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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 471

## Text

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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Summary of Tete amd C088... . ccc cc cccccccscccccess 2

I GSD o.oo ckidnnverissccedcevccctvass 5

PEE Sd conaeudaccencouctnvewsdnevarechadgtbes 5
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
DB PURI oc dine seccccedsvccccscee 16
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
Oe ee oi oe 18
Se eR 8 ec oe ee 2 12
RO oi is big i552 seco eabeny 13
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

OU. B. ©. GASIGRED oc ccccccccccvcccscccevesecs 20

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0161%3A12. Public record. Not legal advice.