Full opinion text
PRELIMINARY INJUNCTION JAMES LAWRENCE KING, District Judge. Prologue With the drums of war beating an ever increasing cadence of death, destruction and misery across Central America during the 1980s, refugees, in the tens of thousands, fled their homelands. They came with the hope that a nation renowned throughout the civilized world for justice, fairness and respect for human rights would help them in their time of need. These people, a trickle at first, then a torrent, and finally a flood, crossed illegally into the southwestern United States. Many of these people, within a few days, weeks or months, reported to immigration authorities, explained their plight, and sought help in obtaining government-issued work permits to enable them to find employment to support themselves and their families. Throughout the administrations of three United States presidents, the Immigration and Naturalization Sendee earned out the policies of those administrations and responded in a humane and compassionate manner by issuing the necessary documentation, granting work permits, and helping them integrate into our society. Along with the work permits, issued year after year by the Defendants, was a document described as an “Order to Show Cause,” advising the individual refugees that although they were being permitted to remain in this country, they were subject to deportation. While the bloody civil conflicts continued in Nicaragua and El Salvador, tens of thousands of these refugees commenced new lives in America. With the blessing of successive administrations and the Defendant Immigration and Naturalization Service, they found employment, established homes, married, had children and grandchildren, started businesses, paid taxes, obeyed our laws and contributed to their community, state and new country. Although they did not know, these persons, ■who had lived here for many years, were about to be uprooted from their homes, separated from their families and deported. Procedural Background On March 28, 1997, a Verified Class Action Complaint for Declaratory, Injunctive and Mandatory Relief and Writ of Habeas Corpus was filed with this Court by forty-one (41) Plaintiffs on behalf of themselves and a class representing thousands of persons similarly situated. The class of persons in this case consists of: 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. The action was also brought on behalf of a subclass of persons, “who are Nicaraguan nationals who paid substantial fees to reopen their cases and/or to seek suspension of deportation as a result of the defendants’ inducements and promises that their applications for suspension would be considered when in fact the defendants now refuse to consider such applications.” This subclass alone numbers in the tens of thousands. This lawsuit seeks to challenge the Defendants’ policy that deprives them of their right to seek suspension of deportation in the United States. The Defendants’ policy, as expressed in the decision of Defendant Board of Immigration Appeals in Matter of N-J-B, Interim Decision No. 3309, 1997 WL 107593 (BIA 1997), is to strip the Plaintiffs and class members of their right to seek suspension of deportation by applying § 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice and State, and the Judiciary Appropriations Act of 1997, Pub.L. No. 104-208, 110 Stat. 3009 (“IIRIRA”), retroactively to bar such claims. The Plaintiffs challenge the Government’s conduct in four counts. Count I of the Complaint challenged the Defendants’ interpretation of § 309(c)(5) of IIRIRA as being arbitrary and capricious in violation of both the Immigration and Nationality Act and the Administrative Procedures Act. Count II challenged the Government’s conduct as violative of the Immigration and Nationality Act and the Due Process Clause and Equal Protection guarantees of the Due Process Clause of the Fifth Amendment. The due process claims relate to the Government’s conduct in creating, and thus denying, Plaintiffs’ liberty and property interest in applying for suspension of deportation. Plaintiffs raise an equal protection claim based upon Defendants’ dissimilar treatment of persons similarly situated in regard to suspension of deportation. Count III of Plaintiffs’ Complaint sought estoppel against the Government by virtue of its conduct with regard to the subclass of Nicaraguan nationals seeking suspension of deportation. This count sought to challenge the conduct of the Defendants in inducing Nicaraguans to come forward and pay substantial fees to the Immigration and Naturalization Service on the promise that they would have a hearing on their claims for suspension of deportation. The Plaintiffs contend that the Defendants invited and encouraged tens of thousands of Nicaraguans to apply for suspension of deportation and to pay fees, knowing Congress was considering eliminating the right of Nicaraguans to seek suspension of deportation in the United States. Count IV of the Complaint addressed the alleged denial of due process in Matter of N-J-B itself, because the Defendant Board of Immigration Appeals (“BIA”) had ex parte communication with the Defendant Immigration and Naturalization Service, invited them to submit a brief on the issue that the case was ultimately decided upon, and never contacted or gave N-J-B-’s counsel the opportunity to brief the issue that formed the basis for the Defendant BIA’s decision. On April 17, 1997, after class members received letters to report for deportation, Plaintiffs filed an application for a temporary restraining order and a motion for provisional class certification. The temporary restraining order sought to restrain the Defendants from enforcing their policy of pretermitting suspension of deportation applications based on an erroneous interpretation of § 309(e)(5) of IIRIRA as expressed in Matter of N-J-B, and to restrain the Defendants from deporting Plaintiffs and class members during the pendency of this action. At the same time, Plaintiffs filed a motion for provisional class certification, seeking to certify the class and subclass as stated in their Complaint. On April 21, 1997, Defendants filed a memorandum of law in opposition to the application for temporary restraining order and in support of a motion to dismiss. On May 1, 1997, Defendants filed their opposition to Plaintiffs’ motion for provisional class certification. An evidentiary hearing was held in this matter on May 13, 1997, and argument of counsel on all pending motions was heard on May 14, 1997. At the conclusion of counsel’s argument, the Court, in open court in the presence of all parties, orally announced its decision (and the reasons therefor), granting the TRO. On May 20, 1997, this Court entered a formal written Order, embodying its oral decision, denying Defendants' motion to dismiss, certifying the class and appointing lead counsel, granting a temporary restraining order, and setting a preliminary injunction hearing for May 27, 1997. The Court addressed Plaintiffs’ and Defendants’ jurisdictional arguments extensively in that Order, which are incorporated herein by reference. THE TEMPORARY RESTRAINING ORDER The Court’s oral ruling, announced in open court, in the presence of all parties held: “It is 5:30 in the evening. I suppose we have been at this since about 2:30 this afternoon, roughly, but 1 suppose that everybody would just as soon find what’s going to happen to not only their case, but, in some instances, or, indeed, many instances, their lives. First, let’s turn to a consideration of the motion to dismiss the complaint filed by the Defendant Janet Reno, Attorney General of the United States, et al. The standard, as we all know for a motion to dismiss, under Federal Rules of Civil Procedure 12(B)6, is whether or not the complaint states a claim, when taken literally with all the averments, is true and correct and accurate. Eleventh Circuit cases teach us a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. I am citing from an Eleventh Circuit case at 951 F.2d 12B8. The Court has concluded after careful examination of all the briefs of the parties and the evidence that’s been presented and the legal argument of counsel that it does have jurisdiction in this matter to rule upon this complaint. The motion to dismiss, therefore, will be and is denied for the following reasons: As counsel for the Plaintiffs have pointed out in their memorandum and brief, there is a strong presumption that actions by any federal agency are judicially reviewable in the federal courts unless expressly mandated otherwise. The Government has pointed out, quite correctly, the explicit language of Section 242(g), and they rely heavily on Section 106, sub (a), which, on the surface, contains language that is not inconsistent with the position taken by the Government, but which, upon thorough and careful examination and scrutiny, as you all have forced me to do in this case by your well-written and thoroughly prepared briefs, memorandum and argument, impelled the conclusion that Section 242(g), under the circumstances of the issues raised in this complaint, do not bar the Court’s consideration and determination of these issues. This case makes class-wide challenges to I.N.S. policies and does not purport to or attempt to address the merits of individual cases; thus, in this Court’s view, it is not precluded by Section 106(a). The estoppel claims raised in the complaint, the constitutional claims of estoppel are certainly beyond the scope of an immigration judge to review, Board of Immigration Appeals to review, and are, therefore, external to the deportation process envisioned by the jurisdiction of the provisions of the law pertaining to the authority of the immigration judge and the Board of Immigration Appeals. Therefore, these claims could not be reviewed except here. They could not be reviewed by the Eleventh Circuit Court of Appeals. Certainly, any interpretation of these laws on any record developed in the United States District Court for the Southern District of Florida can be properly, and should be properly, reviewed by the Court of Appeals. But, without a record, and none can be developed by an immigration judge under the current posture of the interpretation of the law, as articulated by the various decisions of the immigration judges and the Board of Immigration Appeals, there can be no development of a record; therefore, there can be no review. Section 106(a) does not bar claims, as I’ve indicated, that the court — that they cannot consider because there is no factual record, or indeed any process by which a record can be developed; so, therefore, the Court of Appeals under its own rules and the law cannot consider those issues. The only place the Court of Appeals can properly, carefully and thoroughly consider these issues is upon development of a record here in the United States District Court on these constitutional issues which are beyond the pale of the immigration authorities, immigration courts. Section 242(g) certainly does not, in the opinion of this Judge at least, bar the constitutional claims of estoppel, due process and equal protection. There are constitutionally protected liberty interests when an alien is threatened by deportation that that person should have the opportunity somewhere, some place within our frame of the law, to able to contest, raise or discuss and have determined. I do not believe 242(g) does bar those constitutional claims. The issue raised by the Government, which is a very interesting and well-reasoned and thoroughly thought out one about exhaustion of administrative remedies, bears comment. It seems to me that all of the law that is applicable to those cases where it has been held time and again that it is futile to take an issue to a court because that court has already determined or acted upon or pronounced the law to be, or pronounced its position to be, that it does not have jurisdiction to consider an issue come into play. That is to say, that if it is futile to take an issue to a court, then that matter may be reviewed in the appropriate process of our federal and state system and administrative system without the requirement that exhaustion be fully effected. Exhaustion is futile; it need not be required. The arguments advanced by whether or not these actions by the immigration judges and the Board of Immigration Appeals are, indeed, actions of the Attorney General of the United States, the Honorable Janet Reno, as advanced by the Plaintiffs, are persuasive. The arguments advanced by the Plaintiffs that they have been lulled into a change of position and an abandonment of substantial property and liberty rights, at least liberty rights, by being importuned by the Immigration and Naturalization Service to come into the process, abandon their political asylum claims, and apply for suspension hearings and pay the fees that were required for that, that argument makes a lot of sense; it is very persuasive. That certainly is something that the immigration courts have held they have no jurisdiction to consider at this point. So, going back to basic, basic concepts in all of our jurisprudence, one that we all learn the first year in law school: For every wrong, or let me say for every perceived wrung, there is a remedy. From what I have heard in this ease yesterday and today in a very well articulated legal argument of both sides, there simply is no remedy for the perceived wrongs of these thirty to forty thousand Nicaraguan refugees who are here in this country under this — and are at risk under this procedure, and this new law and the interpretation of this new law as advanced by the Department of Justice. Therefore, the motion to dismiss is denied. The Court finds and holds that it does have jurisdiction to consider the application for temporary restraining order. Before turning to that, though, perhaps along with that, it seems that the Court should address the problem of whether or not we are dealing with a class or whether or not we are dealing with two plaintiffs. The Court finds that this record establishes on the pleadings, briefs, memoranda and argument of counsel, based upon all of the testimony that has been taken during the proceeding, and also in considering that the Plaintiffs have satisfied the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure. The Court is satisfied that the Plaintiffs are adequate representatives of the class. It is unique and unusual perhaps in the history or time span of a judicial or legal career, that the Court would have some knowledge of the ability of the attorneys who seek to represent the class, this particular class, would have some personal knowledge based upon — a professional knowledge based upon other cases or other matters that have come before the Court. But as counsel reminded me today, and I have forgotten the number of years, but it’s been eighteen years ago that Mr. Kurzban brought a substantial class action or sought class action certification for a substantial number of Haitian refugees. The Court, having had the experience eighteen years ago, as he reminds me or he tells me, eighteen years ago this month, of observing Mr. Kurzban and his colleagues in that case in their representation of the class, the Court is comfortable and satisfied that the class would be adequately, I could say well adequately represented, in this matter by Mr. Kurzban and his colleagues in this case. Another element that the Court has to consider is whether or not there is a predominantly common interest that is indigenous to the class. The Court is satisfied with the showing made by the Plaintiffs in this matter of commonality and typicality in the issues, the legal issues that are raised. As I’ve said, they are classwide in their assertion; they are not directed individually. And they are the type of common issues that Rule 23 of the Federal Rules of Civil Procedure envision are properly the subject matter of class action treatment. Mr. Kurzban has cited back to me my own opinions, which is somewhat rude of him, I say facetiously, but I have been here long enough I guess it happens, and it is starting to happen in cases. But he says that I said in the Haitian Refugee Center case that the matter in which the entire program is being implemented rather than challenging individual treatment determines the underlying application of class action treatment. And I think within a framework similar to that we could deal with this problem and thus perhaps save the United States Court of Appeals for the Eleventh Circuit whatever number of thousands or tens of thousands of cases that might otherwise have to go there, provided, of course, that it could be demonstrated that the people could or would take that step and follow that process or procedure. Therefore, the motion for class action treatment is granted. I know you ai-e all getting tired of listening, but I suppose we might as well go ahead and decide the only remaining at this point, or the last remaining substantial issue, and that is whether or not a temporary restraining order should issue. The Court has concluded that it should. The Plaintiffs in this matter have sought by their pleadings and argument to restrain the Defendants, being the Honorable Janet Reno, Attorney General of the United States, Robert Wallis, District Director of the Immigration and Naturalization Service, the Board of Immigration Appeals, and any persons acting by or under or with their authority, including any employees, staff, counsel or supervisory personnel that act within the framework of any of those administrative agencies, from enforcing the policy of pretermitting suspension of deportation applicants based upon an interpretation of Section 309(c)(5) of the Immigration Reform and Responsibility Act of 1996 as expressed in the Matter of N-J-B and the Board of Immigration Appeals 1997, and restraining the Defendants from deporting Plaintiffs and class members during the pendency of this action. The Court finds that the Plaintiffs have established a substantial likelihood that they will prevail on the merits of their claim with respect to Section 309(c)(5) of the Immigration Reform and Responsibility Act of 1996. And that that section they have made the requisite showing that that does not apply to persons in deportation proceedings. Secondly, the Court finds that the Plaintiffs and their class members would suffer irreparable harm if denied an opportunity to have a hearing an their claims for suspension of deportation and instead are deported to their home countries. The Court finds on the basis of this record that the Plaintiffs and their class members would suffer extreme hardship if they are returned, to their home countries at this point in time under the status of this case as it now stands. Three, the Court finds the harm to Plaintiffs substantially outweighs any possible harm to the Defendants from the entry of an injunction. The failure to issue an injunction would result in irreparable harm to the Plaintiffs and the class members. They would be separated in many instances from their families and forced to go to a country where they may or will suffer extreme hardship. By contrast, the Defendants, if the Plaintiffs prevail ultimately on their claim, will only be required to maintain a process whereby they provide this class before it was promised to them in the widely disseminated application, widely disseminated notice to Nicaraguan class members to come in and seek a hearing on the suspension — to seek the suspension hearing. Four, a temporary restraining order would serve the public interest. The Court finds on the basis of this record that the Plaintiffs and the class members herein have lived, worked and raised families in this community and elsewhere and the deportation of these persons would have a devastating impact on not only their lives but the community, the state and perhaps other parts of this nation. Many of the class members at risk have established homes, settled families, have attended school, worked in the private sector and paid taxes to this community and this state. The Court finds that the deportation of as many as thirty to forty thousand otherwise possibly eligible Nicaraguan suspension applicants would have an enormous impact on this community. For all of these reasons, the Court will enter, and does enter, a temporary restraining order as sought by the Plaintiffs in their papers and the Defendants are enjoined from deporting the Plaintiffs and all class members pending further orders of this Court.” In light of the Defendants’ insistence that the Court commence a preliminary injunction hearing before expiration of the temporary restraining order, the Court issued an Order on Pending Motions on May 21, 1997, expediting discovery. The Court noted in that Order that, “due to the insistence” of the Defendants, “it is therefore necessary that discovery be expedited in order to insure that a record is fully developed, that Plaintiffs be given an opportunity to fully present their case, and that this Court has all information necessary to render a complete and informed decision on the serious issues before the Court.” On May 27, 1997, the Court commenced the preliminary injunction hearing. The Defendants were unable to fully comply with the discovery within the time period, and Plaintiffs were therefore unable to present a full case on May 27, 1997. On May 27, 1997, after hearing some testimony, the Court entered an Order extending the temporary restraining order through Thursday, June 12,1997, and referred the matter to the Magistrate Judge to hear the remaining testimony in the case. The extension of the temporary restraining order to June 12, 1997, was consistent with the requirements of Federal Rule of Civil Procedure 65(b). From May 27,1997, through June 12,1997, Plaintiffs and Defendants conducted extensive discovery in this case. Discovery continued during and through the Memorial Day weekend and each and every weekend between those time periods. As the Defendants insisted that they would treat any extension of the temporary restraining order beyond June 12, 1997, as a preliminary injunction subject to appeal, both sides made substantial efforts to complete discovery and hold evidentiary healings. Evidence was presented before the Magistrate Judge on June 3, 4, 9, 10 and 11, 1997. During this time period, Plaintiffs presented testimony from expert and lay witnesses, including a statistician, the Assistant County Manager of Dade County, several clergymen, prominent members of the Nicaraguan business community, and class members. Previously plaintiffs had presented evidence from a media representative and from attorneys representing Nicaraguan class members. The Plaintiffs also presented substantial documentary evidence in support of their claims. The Court incorporated by reference the Transcript and Exhibits offered at the temporary restraining order hearing. The Defendants presented no live testimony. The documentary evidence they entered was solely directed to what they regarded as the legislative history of § 309(c)(5) of IIRIRA. The Defendants also offered a small number of the named Plaintiffs’ depositions as evidence. THE MAGISTRATE JUDGE’S RULING AND RECOMMENDATION After hearing the extensive evidence presented and reviewing the transcripts, Magistrate Judge Brown concluded that the Plaintiffs had established three of the four criteria necessary for a preliminary injunction, ruling: “That a preliminary injunction is necessary to prevent irreparable harm ... that the injury to the Plaintiffs would clearly outweigh any harm to the non-movant ... [and] that a preliminary injunction would serve the public interest.” THE PRELIMINARY INJUNCTION EVIDENTIARY HEARING VS. TRIAL It is easy for the distinction to become blurred between a preliminary injunction evidentiary hearing and a trial on the entitlement to permanent injunction, because of the similarities between the two proceedings in the trial court. It is imperative however, particularly in the context of the proceedings in this case that the distinction be clearly understood. The Defendants have, consistently, unequivocally, and respectfully asserted: (1) reliance upon Fed.R.Civ.P. 65(b), mandating automatic expiration of the TRO on June 12, 1997, and if extended beyond the twenty-day period of the Rule, their intention to ask the Court of Appeals to treat the stay as a preliminary injunction; and (2) resisted discovery sought by the Plaintiff class on the theory the Plaintiffs are not entitled to get full discovery since proeedurally this case is at the preliminary injunction stage and is not a final permanent injunction trial. With Defendants applying these two defensive positions as trial strategy (which they had every right to do under the Federal Rules of Civil Procedure), the result was an intense hard-fought struggle by the Plaintiffs, on the one hand, to obtain the evidence they needed and, by the Defendants, on the other hand, to resist discovery by all lawful and proper means. The twenty days following entry of the Temporary Restraining Order on May 14, 1997, taxed the talents and resources of all counsel far beyond normal professional limits. The parties, and their counsel, literally worked around the clock, through Memorial Day weekend and all other weekends, in their struggle to present (and to resist) a record on the issues for the Court to consider. Nothing should be inferred from the Court’s foregoing recital of the intense activity of counsel that the Court is criticizing Defendants or their counsel for their respectfully stated positions and reliance upon the defenses available to them under the Federal Rules of Civil Procedure and case law. It does, however, bring into sharp focus the procedural differences between preliminary and permanent injunctions, and the scope of judicial consideration of the evidence necessary to meet the requirements for issuance of a preliminary injunction versus the magnitude of evidence to be considered at a trial on the question of issuance of a permanent injunction. As stated in University of Texas v. Camenisch, 451 U.S. 390, 394, 101 S.Ct. 1830, 1833, 68 L.Ed.2d 175 (1981), the preliminary injunction prerequisite factor of “likelihood of success” on the merits must not be improperly equated with “success” on the merits. Blending “likelihood of success” with “success” would be particularly wrong in the case at bar, given the defense strategy of resisting discovery on the claim that the Plaintiffs are not entitled to get full discovery at this preliminary injunction stage. LEGAL REQUIREMENTS FOR PRELIMINARY INJUNCTION RELIEF The Court has applied the traditional four-part test for determining whether a preliminary injunction is appropriate, as articulated most recently in Warren Publishing, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1516-17 (11th Cir.1997). To succeed, the Plaintiff class must show: (1) that there is substantial likelihood of success on the merits, (2) that the preliminary injunction is necessary to prevent irreparable injury, (3) that the injury to the Plaintiff outweighs any harm to the non-movant, and (4) the preliminary injunction would serve the public interest. The Fifth Circuit Court of Appeals in Canal Authority of State of Florida v. Calla-way, 489 F.2d 567, 576-77 (5th Cir.1974) suggested guidelines to be applied by district courts considering preliminary injunction applications in the following language: First and foremost, we reemphasize the importance of the general requirements for a preliminary injunction. It is an extraordinary remedy, not available unless the plaintiff carries his burden of persuasion as to all of the four prerequisites. The primary justification for granting a preliminary injunction is to preserve the court’s ability to render a meaningful decision after a trial on the merits. It is often loosely stated that the purpose of a preliminary injunction is to preserve the status quo. * * ¡\i * * * It must not be thought, however, that there is any particular magic in the phrase “status quo.” The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court’s ability to render a meaningful decision on the merits. It often happens that this purpose is furthered by preservation of the status quo, but not always. If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury, either by returning to the last uncontested status quo between the parties, Ross-Whitney Corp. v. Smith Kline & French Laboratories (9th Cir.1953), 207 F.2d 190, by the issuance of a mandatory injunction, see 7 Moore’s Federal Practice Chapter 65.04[1], or by allowing the parties to take proposed action that the court finds will minimize the irreparable injury. The focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo. The parties have not made a major issue of the requirement that plaintiff demonstrate a substantial likelihood of prevailing on the merits, and the various court orders do not discuss the issue. However, it is important to consider this requirement, since, regardless of the balance of relative hardships threatened to the parties, the granting of a preliminary injunction would be inequitable if the plaintiff has no chance of success on the merits. The importance of this requirement varies with the relative balance of threatened hardships facing each of the parties. Although a showing that plaintiff will be more severally prejudiced by a denial of the injunction than defendant would be by its grant does not remove the need to show some probability of winning on the merits, it does lower the standard that must be met. Conversely, if there is only slight evidence that plaintiff will be injured in the absence of interlocutory relief, the showing that he is likely to prevail on the merits is particularly important. Wright & Miller, Federal Practice and Procedure: Civil § 2948. In this context, the district court should consider the relevance of Gulf Oil Corp. v. Morton (9th Cir.1973), 493 F.2d 141. Applying these principles, we turn to consideration of the four-part test. I. LIKELIHOOD OF SUCCESS ON THE MERITS The Plaintiff class contends that the interpretation that § 309(e)(5) of IIRIRA be applied retroactively is erroneous. The interpretation of § 309(c)(5) is embodied in the various memoranda of the Office of the Attorney General, the office of the General Counsel of INS, and other decision making and high-ranking officials of the offices of the several Defendants. The retroactivity application interpretation by the Defendants is also embodied in the seven-to-five majority opinion of the Board of Immigration Appeals in the Matter of N-J-B, Interim Decision No. 3309, 1997 WL 107593 (BIA 1997). Conversely, the Defendants’ extensive memorandum of law in opposition to the class application for preliminary injunction takes the position that Congress, not the Defendants in this litigation, legislated the retroactivity of § 309(c)(5). Additionally, the Plaintiff class has presented substantial evidence (even at this preliminary stage of the proceedings in this case) supporting their challenge to the Defendants’ interpretation of IIRIRA upon due process, equal protection of law, and estoppel claims. These issues will be addressed at a subsequent portion of this opinion. Turning first to whether Plaintiffs have met the requisite burden of proof of likelihood of success on the merits on their contention of the erroneous interpretation by Defendants of IIRIRA, the issue is whether the Act was meant to be applied retroactively to cut off the seven years of physical presence needed to qualify for suspension of deportation. Any deportation and exclusion proceedings ongoing prior to April 1, 1997, continued unchanged under IIRIRA, including ongoing suspension of deportation proceedings under § 244 of the former Immigration and Nationality Act (“INA”). IIRIRA 309(c)(1). Suspension of deportation under former § 244 required that a person have seven years of physical presence to be eligible for this relief. Persons who were in deportation proceedings prior to April 1, 1997, such as the class members in this case, could continue to apply for suspension of deportation under former § 244, and have their cases adjudicated under the old law. Two exceptions to continuing under the old law provision were written into IIRIRA. Sections 309(c)(2) and (3) allow the Attorney-General to elect to place persons who were in deportation proceedings into the new removal proceedings under certain circumstances. Additionally, a “transition” rule provided that the new § 240A(d)(l) will cut off physical presence if the respondent is “served with a notice to appear under § 239(a).” This transition provision applies “to notices to appear issued before, on, or after the date of enactment” of IIRIRA. IIRIRA § 309(c)(5). On October 3, 1996, the INS General Counsel issued a memorandum interpreting § 309(c)(5) to apply retroactively to persons in suspension of deportation proceedings. This analysis starts with the assumption that an order to show cause is identical to a notice to appear, thus service of an order to show cause cuts off physical presence in the United States. A majority on the Board of Immigration Appeals agreed with this interpretation several months later in Matter of N-JB, thereby building upon the original erroneous assumption. On the basis of the record as compiled before this Court during the proceedings at both temporary restraining order and preliminary injunctive hearings, careful analysis of the legal authorities cited by counsel for the respective parties, and a plain reading of the statutory language impelled the conclusion that the Defendants’ original assumption and ultimate interpretation is wrong. Section 309(c)(5) incorporates the provisions of § 240A(d)(l), which reads: “(d) Special rules relating to continuous residence or physical presence. (1) Termination of continuous period. 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 § 239(a) or when the alien has committed an offense referred to in § 212(a)(2) that renders the alien inadmissible to the United States under § 212(a)(2) or removable from the United States under § 237(a)(2) or 237(a)(4), whichever is earliest.” Clearly, the above-quoted section does not terminate the period of continuous physical presence necessary for suspension until “when the alien is served a notice to appear under Section 239(a).” (Emphasis added.) Defendants’ interpretation, firstly, overlooks the service requirement of § 240A(d)(l). Secondly, Defendants’ interpretation of § 309(c)(5) changes the plain language of § 240A(d) requiring service upon an alien to simply issued after the date of enactment of the new law (September 30, 1996). The Defendants’ analysis and interpretation of § 309(c)(5) relies upon an interpretation that the old “Order to Show Cause” and the new “Notice to Appear” are identical. An Order to Show Cause, particularly prior to 1992, was a very different instrument from the current Notice to Appear. The Court finds that a prior-issued Order to Show Cause can terminate a suspension applicant’s physical presence only when and if the Attorney General elects to apply the new law to those persons under §§ 309(c)(2) or (3), and actually or constructively serves the applicant with a Notice to Appear under § 239. Since neither § 240A(d)(l) nor § 309 took effect until April 1, 1997, no such designation by the Attorney General of the United States has taken place. It is a basic canon of statutory interpretation that legislative purposes are expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 191-92, 104 S.Ct. 584, 590-91, 78 L.Ed.2d 401 (1984); Ardestani v. INS, 502 U.S. 129, 135-37, 112 S.Ct. 515, 519-21, 116 L.Ed.2d 496 (1991). In statutory interpretation, it is clear that each word is given its proper and usual meaning with no word stricken as surplusage. Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988); U.S. v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955). Also, statutory sections must be construed harmoniously so as to give effect to each section. Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corp., 489 U.S. 561, 573, 109 S.Ct. 1361, 1368-69, 103 L.Ed.2d 602 (1989). Review of the legislative history of this Act, considered in light of the analysis of the respective parties in their thoroughly written briefs in this case, brings one to the conclusion that Congress did not intend for § 309(c)(5) to be interpreted so broadly as to eliminate the right of aliens to apply for suspension of deportation where they played no role in delaying their cases. The Court’s interpretation of this statute is supported by the testimony of Mr. Peter Deutsch, a member of the United States House of Representatives from District 20 in the State of Florida. Congressman Deutsch voted for IIRIRA, including § 309(c)(5), but testified that the interpretation of the Defendants was not contemplated by the legislation. Congressman Deutsch stated that “our feeling was that the interpretation by the Board was an incorrect interpretation. I’m someone who actually voted for the legislation, but I don’t think really anyone contemplated that the legislation would have specifically changed the issue of suspension ... I don’t think anyone who voted on this legislation contemplated the effect of the ruling ... If this was something that Congress wanted to occur we wouldn’t be debating this issue now. It would have been expressed much more clear in the legislation.” Congressman Deutsch’s sentiments were also expressed in a letter that he and other members of Congress sent to the Attorney General of the United States. THE DUE PROCESS CLAIM Turning to a consideration of whether the Plaintiff class has established a likelihood of success on the merits on their due process claim of deprivation of their right to a hearing on their claim for suspension of deportation, the record establishes Plaintiffs’ reliance on a myriad of statutes, regulations, administrative policy and official conduct giving rise to due process property and liberty interests. The Defendants initiated a policy in May and June of 1995 that was designed to induce and encourage Nicaraguan class members to come forward and submit applications for suspension of deportation. The purpose of this special program was to induce Nicaraguans to come forward and to apply for, and pay fees for, suspension of deportation. In order to accomplish the goal of inducing and encouraging Nicaraguans to come forward, the INS specifically set out to offer them a benefit not given to other nationals. To encourage Nicaraguans to file motions to reopen and applications for suspension of deportation, they were informed that they would be given work authorization upon the filing of motions to reopen — a benefit not accorded other nationals. In her memo to the field, Joan Higgins, Assistant Commissioner for Detention and Deportation, stated that special treatment would be accorded Nicaraguans who filed motions to reopen and sought suspension of deportation. She stated: “In order to be eligible for suspension of deportation, under normal circumstances, such an alien must have a motion to reopen their immigration hearing granted by the Executive Office for Immigration Review (EOIR). However, in order to avoid lapses in employment authorization for Nicaraguans who appear eligible for suspension, the INS will accept employment authorization applications from Nicaraguans with final orders of deportation provided they submit evidence that they have filed — not been grantedr — n motion to reopen in conjunction with an application for suspension of deportation. .. .” Similarly, local INS officers in the Miami District noted in drafts concerning the new suspension program that, “normally this [a motion to reopen] must be granted before INS considers the application properly filed for purposes of work authorization eligibility____” Even Gem Ratliff, Counsel to the Deputy Attorney General, in a draft memo to various persons in the Department of Justice, acknowledged the special inducement that the INS provided to Nicaraguans to make them come forward to pay fees and apply for suspension of deportation. She stated that: “Without this new policy, INS would not grant the motion to reopen, which could take several months ...” The policy was published in the Federal Register, thus' providing notice to the world as to the special policy for Nicaraguans. The notice stated that “specifically, the INS will treat the filing of a motion to reopen deportation proceedings accompanied by an application for suspension of deportation as a sufficient basis upon which such a person may apply for work authorization.” The matter was also widely publicized in the press. The INS’ policy was also distributed in the mass media via television programs that cover 99% of Hispanic households in Dade and Broward Counties. In addition, INS established a policy of not opposing any motion to reopen that was filed by Nicaraguans. David Martin, General Counsel of the Immigration and Naturalization Service, sent a letter to Paul Schmidt, Chairman of the Board of Immigration Appeals, that stated that “the Service has reconsidered its position regarding motions to reopen filed by Nicaraguans since the phaseout of the Nicaraguan Review Program.... The Service has determined that it will not oppose a motion to reopen to apply for suspension of deportation if the alien appears to be statutorily eligible for that relief---Upon the filing of a motion to reopen the Service may grant work authorization upon finding that the physical presence requirement for suspension of deportation has been met.” During the same time period, memos were sent out to trial attorneys around the United States “not to oppose MTR’s (motions to reopen) filed by Nicaraguans who are eligible for suspension.” This policy was also reinforced by the Defendant BIA because it developed a far lower standard for reopening Nicaraguan cases than those of other nationals. Matter of LO-G, Interim Decision No. 3281 (BIA 1996) (“Given the fact the Service has taken no action to deport these respondents and indeed, indicated its acquiescence in the filing of suspension of deportation applications by similarly situated individuals, we find no reason to deny reopening as a matter of discretion”.) When this program during the first year resulted in only approximately 2,500 Nicaraguans-reopening their cases, the INS increased its efforts. INS not only republished the notice in the Federal Register, extending the program to June 12, 1997, but it initiated an extensive media promotion. The Defendants also circulated the notice to Interpreter Releases, a journal widely read by immigration lawyers throughout the United States. They developed fact sheets to submit to the press and the public. They developed a question-and-answer sheet for “media guidance.” The Commissioner herself sent letters to community leaders such as Haydee Marin, stating that the Defendants had decided to extend the program through June 12, 1997, because “this will allow advocates for and within the Nicaraguan community in the United States additional time to publicize the opportunity to file for suspension of deportation and to secure legal assistance for eligible Nicaraguans.” At the local INS office, special procedures were established to notify Nicaraguans that they should apply for suspension of deportation. Even Nicaraguans who were taken into detention would be released and allowed to apply for suspension of deportation if they had seven years at that time. People were also given specific instructions by INS at Miami on how and under what circumstances to file motions to reopen. While the Government was liberally granting these motions to reopen if Nicaraguan nationals paid the fees, they were also approving their suspension of deportation applications in South Florida at a rate significantly higher than normal for INS. By February, 1996, approval rates were as high as 87% in Miami, and 81% nationwide. These extraordinarily high rates would unquestionably induce people to come forward when compared with the 60% approval rate nationwide for non-Nicaraguans. The Government’s policy and conduct without question created an expectation in the Nicaraguan community, even absent the statutory right to seek suspension of deportation. Nicaraguans in substantial numbers paid the $280 fee to reopen their cases and apply for suspension and employment authorization. Nicaraguans came forward in substantial numbers with the expectation that they “just had to file, do the paperwork, file what was necessary, the case would be open, I would have my day in court.” The number of Nicaraguan suspension applications during this period increased dramatically. Between June 13, 1995, and February 21, 1997, (the date that Matter ofN-J-B was issued), there was a 557% increase in the number of Nicaraguan suspension applications that were filed. Howard Gitlow, a statistician who analyzed the number of suspension applications for Nicaraguans and non-Nicaraguan class members, presented evidence at the preliminary injunction hearing, demonstrating the dramatic increase in the applications. In addition to the 557% increase in applications that were filed during the suspension of deportation program for Nicaraguans, there was a 650% decrease in the applications when comparing the time period June 13, 1995, to February 21, 1997, and post-February 21, 1997. Mr. Gitlow compared non-Nicaraguans for the same period of pre- and post-June 13, 1995, and found that Nicaraguan applications increased 239% more than applications of non-Nicaraguans. In analyzing motions to reopen, he found that during the pre-June 13, 1995, and post-June 13, 1995, periods, there was a 315% increase in applications, and a 2,000% decrease subsequent to February 21, 1997, when Matter of N-J-B was publicly announced. Mr. Gitlow testified that there was a precipitous rise in applications during the June 13, 1995, to February 21, 1997, period, and a precipitous decline in applications subsequent to that period. As the result of the program to induce Nicaraguans to come forward, the Nicaraguans paid substantial fees to the Immigration and Naturalization Service. Haydee Marin estimated that the fees solely for the applications for suspension of deportation and motions to reopen were over $1.5 million. Mr. Gitlow did a cluster sample of fees paid during the period June 13, 1995, to February 21, 1997. He determined that the total amount paid in Miami alone was a minimum of $1,161 million. He stated that if there were other files that could be reviewed, the amounts could go as high as $1.4 or $1.7 million. The Plaintiffs also made a financial commitment to their cases, not only in the fees they paid to the INS, but also in the substantial attorneys’ fees and other resources that were necessary to reopen their cases. Numerous witnesses testified that they came forward and applied for suspension. Ms. Olga Lazo said that she applied based on the news reports because “we were almost 100% sure that we really had suspension.” As a result of coming forward, the Nicaraguan class members gave up substantial benefits. Many of them gave up their right to continue to seek political asylum in the United States. At the time of these hearings the INS estimated that there were approximately 15,200 long-term asylum applications pending, of which 80% would be facially eligible for suspension because they were here for seven years or more. There is no doubt that the Government’s conduct created a substantial expectation in the community that, when coupled with the statutory right to seek asylum, created a property or liberty interest in the right to a hearing on their claims for suspension of deportation. On February 21, 1997, as a result of the change in policy by the Defendants, Plaintiffs were deprived of the right to have a hearing on their claims for suspension of deportation. As a result of the change of policy, class members had their applications for suspension of deportation “pretermitted.” Class members were denied suspension of deportation. The BIA began dismissing appeals because Matter of N-J-B pretermitted their cases. Class members whose cases are now pending will be subject to pretermission. One lawyer testified that over 250 clients of his were no longer eligible for suspension of deportation in light of the Defendants’ change of policy. The Defendants’ policy is to continue to initiate deportation proceedings. Ms. Little testified that in a meeting with Robert Bach, INS Executive Associate Commissioner for Policy and Planning, she was informed that INS would execute deportation orders. This is reflected in the Government’s issuance of “bag and baggage” letters, which are notices to appear to be physically removed from the United States. These letters have been given to class members. An interpretation of a statute that has the effect of barring completely access to the courts irrespective of the merits of a person’s claim has been held to-violate due process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). A retroactive application of § 309(c)(5) violates due process by barring persons completely from even applying for suspension of deportation. Deportable aliens, such as Plaintiffs and class members, have long been recognized as having full due process rights. Bridges v. Wixon, 326 U.S. 135, 152, 65 S.Ct. 1443, 1451-52, 89 L.Ed. 2103 (1945); Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir.1987). In paying fees to the government for an application, the Plaintiffs and class members have a property interest in obtaining a hearing on them applications. This record establishes that persons who came forward, who were placed in deportation proceedings prior to seven years of presence (but had their hearing after seven years), and who then won their suspension case are now being denied the right to seek suspension of deportation, even if they have now been in the United States for more than seven years. Conversely, someone who evaded INS successfully for seven years is eligible for suspension of deportation. The latter person is eligible even if he has been here less time than a person who has been served with an Order to Show Cause but where INS took no action to deport the person until many years after the seven years were reached. Any scheme which grants relief to persons who did not come forward and denies relief to persons who did come forward is irrational and in violation of equal protection. Similarly, 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. As the evidence at the hearings before this Court demonstrated, the Defendants’ policy produced conflicting results. Douglas Lux, a lawyer representing hundreds of Nicaraguan clients, testified that he has clients who have been granted suspension who have been in the United States for seven years, and others who have been denied suspension who have been here for 14 years or more, because of Matter of N-J-B. Similarly, Plaintiffs who had their application for suspension pretermitted under N-J-B have been here 12 years, 11 years, and 10 years. There was also testimony of families who came during the same year where, in one case, the husband’s application was pretermitted because he was issued an order to show cause before seven years, and where, in another case, the wife and children were pretermitted because they were served with orders to show cause within seven years while the husband was not. A witness testified concerning the applications of a husband, wife and children heard together before an Immigration Judge, in which the husband and children were granted suspension of deportation, but the wife’s application was pretermitted because she was served with an order to show cause prior to the seven years. Distinctions such as these are wholly irrational and not related to any legitimate governmental interest. This is particularly so in light of an overriding congressional interest under the Immigration and Nationality Act in unifying families. See generally INA § 201(a)(1) and (b)(2)(A)®. Equal protection is also offended when distinctions are drawn between Nicaraguan and other potential applicants for suspension. The Defendants induced only Nicaraguans to come forward and apply for suspension thereby targeting them for unlawful treatment. By establishing a special program that targeted Nicaraguans and that ultimately resulted in their being ordered deported, the Defendants have violated due process. Yeung v. INS, 76 F.3d 337 (11th Cir.1995); Garberding v. INS, 30 F.3d 1187 (9th Cir.1994); Francis v. INS, 532 F.2d 268 (2nd Cir.1976). THE ESTOPPEL CLAIM The traditional elements of estoppel are: (1) a misrepresentation by another party, (2) which has been reasonably relied upon, (3) to the claimant’s detriment. Pinnacle Port Community Assn., Inc. v. Orenstein, 872 F.2d 1536, 1542 (11th Cir.1989); United States v. Asmar, 827 F.2d 907, 912 (3d Cir.1987). The Defendants suggest in their brief at page 27, that a fourth element of estoppel must be established and proven by a party asserting this theory against the government, namely affirmative misconduct. The Plaintiff class takes the position in its brief (page 45) that the Eleventh Circuit has declined to adopt this fourth element of affirmative misconduct as the burden of proof for a party asserting estoppel against the government. The Defendants seemed to agree with this analysis at page 27 of their brief, citing Chiles v. Thornburgh, 865 F.2d 1197, 1202 (11th Cir.1989); Brundidge Banking Co. v. Pike County Agrig. Stabiliz. and Conserv., 899 F.2d 1154, 1161 n. 5 (11th Cir.1990); Eagle v. Sullivan, 877 F.2d 908, 912 n. 7 (11th Cir.1989). Regardless of whether the fourth element of estoppel has been recognized by the Eleventh Circuit, and therefore must be applied in this case, or not, Plaintiffs contend that all the elements of estoppel have been met in this case (Brief, p. 45). Plaintiffs’ contention, and the evidence they were able to present at this very preliminary stage of this case, relies upon the fact that the Defendants, while inducing and encouraging Nicaraguans to apply for the special Review Program in June 1995, and subsequently extending the policy until June 1996, did so with knowledge that Congress was considering drastic changes in the suspension laws which would eliminate the right of Nicaraguans to obtain suspension. This special Nicaraguan Review Program notified Nicaraguan nationals that if they had seven or more years of physical presence in the United States, they might be eligible for relief from deportation by applying for suspension of deportation. Mr. Anthony C. Moseato, Director of the Executive Office for Immigration Review, testified that he was aware as early as June of 1995 that Congress was considering proposals that “would drastically reduce or eliminate the right of people to seek suspension of deportation.” Mr. Moseato had cleared his testimony with supervisors in the Department of Justice, including the Office of Legislative Affairs. His testimony was consistent with his earlier testimony before Congress, where he expressly recognized that “suspension of deportation is drastically curtailed,” under Congress’ proposal in H.R. 1915. The Defendants knew that Congress was making these proposals as early as June of 1995, at the time that they announced the suspension of deportation program and publicized it in the Nicaraguan community. The Defendants continued to publicize and induce Nicaraguans to come forward to apply for relief which Defendants could reasonably have known would not be available. The Defendants wrote to Congressman Gephardt on March 13,1996, supporting this treatment of § 309(c)(5), while continuing to promote and induce Nicaraguans to come forward for the next year. Plaintiffs argue that Defendants were willing to “go along” with the proposal to cut off the right of the same Nicaraguans who they were inviting to come forward to make such applications. The Defendants were well aware by June 1995 that there was a substantial likelihood that suspension of deportation in one manner or another would be “drastically curtailed.” They did not disclose this to the Nicaraguans and, in fact, continued during all of 1995 and 1996 to encourage and induce Nicaraguans to pay the fees and to come forward seeking suspension of deportation. This action by INS affirmatively induced Nicaraguans to apply for due process suspension hearings, knowing that, in all probability, they would never have an opportunity to obtain the relief they were induced to request. INS had already interpreted the new law concerning the time required for physical presence to be of retroactive application at least three months prior to BIA’s announced opinion in N-J-B. A memorandum dated November 29, 1996, (unsigned) from Robert A. Wallis, INS’ acting district director in Miami, to Thomas C. Leupp, INS’ acting Eastern regional director stated: The recent changes in Immigration Law have dramatically limited the opportunity for adjustment of status which has adversely affected a large number of the Nicaraguan cases in the category 3 docket in Miami. Moreover, guidance issued by General Counsel now dictates that motions to reopen for the purpose of filing for suspension of deportation are to be opposed where, as in the case under review, the order to show cause was issued prior to the alien’s accrual of the required physical presence requirement. (Pis.’ Ex. 52 at 2) (emphasis added). The Court has not found anything in the record, including in acting District Director Wallis’ deposition, that elucidates the point that INS apparently knew before the BIA ruled in NJ-B that the new, more restrictive physical presence requirement would apply retroactively, thus rendering ineligible for suspension tens of thousands of previously eligible class members. Plaintiffs assert that Defendants’ acts and conduct go beyond mere misrepresentation and reach the level of affirmative misconduct, citing Akbarin v. INS, 669 F.2d 839, 842 (1st Cir.1982). The Court does not, at this time, consider the District Director’s statement to be a “smoking gun” on the Plaintiffs’ estoppel argument. But the exhibit does raise questions about INS policy at the time they were encouraging Plaintiffs to seek suspension. It supports Plaintiffs’ contentio