1 5 U.S.C. § 701 et seq.

2 Immigration Act of 1990, § 310, Pub.L. No. 101-649, 104 Stat. 4978.

3 Pub.L. 99-603, 100 Stat. 3359. United States Court of Appeals,

Fifth Circuit.

No. 95-40186.

Adan Arturo HERNANDEZ, Individually and on behalf of all persons similarly situated, PlaintiffAppellant, Cross-Appellee,

v.

Janet RENO, in her official capacity as Attorney General of the United States, DefendantAppellee Cross-Appellant.

Aug. 21, 1996.

Appeals from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, and DeMOSS and DENNIS, Circuit Judges.

POLITZ, Chief Judge:

Adan Arturo Hernandez filed this action under the Administrative Procedure Act 1 challenging

the Immigration and Naturalization Service regulations implement ing the Family Unity Provision of

the Immigration Act of 1990. 2 The district court granted part ial summary judgment in favor of

Hernandez and partial summary judgment in favor of the Attorney General. Both parties appeal. We

modify and affirm in part, reverse in part, and remand.

Background

In 1985 Hernandez, then 14 years of age, made an undocumented entry into the United States

to join his father who had emigrated several years earlier. In 1990 his father obtained lawful

permanent resident status under the amnesty program of the Immigration Reform and Control Act

of 1986. 3 His father submitted a visa petition seeking to have Hernandez classified as the unmarried

child of a permanent resident alien under 8 U.S.C. § 1153(a)(2), which authorizes second preference

visas for unmarried children and spouses of permanent resident aliens.

The petition was granted. To avoid deportation while awaiting the grant of his permanent4 Cognizant of the statutory limit on the number of available visas, the district court noted the

likelihood that it would take four or more years before Hernandez could receive permanent

resident status.

5 The Family Unity Provision operates in conjunction with 8 U.S.C. § 1153 which sets forth the

criteria for a visa and the numbers of such visas which may be issued. The Family Unity Provision

provides that persons seeking visas under section 1153 may remain in the United States pending

action on their applications.

6 The summary judgment order states: residency, 4 Hernandez applied under the Family Unity Provision for "voluntary departure," paying

the $75.00 filing fee required by 8 C.F.R. §§ 103.7 and 242.6(e). 5 This application was approved but

it did not state that Hernandez was authorized to work; rather, it advised that if he chose to work

he could apply for employment authorization with the INS office having jurisdiction over his place

of residence. This process, which typically takes several months, required Hernandez to submit, i nter

alia, a Form I-765 application and a $60.00 filing fee. Hernandez complied and in due course the

INS issued the employment authorization document.

Hernandez and Elizabeth Castillo, a legal alien, currently live together with their child who

was born in the United States. The record reflects that they desire to marry but have not done so

because of their belief that marriage would jeop ardize Hernandez's Family Unity status. This

perceived impediment to marriage has caused great hardships for Hernandez and Castillo, who have

been ostracized by their families and the community for the deemed illicit cohabiting.

Hernandez, on behalf of himself and others similarly situated, filed this action under the APA

challenging certain regulations implement ing the Family Unity Provision. Specifically, he claims that

the INS may not require the filing of a separate application, with an additional filing fee, to ob t ain

authorization for employment. He also challenges the INS interpretation of the statute which requires

an alien seeking Family Unity status as the spouse or unmarried child of a legalized alien, to be such

not only on May 5, 1988, but continuously thereafter until permanent residency is granted.

The district court entertained cross-motions for summary judgment and held that the INS may

not require an alien eligible for Family Unity status to apply separately for employment authorization,

but that the fee associated with the work authorization request was reasonable. 6 Additionally, theThe court finds that once Defendant determines that an alien is eligible for

Family Unity status, she cannot require the alien to apply separately for

employment authorization or documentary evidence of such authorization,

which is inherent in the status.

The district court denied Hernandez's motion to alter or amend the judgment.

Fed.R.Civ.P. 59(e). Additionally, the court stated that to the extent the defendant sought

relief such was also denied. The ruling includes a "clarification" of the previous order on

the motions for summary judgment, stating:

The Order enjoins defendant from adopting or enforcing any regulation or

procedure that would require an alien with Family Unity status to apply separately

for a work permit. The Order does not prohibit sequential applications in instances

where the applicant chooses that option. The applicant, however, must be given

the option of simultaneous filing, and, in that event, the family unity status and

work permit must be issued at the same time.

The use of the phrase "simultaneous filing" suggests that two applications are

permitted provided they are filed at the same time. Such an interpretation, however,

appears contrary to the quoted summary judgment order. We conclude the district court

did not intend to amend its previous order, which unequivocally states that separate

applications are impermissible, considering its ruling on the Rule 59 motion, that, to the

extent the defendant sought relief from the adverse summary judgment, that relief was

denied.

7 Montgomery v. Brookshire, 34 F.3d 291 (5th Cir.1994).

8 5 U.S.C. § 706. court held that the INS regulation interpreting the Fa mily Unit y Provision requiring the alien to

maintain the same relationship throughout the pendency of his petition was a permissible construction

of the statute. In light of its resolution of the motions for summary judgment, the trial court denied

the motion to certify a class, despite finding that Hernandez satisfied the requirements of Fed.R.Civ.P.

23(a). Finally, the district court declared the offending regulation impermissible and enjoined its

enforcement. Both parties timely appealed.

Analysis

We review a grant of summary judgment de novo, applying the same standards as the district

court. 7 Under the APA, agency action is reviewed solely to determine whether it is arbitrary,

capricious, an a buse o f discretion, or otherwise not in accordance with law. 8 Under the rubric

announced by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council9 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

10 White v. I.N.S., 75 F.3d 213 (5th Cir.1996).

11 The INS maintains that Hernandez's challenge to these regulations is moot because he

received his employment authorization document before the district court ruled that requiring

separate applications violated the statute. The challenge is not moot because four years or more

may pass before Hernandez receives permanent resident status, thus making it likely that he will

be required to repeat the process at least once because Family Unity status is granted in two-year

increments. See Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)

(claim is not moot when it is capable of repetition yet evading review).

12 The term "eligible immigrant" means a qualified immigrant who is the spouse or unmarried

child of a legalized alien. Immigration Act of 1990, § 310, Pub.L. No. 101-649, 104 Stat. 4978.

13 Id. Inc., 9 an agency's interpretation of a statute whose administration is entrusted to it, generally is to be

accepted unless Congress has spoken directly on the issue. 10 If Congress has, we give effect to the

congress io nal int ent . If the language is ambiguous, we typically will defer to the agency's

interpretation.

A. Separate Application for Employment Authorization

Hernandez challenges the requirement that a qualifying applicant under the Fami ly Unity

Provision must file a separate application and pay an additional filing fee in order to obtain

employment authorization and documentation thereof. 11

The Family Unity Provision states, in relevant part:

The Attorney General shall provide that in the case of an alien who is an eligible immigrant

(as defined in subsection (b)(1)) [ 12 ] as of May 5, 1988, wh o has entered the Uni ted States

before such date, who resi des in t he United States on such date, and who is not lawfully

admitted for permanent residence, the alien (1) may not be deported or otherwise required

to depart from the United States

... a nd (2) shall be granted authorization to engage in

employment in the United States and be provided an "employment authorized" endorsement

or other appropriate work permit. 13

Cong ress unequivocally has mandated that eligible immigrants are entitled to: (1) a stay of

deportati on, (2) authorization to be employed in the United States, and (3) documentary evidence of

that authorization. The INS regulation requiring an eligible immigrant to apply separately for

employment authorization and documentation effectively reads the components we number (2) and

(3) above out of the statute. This the INS may not do; it has no power to either ignore clear14 The defendant states in a footnote that we lack jurisdiction on this claim because Hernandez

does not have standing and failed to exhaust his administrative remedies. No authority is cited

nor is a reasoned argument advanced and we do not consider these issues. L & A Contracting

Co. v. Southern Concrete Services, Inc., 17 F.3d 106 (5th Cir.1994). congressional intent or amend the legislation. The trial court did not err in finding and concluding

that the agency's mandated separate application procedure was arbitrary, capricious, and otherwise

not in accordance with the law.

B. Reasonableness of the Fee

Hernandez contends that the district court should have certified a class of all similarly situated

persons so that the fees they paid to obtain employment authorization and documentation could be

returned. To address these contentions we first must determine whether the fee assessed was

reasonable. The district court held that the "defendant can require one reasonable fee for processing

the application and issuing whatever documents she decides are appropriate for evidence of status

and permission to work." In addressing the reasonableness of the fee, ho wever, the district court

apparently did not consider the aggregate fee charged p erso ns applying under the Family Unity

Provision. We view this as the proper inquiry, given the trial court's holding, which we affirm, that

requiring separate applications is violative of the statute.

We therefore must remand to the district court so that it might consider whether the aggregate

fee charged herein was reasonable. If the district court determines that the fee was unreasonable, it

sh o uld co nsider the propriety of certifying a class and conducting further proceedings consistent

therewith.

C. Based on Same Relationship Requirement

Hernandez challenges the req uirement imposed by 8 C.F.R. § 242.6(c)(1)(ii) that an

applicant's cl aim t o eligibility for Family Unity status be "based on the same relationship" to a

legalized alien as the relationship the person had on May 5, 1988. 14 The district court deferred to the

INS interpretation of the statute, citing Chevron.

Chevron deference does not lie where the intent of Congress is clear from the words of the15 Sullivan v. Everhart, 494 U.S. 83, 89, 110 S.Ct. 960, 964, 108 L.Ed.2d 72 (1990) (citing

Chevron ).

16 Bresgal v. Brock, 843 F.2d 1163 (9th Cir.1987). See also Washington v. Reno, 35 F.3d

1093 (6th Cir.1994) (upholding a nationwide preliminary injunction before class certification

because it was necessary to provide relief).

17 None of the cases cited by Hernandez support the scope of the injunction. See e.g., Bailey v.

Patterson, 323 F.2d 201 (5th Cir.1963), cert. denied, 376 U.S. 910, 84 S.Ct. 666, 11 L.Ed.2d

609 (1964) (refusing to reach the propriety of certifying a class action where the plaintiff seeks

desegregation because the nature of the right sought to be vindicated requires the decree to run to

the benefit of others similarly situated); United Farmw orkers v. City of Delray Beach, Fla., 493

F.2d 799 (5th Cir.1974) (same). statute, but rather only where a statute is "silent or ambiguous with respect to the specific issue...." 15

The statute requires that Hernandez be the spouse or unmarried child of a legalized alien on May 5,

1988. It requires no more. The INS regulation adding a requirement t hat t he alien continuously

maintain that same relationship is in conflict with the plain language of the statute. Our duty is to give

effect to the clear, unambiguous intent of Congress. Whether Hernandez marries after May 5, 1988

is irrelevant to the inquiry under the Family Unity Provision of the Immigration Act of 1990.

D. Scope of the Injunction

The defendant contends that the district court's injunction is overly broad. The injunction

provides:

It is ORDERED that Defendant is permanently enjoined from promulgating or enforcing any regulations or procedures that would require an alien with Family Unity status to apply

separately for a work permit.

Class-wide relief may be appropriate in an individual action if such is necessary to give the

prevailing party the relief to which he or she is entitled. 16 The breadth of the injunction issued by the

trial judge in this case, however, is not necessary to remedy the wrong suffered by Hernandez. 17 The

injunction is modified to apply to Hernandez only. Should the district court determine to certify a

class per our remand, this question of the breadth of the injunction may, in the trial court's discretion,

be revisited.

We MODIFY and AFFIRM in part, REVERSE in part, and REMAND for further

proceedings consistent herewith.