Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1990)

MEMORANDUM

The Immigration and Naturalization Service (INS) appeals the district court's grant of a preliminary injunction. INS was enjoined from excluding, deporting, arresting, or incarcerating Dr. Alfredo Fernandez until further order of the Court. We modify the injunction and affirm it as modified.

BACKGROUND

Dr. Alfredo Fernandez, a citizen of Argentina, entered the United States on a visitor's visa in May 1984. He worked as a physician's assistant at a clinic for indigents. After extended years of study and several attempts, he passed the rigorous exams required of foreign medical students and was notified of his acceptance into a three-year pediatric residency at Monmouth Medical Center in New Jersey.

Shortly thereafter, Fernandez learned that his wife was having an affair with the private immigration attorney who had been seeking to regularize Fernandez' immigration status.¹  Fernandez quarreled with his wife, and was jailed overnight. The complaint was later dismissed. While Fernandez was in jail, Border Patrol Agent Hatton arrived as Fernandez was concluding a telephone conversation with his new attorney.²  Hatton proceeded to question Fernandez about his immigration status. The next morning, Fernandez' new attorney told Agent Hatton that he wanted to be present during any contact between Hatton and Fernandez, and they agreed that the three of them would meet a few days later.

Teixmen, a friend of Fernandez, called Agent Hatton. The substance of the conversation is disputed, but Hatton apparently thought he was being tested as part of an internal investigation, and his conversation "facilitated" a subsequent bribe offer by Teixmen. Hatton reported the conversation to his supervisor and then arranged a meeting with Teixmen and Fernandez the night before Hatton's scheduled meeting with Fernandez' attorney. Hatton told Teixmen that there was no legal alternative to deportation. While Fernandez was waiting outside, Teixmen offered to pay Hatton $1,000 as a "fine." Later the same night, Fernandez allegedly offered to pay $500 more. Teixmen and Fernandez were arrested for bribing a Border Patrol Agent. After Fernandez' arrest, and in the presence of his new attorney, the Border Patrol discovered that Fernandez possessed a counterfeit green card.

At deportation proceedings, Fernandez admitted that he overstayed his visitor's visa, conceded deportability, and was granted voluntary departure in lieu of deportation. Fernandez went to Canada to apply at a consulate for a J-1 visa to enter the United States as a foreign exchange medical student. The consulate denied him the visa and suggested that he apply in Argentina. Fernandez was temporarily paroled back into the United States, under 8 U.S.C. § 1182(d) (5), to permit him to stand trial.

At the bribery trial, the court granted a motion to suppress evidence and dismissed all charges against Fernandez. Judge Coughenour found that Agent Hatton actively encouraged a meeting with Fernandez after being told by Fernandez' new attorney that he should have no contact with Fernandez out of the attorney's presence. The court found that Hatton's actions were fundamentally unfair and that Fernandez would never have been charged if Hatton had respected Fernandez' right to counsel. The jury acquitted Teixmen of conspiring with Fernandez to bribe a Border Patrol Agent, but convicted Teixmen of offering a bribe. The jury foreperson told the judge that, "if he [Agent Hatton] had explained everything more fully at the very beginning this whole case never would have come about, there would have been no bribery."

While awaiting trial, Fernandez requested and was denied employment authorization, in part because of the pending prosecution. After his acquittal, Fernandez had very little time before he was scheduled to begin his residency. Fernandez requested an extension of parole "in the public interest" and work authorization, listing the following as factors in his favor: (1) the hospital would suffer extreme hardship if Fernandez could not begin work, because finding a substitute resident would be difficult on such short notice; (2) the INS action prejudiced his chances of obtaining a visa in Argentina; (3) he did not have the time or money to travel to Argentina, because of the time and money expended on a trial that resulted in a ruling that Fernandez had been treated unfairly; (4) INS failed to return to him the IAP 66 form necessary to obtain the visa.

INS denied Fernandez' parole request, reciting he did not fall within any of the enumerated categories for parole of a detainee, see 8 C.F.R. Sec. 212.5(a), and that hardship to his employer was also not an enumerated ground. Work authorization was denied because Fernandez was denied parole. The District Director also stated that: (1) permitting Fernandez to remain in the United States could give him the opportunity to divorce, marry a United States citizen, and become a permanent resident; (2) Fernandez produced no compelling reasons why he could not comply with normal nonimmigrant visa requirements, and (3) INS did not have his IAP 66 form and he could obtain another from his employer.

Fernandez immediately filed suit for declaratory and injunctive relief. After several hearings, Judge Coughenour issued a preliminary injunction that enjoined INS from excluding, deporting, arresting, or incarcerating Dr. Fernandez until further order of the court. Fernandez agreed to voluntarily depart the United States upon completion of his medical residency and not to seek a change of nonimmigrant status.

Judge Coughenour found that Fernandez would be irreparably harmed without the injunction, and noted the harm to the hospital as harm to the public interest. He also found that Fernandez raised serious questions about whether INS abused its discretion by denying parole under erroneous legal theories, because INS limited its evaluation to the categories applicable to parole requests for detainees. INS appeals, contending that the trial judge applied the wrong standard for review of the agency decision and abused his discretion in granting the preliminary injunction.³ 

ANALYSIS

We reverse a preliminary injunction if the issuing court used erroneous legal standards, relied on clearly erroneous findings of fact, or abused its discretion. United States v. BNS Inc., 858 F.2d 456, 460 (9th Cir. 1988); Lou v. Belzberg, 834 F.2d 730, 733 (9th Cir. 1987), cert. denied, 108 S. Ct. 1302 (1988).

Fernandez had the burden of demonstrating "either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardship tips sharply in his favor." Briggs v. Sullivan, 886 F.2d 1132, 1143 (9th Cir. 1989) (quoting Hunt v. National Broadcasting Corp., 872 F.2d 289, 298 (9th Cir. 1989)).

The government contends that the judge erred in not presuming irreparable injury to the government from denial of its enforcement scheme. FTC v. World Wide Factors, Ltd., 882 F.2d 344, 346 (9th Cir. 1989); Naval Orange Admin. Committee v. Exeter Orange Co., 722 F.2d 449, 453 (9th Cir. 1983). In both of the cited cases, the government sought a preliminary injunction to force compliance with regulations or prevent further fraud. We do not read the district judge's opinion as denying that the government has a strong interest in enforcing its immigration laws and regulations. The trial court found that even if INS would be harmed by an injunction, "denial of the requested relief would result in a far greater harm to Fernandez and the public interest." Fernandez prepared for many years to enter a medical residency program, and without the injunction he would have lost the opportunity to fulfill that dream. The hospital would have had difficulty replacing him. The district judge did not err in concluding that the balance of hardships tips sharply in favor of Fernandez.

3. Probable Success on the Merits/Raising Serious Questions

a. Standard of Review

The government contends that the district court erred by reviewing the agency decision under a "deferential abuse of discretion" standard. The court must affirm a denial of parole if the agency advanced "a facially legitimate and bona fide reason for the denial." Mason v. Brooks, 862 F.2d 190, 193-94 (9th Cir. 1988); Kleindienst v. Mandel, 408 U.S. 753 (1972). The Supreme Court in Jean v. Nelson, 472 U.S. 846, 853 (1985), describes this type of review as a "deferential abuse-of-discretion standard." Thus, the district court did not use the precise words of the standard of review adopted by this circuit, but used the Supreme Court's description of that standard. The error, if any, is harmless.

b. Agency Application of Parole Criteria

"The Attorney General may ... in his discretion parole [permit entry] into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest ..." 8 U.S.C. § 1182(d) (5) (A) (emphasis added). The terms "emergent reasons" and "in the public interest" have not been defined.

INS denied parole to Fernandez because he did not fall within the "enunciated" categories for determining whether to parole a detained alien. See 8 C.F.R. Sec. 212.5(a) (listing persons with emergency medical needs, pregnant women, juveniles, persons with close family relatives who could file a visa on behalf of the detainee, witnesses in legal proceedings, and detainees whose further detention is not in the public interest). INS found that "extreme hardship to a prospective employer is not an enunciated ground." Fernandez contends that INS could have considered hardship to the hospital as a reason in the public interest under 8 U.S.C. § 1182(d) (5) (A), even if it was not listed in 8 C.F.R. Sec. 212.5(a). The district court found that INS erred by simply finding that Fernandez did not fit within any category and then ending the inquiry without reference to the statutory criteria of emergency and public interest. Without determining the appropriate ultimate outcome of his claim, we agree that Fernandez raises serious questions as to whether INS applied the correct standard to his parole request.⁴ 

The INS denial letter lists several other reasons that arguably may not be "facially legitimate." For example, the denial letter pointed out that if Fernandez stayed in the United States he could divorce, marry a United States citizen, and possibly become a permanent resident. INS could use that logic to deny parole to virtually any aliens. There is at least a serious question whether the fact that an alien may divorce and remarry should be a factor in the determination whether to grant him parole.

The denial letter also states that Fernandez showed no "compelling or justifiable" reasons why he could not comply with the normal immigrant visa process. That conclusion arguably ignores the possibility that INS unjustifiably prejudiced Fernandez chances for a visa by its actions in connection with his criminal charges. The later INS affidavit supporting the denial of parole states, that "it is extremely unlikely that Mr. Fernandez could now obtain any type of nonimmigrant or immigrant visa from an American Consulate abroad." There is a serious question whether the causes of that condition were properly considered.

The Acting District Director's affidavit states that she found that parole for Fernandez was "not in the public interest," and relied on his prior history of immigration violations, not on false information about his qualifications as a doctor nor on his involvement in the bribery attempt. "It is routine and customary to deny parole applications by aliens having a past immigration history such as Mr. Fernandez's." However, the INS denial letter mentions immigration violations as a reason for its previous denial of work authorization, and does not list them as a reason for denial of the parole and work authorization requests before it. "A reviewing court must judge the propriety of an agency's actions solely on the grounds invoked by the agency." Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984); see also Jen Hung Ng v. INS, 804 F.2d 534, 538 (9th Cir. 1986) ("The BIA's denial of relief can be affirmed only on the basis articulated in the decision, and this court cannot assume that the BIA considered factors that it failed to mention in its decision.") Perhaps the INS Acting District Director could have considered Fernandez' immigration violations in making her decision to deny parole, but the INS denial letter does not indicate that she did so.

We conclude that Fernandez raised serious questions about whether INS applied erroneous legal theories to his parole request and whether INS denied parole for reasons that were not "facially legitimate." We do not decide that Fernandez must be granted parole; rather, we conclude that he has raised sufficient questions about the reasons given for the INS decision to support a preliminary injunction.

The preliminary injunction prevents INS from taking any action against Fernandez "until further order of the Court." It further states that Fernandez agrees to depart the United States upon completion of his medical residency and not to seek a change in his nonimmigrant status. It is unclear to us whether the district court intended its preliminary injunction to ensure that Fernandez could stay for three years until he has completed his residency. A preliminary injunction should "preserve the status quo pending a determination of the action on the merits." See Chalk v. United States Dist. Court Cent. Dist. of California, 840 F.2d 701, 704 (9th Cir. 1988); see also Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). We modify the injunction so that it extends until further order of the Court or until the underlying litigation is determined on the merits, whichever first occurs.

CONCLUSION

The district court did not abuse its discretion by preliminarily enjoining INS from taking action against Fernandez. The balance of hardships tips sharply in Fernandez' favor and he raises serious questions about whether INS applied the correct legal criteria to his parole request and whether its reasons for denial of parole were "facially legitimate." The preliminary injunction is modified to ensure that it shall not continue beyond the resolution of the underlying litigation. So modified, the injunction is affirmed.

PRELIMINARY INJUNCTION MODIFIED AND AFFIRMED.