd, Deputy Clerk) Modified on 06/26/1997 (Entered: 06/26/1997)
175 Transcript filed re: status conference Date: 5/20/97 Before Judge: James Lawrence King Volume No.: 1 Number of pages: 57 (hd, Deputy Clerk) (Entered: 06/26/1997)
176 Transcript filed re: preliminary injunction hearing Date: 5/27/97 Before Judge: James Lawrence King Volume No.: 1 Number of pages: 191 (hd, Deputy Clerk) (Entered: 06/26/1997)
177 Transcript filed re: preliminary injunction hearing Date: 5/28/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 50 (hd, Deputy Clerk) (Entered: 06/26/1997)
178 Transcript filed re: preliminary injunction hearing Date: 5/29/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 40 (hd, Deputy Clerk) (Entered: 06/26/1997)
179 Transcript filed re: preliminary injunction hearing Date: 5/30/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 34 (hd, Deputy Clerk) (Entered: 06/26/1997)

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06/12/1997 06/12/1997 06/12/1997 06/12/1997 06/12/1997 06/17/1997 06/18/1997 06/18/1997 06/18/1997 06/19/1997 06/24/1997
06/24/1997 06/25/1997 06/27/1997

180 Transcript filed re: preliminary injunction hearing Date: 6/3/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 211 (hd, Deputy Clerk) (Entered: 06/26/1997)
181 Transcript filed re: preliminary injunction hearing Date: 6/4/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 89 (hd, Deputy Clerk) (Entered: 06/26/1997)
182 Transcript filed re: preliminary injunction hearing Date: 6/6/97 Before Judge: Stephen T. Brown Volume No.: 1 Number of pages: 36 (hd, Deputy Clerk) (Entered: 06/26/1997)
183 Transcript filed re: emergency motion hearing Date: 6/9/97 Before Judge: Lenore C. Nesbitt Volume No.: 1 Number of pages: 17 (hd, Deputy Clerk) Modified on 06/26/1997 (Entered: 06/26/1997)
184 Transcript filed re: emergency motion hearing Date: 6/10/97 emergency motion hearing Before Judge: Lenore C. Nesbitt Volume No.: 1 Number of pages: 15 (hd, Deputy Clerk) Modified on 06/26/1997 (Entered: 06/26/1997)
166 NOTICE of filing attached errata sheet to deposition of EOIR Director Anthony Moscato by All Defendants (hd, Deputy Clerk) (Entered: 06/23/1997)
167 MOTION by All Plaintiffs to file brief in excess of page limits (hd, Deputy Clerk) (Entered: 06/24/1997)
168 MEMORANDUM by All Plaintiffs in support of request for preliminary injunction (hd, Deputy Clerk) (Entered: 06/24/1997)
169 Minutes of preliminary injunction hearing held before Judge James Lawrence King on 5/27/97; temporary restraining order extended to 6/12/97; Court Reporter Name: Randy Belsvik (hd, Deputy Clerk) (Entered: 06/24/1997)
170 Answer and affirmative defenses by All Defendants (Attorney Dexter A. Lee) (hd, Deputy Clerk) (Entered: 06/24/1997)
171 PRELIMINARY INJUNCTION that defendants are enjoined from deporting any member of Plaintiff class and enforcing matter of N-J-B or permitting applications for suspension of deportation. Bond heretofore posted by Plaintiff class shall constitute appropriate and proper bond to stand as security during pendency of prelininary injunction, set Jury trial for 1/5/98 before Judge James L. King ( signed by Judge James L. King on 6/24/97) CCAP (hd, Deputy Clerk) (Entered: 06/24/1997)
185 ORDER granting [32-1] motion for leave to file brief in excess of page limits ( signed by Judge James L. King on 6/23/97) CCAP (hd, Deputy Clerk) (Entered: 07/02/1997)
186 MOTION by All Defendants to stay preliminary injunctive order dated 6/24/97, and all other proceedings relating to this case (including discovery), pending appeal (hd, Deputy Clerk) (Entered: 07/02/1997)
187 MOTION by All Plaintiffs for leave to file brief in excess of page limits (hd, Deputy Clerk) (Entered: 07/07/1997)

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06/27/1997 06/27/1997
06/27/1997 06/27/1997 07/01/1997 07/03/1997 07/03/1997
07/03/1997 07/03/1997 07/03/1997 07/07/1997 07/22/1997 08/12/1997
08/21/1997

188 MOTION with memorandum in support by All Plaintiffs to shorten time to depose duces tecum Gail Padgett pursuant to Rule 30 (hd, Deputy Clerk) (Entered: 07/07/1997)
189 RESPONSE by All Defendants in opposition to [186-1] motion to stay preliminary injunctive order dated 6/24/97, and all other proceedings relating to this case (including discovery), pending appeal (hd, Deputy Clerk) (Entered: 07/07/1997)
190 NOTICE of correction of signature page in plaintiffs' opposition to defendants' motion for stay pending appeal by All Plaintiffs (hd, Deputy Clerk) (Entered: 07/07/1997)
191 NOTICE by All Plaintiffs to take deposition duces tecum of Gail Pagett 2:00 7/2/97 (hd, Deputy Clerk) (Entered: 07/07/1997)
192 Transcript filed re: preliminary injunction hearing Date: 6/12/97 Before Judge: James Lawrence King Volume No.: 1 Number of pages: 105 (hd, Deputy Clerk) (Entered: 07/10/1997)
193 NOTICE of filing deposition of Gail B. Padgett on 7/2/97, declarant in the defendants' motion to stay injunctive order, by All Plaintiffs (hd, Deputy Clerk) Modified on 07/14/1997 (Entered: 07/14/1997)
194 ORDER RESERVING RULING; taking under advisement [186-1] motion to stay preliminary injunctive order dated 6/24/97, and all other proceedings relating to this case (including discovery), pending appeal ( signed by Judge James L. King on 7/3/97) CCAP (hd, Deputy Clerk) Modified on 07/14/1997 (Entered: 07/14/1997)
195 DEPOSITION of Gail B. Padgett on 7/2/97 on behalf of defendants' motion to stay injunctive order (hd, Deputy Clerk) (Entered: 07/14/1997)
196 Court's exhibit and witness list for 6/10/97 (hd, Deputy Clerk) (Entered: 07/14/1997)
197 Court's exhibit and witness list for 6/11/97 (hd, Deputy Clerk) (Entered: 07/14/1997)
198 MOTION with memorandum in support by All Plaintiffs to strike [170-1] affirmative defenses (hd, Deputy Clerk) (Entered: 07/14/1997)
199 MOTION by All Defendants to extend time to file response to plaintiffs' motion to strike affirmative defenses (hd, Deputy Clerk) (Entered: 07/30/1997)
200 ORDER granting [199-1] motion to extend time to file response to plaintiffs' motion to strike affirmative defenses Response to motion reset to 8/25/97 for [198-1] motion to strike [170-1] affirmative defenses (signed by Judge James L. King on 8/12/97) CCAP (ra, Deputy Clerk) (Entered: 08/16/1997)
201 NOTICE OF INTERLOCUTORY APPEAL by All Defendants of [171-2] order EOD Date: 6/24/97 and [55-3] order . EOD Date: 5/29/97; Filing Fee: $ FEE NOT REQUIRED (USA);; Copies to USCA and Counsel of Record. (Former Deputy Clerk) (Entered: 08/25/1997)

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08/22/1997 08/25/1997 09/10/1997 09/10/1997 09/11/1997 09/17/1997 10/16/1997 11/14/1997 11/24/1997 11/24/1997 11/24/1997 11/25/1997 11/25/1997 11/26/1997
12/03/1997 12/22/1997

203 ORDER consolidating cases ( signed by Judge James L. King on 8/22/97) CCAP (Former Deputy Clerk) (Entered: 08/28/1997)
202 RESPONSE by All Defendants in opposition to [198-1] motion to strike [170-1] affirmative defenses (tb, Deputy Clerk) (Entered: 08/26/1997)
NOTICE of Receipt of Transmittal Letter from USCA Re: [201-1] appeal by All Defendants USCA NUMBER: 97-5426 (Former Deputy Clerk) (Entered: 09/26/1997)
NOTICE of Receipt of Transmittal Letter from USCA Re: [201-1] appeal by All Defendants USCA NUMBER: 97-5426 (Former Deputy Clerk) (Entered: 09/26/1997)
204 ORDER granting [198-1] motion to strike [170-1] affirmative defenses ( signed by Judge James L. King on 9/10/97) CCAP (Former Deputy Clerk) (Entered: 09/16/1997)
205 DESIGNATION by All Defendants of record on appeal (vp, Deputy Clerk) (Entered: 11/12/1997)
Appeal Information Sheet re: [201-1] appeal by All Defendants . No transcript requested. Appeal Record due on 11/1/97 (vp, Deputy Clerk) (Entered: 10/23/1997)
206 ORDER DIRECTING PARTIES TO FILE STATUS REPORT set Status report due on 11/25/97 (signed by Judge James L. King on 11/14/97) CCAP (ra, Deputy Clerk) (Entered: 11/18/1997)
207 STATUS REPORT by All Plaintiffs and Motion for continuance of trial date and request for status conference (Former Deputy Clerk) (Entered: 12/03/1997)
207 STATUS REPORT and MOTION by All Plaintiffs for continuance of trial date , and request for status conference (Former Deputy Clerk) (Entered: 12/03/1997)
208 NOTICE of filing affidavit of Elliot H. Scherker (attached) by All Plaintiffs (Former Deputy Clerk) (Entered: 12/03/1997)
209 STATUS REPORT by All Defendants and RESPONSE by District Director to Plaintiff's motion for continuance of trial date and request for status conference (not Docketed) (Former Deputy Clerk) (Entered: 12/03/1997)
209 STATUS REPORT and RESPONSE by All Defendants to [207-1] motion for continuance of trial date, [207-2] motion request for conference (Former Deputy Clerk) (Entered: 12/03/1997)
210 ORDER reset Jury trial for 10/26/98 before Judge James L. King , and reset pretrial conference for 9:30 9/24/98 before Judge James L. King ( signed by Judge James L. King on 11/26/97) CCAP (Former Deputy Clerk) (Entered: 12/05/1997)
211 NOTICE of voluntary dismissal by Rene Lacayo (Former Deputy Clerk) (Entered: 12/08/1997)
212 MOTION by All Defendants to dissolve injunction , and to dismiss as moot as to certain class members , and for summary judgment as to remaining class (Former

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01/06/1998
01/06/1998 01/16/1998
01/16/1998 02/05/1998 02/10/1998
03/30/1998 04/01/1998 04/02/1998
04/03/1998
04/14/1998 04/20/1998
04/23/1998

Deputy Clerk) (Entered: 01/05/1998)
213 RESPONSE by All Plaintiffs to [212-1] motion to dissolve injunction, [212-2] motion to dismiss as moot as to certain class members, [212-3] motion for summary judgment as to remaining class (Former Deputy Clerk) (Entered: 01/15/1998)
214 NOTICE of filing Affidavit of Ira J. Kurzban by All Plaintiffs (Former Deputy Clerk) (Entered: 01/15/1998)
215 REPLY by All Defendants to response to [212-1] motion to dissolve injunction, [212-2] motion to dismiss as moot as to certain class members, [212-3] motion for summary judgment as to remaining class (Former Deputy Clerk) (Entered: 01/23/1998)
216 Statement of Material Facts as to which there exists no genuine controversy by All Defendants (Former Deputy Clerk) (Entered: 01/23/1998)
217 MOTION with memorandum in support by All Plaintiffs to strike [216-1] Statement of (Former Deputy Clerk) (Entered: 02/06/1998)
218 ORDER denying [212-1] motion to dissolve injunction, denying [212-2] motion to dismiss as moot as to certain class members, denying [212-3] motion for summary judgment as to remaining class ( signed by Judge James L. King on 2/10/98) CCAP (Former Deputy Clerk) (Entered: 02/13/1998)
219 MOTION by All Plaintiffs to add Plaintiff as member of class of all similiary situated aliens (Former Deputy Clerk) (Entered: 04/01/1998)
220 MANDATE OF USCA (certified copy) dismissing [201-1] appeal pursuant to appellees' motion to dismiss appeal; Mandate Issued Date: 3/27/98; USCA Appeal #: 97-5426; Copy to Judge. (cp, Deputy Clerk) (Entered: 04/08/1998)
221 ORDERED and ADJUDGED that Counsel for the TEFEL class is hereby DIRECTED to review the attached document, determine whether ALLEN is a member of the clas, and inform ALLEN and the Court of that determination (signed by Judge James Lawrence King on 4/1/98) CCAP (Former Deputy Clerk) (Entered: 04/09/1998)
222 NOTICE OF INTERLOCUTORY APPEAL by US Attorney General, Robert Wallis, U.S. - INS, Board of Immigration of [218-1] order. NO FEE REQUIRED; EOD Date: 2/13/98; Copies to USCA and Counsel of Record. (cp, Deputy Clerk) (Entered: 04/09/1998)
223 DESIGNATION by All Defendants of record on appeal (cp, Deputy Clerk) (Entered: 04/14/1998)
Appeal Information Sheet re: [222-1] appeal by Board of Immigration, U.S. INS, Robert Wallis, US Attorney General No transcript requested. Appeal Record due on 5/4/98; all transcripts on file per attorney. (cp, Deputy Clerk) (Entered: 04/20/1998)
NOTICE of Receipt of Transmittal Letter from USCA Re: [222-1] appeal by Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General USCA NUMBER: 98-4616 (nc, Deputy Clerk) (Entered: 04/24/1998)

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04/27/1998 04/27/1998
06/10/1998 06/10/1998
06/15/1998 06/15/1998 06/29/1998 07/07/1998 09/14/1998 09/18/1998 09/21/1998
09/21/1998 11/16/1998 11/16/1998

Certificate of readiness transmitted to USCA Re: [222-1] appeal by Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General USCA NUMBER: 98-4616 (nc, Deputy Clerk) (Entered: 04/27/1998)
Transmitted record on appeal to U.S. Court of Appeals: (Miami Office) Consisting of (4) Volumes of Pleadings, (15) Volumes of Transcripts and (1) Accordian Folder containing DE# 195 deposition of Gail B. Padgett [222-1] appeal by Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General (nc, Deputy Clerk) (Entered: 04/27/1998)
Corrected Interlocutory Certificate of readiness transmitted to USCA Re: [222-1] appeal by Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General USCA NUMBER: 98-4616 (nc, Deputy Clerk) (Entered: 06/12/1998)
Corrected Interlocutory Transmitted record on appeal to U.S. Court of Appeals:Consisting of (5) Volumes of Pleadings, (18) Volumes of Transcripts DE#184 duplicate of DE# 155, DE# 183 duplicate of DE# 154 and (1) Accordian Folder containing DE# 195 (Deposition of Gail B. Padget) [222-1] appeal by Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General (nc, Deputy Clerk) (Entered: 06/12/1998)
224 ORDER reassigning case to the calendar of Judge William P. Dimitrouleas for all further proceedings ( signed by Judge James Lawrence King on 6/10/98) CCAP (wc, Deputy Clerk) (Entered: 06/16/1998)
CASE reassigned to Judge William P. Dimitrouleas (wc, Deputy Clerk) (Entered: 06/16/1998)
225 MOTION with memorandum in support by All Plaintiffs to reassign case to Judge Lawrence King (mh, Deputy Clerk) (Entered: 07/01/1998)
226 RESPONSE by All Defendants to [225-1] motion to reassign case to Judge Lawrence King (ea, Deputy Clerk) (Entered: 07/08/1998)
227 MOTION by All Plaintiffs to continue pretrial procedures set for 9/24/98 and trial set for 10/26/98 (ea, Deputy Clerk) (Entered: 09/17/1998)
228 PRETRIAL STIPULATION (lh, Deputy Clerk) (Entered: 09/22/1998)
229 ORDER granting [227-1] motion to continue pretrial procedures set for 9/24/98 and trial set for 10/26/98, denying [225-1] motion to reassign case to Judge Lawrence King ( signed by Judge William P. Dimitrouleas on 9/21/98) CCAP (ea, Deputy Clerk) (Entered: 09/23/1998)
230 RESPONSE by Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General in opposition to [227-1] motion to continue pretrial procedures set for 9/24/98 and trial set for 10/26/98 (ea, Deputy Clerk) (Entered: 09/23/1998)
231 ORDER transferring case to the calendar of the Honorable Patricia A. Seitz ( signed by Judge William P. Dimitrouleas on 11/16/98) CCAP (cp, Deputy Clerk) (Entered: 11/16/1998)
CASE reassigned to Judge Patricia A. Seitz (cp, Deputy Clerk) (Entered: 11/16/1998)

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04/20/1999 04/20/1999 08/13/1999 08/13/1999 08/30/1999 09/10/1999 09/22/1999 10/20/1999
10/25/1999
10/25/1999
11/30/1999 11/30/1999 12/01/1999 12/01/1999

232 ORDER transferring case to Magistrate Judge Garber ( signed by Judge Patricia A. Seitz on 4/15/99) CCAP (Former Deputy Clerk) (Entered: 04/21/1999)
Magistrate identification: Magistrate Judge Garber (Former Deputy Clerk) (Entered: 04/21/1999)
233 MOTION with memorandum in support by Roberto Tefel for attorney fees , and for bill of costs (Former Deputy Clerk) (Entered: 08/17/1999)
234 MOTION by Roberto Tefel to Tax Costs (Former Deputy Clerk) (Entered: 08/17/1999)
235 MOTION with memorandum in support by All Defendants to dismiss Application for costs, fees and other expenses under the equal access to justice act , to extend time to file opposition (cj, Deputy Clerk) (Entered: 09/07/1999)
236 REPLY/RESPONSE by All Plaintiffs to [235-1] motion to dismiss Application for costs, fees and other expenses under the equal access to justice act, [235-2] motion to extend time to file opposition (sk, Deputy Clerk) (Entered: 09/15/1999)
237 REPLY by All Defendants to response to [235-1] motion to dismiss Application for costs, fees and other expenses under the equal access to justice act (Former Deputy Clerk) (Entered: 09/24/1999)
238 ORDER denying [235-1] motion to dismiss Application for costs, fees and other expenses under the equal access to justice act, granting [235-2] motion to extend time to 11/30/99 in which to file an opposition. (Signed by Judge Patricia A. Seitz on 10/19/99) CCAP [EOD Date: 10/26/99] (Former Deputy Clerk) (Entered: 10/26/1999)
239 MANDATE OF USCA (certified copy)vacating judgment/order of the district court re: [222-1] appeal and remanding back to the district court for further proceedings consisting with the opinion Mandate Issued Date: 10/19/99; USCA Appeal #: 98-4616-GG; Copy to Judge. (nc, Deputy Clerk) (Entered: 10/28/1999)
Record on appeal as to Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General returned from U.S. Court of Appeals:(Miami/Records) Consisting of (5) Volumes of Pleadings, (18) Volumes of Transcripts and (1) Accordion Folder containing DE# 195 re: [222-1] appeal by US Attorney General, Robert Wallis, U.S. - INS, Board of Immigration USCA #: 98-4616-GG (nc, Deputy Clerk) (Entered: 10/28/1999)
240 MOTION by All Defendants for leave to file opposition memorandum in excess of page limit (Former Deputy Clerk) (Entered: 12/01/1999)
241 RESPONSE by All Defendants to [233-1] motion for attorney fees, [233-2] motion for bill of costs (Former Deputy Clerk) (Entered: 12/01/1999)
242 MOTION by All Defendants for leave to file Motion for Decertification of Class in excess of twenty pages (Proposed Motion located in Pod #3, Docketing) (wc, Deputy Clerk) (Entered: 12/02/1999)
243 Statement of Material Facts not in dispute in support of Motion for Summary Judgment by All Defendants (wc, Deputy Clerk) (Entered: 12/02/1999)

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12/02/1999 12/03/1999 12/03/1999 12/03/1999 12/03/1999 12/14/1999 12/14/1999
12/14/1999 01/10/2000 01/13/2000
01/28/2000 02/25/2000

251 MOTION by All Plaintiffs to stay consideration of fees pending determination of certiorari , and objection to order denying fees (Former Deputy Clerk) (Entered: 12/27/1999)
244 ORDER Referring Motion(s) [233-1] motion for attorney fees referred to Magistrate Barry L. Garber, [233-2] motion for bill of costs referred to Magistrate Barry L. Garber ( signed by Judge Patricia A. Seitz on 12/3/99) [EOD Date: 12/6/99] (Former Deputy Clerk) (Entered: 12/06/1999)
245 ORDER granting [242-1] motion for leave to file Motion for Decertification of Class in excess of twenty pages ( Signed by Judge Patricia A. Seitz on 12/2/99) CCAP [EOD Date: 12/6/99] (Former Deputy Clerk) (Entered: 12/06/1999)
246 MOTION by All Defendants for decertification of class , and to dismiss counts 3 & 4 , and for judgment on the pleadings or for summary judgment (Former Deputy Clerk) (Entered: 12/06/1999)
247 ORDER granting [240-1] motion for leave to file opposition memorandum in excess of page limit ( Signed by Magistrate Barry L. Garber on 12/3/99) CCAP [EOD Date: 12/7/99] (Former Deputy Clerk) (Entered: 12/07/1999)
248 ORDER denying [234-1] motion to Tax Costs, denying [233-1] motion for attorney fees, denying [233-2] motion for bill of costs ( Signed by Magistrate Barry L. Garber on 12/14/99) CCAP [EOD Date: 12/15/99] (Former Deputy Clerk) (Entered: 12/15/1999)
249 MOTION with memorandum in support by All Plaintiffs to extend time to respond to defendants' Motion for Decertification of Class, Motion to Dismiss Counts III and IV for Lack of Jurisdiction and Motion for Judgment on the Pleadings or for Summary Judgment and for stay of proceedings (Former Deputy Clerk) (Entered: 12/16/1999)
250 MOTION by All Plaintiffs to extend time to respond to defendant's opposition to Plaintiff's Application for Costs, Fees, and other Expenses, and to take limited discovery (Former Deputy Clerk) (Entered: 12/16/1999)
252 RESPONSE by All Defendants to plaintiffs' objections to Magistrate's Order Denying Fees and Opposition to Request to Stay Consideration of Fees (Former Deputy Clerk) (Entered: 01/11/2000)
253 ORDER granting [249-1] motion to extend time to respond to defendants' Motion for Decertification of Class, Motion to Dismiss Counts III and IV for Lack of Jurisdiction and Motion for Judgment on the Pleadings or for Summary Judgment staying proceedings , for leave to file status report within 15 days of Supreme Court's ruling on petition for certorari ( Signed by Judge Patricia A. Seitz on 1/12/00) CCAP [EOD Date: 1/14/00] (Former Deputy Clerk) (Entered: 01/14/2000)
254 RESPONSE by All Plaintiffs in opposition to [252-1] opposition response (Former Deputy Clerk) (Entered: 01/31/2000)
255 MOTION with memorandum in support by German Antonio Reyes to dismiss as party plaintiff , to discharge bond (Former Deputy Clerk) (Entered: 02/25/2000)

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07/06/2000 07/10/2000 08/04/2000 08/24/2000 01/09/2001 01/12/2001 03/20/2001 03/23/2001
04/23/2001 04/27/2001
09/05/2001 09/11/2001 09/18/2001 09/24/2001
09/28/2001 10/12/2001

256 STATUS REPORT giving notice of denial of plaintiffs' petition for writ of certiorari by All Defendants (Former Deputy Clerk) (Entered: 07/07/2000)
257 STATUS REPORT by All Defendants (sk, Deputy Clerk) (Entered: 07/11/2000)
258 STATUS REPORT regarding 7/26/00 conference with opposing counsel by All Defendants (Former Deputy Clerk) (Entered: 08/07/2000)
259 STATUS REPORT by All Defendants (Former Deputy Clerk) (Entered: 08/25/2000)
260 STATUS REPORT by All Defendants (dg, Deputy Clerk) (Entered: 01/10/2001)
261 STATUS REPORT concerning motions currently pending before the court by All Plaintiffs (tb, Deputy Clerk) (Entered: 01/16/2001)
262 ORDER granting [255-1] motion to dismiss as party plaintiff, granting [255-2] motion to discharge bond ( Signed by Judge Patricia A. Seitz on 3/20/01) CCAP [EOD Date: 3/21/01] (dg, Deputy Clerk) (Entered: 03/21/2001)
263 ORDER SETTING STATUS CONFERENCE Status conference set for 9:00 5/15/01 Status report due by 4/23/01 before Judge Patricia A. Seitz ( Signed by Judge Patricia A. Seitz on 3/23/01) CCAP [EOD Date: 3/26/01] CCAP (dg, Deputy Clerk) (Entered: 03/26/2001)
264 JOINT STATUS REPORT by All Defendants, All Plaintiffs (dg, Deputy Clerk) (Entered: 04/24/2001)
265 ORDER Cancelling status conference set for 5/15/01 staying matter pending 11th Circuit Court of Appeals decision in the Al Najjar ( Signed by Judge Patricia A. Seitz on 4/26/01) CCAP [EOD Date: 4/30/01] (dg, Deputy Clerk) (Entered: 04/30/2001)
266 STATUS REPORT by All Defendants (dg, Deputy Clerk) (Entered: 09/06/2001)
267 STATUS REPORT by All Plaintiffs (dg, Deputy Clerk) (Entered: 09/13/2001)
268 RESPONSE by All Defendants to [267-1] status report (dg, Deputy Clerk) (Entered: 09/19/2001)
269 ORDER Response to motion reset to 10/12/01 for [246-1] motion for decertification of class, reset to 10/12/01 for [246-2] motion to dismiss counts 3 & 4, reset to 10/12/01 for [246-3] motion for judgment on the pleadings or for summary judgment , Reply to Response to Motion reset to 10/19/01 for [246-1] motion for decertification of class, reset to 10/19/01 for [246-2] motion to dismiss counts 3 & 4, reset to 10/19/01 for [246-3] motion for judgment on the pleadings or for summary judgment , set status conference for 9:00 11/1/01 before Judge Patricia A. Seitz ( Signed by Judge Patricia A. Seitz on 9/21/01) [EOD Date: 9/25/01] (dg, Deputy Clerk) (Entered: 09/25/2001)
270 NOTICE of Decision relating to defendants' response to plaintiffs' objections to magistrate's order denying fees by All Defendants (Former Deputy Clerk) (Entered: 10/01/2001)
271 OPPOSITION & RESPONSE by All Plaintiffs to [246-1] motion for decertification of class, [246-2] motion to dismiss counts 3 & 4, [246-3] motion

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10/19/2001 10/25/2001
10/25/2001 11/01/2001 11/01/2001 11/02/2001 11/06/2001 11/06/2001 11/07/2001 11/08/2001 11/09/2001 11/09/2001 11/16/2001 11/21/2001

for judgment on the pleadings or for summary judgment (dg, Deputy Clerk) (Entered: 10/15/2001)
272 MOTION by All Defendants for leave to file reply to plaintiffs' opposition & response to motion for decertification of class, etc. [prp reply in pod 1] (dg, Deputy Clerk) (Entered: 10/22/2001)
273 ORDER granting [272-1] motion for leave to file reply to plaintiffs' opposition & response to motion for decertification of class, etc. ( Signed by Judge Patricia A. Seitz on 10/25/01) [EOD Date: 10/26/01] (dg, Deputy Clerk) (Entered: 10/26/2001)
274 REPLY by All Defendants to response to [246-1] motion for decertification of class, [246-2] motion to dismiss counts 3 & 4, [246-3] motion for judgment on the pleadings or for summary judgment (dg, Deputy Clerk) (Entered: 10/26/2001)
275 Minutes of status conference held before Judge Patricia A. Seitz on 11/1/01; Court Reporter Name or Tape #: David Ehrlich (dg, Deputy Clerk) (Entered: 11/02/2001)
Status conference held before Judge Patricia A. Seitz (dg, Deputy Clerk) (Entered: 11/02/2001)
276 ORDER dismissing count 4 of complaint , continued status conference for 2:00 11/8/01 before Judge Patricia A. Seitz ( Signed by Judge Patricia A. Seitz on 11/1/01) [EOD Date: 11/5/01] (dg, Deputy Clerk) (Entered: 11/05/2001)
277 Concise Definition submitted pursuant to the Court's 11/1/01 order continuing status conference by All Plaintiffs (dg, Deputy Clerk) (Entered: 11/07/2001)
278 RESPONSE by All Defendants to [276-3] order (dg, Deputy Clerk) (Entered: 11/07/2001)
279 ORDER RE-SETTING STATUS CONFERENCE Status conference set for 4:00 11/8/01 before Judge Patricia A. Seitz (Signed by Judge Patricia A. Seitz on 11/7/01) [EOD Date: 11/9/01] CCAP (dg, Deputy Clerk) (Entered: 11/09/2001)
Status conference held before Judge Patricia A. Seitz (dg, Deputy Clerk) (Entered: 11/13/2001)
280 Minutes of continuation of status conference held before Judge Patricia A. Seitz on 11/8/01; Court Reporter Name or Tape #: David Ehrlich (dg, Deputy Clerk) (Entered: 11/13/2001)
281 ORDER pursuant to 11/8/01 status conference [see order for further details] (signed by Judge Patricia A. Seitz on 11/9/01) [EOD Date: 11/13/01] (dg, Deputy Clerk) (Entered: 11/13/2001)
282 MOTION by All Defendants to extend time to produce statistical analyses (dg, Deputy Clerk) (Entered: 11/19/2001)
283 ORDER granting [282-1] motion to extend time to produce statistical analyses ( Signed by Judge Patricia A. Seitz on 11/20/01) [EOD Date: 11/26/01] (tb, Deputy Clerk) (Entered: 11/26/2001)

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11/27/2001 12/10/2001 12/10/2001 12/10/2001 12/10/2001 12/11/2001 12/11/2001 12/17/2001 12/17/2001 01/24/2002
01/24/2002
01/24/2002 02/04/2002 02/13/2002

284 Submission of statistical analyses pursuant to Court's 11/8/01 order by All Defendants (dg, Deputy Clerk) (Entered: 11/28/2001)
285 Submission pursuant to Court order of 11/9/01 by All Plaintiffs (dg, Deputy Clerk) (Entered: 12/11/2001)
286 VOLUME 1 EXHIBITS to: [285-1] submission by All Plaintiffs (dg, Deputy Clerk) (Entered: 12/11/2001)
287 VOLUME II EXHIBITS to: [285-1] submission by All Plaintiffs (dg, Deputy Clerk) (Entered: 12/11/2001)
288 VOLUME III EXHIBITS to: [285-1] submission by All Plaintiffs (dg, Deputy Clerk) (Entered: 12/11/2001)
289 NOTICE of further development concerning defendants' motion to decertify the class by Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General (tb, Deputy Clerk) (Entered: 12/12/2001)
290 NOTICE to plaintiff of right against garnishment of wages, money and other property by Board of Immigration, U.S. - INS, Robert Wallis, US Attorney General (tb, Deputy Clerk) (Entered: 12/12/2001)
291 RESPONSE by All Defendants in opposition to plaintiffs' new arguments in plaintiffs' submission pursuant to court order of 11/9/01 (tb, Deputy Clerk) (Entered: 12/18/2001)
292 MOTION by All Defendants for leave to file defendants' reply to plaintiffs' new arguments in plaintiff's submission pursuant to court order of 11/9/01 (tb, Deputy Clerk) (Entered: 12/18/2001)
293 ORDER granting [246-1] motion for decertification of class, denying [246-2] motion to dismiss counts 3 & 4, granting [246-3] motion for judgment on the pleadings or for summary judgment dismissing with prejudice Plaintiff's claims in Count IV and Plaintiffs' equal protection claims in Count II denying as moot [292-1] motion for leave to file defendants' reply to plaintiffs' new arguments in plaintiff's submission to court order of 11/9/01; closing case ( Signed by Judge Patricia A. Seitz on 1/24/02) [EOD Date: 1/25/02] (wc, Deputy Clerk) (Entered: 01/25/2002)
294 SUMMARY FINAL JUDGMENT for All Defendants against All Plaintiffs; Plaintiffs take nothing by this action and Defendants go hence without day. All pending motions not otherwise ruled upon are denied as moot, and this case is closed ( Signed by Judge Patricia A. Seitz on 1/24/02) [EOD Date: 1/25/02] (wc, Deputy Clerk) (Entered: 01/25/2002)
CASE CLOSED. Case and Motions no longer referred to Magistrate. (wc, Deputy Clerk) (Entered: 01/25/2002)
295 MOTION by All Plaintiffs to alter and amend [294-1] judgment order (cj, Deputy Clerk) (Entered: 02/05/2002)
296 Transcript filed re: status conference held 11/01/01 before Judge Patricia A. Seitz,J. Volume #: I Pages: 1-39 (ga, Deputy Clerk) (Entered: 02/13/2002)

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02/13/2002 02/19/2002 04/04/2002

297 Transcript filed re: status conference held 11/08/01 before Judge Patricia A. Seitz, J. Volume #: II Pages: 1-49 (ga, Deputy Clerk) (Entered: 02/13/2002)
298 RESPONSE by All Defendants in opposition to [295-1] motion to alter and amend [294-1] judgment order (Former Deputy Clerk) (Entered: 02/20/2002)
299 ORDER denying [295-1] motion to alter and amend [294-1] judgment order ( Signed by Judge Patricia A. Seitz on 4/4/02) [EOD Date: 4/5/02] (tb, Deputy Clerk) (Entered: 04/05/2002)

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U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:97-cv-00210-JLK

CLOSED

Lacayo v. Wallis Assigned to: Judge James Lawrence King Demand: $0 Case in other court: Cause: 08:1105(a)Immigration and Nationality (Deportation Review)

Date Filed: 01/24/1997 Jury Demand: None Nature of Suit: 460 Deportation Jurisdiction: U.S. Government Defendant

Plaintiff
Rene Lacayo A28-581-682

represented by Alfonso E. Oviedo-Reyes 8370 W Flagler Street Miami, FL 33144 305-221-6433 Fax: 221-6519 Email: oviedo13@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
District Director, Immigration & Naturalization Service The District Director for the Immigration and Naturalization Service in Miami, Florida

represented by Dexter Lee United States Attorney's Office 99 NE 4 Street Miami, FL 33132 305-961-9320 Fax: 530-7139 Email: dexter.lee@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/24/1997
01/24/1997 01/24/1997

#

Docket Text

1 COMPLAINT/Petition for a writ of habeas corpus with stay of deportation filed; FILING FEE $150.00 RECEIPT # 671996; A-7; RLD (Former Deputy Clerk) Modified on 01/28/1997 (Entered: 01/28/1997)
Magistrate identification: Magistrate Judge Dube (Former Deputy Clerk) (Entered: 01/28/1997)
2 SUMMONS(ES) issued for Robert A. Wallis (Former Deputy Clerk) (Entered: 01/28/1997)

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01/24/1997 01/28/1997 01/30/1997
01/30/1997
01/31/1997
02/03/1997
02/06/1997 02/06/1997 02/06/1997
02/12/1997 02/21/1997 03/03/1997 05/21/1997 06/02/1997 06/26/1997 06/26/1997

1 MOTION by Rene Lacayo for preliminary injunction (Former Deputy Clerk) (Entered: 01/28/1997)
3 EMERGENCY MOTION by Rene Lacayo for Hearing for release from custody (Former Deputy Clerk) (Entered: 02/03/1997)
4 RESPONSE by Robert A. Wallis in opposition to [1-1] motion for preliminary injunction, [1-1] complaint/petition for a writ of habeas corpus with a stay of deportation (Former Deputy Clerk) (Entered: 02/04/1997)
5 MOTION by Robert A. Wallis for leave to file response to petition for writ of Habeas Corpus in excess of 20 pages (Former Deputy Clerk) (Entered: 02/04/1997)
6 ORDER granting [1-1] complaint/Motion for temporary stay of deportation. Petitioner's deporation is STAYED pending further order of this Court. ( signed by Judge Edward B. Davis on 1/31/97) CCAP (Former Deputy Clerk) (Entered: 02/04/1997)
7 ORDER granting [5-1] motion for leave to file response to petition for writ of Habeas Corpus in excess of 20 pages ( signed by Judge Edward B. Davis on 1/31/97) CCAP (Former Deputy Clerk) (Entered: 02/05/1997)
8 EMERGENCY NOTICE of filing Report of Contempt of Court (attached) by Rene Lacayo (Former Deputy Clerk) (Entered: 02/07/1997)
8 EMERGENCY REQUEST by Rene Lacayo for release from detention (Former Deputy Clerk) (Entered: 02/07/1997)
9 SUPPLEMENTAL MEMORANDUM of law regarding phase out of Nicaraguan Review Program by Robert A. Wallis (Former Deputy Clerk) (Entered: 02/07/1997)
10 RESPONSE by Robert A. Wallis in opposition to [8-1] motion for release from detention (Former Deputy Clerk) (Entered: 02/18/1997)
11 RESPONSE by Robert A. Wallis to [8-1] notice (Former Deputy Clerk) (Entered: 02/25/1997)
12 REPLY by Rene Lacayo to response to [3-1] motion for Hearing for release from custody (Former Deputy Clerk) (Entered: 03/05/1997)
13 SECOND EMERGENCY MOTION by Rene Lacayo for release from custody (Former Deputy Clerk) (Entered: 05/28/1997)
14 RESPONSE by Robert A. Wallis to [13-1] motion for release from custody (Former Deputy Clerk) (Entered: 06/09/1997)
15 NOTICE of filing unagreed order pertaining to release of petitioner by Robert A. Wallis (Former Deputy Clerk) (Entered: 07/03/1997)
16 ORDER terminating [3-1] motion for Hearing for release from custody (hearing was held on 6/26/97), upon [8-1] motion for release from detention, upon [13-1] motion for release from custody. The Respondent shall release petitioner from custody. It is further ordered that the petitioner shall report in person every 60 days, commencing 8/25/97 to Supervisory Deportation Office Cornell, at the

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07/15/1997
07/15/1997 07/17/1997 07/28/1997
08/22/1997 11/14/1997 11/25/1997
11/25/1997
12/03/1997 12/12/1997 12/12/1997

Immigration and Naturalization Service, and be placed under supervision with the INS. (signed by Judge Edward B. Davis on 6/26/97) CCAP (Former Deputy Clerk) (Entered: 07/03/1997)
17 ORDER transferring case to the calendar of Senior Judge James Lawrence King ( signed by Judge Edward B. Davis on 7/15/97) CCAP (Former Deputy Clerk) (Entered: 07/22/1997)
CASE reassigned to Judge James L. King (Former Deputy Clerk) (Entered: 07/22/1997)
18 ORDER directing parties to file briefs re consolidating cases ( signed by Judge James L. King on 7/17/97) CCAP (sk, Deputy Clerk) (Entered: 07/25/1997)
19 RESPONSE by District Director in opposition to [18-1] relief directing parties to file briefs re consolidating cases, [18-2] order (hd, Deputy Clerk) (Entered: 08/04/1997)
20 ORDER consolidating cases ( signed by Judge James L. King on 8/22/97) CCAP (Former Deputy Clerk) (Entered: 08/28/1997)
21 ORDER set Status report due on 1/5/98 (signed by Judge James L. King on 11/14/97) CCAP (Former Deputy Clerk) (Entered: 11/19/1997)
22 STATUS REPORT by District Director and response to Plaintiff's motion for continuance of trial date and request for status conference (Former Deputy Clerk) (Entered: 12/03/1997)
22 STATUS REPORT and RESPONSE by District Director to Plaintiff's motion for continuance of trial date and request for status conference (not Docketed) (Former Deputy Clerk) (Entered: 12/03/1997)
23 NOTICE of voluntary dismissal by Rene Lacayo (Former Deputy Clerk) (Entered: 12/08/1997)
24 ORDER [23-1] notice dismissing the case with prejudice ( signed by Judge James L. King on 12/11/97) CCAP (Former Deputy Clerk) (Entered: 12/18/1997)
Case closed (Former Deputy Clerk) (Entered: 12/18/1997)

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 </s> 180 F.3d 1286 (1999)
Roberto TEFEL, et al., Plaintiffs-Appellees, v.
Janet RENO, et al., Defendants-Appellants.
No. 98-4616.
United States Court of Appeals, Eleventh Circuit.
July 14, 1999.
12878 *1287 *1288 Frank Hunger, Asst. Attorney General, Laura M. Friedman, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Adalberto Jordan, Miami, FL, for DefendantsAppellants.
Ira Jay Kurzban, Miami, FL, for Plaintiffs-Appellees.
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.[*]
HULL, Circuit Judge:
This class action involves the application of the recently enacted "stop-time" rule for determining eligibility for suspension of deportation. Appellants Janet Reno, Attorney General of the United States; Robert Wallis, Miami District Director of the Immigration and Naturalization Service; the Immigration and Naturalization Service; the United States Department of Justice; and the Board of Immigration Appeals (collectively the "INS") appeal two orders: (1) the district court's order entering a class-wide preliminary injunction prohibiting the enforcement of section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") as amended by the Nicaraguan and Central American Relief Act ("NACARA"), and (2) the district court's order denying the INS' motion to dissolve the preliminary injunction.
Appellees/Plaintiffs ("Plaintiffs") are members of a class of aliens within Georgia, Alabama, and Florida who were placed in deportation proceedings prior to IIRIRA. Plaintiffs challenge the application of IIRIRA § 309(c)(5), which effectively renders Plaintiffs ineligible for "suspension of deportation" under section 244 of the Immigration and Nationality Act ("INA") prior to the repeal of INA § 244 by IIRIRA. After review, we vacate the injunction, reverse the denial of the INS' motion to dissolve the injunction, and remand for further proceedings consistent with this opinion.
I. The Stop-Time Rule
Prior to IIRIRA's amendments to the INA, an alien facing deportation could apply for "suspension of deportation." 1289 In order to be eligible for suspension of deportation, an alien was required to establish *1289 four factors. INA §§
244(a)(1) & (2), 8 U.S.C. §§ 1254(a)(1) & (2) (1991). One of these factors was that the alien had been "physically present in the United States for a continuous period of not less than" ten years after becoming deportable or seven years after applying for suspension of deportation. Id.[1] Prior to IIRIRA, the time an alien spent in deportation proceedings counted toward the physical-residence requirement.
Among its many revisions to the INA, IIRIRA repealed the suspension-of-deportation provision of INA § 244 and replaced it with new INA § 240A providing for the "cancellation of removal." IIRIRA § 304(a). IIRIRA also enacted the "stop-time" provision for determining an alien's eligibility for suspension of deportation or cancellation of removal. IIRIRA § 304(a)(3) (enacting INA § 240A(a)). Under new INA § 240A(a), a permanent resident alien is eligible for cancellation of removal if, among other things, the alien "has resided in the United States continuously for 7 years after having been admitted in any status." 8 U.S.C. § 1229b(a) (Supp.1998). Similarly, a nonpermanent resident alien is eligible for cancellation of removal if, among other things, the alien "has been

physically present in the United States for a continuous period of not less than 10 years immediately preceding" the application for cancellation of removal. 8 U.S.C. § 1229b(b) (Supp.1998). Under the new "stop-time" provision, however, an alien's period of residence or continuous physical presence in the United States is deemed to end once the alien has been served with a "notice to appear" for removal proceedings or commits a criminal offense described in INA § 244A(d)(1), 8 U.S.C. § 1229b(d)(1) (Supp.1998).[2]
Shortly after the enactment of IIRIRA, the BIA held that the new "stop-time" rule applied to aliens who had applied for suspension of deportation prior to IIRIRA's enactment. Matter of N-J-B, Int. Dec. 3309 (BIA 1997).[3] Citing IIRIRA § 309(c)(5), which provides the "Transitional Rule with Regard to Suspension of Deportation", the BIA concluded that the stop-time provision of INA § 240A(d) applied to aliens placed in deportation proceedings 1290 before the September 30, 1996 date of IIRIRA's enactment.[4] Under the *1290 BIA's application of IIRIRA § 309 (c)(5), an alien's continuous period of presence in the United States is deemed to end once deportation proceedings are commenced, even if the alien was facing deportation and had applied for suspension of deportation prior to IIRIRA's enactment on September 30, 1996.
II. Plaintiffs' Class-Action Complaint
On March 28, 1997, Plaintiffs filed a class-action complaint in the United States District Court for the Southern District of Florida challenging the BIA's interpretation of the applicability of the stop-time provision. The asserted Plaintiff class consisted of aliens from various countries including Nicaragua, Haiti, Malaysia, and Iran. All of the Plaintiffs had entered the United States more than seven years earlier but were placed in deportation proceedings before they had accumulated seven years of continuous physical presence in the United States.
In their complaint, Plaintiffs included four counts of alleged statutory and constitutional violations arising from the BIA's application of IIRIRA's new stop-time provision to aliens in deportation proceedings before IIRIRA's enactment. First, Plaintiffs claimed that the BIA's interpretation of IIRIRA § 309(c)(5) was arbitrary and capricious in violation of the Administrative Procedures Act. Second, Plaintiffs claimed that as applied to aliens in deportation proceedings prior to IIRIRA, the stop-time provision violated Plaintiffs' due process and equal protection rights. Third, the Plaintiffs from Nicaragua alleged an estoppel claim asserting that the INS induced these Plaintiffs into applying for suspension of deportation and then opposed the Nicaraguan Plaintiffs' applications for suspension. Fourth, Plaintiffs claimed that the alien facing deportation in the Matter of N-J-B was wrongfully denied representation during her deportation proceedings.[5]
III. Procedural History
A. Initial Proceedings
On April 17, 1997, Plaintiffs moved for a temporary restraining order or preliminary injunction prohibiting the BIA from deporting any members of the putative Plaintiff class. Plaintiffs also sought to enjoin the INS from applying the stop-time rule to any aliens in deportation proceedings prior to enactment of IIRIRA.
On May 20, 1997, the district court issued an order addressing a number of preliminary issues. First, the court denied the INS' motion to dismiss for lack of jurisdiction. Relying on McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), aff'd on other grounds, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985), and Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982), the district court concluded that it could exercise jurisdiction over Plaintiffs' claims because these claims were not covered by the provision of former INA § 106 that granted the court of appeals exclusive jurisdiction over challenges to deportation proceedings.
In addition to denying the INS' motion to dismiss for lack of jurisdiction, the court granted "provisional class certification" of Plaintiffs' class and appointed lead counsel. The court found that the requirements for class certification under Rule 23(a) were satisfied and that Mr. Kurzban, as lead counsel, was particularly qualified to represent the class.

Although Plaintiffs had moved for "provisional" class certification, the district court apparently granted Plaintiffs final class-action status. The court's May 20, 1997 order did not limit the certification to "provisional" certification, 1291 and the record does not indicate that the district court *1291 subsequently granted class certification. Indeed, in its subsequent order entering the preliminary injunction, the district court indicated that it had granted Plaintiffs class-action status and identified the class as follows:
All individuals within the states of Georgia, Alabama and Florida who have been or will be denied suspension of deportation as a result of the BIA's decision to apply the transitional rule of § 309(c) (5) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) retroactively to persons who have sought or are seeking suspension of deportation.
Finally, in its May 20, 1997 order, the district court granted Plaintiffs' motion for a temporary restraining order enjoining the INS from, inter alia, deporting any members of the Plaintiff class. The district court first determined that Plaintiffs had established a substantial likelihood of success on their claim that the BIA had misinterpreted IIRIRA § 309(c)(5)(a) in Matter of N-J-B. The district court held that IIRIRA § 309(c)(5)(a) provided that the stoptime provision in INA § 240A(d) applied only to aliens who applied for suspension of deportation and were placed in removal proceedings after IIRIRA's general effective date of April 1, 1997. The court also found a likelihood of success on Plaintiffs' constitutional claims and the estoppel claims asserted by the class members from Nicaragua.
Furthermore, the district court found that Plaintiffs had established the other factors required for preliminary injunctive relief0907(a) irreparable harm from class members being deported and in many cases separated from their families, (b) balance of the harms in favor of Plaintiffs since the only harm to the INS would be having to process Plaintiffs' applications for suspension of deportation, and (c) the public interest in avoiding the potentially wrongful deportation of a great many productive residents in local communities.
Accordingly, the district court broadly ordered that the INS was "restrained ... from deporting the Plaintiffs and class members pending further order of this Court and from enforcing Matter of N-J-B and otherwise pretermitting applications for suspension of deportation based on Matter of N-J-B or its rationale." According to the INS, the court's injunction effectively prevented the INS from using the stop-time provision as a basis for denying an alien's application for suspension of deportation if the alien had been placed in deportation proceedings prior to IIRIRA's general effective date of April 1, 1997.
B. Evidentiary Hearing and Preliminary-Injunction Order
The district court's May 20, 1997 order set a preliminary-injunction hearing for May 27, 1997. The parties presented some evidence and testimony on May 27 but were unable to present a full case. Accordingly, the district court extended the temporary restraining order and referred the case to a magistrate judge for a further evidentiary hearing. Between May 27 and June 12, 1997, the parties conducted discovery and, on several days during this period, appeared before the magistrate judge for further presentation of evidence.
After the proceedings before the magistrate judge on the preliminary-injunction motion, the magistrate judge issued a recommendation that Plaintiffs had established three of the four elements necessary for a preliminary injunction. The magistrate judge concluded that Plaintiffs had established irreparable harm, and that the balance of the harms and the public interest favored a preliminary injunction. However, the magistrate judge concluded that only the district court could make a finding on whether the Plaintiffs had established a likelihood of success on the merits of their claims.
In an extensive order dated June 24, 1997, the district court granted Plaintiffs' motion for a preliminary injunction. 1292 First, the Court adopted the magistrate judge's finding that Plaintiffs had established that *1292 the irreparable-
harm, balance-of-the-harm, and public-interest factors favored the issuance of an injunction.
The court also expounded on its conclusion that Plaintiffs had established a likelihood of success on their claims that the BIA had erroneously interpreted IIRIRA § 306(c)(5), that the stop-time rule was unconstitutional as applied to Plaintiffs, and that the INS was estopped from applying the stop-time rule. In finding a substantial

likelihood of success on the merits of the due-process and the estoppel claims, the district court relied heavily on the circumstances surrounding the Nicaraguan members of the class. According to the district court, the INS induced the Nicaraguan class members into applying for suspension of deportation but then moved to pretermit these applications under the stop-time rule. The court reasoned that the INS had caused the Nicaraguan class members to incur substantial filing fees, legal fees, and an expectation that their applications for suspension would be granted, all of which gave rise to a "property or liberty interest" in a hearing on their applications for suspension. According to the district court, the Constitution prohibited the deprivation of this "property or liberty interest" without the due process of law.

In addition, the district court found that the application of the stop-time rule was "irrational" in violation of equal protection.[6] The court found that aliens who "came forward" to be placed in deportation proceedings before reaching the seven-year physical-presence requirement and who "won their suspension case[s]" were deemed ineligible for suspension. Conversely, according to the district court, aliens who "evaded the INS successfully for seven years" could become eligible for suspension. The district court concluded that "any scheme which grants relief to persons who did not come forward and denies relief to persons who did come forward is irrational and in violation of equal protection."

Likewise, the district court noted that the stop-time rule precludes an alien from accumulating time toward the physical-presence requirement as soon as the INS issues an order to show cause even if the alien's deportation proceedings do not begin for several years. Thus, the court concluded that a system that "turns on whether someone is served with a charging document" was irrational in violation of equal protection.[7]

Based on these conclusions, the district court entered an injunction that prohibited the same actions prohibited by the court's earlier restraining order. Specifically, the district court ordered that:

1293

ORDERED, ADJUDGED and DECREED that the Defendants, Janet Reno, Attorney General of the United States, Robert Wallis, District Director, Immigration and Naturalization Service, Department of Justice, and Board of Immigration Appeals, and their agents, employees, lawyers, and persons acting under the[ir] direction and control, be and they are hereby, preliminarily enjoined from (1) deporting any member of the Plaintiff class, and (2) enforcing Matter of N-J-B or otherwise pretermitting *1293 applications for suspension of deportation based on the defendants' policy as expressed in said Matter of N-J-B.

IV. Developments Following Entry of Preliminary Injunction

A. Enactment of NACARA

Subsequent to the entry of the preliminary injunction, Congress enacted, and the President signed the Nicaraguan and Central American Relief Act, Pub.L. 105-100, 111 Stat. 2160 (1997) ("NACARA"). On December 2, 1997, the President also signed into law technical amendments to NACARA. Public L. No. 105-139, 111 Stat. 2644 (1997).
A number of NACARA's amendments are relevant to the instant appeal. First, NACARA § 203(a)(1) amends IIRIRA § 309(c)(5) and changes the language "notices to appear" to "orders to show cause." In addition, NACARA § 203(f) specifies that the amendments made by NACARA § 203 are effective as if originally enacted with IIRIRA. Thus, NACARA, by expressly referring to "orders to show cause," which initiated deportation proceedings prior to IIRIRA, resolves any potential linguistic ambiguity in IIRIRA § 309(a)(c) with respect to the applicability of the stop-time provision of INA § 240A(d). With this amendment, NACARA clarifies that the stoptime provision applies to aliens who were facing deportation and/or had applied for suspension of deportation before IIRIRA's enactment, because it precludes any argument that the reference to "notices to appear" suggested that Congress intended the stop-time rule to apply only to post-IIRIRA removal proceedings, which are initiated with "notices to appear."

In addition, NACARA includes several provisions that mitigate the effects of applying the stop-time rule to aliens who were in deportation proceedings before IIRIRA. Under NACARA § 203(a), certain aliens from El Salvador, Guatemala, and Eastern Europe can apply for suspension of deportation without being subject to the stop-time provision. Moreover, NACARA allows qualified aliens from Nicaragua and Cuba to bypass the suspension-ofdeportation process altogether and apply for an adjustment of their status to aliens admitted for permanent residence. NACARA §§ 202(a)(1) & (b)(1).
B. INS' Motion to Dissolve the Preliminary Injunction
On December 22, 1997, prompted by NACARA's amendments to IIRIRA, the INS moved to dissolve the district court's preliminary injunction and moved for summary judgment on all of Plaintiffs' claims. First, the INS argued that because of NACARA, Plaintiffs' claims were moot with respect to all class members from Nicaragua, Cuba, Guatemala, El Salvador, and Eastern Europe who qualified for the relief from the stop-time provision enacted by NACARA. Second, the INS argued that the district court's prior determination that the Plaintiffs had established a likelihood of establishing that the BIA had incorrectly interpreted IIRIRA § 306(c)(5) was no longer valid in light of NACARA § 203(a), which clarified that Congress intended the stop-time rule to apply to aliens in deportation proceedings before IIRIRA's enactment.
On February 10, 1988, the district court denied the INS' motion to dissolve the injunction and the INS' motion for summary judgment. Although the court agreed that Plaintiffs could no longer demonstrate a likelihood of success on their claim that the BIA had incorrectly interpreted IIRIRA § 305(c)(5), the court reaffirmed its previous conclusion that the Plaintiffs had established a likelihood of success on the merits of their constitutional claims. In addition, the court acknowledged that NACARA provided aliens from Nicaragua, Cuba, Guatemala, El Salvador, and Eastern Europe the opportunity to apply for the type of relief sought by certain members of the Plaintiff class. 1294 However, the court held that not all of the Plaintiffs from these countries necessarily *1294 would be eligible for the relief under NACARA. The court noted that certain class members might not qualify for the exception to the stop-time provision and that other class members might not be eligible to apply for a change of status. Accordingly, the court held that it could not yet determine which claims were mooted by NACARA. Specifically, the district court noted that "[although NACARA makes it clear that certain class members will receive the relief they seek, it is not clear at this time who those class members are."
For the same reasons supporting its decision not to dissolve the preliminary injunction, the court also denied the INS' motion for summary judgment.
This appeal followed.
C. Developments During this Appeal
Since this case has been on appeal, many of the named Plaintiffs have received various relief under NACARA. Many of them have become lawful permanent residents. Other Plaintiffs are awaiting hearings, which have been scheduled, on the adjustment of their status to legal permanent residence. Still other Plaintiffs have closed, with the INS' consent, their administrative proceedings in order to file for adjustment of status under NACARA. Finally, the INS has dropped its appeals of several immigration-judge decisions granting suspension to several named Plaintiffs.
These developments, along with the developments that prompted the INS to move to dissolve the injunction, have seriously altered the legal and factual situations of all but two of the named Plaintiffs. Although these developments might not have mooted, as argued by the INS, all of the claims in this appeal, these developments are highly relevant to the reasoning used by the district court in finding that Plaintiffs had established a likelihood of success on the merits of their due process and estoppel claims. In addition, while the claims of two named Plaintiffs remain ripe for adjudication, these developments raise serious questions regarding whether class-action status remains appropriate for this case and if so, whether the remaining Plaintiffs are proper class representatives.

The original complaint in this case included thirty-nine named individual Plaintiffs and the family members of those Plaintiffs. Of these original thirty-nine Plaintiffs and their families, thirty-five are Nicaraguan. Of those thirtyfive Plaintiffs, thirty-three have received, or are eligible for, relief that places them in significantly different positions than when the district court entered the injunction in this case. Of the remaining two named Nicaraguan Plaintiffs, the immigration status of one Plaintiff is unclear and the immigration status of the other one remains pending before the Attorney General. Of the four remaining non-Nicaraguan Plaintiffs, the claim of one Plaintiff is almost certainly moot, and another may be eligible for relief from deportation other than suspension. Therefore, only two of the original thirty-nine named Plaintiffs/Plaintiff families face the same situation that prompted the district court to find a constitutional violation and enjoin the application of the stop-time rule.
More specifically, of the thirty-five named Nicaraguan Plaintiffs, twenty have become lawful permanent residents under NACARA: (1) Roberto Tefel, (2) Leonel Martinez, (3) Lorena Garcia (4) Ana Borge, (5) Ignacio Herrera, (6) Nydia Mercado, (7) Liliam Portillo, (8) Sebastian Murillo, (9) Jesus Chow, (10) Gloria Guerrero, (11) Virginia Rodriguez, (12) Leonte Martinez, (13) Zulema Balladares, (14) Franklin Siu, (15) Justina Jiron, (16) Armando Largaespada, (17) Herenia Matute, (18) Enrique Sequeira, (19) Dudley Rocha-Petterson, (20) Ernesto Torres Sandoval.[8] Similarly, two of the original Nicaraguan Plaintiffs became lawful permanent residents prior to NACARA0907(21) Carlos Morales and (22) Lucrecia Raudes.
1295 *1295 Of the remaining thirteen named Plaintiffs, the following three are awaiting a hearing on the adjustment of their status to that of lawful permanent residents: (23) Douglas Membrano-Murillo and Damarys Contrera; (24) Juan and Ricardo Bermudez; and (25) Boanerges Pao.
Of the remaining ten named Plaintiffs, the following four have opted, with the INS' consent, to close their administrative proceedings so that they can file for adjustment of status under NACARA: (26) Manuel Mantilla, (27) Roberto Barberena, (28) Carlos Rivas, and (29) Ricardo Fonseca. Likewise, one Plaintiff, (30) Juan Gonzaga Baez, was granted suspension, the INS appealed, and Baez subsequently filed a motion to reopen so that he could apply for adjustment of status under NACARA.
In the following two cases, the aliens had been granted suspension of deportation by an immigration judge, and the INS has withdrawn its appeal of the immigration judge's decision: (32) Jaime Enriquez and (33) Freddy Quintero. Finally, one Plaintiff (34) Wilibur Baez has withdrawn as a named Plaintiff and a member of the class.
The status of one named Plaintiff, Roberto Rivera, is unclear, and one Plaintiff, Norma J. Baldizon, is awaiting the decision of the Attorney General who certified his case for her own decision.
Of the four non-Nicaraguan named Plaintiffs, the claim of one, Roberto Amaya, has been mooted and one, Alexandra Charles, may be eligible for relief under the Haitian Refugee Fairness Act, which also was signed into law while this case was on appeal.
Therefore, only two named Plaintiffs are currently facing the same legal and factual situation that they faced when the district court entered its injunction in this case. Khadijeh Aidenezhad is an alien from Iran who has lived in the United States since 1985. The immigration judge granted Ms. Aidenezhad suspension of deportation, and the INS appealed the immigration judge's decision arguing that Ms. Aidenezad could not satisfy the continuous physical-presence requirement under the stop-time rule. It is not clear from Plaintiffs' complaint when deportation proceedings commenced against Ms. Aidenzhad or when the immigration judge granted Ms. Aidenzhad suspension. Subalecthumy Vengadasalm is an alien from Malaysia. On November 8, 1996, the immigration judge granted her suspension of deportation, and the INS appealed this decision based upon the stop-time rule.
Because there are Plaintiffs whose claims remain ripe for adjudication, we proceed to reach the merits of Plaintiffs' preliminary injunction motion granted by the district court. However, as detailed later in this opinion, these developments on appeal require the district court on remand to revisit certain aspects of the class-action status of this case.

V. Standard of Review
This Court reviews de novo issues of subject matter jurisdiction. Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998).
A party seeking a preliminary injunction must establish the following four factors: (1) a substantial likelihood of success on the merits; (2) a threat of irreparable injury, (3) that its own injury would outweigh the injury to the nonmovant, and (4) that the injunction would not disserve the public interest. Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir.1991) (per curiam). A mixed standard of review applies to review of the granting or denying of a preliminary injunction. Bah v. City of Atlanta, 103 F.3d 964, 966 (11th Cir.1997). A district court's decision to grant a preliminary injunction and the denial of a motion to dissolve a preliminary injunction are reviewed for an abuse of discretion. Id.; Collum v. Edwards, 578 F.2d 110, 112 (5th Cir.1978). However, questions of law supporting the preliminary injunction are reviewed de novo. Id.
1296 *1296 VI. Jurisdiction
As an initial matter, we must determine whether the district court had jurisdiction over Plaintiffs' claims. The parties have briefed extensively numerous jurisdictional issues focusing particularly on whether IIRIRA's amendments to the INA's scheme for the judicial review of immigration matters altered the district court's jurisdiction over this case. We hold that this case is governed by IIRIRA's transitional rules, and therefore, the district court properly exercised jurisdiction over Plaintiffs' claims.
Under the INA before IIRIRA's amendments, the Supreme Court and this Court recognized that not all challenges to INS actions were committed exclusively to the jurisdiction of the court of appeals. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991); Jean v. Nelson, 727 F.2d 957 (11th Cir.1984), aff'd on other grounds, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985); Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982). Because Plaintiffs' claims are within the narrow category of claims that the preIIRIRA INA did not exclusively commit to the jurisdiction of the court of appeals, the district court did not err in resting its jurisdiction on McNary, Jean and Smith. Likewise, because IIRIRA's transitional provisions, rather than IIRIRA's complete amendments to the INA, govern jurisdiction over Plaintiffs' claims, IIRIRA did not deprive the district court of jurisdiction.[9]
In Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. Unit B 1982), this Court held that the exclusive judicial-review procedures under former INA § 106(a) did not apply to claims alleging "a program, pattern or scheme by immigration officials to violate the constitutional rights of aliens." In reaching this conclusion, this Court first noted that INA § 106(a) vested exclusive jurisdiction in the court of appeals to review "`all final orders of deportation ... made against aliens within the United States pursuant to administrative proceedings under section 1252(b) [deportation hearings]...." Id. at 1032 (quoting INA § 106(a), 8 U.S.C. § 1105a(a) (1982)). We reasoned that the INA's judicial-review procedures gave "sole jurisdiction" to the court of appeals over "alleged procedural irregularities" but only "to the extent these irregularities may provide a basis for reversing an individual deportation order ...." Id. at 1033 (emphasis in original). Thus, this Court in Smith recognized a distinction between (1) the court of appeals' jurisdiction over an individual alien's deportation proceedings and final deportation order and (2) a district court's jurisdiction over widespread allegations of constitutional violations by immigration officials:
The distinction we draw is one between the authority of a court of appeals to pass upon the merits of an individual deportation order and any action in the deportation proceeding to the extent it may affect the merits determination, on the one hand, and on the other, the authority of a district court to wield its equitable powers when a wholesale, carefully orchestrated, program of constitutional violations is alleged.
Smith, 676 F.2d at 1033 (finding cognizable in district-court claims challenging the constitutional adequacy of the INS' procedures for administering asylum applications).

Similarly, in Jean v. Nelson, 727 F.2d 957, 980 (11th Cir.1984), this Court concluded that former INA § 106(b), 8 U.S.C. § 1105a(b)(1984), did not preclude district-court jurisdiction over "widespread abuses by immigration officials." We began by noting that INA § 106(b), 8 U.S.C. § 1105a(b)(1984) provided that "`any alien against 1297 whom a final order of exclusion has been made heretofore or hereafter ... *1297 may obtain judicial review of such order by habeas corpus proceedings and not otherwise.'" Id. at 980 (emphasis in original) (quoting INA § 106(b)), 8 U.S.C. § 1105a(b)(1984). Essentially following the holding in Smith, this Court concluded that this limitation did not preclude the district court's jurisdiction over allegations that the INS wrongfully failed to give the plaintiffs notice of asylum. Id.
To ensure that the exceptions from Smith and Jean did not swallow the general rule of the exclusivity of the INA's judicial-review procedures, in both cases, this Court carefully noted the limited nature of these exceptions to the exclusive-review provisions under the pre-IIRIRA INA. In Smith, we stated that "[o]ur holding is not to be construed as permitting a constitutional challenge in the district court based on a procedural ruling in a deportation proceeding with which an alien is dissatisfied." 676 F.2d at 1033. We further noted that such an attempt to assert district-court jurisdiction would constitute an "end-run around the administrative process" and would be inconsistent with Congress' intent in enacting the INA's judicial-review scheme. Id. Likewise, in Jean, we reiterated the limited nature of our holding. 727 F.2d at 980. "We stress that our holding is a narrow one that should not be construed to permit judicial review of run-of-the-mill interlocutory procedural rulings by an immigration judge with which an alien happens to disagree." Id.
After this Court decided Smith and Jean, the Supreme Court employed similar reasoning in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). At issue in McNary were the judicial-review procedures governing INS decisions made regarding a special amnesty program for agricultural workers. These judicial-review provisions provided that "[t]here shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection" and that "[t]here shall be judicial review of such denial only in the judicial review of an order of exclusion or deportation under section 1105a of this title [INA § 106 (providing for judicial review in the court of appeals) ]." McNary, 498 U.S. at 486 n. 6, 111 S.Ct. at 893 n. 6 (quoting INA §§ 210(e)(1) & (3)(A)). Relying heavily on the specific wording of these judicial-review provisions, the Court reasoned that the reference to a singular "application for adjustment" in INA § 210(e)(1) and a singular "judicial review of such denial" in INA § 210 (e)(3)(A) indicated that these provisions governed jurisdiction over singular, individual amnesty applications and not "general collateral challenges to unconstitutional practices and policies used by the agency in processing applications." Id.; see also Reno v. Catholic Soc. Serv., Inc., 509 U.S. 43, 55, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (holding that provisions "virtually identical" to the provisions at issue in McNary did not preclude districtcourt jurisdiction over challenges to a regulation implementing an INS legalization program).
In this appeal, Plaintiffs assert the type of class-wide challenges to INS practices that fall outside the pre-IIRIRA judicial-review scheme. Plaintiffs do not challenge the specific result in any single case and do not argue that any of the individual Plaintiffs would receive suspension of deportation if their applications received full consideration. Instead, Plaintiffs allege, and the district court found, that the application of the stop-time provision to the members of the Plaintiff class violated Plaintiffs' constitutional rights. Thus, Plaintiffs assert "a program, pattern or scheme by immigration officials to violate the constitutional rights of aliens" that is similar to the due-process claims in Smith and Jean. Accordingly, the district court did not err in its conclusion that the pre-IIRIRA INA did not require that Plaintiffs' claims be asserted through a petition for review in the court of appeals.[10]
1298 *1298 The INS argues that INA § 242(g), which applies in transitional cases, precludes district-court jurisdiction over Plaintiffs' claims.[11] The INS acknowledges the Supreme Court's decision in Reno v. American-Arab AntiDiscrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), but nonetheless claims that INA § 242(g) precludes jurisdiction over Plaintiffs' claims.
Despite the INS' arguments, INA § 242(g) does not apply to Plaintiffs' claims. The Supreme Court in AmericanArab narrowly construed INA § 242(g) as applying only to the three discrete discretionary actions described in INA § 242(g)0907the "decision or action" to (1) "commence proceedings," (2) "adjudicate cases," or (3) "execute removal orders." 119 S.Ct. at 943. According to the Court, Congress had good reason to focus a particular

statutory provision limiting judicial review of these types of claims. Id. at 943-44 ("There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General's discrete acts of `commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders' 0907 which represent the initiation or prosecution of various stages in the deportation process.") Plaintiffs' challenges to the application of the stop-time rule to pending applications for suspension involve constitutional challenges to legislation specifically mandating such an application of the stop-time rule. Plaintiffs' claims do not challenge the Attorney General's exercise of her discretion to commence proceedings, adjudicate cases, or execute removal orders. Thus, INA § 242(g) does not alter the jurisdiction, recognized by this Court in Smith and Jean, over classwide allegations of constitutional violations by the INS.
Having determined that the district court properly exercised jurisdiction over Plaintiffs' claims, we now turn to whether the district court properly entered the preliminary injunction.
VII. Constitutional Claims
As discussed above, the district court found that Plaintiffs were likely to succeed on two constitutional claims. First, the district court concluded that the stop-time rule was irrational, and in violation of the equal protection component of the due process clause, because the stop-time rule rewarded aliens who evaded service of a notice to appear and penalized aliens who appeared in order to contest their deportations. Second, the district court held that the application of the stop-time rule to pending applications for suspension of deportation deprived Plaintiffs' of a "liberty or property" interest that the government created by enticing the Plaintiffs' to apply for suspension. We conclude that the district court erred in finding that Plaintiffs had established a substantial likelihood of success on the merits of their constitutional claims.
A. Equal-Protection Claim
The rational-basis standard applies to Plaintiffs' equal-protection claim. Rodriguez v. United States, 169 F.3d 1299 1342 (11th Cir.1999) (citing Mathews v. Diaz, *1299 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), for the
proposition that "statutes which discriminate within the class of aliens comport with the Due Process Clause of the Fifth Amendment (and the equal protection principles it incorporates) so long as they satisfy rational basis scrutiny."). Under rational-basis scrutiny, a statute is "accorded a strong presumption of validity" and will be upheld if "any reasonably conceivable state of facts" could demonstrate that the statute is rationally related to a legitimate government purpose. Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); Rodriguez, 169 F.3d at 1350. "A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality. The problems of government are practical ones and may justify, if they do not require, rough accommodations 0907illogical, it may be, and unscientific." Heller, 509 U.S. at 321, 113 S.Ct. 2637.
In this appeal, the stop-time rule of INA § 244A(d)(1), and IIRIRA § 309(c)(5)'s application of the stop-time rule to aliens in deportation proceedings prior to IIRIRA's enactment, are rationally related to legitimate government purposes. Congress intended the stop-time rule to eliminate the incentive to prolong deportation proceedings in order to become eligible for suspension. See, e.g., H.R.Rep. No. 104-879 (1997) ("Suspension of deportation is often abused by aliens seeking to delay proceedings until 7 years have accrued.") Certainly, removing the incentive for delay in the deportation process is a legitimate government objective. The stop-time rule clearly furthers this purpose by stopping the accrual of time toward the physical-residence requirement at the commencement of removal proceedings. Applying the stop-time rule immediately (i.e. to aliens already in deportation proceedings) further promotes this objective by applying the rule to a larger number of aliens and removing their incentive to prolong the proceedings.
Moreover, despite the district court's reasoning, Congress rationally chose the service of a "notice to appear" to delineate the beginning of removal proceedings. Some point in the process had to be chosen, and the service of such a notice is as good a point as any because it is when the alien is first informed that he or she is facing removal from the United States. The fact that some aliens might successfully evade service of the notice to appear does not diminish the rationality of the stop-time rule. In this sense, the stop-time rule is no more irrational

than Rule 4(m) of the Federal Rules of Civil Procedure, which by allowing the dismissal of a complaint when service is not perfected within 120 days, also "rewards" a person who can successfully evade service.
B. Procedural-Due-Process Claim
The procedural component of the Fifth Amendment's Due Process Clause protects against the deprivation of life, liberty, or property without the "due process of law." U.S. Const. amd. V. The necessary first step in evaluating any procedural due-process claim is determining whether a constitutionally protected interest has been implicated. Economic Dev. Corp. v. Stierheim, 782 F.2d 952, 954-55 (11th Cir.1986) ("In assessing a claim based on an alleged denial of procedural due process a court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest. Absent such a deprivation, there can be no denial of due process."); Smith, 676 F.2d at 1037 ("Procedural due process is not itself an independent right, but merely the condition precedent to the deprivation of a life, liberty, or property interest. We must therefore identify a constitutionally protectable interest which triggers the safeguards of the due process clause. In short, we must determine whether the individual interest threatened by the administrative action in this case `is one within the 1300 contemplation of the "(life), liberty or property" language *1300 of the Fifth Amendment.'") (citations omitted).
The district court found that the INS' actions gave rise to a protectable "liberty or property interest." It noted the various actions taken by the INS to encourage aliens, particularly Nicaraguan aliens, to apply for suspension of deportation. For example, the INS adopted a policy of not opposing motions to reopen deportation proceedings filed by Nicaraguan aliens, and the INS publicized to the Hispanic community the INS' policy of giving Nicaraguan aliens work authorization upon the filing of a motion to reopen and an application for suspension. The district court further noted that when the aliens applied for suspension, they incurred substantial application and attorneys' fees. According to the district court, the INS' actions "without question created an expectation in the Nicaraguan community" that Nicaraguan aliens would be considered for suspension of deportation and that gave rise to a "liberty or property interest in the right to a hearing on their claims for suspension of deportation."
However, expectation does not equate with liberty or property, and a constitutionally protected interest cannot arise from relief that the executive exercises unfettered discretion to award. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). In Dumschat, the Supreme Court held that a state inmate does not enjoy a constitutionally protected liberty interest in having his or her sentence commuted, even where the state "consistently" commuted the sentences of inmates in "most" cases. Dumschat, 452 U.S. at 464-65, 101 S.Ct. 2460. The Court reasoned that "a constitutional entitlement cannot `be created as 0907 if by estoppel0907merely because a wholly and expressly discretionary state privilege has been granted generously in the past.'" Id. (quoting Leis v. Flynt, 439 U.S. 438, 444 n. 5, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979)). Instead, according to the Court, "[i]n terms of the Due Process Clause, a ... felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope." Dumschat, 452 U.S. at 465, 101 S.Ct. 2460.
More specifically, this Court has held that the failure to receive discretionary relief in the immigration context does not deprive an alien of a constitutionally protected liberty interest. Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.1986). In Garcia-Mir, a group of Cuban aliens claimed a liberty interest in hearings to determine whether they should be "paroled" into the United States pending the completion of their immigration proceedings. Id. at 1450-51. The aliens noted that the President had issued an "open arms" invitation to Cuban aliens and that Congress had created a special parole category for Cuban and Haitian aliens. Id. According to the aliens in Garcia-Mir, these actions limited the INS' discretion in making parole determinations and thereby created a constitutionally protected liberty interest. Id. This Court acknowledged that the Cuban aliens had been "treated more generously than is normally the case with excludable aliens." Id. Nevertheless, we concluded that prior generosity in awarding "`wholly and expressly discretionary' [relief] .... does not prove the existence of a constitutional entitlement." Id. at 1451 (quoting Dumschat, 452 U.S. at 465, 101 S.Ct. 2460). Instead, we held that the proper inquiry was whether statutes or regulations limited official discretion in making parole determinations. Id. at 1452. Noting that the Executive's discretion in paroling aliens remained free of "`substantive limitations on official discretion'", we concluded that the aliens lacked a liberty interest in being paroled. Garcia-

Mir, 788 F.2d at 1452 (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983)); see also Rodriguez v. Reno, 178 F.3d 1139 (11th Cir.1999) (holding that an ineffective-assistance-of-counsel 1301 claim cannot arise from an *1301 alien's failure to receive suspension because of the Attorney General's unfettered discretion in granting or denying suspension).
Moreover, Garcia-Mir also illustrates that awarding and then revoking discretionary relief does not offend due process. In Garcia-Mir, the INS had paroled certain Cuban aliens into the United States but had subsequently revoked their parole. Rejecting the constitutional claims of these Cubans, we observed that absent rules constraining official discretion "one merely has an expectancy reinforced by a system capable of granting or withholding that liberty." 788 F.2d at 1453. Thus, this Court concluded that this group of aliens did not suffer a constitutional violation by receiving and then losing parole without any process. Id.
In this appeal, Plaintiffs' procedural-due-process claims are similar to the claims rejected in Garcia-Mir. In GarciaMir, the aliens sought discretionary parole while awaiting further proceedings, and in this case, Plaintiffs seek to apply for discretionary suspension of deportation. In both cases, the federal government had taken actions that created an expectancy that the aliens would receive the relief requested. In Garcia-Mir, Congress created a special parole category for Cubans, and in this appeal, the INS had initiated the various aspects of its program to encourage Nicaraguan aliens to apply for suspension.
Therefore, for the same reasons that the aliens in Garcia-Mir could not establish a due-process claim, Plaintiffs in this appeal have not established a likelihood of success on the merits of their due-process claim. In Garcia-Mir, relying on Dumschat, this Court determined that the Executive's complete discretion to make parole decisions was fatal to the Cuban aliens' due process claim. Similarly, the Attorney General possesses broad discretion in awarding suspension of deportation. See, e.g. INS v. Yueh-Shaio Yang, 519 U.S. 26, 29, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) (noting the Attorney General's "unfettered discretion" to award suspension of deportation and observing the parallels between suspension and an executive pardon); Jay v. Boyd, 351 U.S. 345, 354, 76 S.Ct. 919, 100 L.Ed. 1242 (1956) (noting that suspension of deportation is an "act of grace" like the "probation or suspension of criminal sentence"). Indeed, Plaintiffs have not even attempted to argue that the Attorney General's discretion to grant or deny suspension of deportation is limited by statute or regulation. Thus, because suspension remains a purely discretionary "act of grace" and Plaintiffs have not identified any limits on the Attorney General's discretion to grant or deny applications for suspension of deportation, they do not enjoy any "liberty or property" interest attendant to their applications for suspension.
Plaintiffs attempt to distinguish the reasoning and holding in Garcia-Mir by arguing that their constitutional injury stems, not from being denied suspension of deportation, but from being rendered ineligible to be considered for suspension. Plaintiffs' argument draws a distinction without a constitutional difference. Where no deprivation of a liberty or property interest has occurred, no violation of procedural due process has occurred. Smith, 676 F.2d at 1037. No constitutionally protected interest arises from the INS' actions in granting or denying applications for suspension because the Attorney General exercises "unfettered" discretion over applications for suspension. Therefore, regardless of the ultimate disposition of an application for suspension of deportation, Plaintiffs do not possess a constitutionally protected interest in their expectancy of receiving suspension. Thus, just as Plaintiffs enjoy no "liberty or property" interest in their expectancy of receiving suspension of deportation, they enjoy no "liberty or property" interest in being eligible to be considered for suspension. Accordingly, being ineligible for 1302 suspension does not deprive Plaintiffs of a constitutionally protected *1302 interest any more than having their applications for suspension denied.
Plaintiffs also argue that the stop-time rule violates the general presumption against retroactive statutory provisions recognized in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). This argument is without merit for two reasons. First, applying the stop-time rule to deportation proceedings pending prior to IIRIRA is not a retroactive application of a statute. See Landgraf, 511 U.S. at 269, 114 S.Ct. 1483 ("A statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law.") (citations omitted). As clarified by NACARA § 203(a)(1), the stop-time rule applies to applications for suspension that were pending in the administrative process when IIRIRA was enacted. Applying the stop-time rule to pending administrative cases does not overturn final BIA decisions affirming an immigration judge's decision to grant suspension of

deportation. Thus, applying the rule to pending administrative proceedings merely "upsets expectations based in prior law" and does not "impair rights a party possessed when he [or she] acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf, 511 U.S. at 269 & 280, 114 S.Ct. 1483 (emphasis supplied).
The second reason Plaintiffs' Landgraf argument fails is that Landgraf provides that the "first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules." 511 U.S. at 280, 114 S.Ct. 1483. No one disputes that, in enacting NACARA § 203(a)(1), Congress mandated the application of the stop-time rule to aliens against whom deportation proceedings began prior to IIRIRA. Therefore, even assuming that NACARA § 203(a)(1) constituted the retroactive application of a statutory provision, there would be need for this Court to apply the judicial presumptions against the retroactive application of new statutes because Congress expressly provided for this "retroactive" application.
VIII. Estoppel Claim
A party asserting estoppel must establish the following three elements of a traditional equitable-estoppel claim: (1) "words, acts, conduct or acquiescence causing another to believe in the existence of a certain state of things" (2) "wilfulness or negligence with regard to the acts, conduct or acquiescence" and (3) "detrimental reliance by the other party upon the state of things so indicated." Federal Deposit Ins. Corp. v. Harrison, 735 F.2d 408, 413 (11th Cir.1984)
However, the Supreme Court has never resolved whether, and in what manner, the doctrine of equitable estoppel can be applied against the federal government. The Court has intimated that estoppel against the government may not be available at all. Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) ("In sum, Courts of Appeals have taken our statements as an invitation to search for an appropriate case in which to apply estoppel against the Government, yet we have reversed every finding of estoppel that we have reviewed."). Although the Court has not adopted a per se rule prohibiting the application of estoppel against the government, the Court has clarified on numerous occasions that "the government may not be estopped on the same terms as any other litigant." Heckler v. Community Health Serv. of Crawford, 467 U.S. 51, 60, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984); Richmond, 496 U.S. at 423-24, 110 S.Ct. 2465 (declining to adopt a rule prohibiting estoppel against the government). Moreover, in its decisions declining to adopt a prohibition on estoppel against the government, the Court has consistently suggested that, if available at all, estoppel against 1303 the government depends *1303 on a showing of affirmative misconduct. Richmond, 496 U.S. at 421, 110 S.Ct. 2465 ("Our own opinions have continued to mention the possibility, in the course of rejecting estoppel arguments, that some type of `affirmative misconduct' might give rise to estoppel against the Government."); INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 74 L.Ed.2d 12, (1982) (per curiam ) ("This case does not require us to reach the question we reserved in Hibi, whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws"); INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) (per curiam ) ("While the issue of whether `affirmative misconduct' on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961), no conduct of the sort there adverted to was involved here."); Montana, 366 U.S. at 314-15, 81 S.Ct. 1336 (noting that "we need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of the conduct of its officials" because the conduct alleged fell "far short of misconduct" that could support estoppel).
Largely following the Supreme Court's admonition that the government cannot be estopped on the same terms as a private litigant, every other circuit has concluded that establishing estoppel by a private party against the government requires a showing of affirmative misconduct. United States v. Javier Angueira, 951 F.2d 12, 16 (1st Cir.1991); Drozd v. INS, 155 F.3d 81, 90 (2d Cir.1998); Fredericks v. Commissioner, 126 F.3d 433, 438 (3rd Cir. 1997); United States v. Agubata, 60 F.3d 1081, 1083 (4th Cir.1995); Fano v. O'Neill, 806 F.2d 1262, 1265 (5th Cir.1987); United States v. Guy, 978 F.2d 934, 937 (6th Cir. 1992); Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123, 1138 (7th Cir.1988), amended on other grounds, 866 F.2d 228 (7th Cir.1989); United States v. Schoenborn, 860 F.2d 1448, 1451 (8th Cir.1988); Watkins v. United States Army, 875 F.2d 699, 707 (9th Cir.1989); Penny v.

Giuffrida, 897 F.2d 1543, 1547 (10th Cir.1990); LaRouche v. Federal Election Com'n, 28 F.3d 137, 142 (D.C.Cir.1994); Henry v. United States, 870 F.2d 634, 637 (Fed.Cir.1989).
On the other hand, this Court has thus far found it unnecessary to resolve the issue of whether a showing of affirmative misconduct is required to estop the federal government. Feldman v. Commissioner, 20 F.3d 1128, 1134 (11th Cir.1994); Bokum v. Commissioner, 992 F.2d 1136, 1141 (11th Cir.1993); Brundidge Banking Co. v. Pike County Agr. Stabilization and Conservation Comm., 899 F.2d 1154, 1161 n. 5 (11th Cir.1990). In each of these cases, we have concluded that because the party seeking to estop the government had not established the traditional elements of estoppel, it was unnecessary to reach the issue of whether a showing of affirmative misconduct was necessary. Feldman, 20 F.3d at 1134; Bokum, 992 F.2d at 1141; Brundidge Banking, 899 F.2d at 1161. The time has come to decide the issue.
In this appeal, we hold that to establish a claim for equitable estoppel against the government, the party seeking to establish estoppel must prove, in addition to the traditional elements of estoppel, some affirmative misconduct by the government. The Supreme Court repeatedly has said that the government cannot be estopped on the same terms as a private party, if the government can ever be estopped. See, e.g., Heckler, 467 U.S. at 60, 104 S.Ct. 2218. We agree that a rule requiring misconduct as an essential element of establishing estoppel against the government is the best way to follow the Supreme Court's command until the Court definitively determines whether and under what circumstances estoppel can be asserted against the government.
In light of this holding, the district court's finding of a substantial likelihood of success on the merits of Plaintiffs' 1304 estoppel claim must be reversed. It is not clear whether the district court believed affirmative *1304 misconduct to
be an element of estoppel under these circumstances. The district court acknowledged that a showing of affirmative misconduct might be a fourth element of establishing estoppel against the government. However, the district court also noted that the INS "seemed to agree" with Plaintiffs' position that the Eleventh Circuit had declined to adopt misconduct as an element of estoppel.
Although the district court discussed Plaintiffs' theory of INS misconduct, the court's discussion suggests that it did not believe that a showing of affirmative misconduct was necessary to Plaintiffs' estoppel claim. The district court noted evidence that the INS district director knew that Congress was considering altering the physicalresidence requirement for suspension at the same time that the INS was encouraging Nicaraguan aliens to apply for suspension of deportation. The Court conceded this evidence was not a "`smoking gun' on the Plaintiffs' estoppel argument" but found it sufficient to justify discovery on possible misconduct by the INS. Therefore, it does not seem that the district court actually made a finding that Plaintiffs were substantially likely to establish misconduct by the INS. To the extent the district court held that affirmative misconduct was not an essential element of estoppel against the government, the court applied the improper legal standard to Plaintiffs' claims.
On the other hand, if the district court concluded that affirmative misconduct was an element of Plaintiffs' estoppel claim, it erred in accepting Plaintiffs' theory of misconduct. Assuming the INS was aware of a "substantial likelihood" that Congress was going to alter the eligibility requirements for suspension, the INS' contemporaneous actions did not constitute misconduct. The mere knowledge that Congress was considering, and likely to make, changes to the requirements for suspension of deportation did not render wrongful the INS' continuation of an existing program to encourage suspension applications. Compare Corniel-Rodriguez v. INS, 532 F.2d 301, 302 (2d Cir.1976) (holding that the State Department's failure to warn an alien, as mandated by applicable regulations, that the alien's pending marriage would void her visa constituted misconduct) with Mukherjee v. INS, 793 F.2d 1006 (9th Cir.1986) (holding that a government official's incorrect advice on an immigration matter did not amount to misconduct); Chien-Shih Wang v. Attorney General of United States, 823 F.2d 1273 (8th Cir.1987) (holding the INS' negligence and possible bad faith in processing the alien's application for permanent residence did not amount to affirmative misconduct). Congress sometimes appears likely to do things it never actually does, and the INS was entitled to operate under existing law until it was changed. There is no indication that the INS' actions in encouraging suspension applications violated any statute or immigration regulation. Plaintiffs offer no other theory of affirmative misconduct other than that cited by the district court. Plaintiffs' inability even to articulate another possible theory of misconduct further illiterates that they have not, based on the current record, established a likelihood of success on the merits of their estoppel claim.

IX. Class-Action Status
Because certain members of the Plaintiff class have claims that are ripe for resolution, we have reached the merits of this case and hold that the district court erred in finding that Plaintiffs had established a substantial likelihood of success on the merits of their claims. However, we note that significant issues do exist regarding the scope and propriety of the class as certified by the district court. First, the class appears to be overly broad. As defined, the class includes aliens who had applied for but been denied suspension of deportation and aliens who have never applied for suspension. Thus, the definition of the class appears to include aliens without claims that are ripe for resolution. Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 58-59, 113 S.Ct. 2485, 125 L.Ed.2d 38 1305 (1993) (holding that aliens' claims challenging *1305 the INS' regulations interpreting the "continuous physical presence" requirement for legalization under the Immigration Reform and Control Act of 1986 are not ripe until the aliens seek and are denied legalization); Catholic Social Servs., Inc. v. INS, 182 F.3d 1053 (9th Cir.1999).
Second, the class does not appear to satisfy the commonality requirement of Rule 23(a)(2). In finding a likelihood of success on the merits of Plaintiffs' claims, the district court's reasoning focused, almost exclusively, on INS actions that were directed specifically at the Nicaraguan Plaintiffs. Nevertheless, the district court broadly defined the class to include "[a]ll individuals within the states of Georgia, Alabama and Florida who have been or will be denied suspension of deportation" and did not distinguish between Nicaraguan and non-Nicaraguan members of the class. Also, the class as defined by the district court includes groups of aliens whose deportation proceedings are governed by entirely different statutory provisions. While the stop-time rule applies to all aliens in deportation proceedings prior to IIRIRA, IIRIRA's transitional rules govern certain aspects of the deportation proceedings that began before April 1, 1997 if the deportation order was, or will be, entered after October 30, 1996. However, for the most part, the pre-IIRIRA INA governs the deportation proceedings that began prior to April 1, 1997 and concluded before October 30, 1996.
Moreover, the enactment of NACARA after the district court's certification clearly placed the Nicaraguan Plaintiffs in a legal position that differed significantly from the positions of the non-Nicaraguan Plaintiffs. In addition to raising further questions about whether the class satisfied the commonality requirement, the effect of NACARA on the claims asserted by the Nicaraguan Plaintiffs also raises serious questions about whether the named Plaintiffs remain adequate class representatives.
In short, on remand, we direct that, before any further proceedings are conducted relating to the merits of Plaintiffs' claims, the district court reconsider its certification of the class and reexamine whether any of the named Plaintiffs remain appropriate class representatives. Any final determinations on the merits of this case cannot be made until Plaintiffs and their respective claims are accurately identified and defined. At this juncture, our opinion holds only that Plaintiffs have not established a likelihood of success sufficient to support the broad class-wide injunction entered by the district court.
X. Conclusion
For the foregoing reasons, we conclude that the district court erred in finding that Plaintiffs had established a likelihood of success on the merits of their claims. Accordingly, we conclude that the district court erred in entering its preliminary injunction and in denying the motion to dissolve the injunction. The district court's preliminary injunction is VACATED, and this case is REMANDED for further proceedings consistent with this opinion.
[*] This decision is rendered by a quorum, due to Judge Henderson's death on May 11, 1999. 28 U.S.C. § 46(d).
[1] Under INA § 244(a)(2), the Attorney General could order "suspension of deportation" if: (1) deportation was based on certain specified grounds, (2) the alien had been "physically present in the United States for a continuous period of not less than ten years" after becoming deportable, (3) in that time was a person of "good moral character", and (4) in the opinion of the Attorney General, deporting the alien would cause "exceptional and extremely unusual hardship" to the alien or to the alien's "spouse, parent, or child" who is a United States citizen.

INA § 244(a)(2), 8 U.S.C. § 1254(a)(2). Importantly, however, establishing these four factors did not entitle an alien to suspension of deportation. Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th Cir.1982). Instead, granting suspension of deportation remained within the Attorney General's discretion. Id.
[2] Specifically, the "stop-time" provision in INA § 244A(d)(1), 8 U.S.C. § 1229b(d)(1) (Supp.1998) provides that:
For purposes of this section, any period of continuous residence or continuous 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.
INA § 244A(d)(1), 8 U.S.C. § 1229b(d)(1) (Supp.1998).
[3] On July 10, 1997, the Attorney General vacated the BIA's decision in Matter of N-J-B and certified the case to herself for review under 8 C.F.R. § 3.1(h)(1)(I) (providing that "[t]he Board shall refer to the Attorney General for review of its decision all cases which ... [t]he Attorney General directs the Board to refer to [her]."). Nevertheless, NACARA, enacted in December 1997, clarified that the BIA had correctly interpreted IIRIRA § 309(c)(5).
[4] IIRIRA § 309(c)(5) provides:
TRANSITIONAL RULE WITH REGARD TO SUSPENSION OF DEPORTATION. 0907Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence of physical presence) shall apply to notices to appear issued before, on, or after the date of enactment of this Act [i.e. September 30, 1996].
IIRIRA § 309(c)(5).
[5] The disposition of Plaintiffs' fourth claim is not clear. However, the district court did not rely on this claim in entering the injunction at issue in this appeal.
[6] Of course, by referring to equal protection, the district court was relying on the equal-protection component of the Fifth Amendment's Due Process Clause.
[7] It is important to note that although the district court couched its holding in terms of the application of the stoptime rule to aliens whose deportation proceedings began prior to IIRIRA, the court's reasoning suggests that it found the stop-time rule itself, regardless of its application to pending proceedings, to be violative of due process and equal protection. For example, the court reasoned that "any analysis which turns on whether someone is served with a charging document, even if the actual hearing does not occur for many years thereafter, is irrational and violates equal protection." Since the stop-time rule as applied in the context of cancellation of removal under the post-IIRIRA INA continues to be triggered by the service of a notice to appear, the district court's reasoning would also apply to the application of the stop-time rule to post-IIRIRA deportation proceedings.
[8] In addition, German A. Reyes, who was joined as a Plaintiff after the initial complaint had been filed, has also become a permanent resident under NACARA.
[9] In concluding that the district court had jurisdiction over Plaintiffs' claims, this Court does not affirm or endorse the findings or reasoning of the district court in justifying its exercise of jurisdiction. Instead, we base our conclusion on the reasoning set out in this opinion.
[10] At this point, we reemphasize that Plaintiffs and the INS agree that this case is governed by IIRIRA's transitional rules. Thus, most of IIRIRA's substantial revisions to the INA's judicial-review scheme do not apply to this case and do not govern jurisdiction over Plaintiffs' claims. Although contending the permanent rule in INA § 242(g) applies, the INS concedes that nothing in IIRIRA's transitional provisions altered the district court's jurisdiction over Plaintiff's claims. Moreover, as defined by the district court, the Plaintiff class also includes aliens who were subject to final deportation orders prior to IIRIRA. The deportation proceedings of these Plaintiffs are governed by INA § 106 without the transitional rule amendments.

[11] INA § 242(g) provides that: Except as provided in this section 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 arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C. § 1252(g) (Supp.1998).
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 </s> Tefel v. Reno, 198 F.3d 265 (Table) (1999) 198 F.3d 265 (Table)
(The decision of the Court is referenced in an Eleventh Circuit Table of Denials of Rehearing En Banc appearing in the Federal Reporter.)
United States Court of Appeals, Eleventh Circuit.
Roberto Tefel, Family Members, Khadijeh Aidenezhad, Juan Gouzaga Baez, Norma J. Baldizon, Zulema Balladares, Wilbur Baez, Family Members v.
Janet Reno, Attorney General, Immigration and Naturalization Service, Robert Wallis, District Director, Board of Immigration Appeals
NO. 98-4616-GG | October 06, 1999 S.D.Fla., 180 F.3d 1286 Opinion DENIALS OF REHEARING EN BANC.
1

 </s> Tefel v. Reno, 530 U.S. 1228 (2000)
120 S.Ct. 2657 Supreme Court of the United States Roberto TEFEL, et al., petitioners,
v. Janet RENO, Attorney General, et al.
No. 99-1314. | June 12, 2000.
Case below, 180 F.3d 1286.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.
Parallel Citations 120 S.Ct. 2657 (Mem), 147 L.Ed.2d 272, 68 USLW 3513, 68 USLW 3753, 68 USLW 3755
	
  

1


[CONTENT] March 28, 1997 | Nicaraguan | the United States | District Court | the Southern District | Florida ||| the Illegal Immigration Reform and | 1996 | the Immigration and Nationality Act | U.S. | less than 10 years | 7 years ||| Time ||| IIRIRA | 244 ||| U.S. ||| IIRIRA | U.S. ||| IIRIRA | the Board of Immigration Appeals | IIRIRA ||| BIA | the Equal Protection | the Fifth Amendment ||| The District Court | James Lawrence King | INS ||| Tefel v. Reno | 972 ||| 608 | S.D.Fla. 1997 ||| Court | IIRIRA ||| Tefel v. Reno | 972 ||| 623 | S.D.Fla. 1997 |||  ||| Tefel v. Reno | 996 ||| 1 ||| 1998 ||| the District Court's ||| The United States Court of Appeals | the Eleventh Circuit | the District Court's ||| Tefel v. Reno | 180 | 1286 |||  ||| Tefel v. Reno | 198 | 265 | 11th Cir. | 1999 ||| Certiorari ||| Tefel v. Reno | 530 | U.S. | 1228 | 120 | S.Ct | 2657 | 147 ||| the District Court | Patricia A. Seitz | January 24, 2002 |||  [SUMMARY] On March 28, 1997, Nicaraguan aliens filed a class-action complaint in the United States District Court for the Southern District of Florida, challenging the federal government's interpretation of the applicability of the "stop-time" rule for determining eligibility for suspension of deportation.

Prior to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, which amended the Immigration and Nationality Act, an alien facing deportation could apply for "suspension of deportation" if he met certain statutory factors, which included that the alien had been "physically present in the U.S. for a continuous period of not less than 10 years after becoming deportable or 7 years after applying for suspension of deportation."  Time spent in deportation proceedings counted toward the physical-residence requirement.

The IIRIRA repealed the suspension-of-deportation provision of INA § 244 and replaced it a "cancellation of removal" provision.  To be eligible for cancellation of removal, the alien was required to meet certain time requirements of residing in the U.S.  The IIRIRA also contained a new "stop-time" provision, under which an alien's period of residence or continuous physical presence in the U.S. was deemed to end once the alien was served with a "notice to appear" for removal proceedings or committed a criminal offense described in INA § 244A(d)(1).  Shortly after the enactment of IIRIRA, the Board of Immigration Appeals (BIA) held that the new "stop-time" rule applied to aliens who had applied for suspension of deportation prior to IIRIRA's enactment.  Plaintiffs challenged the BIA's application of the "stop-time" rule as violating the Equal Protection and Due Process Clauses of the Fifth Amendment.

The District Court (Judge James Lawrence King) certified the case as a class action and issued a TRO order against enforcement of INS policy and against the deportation of class members during the pending action.  Tefel v. Reno, 972 F.Supp. 608 (S.D.Fla. 1997).  Following a hearing, the Court issued a class-wide preliminary injunction prohibiting the enforcement of the stop-time provision of the IIRIRA to pending applications for suspension of deportation.  Tefel v. Reno, 972 F.Supp. 623 (S.D.Fla. 1997).  The government's motion to dissolve the injunction was denied. Tefel v. Reno, 996 F.Supp. 1 (S.D.Fla. 1998).  The government appealed the District Court's orders.  

The United States Court of Appeals for the Eleventh Circuit vacated the District Court's preliminary injunction and remanded the case for further proceedings. Tefel v. Reno, 180 F.3d 1286 (11th Cir.1999).  Rehearing en banc was denied.  Tefel v. Reno, 198 F.3d 265 (11th Cir. 1999).  Certiorari was also denied.  Tefel v. Reno, 530 U.S. 1228, 120 S.Ct. 2657, 147 L.Ed.2d 272 (2000). 

On remand, the District Court (Patricia A. Seitz) decertified the class and granted summary judgment to all defendants against all plaintiffs, per order dated January 24, 2002.  According to the PACER docket, plaintiffs did not appeal the judgment.