                      Revised July 21, 1999

             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT


                       ___________________

                          No. 97-50872
                      ____________________



LUIS FERNANDO ALVIDRES-REYES; DANIEL NUNEZ; ROSANA DIAZ;
RICARDO FLORES; JOSE MANUEL LOPEZ; JUAN SEDILLO; MIGUEL
ANGEL PEREA; JULIO PUENTES; JOSE MANUEL ADAME; GENARO AMARO;
ARMANDO PALOMINO; VICENTE CHAVEZ; ESTELA HERNANDEZ; SANDRA
CASADO; JESUS REGALADO; EDUARDO RUBIO; ROBERTO VARGAS; JOSE
PILAR MORALES; ARTURO MARTINEZ; AMELIA TRUJILLO-CARMONA;
ESPERANZA GARCIA; FRANCISCA MEDRANO; GUADALUPE VASQUEZ;
LILIA GONZALEZ; PEDRO BARRIENTOS; ALFONSO JASSO; ROSA ELVA
OLIVAS; ELOISA MARTINEZ; ANA MARIA MARQUEZ; VERONICA GARDEA;
MARIA RAMIREZ; RAMIRO PAYAN DE SANTIAGO; ALBERTA OLIVAS;
MARIA REYES SEANES; RAMONA MARTINEZ; ESTELA GARCIA; JUAN
SEDILLO; GUILLERMINA JACQUEZ; MARIA IMELDA CHAVEZ; ARTURO
MARTINEZ FRACEL; NIDIA CORDERO; GERARDO CARREON AMAYA; MARIA
PATRICIA VARGAS; ROBERTO VARGAS; EDUARDO MONTOYA AGUIRRE;
GILBERTO DOMINUEZ SALCIDO; ALEJANDRO DOMINGUEZ SALCIDO;
ANGEL CORRALES; JORGE PINA QUIROZ; LILIA ANA DOMINGUEZ
BARRERA; MAR SOL FLORES; ALMA ALEJANDRA FLORES

                                              Plaintiffs-Appellants,

v.


JANET RENO, Attorney General of the United States; DORIS
MEISER, Commissioner, Immigration & Naturalization Service;
LUIS GARCIA, District Director, Immigration & Naturalization
Service

                                              Defendants-Appellees.


                      _____________________

      Appeal from the United States District Court for the
                    Western District of Texas
                      _____________________
                                    June 29, 1999

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

     The plaintiffs, fifty resident aliens, brought this suit for

mandamus, declaratory, and injunctive relief in the district court

seeking to       compel    the     Attorney     General     of    the   United   States

(“Attorney General”) and the Immigration & Naturalization Service

(“INS”)     to    consider       their     applications          for    suspension   of

deportation under a now-repealed provision of the Immigration and

Naturalization Act (“INA”) rather than the more onerous criteria

for cancellation of removal imposed by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.

No. 104-208, 110 Stat. 3009 (Sept. 30, 1996).

     The district court dismissed the complaint under Federal Rule

of Civil Procedure 12(b)(6) because the plaintiffs failed to state

a claim upon which relief could be granted.                  As the district court

pointed out, IIRIRA continues INA’s requirement that an alien must

be adjudged removable (formerly “deportable”) before he may apply

for cancellation          (formerly      “suspension”)      of    removal    (formerly

“deportation”).       IIRIRA also maintains the Attorney General’s

executive    discretion       to    decide      when   to   commence      proceedings,

adjudicate cases, and execute removal orders, which was formerly

established by comparable provisions of INA.                      Thus, the district

court was correct that, in the absence of these prerequisites, the

plaintiffs failed to state a claim to have the court require the

                                            2
Attorney General to allow the filing or consideration of the

plaintiffs’ applications to suspend deportation.

      There   is,    however,      a     more    fundamental     reason      that   the

plaintiffs’ cause cannot be heard –- the federal courts’ lack of

subject matter jurisdiction.            The exclusive jurisdiction provision

of IIRIRA, 8 U.S.C. § 1252(g), applies retroactively to deprive

courts of jurisdiction to hear any cause 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, subject to exceptions not applicable in the present case.

      The Congressional aim of § 1252(g) is to protect from judicial

intervention the Attorney General’s long-established discretion to

decide   whether     and    when    to    prosecute     or    adjudicate      removal

proceedings or to execute removal orders.                     If successful, the

plaintiffs’ suit would substitute a court order for the Attorney

General’s decision to initiate and adjudge removals and require her

by judicial fiat to consider the plaintiffs’ applications for

deportation    under       the   former     rather     than   the    current    legal

standards.     Consequently, the plaintiffs’ suit must be dismissed

because § 1252(g) protects from judicial intervention the Attorney

General’s exercise of her executive discretion whether to prosecute

and   adjudicate     removal       cases        by   depriving      the   courts    of

jurisdiction    to     hear      such    litigation     or    any    cause    arising

therefrom.     Accordingly, we vacate the district court’s judgment

and dismiss the plaintiffs’ complaint for lack of subject matter

                                           3
jurisdiction.

                I.    FACTUAL AND PROCEDURAL BACKGROUND

     The plaintiffs in this case are fifty illegal aliens who have

resided in the United States for at least seven years.           Beginning

in June 1996, the plaintiffs, only one of whom currently is in

deportation proceedings, submitted applications to the INS to be

declared deportable and to have their deportations suspended under

the less exacting pre-IIRIRA provisions of INA, codified at 8

U.S.C. § 1254.       In March 1997, before IIRIRA’s effective date of

April 1, 1997, defendant Luis Garcia, the INS district director,

allegedly selected at random 20 aliens, other than the plaintiffs,

for adjudication as deportable and for consideration of deportation

suspensions.     According to the plaintiffs, Assistant Director

Garcia took the position that, because of lack of personnel, no

more than 20 such cases could be handled without interfering with

the INS’s first priority of deporting alien drug offenders.

     In   enacting     IIRIRA,   Congress   repealed   the   suspension   of

deportation relief contained in § 244 of INA, 8 U.S.C. § 1254

(1982), replacing it with a new § 240A, 8 U.S.C. § 1229b (Supp. III

1997), entitled “Cancellation of Removal; Adjustment of Status.”

See IIRIRA §§ 304, 308(b)(7), 110 Stat. 3009-587, 3009-614 (1996).

Both the suspension of deportation relief afforded under now-

repealed § 244, and the new cancellation of removal provisions in

§ 240A, enable statutorily eligible applicants who have been


                                     4
adjudged deportable (or removable) to apply for discretionary

suspension (or cancellation) of deportation (or removal) and for

adjustment of the alien’s status to that of being lawfully admitted

for permanent residence.

     Before IIRIRA’s enactment, § 244 of INA permitted aliens with

seven years of residency to apply for suspension of deportation due

to extreme hardship to the alien or a close family member.1

Section 240A of IIRIRA requires that, to successfully apply for

suspension or cancellation of deportation, an alien must have ten


     1
       Section 244 provided in pertinent part:
          Suspension of deportation
          (a) Adjustment of status for permanent
          residence; contents
          As hereinafter prescribed in this section, the
          Attorney General may, in his discretion,
          suspend deportation and adjust the status to
          that of an alien lawfully admitted for
          permanent residence, in the case of an alien
          (other than an alien described in      section
          1251(a)(4)(D) of this title) who applies to
          the Attorney General for suspension of
          deportation and --
               (1) is deportable under any law of the
          United States except the provisions specified
          in paragraph (2) of this subsection; has been
          physically present in the United States for a
          continuous period of not less than seven years
          immediately preceding the date of such
          application, and proves that during all of
          such period he was and is a person of good
          moral character; and is a person whose
          deportation would, in the opinion of the
          Attorney General, result in extreme hardship
          to the alien or to his spouse, parent, or
          child, who is a citizen of the United States
          or an alien lawfully admitted for permanent
          residence.
8 U.S.C. § 1254(a)(1) (1988) (repealed 1996).

                                5
years of residency and show exceptional and extremely unusual

hardship to the alien’s spouse, parent, or child, who is a citizen

of the United States or an alien lawfully admitted for permanent

residence.2     8 U.S.C. § 1229b.        The new cancellation of removal

provisions    became   effective   180    days   after   the   date   of   the

enactment of the IIRIRA, i.e., April 1, 1997.        See IIRIRA § 309(a),

110 Stat. 3009-625 (1996); INS v. Yang, 519 U.S. 26, 29 n.1 (1996).

     On March 31, 1997, one day before the general effective date

of IIRIRA, the plaintiffs filed suit in district court seeking

mandamus,     declaratory,   and   injunctive     relief   compelling      the

defendants to adjudicate their applications for suspension of


     2
       Section 240A provides in pertinent part:
          Cancellation of removal; adjustment of status.
          . . .
          (b) Cancellation of removal and adjustment of
          status for certain nonpermanent residents
          (1) In general
                The Attorney General may cancel removal
          in the case of an alien who is inadmissible or
          deportable from the United States if the alien
          --
                (A) has been physically present in the
          United States for a continuous period of not
          less than 10 years immediately preceding the
          date of such application;
                (B) has been a person of good moral
          character during such period;
                (C) has not been convicted of an offense
          under section 1182(a)(2), 1227(a)(2), or
          1227(a)(3) of this title; and
                (D) establishes that removal would result
          in exceptional and extremely unusual hardship
          to the alien’s spouse, parent, or child, who
          is a citizen of the United States or an alien
          lawfully admitted for permanent residence.
8 U.S.C. § 1229b (Supp. III 1997).

                                     6
deportation under the more lenient, pre-IIRIRA provisions of INA.

In their complaint, the plaintiffs contend that they are eligible

for suspension of deportation under the pre-IIRIRA provisions of

INA; that,   despite   this   eligibility,   the   INS    has   refused   to

“process” their suspension applications; and that IIRIRA “takes

away their eligibility of present rights under Sec. 244(a) INA.”3

     The defendants filed a Rule 12(b)(1) and 12(b)(6) motion to

dismiss for lack of subject matter jurisdiction and for failure to

state a claim upon which relief may be granted.      The district court

did not reach the defendants’ jurisdictional challenge, concluding

that the plaintiffs stated no cause of action because illegal

aliens are not entitled to apply for suspension of deportation

under either § 244 of INA or § 240A of IIRIRA unless they have been

found to be deportable by an immigration judge.          Alvidres-Reyes v.

Reno, 981 F. Supp. 1008, 1010 (W.D. Tex. 1997).      The district court

also concluded that it lacked the power to compel the INS or the

Attorney General to initiate deportation or removal proceedings

against any of the plaintiffs because mandamus is not available to

compel the discretionary acts of executive officials. Id. at 1012.



       3
         The plaintiffs also alleged that the INS’s refusal to
consider their applications for suspension of deportation is
discriminatory, arbitrary, malicious, and violative of due process
and equal protection of the laws.      Thereafter, the plaintiffs
amended their complaint to allege a class action, and to allege
that, after the filing of the complaint, one of the plaintiffs,
Rosana Diaz, was arrested by the INS, which “now seeks to deport
her.”

                                   7
According to the district court, the Attorney General, who is

responsible for enforcing the deportation laws through the INS, has

complete discretion in initiating deportation proceedings.               Id. at

1012-13 (citing Johns v. Department of Justice, 653 F.2d 884, 889

(5th Cir. 1981)). Concluding that the plaintiffs were not entitled

as a matter of law to the relief sought, the district court

dismissed the action for failure to state a claim.                  This appeal

ensued.

                             II. DISCUSSION

     In dismissing the complaint for failure to state a claim on

which relief   can   be    granted,   the    district    court      declined    to

consider the defendants’ jurisdictional arguments. A federal court

of appeals has a duty to inquire into the basis of its jurisdiction

and of the jurisdiction of the district court.               New York Life Ins.

Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir. 1998).

     During the pendency of this appeal, the Supreme Court in Reno

v. American-Arab Anti-Discrimination Committee, 119 S. Ct. 936

(1999), held that IIRIRA § 1252 deprives the federal courts of

jurisdiction of a suit by resident aliens against the Attorney

General   seeking    to    prevent    the    initiation        of   deportation

proceedings against them, although the aliens’ suit was filed in

1987, and had been pending almost a decade before the enactment of

IIRIRA in   1996.     In   that   case,     the   INS,   a    division   of    the

Department of Justice, instituted deportation proceedings against


                                      8
eight resident aliens, charging them with being aliens who had

advocated world communism under the now-repealed McCarran-Walter

Act, see 8 U.S.C. §§ 1251 (a)(6)(D), (G)(v), and (H) (1982); and

charging six of them, who were only temporary residents, with

routine status violations such as overstaying a visa and failure to

maintain student status, 8 U.S.C. §§ 1251(a)(2) and (a)(9) (1988).

American-Arab, 119 S. Ct. at 938-39.       The aliens responded with

their own suit seeking declaratory and injunctive relief against

the Attorney General, the INS, and various immigration officials.

Id. at 939.    The aliens alleged, inter alia, that they were being

subjected to selective enforcement of the immigration laws in

violation of their First and Fifth Amendment rights because they

belonged to the Popular Front for the Liberation of Palestine. Id.

The aliens’ suit made four trips through the California federal

district court and the Ninth Circuit.     Id.     The Attorney General’s

last appeal was pending when Congress passed IIRIRA which, inter

alia, repealed the old judicial-review scheme set forth in 8 U.S.C.

§ 1105a and established a new (and significantly more restrictive)

one in 8 U.S.C. § 1252.      Id. at 940.        After the Ninth Circuit

affirmed the    existence   of   jurisdiction    under   §   1252   and   the

district court’s injunctions against the Attorney General, 119 F.3d

1367 (9th Cir. 1997), the Supreme Court granted certiorari, 118 S.

Ct. 2059 (1998).

     The Supreme Court in Reno v. American-Arab Anti-Discrimination


                                    9
Committee vacated the judgment of the Ninth Circuit and remanded

with instructions for it to vacate the judgment of the district

court “[b]ecause 8 U.S.C. § 1252(g) deprives the federal courts of

jurisdiction over [the aliens-]respondents’ claims[.]”      American-

Arab, 119 S. Ct. at 947.   Section 1252(g) provides:

           (g) Exclusive Jurisdiction
                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 Act.

8 U.S.C. § 1252(g) (Supp. III 1997).4     The Court stated that §

1252(g) does not cover “the universe of deportation claims” but

applies only to “three discrete actions that the Attorney General

may take: her ‘decision or action’ to ‘commence proceedings,

adjudicate cases, or execute removal orders.’”   American-Arab, 119

S. Ct. at 943.   The Court explained:

                There was good reason for Congress to
           focus special attention upon, and make special
           provision for, judicial review of the Attorney
           General’s discrete 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.     At each
           stage the Executive has discretion to abandon
           the endeavor, and at the time IIRIRA was


       4
         Section 1252(g) applies “without limitation to claims
arising from all past, pending, or future exclusion, deportation,
or removal proceedings.” IIRIRA, Pub. L. No. 104-208, § 306(c)(1),
110 Stat. 3009, 3009-612 (1996).

                                10
             enacted the INS had been engaging in a regular
             practice (which had come to be known as
             “deferred   action”)    of   exercising    that
             discretion for humanitarian reasons or simply
             for its own convenience. . . .          Section
             1252(g) seems clearly designed to give some
             measure of protection to “no deferred action”
             decisions     and    similar     discretionary
             determinations, providing that if they are
             reviewable at all, they at least will not be
             made the bases for separate rounds of judicial
             intervention outside the streamlined process
             that Congress has designed.

Id. at 943-44. (emphasis added) (other alterations in original)

(internal citations and footnote omitted). According to the Court,

“Section 1252(g) was directed against a particular evil: attempts

to impose judicial constraints upon prosecutorial discretion.” Id.

at 944 n.9.       The Supreme Court further said that “protecting the

Executive’s discretion from the courts . . . can fairly be said to

be the theme of the [IIRIRA] . . . .         It is entirely understandable

. . . why Congress would want . . . the discretion-protecting

provision of § 1252(g) applied even to pending cases:                  because that

provision     is    specifically       directed    at       the     deconstruction,

fragmentation, and hence prolongation of removal proceedings.” Id.

at 945. (examples omitted).

      Accordingly, the Court concluded that “[the aliens’] challenge

to   the    Attorney     General’s   decision     to   ‘commence      proceedings’

against them falls squarely within § 1252(g) –- indeed . . . the

language seems to have been crafted with such a challenge precisely

in   mind    -—    and   nothing     elsewhere    in    §    1252    provides   for


                                        11
jurisdiction.”      Id.     Cf. § 1252(a)(1) (review of final orders); §

1252(e)(2)       (limited    habeas    review     for   excluded     aliens);   §

1252(e)(3)(A)       (limited    review       of   statutes     and   regulations

pertaining to the exclusion of aliens).

     In    the    present    case,    the    plaintiffs-aliens,      in   effect,

challenge the Attorney General’s refusal to initiate proceedings,

adjudicate them deportable, and consider their applications for

suspension of deportation.           Plaintiffs do not explicitly pray for

the court to order the Attorney General to initiate proceedings or

adjudicate       their    deportability.          If    successful,       however,

plaintiffs’ suit would compel the Attorney General to do so in

order     to     consider    their     applications      for    suspension      of

deportation.5       Thus, the plaintiffs’ suit necessarily calls for


    5
      The district court concluded that because the plaintiffs had
not been made subject to a deportation proceeding and found
deportable by an immigration judge, they were ineligible to apply
for suspension of deportation relief under pre-IIRIRA § 1254(a)(1).
Alvidres-Reyes, 981 F. Supp. at 1010.
     We agree with the district court that the decision on
suspension of deportation (now termed “cancellation of removal”)
must be made in a pending deportation proceeding.
     The    current   regulations   governing    applications   for
cancellation of removal provide that “[a]n application for the
exercise of discretion under Section 240A of the Act shall be
submitted . . . to the Immigration Court having administrative
control over the Record of Proceeding of the underlying removal
proceeding under section 240 of the Act.” 8 C.F.R. § 240.20(a)
(1999) (emphasis added). Furthermore, these regulations provide
that the “application may be filed only with the Immigration Court
after jurisdiction has vested pursuant to § 3.14 of this chapter.”
8 C.F.R. § 240.20(b) (1999) (emphasis added). “Jurisdiction vests,
and proceedings before an Immigration Judge commence, when a
charging document is filed with the Immigration Court by the
Service [INS].” 8 C.F.R. § 3.14(a) (1999).

                                        12
judicial intervention to reverse the Attorney General’s exercise of

her discretion to not commence proceedings against the plaintiffs

and to not adjudicate their deportations, which necessarily was

included within her refusal to entertain their applications for

suspension of deportations.

      We conclude from the Supreme Court’s discussion in American-

Arab, and the authorities cited and quoted therein, that the

Attorney   General’s      executive   discretion     to   decide   or    act   to

commence proceedings always has been considered inherently to

include the ability to choose not to do so.                    Otherwise, the

Attorney General would have no power of free decision or latitude

of choice with respect to the commencement or deferral of removal

proceedings.     As was noted in American-Arab, “at the time IIRIRA

was enacted the INS had been engaging in a regular practice (which

had come to be known as ‘deferred action’) of exercising that

discretion     for     humanitarian   reasons   or    simply    for     its    own

convenience.”        American-Arab, 119 S. Ct. at 943.       “‘[T]he INS may

decline to institute proceedings, terminate proceedings, or decline

to execute a final order of deportation.’”            Id. at 944 (quoting 6


     Thus, pursuant to these regulations, which have the force and
effect of law, an application for discretionary cancellation of
removal may be filed only after an Immigration Court is vested with
jurisdiction over a removal proceeding by the filing of a charging
document by the INS.     In this case, with the exception of one
plaintiff, the INS has not filed a charging document. Therefore,
those plaintiffs against whom no charging document has been filed
may not apply to the Immigration Court for cancellation of removal.


                                      13
CHARLES GORDON   ET AL.,   IMMIGRATION LAW   AND   PROCEDURE § 72.03[2][h] (1998)).

“‘[I]n    each    such     instance,    the        determination         to    withhold   or

terminate deportation is confined to administrative discretion. .

.   .’”    Id.        (quoting    6 GORDON     ET    AL.,      supra   §      72.03[2][a]).

Consequently, judicial intervention in cases in which the Attorney

General has exercised her discretion not to commence proceedings or

adjudicate       cases        would    interfere          with     her        discretionary

determinations and lead to the deconstruction, fragmentation, and

hence prolongation of removal proceedings at which the Supreme

Court concluded that § 1252(g) is directed.                       See id. at 945.

                                   III. CONCLUSION

      For the foregoing reasons, we conclude that the federal courts

lack jurisdiction to hear the plaintiffs-aliens’ challenge to the

Attorney General’s decision to decline to commence proceedings or

to adjudicate deportations, or to hear the plaintiffs’ claim for

suspension       of    their     deportations        which       concomitantly        arises

therefrom.        All    of    these   causes       and       claims   fall     within    the

discretion-protecting            provisions         of    §    1252(g),       which   apply

retroactively even to pending cases.                      Therefore, we vacate the

judgment of the district court and dismiss this suit for lack of

jurisdiction.



VACATED AND DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION




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