The opinion
SCHROEDER, Circuit Judge,
dissenting in part:
I concur in the majority’s holdings with one qualification and one exception.
First, the qualification. It is my view that under § 377, all those who actually tendered a completed form and fee, and those who went to the INS office to do so and were told it would be futile under the INS policy, have standing to have their claims adjudicated. That interpretation is consistent with the statute as read in light of the Supreme Court’s decision that forms its backdrop, and which essentially held that all applicants who were blocked at the INS office by the “advance parole” policy had ripe claims. See Reno v. Catholic Social Services, Inc., 509 U.S. 43, 61-65 , 113 S.Ct. 2485, 2498-99 , 125 L.Ed.2d 38 (1993). It is also consistent with equal protection. To the extent the majority opinion can be read to suggest a narrower interpretation might be appropriate, I would disagree.
Second, after reviewing the plaintiffs’ petition for rehearing, I must disagree with the bottom line of the opinion which instructs the district court to dismiss the action, in favor of permitting a new complaint to be filed. We should instead remand for the district court to determine whether there are class members who satisfy the standing requirements. That is exactly what the Supreme Court told us to do the last time. See Catholic Soc. Services, at 65-67, 113 S.Ct. at 2500 . We should heed its direction. Because the new statute was passed while this appeal was *929 pending, the plaintiffs have never had the opportunity to show that the class includes persons who satisfy the new requirements. Dismissal of the action will no doubt cause irreparable harm to those who have legitimate claims but who may be deported before a new complaint can be filed.
I otherwise agree with the majority opinion.