United States v. 2005-12-06 | 03-74083 | FAJARDO SOLTELO VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SERGIO FAJARDO SOTELO; PRISCA No. 03-74083
RAMIREZ ALEMAN; YADIRA BETZAVE
Agency Nos. FAJARDO ALEMAN, A72-538-378 Petitioners, A72-538-379 v. A72-538-380
ALBERTO R. GONZALES, Attorney AMENDED
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 16, 2005—Pasadena, California
Filed October 21, 2005
Amended December 7, 2005
Before: Jerome Farris, David R. Thompson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Farris
15855

-- 1 of 8 --

COUNSEL
Murray D. Hilts, San Diego, California, for the petitioners-
appellants.
S. Nicole Nardone and Leslie McKay, United States Depart-
ment of Justice, Civil Division, Office of Immigration Litiga-
tion, Washington, D.C., for the respondent-appellee.
OPINION
FARRIS, Circuit Judge:
Petitioners challenge the Board of Immigration Appeals’
denial of their motion to reopen deportation proceedings.
Their motion was made in an attempt to avail themselves of
the class action settlement approved in Barahona-Gomez v.
Ashcroft, 243 F. Supp. 2d 1029 (N.D. Cal. 2002). That settle-
ment permitted eligible immigrants to apply for suspension of
deportation under the law as it existed prior to the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), as
amended by Pub. L. No. 104-302, 110 Stat. 3656 (1996).
Unfortunately for petitioners, they are not Barahona-Gomez
class members and therefore not entitled to the relief they
seek. The BIA did not err in denying their motion to reopen.
I
Petitioners Sergio Fajardo Sotelo, his wife Prisca Ramirez
Aleman, and their daughter Yadira Betzave Fajardo Aleman,
15858 SOTELO v. GONZALES

-- 2 of 8 --

all natives and citizens of Mexico, entered the United States
without inspection in August 1989. Less than six years later,
on March 10, 1995, they were served with an Order to Show
Cause and charged with entering the country without inspec-
tion. Deportation proceedings were commenced against them.
Petitioners conceded deportability and subsequently applied
for asylum and withholding of removal.
Following a November 1995 hearing, an Immigration
Judge denied petitioners’ application. A timely appeal was
filed with the BIA on December 8, 1995. On February 11,
1998 the BIA affirmed the IJ’s decision and dismissed the
appeal. Review of the BIA’s dismissal was not sought; rather
petitioners filed, on March 6, 1998, a motion to reopen their
deportation proceedings, seeking suspension of deportation
based on their accrual of seven years of continuous physical
presence in the United States during the pendency of their
appeal.
On August 5, 1999 the BIA denied petitioners’ motion to
reopen based on section 309(c)(5) of the IIRIRA, which
amended the suspension of deportation provisions so that any
period of continuous physical presence in the United States is
terminated when an alien is served with notice and placed in
removal proceedings. This is commonly known as the “stop
time” rule.1 Compare 8 U.S.C. § 1254(a) (1996) (repealed
1“Before IIRIRA, an alien was eligible for suspension of deportation if
(1) he or she ‘ha[d] been physically present in the United States for a con-
tinuous period of not less than seven years immediately preceding the date
of [the] application’ for suspension of deportation; (2) he or she was a
‘person of good moral character’; and (3) deportation would result in
‘extreme hardship’ to the alien or to an immediate family member who
was a U.S. citizen or a lawful permanent resident.” Guadalupe-Cruz v.
INS, 240 F.3d 1209, 1210 n.2 (9th Cir. 2001) (quoting Immigration and
Nationality Act § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994)). Furthermore,
“[b]efore IIRIRA, aliens accrued time toward the continuous physical
presence in the United States requirement until they applied for suspension
of deportation. Commencement of deportation proceedings had no effect
on this accrual.” Id. at n.3 (internal quotation marks omitted).
15859 SOTELO v. GONZALES

-- 3 of 8 --

1996) with 8 U.S.C. §§ 1229b(b)(1), 1229b(d)(1). The
IIRIRA amendments took effect on April 1, 1997, while peti-
tioners’ asylum appeal was pending before the BIA. Since
Fajardo Sotelo and his family were placed in deportation pro-
ceedings when fewer than six years had passed since their
entry from Mexico, the BIA concluded that they were not eli-
gible for suspension of deportation under the amended law.
The petitioners did not seek review.
In June 2003 petitioners again moved to reopen their depor-
tation proceedings claiming they were entitled to apply for
“renewed suspension” of deportation under pre-IIRIRA rules
as eligible class beneficiaries of the class action settlement
approved in Barahona-Gomez, 243 F. Supp. 2d 1029. On
October 10, 2003 the BIA concluded that petitioners were not
eligible for relief under the Barahona-Gomez settlement and
denied their second motion to reopen. Petitioners seek review
of this decision.
II
Although we originally had jurisdiction under 8 U.S.C.
§ 1105(a) (INA § 106(a)) as amended by the IIRIRA’s transi-
tional rules, we now have jurisdiction pursuant to 8 U.S.C.
§ 1252 under the REAL ID Act of 2005. See REAL ID Act
of 2005, Pub.L. No. 109-13, § 106(d), 119 Stat. 231, 311
(2005) (“A petition for review filed under former section
106(a) of the Immigration and Nationality Act . . . shall be
treated as if it had been filed as a petition for review under
section 242 of the Immigration and Nationality Act (8 U.S.C.
1252), as amended by [REAL ID Act § 106].”). We review
the BIA’s denial of a motion to reopen for an abuse of discre-
tion, “although de novo review applies to the BIA’s determi-
nation of purely legal questions.” Mejia v. Ashcroft, 298 F.3d
873, 876 (9th Cir. 2002). Our review of the interpretation of
settlement agreements is also de novo and is governed by
principles of state contract law. See Botefur v. City of Eagle
Point, Or., 7 F.3d 152, 156-57 (9th Cir. 1993). Whether peti-
15860 SOTELO v. GONZALES

-- 4 of 8 --

tioners are entitled to relief under the Barahona-Gomez settle-
ment is a question of law. Our review is de novo.
III
[1] The Barahona-Gomez settlement was reached to
resolve a dispute over two directives issued by the BIA Chair-
man and Chief Immigration Judge in anticipation of the
IIRIRA amendments. These directives instructed Immigration
Judges and the BIA not to issue decisions or consider appeals
resulting in suspension of deportation between February 13
and April 1, 1997, the effective date of IIRIRA. See
Barahona-Gomez v. Reno, 167 F.3d 1228, 1232 (9th Cir.
1999), supplemented by 236 F.3d 1115, 1117 (9th Cir. 2001).
As a result, some immigrants who would have had their sus-
pension of deportation claims heard under pre-IIRIRA law
during this period were rendered ineligible by the stop time
rule when their cases were heard after April 1, 1997. As a
class these immigrants challenged the delay caused by the two
directives and the parties eventually agreed to settle the claim
by permitting eligible class members to reapply for suspen-
sion of deportation under the law as it existed before the stop
time amendment. See Barahona-Gomez, 243 F. Supp. 2d at
1033.
[2] Petitioners are not persons entitled to relief under the
terms of the Barahona-Gomez settlement. The settlement con-
tains two provisions that define persons entitled to relief — a
“Definition of the Class” and a “Definition of ‘Eligible class
members.’ ” Both parties expend most of their efforts arguing
whether Fajardo Sotelo and his family are “Eligible class
members” entitled to relief, but this emphasis overlooks a
necessary preliminary determination of class membership.
Under the plain meaning of the settlement no person can be
a “class member[ ] . . . eligible for the relief provided . . . by
this agreement” if they do not first fall within the “Definition
of the Class.” Barahona-Gomez, 243 F. Supp. 2d at 1030-31;
see Cal. Civ. Code § 1638 (“The language of a contract is to
15861 SOTELO v. GONZALES

-- 5 of 8 --

govern its interpretation, if the language is clear and explicit,
and does not involve an absurdity.”); Botefur, 7 F.3d at 156
(“The interpretation of a settlement agreement is governed by
principles of state contract law. This is so even where a fed-
eral cause of action is settled or released.” (internal citations
and quotations omitted)). Only if petitioners are class mem-
bers can we then decide whether they are class members eligi-
ble for relief.
[3] In Section I(B) the Barahona-Gomez settlement defines
the class as follows:
all persons who have had (or would have had) sus-
pension of deportation hearings conducted before
April 1, 1997, within the jurisdiction of the Ninth
Circuit Court of Appeals, and who were served an
Order to Show Cause within seven years after enter-
ing the United States, where:
(a) the immigration judge reserved or withheld
granting suspension of deportation on the basis of
the . . . directive from Defendant Chief Immigration
Judge . . . ; or
(b) the suspension of deportation hearing was con-
cluded prior to April 1, 1997, the INS has appealed
or will appeal, at any time, on a basis that includes
the applicability of [the IIRIRA], and the case was
affected by the . . . directive[s] . . . ; or
(c) the Board of Immigration Appeals . . . has or
had jurisdiction but withheld granting suspension of
deportation (or reopening or remanding a case for
consideration of an application for suspension of
deportation) before April 1, 1997 on the basis of the
. . . directive from Defendant Board Chairman . . . .
Barahona-Gomez, 243 F. Supp. 2d at 1030-31 (emphasis
added). This definition makes plain that to be a member of the
15862 SOTELO v. GONZALES

-- 6 of 8 --

Barahona-Gomez class an immigrant must show that 1) he or
she had a suspension of deportation hearing before April 1,
1997 (or would have had a hearing but for the directives at
issue), and 2) where a case was before the BIA, that before
April 1, 1997 the BIA withheld granting suspension of depor-
tation (or a motion to reopen or remand for the purpose of
hearing an application for suspension of deportation) because
of a challenged directive.
[4] Petitioners fail to meet either “Definition of the Class”
element and are not members of this class. They did not have
a suspension of deportation hearing before April 1, 1997, nor
would they have had a hearing if the challenged directives had
not been issued. Petitioners did not seek suspension of depor-
tation until their March 6, 1998 motion to reopen deportation
proceedings. They also failed to meet Section I(B)(c) of the
settlement. The BIA did not “withhold” reopening petitioners
deportation proceedings before April 1, 1997 — petitioners
did not file their motion until March 1998. Nor did the BIA
“withhold” any consideration of (1) the motion to reopen or
(2) petitioners’ eligibility for suspension of deportation on the
basis of either directive. The BIA denied petitioners’ motions
to reopen on the ground that they failed to accrue seven years
of continuous presence in the United States under the
IIRIRA’s stop time rule, which had taken effect before the
motion was made.2 Thus, the BIA made a decision on the
merits of petitioners’ motion, not a decision to “withhold”
relief based on any directive challenged in Barahona-Gomez.
Since petitioners are not members of the Barahona-Gomez
class, they are not entitled to any relief contained in the settle-
ment agreement.
2We also reject petitioners argument that the BIA erred in applying the
IIRIRA’s stop time rule under Guadalupe-Cruz v. INS, 240 F.3d 1209 (9th
Cir. 2001). In Guadalupe-Cruz an Immigration Judge applied the stop
time rule before the IIRIRA took effect on April 1, 1997. Here, petitioners
first moved to reopen deportation proceedings in March 1998 and the BIA
denied the motion in August 1999, well after the stop time rule became
law. There was no error.
15863 SOTELO v. GONZALES

-- 7 of 8 --

This interpretation is consistent with the purpose of the
Barahona-Gomez settlement. The plaintiffs in that case suf-
fered harm as a result of the delay caused by the directives of
the Chief Immigration Judge and BIA Chairman. See
Barahona-Gomez, 167 F.3d at 1233. The remedy won in the
settlement is simply the opportunity to have their applications
for suspension of deportation heard under the law which
would have governed but for the delay. See Barahona-Gomez,
243 F. Supp. 2d at 1033.
[5] Since petitioners are not entitled to relief based on class
membership they are not “Eligible class members” under the
settlement agreement.
AFFIRMED
15864 SOTELO v. GONZALES

-- 8 of 8 --