Amicus Curiae Brief — Reno v. American-Arab Anti-Discrimination Comm.

No. 97-1252 FILED

JUL 1 6 1998

IN THE

: Stat OF THE CLERK

Supreme Court of the United Statescous. vs

OCTOBER TERM, 1998

JANET RENO, Attorney General, et al.,

Petitioners,

VS.

AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE, et al.,

; Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

KENT S. SCHEIDEGGER*

CHRISTINE M. MURPHY

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record

QUESTION PRESENTED

Whether, in light of the Illegal igration Reform

eS ee

to entertain respondents’ challenge to the deportation proceed-

ings prior to the entry of a final order of deportation?

TABLE OF CONTENTS

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I

The underlying claims are cognizable on review of the final

order of deportation under both prior and current law ... 5

Bi: GOs ov casas wctvivvgsentaveseksuem 5

De GIOGEOD os ccedecscecantechiereecerue 6

©. CD 350 vec Sows casedacsvenunee 8

II

Review of the final order of deportation is the exclusive

REED. iv ikedcsécrckvesdcewenesdcsdsevcescytaeeh 13

A. Statute’s language and structure ............. 13

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G. REPO ov cececnceccecaseonsesuas 18

COR dc vikvicis be nen selon dba secegnnsps seazuns 23

(iii)

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U.S.___, 138 L. Ed. 2d 391,

SOF Oe Ce, Che Cee acvcccvccagducheisuavecenk 21

American-Arab Anti-Discrimination Committee v. Reno,

70 F. 3d 1045 (CA9 1995) ........... 3, 4, 8, 11, 20, 21

American-Arab Anti-Discrimination Committee v. Reno,

BODE, Be Gee Gee EEE vwdcnccebeeuasivewes Passim

American-Arab Anti-Discrimination Committee v.

Thornburgh, 970 F. 2d 501 (CA9 1991) .......... 2, 21

Block v. Community Nutrition Institute, 467 U. S. 340,

81 L. Ed. 2d 270, 104 S. Ct. 2450 (1984) ........ 15, 16

Board of Governors of Federal Reserve System v. MCorp

Financial, Inc., 502 U. S. 32, 116 L. Ed. 2d 358,

SEs De Ge SEED vv cccccndnvenntacasssneseni 19

Califano v. Sanders, 430 U. S. 99, 51 L. Ed. 2d 192,

Fe De GR, SECIS ED ccccccesncecectusvenveesense 10

Foti v. Immigration and Nationalization Service,

375 U.S. 217, 11 L. Ed. 2d 281, 84 S. Ct. 306

COED wb cdc Givatien <ussedees dectebeseed kat 16

Huffman v. Pursue, Ltd., 420 U. S. 592, 43 L. Ed. 2d 482,

Ge, SPE atic dostkhekehbnsbsssrachets 20

INS v. Chadha, 462 U. S. 919, 77 L. Ed. 2d 317,

Se i ee ED initcndccuctieauseansones ba 8,9

INS v. Doherty, 502 U. S. 314, 116 L. Ed. 2d 823,

Se ee SU Ks Ocdudauecédséaecedeec wens 22

Jean-Baptiste v. Reno, No. 97-6062

CR ey Oe BN sous Seed vecnenebsannseuataee 13

McKart v. United States, 395 U.S. 185, 23 L. Ed. 2d 194,

RN PID ion chaksewartanes 22

McNary v. Haitian Refugee Center, Inc., 498 U. S. 479,

112 L. Ed. 2d 1005, 111 S. Ct. 888 (1991) .......... 18

Stone v. INS, 514 U. S. 386, 131 L. Ed. 2d 465,

ST Gr IOI cca ed 2ekksdeaceccececess 22

Thunder Basin Coal Co. v. Reich, 510 U. S. 200,

127 L. Ed. 2d 29, 114 S. Ct. 771 (1994) ......... 14, 15

United States Statutes

DU OC Mer ONON oq on civcccicesececccecs 6, 16

8 U.S.C. former § 110Sa(a) ............20200005- 9, 12

8 U.S.C. former § 110Sa(c) ..........0eeeeeeeee 18, 19

eT ee eae 5

8 U.S.C. §1229a(aX(l) .........-. EG ENG Yaa 1

I ne i 2,11

Ne eee 6, 16

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Se eR 8 ec oe ee 2 12

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Oe nh ds 12

WON I, oc sacs s cc daace nck teh 12, 13

i iin s 5 bb hnkacs cua is 18, 19

UO ee i er 6, 7, 8, 17, 22

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0OU.6:.¢ 6 KS 10

28 U.S.C. §2347(b\(1) ........... seen ee “eae eo A 11

Cg ee RAISE aka orn oie 11, 16

Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-575 .. 6

Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. No. 104-208, § 306(c)(1),

SOEs hanedeussaseuaasnenoasehen 7,12

Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. No. 104-208, § 309,

SO SEE oc0c as den.<o be satneehouseewes 7,8

S. Rep. No. 249, 104th Cong., 2d. Sess. (1996) ........ 17

S. Rep. No. 48, 104th Cong., Ist Sess. (1995) .......... 17

Treatises

A. Fragomen & S. Bell, Immigration Fundamentals—

A Guide to Law and Practice (4th ed. 1997) ....... 6,17

C. Gordon, S. Mailman & S. Yale-Loehr, Immigration

Law and Procedure (rev. ed. 1998)........... 18, 20, 22

R. Rotunda & J. Nowak, Treatise on Constitutional Law

SE Mi nd: k 5 wih dd ue beeen Oh ou a aaete ait 15

C. Wright, A. Miller, & E. Cooper, Federal Practice and

PURGE, WH sc caaeubbentauddees Suuseoes 21

Miscellaneous

Hart, The Power of Congress to Limit the Jurisdiction of

Federal Courts: An Exercise in Dialectic,

Gp BOs Bs EU, TE CO nc ccc ccccccsvcuceceed 18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

JANET RENO, Attorney General, et al., .

Petitioners,

vs.

AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE, et al.,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONERS

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society.

Society has a strong interest in being free from the threat of

terrorism. The present case will affect the government’s ability

to rapidly and effectively deport persons supporting terrorist

organizations. Delay in the deportation of these individuals is

Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

contrary to the rights of victims and society which CJLF was

formed to advance.

SUMMARY OF FACTS AND CASE

In 1987, the Immigration and Naturalization Service

(“INS”) began proceedings to depert eight alien members of the

Popular Front for the Libeg§fon of Palestine (“PFLP”).

American-Arab Anti-Discrimination Committee v. Reno, 119

F. 3d 1367, 1370 (CA9 1997) (“American-Arab IT’). The

government contended that the “PFLP is an international

terrorist and communist organization.” /bid. The organization,

which has proclaimed the United States one of its enemies, has

engaged in terrorist activity that has resulted in the deaths of at

least 26 individuals, 17 of whom were United States citizens.

See Pet. for Cert. 2. The FBI had uncovered evidence that the

eight aliens were engaged in fundraising activities for the PFLP.

See Pet. for Cert. 3. Based on this information, the initial

deportation charges were drafted by the INS. Pet. for Cert. 3-4.

The INS originally charged the aliens with routine status

violations under 8 U.S. C. §§ 1251(a)(2) and 1251(a)(9) and for

one violation based on the group’s fund-raising activities, a

violation of 8 U. S. C. §1251(a)(6). American-Arab Anti-

Discrimination Committee v. Thornburgh, 970 F. 2d 501, 504

(CA9 1991). Administrative remedies for the status violations

proceeded through the steps of the Immigration and Nati.ality

Act’s (“INA”) statutory review scheme. See id., at 505, n. 2.

The section 1251(a)(6) charge, on the other hand, became the

basis for a challenge in federal district court by the American-

Arab Anti-Discrimination Committee and the eight aliens.

American-Arab II, supra, 119 F. 3d, at 1370. The original

complaint filed in the district court claimed “that section

1251(a)(6)(D) violated the first and fifth Amendments, that the

government engaged in selective prosecution in violation of the

first and fifth Amendments, and that the INS procedures could

not provide them with a fair and impartial hearing.” American-

—_ ea

Arab Anti-Discrimination Committee v. Thornburgh, supra,

970 F. 2d, at 505. The plaintiffs’ claimed “that the INS had

singled them out for selective enforcement of the immigration

laws based on the impermissible motive of retaliation for

constitutionally protected associational activity.” American-

Arab Anti-Discrimination Committee v. Reno, 70 F. 3d 1045,

1054 (CA9 1995) (“American-Arab I’).

The section 1251(a)(6) charges were subsequently dropped.

However, additional charges were alleged against Hamide and

Shehadeh, the two permanent resident aliens. Pet. for Cert. 4.

The INS “brought new charges against them under 8 U. S. C.

§ 1251(a)(6)(f(iii), alleging that they were deportable as

members of an organization that advocates or teaches the

unlawful destruction of property. Later, the INS added a charge

under 8 U.S. C. § 1251(a)(6)(f)(ii), alleging that Hamide and

Shehadeh were associated with a group that advocates the

unlawful assaulting or killing of government officers.”

American-Arab I, 70 F. 3d, at 1253.

The District Court eventually issued a preliminary injunc-

tion enjoining the INS from conducting proceedings against the

six aliens charged with routine status violations. See American-

Arab I, 70 F. 3d, at 1054.. The District Court, finding it lacked

jurisdiction over Hamide and Shehadeh’s claims, granted

summary judgment to the government as to those claims. Pet.

for Cert. 5. The Court of Appeals in American-Arab I, how-

ever, decided that the federal courts had jurisdiction to review

Hamide and Shehadeh’s selective enforcement claims.

American-Arab I, 70 F. 3d, at 1071. The District Court then

stayed the proceeding against Hamide and Shehadeh and upheld

the injunction of the proceedings against the other six plaintiffs.

American-Arab II, 119 F. 3d, at 1370; see Pet. for Cert. 5-8

(detailed description of these federal court decisions).

The government appealed the “district court’s decision

refusing to dissolve the existing preliminary injunction and

granting the injunction in favor of Hamide and Shehadeh.”

American-Arab II, 119 F. 3d, at 1370. While the appeal was

pending, the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”) was enacted. Pet. for Cert. 9.

The government then filed motions to dismiss based on the fact

that 8 U. S. C. § 1252(g) as enacted by the IIRIRA deprives the

federal court of jurisdiction over the aliens’ claims. American-

Arab I], 119 F. 3d, at 1371.

The Court of Appeals in American-Arab I] agreed with the

government that section 1252(g) applies retroactively but

concluded that the section does not eliminate federal court

jurisdiction over the plaintiffs’ claims. /d., at 1372. The Court

of Appeals concluded that application of section 1252(g) would

raise “ ‘serious constitutional question[s] . . . if [it] were

construed to deny any judicial forum for a colorable constitu-

tional claim.’ ” /bid. (quoting Webster v. Doe, 486 U. S. 592,

603 (1988)) (internal quotation marks and citations omitted).

To correct this perceived denial of meaningful judicial review,

the court construed section 1252(f) to preserve the federal

court’s jurisdiction and held that it was “incorporated” in the

retroactive subdivision (g). /d., at 1373. The Court of Appeals

also reaffirmed its holding in American-Arab | that “prompt

judicial review of the Plaintiffs’ claims was required because

violation of Plaintiffs’ First Amendment interests would amount

to irreparable injury that ‘cannot be vindicated by post-depriva-

tion remedies.’ ” /d., at 1374 (quoting, with original emphasis,

American-Arab I, supra, 70 F. 3d, at 1057).

The Court of Appeals then affirmed the District Court’s

decision to issue the preliminary injunction to Hamide and

Shehadeh and to affirm the injunction issued to the other six

aliens. Pet. for Cert. 10. The court also denied the govern-

ment’s request for rehearing en banc. Pet. for Cert. 11. The

government then sought a writ of certiorari from this Court.

Certiorari was granted on June 1, 1998, limited to the jurisdic-

tional question.

SUMMARY OF ARGUMENT

The Court of Appeals’ interpretation of the Illegal Immigra-

tion Reform and Immigrant Responsibility Act (“IIRIRA”) is

contrary to the clear intent of Congress to consolidate all

litigation of deportation into the statutory review procedure of

8 U. S. C. §1252. The Court of Appeals read 8 U. S. C.

§ 1252(b)(4)(A) and its predecessor, 8 U. S. C. former

§ 1105a(a)(4), in isolation to preclude transfer under 28 U. S. C.

§ 2347(b)(3) to the district court. These provisions should not

be read in isolation.

Considering the section as a whole and the principle of JNS

v. Chadha, 462 U. S. 919 (1983), amicus submits that the

requirement that the petition be decided only on the administra-

tive record should be limited to those claims which the alien

could present to the agency. Under this understanding, 28

U. S. C. §2347(b) remains available and permits meaningful

review of all claims. Congress intended that review of the final

order be the complete and exclusive remedy. Amicus’ interpre-

tation of the IIRIRA will allow this intent to be realized.

ARGUMENT

I. The underlying claims are cognizable on

review of the final order of deportation under both

prior and current law.

A. Overview.

The Immigration and Nationality Act (“INA”) establishes

the procedures for the deportation of aliens in this country. See

generally 8 U. S. C. §1101 et seg. The Act also constructed a

comprehensive administrative and judicial review scheme for

the review of deportation proceedings.

“In general, removal determinations are initially made by

immigration judges, and are appealable to the BIA [Board

of Immigration Appeals]. The BIA, in turn, renders the

final administrative decision with regard to all matters

relating to removal proceedings, including eligibility for

relief from removal, detention, and parole and bond determi-

nations.” A. Fragomen & S. Bell, Immigration Fr ndamen-

tals—A Guide to Law and Practice, ch. 8.1, p. 8-1 (4th ed.

1997).

Upon completion of this administrative review process, the Act

then permits review of the final order of deportation in the court

of appeals. 8 U.S. C. former § 1105a; § 1252.

The Illegal Immigration Reform and Immigrant Responsi-

bility Act of 1996 (“ITRIRA”) has recently amended the INA.

The IIRIRA, which was enacted as part of the Omnibus

Appropriations Act of 1997, Pub. L. No. 104-208, 110 Stat.

3009-575, repeals the prior judicial review statute, 8 U. S. C.

§ 1105a, and replaces it with 8 U. S. C. § 1252. Subdivision (g)

of the new section 1252 explicitly limits the jurisdiction of the

federal courts. The Court of Appeals believed that application

of this provision according to its plain meaning would prevent

the plaintiffs in the present case from receiving meaningful

review of their selective enforcement claims. Properly under-

stood, however, the INA’s administrative and judicial review

scheme, both before and after the amendments, provides for

complete review of all claims upon the issuance of the final

order of deportation.

B. Effective Date.

Part of the Court of Appeals’ interpretive difficulty stem-

med from the differing effective dates of the subdivisions of

8 U. S. C. § 1252. See American-Arab Anti-Discrimination

Committee v. Reno, 119 F. 3d 1367, 1372 (CA9 1997)

(“American-Arab IT’). Subdivision (g) of that section, titled

“Exclusive jurisdiction,” provides:

“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.”

Congress instructed that the subsection should apply

immediately. Section 306(c)(1) of the ITRIRA states that:

“subsection (g) of section 242 of the Immigration and

Nationality Act (as added by subsection(a)), shall apply

without limitation to claims arising from all past, pending,

or future exclusion, deportation, or removal proceedings

under such Act.” Pub. L. bo. 104-302, 110 Stat. 3009-612.

The rest of the act, however, does not apply until April 1, 1997,

see Pub. L. No. 104-208, § 309(a), 110 Stat. 3009-625 (1997),

and cases pending on the effective date are “grandfathered.”

See infra, at 8.

If the term “this section” in subdivision (g) was applied

literally, and if the effective date provisions are applied as

written, illogical results would follow. If the remedies in

subdivisions (a) through (f) of section 1252 are the only

remedies, but those subdivisions do not apply to cases pending

when IIRIRA was enacted, then there would be no judicial

review for those cases. The Court of Appeals chose to break the

second horn of this dilemma, disregarding the plain language of

Congress’ effective date mandate, and “incorporating” other

subdivisions of section 1252 into the “retroactive” subdivision

(g). There is a simpler solution that does less violence to the

statutory language: break the first horn of the dilemma. Amicus

submits that the term “this section” in subdivision (g) should be

understood to refer to whichever judicial review section governs

the proceeding in question, whether it be present section 1252

or its predecessor, former section 1105a.

te

Section 309%(a): IN GENERAL. —Except as provided in this section and

sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) of this division, this

subtitle and the amendments made by this subtitle shall take effect on the first

day of the first month beginning more than 180 days aft.r the enactment of the

Act (in this title referred to as the “title III-A effective date”).

The present case is a “transitional case.” Section 309(c)(1)

of the IIRIRA provides:

*“ .. in the case of an alien who is in exclusion or deporta-

tion proceedings as of the title III-A effective date—

(A) the amendments made by this subtitle shall not apply,

and

“(B) the proceedings (including judicial review thereof)

shall continue to be conducted without regard to such

amendments.”

Deportation proceedings were begun against the plaintiffs

in January 1987. American-Arab II, supra, 119 F. 3d, at 1370.

Soon after, the plaintiffs filed in the district court a federal

action contesting “the deportation proceeding on First Amend-

ment grounds.” /bid. Since that time, the First Amendment

claim and the appropriateness of the various courts’ jurisdiction

have been extensively litigated. See American-Arab Anti-

Discrimination Committee v. Reno, 70 F. 3d 1045, 1066 (CA9

1995) (“American-Arab I’). Technically, then, the deportation

proceedings are still pending. This case is governed by

8 U.S.C. former § 1105a, as modified by IRIRA §309(c)(4).

As discussed further in part II, infra, 8 U. S. C. § 1252(g) makes

those review procedures exclusive.

C. Cognizable Claims.

The aliens’ ability to litigate their claims on review of the

final order of deportation follows from the principles in JNS v.

Chadha, 462 U.S. 919 (1983). In that case, Chadha’s constitu-

tional challenge to the congressional veto was beyond the

administrative agency’s authority. Hearings had been con-

ducted and an immigration judge had suspended Chadha’s

deportation. /d., at 923-924. A report of the suspension was

forwarded to Congress, as it had the power to veto the determi-

3. Paragraphs (2), (3), and (4) provide the Attorney General with options to apply

the new act and for modifications to the old section.

nation under section 244(c)(2) of the INA. /d., at 924-925.

Congress ultimately vetoed the suspension, and the immigration

judge reopened the deportation proceedings. /d., at 928.

Chadha challenged the constitutionality of section 244(c)(2).

Ibid. However, the immigration judge ruled that he had no

authority to reach this question. /bid. On appeal to the Board

of Immigration Appeals (“BIA”), Chadha again challenged

section 244(c)(2). Like the immigration judge in the prior

proceeding, the BIA also held it was without authority to rule on

the constitutionality of an act of Congress. /bid.

Pursuant to 8 U. S. C. former § 1105a(a), Chadha sought

review in the Court of Appeals, where his constitutional

challenge was resolved. Chadha, 462 U. S., at 928. Both

Houses of Congress appearing as amicus curiae challenged the

Court of Appeals’ jurisdiction over Chadha’s claim. /d., at 937.

Amicus claimed that “the one-House veto authorized by

§ 244(c)(2) takes place outside of the administrative proceed-

ings,” and therefore is not encompassed in section 1 105a’s grant

of jurisdiction. /bid. Although past authority could be inter-

preted as requiring a direct attack on the deportation order, the

Court did not accept this argument. /d., at 937-938. The Court

recognized that “Chadha’s deportation stands or falls on the

validity of the challenged veto.” /d., at 938. The Court then

concluded that a final order of deportation “ ‘includes ai/

matters on which the validity of the final order is contingent,

rather than only those determinations actually made at the

hearing.’ ” /d., at 937 (emphasis added).

Resolution of the American-Arab plaintiffs’ selective

enforcement claim will determine whether the plaintiffs can be

removed from the United States. Like Chadha’s claim, plain-

tiffs’ deportation “stands or falls” on the validity of the claim.

The final order of deportation is thus contingent on the resolu-

tion of the challenge and, accordingly, is encompassed in both

section 1252 and former section 1105a’s judicial review

schemes.

~

10

The majority of claims affecting an order of deportation can

be resolved in the administrative review process under former

section 1105a or section 1252. However, as this Court has

counseled, ‘“[c]onstitutional questions obviously are unsuited to

resolution in administrative hearing procedures ... .” Califano

v. Sanders, 430 U. S. 99, 109 (1977). Under Chadha, the Court

of Appeals, on review of the deportation order, has jurisdiction

over all matters that effect the validity of the final order of

deportation, regardless of whether the BIA could or did consider

them.

‘yorn former section 1105a and section 1252 incorporate the

procezures of chapter 158 of title 28. In that chapter, 28

U. S. C. § 2347 establishes a mechanism for review of claims

not addressed during the administrative review process. Section

2347(b) provides:

“When the agency has not held a hearing before taking the

action of which review is sought by the petition, the court of

appeals shall determine whether a hearing is required by

law. After that determination, the court shall—

(1) remand the proceedings to the agency to hold a hearing,

when a hearing is required by law;

“(2) pass on the issues presented, when a hearing is not

required by law and it appears from the pleadings and

affidavits filed by the parties that no genuine issue of

material fact is presented; or

“(3) transfer the proceedings to a district court for the

district in which the petitioner resides or has its principal

office for a hearing and determination as if the proceedings

were Originally initiated in the district court, when a hearing

is not required-by law and a genuine issue of material fact

is presented.”

The section requires the Court of Appeals to first determine

“whether a hearing is required by law.” 28 U. S. C. §2347(b).

This determination directs where the court will remand the case

for additional factfinding. When an agency has failed to

1]

properly develop the record for an issue that it is required to

hear, the court can remand the case to the agency for correction

of this error. § 2347(b)(1). When an agency is not required to

conduct a hearing and “a genuine issue of material fact” is

raised, the Court of Appeals can then turn to the district court

for additional factfinding. §2347(b)(3). To implement the

Chadha principle, this section must be understood as applying

separately to the various claims. That is, when the agency

cannot consider a constitutional attack, an administrative

hearing is not “required by law” as to that claim and district

court factfinding is appropriate.

“An immigration judge shall conduct proceedings for

deciding the inadmissibility or deportability of an alien.”

8 U. S. C. §1229a(ay(1). These proceedings will normally

focus on the violations charged. In the present case, the

majority of the violations that have been charged are routine

status violations. 8 U.S. C. §§ 1251(a)(2) and 1251(a)(9). For

example, the plaintiffs have bews « sarged with violations of

8 U.S. C. § 1251(a)(2) for overt: .ny their visas. American-

Arab I, supra, 70 F. 3d, at 105.. ine hearing that is required to

be conducted for the resolution of this claim will focus on the

visa and evidence that the individuals overstayed its length. If

the proceedings before the immigration judge and the appeal to

the BIA fail to develop a record sufficient to establish the

validity of the visa violations, then the Court of Appeals would

be required to remand the case to the BIA for further develop-

ment of iuese facts.

However, because JNS v. Chadha has developed such a

broad definition of review of final orders, some questions will

be beyond the agency’s authority. For example, the proceedings

for the six aliens charged with status violations will focus on the

actual violations as it is these charges that decide if the aliens

are deportable. Finding the facts underlying the selective

enforcement claim, however, is not necessary for the resolution

of these violations, and therefore, the agency is not required by

law to hold a hearing to find these facts. It is this situation that

section 2347(b)(3) anticipated. -If the administrative review

12

process has failed to develop “a genuine issue of material fact”

that affects the final order of deportation, the district court can

then conduct additional factfinding.

The Court of Appeals rejected the argument that transfer to

the district court was available. It believed that 8 U. S. C.

§ 1252(b)(4)(A) and its predecessor, 8 U. S. C. former

§ 110S5a(a)(4), precluded such a transfer. The new section

provides that the Court of Appeals “shall decide the petition

only on the administrative record . . . ” with exceptions not

applicable here, and the former section is substantially the same.

To be sure, both the former and present provisions, read in

isolation, would seem to have the meaning the Court of Appeals

gives them. Yet these provisions must be read in light of the

section as a whole and the Chadha principle. Congress

unambiguously required “all questions of law and fact” to be

litigated “in judicial review of a final order under” section 1252.

8 U. S. C. §1252(b)(9). Congress thought exclusivity of the

remedy was so important that it made subsection (g) alone

applicable to pending cases. IIRIRA §306(c)(1). When

combined with the presumption that all claims must be review-

able at some point, see infra, at 18, these provisions indicate

strongly that all claims against deportation should be cognizable

on review of the final order.

In light of these considerations, the requirement that the

petition be decided only on the administrative record should be

understood as limited to those claims which the alien could

present to the agency. For other claims, section 2347(b)

remains available. This interpretation is reinforced by

8 U. S. C. §1252(a)(1), which specifically forbids use of

subdivision (c) of section 2347. If Congress had intended to

forbid invocation of both subdivisions (b) and (c), it would have

been simple enough to say so. The omission of (b) while

forbidding (c) implies that (b) remains available.

Congress intended that review of the final order be the

complete and exclusive remedy. The interpretation of section

1252 that amicus proposes, while admittedly a bit of a stretch,

13

does far less violence to the overall statutory language than the

Court of Appeals’ contortion.

Il. Review of the final order of deportation is

the exclusive remedy.

A. Statute 's Language and Structure.

For cases commencing after April 1, 1997, the exclusivity

of the statutory remedy is explicit:

“(9) Consolidation of Issues for Judicial

Review.—Judicial review of all questions of law and fact,

including interpretation and application of constitutional

and statutory provisions, arising from any action taken or

proceeding brought to remove an alien from the United

States under this title shall be available only in judicial

review of a final order under this section.” 8 U. S. C.

§ 1252(b)(9).

While other sections of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”) may be less

than exemplars of draftsmanship, this one is crystal clear. It is

difficult to see how Congress could have stated exclusivity

more clearly. A construction of the IIRIRA to provide other

channels of review when review of a final order is available,‘ as

the Ninth Circuit construed subsection (f) in the present case,

American-Arab Anti-Discrimination Committee v. Reno, 119

F. 3d 1367, 1372 (CA9 1997) (“American-Arab IT’), would be

contrary to the unmistakable language of subsection (b)(9).

Review of the final order as the exclusive remedy comports

with Congress’ intent to streamline the deportation process by

4. The question of availability of habeas corpus when review of the final order is

precluded by section 1252(a)(2), see, e.g , Jean-Baptiste v. Reno, No. 97-6062

(CA2 May 8, 1998), is not presented by the present case and need not be

considered.

14

precluding initial judicial review’ and provides for meaningful

review of all claims. Sections 1105a and 1252 were enacted to

preclude initial judicial review and to allow for the completion

of the INA’s administrative review process. To reach this

objective, Congress limited the judicial system’s jurisdiction to

review of final deportation orders only. Section 1252(g) was

enacted to reinforce this preclusion of jurisdiction.

Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 207

(1994) illustrates the appropriate analysis to review statutory

schemes that limit initial judicial review. In Thunder Basin,

this Court was asked to analyze the Mines Act’s judicial review

scheme. /d., at 206. The Mines Act gave the Secretary of

Labor the authority to enforce compliance with the Act’s

provisions through civil penalties and other sanctions. /d., at

204. Individuals could challenge the Secretary’s enforcement

of the Act by seeking review with the Mine Safety and Health

Commission (“MSHC”). Jbid. In addition, 30 U. S. C.

§ 816(a)(1) of the act granted exclusive jurisdiction to the Court

of Appeals to review challenges to MSHC decisions. /d., at

208.

The Thunder Basin petitioner, however, sidestepped the

administrative scheme and made a preemptive strike. Before

the Secretary of Labor even attempted to enforce sanctions for

Thunder Basin’s violation of 30 CFR § 40.4, the petitioners

filed suit in the federal District Court to prevent the enforce-

ment. /d., at 204-205. The petitioner’s employees, pursuant to

the requirements of section 813(f) of the Mine Act, had

appointed two employees of the United Mine Workers of

America Union, who were not employees of the mine, to serve

as their representatives. /bid. Thunder Basin claimed that the

designation of these non-employee union representatives

violated the principles of collective-bargaining representation

5. “Initial judicial review” refers to review conducted before the administrative

remedies are exhausted.

15

under the National Labor Relations Act. /d., at 205. Thunder

Basin alleged that requiring it to make the challenge

“through the statutory-review process would violate the Due

Process Clause of the Fifth Amendment, since the company

would be forced to choose between violating the Act and

incurring possible escalating daily penalties, or, on the other

hand, complying with the designations and suffering

irreparable harm.” /bid. (footnote omitted).

The Court of Appeals for the Tenth Circuit concluded that the

district court lacked jurisdiction over the petitioner's claims,

and this Court agreed. /d., at 205, 218.

Although the presumption normally favors constructions

that allow judicial review of administrative proceedings,

1 R. Rotunda & J. Nowak, Treatise on Constitutional Law

§ 2.11, p. 132, n. 23 (2d ed. 1992), this presumption was

overcome in Thunder Basin because Congress’ intent to

preclude initial judicial review was “ ‘fairly discernible in the

statutory scheme.’ ” Block v. Community Nutrition Institute,

467 U.S. 340, 351 (1984) (quoting Data Processing Service v.

Camp, 397 U.S. 150, 157 (1970)); see Thunder Basin, supra,

510 U. S., at 207.

The Court instructed that

“(whether a statute is intended to preclude initial judicial

review [should be] determined from the statute’s language,

structure, and purpose, its legislative history, Block, 467

U. S., at 345, and whether the claims can be afforded

meaningful review. See, e.g., Board of Governors of

Federal Reserve System v. MCorp Financial, Inc., 502

U. S. 32 (1991); Whitney Bank v. New Orleans Bank, 379

U.S. 411 (1965).” Thunder Basin, 510 U. S., at 207.

Under this analysis, Congress’ intent to limit judicial review to

final orders of deportation only is apparent.

The INA’s statutory scheme as a whole supports the

conclusion that Congress intended to preclude initial judicial

review. See Block, supra, 467 U. S., at 349. Congress has set

16

up a system of administrative and judicial review that is

comprehensive. See generally 8 U. S. C. former §1105a;

§ 1252. The system provides mechanisms for review of all

claims insuring that judicial review will not be completely

denied, see, e.g, 28 U. S. C. §2347(b)(3), and explicitly

designates the appropriate courts for such review. Development

of such a comprehensive administrative and judicial review

scheme suggests that Congress intended to limit review to final

orders of deportation. If sections | 105a and 1252’s procedures

are not applied to the American-Arab petitioners’ claim, this

comprehensive system has no real authority over the efficient

resolution of immigration matters.

B. Purpose and History.

Congress’ i.tent to preclude initial judicial review can also

be “inferred .. . from the collective import of legislative and

judicial history behind a particular statute.” Block, supra, 467

U. S., at 349. When Congress enacted 8 U. S. C. § 1105a in

1961, it intended to limit judicial review to final orders of

deportation. Soon after section | 105a was enacted, this Court

had occasion to interpret the provision and address the purpose

behind the new legislation. Foti v. Immigration and National-

ization Service, 375 U. 8. 217 (1963). The Court explained that

the

“fundamental purpose behind section 106(a) [codified as 8

U. S. C. § 1105a] was to abbreviate the process of judicial

review of deportation orders in order to frustrate certain

practices which had come to the attention of Congress,

whereby persons subject to deportation were forestalling

departure by dilatory tactics in the courts.” /d., at 224.

To prevent attorneys from exploiting the judicial review process

and delaying the enforcement of the INA deportation provision,

Congress eliminated “the previous initial step in obtaining

judicial review—a suit in a District Court—. . . .” and limited

review to the statute’s provisions. /d., at 225.

i le A le SRE tee et Ba

17

Since 1961, the INA has been modified a number of times.

A. Fragomen & S. Bell, Immigration Fundamentals—A Guide

to Law and Practice, ch. 1.3, p. 1-5 (4th ed. 1997) (listing

amendments to the INA). The goal behind each amendment to

the INA has always been to develop “an immigration policy that

is both fair and effective ....” S. Rep. No. 249, 104th Cong.,

2d. Sess., 7 (1996) (emphasis added); see also S. Rep. No. 48,

104th Cong., Ist Sess., 1, 3 (1995) (describing how the immi-

gration system is in disarray and needs to be simplified as

applied to criminal aliens in order to be effective); Fragomen

& Bell, supra, at 1-6 (explaining that the Immigration Reform

and Control Act of 1986 stemmed from an attempt by Congress

to “regain control of its border while upholding the traditional

American standards of fairness and compassion . . .”’).

Of particular concern recently has been insuring the

enforcement of the INA’s provisions. S. Rep. No. 249, at 7. A

report on the Immigration Control and Financial Responsibility

Act of 1996 explained:

“Some Americans appear to be ambivalent about the

enforcement of the Immigration and Nationality Act. This

includes a number of judges, perhaps reflecting a tension

they feel between their duty to apply the law and their

inclination to be humane toward those seeking a better life

in this country ....” /bid.

To correct this ambivalence and to achie ve a fair and effective

procedure for deportation matters, the judiciary committee

realized that Congress needed to be explicit regarding its

objectives. /bid. Congress could not have been more explicit

with its retroactive application of section 1252(g): “Except as

provided in this section and notwithstanding any other provi-

sion of law, no court shall have jurisdiction... .” 8 U.S.C.

§ 1252(g) (emphasis added).

18

C. Meaningful Review.

In McNary v. Haitian Refugee Center, Inc., 498 U. S. 479,

496 (1991), the Court reiterated that the presumption is that

Congress intended to allow for meaningful judicial review of

administrative proceedings. If review of the final order did not

provide meaningful review, there would be a presumption

against its exclusivity. Recognizing that this Court would avoid

statutory interpretation that results in “the practical equivalent

of a total denial of judicial review of generic constitutional and

statutory claims,” id., at 497, Congress left 28 U. S. C.

§ 2347(b)(3) untouched, while it prohibited factfinding pursuant

to 28 U.S. C. §2347(c). See 8 U.S. C. § 1252(a).

As explained in 8 C. Gordon, S. Mailman & S. Yale-Loehr,

Immigration Law and Procedure § 104.13[3][a], page 104-177

(rev. ed. 1998) when discussing the IIRIRA revisions, “alterna-

tive bases of jurisdiction typically exist... . [and] it is mistaken

to assume that a particular provision of the IIRIRA or the

AEDPA terminates all access to the courts simply because a

new statute eliminates the traditional route.” “Our whole

constitutional history shows that Congress generally doesn’t

intend to violate constitutional rights, and a court ought not

readily assume any sudden departure.” Hart, The Power of

Congress to Limit the Jurisdiction of Federal Courts: An

Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1399 (1953). By

leaving section 2347(b)(3) untouched, Congress demonstrated

its concern that all meaningful review not be terminated.

Congress has ensured the constitutionality of its limitation of

jurisdiction to review of final orders of deportations.

Even though the doctrine of exhaustion of administrative

remedies delays application of section 2347(b)(3), the petition-

ers will receive adequate and meaningful review of their claims.

The remedy provided by the court of appeals’ post-administra-

tive review combined with section 2347(b)(3)’s additional

factfinding when necessary, is an adequate and effective means

“to test the validity of the order.” See 8 U. S. C. §1252(d);

8 U. S. C. former § 1105a(c). This Court has found judicial

ts «ty a

19

review schemes that similarly delay review until exhaustion of

administrative remedies to be adequate and effective. Board of

Governors of Federal Reserve System v. MCorp Financial, Inc.,

502 U. S. 32, 43-44 (1991).

In Board of Governors, this Court reviewed “the judicial

review provisions of the Financial Institutions Supervisory Act

of 1966.” /d., at 36. The act gave the Board of Governors of

the Federal Reserve System (“Board”) “substantial regulatory

power over bank holding companies and establishe[d] a

comprehensive scheme of judicial review of Board actions

.... Id., at 37. The specific provision at issue in the litigation

was 12 U.S. C. § 1818(i)(1) which “precluded judicial review

of many Board actions ....” Board of Governors, 502 U. S..,

at 42. MCorp claimed that notwithstanding the statutes’

explicit preclusions of jurisdiction, the district court had

jurisdiction to issue an injunction pursuant to specific sections

of the bankruptcy code and the judicial code. /d., at 39.

This Court held that section 1818(i)(1) precluded such

injunctions. /d., at 42-44. The Court primarily relied on the

fact that “FISA expressly provides MCorp with a meaningful

and adequate opportunity for judicial review... .” /d., at 43.

MCorp was challenging the “validity of the source of strength

regulation.” /bid. The Court concluded that this regulation

could be reviewed in the Court of Appeals affer the Board

concluded that MCorp had violated the regulation. /d., at 43-

44. Although finishing the Board proceedings would delay

MCorp’s judicial review, the Court concluded the review was

adequate.

In the present case, we are faced with a procedurally similar

challenge. The aliens subjected to deportation proceedings

“have filed a federal suit challenging deportation proceedings

on First Amendment grounds before a final order of deportation

has been issued.” American-Arab II, supra, 119 F. 3d, at 1369.

Because the immigration statutes require exhaustion of adminis-

trative remedies before the Court of Appeals obtains jurisdic-

tion, see 8 U. S. C. former § 1105a(c); § 1252(d), the aliens’

20

challenge will be delayed until a final order of deportation is

issued. Individuals, often with greater rights at stake than in the

present case, have their access to federal courts delayed while

their administrative or judicial proceedings are completed. For

example, state prisoners are typically kept in prison awaiting

completion of their state criminal trials and appeals before they

seek federal habeas corpus relief, yet this exhaustion is required.

28 U.S. C. §2254(b)(1). As in Board of Governors, this delay

does not diminish their ability to obtain meaningful review of

their claims.

“A person against whom a deportation proceeding is

brought may feel that the proceeding is unjustified and illegal

but generally has no right to go to court immediately to stop the

proceeding.” Gordon, Mailman & Yale-Loehr, supra,

§ 104.02[2], at 104-22. A petitioner will generally only be

allowed to forego exhaustion of judicial or administrative

remedies if “irreparable injury” would result from the delay.

See, e.g., Huffman v. Pursue, Ltd., 420 U. S. 592, 612 (1975).

In American-Arab Anti-Discrimination Committee v. Reno,

70 F. 3d 1045 (CA9 1995) (“American-Arab I’), the Court of

Appeal “held that prompt judicial review of the Plaintiffs’

claims was required because violation of Plaintiffs’ First

Amendment interests would amount to irreparable injury that

‘cannot be vindicated by post-deprivation remedies.’ ”

American-Arab II, supra, 119 F. 3d, at 1374 (quoting, with

original emphasis, American-Arab I, at 1057). As has been

demonstrated, the post-deprivation review provided by former

section 1105a and section 1252, along with the factfinding

procedures of 28 U. S. C. § 2347(b)(3), are adequate to resolve

the plaintiff's selective enforcement claims. Furthermore,

“(t]he mere fact that the litigant is subjected to the burden of

undergoing the administrative hearing process does not in itself

demonstrate the irreparable harm that would justify injunctive

relief.” Gordon, Mailman & Yale-Loehr, supra, § 104.02[2], at

104-24.

21

American-Arab I claimed “that the perpetual threat of

deportation based on group affiliation constitute[d] the kind of

irreparable injury” that required federal district court interven-

tion. American-Arab I, supra, 70 F. 3d, at 1058. Yet issuance

of a preliminary injunction would not relieve this threat. A

preliminary injunction, even when affirmed on appeal, is not res

judicata. See 16B C. Wright, A. Miller, & E. Cooper, Federal

Practice and Procedure § 4009, p. 157 (2d ed. 1996). Even a

permanent injunction can be lifted if the precedent on which it

is based is no longer good law. See Agostini v. Felton, 138

L. Ed. 2d 391, 409, 117 S. Ct. 1997, 2006 (1997). The prelimi-

nary injunction issued in this case, therefore, does not eliminate

the threat of deportation. The possibility that the plaintiffs will

eventually lose on the merits, and hence the threat of deporta-

tion, remains to this day.°

The uncertainty can only be resolved by a final judgment in

this action or a final order of deportation. The original com-

plaint was filed on April 3, 1987. American-Arab Anti-Dis-

crimination Committee v. Thornburgh, 970 F. 2d 501, 505

(CA9 1991). The present case has been litigated for over ten

years and still has not prevented this “irreparable injury” the

Court of Appeals claims needs federal court intervention. Had

the courts stayed on course, the process would have been much

simpler: two administrative hearings, a court of appeal review

and, if necessary, additional factfinding in the district court.

See supra, at 5-13. Indeed, the plaintiffs’ selective enforcement

claims would likely have been resolved by now. The uncer-

6. As noted earlier, plaintiffs support an organization that has declared the United

States its enemy and murdered American citizens. See supra, at 2. Their

“disparate impact” evidence consisted of a showing that people supporting

opponents of the now-defunct Communist regimes in Afghanistan and

Nicaragua, which were Cold War enemies of the United States, were not

deported. American-Arab Il, 119 F. 3d, at 1375-1376. By holding that this

made a case, the District Court held, in effect, that the Constitution requires the

United States, in the conduct of its foreign affairs, to treat its enemies equally

with its allies. Any rational person would conclude that the possibility of this

decision eventually being reversed is substantial.

22

tainty which is supposedly injuring First Amendment rights has

been extended, not eliminated, by the Ninth Circuit’s failure to

adhere to the INA’s provisions.

“Congress’ intent in adopting and then amending the INA

was to expedite both the initiation and the completion of the

judicial review process.” Stone v. INS, 514 U. S. 386, 400

(1995). The doctrine of exhaustion of administrative remedies’

“underlying aim is to prevent harassing interruptions of the

administrative process and to avoid unnecessary or repetitious

court reviews.” Gordon, Mailman & Yale-Loehr, supra,

§ 104.02[2], at 104-26. In the present case, if the doctrine had

been followed we would have avoided a decade-long debate

over court jurisdiction, and the plaintiffs would have received

both meaningful and timely review of their claims. Instead, the

final resolution of the selective enforcement claim is still

delayed. Since “in a deportation proceeding . . . as a general

matter, every delay works to the advantage of the deportable

alien who wishes merely to remain in the United States,” JNS

v. Doherty, 502 U. S. 314, 323 (1992), this may not cause the

plaintiffs lasting injury.

However, “frequent afd deliberate flouting of administrative

processes could weaken the effectiveness of an agency by

encouraging people to ignore its procedures.” McKart v. United

States, 395 U. S. 185, 195 (1969). Congress recognized this

principle when it reaffirmed the appropriate limits on federal

courts’ jurisdiction. See discussion of 8 U. S. C. § 1252(g),

supra, at 17. It is now time for this Court to allow the INA’s

administrative and judicial review to proceed as designed.

23

CONCLUSION

The decision of the Court of Appeals for the Ninth Circuit

should be reversed and the case remanded with directions to

dismiss for lack of subject-matter jurisdiction.

July, 1998

Respectfully submitted,

KENT S. SCHEIDEGGER*

CHRISTINE M. MURPHY

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record