# 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

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 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 -. “.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.

——

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0161%3A14. Public record. Not legal advice.