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

FILED «

SEP 11 1395

No. 97-1252 OFFICE OF THE CLERK

In the Supreme Court =

OF THE

United States

OcTOBER TERM, 1998

JANET RENO, et al.,

Petitioners,

Vv.

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 AMERICAN BAR

ASSOCIATION IN SUPPORT OF RESPONDENTS

Counsel:

Jerrrey L. BLEicn, Esa. Counsel of Record:

HoJOON HWana, Esa. PuHiLiie S. ANDERSON

Davin H. Fry, Eso. AMERICAN BAR ASSOCIATION

CarROL WOLCHOK, Esa. 750 North Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5000

Attorneys for Amicus Curiae

Petition For Certiorari Filed: January 30, 1998

Certiorari Granted: June 1, 1998

BOWNE OF SAN FRANCISCO, INC. + 343 SANSOME ST + SF..CA94104 + (415) 362-2300

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ................. l

STATEMENT OF THE CASE ................. 2

SUMMARY OF ARGUMENT ................. 2

RENEE. 6 Core eleec bib scecetnsessccceese 4

A. PROVISIONS OF IIRIRA MUST BE

CONSTRUED TO AFFORD

RESPONDENTS A FORUM FOR

MEANINGFUL JUDICIAL REVIEW OF

THEIR CONSTITUTIONAL CLAIMS.... 4

B. MEANINGFUL ACCESS TO JUDICIAL

FORUM MAY, IN APPROPRIATE

CIRCUMSTANCES, REQUIRE PROMPT

ACCESS TO THE DISTRICT COURTS... 9

C. PROVIDING PROMPT ACCESS TO

DISTRICT COURTS FOR RESOLUTION

OF COLLATERAL CLAIMS PROMOTES

THE EFFICIENT ADMINISTRATION OF

IMMIGRATION LAWS AND IS

CONSISTENT WITH CONGRESSIONAL

PUES wees cocctsvccadusenegoasseves 19

CR GMMMEE Sesesdvcccvesccsosecccosenense 24

TABLE OF AUTHORITIES

Federal Cases

AADC v. Reno,

70 F.3d 1045 (9th Cir. 1995) ....... 0.060000,

Abbott Laboratories v. Gardner,

eS eee aes

Aircraft & Diesel Equip. Corp. v. Hirsch,

Se EE BEPRacewidsncevecceoeces

Anderson v. Liberty Lobby, Inc.,

in <ocdccstbdegebdvceeecen és

Ardestani v. INS,

PED icudapdeseesgvevsssccese

Bowen v. City of New York,

so

Bowen v. Michigan Academy of Family Physicians,

ED <vods pdedueesebecasees<

Bridges v. Wixon,

SE RT I Pe Sa ON

Califano v. Sanders,

Es io btenedinsesnekenseuce

Cameron v. Johnson,

RE ey

Campos v. Nail,

940 F.2d 495 (9th Cir. 1991) ..............4..

Celotex Corp. v. Catrett,

od ciecedneeene

Cheng Fan Kwok v. INS,

EE RE

Coriolin v. INS,

et ee ee Ee GE BOOED cacccccceccesvecns

14

12

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Cox Broad. Corp. v. Cohn,

i. ic batiWeceseveesceauses es 18, 22

El Rescate Legal Service v. EOIR,

959 F.2d 742 (9th Cir. 1991) .............008. 22

Elrod v. Burns,

nD 28s Cis ccbeeueceeaeuss 17

Estep v. United States,

ED 6 vce dekeseeaeesces cee 6

Fort Wayne Books, Inc. v. Indiana,

ERE I PRS SR Prone era 18

Ghorbani v. INS,

686 F.2d 784 (9th Cir. 1982) ..............05. 12

Gottesman v. INS,

ek eee 9

Haitian Refugee Center v. Smith,

676 F.2d 1023 (Sth Cir. 1982) .............. 7, 8, 22

Howlett v. Rose,

te wicnvekGuticsccvatnéesvus 19

INS v. Cardoza-Fonseca,

i nS << occ necebdasbeuseeses 7

INS v. Cidha,

eT CD vccnnsecncstsvaccuncness 11

Jean v. Nelson,

727 F.2d 957 (llth Cir. 1984) ............45. 7, 8, 22

Johnson v. Robison,

Se ceaauul 4

Landon v. Plasencia,

SE ae OED dP ccc cctecaevotecuceeceties 6

iv

TABLE OF AUTHORITIES

FEDERAL CASES

Lincoln v. Vigil,

508 U.S. 182 (1993) ....... 0. ce ee eens

Makonnen v. INS,

44 F.3d 1378 (8th Cir. 1995) ............

Massieu v. Reno,

915 F. Supp. 681 (D. N.J. 1996).........

Massieu v. Reno,

91 F.3d 416 (3d Cir. 1996)..........666,

Matthews v. Eldridge,

424 US. 319 (1976)... 6c cee eens

McCarthy v. Madigan,

503 U.S. 140 (1992) .. 0... 6 ce cee eee ees

McNary v. Haitian Refugee Center,

pee ea Se

Montes v. Thornburgh,

919 F.2d 531 (9th Cir. 1990) ............

Moore v. City of East Cleveland,

431 U.S. 494 (1977) 2.0... ccc cece ees

National Socialist Party of America

v. Village of Skokie,

432 U.S. 43 (1977) . 2... cc cece cece ees

Neg Fung Ho v. White,

259 U.S- 276 (1922) ..... cee eee ee eees

Olaniyan v. INS,

796 F.2d 373 (10th Cir. 1986) ..........

Orantes-Hernandez v. Meese,

685 F. Supp. 1488 (C.D. Cal. 1986) .....

Orantes-Hernandez v. Thornburgh,

919 F.2d 549 (9th Cir. 1990) ...........

Vv

TABLE OF AUTHORITIES

FEDERAL CASES

Osaghae v. INS,

942 F.2d 1160 (7th Cir. 1991)

PUC of California v. United States,

355 U.S. 534 (1958)

Rafeedie v. INS,

880 F.2d 506 (D.C. Cir. 1989)

Salameda v. INS,

70 F.3d 447 (7th Cir. 1995)

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994)

Tooloee v. INS,

722 F.2d 1434 (9th Cir. 1983)

Traynor v. Turnage,

tt MEE odcccvcsckcscebenace

Turner v. Williams,

Ee EE ces tccnucthencweeess

United States v. Armstrong,

OR OS GN oi cecicccucucccoseae

United States v. Mendoza-Lopez,

481 U.S. 828 (1987) ............ cece ee.

United States v. Nourse,

34 US. (9 Pet.) 8 (1835) ...............

Walters v. Reno,

No. C94-1204C, 1996 WL 897663

(W.D. Wash. Oct. 2, 1996) ..............

Walters v. Reno,

145 F.3d 1032 (9th Cir. 1998) .............

Webster v. Doe,

Ge Ss SO PEED vectiavonebaeseecechs

|

13

22

22

vi

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Wong Wing v. United States,

ee Ss Ee CUED webscccdvncesecsocnsecss 6

Yamataya v. Fisher,

A ED cosvcedéccoubicdwedkeocens 6

Yi v. Maugans,

ee Cee ee Ee Bc 0c se cveshesccinces 8

Younger v. Harris,

Ss Ge TED < ctvdeocencuséucivineseae 19

Statutes

Ds ER ctacevcasbusdecus eeuduessenas passim

i. |” REE rere 9

DC Eb odncevechenvaetusacns cos 12, 16, 17, 19

Be Ce EEE SC dccccctedcetdauesvdsdsdooutes 8

Be ae EE bndcncvdsddncdciabacssusesebs 12, 13

Rules and Regulations

Federal Rule of Civil Procedure 56 .............. 14

U.S. Supreme Court Rule 37.3.................. l

U.S. Supreme Court Rule 37.6..............0065 l

Vii

TABLE OF AUTHORITIES

Legislative Authorities ;

H.R. Rep. No. 104-469, pt. 1 (1996) ............ 16

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996,

Pub. L. No. 104-208, 110 Stat. 3009 .......... passim

Immigration and Naturalization Act

Section 241(a)(4)(C)(i) .... 00... cee ee cee eee 11

PD Minuines cdbbabastedertcdcncasees 2, 3,9, 24

Other Authorities

Immigration & Naturalization Service,

1996 Statistical Yearbook (1996).............. 21

James Madison’s Report, General Assembly of

Virginia (January 7, 1800), reprinted in

The Virginia Commission on Constitutional

Government, The Kentucky-Virginia Resolutions

and Mr. Madison’s Report of 1799 (1960) ...... 5,6

Kenneth C. Davis & Richard J. Pierce, Jr.,

Administrative Law Treatise (1994) ........... ~ 4

P. Schuck and T. Wang,

Continuity and Change: Patterns of Immigration

Litigation in the Courts, 1979-1990,

45 Stan. L. Rev. 115 (1992).................. 7

a

Pursuant to this Court’s Rule 37.3, amicus curiae Ameri-

can Bar Association (“ABA”) respectfully submits this

brief urging the Court to uphold the judgment of the Court

of Appeals for the Ninth Circuit that the District Court

below has jurisdiction to hear the claims of the respondents

herein.

STATEMENT OF INTEREST

The ABA is a voluntary national membership organiza-

tion of the legal profession. The ABA has over 400,000

members representing every state and territory and the

District of Columbia. Its membership and constituency

include prosecutors, public defenders, attorneys in private

practice, trial and appellate judges at the state and federal

levels, ‘legislators, law professors, law enforcement and cor-

rection personnel, law students and a number of non lawyer

associates in related fields.

The ABA has a historic interest in questions concerning

the jurisdiction of federal courts to hear and decide claims

by aliens seeking fair enforcement and implementation of

our nation’s immigration laws in accordance with the Con-

stitution. Consistent with its objective of securing fair and

constitutional implementation of immigration laws, the

ABA’s policymaking House of Delegates created in 1983

the Coordinating Committee on Immigration Law. This

committee, consisting of representatives of nine ABA enti-

ties with relevant and specialized expertise (e.g., in adminis-

trative law), has assisted in organizing numerous pro bono

'This brief is filed with the consent of both petitioners and respon-

dents, and letters reflecting those consents have been lodged with the

Clerk of this Court. Pursuant to the Court’s Rule 37.6, amicus curiae

ABA states that this brief has not been authored in whole or in part by

counsel for a party and that no person or entity, other than amicus, its

members or its counsel have made a monetary contribution to the

preparation or submission of this brief.

2

immigration representation efforts and trained volunteer

attorneys from the private bar to counsel immigrants in

deportation proceedings and represent them on appeal. The

ABA has previously submitted briefs as amicus curiae in

several matters before this Court concerning the rights of

aliens seeking to remain in this country to obtain judicial

review, including McNary v. Haitian Refugee Center, 498

U.S. 479 (1991) (supporting district court jurisdiction to

hear broad-based challenge to INS procedures affecting

resident alien farmworkers) and Ardestani v. INS, 502 U.S.

129 (1991) (in support of interpreting Equal Access to

Justice Act to apply to deportation proceedings).

The ABA appears as amicus curiae in the case because

the question presented herein has serious implications for

the access of immigrants and other parties to an effective

forum for judicial review of administrative agency action,

particularly with respect to judicial review of constitutional

claims arising from agency practices and procedures.”

STATEMENT OF THE CASE

In the interest of judicial economy, amicus respectfully

refers the Court to the statement of the case contained in

the Respondents’ Brief for a full description of the facts

relevant to the resolution of the question presented.

SUMMARY OF ARGUMENT

On this appeal, Petitioners erroneously contend that Sec-

tion 242 of the Immigration and Naturalization Act

Neither this brief nor the decision to file it should be interpreted to

reflect the views of any judicial or individual member of the ABA. No

inference should be drawn that any member of the Judicial Division of

the ABA has participated in the adoption or endorsement of the

positions in this brief. This brief was not circulated to any member of the

Judicial Division Council of the ABA prior to filing.

3

(“INA”) as amended by the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, 110 Stat. 3009 (“IIRIRA”), divests the

federal district courts of jurisdiction over constitutional

claims arising from a decision by the Immigration and

Naturalization Service (“INS”) to initiate deportation pro-

ceedings against Respondents.

This Court has consistently held that congressional enact-

ments regarding the jurisdiction of federal courts must be

interpreted to permit meaningful judicial review of colorable

constitutional claims, in order to avoid the grave constitu-

tional questions that would arise if Congress were to fore-

close review of such claims. Based on this concern, this

Court has narrowly construed administrative review provi-

sions that appear facially to preclude review of the merits of

an administrative determination prior to the exhaustion of

administrative remedies, in order to permit adequate and

timely review of constitutional claims.

In interpreting Section 242 of the INA, as amended by

Section 306 of IIRIRA, the ABA urges that this Court

ensure that aliens’ access to a meaningful forum for vindica-

tion of their constitutional rights is preserved by providing,

in appropriate cases, for prompt review of colorable constitu-

tional claims in the federal district courts. Where, as here, a

constitutional claim requires the development of a factual

record for proper resolution, meaningful review requires

access to the district courts, which are the only federal

judicial fora capable of developing an adequate factual

record. Moreover, in this and many other cases, access to

the federal district courts at the outset would serve Con-

gress’ dual goals of providing meaningful review of constitu-

tional claims and of efficient administration of the

immigration laws.

4

ARGUMENT

A. PROVISIONS OF IIRIRA MUST BE CONSTRUED

TO AFFORD RESPONDENTS A FORUM FOR

MEANINGFUL JUDICIAL REVIEW OF THEIR

CONSTITUTIONAL CLAIMS.

1. In construing congressional enactments governing the

jurisdiction of the federal courts, this Court has long recog-

nized that grave questions of constitutional law, implicating

principles of separation of powers and due process, would

arise if Congress deprived Article III courts of the power to

review colorable constitutional claims. E.g., Webster v. Doe,

486 U.S. 592, 603 (1988); Califano v. Sanders, 430 U.S. 99,

109 (1977). Due to these grave concerns, the Court has

adopted a strong presumption that Congress does not intend

to intrude upon the courts’ power and duty to assure that the

government acts within constitutional limits. Bowen v. Mich-

igan Academy of Family Physicians, 476 U.S. 667, 670

(1986) (citing Marbury v. Madison, 5 U.S. (1 Cranch)

137, 1263 (1803)); United States v. Nourse, 34 US.

(9 Pet.) 8, 28-29 (1835). Because of the importance of

providing judicial review of administrative action for

claimed constitutional defects, “only upon a showing of

‘clear and convincing evidence’ of a contrary legislative

intent should the courts restrict access to judicial review.”

Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967);

accord, Lincoln v. Vigil, 508 U.S. 182, 195 (1993). This

Court moreover, in applying such principles, has consist-

ently interpreted congressional enactments in a manner that

would assure that constitutional violations would not be

insulated from Article III review. See e.g., Johnson v.

Robison, 415 U.S. 361, 367-73 (1974) (holding that statute

purporting to preclude review over all claims did not affect

jurisdiction over constitutional claims); see also, Kenneth C.

Davis & Richard J. Pierce, Jr., Administrative Law Treatise,

§ 17.9 (1994).

5

The Court has also stressed that judicial review of consti-

tutional claims must be provided at a time and in a manner

that would render such review meaningful. Thus, even

where statutory language appears at first blush to require

exhaustion of administrative remedies, such provisions have

been interpreted to preserve initial district court jurisdiction

over claims that would otherwise escape meaningful review.

See Bowen, supra; Traynor v. Turnage, 485 U.S. 5335,

544-45 (1988); Matthews v. Eldridge, 424 U.S. 319, 326-32

(1976). Notwithstanding seemingly-applicable exhaustion

requirements, the Court has “upheld district court jurisdic-

tion over claims considered wholly collateral to a statute’s

review provisions and outside the agency’s expertise...

where a finding of preclusion could foreclose all meaningful

judicial review.” Thunder Basin Coal Co. v. Reich, 510 U.S.

200, 212-13 (1994) (internal quotations and citations omit-

ted); McNary v. Haitian Refugee Center, 498 U.S. 479, 496-

97 (1991) (upholding district court jurisdiction over due

process challenge to INS procedure where application of

review provision would preclude “meaningful judicial

review’).

2. Although the government contends that this canon of

constitutional law and statutory interpretation applies with

less force when the party seeking review is an alien, Pet. Br.

at 39-40, this Court has never suggested that the constitu-

tional significance of meaningful judicial review is dimin-

ished in the immigration context. Indeed, the nature and

magnitude of the liberty interest at stake counsels that

access to meaningful judicial review is particularly impor-

tant to an alien facing deportation. The significance of an

alien’s due process interest in avoiding wrongful deportation

cannot be overstated. As James Madison observed:

If the banishment of an alien from a country into which

he has been invited... where he may have formed the

most tender of connections, where he may have vested his

6

entire property and acquired property... and where he

may have nearly completed his probationary title to citi-

zenship ..., if a banishment of this sort be not a punish-

ment, and among the severest of punishments, it will be

difficult to imagine a doom to which the norms can be

applied.

Mr. (James) Madison’s Report, General Assembly of Vir-

ginia (January 7, 1800) (reprinted in The Virginia Commis-

sion on Constitutional Government, The Kentucky- Virginia

Resolutions and Mr. Madison’s Report of 1799, 36 (1960) ).

Consistent with these concerns, this Court has repeatedly

recognized that the protections of the Due Process Clause of

the Fifth Amendment apply to all persons within the United

States, including aliens. See e.g, Wong Wing v. United

States, 163 U.S. 228, 238 (1896); United States v. Men-

doza-Lopez, 481 U.S. 828, 838 (1987). In particular, the

Court has held without exception that, in light of the

significant deprivation that deportation imposes on the lib-

erty of an alien, meaningful judicial review of the lawfulness

of the deportation order is required. See Landon v.

Plasencia, 459 U.S. 21, 35 (1982) (the court, not Congress

or the INS, must determine “whether the [deportation]

procedures meet the essential standard of fairness under the

Due Process Clause”).’

Judicial review is also particularly important in this con-

text given the frequency with which deportation orders or

related proceedings have been found unlawful. The federal

>See also, Bridges v. Wixon, 326 U.S. 135, 154 (1945) (“Meticulous

care must be exercised lest the [deportation] procedure . . . not meet the

essential standards of fairness.” ); Yamataya v. Fisher, 189 U.S. 86, 101

(1903); Ng Fung Ho v. White, 259 U.S. 276, 285 (1922); Turner v.

Williams, 194 U.S. 279, 295 (1904) (Brewer, J., concurring) (“I do not

believe it within the power of Congress to give ministerial officers a final

adjudication of the right to liberty, or to oust the courts from the duty of

inquiry respecting both law and facts.”).

a IN a i

7

courts have played an indispensable role in vindicating the

constitutional rights of aliens against the INS’s disregard of

constitutional limitations on its authority. Courts have found

that aliens in agency proceedings have been subjected to, for

example: procedures that indisputably failed to satisfy the

minimum standards of due process, see McNary, 498 U.S. at

487-89; a scheme to meet numerical targets for removal of

Haitians at the expense of their rights to seek asylum in this

country, see Haitian Refugee Center v. Smith, 676 F.2d

1023, 1029-32 (Sth Cir. 1982), disapproved on other

grounds, Jean v. Nelson, 727 F.2d 957, 976 n. 27 (11th Cir.

1984); and a pattern and practice of using misrepresenta-

tions, intimidation, coercive detention and transfer policies,

and other measures intended to dissuade Salvadoran refu-

gees from raising claims of asylum, see Orantes-Hernandez

v. Meese, 685 F. Supp. 1488, 1494-1503 (C.D. Cal. 1986),

aff'd sub nom. Orantes-Hernandez v. Thornburgh, 919 F.2d

549 (9th Cir. 1990).*

“Given the significant liberty interest implicated, review of statutory

claims are equally necessary in the deportation context. See Estep v.

United States, 327 U.S. 114, 123 n. 14 (1946) (even where Congress has

made a deportation order “final,” court retained power to review

administrative decision to determine whether it had basis in fact). Even

with respect to whether a deportation order is valid as a statutory matter,

the agency’s determinations have historically been found erroneous in a

significant number of cases. See P. Schuck and T. Wang, Continuity and

Change: Patterns of Immigration Litigation in the Courts, 1979-1990, 45

Stan. L. Rev. 115, 167 (1992) (finding that aliens prevailed in the

courts in approximately 23-36% of “statutory cases” principally involv-

ing final orders of deportation or exclusion between 1979 and 1990). As

the Seventh Circuit has recently acknowledged, “The proceedings of the

[INS] are notorious for delay, and the opinions rendered by its judicial

officers, including the members of the Board of Immigration Appeals,

often flunk minimum standards of adjudicative rationality.” Salameda v.

INS, 70 F.3d 447, 449 (7th Cir. 1995) (Posner, C.J.). See also INS v.

Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Blackmun, J., concur-

ring) (commenting on the INS’s “seemingly purposeful blindness” to a

statutory “standard entrusted to its care”).

3. The importance of the interest at stake and the

historical prevalence of constitutional violations in this par-

ticular context counsel in favor of an unflinching application

of the presumption in favor of meaningful judicial review.

Courts have consistently found jurisdiction over challenges

to the procedures and policies employed by the INS prior to

the commencement of deportation proceedings, in recogni-

tion of the importance of providing meaningful judicial

review and of the unsuitability of the procedures governing

review of an order of deportation (e.g., 8 U.S.C. § 1105a

(1994) ) for review of collateral claims that require a factual

record for proper resolution. See McNary, supra; Smith, 676

F.2d at 1032-33; Jean v. Nelson, 727 F.2d 957 (11th Cir.

1984), affd as to remand, 472 U.S. 846 (1985). As the

Third Circuit noted after surveying the caselaw, the district

courts were deemed to retain their general federal question

jurisdiction under 28 U.S.C. § 1331 “when the challenged

administrative practice, policy or regulation precluded ade-

quate development of the administrative record and conse-

quently meaningful review through the procedures set forth

in § 1105a, and/or when the challenged practice was : ollat-

eral and divorced from the substantive aspects -<erlying

the alien’s claim of asylum.” Yi v. Maugans, >. “.3d 500,

$06 (3d Cir. 1994).°

‘The doctrine that matters collateral to an order of deportation or

issues requiring factual development are not within the scope of the

former § 1105a has its genesis in this Court’s opinion in Cheng Fan

Kwok v. INS, 392 U.S. 206 (1968), as well as in the Court's jurispru-

dence in general administrative law cases noted above. In Cheng Fan

Kwok, the Court held that § 1105a’s limitation on district court jurisdic-

tion extended only to “final orders of deportation” and did not encom-

pass matters that could not be determined in deportation proceedings,

such as whether regional INS district directors lawfully exercised their

discretion to stay deportation of an otherwise removable alien. If the

alien seeks review of such collateral matters, the Court stated, “the

alien’s remedies would, of course, ordinarily lie first in an action brought

in the appropriate district court.” /d. at 210. As noted, numerous courts

—_—s

9

Accordingly, Section 242 of the INA, as amended by

IIRIRA, should be interpreted to preserve district court

jurisdiction upon which these courts relied to vindicate

important constitutional and statutory rights of aliens facing

deportation.

B. MEANINGFUL ACCESS TO JUDICIAL FORUM

MAY, IN APPROPRIATE CIRCUMSTANCES,

REQUIRE PROMPT ACCESS TO THE DISTRICT

COURTS.

Under this Court’s jurisprudence, the theoretical availa-

bility of access to a judicial forum is not enough to provide

meaningful review of a constitutional claim. Thus, the Court

has found that appellate court review of a claim that

requires a factual record for proper resolution — a record

that the agency would not and the court of appeals could not

develop — is insufficient. McNary, supra. The Court has

also cautioned that a review procedure that would cause

irreparable injury to be suffered in the interim is inadequate.

Matthews v. Eldridge, supra. These considerations demon-

Strate that Petitioners’ proposed procedures for judicial

review of claims would be inappropriate in this and many

other cases.

1. The Court’s opinion in McNary, supra, is illustrative

of the importance of a factual record for meaningful review

of a constitutional claim. In McNary, a class of aliens

challenged the INS’s procedures for determining an alien’s

eligibility for legalization of his or her status. The respon-

of appeals have followed this instruction and concluded that judicial

review of matters not encompassed by a final order of deportation (thus

outside the scope of the exclusive review provisions of § 110Sa) were

properly raised in an original action brought in the federal district courts.

E.g., Olaniyan v. INS, 796 F.2d 373, 376-77 (10th Cir. 1986); Tooloee

v. INS, 722 F.2d 1434, 1437-38 (9th Cir. 1983); see Gottesman v. INS,

33 F.3d 383, 387 (4th Cir. 1994) (collecting cases).

10

dents in McNary claimed (and the Court agreed) that INS

procedures did not apprise them of the evidence against

them, afford them an opportunity to rebut such evidence or

present witnesses, or provide them with interpreters that

would allow them to communicate effectively with the

adjudicator. 498 U.S. at 487-89. The judicial review provi-

sion at issue in McNary, 8 U.S.C. § 1160(¢), precluded

review of an adverse determination and provided that judi-

cial review could be obtained in the court of appeals pursu-

ant to §110Sa if and when an order of deportation was

issued. However, the Court held that this procedure failed to

provide for a meaningful review of the aliens’ claims.

Evidence of such constitutional defects in INS proce-

dures “would have been irrelevant in the processing of a

particular individual application.” Jd. at 497. The agency’s

administrative review process did not address the kind of

procedural and constitutional claims brought by the respon-

dents, and the record of proceedings in any individual

eligibility determination would not have included evidence

pertaining to the INS’s procedures and practice. Jd. at 493.

Under such circumstances, the Court held, limiting review

to the court of appeals after an order of deportation had

issued, and then only on the record of the administrative

proceedings, would result in the denial of meaningful judi-

cial review. Jd. at 496 (“if not allowed to pursue their claims

in the District Court, respondents would not as a practical

matter be able to obtain meaningful judicial review’’).

Because the courts of appeals “lack[ed] the factfinding and

record-developing capabilities of a federal district court,”

the possibility that the respondents in McNary would even-

tually have access to the court of appeals was deemed

insufficient to satisfy the requirement of meaningful review.

Id. at 497. Thus, the Court’s opinion in McNary confirmed

that § 1105a did not apply to a collateral claim that required

the development of a factual record in the district courts.

The factors that formed the bases of the Court's holding

in McNary are fully applicable to Respondents’ claim. As in

McNary, Respondents do not challenge in the District Court

proceeding the substantive grounds on which the charges

against them are purportedly based, such as whether they

have failed to maintain student status or overstayed their

visas. As Petitioners concede, evidence regarding the

agency's motivation in deciding to initiate proceedings

against these Respondents or evidence regarding the

agency’s conduct towards similarly situated aliens — i.e.,

evidence pertaining to the elements of Respondents’ selec-

tive enforcement claim — would be irrelevant and could not

be developed in agency proceedings.° Accordingly, applying

the exclusive appellate jurisdiction of the former § 1105a, or

*The need for a factual record distinguishes the instant case from this

Court's decision in INS v. Chadha, 462 U.S. 919 (1983), a case which

amicus curiae Criminal Justice Legal Foundation contends brings Re-

spondents’ claim within the scope of exclusive appellate review proce-

dures of § 1105a. In Chadha, the Court held that the appellate courts

had jurisdiction to determine the constitutional validity of the “legisla-

tive veto” on a petition for review of a final order of deportation, because

such an order “includes all matters on which the validity of the final

order is contingent, rather than only those determinations actually made

at the hearing.” /d. at 937. Amicus fails to distinguish, however, between

legal issues (¢.g., constitutional validity of the legislative veto) impli-

cated by a deportation order and issues requiring a factual record for

proper resolution. Even if Chadha establishes appellate jurisdiction,

pursuant to § 1105Sa, to resolve a legal claim requiring no fact finding,

such review would not be applicable to Respondents’ selective enforce-

ment claim, given the need for a factual record. See Olaniyan, 796 F.2d

at 376; Tooloee, 722 F.2d at 1437.

Massieu v. Reno, 91 F.3d 416 (3d Cir. 1996), a case which Petitioners

erroneously contend is in conflict with the opinion below, is not to the

contrary. The court in Massieu held that a challenge to the constitution-

ality of Section 241(a)(4)(C)(i) of the INA should be brought in the

court of appeals pursuant to § 1105a. As the district court in that case

noted, because the case involved a facial challenge to the constitutional-

ity of a statute, the “claims ... present[ed] ‘pure questions of law’ for

(continued )

12

the new § 1252(a), to Respondents’ claim would result in

“the practical equivalent of a total denial of judicial review

of generic constitutional and statutory claims.” McNary, 498

US. at 497.’

2. Recognizing the need for developing a factual record

and reversing their consistent position over many years,"

Petitioners urge that Respondents can receive meaningful

(continued)

which no agency fact-finding would be required or even marginally

illuminating.” Massieu v. Reno, 915 F. Supp. 681, 694 (D. NJ. 1996).

The Third Circuit did not question the proposition that general federal

question jurisdiction would remain available for claims that could not be

meaningfully reviewed in the court of appeals for want of a factual

record. See 91 F.3d at 423 (quoting Maugans, supra).

Other factors considered relevant in McNary also favor the exercise

of district court jurisdiction in this case. Like the statute at issue in

McNary, the provisions of §1252(b)(4)(A) and the former

§ 110Sa(a)(3) both require the court of appeals to limit its considera-

tion to the administrative record, thereby appearing to preclude the

consideration of additional evidence in the court of appeals. Moreover,

IIRIRA provides that the “administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added); see also

8 U.S.C. § 110Sa(a)(4) (1994) (imposing similar standard of defer-

ence to agency fact finding). This deferential standard of review is

arguably even more stringent than the abuse of discretion standard at

issue in McNary, which the Court noted should not apply to review of

facts applicable to constitutional claims, 498 U.S. at 494, and indicates

that § 1252(a) likewise should not govern Respondents’ claim.

*Prior to this case, the INS had consistently (and successfully)

argued that a remand to the district court pursuant to § 2347(b) was

contrary to the requirement that the validity of aa order of deportation

was to “be determined solely upon the administrative record upon which

the deportation order is based.” 8 U.S.C. § 1105a(a)(4) (1994). See

e.g. Coriolin v. INS, 559 F.2d 993, 1003 & n. 14 (Sth Cir. 1977);

Ghorbani v. INS, 686 F.2d 784, 787 n. 4 (9th Cir. 1982). A notable

exception was in McNary,where the INS argued in its reply brief that

(continued)

Pe ee ee

Bases oe

13

review of their claim if the Court interprets 28 U.S.C.

§ 2347(b) to authorize the court of appeals, on an appeal

from a final order of removal, to remand the case to the

district court for the development of a factual record.

Regardless of whether a remand procedure under § 2347(b)

is available or appropriate in some situations, a remand to

the district court will not always assure that a constitutional

claim would be afforded meaningful review.

a. First, Petitioners seek to require a threshold eviden-

tiary showing that would “as a practical matter” foreclose

meaningful judicial review. McNary, 498 U.S. at 497. Under

Petitioners’ proposal, the alien would be required “at the

time the petition for review is filed, to proffer specific

evidence indicating that the decision to initiate deportation

proceedings had been made for a constitutionally forbidden

reason.” Pet. Br. at 48-9 n. 23 (emphasis added). Remand

would then be allowed “only in the very rare case where the

court of appeals concludes that the alien’s submission, if

credited, refutes the government’s explanation for the charg-

ing decision [and] therefore, requires resolution of disputed

questions of material fact.” Jd.

Petitioners fail to note that evidence of the government's

reasons underlying its charging decisions are exclusively in

the control of the government. Accordingly, such evidence

would be inaccessible to aliens as a general matter without

(continued )

such a remand is in fact available under § 2347(c) or § 2347(b) (3). See

Reply Brief for the Petitioners, 1989 U.S. Briefs (LEXIS) 1332, Part

(b) & n. 10. In subsequent cases before the courts of appeals, however,

the INS reversed its position again and argued that § 110Sa(a) (4)

prohibits the court of appeals from considering evidence not contained in

the record of the agency proceeding. See e.g, Makonnen v. INS, 44 F.3d

1378, 1385 (8th Cir. 1995); Osaghae v. INS, 942 F.2d 1160, 1162 (7th

Cir. 1991).

4

the discovery procedures available in the district courts.” As

noted, deportation proceedings do not allow the alien to

inquire into or discover evidence regarding the bases of the

charging decision or violations of agency procedure — an

inquiry that is beyond the jurisdiction of an immigration

judge. Accordingly, an alien “at the time the petition is

filed” will almost never have access to such evidence and

would be wholly unable to rebut the government's explana-

tion of its motives.

As this case demonstrates, Petitioners’ proposed eviden-

tiary hurdle will foreclose potentially meritorious claims.

Specific evidence regarding the INS’s improper motive in

initiating the proceedings against Respondents was uncov-

ered during the course of the district court litigation and not

before. For example, statements by the INS regional coun-

sel that the government sought to deport Respondents for

their membership in the PFLP (Pet. App. 82a) or FBI

memoranda urging the deportation of Respondents for pro-

tected First Amendment activities (JA 130-206) resulted

from or were discovered in the district court litigation. Based

on the evidence developed during the course of the litiga-

tion, the District Court found and the Court of Appeals

* Petitioners’ proposed standard — in its search for a disputed issue of

fact and in its allocation of burdens — evokes the standard applicable to

a summary judgment motion under Fed. R. Civ. P. 56. However, such

drastic summary procedures may not be used to cut off a claim at its

inception where a party has not been afforded any discovery. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); Celotex

Corp. v. Catrett, 477 U.S. 317, 326 (1986). Moreover, Petitioners’

proposal is inconsistent with this Court's recent holding that a criminal

defendant is entitled to discovery of the government's reasons for

prosecuting particular cases if the defendant makes “a credible showing

of different treatment of similarly situated persons.” United States v.

Armstrong, 517 U.S. 456, 470 (1996). Such a showing can be made by

the use of statistics, ie, type of evidence noi exclusively in the

government's control, see id. at 469-70, and does not require a defendant

to “refute[ ]" the government's explanation of its motive.

15

affirmed that Respondents have a reasonable probability of

success on the merits of their claim. Had Respondents been

required to produce specific evidence of the government's

motive at the outset, as Petitioners propose, Respondents’

claim would not have been given adequate judicial review.

b. Moreover, Petitioners’ contention ignores the doctrine

that, where irreparable injury would result from a delay in

the resolution of a constitutional claim, meaningful review

may require access to the district courts in the first instance.

This Court has admonished that exhaustion requirements

are not to be mechanically applied “where the petitioner has

made a colorable showing that full postdeprivation relief

could not be obtained.” Thunder Basin Coal Co., 510 U.S.

at 213 (citing Matthews, 424 U.S. at 331). As the Court

stated in Aircraft & Diesel Equip. Corp. v. Hirsch:

[T]he presence of constitutional questions, coupled with

a sufficient showing of inadequacy of prescribed adminis-

trative relief and of threatened or impending irreparable

injury flowing from delay incident to following prescribed

procedure, has been held sufficient to dispense with ex-

hausting the administrative process before instituting ju-

dicial intervention.

331 U.S. 752, 773 (1947) (emphasis added). The Court of

Appeals below correctly recognized “[t]he ‘core princi-

ple’... that statutory requirements should not be construed

to cause ‘irreparable injuries to be suffered’ or the loss of

‘crucial collateral claims.’ AADC v. Reno, 70 F.3d 1045,

1057 (9th Cir. 1995) (quoting, Matthews, 424 U.S. at 331

n. 11); see also Matthews, 424 U.S. at 333 (due process

requires “the opportunity to be heard ‘at a meaningful time

and in a meaningful manner’” (quoting Armstrong vy.

Manzo, 380 U.S. 545, 552 (1965))).

16

Nothing in IIRIRA suggests that Congress intended to

preclude district court jurisdiction to issue injunctive relief

in order to prevent irreparable harm to aliens against whom

deportation proceedings have already commenced. Indeed,

the legislative history of Section 306 of IIRIRA demon-

strates the contrary. In discussing 8 U.S.C. § 1252, and

referring in particular to § 1252(f), the House Committee

on the Judiciary noted that:

Section 306 also limits the authority of Federal courts

other than the Supreme Court to enjoin the operation of

the new removal procedures established in this legislation.

These limitations do not preclude challenges to the new

procedures, but the procedures will remain in force while

such lawsuits are pending. In addition, courts may issue

injunctive relief pertaining to the case of an individual

alien, and thus protect against any immediate violation of

rights. However, single district courts or courts of appeal

do not have authority to enjoin procedures established by

Congress to reform the process of removing illegal aliens

from the U.S.

H.R. Rep. No. 104-469, pt. 1, at 161 (1996) (emphases

added).

The Committee’s report illuminates two aspects of con-

gressional intent relevant to the proper interpretation of

IIRIRA. First, Congress clearly contemplated that “law-

suits” could be brought in the “district courts” seeking to

restrain the operation of the provisions of IIRIRA. Second,

the Committee stated that injunctive relief pertaining to the

case of an alien would be available in order to “protect

against any immediate violation of rights,” indicating Con-

Oe a en ee CRT

7 ee ee eee ee ee eee eS eT

17

gress’ intent that proceedings that would violate an alien’s

constitutional rights may be enjoined at the outset.'°

In this case, Respondents challenge the INS’s decision to

selectively enforce the immigration laws against them based

on their associational activities protected by the First

Amendment. It is well-settled that “[t]he loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373 (1976) (plurality op.) (citing New

York Times, Co. v. United States, 403 U.S. 713 (1971)). In

light of this concern, the Court has repeatedly emphasized

in a variety of contexts the necessity for prompt resolution of

colorable First Amendment claims. For example, the Court

has stressed that state courts, when enjoining activity poten-

tially protected by the First Amendment, must provide

“strict procedural safeguards, including immediate appellate

review.” National Socialist Party of America v. Village of

Skokie, 432 U.S. 43, 44 (1977) (citations omitted). The

Court has also applied a relaxed standard of finality in

determining whether lower court rulings are appealable,

‘Congress’ understanding of § 1252(f), as shown in the House

Report, also demonstrates that the Court of Appeals correctly ruled that

§ 1252(g) incorporates § 1252(f) by reference. Given that Congress

intended to allow access to the district courts for aliens to whom

§ 1252(f) applies, Petitioners’ interpretation of § 1252(g) would lead to

the anomalous result that only those aliens who had been in deportation

proceedings prior to the effective date of other provisions of § 1252

would be denied access to the district courts. Under that view, such

aliens would be subject to a stricter limitation on access to judicial

review than aliens to whom Congress intended all provisions of IIRIRA

to apply. Such an interpretation would be flatly inconsistent with

Petitioners’ own premise that Congress intended IIRIRA generally to

limit judicial review from that which was available under prior law.

Thus, amicus submits that it is far more consistent with the intent of

Congress to construe § 1252(g) as incorporating the jurisdiction preserv-

ing elements of other subsections of § 1252, such as § 1252(f) (1), pric’

to their nominal effective date.

18

where uncertainty regarding important questions of First

Amendment law would likely deter the free and unfettered

exercise of speech. E.g., Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46, 54-56 (1989); Cox Broad. Corp. v. Cohn,

420 U.S. 469, 485-86 (1975). Finally, the Court has “al-

lowed persons subject to claimed unconstitutional restric-

tions on their freedom of expression to challenge that

restriction” without resorting to designated administrative

procedure, in cases where “the loss or postponement of

precious First Amendment rights ... was a concomitant of

the available administrative procedure.” Moore v. City of

East Cleveland, 431 U.S. 494, 528 n. 3 (1977) (Burger,

C.J., dissenting). Cf PUC of California v. United States,

355 U.S. 534, 540 (1958) (“where the only question is

whether it is constitutional to fasten the administrative

procedure onto the litigant, the administrative agency may

be defied and judicial relief sought as the only effective way

of protecting the asserted constitutional right”); McCar-

thy v. Madigan, 503 U.S. 140, 148 (1992).

Similarly here, the inability to obtain a prompt determi-

nation of constitutional claims implicating the First Amend-

ment would have the impermissible effect of silencing the

contributions of aliens to the public debate on matters of

national and international concern. Without prompt access

to the district courts, aliens may be subjected to selective

enforcement of the immigration laws for protected activities

without being able to present their claims to any adjudica-

tory body until deportation proceedings and administrative

appeals that routinely take years to complete have

concluded."

'' This fact establishes the crucial distinction between the instant case

and this Court's cases holding that, even where the First Amendment is

implicated, federal courts ordinarily should not enjoin pending state

court proceedings, such as Cameron v. Johnson, 390 U.S. 611 (1968),

(continued)

OO Ata a am wee

ee ae BRU a

19

Other types of irreparable injuries may also necessitate

prompt judicial review in the district courts. For example,

the INS’s practice of coercing aliens with potentially meri-

torious asylum claims to agree to voluntarily depart the

country, a practice that was enjoined in Orantes-Hernandez,

supra, would present another compelling case of irreparable

injury — once an alien is coerced into “voluntarily” depart-

ing, the statutory right to seek asylum and the constitutional

right to minimally adequate procedure can no longer be

vindicated. Accordingly, the Court should refrain from hold-

ing that the exclusive review provisions of § 1252 can be

mechanically applied to all claims that arguably fall within

its reach.

C. PROVIDING PROMPT ACCESS TO DISTRICT

COURTS FOR RESOLUTION OF COLLATERAL

CLAIMS PROMOTES THE EFFICIENT ADMIN-

ISTRATION OF IMMIGRATION LAWS AND IS

CONSISTENT WITH CONGRESSIONAL

INTENT.

Although Petitioners contend that they rely upon the

purported intent of Congress in enacting IIRIRA to stream-

line, consolidate and expedite the process of removing an

alien from the United States, the goals of judicial and

administrative efficiency and expedited removal can and will

be served in appropriate instances by permitting initial

review of a collateral claim. As the Court has noted, the

(continued)

upon which Petitioners rely. Under the Supremacy Clause, state courts

are required to hear a defendant's federal claims in the first instance. See

e.g., Howlett v. Rose, 496 U.S. 356 (1990). Moreover, consistent with

principles of federalism, state courts are presumed equally capable as

federal courts of providing an adequate hearing to such claims. See e.g.,

Younger v. Harris, 410 U.S. 37 (1971). Neither consideration applies to

the proceedings of the immigration courts, which could not even

consider Respondents’ constitutional challenge.

20

“application of the exhaustion doctrine is ‘intensely practi-

cal’” and should be “guided by the policies underlying the

exhaustion requirement.” Bowen v. City of New York,

476 U.S. 467, 484 (1986) (quoting Matthews, 424 US. at

331 n. 11); Abbott Laboratories, 387 U.S. at 149-50 (stating

that doctrine of finality may be applied in a “pragmatic” and

“flexible” way); see also Rafeedie v. INS, 880 F.2d

506, 529-30 (D.C. Cir. 1989) (Ginsburg, C.J., concurring)

(Congress does not “in codifying an exhaustion

rule, ... inevitably and inexorably mean[ ] to preclude early

judicial review even when requiring exhaustion in a specific

case would serve none of the purposes motivating the

requirement and would threaten grievous harm to the person

secking review”). In this and many other cases in which the

courts have found district court jurisdiction, the interpreta-

tion of IIRIRA urged by Petitioners would fail to serve the

intent of Congress to expedite resolution of claims relating

to the removal of aliens.

1. In this case, adopting the government’s proposal

would neither eliminate any layer of judicial review nor lead

to a more expeditious removal (assuming that removal

would be lawful) of Respondents. As noted, Respondents’

claim is entirely collateral to the determination of whether

they are deportable on the basis of the substantive charges

against them. See City of New York, 476 US at 483.

Because Respondents’ claim is outside the scope of INS’s

decisional authority, Respondents would be required under

Petitioners’ proposal to go through the multiyear process of

deportation hearings and administrative appeal, while hold-

ing their constitutional claim in abeyance. At the conclusion

of that process, they would present their claim to the court

of appeals for determination as to whether a remand is

necessary, adding another element to the court of appeals’

tasks on direct review of an order of removal.

——

ek ee Oe ee OE Ee ete) NEA. on Skee

2 PS Cie weg feet ee 6 ne tree Bets

21

Accepting the District Court’s preliminary findings (af-

firmed by the Ninth Circuit) regarding the merits of Re-

spondents’ claim, a remand would be necessary even under

the stringent standard proposed by Petitioners.'? Once the

case is remanded to the district court, a hearing on the claim

of selective enforcement would then begin. At the conclu-

sion of district court proceedings, the court of appeals would

then review that judgment and either uphold or invalidate

the orders of removal accordingly. If Respondents ulti-

mately prevail, the significant burdens of the deportation

proceedings — on Respondents, on the government and on

the free speech interests of Respondents and others —

would have been incurred for no purpose. If the government

ultimately prevails, it would have done so without eliminat-

ing any layer of review: indeed, Petitioner’s proposal would

have added an additional layer of appellate court review.'?

'? Due to the lack of discovery, Respondents would not likely be able

to present the evidence upon which the District Court's findings were

based. That possibility, of course, provides no warrant for favoring

Petitioners’ approach. See Part B.2, supra.

'? Although Petitioners raise the specter of unmeritorious or frivolous

cases brought in the district courts for the sole purpose of delaying

deportation proceedings, declaratory judgment actions in this context are

extremely rare. According to INS statistics, 1,648,986 aliens were

apprehended by the INS in 1996. Immigration & Naturalization Ser-

vice, 1996 Statistical Yearbook, 173, Table 58 (1996). The vast majority

(1,572,798) departed voluntarily, while over 68,000 aliens were deported

or excluded pursuant to an order of removal. Jd. In comparison, federal

courts resolved only 138 declaratory judgment actions (the bases for

which are not revealed by the statistics) brought against the INS

involving exclusion or deportation. /d., 194, Table 76. Allowing appropri-

ate cases to go forward in the district courts under the standards

developed by the federal courts in interpreting former § 1105a, therefore,

will not result in the district courts being inundated with frivolous suits.

Moreover, the district courts are certainly capable of assessing the

merits of such cases and properly refusing to enjoin any agency

proceedings.

22

On the other hand, if the District Court properly has

jurisdiction over Respondents’ suit, and Respondents prevail

on the merits, a needless and unlawful administrative pro-

cess would have been avoided. The Court of Appeals would

not have the burden of direct review of orders of removal on

the merits as well as considering the constitutional claim.

Thus, there is no reason to believe that Petitioners’ proposal,

as opposed to Respondents’ interpretation of IIRIRA, better

effectuates Congress’ intent to expedite the process of re-

moval and lighten the burdens on the courts and the agency.

Cf, Cox Broadce'*g, 420 U.S. at 485-87 (requirement of

finality must be gi-* pragmatic application so that unnec-

essary proceedings would be avoided in appropriate cases).

2. Indeed, in many of the cases where district court

jurisdiction was previously found, Petitioners’ proposed pro-

cedure would have resulted in an enormous waste of judicial

and administrative resources. In these, so-called “pattern

and practice” cases, the validity of a deportation order on

the merits is not at issue: rather, the claimed defect is that

the agency has systemically violated, through its policies and

procedures, the constitutional and statutory rights of a broad

class of aliens in adjudicating their immigration status. See

McNary, supra; Haitian Refugee Center v. Smith, supra;

Orantes-Hernandez, supra; Jean v. Nelson, supra; Walters v.

Reno, 145 F.3d 1032 (9th Cir. 1998); Walters v. Reno,

No. €94-1204C, 1996 WL 897663 (W.D. Wash. Oct. 2,

1996); Montes v. Thornburgh, 919 F.2d 531 (9th Cir.

1990); Campos v. Nail, 940 F.2d 495 (9th Cir. 1991); El

Rescate Legal Serv. v. EOIR, 959 F.2d 742 (9th Cir. 1991).

Here again, application of the exhaustion requirement would

ill-serve the policies underlying the requirement.

If an alien facing deportation cannot bring a broad-based

challenge to the agency’s pattern of unlawful behavior, the

agency would devote substantial resources and subject the

alien to the burdens of administrative proceedings in order

——. ~~ —

23

to issue ap order of removal that would be valid on the

substantive grounds alleged but may be defective on a

collateral constitutional or statutory ground. Given that the

agency will not entertain the alien's claim during the admin-

istrative proceedings, and that no judicial determination

thereof can be made until the proceedings conclude, the

agency would presumably continue to subject other aliens to

the same unlawful practices in the meantime. By the time

that such a claim could be reviewed in the federal courts

this may result in innumerable removal orders (and actual

removals) of uncertain validity.

If the alien’s claim is ultimately upheld, the agency would

have wasted considerable resources in issuing removal or-

ders that suffer from the same defect. At that point, the

agency would have two choices. It could attempt to reargue

the merits of the court's ruling upon review of each and

every order of removal affected by the unlawful »ractices

resulting in a great deal of waste of judicial «1 aiatra-

tive resources and possibly in inconsistent ov - ~:aes. In the

alternative, the agency could reopen the deportation pro-

ceedings in a large number of cases and, having abandoned

the unlawful practices, reassess the removal orders. In any

event, a large number of aliens that would have been

removable on the merits would receive the windfall of

continuing their presence in this country for the duration of

the new administrative and/or judicial proceedings, a result

which Petitioners contend was the principal evil that Con-

gress sought to address by the exclusive review provisi

the INA. Pet. Br. at 20-21 n. 7. een

On the other hand, if such “pattern or practice” case

may be heard in the district court in the rat instance, both

the agency and aliens facing deportation would be able to

obtain a prompt resolution of the claim and proceed to the

administrative proceeding on the merits. Such claims could

be adjudicated on a class-wide basis, as has been the normal

24

practice in the federal courts, eliminating the wasteful

litigation of identical factual issues on review of each re-

moval order affected by the unlawful practice. Even a

prompt judicial determination of an individual claim would

as a practical matter reduce the number of cases that may

be infected by unlawful agency practices and procedures,

and ensure that substantively valid removal orders can be

quickly executed. Accordingly, in such cases, Petitioners’

proposed limitation on judicial review would result in pre-

cisely the kind of delay in removing deportable and excluda-

ble aliens that Congress intended to avoid, and deprive the

courts of an efficient mechanism for resolving constitutional

and statutory claims affecting a broad class of aliens.

In sum, Petitioners’ proposal to deprive district courts of

jurisdiction over this infrequent but important constitutional

claim has been rejected twice by the Court of Appeals, is

not mandated by a proper reading of Section 242 of the INA

(as amended by IIRIRA), is not supported by this Court’s

precedents, and would be detrimental to public policy.

CONCLUSION

For all of the foregoing reasons, the Court should affirm

the judgment of the Court of Appeals.

Dated: September 11, 1998

Respectfully Submitted: ~

Of Counsel Counsel of Record

Jerrrey L. BLeIcn Puituie S. ANDERSON

HoJOON HWANG AMERICAN BAR ASSOCIATION

Davip H. Fry

CAROL WOLCHOK