From the Herald:
<<IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 00-11424
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D. C. Docket No. 00-206-CV-KMM
ELIAN GONZALEZ, a minor, by and through
LAZARO GONZALEZ, as next friend, or,
alternatively, as temporary legal custodian,
Plaintiff-Appellant,
v.
JANET RENO, Attorney General of the United States;
DORIS MEISSNER, Commissioner, United States
Immigration and Naturalization Service;
ROBERT WALLIS, District Director,
United States Immigration and Naturalization Service;
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE; and UNITED
STATES DEPARTMENT OF JUSTICE,
Defendants-Appellees,
JUAN MIGUEL GONZALEZ,
Intervenor.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 23, 2000)
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN
BANC
(Opinion __________, 11th Cir., 2000, ___ F.3d ___).
Before EDMONDSON, DUBINA and WILSON, Circuit judges.
PER CURIAM:
Our decision of 1 June hung largely on two ideas: (1) that the policy
adopted by the INS in this case -- a policy developed in what we
called "informal adjudication" -- was due "some deference" because
8 U.S.C. õ 1158(a) was silent on the precise question at issue and
because the INS had the duty to set how the statute was to be applied
when the statute was silent, and (2) that the level of deference due
the INS policy was strengthened -- becoming "considerable" -- when
we also took into account the foreign policy implications of the
administrative decisions dealing with immigration. Among other
things, our opinion spoke of Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 104 S. Ct. 2778 (1984).
When our opinion was written, we knew of Christensen v. Harris
County, 120 S. Ct. 1655 (1 May 2000), a Fair Labor Standards Act
(FLSA) decision. But no lawyer in this case had cited or argued
Christensen to us. More important, we thought that Christensen --
which involved no immigration law, no foreign policy
considerations, and no kind of agency adjudication -- was noncrucial
to this case. So, we never mentioned Christensen.
Now in the petition for rehearing, Plaintiff stresses Christensen.
Therefore, we will write briefly about it.
First, Christensen involved an opinion letter from the Department of
Labor giving advice to Harris County, Texas. The letter, in itself, did
not decide Harris County?s rights; it did not stop and did not purport
to be able to stop Harris County from acting against the advice given.
The letter was in no way binding on Harris County. And later when
Christensen arose as active litigation, Harris County was not sued by
the Department of Labor, but by private citizens: county employees
who contended that Harris County was misconstruing the FLSA. The
Supreme Court said that the administrative position taken in the
opinion letter was not due Chevron deference. As we read it, the
Supreme Court?s opinion also indicated that the view of the pertinent
statute taken in the opinion letter was wrong and unreasonable: "this
view is exactly backwards." Id. at 1663.
In our case, the INS did directly decide Plaintiff?s specific right to
file certain asylum applications under the pertinent statute and did so
after receiving and weighing some evidence. The INS acted in the
context of an actual and concrete dispute with and before that
agency. The INS decision was final and binding on Plaintiff unless
he, in effect, appealed it to a court. The sovereign power of the
United States -- per the INS and the Attorney General -- had
determined that neither Plaintiff himself nor Lazaro Gonzalez could
file for asylum on Plaintiff?s behalf over the objections of Plaintiff?s
father. This kind of administrative decisionmaking -- which we think
no one can seriously question was the deliberate and official position
of the pertinent agencies of the executive branch of our government
-- is substantially different from and more than the opinion letter in
Christensen. We considered the administrative decisionmaking in this
case to be adjudication and to be outside Christensen?s scope. In our
view, to apply Christensen to this case would not be following
Christensen, but would be an extension of Christensen.
Second, we thought, even when Christensen does apply,
administrative decisions of agencies are still due some deference.
And we believed that under Chevron or Christensen, when the
foreign-policy impact of immigration law was added as a separate
source of judicial deference, we were justified in exercising the
judicial restraint that marked our opinion. In addition, we did
conclude that the executive branch decisions under section 1158 were
reasoned and reasonable.
The petition for rehearing is DENIED; and no member of this panel
nor other Judge in regular active service on the Court having
requested that the Court be polled on rehearing en banc, the Petition
for Rehearing En Banc is DENIED.
The mandate of this court will issue on Wednesday, 28 June 2000, at
4:00 in the afternoon (Atlanta time). A filing of a motion to stay the
issuance of the mandate will not extend the time for the issuance
of the mandate. Expect no motions to stay the issuance of the
mandate to be granted. All injunctions in this case will dissolve on
Wednesday, 28 June 2000, at 4:00 in the afternoon (Atlanta time). All
further requests for stays or for injunctive relief should be directed to
the Supreme Court of the United States.
Entered for the Court:
/s/ J.L. EDMONDSON
UNITED STATES CIRCUIT JUDGE>> |
