### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 07/14/99 THOMAS K. KAHN CLERK

* This decision is rendered by a quorum, due to Judge Henderson’s death on May 11, 1999. 28 U.S.C. § 46(d). [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 98-4616

________________________ D. C. Docket No. 1:97-805-CV-King

ROBERTO TEFEL, et al., Plaintiffs-Appellees,

versus
JANET RENO, et al., Defendants-Appellants.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (July 14, 1999)
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge. * HULL, Circuit Judge:2 This class action involves the application of the recently enacted “stop-time” rule for determining eligibility for susp ension 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 ineligib le for “suspension of deportation” under section 244 of the Immigration and Nationa lity Act (“INA”) prior to the repeal of INA § 244 by IIRIRA. After review, we v acate 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 Rule1 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. 3 Prior to IIRIRA’s amendments to the INA, an alien facing deportation could apply for “suspension of deportation.” Inorder to be eligible for suspension of deportation, an alien was required to esta blish four factors. INA §§ 244(a)(1) & (2), 8 U.S.C. §§ 1254(a)(1) & (2) (1991). On e 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 deporta ble 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-ofdeportation provision of INA § 244 and replaced it with new INA § 240A providing for the “cancellation of rem oval.” IIRIRA § 304(a). IIRIRA also enacted the “stop-time” provision for determining an alien’s eligibility for suspension of deportation or cancellati on 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 resided2 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 4 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 rem oval if, among other things, the alien “has been physically present in the United Stat es for a continuous period of not less than 10 years immediately preceding” the appli cation 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 conti nuous physical presence in the United States is deemed to end once the alien has beenserved with a “notice to appear” for removal proceedings or commits a cr iminal 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 “stoptime” rule applied to aliens who had app lied for suspension of deportation prior to IIRIRA’s enactment. Matter of N-J-B , Int. Dec. 3309 (BIA 1997). 3 Citing IIRIRAAttorney 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. - Paragraphs (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 § 309(c)(5), which provides the “Transiti onal 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 before the September 30, 1996 date of IIRIRA’s enactment. 4 Under the 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, ev en 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 st op-time provision. The asserted Plaintiff class consisted of aliens from vari ous countries including Nicaragua, Haiti, Malaysia, and Iran. All of the Plaintiffs had entered the United States more than5 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 seven years earlier but were placed in de portation proceedings before they had accumulated seven years of continuous phys ical 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 stoptime 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 the7 putative Plaintiff class. Plaintiffs also sought to enjoin the INS from applying the stop-time rule to any aliens in deporta tion 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 (1991), Jean v. Nelson , 727 F.2d 957 (11th Cir. 1984), aff’d on other grounds , 472 U.S. 846 (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. Ku rzban, as lead counsel, was particularly qualified to represent the class. Although Plaintiffs had moved for “pr ovisional” class certification, the district court apparently granted Plainti ffs final class-action status. The court’s May 20, 1997 order did not limit the certification to “provisional” certification, and8 the record does not indicate that the district court subsequently granted class certification. Indeed, in its subsequentorder 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) provi ded that the stop-time provision in INA § 240A(d) applied only to aliens who a pplied 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 relief – (a) irreparable harm from class members being deported and in many cases separated from their families, (b)9 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 inj unction 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 eff ective date of April 1, 1997. B. Evidentiary Hearing and P reliminary-Injunction Order The district court’s May 20, 1997 order set a preliminary-injunction hearing for May 27, 1997. The parties presente d some evidence and testimony on May 27 but were unable to present a full case. A ccordingly, 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, th e parties conducted discovery and, on several days during this period, appeared before the magistrate judge for further presentation of evidence.10After the proceedings before the magistrate judge on the preliminaryinjunction 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 Plai ntiffs had established irreparable harm, and that the balance of the harms and th e 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. First, the Court adopted the magistrate judge’s finding that Plaintiffs had established that the irreparable-harm, balance-of-the-harm, and public-interes t 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. A ccording to the district court, the INS6 Of course, by referring to equal protection, the district court was relying on the equalprotection component of the Fifth Amendment’s Due Process Clause. 11 induced the Nicaraguan class members into applying for suspension of deportation but then moved to pretermit these appli cations 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 whic h 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 viola tion of equal protection. 6 The court found that aliens who “came forward” to be placed in deportati on proceedings before reaching the sevenyear physical-presence requirement and who “won their suspension case[s]” were deemed ineligible for suspension. Conve rsely, according to the district court, aliens who “evaded the INS successfully for seven years” could become eligible for suspension. The district court concl uded that “any scheme which grants relief to person who did not come forward and denies relief to persons who did come forward is irrational and in vi olation of equal protection.” Likewise, the district court noted thatthe stop-time rule precludes an alien from accumulating time toward the physical-presence requirement as soon as the7 It is important to note that although the district court couched its holding in terms of the application of the stop-time 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. 12 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 chargi ng 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: 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 Plainti ff 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

. IV. Developments Following Entry of Preliminary Injunction
A. Enactment of NACARA13 Subsequent to the entry of the prelim inary injunction, Congress enacted, and the President signed the Nicaraguan and Cen tral American Relief Act, Pub. L. 105- 100, 111 Stat. 2160 (1997) (“NACARA”). On December 2, 1997, the President also signed into law technical amendm ents to NACARA. Public L. No. 105-139, 111 Stat. 2644 (1997). A number of NACARA’s ame ndments 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 s how 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 ambiguityin 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 st op-time provision applies to aliens who were facing deportation and/or had app lied for suspension of deportation before IIRIRA’s enactment, because it precludes any argument that the reference to “notices to appear” suggested that Congr ess intended the stop-time rule to apply only to post-IIRIRA removal proceedings, which are initiated with “notices to appear.”14 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 suspen sion of deportation without being subject to the stop-time provision. Moreover, NACARA allows qualified aliens from Nicaragua and Cuba to bypass the suspen sion-of-deportation 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 we re 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 longe r valid in light of NACARA § 203(a), which clarified that Congress intended th e stop-time rule to apply to aliens in deportation proceedings before IIRIRA’s enactment.15 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 in terpreted 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 alie ns 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. However, the court held that not all of the Plaintiffs from these countries n ecessarily 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 “[a]lthough NAC ARA 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.16 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 rema ins appropriate for this case and if so, whether the remaining Plaintiffs are proper class representatives.17 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 thirty-five Plaintiffs, thirty-three have received, or ar e 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 Ge neral. Of the four remaining nonNicaraguan Plaintiffs, the claim of one Pl aintiff is almost certainly moot, and another may be eligible for relief fro m deportation other than suspension. Therefore, only two of the original thirty-nine named Plaintiffs/Plaintiff families face the same situation that prompted th e 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 resident s under NACARA: (1) Roberto Tefel, (2) Leonel Martinez, (3) Lorena Garcia (4) An a 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) Dudl ey Rocha-Petterson, (20) Ernesto Torres8 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. 18 Sandoval. 8 Similarly, two of the original Nicaraguan Plaintiffs became lawful permanent residents prior to NACARA – (21) Carlos Morales and (22) Lucrecia Raudes. Of the remaining thirteen named Plai ntiffs, the following three are awaiting a hearing on the adjustment of their status to that of lawful permanent residents: (23) Douglas Membrano-Murillo and Dama rys 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 administrativ e 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 th e 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.19 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, Alexandr a Charles, may be eligible for relief under the Haitian Refugee Fairness Act, whic h also was signed into law while this case was on appeal. Therefore, only two named Plaintiffs ar e 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 ag ainst Ms. Aidenzhad or when the immigration judge granted Ms. Aide nzhad suspension. Subalecthumy Vengadasalm is an alien from Malaysia. On November 8, 1996, the immigration judge granted her suspension of deportati on, and the INS appealed this decision based upon the stop-time rule.20 Because there are Plaintiffs whose clai ms 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 classaction 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. 1996). 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 w ould 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.
VI. Jurisdiction9 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. 21 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 particularlyon 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 app eals. McNary v. Haitian Refugee Ctr., Inc. , 498 U.S. 479 (1991); Jean v. Nelson , 727 F.2d 957 (11th Cir. 1984), aff’d on other grounds , 472 U.S. 846 (1985); Haitian Refugee Ctr. v. Smith , 676 F.2d 1023 (5th Cir. Unit B 1982). Because Plaintiffs’ cl aims are within the narrow category of claims that the pre-IIRIRA 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 , Jeanand Smith . Likewise, because IIRIRA’s transitional provisions, rather than IIRIRA’s complete amendmen ts to the INA, govern jurisdiction over Plaintiffs’ claims, IIRIRA did not deprive the district court of jurisdiction. 922 In Haitian Refugee Center v. Smith , 676 F.2d 1023, 1033 (5th Cir. Unit B 1982), this Court held that the exclusiv e 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 constitu tional 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 fina l orders of deportation . . . made against aliens within the United States pursu ant 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 th ese irregularities may provide a basis for reversing an individual deportation order . . . .” Id. at 1033 (emphasis in original). Thus, this Court in Smithrecognized 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.23 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 whom a final order of exclusion has been made heretofore or hereafter . . . may obtain judicial review of suchorder 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 di strict 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 Jeandid not swallow the general rule of the exclusivity of the INA’s judicial-review procedures, in both cases, this Court carefully noted the lim ited 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 ruli ng in a deportation proceeding with which an alien is dissatisfied.” 676 F.2d at 1033. We further noted that such an attempt24 to assert district-court jurisdiction would constitute an “end-run around the administrative process” and would be in consistent 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-themill interlocutory procedural rulings by animmigration judge with which an alien happens to disagree.” Id. After this Court decided Smithand Jean , the Supreme Court employed similar reasoning in McNary v. Haitian Refugee Center, Inc. , 498 U.S. 479 (1991). At issue in McNarywere the judicial-review procedures governing INS decisions made regarding a special amnesty progr am for agricultural workers. These judicial-review provisions provided that “[t]here shall be no administrative or judicial review of a determination resp ecting an application for adjustment of status under this section except in acco rdance with this subsection” and that “[t]here shall be judicial review of suchdenial 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 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 “judicial10 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

25 review of such denial” in INA § 210( e)(3)(A) indicated that these provisions governed jurisdiction over singular, indi vidual amnesty applications and not “general collateral challenges to unconstitu tional practices and policies used by the agency in processing applications.” Id. ; see also Reno v. Catholic Soc. Serv., Inc. , 509 U.S. 43, 55 (1993) (holding that provisions “virtually identical” to the provisions at issue in McNary did not preclude district-court jurisdiction over challenges to a regulation implementi ng 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, Plain tiffs allege, and the district court found, that the application of the stop-time provisi on 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 conclu sion that the pre-IIRIRA INA did not require that Plaintiffs’ claims be asserted through a petition for review in the court of appeals. 10judicial-review scheme do not apply to this cas e 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 th e 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). 26 The INS argues that INA § 242(g), which applies in transitional cases, precludes district-court jurisdiction over Plaintiffs’ claims. 11 The INSacknowledges the Supreme Court’s decision in Reno v. American-Arab AntiDiscrimination Committee , 119 S. Ct. 936 (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 C ourt in American-Arab narrowly construed INA § 242(g) as applying only to the three discrete di scretionary actions described in INA § 242(g) – the “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, judicial27 review of the Attorney General’s disc rete acts of ‘commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders’--which represent the initiation or prosecution of various stages in the deportation process.”) Plaintiffs’ challenges to the application of the st op-time rule to pending applications for suspension involve constitutional challenge s to legislation specifically mandating such an application of the stop-time rule. Plaintiffs’ claims do not challenge the Attorney General’s exercise of her disc retion to commence proceedings, adjudicate cases, or execute removal orders. Thus, INA § 242(g) does not alter the jurisdiction, recognized by this Court in Smithand Jean , over class-wide allegations of constitutional violations by the INS. Having determined that the district c ourt 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 viol ation 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 c ourt held that the application of the stop-28 time rule to pending applications for suspension of deportation deprived Plaintiffs’ of a “liberty or property” interest th at 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 1342 (11th Cir. 1999) (citing Mathews v. Diaz , 426 U.S. 67 (1976) , for the proposition that “statutes which discriminate within the class of aliens comport w ith the Due Process Clause of the Fifth Amendment (and the equal protection principles it incorporates) so long as they satisfy rational basis scrutiny.”). Unde r rational-basis scrutiny, a statute is “accorded a strong presumption of validity” and will be upheld if “any reasonably conceivable state of facts” could demonstrat e that the statute is rationally related to a legitimate government purpose. Heller v. Doe , 509 U.S. 312, 319-320 (1993); Rodriguez , 169 F.3d at 1350. “A classificati on 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 – illogical, it may be, and unscientific.” Heller , 509 U.S. at 321.29 In this appeal, the stop-time rule of INA § 244A(d)(1), and IIRIRA § 309(c)(5)’s application of the stop-time ru le to aliens in deportation proceedings prior to IIRIRA’s enactment, are rati onally related to legitimate government purposes. Congress intended the stop-tim e 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 un til 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 pro ceedings) 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 St ates. The fact that some aliens might successfully evade service of the notice to appear does not diminish the rationality30 of the stop-time rule. In this sense, th e stop-time rule is no more irrational than Rule 4(m) of the Federal Rules of Civ il Procedure, which by allowing the dismissal of a complaint when service is not perf ected within 120 days, also “rewards” a person who can successfully evade service.
B. Procedural-Due-Process Claim The procedural component of the Fi fth 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. Th e 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 cl aim based on an alleged denial of procedural due process a court must first decide whether the complaining party has been deprived of a constitutionally protect ed 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 pr otectable interest which triggers the safeguards of the due process clause. Inshort, we must determine whether the individual interest threatened by the administrative action in this case ‘is one31 within the contemplation of the “(life), lib erty or property” language of the Fifth Amendment.’”) (citations omitted). The district court found that the INS’ actions gave rise to a protectable “liberty or property interest.” It not ed the various actions taken by the INS to encourage aliens, particularly Nicara guan aliens, to apply for suspension of deportation. For example, the INS adopted a policy of not opposing motions to reopen deportation proceedings filed by Ni caraguan 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 appli cation 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 cannotarise from relief that the executive exercises unfettered discretion to award. Connecticut Bd. of Pardons v. Dumschat , 452 U.S. 458, 465 (1981). In Dumschat , the Supreme Court held that a state inmate does not enjoy a constitutionally protected liberty interest in having his or32 her sentence commuted, even where th e state “consistently” commuted the sentences of inmates in “most” cases. Dumschat , 452 U.S. at 464-65. The Court reasoned that “a constitutional entitlement cannot ‘be created – as if by estoppel – merely 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 (1979). Instead, according to the Court, “[ i]n terms of the Due Process Clause, a . . . felon’s expectation that a lawfully im posed sentence will be commuted or that he will be pardoned is no more substantial thanan inmate’s expectation, for example, that he will not be transferred to anothe r prison; it is simply a unilateral hope.” Dumschat , 452 U.S. at 465. More specifically, this Court has held th at 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 “parol ed” 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 cat egory for Cuban and Haitian aliens. Id. According to the aliens in Garcia-Mir , these actions limited the INS’ discretion in making parole determinations and ther eby created a constitutionally protected33 liberty interest. Id. This Court acknowledged thatthe 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 constitutional entitlement.” Id. at 1451 (quoting Dumschat452 U.S. at 465). 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 thatthe aliens lacked a liberty interest in being paroled. Garcia-Mir , 788 F.2d at 1452 (quoting Olim v. Wakinekona , 461 U.S. 238, 249 (1983)); see also Rodriguez v. Reno __ F.3d __, Nos. 98-4426 & 98- 5878 (11th Cir. June 22, 1999) (holding that an ineffective-assistance-of-counsel claim cannot arise from an alien’s failure to receive suspension because of the Attorney General’s unfette red discretion in granting or denying suspension). Moreover, Garcia-Mir also illustrates that awarding and then revoking discretionary relief does not offe nd due process. In Garcia-Mir , the INS had paroled certain Cuban aliens into the Un ited States but had subsequently revoked their parole. Rejecting the constitutional cl aims of these Cubans, we observed that absent rules constraining official disc retion “one merely has an expectancy reinforced by a system capable of granti ng or withholding that liberty.” 788 F.2d34 at 1453. Thus, this Court concluded thatthis 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 Garcia-Mir , the aliens sought discretionary parole while awaiting further proceedings, and in this case, Plaintiffs seek to apply for discretionary suspension of deportati on. In both cases, the federal government had taken actions that created an expectancythat 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 Gene ral possesses broad discretion in awarding suspension of deportation. See, e.g. INS v. Yueh-Shaio Yang , 519 U.S. 26, 29 (1996) (noting the Attorney General’s “unf ettered discretion” to award suspension of deportation and observing the parallels between suspension and an executive35 pardon); Jay v. Boyd , 351 U.S. 345, 354 (1956) (noting that suspension of deportation is an “act of grace” like th e “probation or suspension of criminal sentence”). Indeed, Plaintiffs have not ev en attempted to argue that the Attorney General’s discretion to grant or deny susp ension of deportation is limited by statute or regulation. Thus, because suspensi on remains a purely discretionary “act of grace” and Plaintiffs have not identifie d 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” interestattendant 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 re ndered 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 F2d at 1037. No constitutionally protected interest arises from the INS’ actions in granting or denying applications for suspension because the Attorney Genera l 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 th eir expectancy of receiving suspension.36 Thus, just as Plaintiffs enjoy no “liberty orproperty” interest in their expectancy of receiving suspension of deportation, they enjoy no “liberty or property” interest in being eligible to be considered for suspen sion. Accordingly, being ineligible for suspension does not deprive Plaintiffs of a constitutionally protected 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 (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 (“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 en acted. 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 proceedi ngs 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 conduc t, or impose new duties with respect to37 transactions already completed.” Landgraf , 511 U.S. at 269 & 280 (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 rule s.” 511 U.S. at 280. No one disputes that, in enacting NACARA § 203(a)(1), Congress mandated the application of the stoptime rule to aliens agains t whom deportation proceedi ngs 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 retro active application of new statutes because Congress expressly provided for th is “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 existe nce 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)38 However, the Supreme Court has neve r resolved whether, and in what manner, the doctrine of equitable estoppe l 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 (1990) (“In sum, Courts of Appeals have taken our statements as an invitation to search for an appropriate case inwhich to apply estoppel against the Government, yet we have reversed ev ery 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 (1984); Richmond , 496 U.S. at 423-24 (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 the government depends on a showing of affirmative misconduct. Richmond , 496 U.S. at 421 (“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, (1982) (per curiam ) (“This case does not require us to reach the question we reserved in Hibi ,39 whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws”); INS v. Hibi , 414 U.S. 5, 8 (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 (1961), no conduct of the sort there adverted to was involved here.”); Montana , 366 U.S. at 314-15 (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 misconduc t. 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 , 86040 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 affirma tive 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 unn ecessary to reach the issue of whether a showing of affirmative misc onduct 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 estab lish 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 repeated ly has said that the government cannot be estopped on the same terms as a private party, if the government can ever be41 estopped. See, e.g., Heckler , 467 U.S. at 60. 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’ estoppel claim must be reversed. It is not clear whether the district court believed affirmative 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 notbelieve 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 physical-residence requirement for susp ension at the same time that the INS was encouraging Nicaraguan aliens to a pply for suspension of deportation. The Court conceded this evidence was not a “‘smoking gun’ on the Plaintiffs’ estoppel42 argument” but found it sufficient to justify discovery on possible misconduct by the INS. Therefore, it does not seem thatthe 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 a ffirmative 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 c ourt concluded that affirmative misconduct was an element of Plaintiffs’ estoppel claim, it erred in accepting Plaintiffs’ theory of misconduct. Assuming the INS was aw are of a “substantial likelihood” that Congress was going to alter the eligibilityrequirements for suspension, the INS’ contemporaneous actions did not constitu te 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 su spension applications. Compare Corneil-Rodriquez 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. A ttorney General of United States , 823 F.2d43 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 th e INS’ actions in encouraging suspension applications violated any statute or immi gration 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 th e 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 broa d. As defined, the class includes aliens who had applied for but been denied su spension of deportation and aliens who have never applied for suspension. Thus , the definition of the class appears to include aliens without claims that are ri pe for resolution. Reno v. Catholic Social44 Serv., Inc. , 509 U.S. 43, 58-59 (1993) (holding that aliens’ claims challenging the INS’ regulations interpreting the “conti nuous physical presence” requirement for legalization under the Immigration Refor m and Control Act of 1986 are not ripe until the aliens seek and are denied lega lization); Catholic Social Serv., Inc. v.
INS , __F.3d __, Nos. 98-16269 & 98-16423 (9th Cir. June 30, 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, almo st exclusively, on INS actions that were directed specifically at the Nicaraguan Plai ntiffs. 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 Nicara guan and non-Nicaraguan members of the class. Also, the class as defined by th e 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 tran sitional rules govern certain aspects of the deportation proceedings that began befo re 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 pro ceedings that began prior to April 1, 1997 and concluded befo re October 30, 1996.45 Moreover, the enactment of NACARA afte r 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 th e 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 reexam ine 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 distri ct court erred in entering its preliminary injunction and in denying the motion to dissolve the injunction. The district46 court’s preliminary injunction is VACATED , and this case is REMANDED for further proceedings consistent with this opinion.