Miguel Mada-Luna v. Eugene M. Fitzpatrick, Acting District Director, Immigration & Naturalization Service

Eugene Fitzpatrick, an acting district director of the Immigration and Naturalization Service (INS), appeals from the district court’s order directing him to reconsider Miguel Mada-Luna’s application for deferred action status under INS Operating Instruction 103.1(a)(l)(ii). The district court ruled that Fitzpatrick improperly reviewed Mada’s application under the 1981 version of the Operating Instruction. 1 The *1009 court held the 1981 instruction invalid because the INS promulgated it without the notice-and-comment procedures required by the Administrative Procedure Act (APA), 5 U.S.C. § 553 (b)-(d) (1982), and without publishing it in the Federal Register, as required by the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (a)(1)(DME) (1982). The district court ruled that, as a result, the original, 1978 version of the Operating Instruction was never validly superseded, and that Fitzpatrick was required to review Mada’s application under its more “generous” standard. 2 The court therefore granted Mada’s habeas petition and remanded his application to the INS. Fitzpatrick appeals. We have jurisdiction under 28 U.S.C. § 1291 (1982).

In light of our recent decision in Romeiro…

(specially concurring):

I concur in the result reached by the majority. Regretfully I cannot concur in the opinion.

As the majority concedes, we must reverse and remand the instant case on the authority of Romeiro De Silva v. Smith, 773 F.2d 1021 (9th Cir.1985). A short opinion so stating would be more in order than the lengthy discourse — almost a mini-treatise — on administrative law set forth in the majority opinion.

In many ways the majority seems to ignore the fact that the Romeiro opinion is *1019 on the books. It is, in my view, misleading, even if technically accurate, to assert that we can and do review “de novo” the “district court’s determination on issues of statutory interpretation including the scope of the notice-and-comment and publication requirements imposed by the APA and the FOIA.” See opinion Subsection A, “Standard of Review”. As concerns any statutory interpretation made by a trial court, this court’s review is, of course, “de novo”. But as concerns the questions of statutory interpretation involved in this case, including the questions concerning the notice- and-comment and publication requirements imposed by the APA and the FOIA, our review is not, and…

813 F.2d 1006 Miguel MADA-LUNA, Petitioner-Appellee, v. Eugene M. FITZPATRICK, Acting District Director, Immigration & Naturalization Service, Respondent-Appellant. No. 84-1988. United States Court of Appeals, Ninth Circuit. Argued May 17, 1985. Submitted Dec. 10, 1985. Decided March 30, 1987. A. Melvin McDonald, Richard K. Willard, Barbara L. Herwig, John M. Rogers, Washington, D.C., for respondent-appellant. Antonio D. Bustamante, Tucson, Ariz., for petitioner-appellee. Appeal from the United States District Court for the District of Arizona. Before TANG and FLETCHER, Circuit Judges, and HILL, * District Judge. FLETCHER, Circuit Judge: 1 Eugene Fitzpatrick, an acting district director of the Immigration and Naturalization Service (INS), appeals from the district court's order directing him to reconsider Miguel Mada-Luna's application for deferred action status under INS Operating Instruction 103.1(a)(1)(ii). The district court ruled that Fitzpatrick improperly reviewed Mada's application under the 1981 version of the Operating Instruction. 1 The court held the 1981 instruction invalid because the INS promulgated it without the notice-and-comment procedures required by the…