                                                                               [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                      FILED
                                                                 U.S. COURT OF APPEALS
                             ________________________              ELEVENTH CIRCUIT
                                                                        07/14/99
                                                                    THOMAS K. KAHN
                                    No. 98-4616                          CLERK
                             ________________________

                         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:




       *
         This decision is rendered by a quorum, due to Judge Henderson’s death on May 11,
1999. 28 U.S.C. § 46(d).
      This class action involves the application of the recently enacted “stop-time”

rule for determining eligibility for suspension 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 ineligible for “suspension of deportation” under

section 244 of the Immigration and Nationality Act (“INA”) prior to the repeal of

INA § 244 by IIRIRA. After review, we vacate 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 Rule


                                          2
       Prior to IIRIRA’s amendments to the INA, an alien facing deportation could

apply for “suspension of deportation.” In order to be eligible for suspension of

deportation, an alien was required to establish four factors. INA §§ 244(a)(1) &

(2), 8 U.S.C. §§ 1254(a)(1) & (2) (1991). One 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 deportable 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-of-

deportation provision of INA § 244 and replaced it with new INA § 240A

providing for the “cancellation of removal.” IIRIRA § 304(a). IIRIRA also

enacted the “stop-time” provision for determining an alien’s eligibility for

suspension of deportation or cancellation 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 resided


       1
          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
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 removal if, among other things, the alien “has

been physically present in the United States for a continuous period of not less than

10 years immediately preceding” the application 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 continuous physical presence in the United States

is deemed to end once the alien has been served with a “notice to appear” for

removal proceedings or commits a criminal 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 “stop-

time” rule applied to aliens who had applied for suspension of deportation prior to

IIRIRA’s enactment. Matter of N-J-B, Int. Dec. 3309 (BIA 1997).3 Citing IIRIRA

       2
        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
§ 309(c)(5), which provides the “Transitional 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, even 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 stop-time provision. The asserted Plaintiff

class consisted of aliens from various countries including Nicaragua, Haiti,

Malaysia, and Iran. All of the Plaintiffs had entered the United States more than




Attorney 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
seven years earlier but were placed in deportation proceedings before they had

accumulated seven years of continuous physical 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 stop-

time 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 the

       5
         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
putative Plaintiff class. Plaintiffs also sought to enjoin the INS from applying the

stop-time rule to any aliens in deportation 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. Kurzban, as lead counsel, was particularly

qualified to represent the class.

      Although Plaintiffs had moved for “provisional” class certification, the

district court apparently granted Plaintiffs final class-action status. The court’s

May 20, 1997 order did not limit the certification to “provisional” certification, and


                                           7
the record does not indicate that the district court subsequently granted class

certification. Indeed, in its subsequent order 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) provided that the stop-time provision in INA

§ 240A(d) applied only to aliens who applied 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)

                                            8
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 injunction 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 effective date of April 1, 1997.

      B.     Evidentiary Hearing and Preliminary-Injunction Order

      The district court’s May 20, 1997 order set a preliminary-injunction hearing

for May 27, 1997. The parties presented some evidence and testimony on May 27

but were unable to present a full case. Accordingly, 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, the parties conducted

discovery and, on several days during this period, appeared before the magistrate

judge for further presentation of evidence.


                                          9
      After the proceedings before the magistrate judge on the preliminary-

injunction 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 Plaintiffs had established irreparable harm,

and that the balance of the harms and the 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-interest 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. According to the district court, the INS


                                         10
induced the Nicaraguan class members into applying for suspension of deportation

but then moved to pretermit these applications 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 which 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 violation of equal protection.6 The court found that aliens who

“came forward” to be placed in deportation proceedings before reaching the seven-

year physical-presence requirement and who “won their suspension case[s]” were

deemed ineligible for suspension. Conversely, according to the district court,

aliens who “evaded the INS successfully for seven years” could become eligible

for suspension. The district court concluded 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 violation of equal protection.”

       Likewise, the district court noted that the stop-time rule precludes an alien

from accumulating time toward the physical-presence requirement as soon as the

       6
        Of course, by referring to equal protection, the district court was relying on the equal-
protection component of the Fifth Amendment’s Due Process Clause.

                                                11
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 charging 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 Plaintiff 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 NACARA




       7
         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
      Subsequent to the entry of the preliminary injunction, Congress enacted, and

the President signed the Nicaraguan and Central American Relief Act, Pub. L. 105-

100, 111 Stat. 2160 (1997) (“NACARA”). On December 2, 1997, the President

also signed into law technical amendments to NACARA. Public L. No. 105-139,

111 Stat. 2644 (1997).

      A number of NACARA’s amendments 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 show 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 ambiguity in 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 stop-time provision applies to aliens who

were facing deportation and/or had applied for suspension of deportation before

IIRIRA’s enactment, because it precludes any argument that the reference to

“notices to appear” suggested that Congress intended the stop-time rule to apply

only to post-IIRIRA removal proceedings, which are initiated with “notices to

appear.”




                                        13
      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 suspension of deportation without being subject

to the stop-time provision. Moreover, NACARA allows qualified aliens from

Nicaragua and Cuba to bypass the suspension-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 were 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 longer valid in light of NACARA § 203(a),

which clarified that Congress intended the stop-time rule to apply to aliens in

deportation proceedings before IIRIRA’s enactment.


                                         14
      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 interpreted 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 aliens 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 necessarily 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 NACARA 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.


                                          15
      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 remains appropriate for this case and if so,

whether the remaining Plaintiffs are proper class representatives.




                                          16
      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 are 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 General. Of the four remaining non-

Nicaraguan Plaintiffs, the claim of one Plaintiff is almost certainly moot, and

another may be eligible for relief from deportation other than suspension.

Therefore, only two of the original thirty-nine named Plaintiffs/Plaintiff families

face the same situation that prompted the 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 residents under NACARA: (1) Roberto Tefel, (2)

Leonel Martinez, (3) Lorena Garcia (4) Ana 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) Dudley Rocha-Petterson, (20) Ernesto Torres


                                           17
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 Plaintiffs, the following three are awaiting

a hearing on the adjustment of their status to that of lawful permanent residents:

(23) Douglas Membrano-Murillo and Damarys 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 administrative 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 the 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.

       8
       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
      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, Alexandra Charles, may be eligible for relief

under the Haitian Refugee Fairness Act, which also was signed into law while this

case was on appeal.

      Therefore, only two named Plaintiffs are 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 against Ms. Aidenzhad or when the

immigration judge granted Ms. Aidenzhad suspension. Subalecthumy

Vengadasalm is an alien from Malaysia. On November 8, 1996, the immigration

judge granted her suspension of deportation, and the INS appealed this decision

based upon the stop-time rule.




                                           19
      Because there are Plaintiffs whose claims 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 class-

action 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 would 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.    Jurisdiction


                                          20
       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 particularly on 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 appeals. 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’ claims 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, Jean and Smith. Likewise, because IIRIRA’s transitional provisions,

rather than IIRIRA’s complete amendments to the INA, govern jurisdiction over

Plaintiffs’ claims, IIRIRA did not deprive the district court of jurisdiction.9


       9
         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
      In Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. Unit B

1982), this Court held that the exclusive 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 constitutional 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 final orders of deportation . . . made against

aliens within the United States pursuant 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 these irregularities may provide a basis for

reversing an individual deportation order . . . .” Id. at 1033 (emphasis in original).

Thus, this Court in Smith recognized 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.



                                          22
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 such order 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 district 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 Jean did not swallow the

general rule of the exclusivity of the INA’s judicial-review procedures, in both

cases, this Court carefully noted the limited 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 ruling in a deportation proceeding with which

an alien is dissatisfied.” 676 F.2d at 1033. We further noted that such an attempt


                                           23
to assert district-court jurisdiction would constitute an “end-run around the

administrative process” and would be inconsistent 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-the-

mill interlocutory procedural rulings by an immigration judge with which an alien

happens to disagree.” Id.

      After this Court decided Smith and Jean, the Supreme Court employed

similar reasoning in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).

At issue in McNary were the judicial-review procedures governing INS decisions

made regarding a special amnesty program for agricultural workers. These

judicial-review provisions provided that “[t]here shall be no administrative or

judicial review of a determination respecting an application for adjustment of

status under this section except in accordance with this subsection” and that

“[t]here shall be judicial review of such denial 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 “judicial


                                          24
review of such denial” in INA § 210(e)(3)(A) indicated that these provisions

governed jurisdiction over singular, individual amnesty applications and not

“general collateral challenges to unconstitutional 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 implementing 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, Plaintiffs allege, and the district court found,

that the application of the stop-time provision 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 conclusion that the pre-IIRIRA INA did not require

that Plaintiffs’ claims be asserted through a petition for review in the court of

appeals.10

       10
        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
       The INS argues that INA § 242(g), which applies in transitional cases,

precludes district-court jurisdiction over Plaintiffs’ claims.11 The INS

acknowledges the Supreme Court’s decision in Reno v. American-Arab Anti-

Discrimination 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 Court in American-Arab narrowly construed INA § 242(g)

as applying only to the three discrete discretionary 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, judicial



judicial-review scheme do not apply to this case 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 the 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
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.”) Plaintiffs’

challenges to the application of the stop-time rule to pending applications for

suspension involve constitutional challenges to legislation specifically mandating

such an application of the stop-time rule. Plaintiffs’ claims do not challenge the

Attorney General’s exercise of her discretion to commence proceedings, adjudicate

cases, or execute removal orders. Thus, INA § 242(g) does not alter the

jurisdiction, recognized by this Court in Smith and Jean, over class-wide

allegations of constitutional violations by the INS.

      Having determined that the district court 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 violation 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 court held that the application of the stop-


                                          27
time rule to pending applications for suspension of deportation deprived Plaintiffs’

of a “liberty or property” interest that 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 with the Due Process Clause of the Fifth

Amendment (and the equal protection principles it incorporates) so long as they

satisfy rational basis scrutiny.”). Under rational-basis scrutiny, a statute is

“accorded a strong presumption of validity” and will be upheld if “any reasonably

conceivable state of facts” could demonstrate 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 classification 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.


                                           28
      In this appeal, the stop-time rule of INA § 244A(d)(1), and IIRIRA §

309(c)(5)’s application of the stop-time rule to aliens in deportation proceedings

prior to IIRIRA’s enactment, are rationally related to legitimate government

purposes. Congress intended the stop-time 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 until 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 proceedings) 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 States. The fact that some aliens might

successfully evade service of the notice to appear does not diminish the rationality


                                          29
of the stop-time rule. In this sense, the stop-time rule is no more irrational than

Rule 4(m) of the Federal Rules of Civil Procedure, which by allowing the dismissal

of a complaint when service is not perfected within 120 days, also “rewards” a

person who can successfully evade service.

      B.     Procedural-Due-Process Claim

      The procedural component of the Fifth 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. The 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 claim based on an alleged denial of

procedural due process a court must first decide whether the complaining party has

been deprived of a constitutionally protected 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 protectable interest which triggers the

safeguards of the due process clause. In short, we must determine whether the

individual interest threatened by the administrative action in this case ‘is one




                                          30
within the contemplation of the “(life), liberty 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 noted the various actions taken by the INS to

encourage aliens, particularly Nicaraguan aliens, to apply for suspension of

deportation. For example, the INS adopted a policy of not opposing motions to

reopen deportation proceedings filed by Nicaraguan 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 application 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 cannot arise 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 or


                                          31
her sentence commuted, even where the 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 imposed sentence will be commuted or that he

will be pardoned is no more substantial than an inmate’s expectation, for example,

that he will not be transferred to another prison; it is simply a unilateral hope.”

Dumschat, 452 U.S. at 465.

      More specifically, this Court has held that 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 “paroled” 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 category for Cuban and Haitian aliens. Id.

According to the aliens in Garcia-Mir, these actions limited the INS’ discretion in

making parole determinations and thereby created a constitutionally protected


                                           32
liberty interest. Id. This Court acknowledged that the 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 Dumschat 452 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 that the 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 unfettered discretion in granting or denying suspension).

      Moreover, Garcia-Mir also illustrates that awarding and then revoking

discretionary relief does not offend due process. In Garcia-Mir, the INS had

paroled certain Cuban aliens into the United States but had subsequently revoked

their parole. Rejecting the constitutional claims of these Cubans, we observed that

absent rules constraining official discretion “one merely has an expectancy

reinforced by a system capable of granting or withholding that liberty.” 788 F.2d


                                           33
at 1453. Thus, this Court concluded that this 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 deportation. In both cases, the federal government

had taken actions that created an expectancy that 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 General 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 “unfettered discretion” to award suspension

of deportation and observing the parallels between suspension and an executive


                                          34
pardon); Jay v. Boyd, 351 U.S. 345, 354 (1956) (noting that suspension of

deportation is an “act of grace” like the “probation or suspension of criminal

sentence”). Indeed, Plaintiffs have not even attempted to argue that the Attorney

General’s discretion to grant or deny suspension of deportation is limited by statute

or regulation. Thus, because suspension remains a purely discretionary “act of

grace” and Plaintiffs have not identified 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” interest attendant 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 rendered 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 General 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 their expectancy of receiving suspension.


                                          35
Thus, just as Plaintiffs enjoy no “liberty or property” interest in their expectancy of

receiving suspension of deportation, they enjoy no “liberty or property” interest in

being eligible to be considered for suspension. 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 enacted. 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 proceedings 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 conduct, or impose new duties with respect to


                                          36
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 rules.” 511 U.S. at 280. No one disputes that,

in enacting NACARA § 203(a)(1), Congress mandated the application of the stop-

time rule to aliens against whom deportation proceedings 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 retroactive application of new statutes because

Congress expressly provided for this “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 existence 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)




                                          37
      However, the Supreme Court has never resolved whether, and in what

manner, the doctrine of equitable estoppel 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 in which to apply estoppel against the

Government, yet we have reversed every 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,


                                         38
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 misconduct. 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, 860


                                         39
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 affirmative 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 unnecessary to reach the issue of whether a

showing of affirmative misconduct 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 establish 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 repeatedly has said that the government cannot

be estopped on the same terms as a private party, if the government can ever be


                                         40
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 not believe 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 suspension at the same time that the INS

was encouraging Nicaraguan aliens to apply for suspension of deportation. The

Court conceded this evidence was not a “‘smoking gun’ on the Plaintiffs’ estoppel


                                          41
argument” but found it sufficient to justify discovery on possible misconduct by

the INS. Therefore, it does not seem that the 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 affirmative 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 court concluded that affirmative misconduct

was an element of Plaintiffs’ estoppel claim, it erred in accepting Plaintiffs’ theory

of misconduct. Assuming the INS was aware of a “substantial likelihood” that

Congress was going to alter the eligibility requirements for suspension, the INS’

contemporaneous actions did not constitute 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 suspension 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. Attorney General of United States, 823 F.2d


                                          42
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 the INS’ actions in encouraging suspension

applications violated any statute or immigration 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 the 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 broad. As defined, the class includes aliens

who had applied for but been denied suspension of deportation and aliens who

have never applied for suspension. Thus, the definition of the class appears to

include aliens without claims that are ripe for resolution. Reno v. Catholic Social


                                          43
Serv., Inc., 509 U.S. 43, 58-59 (1993) (holding that aliens’ claims challenging the

INS’ regulations interpreting the “continuous physical presence” requirement for

legalization under the Immigration Reform and Control Act of 1986 are not ripe

until the aliens seek and are denied legalization); 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, almost exclusively, on INS actions that were

directed specifically at the Nicaraguan Plaintiffs. 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 Nicaraguan and non-Nicaraguan members of the

class. Also, the class as defined by the 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 transitional rules govern certain aspects of

the deportation proceedings that began before 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 proceedings that began prior to April 1,

1997 and concluded before October 30, 1996.


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      Moreover, the enactment of NACARA after 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 the 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 reexamine 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 district court erred in entering its preliminary

injunction and in denying the motion to dissolve the injunction. The district


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court’s preliminary injunction is VACATED, and this case is REMANDED for

further proceedings consistent with this opinion.




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