In the Matters of: Sun Microsystems, Inc., Employer

on behalf of

Srinivasan Srinath, et.al., Aliens.

US Department of Labor, Office of Administrative Law Judges

Released: March 12, 2004

Sun Microsystems (“Employer”) filed fifteen applications for labor certification on July 12, 2001 using the Reduction in Recruitment (“RIR”) method for various engineering and computer positions.  On January 23, 2003, the Certifying Officer (“CO”) issued a Notice of Findings pertaining to Employer’s recent layoffs, seeking information as to whether laid-off workers had been considered for the positions.  Employer responded with an assertion that the laid-off workers were not qualified for the positions, and that since the applications had been filed as an RIR, GAL 1-97 (the Ziegler Memorandum) governed and the CO should only deny the use of RIR processing and not the labor certifications themselves. As to all applications, the CO denied the RIR and denied certification, stating that Employer failed to rebut the findings pertaining to laid-off workers and their qualifications. 

Employer requested remand based on the Ziegler memorandum and Compaq Computer Corp., 2002-INA-249-253, 262 (Sept. 3, 2003), stating that the CO should only have denied the RIR and remanded the case to the State Workforce Agency for regular processing.  The Law Judge consolidated the matters for decision.  The Law Judge, citing Compaq, agreed with Employer’s assertion that the CO had improperly denied the application.  The Law Judge held that according to DOL procedural policy, if the CO determines that RIR should be denied, the CO should then remand the case to the State Workforce Agency.  The CO’s denial of certification was improper, and the case was remanded to the CO with instructions to remand the applications to the State Workforce Agency for regular labor certification processing.

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Faruqi v. Department of Homeland Security
Ninth Circuit Court of Appeals
2004 U.S. App. LEXIS 3900

The Ninth Circuit expedited this appeal to resolve an issue in several pending Ninth Circuit cases: whether, in light of the decision in Andreiu v. Ashcroft, 253 F. 3d 477 (9^th Cir. 2001), the court has jurisdiction over an interlocutory appeal of a district court order denying a stay of removal in a habeas corpus petition brought under 28 U.S.C. Section 2241.  In Andreiu, the court determined that stay of removal is not equivalent to injunctive relief.  The court in the present case concluded that it has appellate jurisdiction over such an interlocutory appeal, under 28 U.S.C. Section 1292(a)(1).

Petitioner Faruqi, a native of Pakistan and citizen of the United Kingdom, last entered the United States in 1999 under the Visa Waiver Pilot Program, and overstayed his visa.  In 2003 he sought to adjust his status based on an immediate relative petition filed by his U.S. citizen brother.  Before his adjustment of status application could be fully processed, Faruqi was arrested and told that he was subject to immediate removal despite his pending, nearly approved application.  Faruqi filed a petition for writ of habeas corpus and a request for an emergency stay of removal in the U.S. District Court for the Central District of California, which the district court denied.  The Ninth Circuit granted Faruqi’s stay of removal pending appeal. 

Since the relief sought by Faruqi was temporary injunctive relief, the court found that it had appellate jurisdiction over his interlocutory appeal.  The court evaluated the IRAIRA rule found in 8 U.S.C. section 1252(f)(2), which prohibits courts from enjoining the removal of any alien pursuant to a final order under IRAIRA unless the alien demonstrates that the order is prohibited by law.  The meaning of the rule, the court found, is that courts may not enjoin the operation of the immigration laws.  The rule does not prohibit courts from staying the removal of an alien who is attacking by appeal the merits of his underlying order of removal.  Following the Andreiu precedent, the court found that federal courts cannot grant classwide injunctive relief against the operation of INA provisions, but can grant such relief in individual cases. 

Faruqi’s requested stay of removal, the court held, would only restrain and not enjoin his removal by the terms of the IRAIRA rule.  The standard for injunctive relief in Faruqi’s case is the traditional standard, not the heightened standard of IRAIRA.  The Ninth Circuit continued the stay of removal pending resolution of the appeal.