Appendix — Ayuda, Inc. v. Thornburgh

FILED

| Supreme Court, U.S,

| pec 27 wes

IN THE

Supreme Court of the eulrpans

OCTOBER TERM, 1989

AyuDaA, INC., et al.,

Petitioners,

Vv.

RICHARD THORNBURGH, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX

Counsel of Record:

WAYNE H. MATELSKI

ARENT, Fox, KINTNER, PLOTKIN

& KAHN

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 857-6340

OF COUNSEL:

ELEANOR PELTA

LYNDA ZENGERLE

CARL VALENSTEIN

DAviID ARONOFSKY

CAROLYN WALLER

DEBORAH SANDERS

IRA J. KURZBAN

Lucas GUTTENTAG

MICHAEL RUBIN

GILBERT P. CARRASCO

Attorneys for Petitioners

PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

APPENDIX Page

A Ayuda, Inc. v. Thornburgh, No. 88-5226 (D.C.

Cir. July 18, 1989), also reported at 880 F.2d

Es Be eiihicisaccenstensnisennsscnectvee la

B Ayuda, Inc. v. Meese, Civ. A. No. 88-0625

(D.D.C. March 30, 1988), also reported at 687

Fe a 88a

Supplemental Order (April 6, 1988),

ES a 123a

Supplemental Order II (April 7, 1988),

Be ides cerancndntatidessieccoes 123a

Supplemental Order III (April 7, 1988),

8 a GE | Ee 124a

oo Order IV (May 2, 1988),

oo 8 ¢ sine 125a

Supplemental Order V (May 2, 1988),

Se We PEE TI cemienencoseiersencsscccsessoecs 127a

Supplemental Order VI (May 4, 1988),

Ge Oe WE Oe I Srtceciiccctesbsvetecsvnstercnsee 128a

Supplemental Order VII (May 4, 1988),

ee i I hia rcshcascntbsvassvsvesonese 129a

Supplemental Order VIII (June 9, 1988),

ff Be SL) eee 13la

— Order IX (June 9, 1988),

Sa NL TE TIDE sakenetntecnestevcnssnonnéoceeese 133a

C Ayuda Inc. v. Meese |

Supplemental Order X (Aug. 18, 1988) ...... 138a

D Ayuda, Inc. v. Meese

Memorandum Opinion and Supplemental Or-

I Be ie BED Rtheddscccstcsmnecsaccctccasees 140a

E Ayuda, Inc. v. Meese

Supplemental Order XII (October 28, 1988) . 147a

ii

F Ayuda, Inc. v. Thornburgh

Memorandum Opinion (June 29, 1989) ........ 15la

G Ayuda, Inc. v. Thornburgh

Memorandum Opinion (July 24, 1989) ......... 158a

H Ayuda, Inc. v. Thornburgh

Supplemental Order XIII (July 24, 1989) ... 164a

I In Re: Richard Thornburgh

No. 88-5360 (D.C. Cir. March 3, 1989), also

reported at 869 F.2d 1503 (D.C. Cir. 1989) . 166a

J Ayuda, Inc. v. Thornburgh

No. 88-5226 (D.C. Cir. July 18, 1989), Order

Cl FED - eccciceiidaai eoiahicrdtectintinidas 196a

K Ayuda, Inc. v. Thornburgh

No. 88-5226 (D.C. Cir. Oct. 4, 1989), Order

Denying Petition for Rehearing ................... 197a

Order Denying Suggestion for Rehearing En

TONG ccsuniscevsinnsninamadiaaniaeddibladaaabattibipeatenpbetdines 199a

L Ayuda, Inc. v. Thornburgh

No. 88-5526 (D.C. Cir., Nov. 21, 1989), Order

Withholding Issuance of Mandate ............... 206a

M Ayuda, Inc. v. Thornburgh,

No. 88-5226 (D.C. Cir.)

EO TE siscteksteneenaciineiinacecitiestncicbalhcnicsactionen 208a

PII scien itahitbivictiaapaepiatsinsipiiiantanianins 212a

N Statutes and Regulations

INA § 106, 8 U.S.C. §1105a (1988) ........... 214a

INA § 245A(aX2), 8 U.S.C.

DEE sicsccnccensciecsssvenccecees 219a

INA § 245A(f), 8 U.S.C.

DF IEEE ta sdbioastntidenanccchitincsinsionins 220a

INA § 279, 8 U.S.C. § 1829 (1988) ............. 222a

BB WRAL. GE Ge ett recertrntttncticicee 223a

iil

Former INA § 265, 8 U.S.C. § 1305 (1976) .. 224a

ee NED cnccccccccessccccrencssoscccese 225a

IEE CEUIED cecrccnccscevsscccesnsvccesee 227a

la

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 7, 1989 Decided July 18, 1989

No. 88-5226

AyYuDA, INC., et al.

v.

RICHARD THORNBURGH, et al., APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(Civil Action No. 88-00625)

Donald E. Keener, Attorney, Department of Justice,

with whom David J. Kline, Assistant Director, Office of

Immigration Litigation, Department of Justice, and John

R. Bolton, Assistant Attorney General, Civil Division, De-

partment of Justice, were on the brief, for appellants.

Wayne H. Matelski, with whom Lynda S. Zengerle,

Carolyn Waller, Michael Rubin, David Aronofsky and

Deborah Sanders were on the brief, for appellees.

Before: WALD, Chief Judge, SILBERMAN and D.H.

GINSBURG, Circuit Judges.

2a

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Chief Judge WALD.

SILBERMAN, Circuit Judge: This is an appeal from a

declaratory order and injunction issued by the district

court concerning implementation of the legalization or

“amnesty” provisions of the Immigration Reform and

Control Act of 1986 (“IRCA”). We hold the district

court lacked jurisdiction and therefore vacate the order.

I.

IRCA, passed in 1986, imposed civil and criminal pen-

alties upon employers who hire illegal aliens. Congress,

through that approach, sought to discourage illegal] im-

migration into the United States and to make it difficult

for undocumented aliens to remain in the country. As

part of a legislative compromise, the Act provided for

the legalization of those immigrants who had entered the

United States unlawfully prior to January 1, 1982, and

had resided continuously in the country in an unlawful

status since then. It was said that “past failures to en-

force[] the immigration laws have allowed [illegal immi-

grants] to enter and settle here” and that “the alternative

of intensifying interior enforcement or attempting mass

deportations would be . . . costly, ineffective and incon-

sistent with our immigrant heritage.” H.R. Rep. No.

682, 99th Cong., 2d Sess. pt. 1, at 49 (1986).

As a corollary, Congress also provided for the legaliza-

tion of nonimmigrants, who entered the country lawfully

(for example, as employees or students) but whose pres-

ence subsequently became unlawful, so long as their status

was unlawful prior to January 1, 1982 and they re-

sided continuously in the United States after that date.’

1 Nonimmigrant aliens are special classes of aliens who are

lawfully admitted to the United States and have no intention

of abandoning permanently their residence in a foreign

country. See 8 U.S.C. §1101(a) (15) (1982). Nonimmi-

eo

Perhaps counterintuitively, then, in order to qualify for

legalization under this corollary provision to the general

amnesty program, the nonimmigrant had to prove his

illegal status prior to 1982. That could be accomplished,

according to section 245A of the Act, in one of two ways:

3a

In the case of an alien who entered the United

States before January 1, 1982, the alien must estab-

lish that the alien’s period of authorized stay as a

nonimmigrant expired before such date through the

passage of time or the alien’s unlawful status was

known to the Government as of such date.

8 U.S.C. § 1255a(a) (2) (B) (Supp. V 1987) (emphasis

added).

This case involves the interpretation of the second

clause of that provision: what does “known to the Gov-

ernment” mean? In 1987, the INS issued a regulation

defining “Government” to mean only the Immigration and

Naturalization Service, based on the notion that the At-

torney General and the INS were charged with enforce-

ment of the immigration laws (and implicitly responsible

for “past failures”) and only they could ascertain—truly

“know”’—that an alien’s status was “unlawful.” A broader

interpretation of “Government,” the agency concluded,

would make administration of the legalization program

difficult and “would vest [other] government agencies

with an authority that Congress specifically granted only

to the Attorney General.” 52 Fed. Reg. at 16,206 (1987).

The regulation provided that an alien who originally en-

tered legally could establish that his subsequent illegal

status was “known to the Government” prior to 1982

through one of the following documents: (1) an INS

record received from another agency, referring to a

clear statement or declaration by the alien to the other

federal] agency that he was in violation of nonimmigrant

grants include, inter alia, foreign students and managerial

employees of companies located in the United States.

4a

status; (2) a record showing an affirmative determina-

tion by the INS prior to January 1, 1982 that the alien

was subject to deportation proceedings; (3) a copy of a

response by the INS to any other agency, stating that

a particular alien had no legal status in the United

States; or (4) school records which establish that a school

forwarded to the INS a report clearly indicating that the

applicant had violated his nonimmigrant status prior to

January 1, 1982. Id. at 16,208; 52 Fed. Reg. at 43,845

(1987).

Under the statute, all aliens seeking to qualify for

legalization were obliged to apply for an adjustment of

status within a twelve-month period that expired on

May 4, 1988. On March 8, only two months before the

deadline, appellees, which include four organizations that

advise and counsel aliens—Ayuda, Inc., The Ethiopian

Community Center, the Latin American Youth Center,

and the Mexican American Legal Defense and Educa-

tional Fund—and five individual aliens, sued in district

court claiming that the INS regulation was based on an

impermissible interpretation of the statute. They sought

a declaratory order and injunction preventing the INS

from applying a “known to the Government” standard

that barred an alien from legalization “whenever the fed-

eral Government, through any of its agencies, depart-

ments, bureaus or entities has or had evidence that, sep-

arately or in combination, shows that such alien had

violated his or her nonimmigrant status prior to January

1, 1982.” The government challenged the jurisdiction of

the district court, asserting that the organizational plain-

tiffs lacked standing to sue, and that review of legaliza-

tion determinations was available only in the court of

appeals after an individual claimant had exhausted his

administrative remedies and been subject to a deporta-

tion order entered pursuant to section 242(b) of the

Immigration and Naturalization Act, 8 U.S.C. § 1252 (b)

(1982).

|

;

5a

The organizational plaintiffs responded that the normal

procedures for administrative determination and judicial

review in the courts of appeals designed for aggrieved

aliens did not preclude them from bringing an action in

the district court pursuant to the APA, because their

mission was to advise aliens on how to proceed through

the legalization program and, particularly, on their pros-

pects for receiving amnesty. The INS’s alleged miscon-

struction of the statute caused injury to the counseling

organizations, they complained, because it impaired their

ability to provide accurate information about IRCA eli-

gibility requirements to aliens and required them to ex-

pend additional resources to clarify the confusion about

the correct legal standard. One organization also as-

serted that the INS’s interpretation of IRCA was un-

lawful and frustrated the organization’s purpose of as-

sisting aliens to obtain legalization. Because the statu-

tory administrative and judicial procedures were not de-

signed to remedy this type of injury, appellees contended

APA review was available in district court. The in-

dividual plaintiffs asserted that although there is an ex-

clusive statutory mechanism for judicial review of in-

dividual legalization determinations, the district court

nevertheless had jurisdiction to hear a challenge to the

INS’s IRCA regulation as long as specific legalization

applications were not involved. Appellees argued further

that because the May 4, 1988 application deadline was

rapidly approaching, an injunction was warranted.

The district court (without reaching the claims of the

individual aliens) concluded that the organizational plain-

tiffs had standing to sue and that judicial review of de-

cisions regarding the legalization program was available

in the district court. Ayuda, Inc. v. Meese, 687 F. Supp.

650, 654-60 (D.D.C. 1988). The court held that the

term “Government” in section 245A meant the entire

United States Government and not simply the INS, and

declared the INS regulation “contrary to law.” Jd. at

666. The INS was also enjoined from “any further ap-

6a

plication of the regulation’ anywhere in the United States,

and ordered “to take steps to notify promptly all persons

affected by the regulation of the court’s decision,” id.,

the court observing that appellee organizations “need

certainty in this field, and they need it now.” Id. at 657.

The government acquiesced in the court’s interpretation

of the statute and did not appeal its order.

The court retained jurisdiction of the case “to assure

[the] decree [was] carried out fully and completely and

to provide such other and further relief as [might] be

necessary to implement [its] decision.” Jd. at 666. Sub-

sequently, the court issued nine supplemental orders deal-

ing with various aspects of the “known to the Govern-

ment” provision of IRCA. The first supplemental order,

issued April,5, 1988, noted that “[a] question has arisen

with respect to the precise meaning of the term ‘unlawful

status was known to the Government,’” and directed that

an alien could satisfy the standard by showing that

“documentation existed in one or more government agen-

cies so that . . . such documentation taken as a whole

would warrant the finding that the nonimmigrant alien’s

status in the United States was unlawful.” Jd. (emphasis

added). The government has not appealed this supple-

mental order either.

Eleven new organizations filed a motion to intervene

in the case on April 21, 1988. They raised an issue, not

previously surfaced, concerning the interrelationship be-

tween section 245A of IRCA and former section 265 of

the Immigration and Nationality Act, 8 U.S.C. § 1305

(1976), amended by 8 U.S.C. § 1305 (1982). Under the

latter provision (prior to its amendment on December 29,

1981), every nonimmigrant alien who remained in the

United States for more than 30 days was required to

report his address to the Attorney General on a quarterly

basis. Id.; see 8 C.F.R. § 265.1 (1981). Any alien fail-

ing to comply with this reporting requirement was sub-

ject to deportation unless he could show that such failure

7a

was “reasonably excusable or was not willful.” 8 U.S.C.

§ 1306(b) (1982). The putative intervenors alleged that

the INS had been “denying these nonimmigrant aliens

(who violated the reporting requirement prior to 1982]

the opportunity to apply for legalization, even after this

court’s clarification of the ‘known to the Government’

standard in the present litigation.”

In other words, the proposed intervenors claimed that

the district court’s first supplemental order should be

interpreted, or extended, to include an alien’s failure to

provide documentation—the quarterly report—which fail-

ure might have led the INS to conclude that the alien

had slipped into illegal status. The district court never

granted the motion to intervene, but appellees adopted the

intervenors’ claim and sought, over the government’s ob-

jections, a new supplemental order addressing the issue.

The court granted the order—Supplemental Order V—

enjoining the INS from denying legalization to nonimmi-

grants who failed to meet the reporting requirements of

section 265, “if INS determines that such aliens have

credibly established their willful violation of section 265

and such aliens have also met all other applicable condi-

tions for legalization.” 687 F. Supp. at 668. The INS

was directed to accept applications from section 265 non-

reporters without the statutorily-required filing fee in

order to prevent aliens from forfeiting the fee should

Supplemental Order V be reversed on appeal. Jd. The

government does appeal this order, in effect challenging

the district court’s jurisdiction over the entire case (al-

though not contesting the other orders) and, alternatively,

disputing the propriety of Supplemental Order V.

II,

As part and parcel of the amnesty or legalization pro-

visions of IRCA, Congress provided for administrative

and judicial review of the application of the Act. Accord-

ing to the government, these provisions require exhaustion

8a

of administrrative remedies before a party seeks judicial

review and vest exclusive jurisdiction in the courts of

appeals to review INS decisions that are or could be made

in the administrative process. The district court, the

government concludes, therefore lacked jurisdiction to

entertain the action.

The Act provides: “[t]here shall be no administrative

or judicial review of a determination respecting an appli-

cation for adjustment of status under this section [the

legalization provisions] except in accordance with this

subsection.” 8 U.S.C. §1255a(f)(1) (Supp. V 1987)

(emphasis added). The Attorney General is directed to

“establish an appellate authority to provide for a single

level of administrative appellate review of [such] a deter-

mination,” id. §1255a(f)(3)(A), and “there shall be

judicial review of such a denial only in the judicial review

of an order of deportation under section 1105(a) of this

title.” Id. §1255a(f)(4)(A) (emphasis added). That

judicial review “shall be based solely upon the administra-

tive record” and the “determinations contained in such

record shall be conclusive unless the applicant can estab-

lish abuse of discretion or that the findings are directly

contrary to clear and convincing facts contained in the

record considered as a whole.” Id. § 1255a(f) (4) (B)

(emphasis added).

That standard of review—perhaps even more deferen-

tial than the arbitrary or capricious standard and the

requirement of substantial evidence on the record as a

whole—is about as restrictive as the Congress can fashion.

See Jamesway Corp. v. NLRB, 676 F.2d 68, 67 n.4 (3d

Cir. 1982) (abuse of discretion more deferential than

substantial evidence standard); Bennett v. Tucker, 827

F.2d 63, 68 (7th Cir. 1987) (characterizing abuse of dis-

cretion as court’s “most deferential standard”). It would

appear that even legal questions concerning the inter-

pretation of IRCA are reviewable only under the abuse of

discretion standard rather than the companion “contrary

to law” formulation of the APA. That is a rare, but not

9a

unknown, treatment of reviewability of legal issues. Sce

Pierce v. Underwood, 108 S. Ct. 2541, 2546 (1988).2. The

legislative history clearly indicates that this restrictive

scope of judicial review was quite purposeful. The Senate

version of the bill, despite Senator Cranston’s concern

that it raised constitutional problems, see 129 Cong. Rec.

12,810 (1983),* provided for “no judicial review of a

decision or determination with respect to the legalization

programs.” §S. Rep. No. 132, 99th Cong., 1st Sess. 48

(1985) (emphasis added). The House-Senate conference

committee, however, adopted the House version, which

included the less restrictive yet very deferential judicial

review provisions that make up the present law.

Appellees—including the individual plaintiffs—argue,

nevertheless, that their suit in district court could be

brought outside the framework of an appeal of a deporta-

tion order, because it challenged not a “determination

respecting an application for adjustment,” but rather an

INS policy (drawn from its reguiation) that would be

applied subsequently in individual cases. In their view,

the administrative procedure that must be exhausted ap-

*It may well be that if the substantive issue in this case

were presented in the context of an appeal to a court of ap-

peals, the court’s scope of review and deference to agency’s

interpretation would not differ markedly from the APA. Al-

most surely, constitutional questions, for instance, would be

subject to review de novo. Cf. Webster v. Doe, 108 S. Ct.

2047, 2053 (1988) (“[W]here Congress intends to preclude

judicia] review of constitutional claims its intent to do so

must be clear.”). And the relationship between the “abuse

of discretion” standard and the deferential scope of review

under the second prong of Chevron U.S.A. Inc. v. NRDC, 467

U.S. 837, 842-43 (1984), is a subtle analytical matter. Suffice

it to note that Congress used an unusually restrictive scope

of review in IRCA.

* Senator Cranston’s comments came during debate over an

immigration reform bill in the 98th Congress, which included

the same bar to judicial review as the bill passed by the

Senate in the 99th Congress.

10a

plies only to determinations made in individual legaliza-

tion cases and not to broad challenges to an INS policy or

legal position that could apply to many cases. The courts

of appeals, it follows, have exclusive review jurisdiction

only over the former; the latter sort of proceedings may

be brought pursuant to the APA and resting on general

federal question jurisdiction (28 U.S.C. § 1331) in the

district court to challenge agency “actions,” like the issu-

ance of the regulation before us, independent of any

specific determination involving an individual alien.

If appellees are correct, such a challenge could be

brought not only by an organization alleging an independ-

ent injury, but by an individual alien (presumably prior

to a denial of legalization), a group of aliens, or an or-

ganization representing their interests. These potential

plaintiffs would thereby gain significant litigating advan-

tages. For one thing—as happened in this very case—

the district court could avoid the difficult analytical prob-

lem of discerning the relationship between the “abuse of

discretion” scope of review that applies in the courts of

appeals and the normal scrutiny given agency interpre-

tations of their organic statutes. More importantly, such

an action, particularly if it includes a request for an

injunction, could offer the opportunity decisively to in-

fluence the INS’s behavior all over the country—and do so

quickly. See, e.g., Bresgal v. Brock, 843 F.2d 1163, 1171

(9th Cir. 1987) (nationwide relief may be appropriate

even in an individual action); Decker v. O’Donnell, 661

F.2d 598, 617-18 (7th Cir. 1980) (nationwide injunction

appropriate in case of facial challenge to legality of

agency regulation). If denials of legalization are appealed

to the courts of appeals only after subsequent deportation

orders, it would take a good deal more time to gain a

judicial judgment on the legality of the INS’s interpreta-

tion of a statutory term such as “known to the Govern-

ment.” The courts of appeals, moreover, may well differ

in their views as to the legality of the INS’s construction

of the statute. Even were the INS to acquiesce in an un-

lla

favorable judicial interpretation in one circuit,‘ it would

surely not be obliged to do so in other circuits that had

not decided the question. And, of course, an unfavorable

ruling in one circuit would not prevent the INS from

continuing to follow its interpretation of the statute in

other cases nationwide. United States v. Mendoza, 464

U.S. 154, 160-63 (1984).

‘Whether an agency is required as a matter of law to

acquiesce in an unfavorable ruling when future cases arise in

the same circuit court of appeals is a matter of much debate.

See generally, Note, Agency Nonacquiescence: Implementa-

tion, Justification, and Acceptability, 42 Wash. & Lee L. Rev.

1233 (1985) ; Note, Administrative Agency Intraciremt Non-

acquiescence, 85 Col. L. Rev. 582 (1985). Some agencies—

particularly the Social Security Administration, the Internal

Revenue Service, and the National Labor Relations Board—

have adopted explicit policies of intracircuit nonacquiescence,

and have argued, inter alia, that their policy is justified by

the need to guarantee nationwide uniformity of laws, rules,

and regulations to all claimants. Although some courts have

expressed disapproval of intracircuit nonacquiescence, see,

e.g., Ithaca College v. NLRB, 623 F.2d 224, 228-29 (2d Cir.

1980), cert. denied, 449 U.S. 975 (1980); Allegheny Gen.

Hosp. v. NLRB, 608 F.2d 965, 970 (3d Cir. 1979), and even

suggested that it might be unconstitutional, Stieberger v.

Heckler, 615 F. Supp. 1315, 1863 (S.D.N.Y. 1985), vacated

on other grounds sub. nom. Stieberger v. Bowen, 801 F.2d 29

(2d Cir. 1986), we have never decided the issue. Compare

Yellow Tazi Co. v. NLRB, 721 F.2d 366, 388 (D.C. Cir.

1983) (opinion of MacKinnon, J.) (admonishing the Board

“to halt its apparently willful defiance of long established,

controlling judicial precedent”) with id. at 384 (Wright, J.,

concurring) (refusing to concur in condemnation of Board’s

intracircuit nonacquiescence) and id. at 385 (Bork, J., con-

curring) (declining to agree or disagree with criticism of

Board but noting that “[a]n agency with nationwide juris-

diction is not required to conform to every interpretation

given a statute by a court of appeals”). Even the most

vociferous critics of intracircuit nonacquiesence have con-

ceded the validity of the policy in at least some instances.

See Stieberger, 615 F. Supp. at 1365-66.

12a

Whether or not the judicial review provisions of IRCA

preclude direct recourse to the district court to challenge

the INS’s construction of the statute embodied in a regu-

lation depends, of course, on congressional intent. Para-

doxically, appellees’ construction of those IRCA provisions

suggests that Congress wished to channel to the courts of

appeals only the application of the statute in presumably

less important individual cases while reserving to initial

district court review (albeit subject to subsequent appeal)

the much more important cases involving broad questions

of statutory construction that would apply to a whole

class of aliens. But cf. H.R. REP. No. 1086, 87th Cong.,

Ist Sess. 28 (1961) (“Since deportation proceedings deal

with the liberty of persons rather than mere property, the

committee has concluded that granting an initial review

in an appellate court gives the alien greater rights,

greater scrutiny, and more assurance of a close study of

his case by experienced judges.”). While some courts

have found that allocation of jurisdiction appropriate

under the judicial review provisions of section 106, appar-

ently because they believed the only purpose of exclusive

court of appeals jurisdiction was to prevent piecemeal liti-

gation by aliens in the district courts that would delay

deportation, see, e.g., Haitian Refugee Center v. Smith,

676 F.2d 1023, 1033 (5th Cir. 1982) (discussed infra),

we do not believe Congress intended that result under

IRCA.® The language and structure of IRCA, as well as

5In enacting section 106 itself, Congress seems to have

been more broadly concerned with “unjustified” litigation,

even “unjustified attacks upon the constitutionality of the

Immigration and Nationality Act” by “astute attorneys who

know how to skillfully exploit the judicial process.” H.R. Rep.

No. 1086, 87th Cong., 1st Sess. 23 (1961). Of course, juris-

diction could not turn on the justification (merits) of a

claim, but Congress’ concern about attorneys’ skill in using

the judicial process to frustrate deportation proceedings by

such devices as forum shopping, see id. at 28-29, seems rele-

vant to the HRC v. Smith exception—and perhaps even more

pertinent to the instant case.

:

:

:

13a

its legislative history, do not support appellees’s inter-

pretation.

Appellees argue that the challenged regulation and its

applicability to section 265 do not constitute a “determina-

tion respecting an application for adjustment,” review-

able only in the courts of appeals, because it is not a

ruling on an actual application. Indisputably, however,

the regulation embodies determinations that will impact,

and therefore are “respecting,” future individual applica-

tions. We do not understand appellees to contend that

“an application” applies only to an individual claim;

surely a “determination” might be made in a proceeding

in which several applications were consolidated. Rather,

appellees seem to argue that the statutory exhaustion re-

quirements and judicial review provisions are confined to

determinations made after an application is filed. But the

phrase “respecting an application” on its face does not

appear to be so limited. Cf. Heckler v. Ringer, 466 U.S.

602, 621 (1984) (defining the word “claim” under the

Medicare Act to include a challenge to agency policy that

allegedly would prevent the plaintiff from getting an oper-

ation upon which a claim would be based) .*

The dissent, nevertheless, counters that the “determina-

tion” to which subsection 245A(f)(1) refers must be

more narrowly interpreted, since it must be the same

determination referred to by subsection 245A (f) (3) (A) —~—

* Contrary to the dissent’s assertion, Dissent at 9, Con-

gress does not appear to have used the terms “on the applica-

tion” and “respecting an application” interchangeably. Sub-

section 245A (f) (1), which uses the term “respecting,” refers

to both administrative and judicial review of legalization de-

terminations. Since judicial review may well be broader than

administrative review because only courts would likely de-

clare a regu'ation invalid as applied (rather than interpret

and apply agency regulations), it is quite natural for Con-

gress to use the broad term when referring to judicial review

and the narrower term when discussing only administrative

review.

l4a

“The Attorney Genera] shall establish an appellate au-

thority to provide for a single level of administrative

appellate review of a determination described in para-

graph (1)”—and it could not be thought that a regulation

could be challenged in that administrative proceeding.

Dissent. at 8-12. We do not understand why that is so.

Indeed, if the statutory interpretation embodied in the

regulation were to be challenged in the court of appeals

after a deportation order, it would have to be first raised

in the administrative proceeding, because “judicial review

shall be based solely upon the administrative record.”

See 8 U.S.C. § 1255a(f) (4)(B). It may well be that

the administraitve appellate authority would consider it-

self bound by a regulation issued by the INS, but that

does not necessarily suggest its interpretation of the regu-

lation is pre-ordained. That the LAU may be limited as

to its scope of review of a determination (or that part

of a determination) embodied in a regulation does not

suggest that it cannot review the determination.’ Quite

commonly, when reviewing agency applications of their

own regulations, we see a somewhat different result than

might have been expected. The doctrine of special judicial

deference to administrative agency adjudicatory interpre-

tation of agency regulations grows out of just that ex-

perience. See Udall v. Tallman, 380 U.S. 1 (1965). The

7 Of course, the LAU would not, as the dissent suggests,

Dissent at 9-10, be reviewing a facial challenge to the regula-

tion, but rather an application of the regulation to an indi-

vidual. Facial challenges to the regulation are not -permitted,

because subsection 245A (f) (3) provides that “administrative

appellate review shall be based solely upon the administra-

tive record established at the time of the determination on

the application.” 8 U.S.C. §1255a(f) (3) (Supp. V 1987).

The use of the term “on” in this subsection illustrates that

the LAU may hear only cases involving challenges to deter-

minations on individual applications for adjustment, and

again underscores the significance of Congress’ use of the

broader term “respecting an application” when referring to

judicial review. See infra note 6.

iinet ittinsisinains ink oain diieiieaciateaniedaacieniineniaaas

15a

dissent, by characterizing the “determination” reviewable

in the courts of appeals as “fact-specific,” Dissent at 3,

14 n.5, seems to suggest that such review was not in-

tended to encompass legal questions of statutory inter-

pretation, which were instead to be left to the district

courts if and when the INS somehow manifested its statu-

tory interpretations other than in an adjudication. Of

course, as we have suggested, that is a rather peculiar

way to divide jurisdiction between courts of appeals and

district courts. Moreover, in subsection 245A (f) (4) (B),

Congress said “findings of fact and determinations” shall

be conclusive, thereby recognizing that questions of law

were meant to be incorporated in the word “determina-

tion.” See 8 U.S.C. § 1255a(f) (4) (B) (Supp. V 1987).

Since the INS was authorized but not obliged to issue

regulations interpreting the statutory language,® it could

have waited until individual legalization proceedings be-

fore demonstrating its interpretation of the “known to

the Government” language. In that event, surely the

courts of appeals would have had, and been expected to

exercise, authority to review the agency’s interpretation

(giving appropriate deference) in the context of indi-

vidual deportation cases. See INS v. Chadha, 462 U.S.

919, 988 (1983). By not requiring the INS to issue

regulations that provided an administrative interpreta-

tion of statutory language—and not providing a separate

mechanism for judicial review of such regulations—Con-

gress must have assumed that the agency’s statutory

interpretations would be reviewed only in the context of

appeals from deportation orders. It seems inconceivable

that Congress would have wished instead to closely cir-

cumscribe judicial review of legalization decisions that

applied whatever regulations the INS issued, and at the

8 See 8 U.S.C. § 1255a(g) (Supp. V 1987). The INS was

required to issue regulations on only one issue—the definition

of the statutory term “resided continuously.” Jd. § 1255a(g)

(1) (A).

l6a

same time to allow APA challenges to such regulations

in almost any district court of the United States. Indeed,

if the district court or any court had jurisdiction to re-

view directly the INS’s regulations interpreting IRCA

(if issued), Congress would have created a disincentive

to issuance of those regulations—which hardly accords

with the desirability of providing aliens with prompt

information as to the government’s interpretation of the

statute.

Once it is recognized, as it must be, that an alien

could challenge, on appeal from a deportation order, an

interpretive regulation which causes the INS to deny his

legalization claim, it follows that the district court lacked

jurisdiction to hear the same claim in a different forum.

For subsection 245A (f) (4) (A) of IRCA limits judicial

review of “such” denials to review of deportation orders.

Congress thereby explictly prohibited an alien from

mounting two parallel challenges to the same regulation.

The dissent nevertheless reads the statute to permit an

alien to challenge in the district court a regulation that

would affect him—apparently before he files a “piece of

paper” seeking legalization—and then, in a duplicate pro-

cedure, to challenge the same regulation on appeal from

a deportation order. Under those circumstances we could

have two cases before us: one on appeal from the district

court, and one on appeal from a deportation order raising

essentially the same claims. It is not at all clear that

in light of that possibility the district court could have

jurisdiction even in the absence of subsection 245A (f)

(4) (A), see Telecommunications Research & Action Cer-

ter v. FCC, 750 F.2d 70, 77-79 (D.C. Cir. 1984) ; Invest-

ment Co. Inst. v. Board of Governors, 551 F.2d 1270,

1278-80 (D.C. Cir. 1977), but, in any event, the presence

of subsection 245A (f) (4) (A) makes it evident that the

district court lacks power to entertain the same claim

that could be brought to the court of appeals.

The statute’s legislative history indicates Congress in-

tended aliens to come forward during the 12-month eli-

ahh il NTI SS

tances -~

17a

gibility period because*“this is the first call and the last

call, a one shot deal.” 182 Cong. Rec. $16,888 (daily ed.

Oct. 17, 1986) (remarks of Sen. Simpson). If aliens did

not make a legalization claim during that window period,

it was lost forever. An alien could not defend against a

deportation order based on a claim of legalization if the

claim was not made during the designated twelve months.

See 8 U.S.C. § 1255a(a)(1) (Supp. V 1987). Accord-

ingly, Congress provided for QDEs to advise aliens as

to the validity of this claim: ‘We are not trying to fool

you this time.” 182 Cong. Rec. $16,888 (daily ed. Oct 17,

1986) (remarks of Sen. Simpson). But the QDEs were

forbidden to make “a determination required by [the

statute] to be made by the Attorney General.” /d.

§ 1255a(c) (3). It was, therefore, the Attorney General’s

interpretation of IRCA that Congress expected to have

the primary operational impact during the 12-month

period.®

The dissent ascribes to Congress an interest in provid-

ing the alien with “accurate advice,” Dissent at 28,

and that is undeniable. Accurate, certainly, as to the

Attorney General’s interpretation of the statute and, per-

haps also, the QDEs’ best appraisal of whether the courts

of appeals (and the Supreme Court) would sustain that

interpretation. If, for instance, an alien would not qual-

ify for legalization based on the Attorney General’s inter-

pretation of IRCA as a QDE or a private attorney under-

stood it, but the counselor thought the interpretation

would not be sustained on review of a deportation order,

the alien could rely on the advice and file an application

for legalization. Whether the alien ultimately prevailed

on appeal from a deportation order would depend—as is

typically the case—on the quality of advice he received.

* Of course, if a case had come to the court of appeals on

review of a deportation order that raised the section 265

issue, we would have had before us the agency’s construction

of that term as it applied to a particular applicant.

18a

Only an advisory opinion from the Supreme Court would

totally remove any uncertainty, and Congress could not

provide for that even if it wished to.

The dissent, although not the district court, appears to

find a congressional intent to provide aliens with more

than the Attorney General’s interpretation of the statute

during the window period. It is argued that they were

entitled to authoritative judicial review and correction of

the Attorney General’s misinterpretations (“egregious” or

otherwise), see Dissent at 22, before the 12-month

period lapsed. If that were so, Congress would certainly

have required the Attorney General quickly to issue regu-

lations covering all foreseeable applications of the statute,

cf., e.g., Office of Federal Procurement Policy Act Amend-

ments of 1988, Pub. L. No. 100-679, § 6, 102 Stat. 4055,

4067 (1988) (all implementing regulations “shall be is-

sued ... within 180 days after the date of enactment”),

and also provided for a special expedited judicial review

of those regulations in a particular court of appeals. See

Yakus v. United States, 321 U.S. 414, 440 n.7 (1944)

(Congress provided for expedited judicial] review in Emer-

gency Court of Appeals of regulations implementing The

Emergency Price Control Act); Resource Conservation

and Recovery Act of 1976, 42 U.S.C. §§ 6924, 6976 (1982

& Supp. V 1987) (EPA Administration required to pro-

mulgate certain regulations within eighteen months, and

judicial review allowed only in D.C. Circuit within ninety

days of issuance).

Congress was surely well aware, when it placed review

of agency action in the courts of appeals, that it could

take a long time—and often require Supreme Court inter-

vention—before legal uniformity was achieved. That is

merely one of the characteristics of our system of federal

appellate review, which Congress may avoid if it so

wishes. See, e.g., United States v. Fausto, 108 S. Ct. 668,

674 (1988) (exclusive review of Merit System Protection

Board decisions placed in Federal Circuit to avoid vary-

i

)

‘

:

4

:

eM ame x

19a

ing decisions in lower federal courts). To permit one

federal district court to short-circuit this process is incon-

sistent with the system of appellate review provided in

the statute. Appellees’ approach fundamentally alters the

relationship between the Executive Branch and the fed-

eral judiciary that Congress decreed, because one district

court (supported, if necessary, by one court of appeals)

could force the Executive Branch to change its interpreta-

tion of a statute. As noted above, a decision by a court of

appeals against an agency in an individual case does not

bind the agency in other circuits, and perhaps not even

in other cases within the same circuit. See supra at

10-11.

If anything, the legislative history suggests that Con-

gress, rather than considering such extensive judicial

monitoring of the legalization program, only grudgingly

provided any judicial review even in the context of de-

portation orders. The choice for the conference committee

was between the House version, which was adopted, and

the Senate version, which precluded any judicial review

“of a decision or determination with respect to the legal-

ization programs.” Although we do not propose a general

canon of construction that ambiguous statutes be inter-

preted in favor of the house of Congress that acquiesces

in the eventual text, we think it unlikely that the Senate

would have agreed to the House language with the under-

standing that it permitted not only review of legalization

determinations in the courts of appeais after deportation

orders but also even more expansive, intrusive, and direct

review of policy determinations that would or could lead

to denials of applications for adjustment. As the dissent

concedes, Dissent at 14, the Senate bill “would clearly

have precluded review of rulemaking as well as adjudica-

tion”—i.e., all review of the legalization programs. The

leading opponent of the Senate provision, who sought to

substitute an amendment “identical to the language pro-

posed by the House committee,” believed his change would

“merely permit[]” a “very limited form of judicial] re-

20a

view” that “would be available only when an improper

denial of legalization is raised as a defense in a deporta-

tion proceeding already subject to judicial review.” 129

Cong. Rec. 12,810 (1983) (statement of Sen. Cranston).

The more plausible interpretation of the Senate’s acquies-

cence, therefore, is that an IRCA determination is review-

able only in the context of cases brought to the courts of

appeals pursuant to section 106 of INA.’

Appellees argue that section 106, which provides for

court of appeals review of orders issued in deportation

proceedings, has itself been interpreted not to preclude

suits in the district court to challenge agency policies, so

it is therefore inappropriate to conclude Congress meant

to exercise any tighter rein over IRCA, which channels

applicants into deportation proceedings reviewed under

section 106. The restrictive judicial review provision of

section 106 is “the sole and exclusive procedure for[] the

judicial review of all final orders of deportation,” 8 U.S.C.

§1105a(a) (1982), and it includes the precondition that

“lajn order of deportation or of exclusion shal] not be re-

viewed by any court if the alien has not exhausted the ad-

ministrative remedies available to him... .” Id. § 1105a

(c). The Supreme Court has never directly determined

whether this section precludes a challenge to agency reg-

ulations ‘in the district court before the initiation of de-

portation proceedings. But the Court has read “final

1° The dissent, starting from the assumption that “deter-

minations respecting an application” as used in the House bill

does not refer to rulemaking, argues that Senator Cranston

attempted to adopt the section of the House bill permitting

judicial review after an order of deportation but not that

part allowing separate review of regulations. However, we

think Senator Cranston’s statement that his amendment was

“identical to the language proposed by the House committee”

implicitly, if not explicitly, indicates that he thought his

amendment would result in equivalent judicial review pro-

visions in the two bills, and thus that “determinations re-

specting an application” includes regulations.

2la

orders of deportation” to include “all determinations

made during the incident to the administrative proceed-

ing conducted by a special inquiry officer, and review-

able together by the Board of Immigration Appeals,”

Foti v. INS, 375 U.S. 217, 229 (1963) (emphasis added},

and al] such determinations are within the exclusive ju-

risdiction of the courts of appeals. Id.; see also Giova v.

Resenberg, 379 U.S. 18 (1964) (denial of motion to

reopen deportation proceedings reviewable only under

section 106). Although the Court has interpreted section

106 to permit an alien to challenge separately in district

court an INS denial of a stay of deportation, issued in

an entirely separate proceeding three months aftcr a

final order of deportation, Cheng Fan Kwok v. INS, 392

U.S. 206 (1968), it has suggested that any matter “gov-

erned by the regulations applicable to the deportation

proceeding itself, and . . . ordinarily presented for dis-

position to the special inquiry officer who enter[s] the

deportation order” is within the exclusive jurisdiction of

the courts of appeals. Jd. at 217. Most recently, in JNS

v. Chadha, 462 U.S. 919 (1983), the Court squarely held

that section 106 “includes all matters on which the va-

lidity of the final order [of deportation] is contingent,

rather than only those determinations actually made at

a hearing,” id. at 938 (quoting INS v. Chadha, 634 F.2d

408, 412 (9th Cir. 1980) ) (emphasis added).

Appellees do have a point, however; as we have noted,

lower federal courts have allowed certain plaintiffs to

avoid the exhaustion requirement and corresponding ex-

clusive court of appeals jurisdiction under section 106.

The Fifth Circuit, in Haitian Refugee Center v. Smith,

676 F.2d 1023, 1033 (5th Cir. 1982) [hereinafter HRC

v. Smith], was faced with a broad attack on the prac-

tices of immigration judges who heard asylum claims

during deportation hearings, and held that an allega-

tion of “a program, pattern or scheme by immigration

officials to violate the constitutional rights of aliens is...

22a

a separate matter subject to examination by a district

court and to the entry of at least declaratory and injunc-

tive relief.” The court read the grant of exclusive juris-

diction to the courts of appeals as applying only to ac-

tions taken in individual deportation proceedings that

may affect the determination of the merits of a claim,

and authorized any district court “to wield its equitable

powers when a wholesale, carefully orchestrated, pro-

gram of constitutional violations is alleged.” Jd. Al-

though the Fifth Circuit emphasized the narrowness of

its holding and promised not to condone any “end-run

around the administrative process,” id., the application

of HRC v. Smith has proliferated to the point where it

now more nearly resembles a gaping hole in the middle

of the INS’s defensive line. Other courts have adopted

the Fifth Circuit’s distinction under section 106 between

review of individual deportation orders and broad-based

challenges to agency policy on both constitutional and

statutory grounds. Jean v. Nelson, 727 F.2d 957, 979-81

(11th Cir. 1984) (en banc), aff'd, 472 U.S. 846 (1985)

(expressing no view on jurisdictional issues); Salehi v.

District Director, 796 F.2d 1286, 1290 (10th Cir. 1986) ;

Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1503

(C.D. Cal. 1988); Hotel & Restaurant Employees Union

v. Smith, 563 F. Supp. 157, 162 (D.D.C. 1983) (denying

motion to dismiss), summary judgment granted for de-

fendant, 594 F. Supp. 502 (D.D.C. 1984), affd by an

egualy divided court, 846 F.2d 1499 (D.C. Cir. 1988)

(en banc); Orantes-Hernandez v. Smith, 541 F. Supp.

351, 364 (C.D. Cal. 1982).

HRC v. Smith and its progeny, however, are not only

unsupported by the Supreme Court’s cases on section 106,

including the subsequently decided Chadha, but appear in-

consistent with the reasoning of the Supreme Court in

Heckler v. Ringer, 466 U.S. 602 (1984). The Court there

was faced with a challenge to a ruling issued by the

Secretary of Health and Human Services that precluded

ee —\

23a

payment under Medicare for a particular surgical pro-

cedure. The Medicare Act permits judicial review of “any

claim arising under” the Act, via 42 U.S.C. § 405(g),

only after a claimant seeks payment and exhausts admin-

istrative remedies. The plaintiff, Ringer, wished to un-

dergo that procedure, which he could not afford without

Medicare reimbursement. He sued in district court for a

declaratory judgment, arguing that he was not obliged

to exhaust, because he did not yet have a claim and was

instead challenging an agency ruling that, in effect, pre-

cluded his claim. The Supreme Court refused to accept

that distinction, holding that Ringer was “clearly seeking

to establish a right to future payments should he ulti-

mately decide to proceed with [the particular] surgery.”

Id. at 621. It recognized that to hold otherwise would

allow claimants “to bypass the exhaustion requirements

of the Medciare Act by simply bringing declaratory judg-

ment actions in federal court before they undergo the

medical procedure in question.” Jd. To be sure, unlike

HRC v. Smith, Ringer did not present a constitutional

claim, but the HRC v. Smith line of cases has not been

limited to constitutional challenges. See, e.g., Jean v.

Nelson, 727 F.2d at 980 n.32."

11 The dissent’s extensive discussion of Bowen v. Michigan

Academy of Family Physicians, 476 U.S. 667 (1986), is

largely beside the point. Michigan Academy did not even

question Ringer, and the latter case sti!l supports the general

propositions that an individual plaintiff may not circumvent

a statutory exhaustion requirement by bringing a preemptory

declaratory judgment action. Even the plaintiffs in Michigan

Academy read Ringer to mean that “whatever specific pro-

cedures [Congress] provided for judicial review ... were

exclusive, and could not be circumvented by resort to the

general jurisdiction of the federal courts.” Michigan Acad-

emy, 476 U.S. at 679. No circumvention problem was present

in Michigan Academy, because Congress had not imposed an

exhaustion requirement on claims arising under Part B of the

Medicare program.

Unlike Ringer, which concerned part A of Medicare, Mich-

igan Academy raised the entirely different question whether

24a

We have not been obliged to decide whether there is a

“program” exception to section 106—for constitutional or

statutory claims—that permits a suit by aliens or those

representing them,’* and we think it is unnecessary to do

Congress had altogether precluded review of statutory and

constitutional challenges under part B. This was so, because

in United States v. Erika, Inc., 456 U.S. 201, 208 (1982),

the Court had interpreted the Medicare Act to preclude ju-

dicial review of Part B amount determinations. And those

determinations were made by insurance carriers who were

not authorized to consider legal challenges to the Act or regu-

lations. The Court thus declined to deem the regulation at

issue in Michigan Academy an “amount determination,” be-

cause that would have prevented any judicial review of the

rule and raised “serious constitutional issues.” Jd. at 680-81

& n.12. That is, of course, not the case in Ringer or in IRCA,

where review of a rule affecting future claims or applications

is available after exhaustion of administrative remedies. In

any event, nothing in IRCA suggests that the exclusive re-

view procedure is limited to “quite minor matters,” cf. Michi-

gan Academy, 476 U.S. at 680, that could affect an applica-

tion for adjustment. As noted above, supra at 12-13, Con-

gress must have expected major legal questions to be resolved

in legalization adjudications.

Nor does Michigan Academy provide any support for the

notion that the appellee organizations can challenge agency

regulations in district court, although individual aliens are

required to seek review only in the deportation context. Cf.

Dissent at 30-32. Clearly, the organizational plaintiffs in

Michigan Academy could challenge regulations in district

court in the same manner as the individual plaintiffs could

do sv. But nothing in Michigan Academy suggests that an

organization could have sued directly in Ringer, where the

individual claimant was required to exhaust administrative

remedies. And the dissent does not even mention Block v.

Community Nutrition Institute, 467 U.S. 840 (1984), the

Supreme Court’s most recent thorough discussion of preclu-

sion of review under the APA. See infra at 30-31.

12In Hotel & Restaurant Employees Union v. Smith, 846

F.2d 1499 (D.C. Cir. 1988) (en banc) (equally divided court),

four members of the court assumed that the exhaustion re-

quirement of section 106 does not apply to “a general chal-

25a

so here. However, several district courts have applied the

Fifth Circuit’s approach under section 106 to the judicial

review provisions of IRCA. Doe v. Nelson, 703 F. Supp.

713, 720-22 (N.D. Ill. 1988) (finding HRC v. Smith in-

distinguishable) ; Immigration Assistance Project v. INS,

No. C88-379R, slip op. at 10-11 (W.D. Wash. Nov. 2,

1988) (citing HRC v. Smith); Haitian Refugee Center

v. Nelson, 694 F. Supp. 864, 873-74 (S.D. Fla. 1988)

(citing HRC v. Smith and reasoning that “[t]o deny ju-

risdiction would be to allow illegal agency action to go

unchallenged”) ; Zambrano v. INS, No. S-88-455, slip op.

at 6-7 (E.D. Cal. Aug. 9, 1988). We find these cases un-

persuasive; they do not focus on the language and legis-

lative history of ICRA. We think whatever the proper

interpretation of section 106 as it relates to “final orders

of deportation,” IRCA’s judicial review provisions, al-

though employing the section 106 machinery, have a

broader preclusive effect. It is arguable, for example, that

certain INS actions—other than those under IRCA—

taken before initiation of deportation proceedings are re-

viewable in the district court under APA standards, de-

spite the exclusivity provision of section 106. Cf. Hotel

and Restaurant Employees Union v. Smith, 846 F.2d at

1513 n.2 (opinion of Silberman, J.) (assuming without

deciding that an alien could sue to gain direct review of a

denial of asylum without waiting for a deportation pro-

ceeding) ; but see Kashani v. Nelson, 793 F.2d 828, 826-

27 (7th Cir.), cert. denied, 479 U.S. 1006 (1986).

lenge to the INS’s entire frameworking for processing appli-

cations.” Id. at 1506 (opinion of Mikva, J.). The other half

of the court, citing International Union, UAW v. Brock, 477

U.S. 274 (1986), noted that it “may well be” that such an

exception exists, but found it unnecessary to examine that

contention in depth since they resolved the case on other

jurisdictional grounds. Jd. at 1514 (opinion of Silberman, J.).

13 Tt will be recalled that the specific actions challenged in

HRC v. Smith were denials of asylum requested in the depor-

tation hearings themselves rather than prior to such proceed-

26a

IRCA, however, provides for an alien to seek review of a

denial of legalization only in the context of a deportation

proceeding, see 8 U.S.C. § 1255a(f) (4) (A) (Supp. V

1987), so we are not confronted with an argument that

APA review could be predicated on the denial of legaliza-

tion by itself. It is crystal clear—at least with regard to

TRCA—that Congress closed that door.

Appellees also rely on International Union, UAW v.

Brock, 477 U.S. 274 (1986), to support the district court’s

order. Brock concerned the implementation of the Trade

Act of 1974, as amended, 19 U.S.C. §§ 2101-2495 (1982

& Supp. V 1987), which established a program of trade

readjustment allowance (TRA) benefits for workers who

have lost their jobs because of import competition, and

provides, inter alia, that “{a] determination by a coop-

erating State agency with respect to entitlement to pro-

gram benefits under an agreement is subject to review in

the same manner and to the same extent as determina-

tions under the applicable State [unemployment insur-

ance] law and only in that manner and to that extent.”

Jd. § 2311(d) (emphasis added) ; see id. § 2319(10). The

Court held that the Act authorized a union to sue in fed-

eral district court on behalf of its members to challenge

a Trade Act regulation issued by the Secretary of Labor,

which governed state determinations, notwithstanding the

judicial review provision. But Brock is distinguishable

from Ringer (not mentioned in the Court’s opinion) and

our case, because Congress never intended TRA claim-

ants to exhaust state remedies when challenging the fed-

eral guidelines. The Trade Act was passed against a

background of a line of cases in the Supreme Court and

ings. Because a denial of asylum might be reviewable before

deportation proceedings, the argument that denials during

the proceedings are not separately reviewable rests on less

powerful—if not insignificant—grounds. See Foti, 375 U.S.

at 229; International Union, UAW v. Brock, 477 U.S. 274, 294

(1986) (White, J., dissenting).

27a

lower federal courts holding that there is federal juris-

diction to review state unemployment insurance claims

that raise questions of federal law. See Brock, 477 US.

at 285. And on its fact, the exhaustion requirement in

the Trade Act refers only to “determination[s] by a co-

operating State agency.” If the Trade Act had said—

paralleling IRCA—that any (federal or state) determi-

nation with respect to program benefits was reviewable

only through the state process, the cases would be more

alike. :

We do not therefore take Brock to mean that in order

to confine litigants to administrative procedures review-

able only by certain courts, Congress must affirmatively

state that other courts may not hear the same questions

if raised in a different form. Often an exclusive pro-

cedure for judicial review in the courts of appeals will

implicitly, if not explicitly, forbid broad-based challenges

to agency practice in the district courts. Whitney Nat’l

Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411,

422 (1965) (Where Congress “has enacted a specific stat-

utory scheme for obtaining review, . . . the doctrine of

exhaustion of administrative remedies comes into play

and requires that the statutory mode of review be ad-

hered to notwithstanding the absence of an express stat-

utory command of exclusiveness.”); Telecommunications

Research and Action Center v. FCC, 750 F.2d 70, 77 (D.C.

Cir. 1984); see also 5 U.S.C. § 702 (1982) (“Nothing

herein .. . confers authority to grant relief if any other

14 Even three of the dissenters in Brock, who were in the

majority in Ringer, seemed to recognize the difference be-

tween the cases when they said “[t]he distinction between a

challenge t« the guideline and a challenge to benefit detrmina-

tions might be meaningful if petitioners had only challenged

the application of the guidelines to as-yet-unsubmitted

claims.” Brock, 477 U.S. at 294 (White, J., dissenting). The

dissent was limited to the proposition that petitioners could

not interpret the state administrative review process once it

had begun to consider claims under submission.

28a

statute expressly or impliedly forbids the relief which is

sought.”) (emphasis added). The IRCA judicial review

provision sets forth that kind of procedure. It limits ju-

dicial review of any “determination respecting an appli-

cation for adjustment” to the courts of appeals, 8 U.S.C.

§ 245A(f) (Supp. V 1987), and if we were to uphold the

district court’s authority to enter declaratory and injunc-

tive relief, we would destroy much of the system that

Congress crafted.

The district court appeared to agree with our analysis

as it affects individual plaintiffs, but thought that some

of the organizational appellees were authorized to chal-

lenge the INS policies in district court because of their

special status as “qualified designated entities” (QDEs).

18 The district court engaged in the following colloquy with

appellees’ counsel, after counsel asserted that the individual

plaintiffs presented the strongest case for jurisdiction.

THE COURT: Well, but the individual plaintiffs, it would

seem to me, they would—why, wouldn’t they have to go

through the administrative process? ... [I]t seems to me

that they can have their status determined through the ad-

ministrative process.

COUNSEL: I think, Your Honor, they cannot because

... to do so would be a futile act. We have heard testimony.

We have presented affidavits to show that the INS is not

changing its opinion.

THE COURT: Why is it futile?

COUNSEL: Because they could never get a reversal in

the administrative process.

THE COURT: No, but that’s not the standard. The

standard is that as long as they can get a reversal in the

Court of Appeals. ... And it would seem to me that they

could then have this case go to the Court of Appeals and the

Court of Appeals could say ... it was a bad interpretation.

Am 1 wrong on that? Don’t they have an appeal right here?

If an individual goes and applies and he’s turned down, and

he goes up on appeal, can’t the Court of Appeals reverse that?

COUNSEL: Yes, obviously, the Court of Appeals could

reverse it, and for those individual! plaintiffs, the Court of

Appeals could do that. It could reverse it.

29a

Since these organizations had no administrative process

to which they could appeal, the court reasoned that they

must have a remedy somewhere, and that somewhere was

federal] district court. Ayuda, 687 F. Supp. at 660.

In support of the district court, appellees argue that

the QDEs’ special role in the legalization program implies

they are entitled to sue in district court to challenge the

INS’s regulation even if an alien subject to deportation

were not. The Attorney General was obliged under IRCA

to “designate qualified voluntary organizations” to assist

in-the legalization process. 8 U.S.C. § 1255a(c) (2) (Supp.

V 1987). Congress, understanding an illegal alien’s ap-

prehensions, wished to “assure applicants that they may

apply to such entities without fearing that their applica-

tions will be forwarded to the INS even if in the view

of such entities they do not qualify for legalization.” S.

REP. No. 132, 99th Cong., Ist Sess. 47 (1985). Since the

QDEs’ very function was to provide a buffer—a confi-

dential intermediary—between the INS and the alien,

appellees insist Congress could not have intended that

they would have no independent right to sue. The QDEs

and the other organizations claim they are injured—

apart from any injury suffered by the aliens—because

their ability to advise aliens is impaired by the “uncer-

tainty” caused by the government’s regulation and par-

ticularly its problematic application to the section 265

issue.

The government responds thai the QDEs under IRCA

are actually agents of the INS. Cooperative agreements

between the Department of Justice and the QDEs direct

that the latter “will comply with all relevant INS regu-

lations relating to the legalization . . . programs and fol-

low the instructions in the INS Training Manual,” and

the statute forbids the QDEs from making “a determina-

tion required by [IRCA] to be made by the Attorney

General.” 8 U.S.C. § 1255a(c) (3) (Supp. V 1987). We

thus find much force to the government’s argument that

30a

the QDEs’ interest is so “inconsistent with the purposes

implicit in the statute” that they lack standing to sue.

Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399

(1987). It seems to us that Congress, at most, intended

the QDEs to act as intermediaries, not litigating ombuds-

men. And even if the QDEs are thought of as agents

for the aliens, we doubt Congress intended the agents to

have broader rights to seek judicial review than do the

principals.

But even assuming that the appellee organizations

have standing to sue, we think the district court lacked

authority to hear their claim, because to do so would

clearly frustrate congressional intent to channel all dis-

putes about the legalization program into the courts of

appeals under a narrow scope of review. The flaw in the

district court’s analysis, in our view, is its assumption

that every aggrieved party must have a remedy under

the statute. It did not consider that Congress sometimes

intends to preclude suits by certain classes of plaintiffs,

see 5 U.S.C. § 701(a) (1) (1982) (judicial review under

the APA not available when precluded by statute), and

we think a “balanced approach to statutory construction,”

Block v. Community Nutrition Inst., 467 U.S. 340, 350

(1984), reveals that a congressional! purpose in IRCA to

preclude judicial review by anyone, except in the depor-

tation context, is “ ‘fairly discernible in the statutory

scheme.’” Id. at 351 (quoting Data Processing v. Camp,

397 U.S. 150, 157 (1970) ).

In Block, the Court faced a jurisdictional challenge to

an action brought under the APA by consumers dis-

puting the legality of the Secretary of Agriculture’s

milk marketing orders. The government claimed the con-

sumers lacked standing, but the court did not find it nec-

essary to reach that issue because it determined, instead,

that the statute barred consumers from seeking judicial

review—a ruling which the court described as “in ef-

fect” jurisdictional. Jd. at 353 n.4; see also Clarke v.

Securities Industry Ass’n, 479 U.S. 388, 399-400 (1987).

3la

Since the statute provided “a detailed mechanism for

judicial consideration of particular issues at the behest

of particular persons [milk handlers], judicial review of

those issues at the behest of other persons [was] found

to be impliedly precluded.” Jd. at 349 (emphasis added).

That detailed mechanism required milk handlers to ex-

haust administrative remedies before seeking judicial] re-

view in district court. Although the Court had previously

held that producers could seek judicial review despite no

statutory provision authorizing such suits, Stark v. Wick-

ard, 321 U.S. 288 (1944), the Court in Block explained

that the producers’ interest in Stark, which involved a

challenge to the Secretary’s administration of the fund

from which the producers would be paid, could not be

protected by the statutory provisions authorizing suits

by the handlers, since the latter had no interest in the

fund. Therefore, Congress did not intend to preclude

suits by the producers, because such suits were “neces-

sary to ensure achievement of the Act’s most fundamental

objectives—to wit, the protection of the producers of milk

and milk products.” Jd. at 352. The consumer’s interest

in Block, conversely, was similar to the handlers, and

therefore handlers could be expected to “challenge unlaw-

ful agency action and to ensure that the statute’s objec-

tives will not be frustrated.” Jd. Consumer suits served

no independent purpose and were deemed precluded be-

cause they “would undermine the congressional preference

for administrative remedies and provide a mechanism for

disrupting administration of a congressional scheme.” Jd.

That proposition is even more true here, because the

organizations seek review of the INS’s actions (without

the need to exhaust administrative remedies) in a dif-

ferent court under a somewhat different standard of

review than that provided in IRCA. And the interests

asserted by the organizations, even if they can be seen

as somehow different from those of the aliens who seek

legalization, are clearly so similar to those of the aliens

that no statutory interest is left unprotected by recog-

32a

nizing Congress’ implied preclusion of suits by QDEs

or other organizations. Congress allowed individual

aliens, who undoubtedly have the most direct interest in

the administration of IRCA, to challenge unfavorable

INS rulings only in the deportation context. It would

undermine Congress’ system of administrative remedies

and its plan for limited judicial review of IRCA deter-

minations, if QDEs were able to seek declaratory judg-

ments in the district courts without any applicable ex-

haustion requirement.

ITI.

The government alternatively argues that even if the

district court had jurisdiction to entertain a suit chal-

lenging the INS regulation, it lacked jurisdiction to con-

sider the narrower question presented in this appeal—

whether the INS “policy” applied to section 265 cases

was lawful—because the INS had not taken “final agency

action” or the issue was not ripe for review. We go on

to decide this question, thus resting our judgment on al-

ternative holdings, because statutory exhaustion require-

ments (and the Block variation) as well as ripeness and

finality are all jurisdictional or jurisdiction-related, and

discussion of this latter issue further illustrates the in-

herent difficulties presented by direct district court re-

view of a broad challenge to the INS policy under IRCA.

In its brief, the government melds three related but

distinct jurisdictional] concepts. The INS conduct in this

case is reviewable only if it constitutes “agency action,”

5 U.S.C. §551(13) (1982), that is “final,” id. § 704,

and otherwise “ripe” for review. See Abbott Labora-

tories v. Gardner, 387 U.S. 186, 148-49 (1967). Each of

these requirements is designed to maintain an appro-

priate relationship between federal courts and adminis-

trative agencies by preventing premature judicial] inter-

vention in the administrative process. “Agency action”

includes “the whole or part of an agency rule, oder,

license, sanction, relief, or the equivalent or denia] there-

33a

of, or failure to act.” 5 U.S.C. § 551(18) (1882), see

FTC v. Standard Oil Co., 449 U.S. 232, 238 n.7 (1980).

Such action is not “final” within the meaning of section

704 of the APA, unless it represents a “definitive state-

ment” of the agency’s position. Jd. at 241; USAA Fed.

Savings Bank v. McLaughlin, 849 F.2d 1505, 1508 (D.C.

Cir. 1988). Even “final agency action” is often unripe

for review if a reviewing court is not presented with a

concrete application of agency policy. The ripeness in-

quiry requires a court to balance “the fitness of issues

for judicial] decision against the hardship to parties of

withholding” review. Abbott Laboratories, 387 U.S. at

149. Determining “fitness,” in turn, generally involves

consideration of several factors: how “final” is the

agency action; whether the issue raised is one of law that

requires no further factua) development, compare Ciba-

Geigy Corp. v. EPA, 801 F.2d 430, 435 (D.C. Cir. 1986)

with id. at 443-44 (Silberman, J., dissenting) ; whether

additional administrative consideration is needed to

clarify the agency’s position; and whether consideration

of the issue would benefit from a more concrete setting.

Action Alliance of Senior Citizens v. Heckler, 789 F.2d

931, 940 (D.C. Cir. 1986). The paradigm hardship

against which the other side of the ripeness calculus is

balanced has been described as “ ‘a dilemma for a private

party who must choose between disadvantageous com-

pliance and risking serious penalties.’” Public Citizen

Health Research Group v. Commissioner, 740 F.2d 21, 31

(D.C. Cir. 1984) (quoting 4 K. Davis, ADMIN. L.

TREATISE 369 (2d ed. 1983) ).

We find the parties very much in disagreement as to

whether the INS had actually formulated an agency pol-

icy that applied the “known to the Government” standard

to section 265 cases after the INS acquiesced in the dis-

trict court’s interpretation of that phrase. Although the

INS agreed to comply with the court’s interpretation that

“known to the Government” meant that a nonimmigrant

qualified for legalization if he could show that the fed-

34a

eral government as a whole had documentation that es-

tablished his illegal] status before 1982, the government

claims it had yet determined whether a nonimmigrant

could establish that status by pointing to the absence of

a document—the quarterly report—from the INS’s files.

In both the proposed intervenors’ notice of points and

authorities before the district court (adopted by appel-

lees) and appellees’ brief to this court, the counseling

organizations claimed that INS Legalization Officers were

refusing to accept applications from section 265 appli-

cants, even after the district court’s ruling of March 30

declaring the meaning of the term “Government.” How-

ever, appellees conceded at oral argument—and our own

review of the affidavits confirms—that, at most, some local

INS offices were informing aliens that the office would

recommend denial of applications based on the section

265 theory. Assuming a recommended denial by a re-

_ gional INS office constitutes “agency action” under 5

U.S.C. § 551(18), it is clear that such a recommendation,

let alone a prior indication that such a recommendation

would be made, does not constitute final agency action.

See FTC v. Standard Oil Co., 449 U.S. at 241. For all

recommended denials are referred to an adjudicator,

whose decision is subsequently reviewable by the Legali-

zation Appeals Unit (LAU), 8 C.F.R. § 245a.2 (1988),

and appellees do not allege that the LAU has ever de-

cided a case involving the section 265 issue. That only

some of the INS field offices were recommending denial

of section 265 claims while others were not, moreover,

shows that the INS had no clear internal policy on the

issue. Review of a tentative administrative position ex-

pressed by only some regional INS offices would be “at

odds with fundamental notions of administrative law

that generally require the agency to resolve substantive

issues in the first instance.” Public Citizen, 740 F.2d

at 31.

To be sure, the original INS “known to the Govern-

ment” regulation appears to have precluded section 265

35a

claims, because, as noted above, it enumerated only four

circumstances in which an alien’s unlawful statute would

be deemed “known to the Government.” See supra at

3. But in their complaint, appellees never discussed the

section 265 issue. Although they did vaguely allege that

the INS regulation “restrict{[ed] the statutory provision

by enumerating the limited circumstances under which

the INS is deemed to know of an alien’s unlawful status,”

they offered no concrete case or legal theory for the dis-

trict court to consider. Their only specific argument, so

far as we can tell, was that “Government” must mean

the entire federal Government and not merely the INS.

The focus of the proceeding was the definition of “Gov-

ernment,” not the meaning of “known.” Once the district

court declared the regulation invalid insofar as it defined

“Government” and enjoined the agency from applying

it further, the court’s retention of jurisdiction and con-

tinuing “supervision” of INS’s administration of the pro-

gram was not an appropriate exercise of judicial power

vis-a-vis the government. See Eastex, Inc. v. NLRB, 437

U.S. 556, 568 (1978) (once court decides the precise

question raised, “[i]t is neither necessary nor appropriate

. .. to delineate precisely the boundaries” of the statutory

provision). The INS should, at minimum, have been

given the opportunity to reconsider the implications of the

court’s ruling for its IRCA legalization policy. See Con-

tinental Air Lines v. CAB, 522 F.2d 107, 125 (D.C. Cir.

1974) (“If the [agency’s] position is likely to be aban-

doned or modified before it is actually put into effect,

then its review ... interferes with the process by which

the agency is attempting to reach a final decision.”).

The dissent asserts that the district court “struck

down” the entire regulation as if every word was illegal,

but that is not, in our view, an accurate understanding

of what occurred. The district court disputed a negative

implication of the regulation: that an alien could not

show that his illegal status was known to the govern-

36a

ment by any means other than the four circumstances

.recognized by the regulation. It was (and is) undisputed

that an alien can qualify if his case falls within the scope

of any of those four eventualities. There are, perhaps,

~—~an infinite number of factual patterns, other than those

four, upon which an alien could rely to base a claim of

“known to the Government.” The district court, regard-

less of its sweeping language, decided only the legal is-

sue argued before it—whether “known to the Govern- |

ment” was or was not limited to the INS’s knowledge.

The court did not thereby gain jurisdiction to decide

whatever new variations could be presented on the

“known to the Government” theme as if it were the ad-

ministrator of the program. Since, as we have empha-

sized, the INS was not required to issue regulations which

embodied its interpretation of the statute, it is particu-

larly anomalous that the district court sought to extend.

its jurisdiction to encompass a claim as to another nega- ;

tive implication of the regulations that was not originally

presented.

Even had appellees raised the section 265 issue before

the district court at the same time as it challenged the

definition of “Government” (and pointed to the regula-

tion as “final agency action”), an anticipatory ruling on

the meaning of the word “known” without a clear indi-

cation of the government’s own interpretation would not

have been appropriate, because the issue would not then

have been ripe for review. When determining whether .

an issue that brings into question the propriety of an |

agency interpretation of a statute it enforces is ripe,

we must bear in mind other principles of administrative

law. The INS had never taken a position on the par-

ticular question posed by section 265 claimants: Must

_an alien’s unlawful status be proved by the presence of a

document in an alien’s file, or is the absence of a docu-

ment (such as a section 265 quarterly report) adequate

proof? The issue apparently was not raised before the

37a

agency during the rulemaking process, see 52 Fed. Reg.

at 16,206, and neither appellees nor the INS was even

aware of the section 265 theory until the proposed in-

tervenors came on the scene in April. We see nothing in

the statutory language or legislative history indicating

that Congress ever considered the section 265 issue or the

precise meaning of “known.” See Chevron U.S.A. Inc. v.

NRDC, 467 U.S. 837, 842-43 (1984). On its face, that

statutory term certainly admits of multiple meanings,

and even the district court commented on the inability of

either party to “unearth any legislative materials which

focus specifically and directly on the term ‘unlawful

status was known to the Government.’” Ayuda, 687 F.

Supp. at 663 n.16. It should thus be evident that Con-

gress did not “directly address the precise question at

issue,” Chevron, 467 U.S. at 843-44, and therefore the

judiciary must uphold an agency decision on the matter

if it is “rational and consistent with the statute.” NLRB

v. United Food & Commercial Workers, 108 S. Ct. 413,

421 (1987).

It follows, then, that when dealing with an ambiguous

statutory term such as “known,” a court should not in-

terpose its own interpretation of the term before the

agency has an opportunity to consider the issue and fix

on its own statutory construction. It may well be that

a court could properly conclude—faced with a concrete

challenge—that Congress intended “known” to encompass

something more than the four positive manifestations

described in the regulation. But that conclusion surely

does not necessarily carry with it a determination that

knowledge couid be imputed to the government based on

an alien’s failure to file a section 265 report. The agency

should have been given an opportunity to answer that

latter question before the court did. This is not a case

where the agency has taken a clear position and then, in

litigation, attempted to portray its policy as unsettled in

order to render the dispute unripe. Rather, even though

the INS regulations involved here might literally apply

38a

to section 265 claims, it is clear that the agency had

never formulated its position on that issue. We thus are

not faced with a facial challenge to an agency regulation

that clearly commands a particular result on this issue.

Cf. Cablevision Systems Dev. Co. v. Motion Picture Ass’n,

836 F.2d 599, 615 (D.C. Cir.), cert. denied, 108 S. Ct.

2901 (1988) (although “strict adherance to the literal

language” of letter by Copyright Office’s General Counsel

appeared contrary to law, case was unripe because the

rulemaking from which the regulation grew never ad-

dressed the disputed issue, and there was “no showing of

an interpretation to which the [agency] firmly ad-

here[d].”’).

It has long been recognized that an agency has primary

jurisdiction to apply the law to the facts on a matter ar-

guably within its statutory authority. Far East Conf. v.

United States, 342 U.S. 570, 574-75 (1952); see also

Nader v. Allegheny Airlines, 426 U.S. 290, 304-05 (1976).

Although the doctrine of primary jurisdiction was orig-

inally rooted in the notion that agencies have greater ex-

pertise, experience, and flexibility than courts in dealing

with regulatory matters, see Far East Conf., 342 U.S. at

575, as well as in a desire for uniform application of the

law, see id., we have recently held that abstention in

favor of agencies charged with resolving conflicting stat-

utory policies also promotes the proper relationships be-

tween courts and administrative agencies. National Re-

publican Cong. Comm. v. Legi-Tech Corp., 795 F.2d 190,

193 (D.C. Cir. 1986). This follows naturally from Chev-

ron, which explained that deference to agencies was ap-

propriate not only because of agency expertise but also

because Congress is presumed to delegate the policy

choices inherent in resolving statutory ambiguities to the

agency charged with implementation of the statute. Chev-

ron, 467 U.S. at 865-66; Cablevision Systems Dev. Co.,

836 F.2d at 608-09. To hold otherwise in this case would

preclude the INS from adopting a different but permis-

39a

sible construction of the term “known,” cf. National Re-

publican Cong. Comm., 795 F.2d at 194 n.7, a result that

would undermine the central tenet of Chevron and its

progeny. See Chevron, 467 U.S. at 846 (“The respon-

sibilities for assessing the wisdom of such policy choices

and resolving the struggle between competing views of the

public interest are not judicial ones: ‘Our Constitution

vests such responsibilities in the political branches.’ ”

(quoting TVA v. Hill, 487 U.S. 158, 195 (1978))). +

The dissent argues, however, that whatever the possi-

ble ambiguities of the term “known,” it “unambiguously

embraces” the claims of aliens who failed to file a section

265 quarterly report. Dissent at 42. But the district

court’s order itself illustrates the error in the dissent’s

conclusion. Supplemental Order V recognized that not all

aliens who failed to file the section 265 quarterly reports

slipped into unlawful status; the failure to file must also

have been willful. Anuda, 687 F. Supp. at 668; see 8

U.S.C. §1306(b) (1976), amended by 8 U.S.C. § 1306

(b) (1982). Obviously, the statute contemplated that

some failures to file would not be willful and thus not

grounds for deportation—for example, failures caused by

hospitalization or other unusual extenuating circum-

stances. We do not see how the government could, before

1982, make this willfulness determination based on doc-

umentation in its files. We are therefore confident that

section 245A is at least ambiguous. toward the legaliza-

tion claims of aliens who merely failed to file section 265

reports prior to 1982.

Going even beyond the relief ordered by the district

court, the dissent reads IRCA to require the INS to grant

legalization to an alien whose only transgression was an

inadvertent or excused failure to file a section 265 re-

port. Dissent at 43. This reading distorts the purposes of

both section 265 and IRCA. Congress obviously did not

mean to declare the status of such aliens unlawful, and

provided a statutory mechanism for them to avoid depor-

40a

tation by establishing inadvertence or excuse. Nor did it

seek to grant “amnesty” and permanent resident status

to aliens who were here legally and could not have been

deported. The dissent raises an issue about the meaning

of yet another statutory phrase—“unlawful status”—and,

at most, establishes one more ambiguity which should be

resolved in the first instance by the INS.

Even assuming that failure to file a section 265 report

did, in itself, establish unlawful status in all cases, the

“known to the Government” provision is still ambiguous

as applied to section 265 claims. The dissent argues that

whatever the possible ambiguities of the term “known,”

Congress could not have meant to distinguish between

methods of proving knowledge, such as the presence or

absence of a document from a government file, and there

is thus no need for agency consideration of the issue.

But the term “known” could have at least three separate

meanings: (1) the Government actually knew about an

alien’s unlawful status; (2) the Government should have

known, i.e., the exercise of reasonable care would have led

to actual knowledge; and (3) the Government could have

known, i.e., although the exercise of reasonable care alone

would not have led to actual knowledge, extraordinary

steps could have done so. While the presence of a docu-

ment reporting an alien’s illegal status would most likely

result in actual knowledge of that fact by the agent of

the government who receives and files the document, the

mere absence of a quarterly report may well not lead to

actual knowledge if all files are not monitored closely. -

Even were we to agree, on first impression, that appel-

lees’ were correct that “known” included section 265

claims, we could not accept the proposed resolution be-

cause it would collapse the two discrete prongs of Chev-

ron analysis into one. A court may construe an agency’s

organic legislation without regard to the agency’s inter-

pretation only when Congress has “directly addressed the

precise question at issue.” Chevron, 467 U.S. at 843. This

4la

means that either the plain language of the statute must

be clear, see, e.g., Georgetown University Hospital v.

Bowen, 862 F.2d 323, 328 (D.C. Cir. 1985), or the legis-

lative history and design of the act must illustrate a

specific intent despite arguably ambiguous statutory lan-

guage. See K Mart Corp. v. Cartier Inc., 108 S. Ct. 1811,

1817 (1988). Lacking one of these situations, a court

must move to step two of Chevron and consider whether

the agency has advanced a reasonable interpretation.

Even if we were able to envision an alternative construc-

tion to the one offered by appellees, we should hesitate

before imposing our own. An agency may well perceive

another meaning of ambiguous language which would not

occur to a court that is less familiar with the intricacies

of the particular regulatory field.

Be that as it may, we do not see how it can be con-

tended at this stage that there is only one possible per-

missible construction of the phrase “known to the Gov-

ernment” in IRCA. Depending on the policies Congress

had in mind when it enacted the statute, any of those

definitions listed above could apply to section 245A of

IRCA. Since there is no legislative history on the issue,

we can only speculate from more general legislative his-

tory as to Congress’ purpose.

As we earlier noted, the “known to the Government”

requirement in IRCA seems odd. Only those illegal aliens

whose identity and status are known—presumably the

most notorious—are eligible for amnesty. Congressional

concerns expressed in legislative reports accompanying

IRCA reveal at least three possible reasons for this limi-

tation on eligibility. One likely purpose was to protect

against fraud in the legalization program by providing

an easily administered bright-line rule. See Ayuda, 687

F. Supp. at 664. The legislative history also suggests,

however, that an estoppel notion underlay the whole legal-

ization program, because the large settlements of undoc-

umented aliens were attributable to past failures of the

42a

government properly to enforce the immigration laws.

See H.R. Rep. No. 682, 99th Cong., 2d Sess., pt. 1, at

49 (1986). A third focus of Congress in IRCA was on

the “illegal subclass now present in our society,” which

is characterized by a fear of imminent deportation, S.

REP. No. 132, 99th Cong., lst Sess. 16 (1985), and it

might be thought that those aliens whose illegal status is

actually known to the authorities are more likely to be

part of the subclass. Although we need not and should

not, of course, attempt to decide which of these concerns

was dominant, suffice it for us to recognize that discern-

ing Congress’ policy objective—a task delegated to the

INS—will impact on the choice among the different mean-

ings of “known”’ listed above.

Juxtaposed against these compelling reasons for post-

poning judicial intervention is the alleged hardship to

appellees if deprived of a rapid clarification of “known

to the Government.” Although the district court did not

conduct a ripeness inquiry per se, it found that the plain-

tiffs would suffer irreparable harm without an immediate

ruling, because many qualified aliens would be deterred

from applying for amnesty before the impending May 4,

1988 deadline. Ayuda, 687 F. Supp. at 665. The problem

with this assertion—repeated by appellee organizations

here—is that it confuses the parties who arguably have a

cognizable injury redressable in district court with the

parties who will suffer the alleged hardship. The organi-

zations do not complain of a pressing hardship to them-

selves as counselors; they appear to be sliding into a rep-

resentative capacity by invoking the interests of the

aliens.

The difficulties faced by individual aliens, even were

they a proper focus of our analysis, would be of little im-

portance in the ripeness equation. The risk to illegal

aliens of coming forward to seek legalization is inherent

in their position. Cf. Hotel and Restaurant Employees

Union v, Smith, 846 F.2d at 1518 (opinion of Silberman,

43a

J.). Congress did, in IRCA, seek to alleviate somewhat

an illegal alien’s obvious difficulty in determining whether

he or she qualified for legalization without revealing his

or her identity by providing a mechanism whereby the

alien could seek confidential advice from the QDEs. But

the INS was not required to issue regulations or prom-

ulgate a policy on every possible legal theory supporting

an amnesty claim, and the LAU does not issue advisory

opinions. Even with advice from QDEs, some uncertainty

on the part of prospective applicants is inevitable in an

administrative program like this. A claimed hardship

that results “not from delay in enforcement of an estab-

lished standard, but from delay in establishment of a

standard” is generally not a reason for prompt judicial

action, Public Citizen, 740 F.2d at 31 (emphasis added),

especially where Congress has not even required the INS

to promulgate regulations defining the term “known.”

* * » *

What the plaintiffs really sought from the district

court was an advisory ruling on a potential theory for

amnesty; with that opinion in hand, undocumented aliens

could either come forward to receive their legalized status

(if the theory were approved) or remain in hiding with

their illegal status (if amnesty were unavailable). But

the time pressures and risks to aliens involved in IRCA

do not give a district court—any more than they would

give a court of appeals—the power to preempt the ad-

ministrative authority of the INS and direct the legali-

zation program from the bench.

For the foregoing reasons, we conclude the district

court lacked jurisdiction to issue Supplemental Order V

and it is therefore

Vacated

44a

WALD, Chief Judge, dissenting: I dissent from the

majority’s holding that the judicial review provisions of

the Immigration Reform and Control Act of 1986

(“IRCA” or the “Act”) deprive the district court of

jurisdiction over the present action. I dissent as well

from the majority’s alternative refusal, on ripeness

grounds, to entertain the appellees’ challenge to the Im-

migration and Naturalization Service’s (“INS”) policy

excluding from the IRCA legalization program nonimmi-

grant aliens whose unlawful status prior to 1982 stemmed

from their failure to file quarterly reports with the INS

as required by § 265 of the Immigration and Nationality

Act (“INA”). Because I find neither of the majority’s

grounds a bar to jurisdiction, I also address the standing

issue and find that the organizations that brought the

present action have standing to do so. On the merits, I

agree with the district court that the treatment of

§ 265 violators in 8 C.F.R. § 245a.1(d) was contrary to

law.

I. INTRODUCTION

In enacting IRCA, Congress sought not only to cur-

tail illegal immigration but also to eliminate a subclass

of undocumented aliens already living illegally within this

country’s borders. The legalization program was designed

to accomplish both goals. By legitimizing aliens already

resident here for a number of years, Congress wanted to

free up the scarce resources of the INS to focus on pre-

vention of new illegal entrants. Legalization was also

adopted to put an end to the anomaly of longtime alien

residents’ being indefinitely consigned to depressed wages

and working conditions because of their weak bargaining

position. Congress instituted a generous amnesty pro-

gram to serve both ends; it affirmatively wanted the

greatest number of eligible aliens to avail themselves

of the Act.

1] do, however, disagree with the district court’s decision

on the merits in one respect. See infra note 19.

45a

Recognizing, however, that an alien deciding whether

to apply for legalization would fear the risk of deporta-

tion if she is ultimately found ineligible, and that many

underground aliens, suspicious of authority and not yet

acclimated to our culture, might be deterred by that per-

ceived risk, Congress took special pains to encourage ille-

gal residents to step forward during the brief 12-month

“window” period in which applications were to be filed.

It knew that, if left unallayed, aliens’ normal mistrust

and suspicion would severely hamper the legalization

program’s effectiveness. Consequently, Congress set up

a« network of community organizations to provide each

potential applicant with confidential advice about her

chances of becoming legalized before the alien submits a

forma] application.

This court’s ruling today ignores all ef that back-

ground and motivation for the amnesty program; it

‘also distorts the plain words of the Act. The majority

concludes that a direct challenge to an INS regulation,

brought in district court, is an action seeking “judicial

review of a determination respecting an appiication for

adjustment of status” and that district court jurisdic-

tion is therefore barred by 8 U.S.C. § 1255a(f) (1), which

provides that such review may take place only in a federal

court of appeals and only in the context of the review of

a deportation order. The majority reasons that an INS-

promulgated regulation constitutes “a determination re-

specting an application” because such rules “embod[y]

determinations that will impact” future applications. Ma-

jority opinion (“Maj. op.,”) ante, at 13 (emphasis

added). My colleagues speculate, without any support

in the text or history of the Act, that Congress adopted

such a restrictive review policy to assist the INS in

fending off judicial interpretations of IRCA by per-

mitting it to litigate the validity of its regulat*-1s in

each circuit, even when that would result in a checker-

board of different eligibility policies being enforced in

46a

different parts of the country during the brief 12-month

“window” period of eligibility. Jd. at 10-13, 18-19. The

majority ultimately concludes that INS regulations that

illegally exclude entire categories of aliens from the

legalization program cannot be challenged except through

filings by individual aliens of applications certain to

be rejected initially under the plain terms of the existing

regulations. This runs afoul of Congress’ documented

intention that aliens be given as much accurate infor-

mation as possible about their legalization prospects be-

fore deciding whether to submit applications. I find no

basis for the majority’s reading of IRCA.

Alternatively, the majority denies the availability of

judicial review on the grounds of ripeness, concluding

that the INS has not arrived at a final decision on the

eligibility for legalization of nonimmigrant aliens whose

unlawful status prior to 1982 stemmed from their failure

to meet the INA § 265 requirement of: filing quarterly

reports with the INS. Id. at 34-35, 42-43. I find this

holding to be totally at odds with the record in the case

before us.

My reading of the text and legislative history is at

one with the trial judge’s: 8 U.S.C. § 1255a(f) (1)’s ju-

risdictional bar applies only to lawsuits that involve a

court in reviewing (or undertaking for itself) the fact-

finding and law-application functions that determine a

specific individual’s eligibility or ineligibility for lecal-

ization. While such a fact-specific lawsuit (whether filed

before or after the filing of a legalization application)

would seek “judiciai review of a determination respect-

ing an application,” a suit such as the present one chal-

lenging the INS’ rules on their face assuredly does not

challenge such a “determination” and thus dces not fall

under IRCA’s jurisdictional bar. Since 8 U.S.C. § 1255a

(f) (1) does not preclude jurisdiction, the district court

has its usual federal question jurisdiction to entertain a

statutory or constitutional challenge to INS regulations.

47a

28 U.S.C. §1831(a) (federal question jurisdiction); 8

U.S.C. § 1329 (jurisdiction over “all cases arising under

any of the provisions of this subchapter”); see also 5

U.S.C. §701(a) (review available under the Adminis-

trative Procedure Act (“APA”) unless statutes preclude

judicial review or agency action is committed to agency

discretion by law). This construction: of IRCA is com-

pelled not only by the language of § 1255a(f)(1) and

of the subsections surrounding it but also by the back-

ground and purpose of the Act as a whole. Because Con-

gress took special care to ensure that aliens would re-

ceive accurate advice from designated community organi-

zations before having to decide whether to file an appli-

cation, my colleagues’ contention that Congress’ purpose

would best be served by permitting review of INS rules

only in the context of individual deportation reviews long

after the 12-month application period had lapsed is, to

put it charitably, counterintuitive.

Similarly, the majority’s position on ripeness is based

on a faulty understanding of the procedural history of

this case. The plaintiffs have challenged, from the outset,

the INS’ restrictive definition of “known” within the

meaning of IRCA’s requirement that an alien’s pre-1982

unlawful status must have been “known to the Govern-

ment.” 8 U.S.C. § 1255a(a) (2) (B). The INS has had

a formal policy on § 265 violators from the beginning,

and it was embodied in a formal regulation that did con-

stitute final agency action and was ripe for review.

I would also find that the organizations that brought

the present lawsuit have standing to do so. The alleged

injuries to them as organizations include not only “con-

fusion” about how they should advise aliens, but also

frustration of their mission of helping aliens to avail

themselves of the benefits of legalization under IRCA.

I consider this case controlled by Havens Realty Corp. v.

Coleman, 455 U.S. 363 (1982), and its progeny in this

court, all of which have found standing in similar

situations.

48a

On the merits, I would affirm the district court’s ruling

as to the inclusion of § 265 violators within the “known

to the Government” category of aliens. A § 265 violator’s

unlawful status was “known to the Government” as of

January 1, 1982, if the alien can show that his INS files

do not contain the reports he was required to file under

§ 265. Each nonimmigrant alien had to inform the INS

of any change of address, including a change of residence

to a foreign country, and had to file a statement of his

address for each three-month period in which he remained

in the United States (even if his address were unchanged).

Consequently, the INS must be deemed to have “known”

of the alien’s unlawful status if the alien’s INS records

are missing a quarterly report for a pre-1982 quarter and

do not contain any record of the alien’s having changed

his address to another country. I therefore would affirm,

in substantially all respects, the district court’s Supple-

mental] Order V.

II. IRCA’s JUDICIAL REVIEW PROVISIONS

IRCA provides that “[t]here shall be no administrative

or judicial review of a determination respecting an appli-

cation for adjustment of status under this section [gov-

erning applications for legalization] except in accordance

with this subsection.” 8 U.S.C. § 1255a(f) (1). The sub-

section authorizes the establishment of a single level of

administrative appellate review of legalization applica-

tions, id. § 1255a(f) (3) (A), and provides that “[t]here

shall be judicial review of such a denial [of adjustment

of status] only in the judicial review of an order of

deportation under [§ 106 of the INA].” Id. § 1255a(f)

(4) (A). Section 106 of the INA provides that judicial

review of deportation orders can take place only in U.S.

Courts of Appeals after the alien has exhausted his ad-

ministrative remedies. See 8 U.S.C. §§ 1255a(f) (4) (A),

1105a(a) (review in courts of appeals) ; 8 U.S.C. §§ 1255a

(f) (4) (A), 1105a(ec) (exhaustion of remedies). These

appellees obviously do not challenge any deportation

49a

orders; rather, they brought this action in district court

to invalidate the INS rule excluding § 265 violators from

the pool of aliens eligible for legalization. The crux of

my disagreement with the majority is that I do not view

the present action as seeking “judicial review of a deter-

mination respecting an application for adjustment of

status” at all, and so I do not find it comes within the

bar of §1255a. That section on its face does not apply

to this suit and was conceived for a different purpose

altogether.

A. Language, Structure and Background of the Statute

Either a rulemaking is “a determination respecting

an application” or it is not. If, as I maintain, a rule-

making is not, in itself, “a determination respecting an

application,” then the jurisdiction preclusion provision of

8 U.S.C. § 1255a(f) (1) simply does not apply to this case;

IRCA’s bar to district court judicial review attaches only

to “a determination respecting an application.”

If, on the other hand, as the majority seems to say,

Maj. op. at 13, a rulemaking is “a determination re-

specting an application,” then several anomalies are

presented by the statutory scheme, none of which is ade-

quately explained by the majority. First, there is the

obvious linguistic difficulty in stretching the term “a

determination respecting an application” to cover the

promulgation of general rules. Second, interpreting “a

determination respecting an application” to encompass

rules compels the odd conclusion that the administra-

tive appellate review board set up under IRCA actually

has the power to entertain a facial attack on the validity

of a regulation promulgated by the Attorney General.

Third, the majority’s reliance on the word “respecting”

to explain the broad reach of “a determination respecting

an application” is undermined by Congress’ interchange-

able use of that phrase with “the determination on the

application.” Against the background of a normal pre-

50a

<mption in favor of reviewability of agency rulemaking,

Congress’ decision to preclude jurisdiction only over “a

determination respecting an application” must be seen

as a conscious decision not to preclude preenforcement

review of rules.

I begin with the language of the allegedly exclusionary

section itself. The words “application for adjustment of

status” clearly describe a written document submitted by

a particular alien applicant for a change of his status.

Consistent with this view, other provisions of IRCA in-

form us that an “application[] for adjustment of status”

is a concrete piece of paper that “may be filed” with

various entities, 8 U.S.C. § 1255a(c) (1), may be “for-

ward[ed]” by those entities to the Attorney General, id.

€ 1255a(c) (3), and must “contain” certain information.

Id. §$1255a(a)(1)(C). The majority conveniently ig-

nores this everyday meaning of “an application” by

stressing instead the words surrounding it: “review of

a. determination respecting an application.” Id. § 1255a

(f) (1) (emphasis added). To the ordinary reader, how-

ever, this phrase too appears to cover only the determina-

tions that are made with respect to each application:

rulings that go into an ultimate determination of whether

a particular application is approved or disapproved. The

majority, however, places the entire weight of its argu-

ment on the word “respecting,” which it interprets to

encompass anything having any relation to or impact on

any legalization applications present or future. I find

that reading overbroad and misguided; the context of the

phrase “respecting an application” conveys an altogether

different meaning: ie., that a review of any aspect of

an individual’s application must be channeled through the

deportation proceeding. Note that Congress did not say

that “any claim arising under the legalization program,”

nor that “any action taken or decision made with respect

to the legalization program” must be 80 channeled.

Rather, the preclusion provision of §1255a(f) is ad-

5la

dressed only to “a determination respecting an applica-

tion.” 8 U.S.C. § 1255a(f)(1) (emphasis added).

The entire subsection dealing with administrative and

judicial review, of which § 1255a(f) (1) is a part, makes

clear that Congress used the phrase “a determination

respecting an application” as a catch-all for any and all

aspects of an individual’s petition—i.e., ascertaining the

facts of the individual’s case and applying the law to

those facts. The Act requires the Attorney General to

establish “a single level of administrative appellate re-

view of a determination described in paragraph (1).”

§ 1255a(f) (3)(A) (emphasis added). Such review shall

be based solely “upon the administrative record estab-

lished at the time of the determination on the applica-

tion” and upon newly-discovered evidence that was un-

available “at the time of the determination.” § 1255a(f)

(3) (B) (emphasis added).

None of these provisions dealing with administrative

appellate review makes sense if, as the majority insists,

the promulgation of a general rule concerning eligibility

for legalization is also construed as a “determination

described in” § 1255a(f)(1). See Maj. op., ante, at 13.

Certainly Congress did not envision that the Legalization

Appeals Unit of the INS (the “LAU”) would undertake

administrative review of the Attorney General’s regula-

tions. Yet that must follow if a regulation is “a deter-

mination described in” § 1255a(f) (1), as the majority

insists it is. The majority contends that there is nothing

odd or unusual about administrative review of rulemak-

ing, nor about a requirement that a challenge to a rule

be raised first before the LAU; they argue that, while

the LAU probably would be bound by the Attorney Gen-

eral’s regulations, the LAU would be free to interpret the

regulations in such a way as to avoid any conflict with

the statute. Maj. op., ante, at 14. Even if that were

true (I remain skeptical), other consequences of the ma-

jority’s position are more ominous. If, for instance, the

52a

majority’s view is correct, then § 1255a(f) (3) does not

merely authorize aliens whose applications have been de-

nied to raise a challenge to a rule before the LAU and

receive a saving interpretation of that rule. The ma-

jority’s reading of “a determination respecting an appli-

cation” compels a far stranger result: the issuance of

the rule itself would be “a determination,” and the LAU

would be empowered to conduct “administrative appellate

review of [that] determination’—that is, appellate re-

view of the rule’s facial validity. 8 U.S.C. § 1255a(f) (3)

(A). In short, if the majority wants to stretch the term

“a determination respecting an application” to bar dis-

trict court jurisdiction over the present case, it must

explain the absurd consequence of empowering an admin-

istrative appellate review board to strike down the Attor-

ney General’s regulations.

The majority denies that its reading of the Act would

empower the LAU to entertain a facial challenge to a

regulation, because the LAU can only hear cases involv-

ing challenges to the INS’ disposition of individual legal-

ization applications. Maj. op., ante, at 14 n.7. The

majority grounds this argument on the premise that Con-

gress attached entirely different meanings to the § 1255a

(f)(1) phrase “a determination respecting an applica-

tion” and the § 1255a(f) (3)(B) phrase “the determina-

tion on the application.” 8 U.S.C. § 1255a(f) (emphasis

added). Yet subsection (f) (3) clearly uses the two terms

interchangeably.? Either both terms encompass rulemak-

2A reading of 8 U.S.C. § 1255a(f) (3) illustrates Congress’

interchangeable use of the two terms. Paragraph (3) (A)

establishes administrative appellate review of “a determina-

tion described in paragraph (1),” which is the paragraph

containing the term “a determination respecting an applica-

tion for adjustment of status.” Jd. § 1255a(f) (3) (A), (f) (1)

(emphasis added). Paragraph (3)(B) states that “[s]Juch

administrative appellate review”— signalling by the word

“such” that the review is of a “determination respecting an

application”—shall be based on the administrative record

“established at the time of the determination on the applica-

53a

ing as well as adjudication—in which case the majority’s

strained reading of IRCA results in the LAU being given

the power to entertain facial challenges to regulations—

or neither term encompasses rulemaking within its scope

—in which case the. preclusion provision of 8 U.S.C.

§ 1255a(f) (1) is no bar to district court jurisdiction over

the present case. The majority cannot have it both ways.

On the basis of an all-embracing definition of the word

“respecting,” my colleagues wipe away the general pre-

sumption of reviewability of agency rulemaking. See

Abbott Laboratories v. Gardner, 387 U.S. 136, 139-41

(1967) (preenforcement review of regulations is avail-

able, so long as ripeness standards are met, unless “there

is persuasive reason to believe” Congress intended to cut

off review); National Treasury Employees Union v.

Devine, 733 F.2d 114, 117 n.8 (D.C. Cir. 1984) (reject-

ing suggestion “that a detailed scheme of administrative

adjudication impliedly precludes preenforcement judicial

review of rules”). Yet Congress gave no indication it

tion.” Id. §1255a(f)(3)(B) (emphasis added). In short,

Congress provided for review of a determination “respecting”

an application, based on the record established at the time

of the determination “or” the application.

The majority contends that the words “respecting” and

“on” signal that the statute is referring to different deter-

minations. Thus, the majority argues, paragraph (f) (3) (A)

establishes administrative appellate review of rulemaking and

adjudication alike, while under paragraph (f)(3)(B) such

review can take place only after an adjudication. Maj. op.,

ante, at 13 n.6, 14 n.7. Yet a common-sense reading of

(f) (8) (A) and (f) (3) (B) together indicates that the (B)

term refers to the same determination as the (A) term does.

' This reading is underscored by the use of the definite article

in the second reference: “the determination on the applica-

tion.” Id. (emphasis added). The juxtaposition of the two

phrases, coupled with the use of the word “the” to indicate

that the same determination and the same application are

being referred to, compel the conclusion that Congress saw

no difference between a determination “respecting” an appli-

cation and a determination “on” an application: neither

phrase encompasses rulemaking.

54a

envisioned any such drastic curtailment here, although it

knows well how to excise normal review procedures when

it puts its mind to it. Thus, for example, where Congress

intended to foreclose review of all rulemakings and ad-

judications of the Veterans’ Administration, it provided

that “the decisions of the Administrator on any question

of law or fact under any law administered by the Vet-

erans’ Administration providing benefits for veterans and

their dependents or survivors” would be immune to re-

view. 38 U.S.C. §211(a) (emphasis added). That kind

of preclusion clause obviously would apply to, inter alia,

suits alleging that V.A. regulations were based on an

impermissible interpretation of a benefits statute. See

Traynor v. Turnage, 108 S. Ct. 1872, 1879-80 (1988) .*

In IRCA, by contrast, Congress did not apply its ex-

clusive review procedure to any “decision of the Attor-

ney General on any question of law or fact under IRCA,”

but only to “a determination respecting an application

for adjustment of status.”

The location of the judicial review provision within

the structure of the Act also bolsters a more limited in-

terpretation of § 1255a(f) (1)’s intended effect. It fol-

lows immediately after several subsections dealing with

adjudication of applications; the general rulemaking au-

thority under which the challenged INS regulation was

promulgated appears in the following subsection, which

has no review provisions in it. 8 U.S.C. § 1255a(g).

Were the structure otherwise—with the limits on judicial

review following the sections authorizing adjudications

and rulemaking—the majority’s reading of the Act would

be more plausible. But the actual sequence strongly sug-

® The Supreme Court there held that the preclusion was

inapplicable to the declaratory judgment action in Traynor v.

Turnage not because the action challenged regulations, but

because it challenged those regulations as being inconsistent

with a federal] statute other than a “law administered by the

Veterans’ Administration providing benefits.” 108 S. Ct. at

1379-80.

55a

gests that only review of individual applications, not

rulemaking, is limited by § 1255a (f).*

B. Legislative History and Statutory Purpose

Certainly the ordinary meaning of the text does not

permit a conclusion that INS regula.ions are immunized

from the normal avenues of challenge in district court.

The majority argues that permitting a district court to

review an INS rulemaking would circumvent § 1255a(f) (4)

(B)’s scope-of-review provision. A court of appeals review-

ing a legalization denial in the course of deportation order

review must apply an “abuse of discretion” standard of

review to the “determinations contained in [the administra-

tive] record,” id.; the majority fears that district court re-

view of rulemaking would permit an end run around that

restrictive standard. But this argument relies on what even

the majority admits is a slender distinction—the difference

between the “abuse of discretion” standard and the standard

enunciated in Chevron U.S.A., Inc. v. Natural Resources De-

fense Council, 467 U.S. 837 (1984)—.e., that an agency’s

interpretation of ambiguous statutory language must be up-

held unless it is unreasonable or manifestly contrary to the

statutory purpose. The majority acknowledges that it “may

well be” that the two standards “would not differ markedly.”

Maj. op., ante, at 9 n.2.

To the extent that the abuse of discretion standard is more

deferential than Chevron, it would be unprecedented to apply

such a super-deferential standard to the question of whether

an agency’s regulations comport with its statutory mandate.

Cf. 2 S. Childress & M. Davis, Standards of Review § 17.2

at 335-36 (1986) (citing Chevron as representing the most

deferential end of the spectrum in review of agency statutory

interpretation) ; 2 C. Koch, Administrative Law and Practice

§ 9.138 at supp. 40 (1985 & Supp. 1987) (agency rules that

fill in gaps left in legislation merit “rather strict judicial

scrutiny even though it is sometimes identified as discre-

tion”). Nor has the majority offered any example of abuse-

of-discretion review of agency rulemaking. I therefore think

it unlikely that INS regulations are among the deter-

minations contained in [the administrative] record” to

which the abuse of discretion standard applies. 8 U.S.C.

§ 1255a(f) (4) (B).

56a

Furthermore, IRCA’s legislative history contains no evi-

dence at all that this is so: quite the contrary.

The majority spends little time on the Act’s legisla-

tive history. Instead, it propounds a circular argument.

It assumes (not proves) that Congress intended to pre-

clude district court jurisdiction over this case, and comes

up with a packet of its own reasons why. Then, it goes

on to conclude stunningly that this court cannot flout

the will of Congress by holding otherwise. See Maj. op.,

ante, at 10-13, 18-19.

Thus my colleagues argue that an action seeking a

speedy judicial determination of the validity of an INS

rule would defeat Congress’ imputed intent te have such

determinations made piecemeal, by different circuit courts

of appeals, in challenges to deportation orders. See Maj.

op., ante, at 10-13. Congress—they say—must not have

cared about intercircuit splits and even intracircuit non-

acquiescence despite its attendant legal uncertainties and

nonuniform practices for the acknowledged “long time”

before the Supreme Court eventually settled key ques-

tions about eligibility standards. Jd. at 11 n.4, 18-19.

According to the majority, Congress was content to let

the INS pursue its chosen policies in as many jurisdic-

tions as possible for as long as possible despite contrary

judicial rulings. The problem with this ingenious inter-

pretation of Congress’ intent is that the majority can

point to absolutely no evidence whatsoever that Congress

in fact valued nonuniformity, uncertainty and slowness

in getting major legalization questions settled. The ma-

jority merely infers that intent from the fact that those

consequences would follow if § 1255a(f) were construed

as precluding district court jurisdiction over this action.

The majority’s “evidence” of congressional intent on this

issue is nothing but a creature of its own conjuring.®

5 The majority infers that Congress intended rulemaking

review to go court-by-court because “it placed review of

57a

1. Congress’ Adoption of the House Provision on

Judicial Review

The majority proffers only one argument based on

IRCA’s legislative history. My colleagues say that, since

the Senate conferees abandoned a strict Senate provision

precluding all judicial review of all aspects of the legal-

ization program and acceded to the House provision al-

lowing a narrowly-channeled judicial review procedure

for adjudications, it is unlikely that the Senators meant

to permit independent district court review of rulemaking

as well. See Maj. op., ante, at 19-20. The rejected

Senate version would have precluded review of any “deci-

sion or determination under this section.” S. 1200, 99th

Cong., Ist Sess. § 202(f)(1) (1985). Since “this sec-

tion” in that bill included a provision authorizing the

Attorney General to promulgate regulations necessary for

the legalization program, id. § 202(g) (1), the Senate re-

striction would clearly have precluded review of rule-

making as well as adjudication.* That scenario suggests,

agency action in the courts of appeals.” Maj. op., ante, at

18. It is, of course, uncontested that review of agency ad-

judication was placed exclusively in the courts of appeals,

because the Act incontestably says so. On the other hand,

whether the same statutory language applies to all “agency

action,” including rulemaking, is distinctly not clear from the

text. Moreover, the interests of .certainty and uniformity

apply with much greater force to review of rules than to

review of adjudications. The INS regulations were required

to be publicized widely, and they are broadly applicable to

large categories of aliens. As is discussed, infra, Congress

also established a network of community service agencies to

advise aliens about the rules and about their individual

chances of legalization. From the fact that Congress was

willing to tolerate circuit splits on the narrow, fact-specific

questions arising in adjudications, it should not be inferred

absent statutory text or legislative history to support such

an inference that Congress also intended the same uncer-

tainty to dog the validity of the eligibility criteria themselves.

6 The Senate report accompanying S. 1200 lends support to

this view, by stating that the preclusion attaches to “a de-

58a

however, quite a different conclusion from the panel’s: —

when the Senate agreed to House language which, on its

face, limited only the judicial review procedure for de-

terminations respecting applications, it must be assumed

to have known that it was receding from a broadly worded

preclusion to a much narrower one, and to have con-

sciously made that choice. This bit of history in fact adds

to the credibility of my interpretation that § 1255a(f) (1)

bars judicial review outside of deportation proceedings

only of determinations about specific legalization applica-

tions.’

cision or determination made with respect to the legalization

program.” S. Rep. No. 182, 99th Cong., Ist Sess. 48 (1985)

(emphasis added).

7In its competing scenario, the majority treats as crucial

a statement made by Senator Cranston during a 1983 floor

debate over an immigration reform bill that ultimately was

fatally stalled in conference in the 98th Congress. See Maj.

op., ante, at 19-20. Senator Cranston advocated a judicial

review amendment to the bill then under discussion, S. 529;

his amendment would have “merely permit[ted]” a “very

limited form of judicial review” that “would [have been]

available only when an improper denial of legalization is

raised as a defense in a deportation proceeding already sub-

ject to judicial review.” 129 Cong. Rec. 12,810 (1983); see

Maj. op., ante, at 19-20. Contrary to the impression conveyed

by the majority’s reference to it, Senator Cranston’s amend-

ment differed significantly from the provision ultimately en-

acted by the 99th Congress. His amendment carved out one

exception to a draft provision that precluded review of any

“decision or determination made by the Attorney General

under this section”; since “this section” included rulemaking

authority, preenforcement review of rules was excluded.

S. 529, 98th Cong., lst Sess., §301(g) (1), (f) (1983) (as

reported). While carving out a single exception for deporta-

tion proceedings, Senator Cranston’s proposed amendment

would have left § 301(g) (1) otherwise intact, which explains

why his remarks assumed the unavailability of preenforce-

ment review of rules. See 129 Cong. Rec. 12,810 (text of pro-

posed amendment). By contrast, the conference committee

compromise that was ultimately enacted into law in 1986

59a

Indeed, there is further evidence that the Senate under-

stood the term “determination respecting an application

for adjustment of status” to mean an adjudication. The

Senate bill had also limited applicants to a single level of

administrative appellate review “of a final determination

respecting an application for adjustment of status.” S.

1200, supra, § 202(f) (4). Like the House version ulti-

mately adopted, such review would be based solely upon

“the administrative record established at the time of the

determination on the application.” Jd. That Senate bill

provision, however, was in addition to the one earlier dis-

cussed, in the same bill, which precluded review of any

“decision or determination under this section.” Jd. § 202

(f) (1). Thus, when the Senate dropped its comprehen-

sive preclusion and agreed to retain only the more limited

one involving “determination[s] respecting an applica-

tion,” it must surely have known that the abandonment

would have some effect—i.e., ordinary agency rulemaking

review would continue outside of the adjudication format.

2. Purpose of the Judicial Review Provisions

The majority misreads IRCA’s legislative history in

two basic ways. First, it concludes, surprisingly, that

Congress’ purpose in providing so narrow a channel for

judicial review was to afford the INS more leeway in

fending off adverse decisions by the federal judiciary,

presumably even at the expense of substantial delays and

disruption of the operation of the legalization program.

See Maj. op., ante, at 10-13, 18-19. I find that inter-

pretation of Congress’ purpose most extraordinary. My

reading suggests the opposite, that Congress’ primary

reason for limiting judicial review of adjudications was

(fully three years after Senator Cranston’s remarks)

changed the wording of the preclusion provision: the Senate

dropped its broadly worded version precluding review of any

“decision or determination under this section” and acceded

to the House version containing the “determination respect-

ing an application” language now at issue.

60a

to prevent delays and uncertainty. The Senate report

explained that purpose as follows:

The Committee is concerned that efforts will be

made, on behalf of many persons who are ineligible

for the legalization program, to delay the final deter-

minations of their applications. This would prevent

not only their own deportation but the expeditious

operation of the program for others.

It is for the purpose of helping to insure reason-

ably prompt final determinations that subsection (f)

provides that there will be no judicial review of a

decision or determination made with respect to the

legalization program.

S. Rep. No. 132, 99th Cong., Ist Sess. 48 (1985) (em-

phasis added). As noted above, IRCA as enacted re-

treated from the total review preclusion of the Senate

version. The Senate report does, however, illustrate the

true underlying purpose for Congress’ decision to re-

strict judicial review.

The language and legislative history of IRCA indi-

cate that what Congress really intended by the pre

clusion section was to foreclose aliens from flooding the

courts with suits seeking premature review of individual

applications—i.e., review of the INS’ determination of

the facts of each case and its application of the law to

those facts before deportation hearings were concluded.

Congress legislated against a background in which indi-

vidual aliens were often permitted to bring actions in

district court-—long before the start of deportation pro-

ceedings—seeking declaratory or injunctive relief to re-

dress the INS’ disposition of their various applications

and petitions under the immigration laws. See, e.g., Nav-

arro v. District Director, 574 F.2d 379, 883 (7th Cir.)

(review of denial of adjustment of status), cert. denied,

439 U.S. 861 (1978); Acupuncture Center of Washing-

ton v. Dunlop, 543 F.2d 852 (D.C. Cir.) (review of

denial of labor certification), cert. denied, 429 U.S.

6la

818 (1976). In enacting IRCA’s provision barring

pre-deportation-order review of “a determination respect-

ing an application for adjustment of status under this sec-

tion,” 8 U.S.C. § 1255a(f) (1), Congress obviously decided

to create, for the IRCA legalization program, a narrow

channel for judicial review of the INS’ factfinding and

law-application functions. The exercise of jurisdiction

over this case is in no way inconsistent with that goal.

While partial insulation of the INS’ adjudication ac-

tions from scattershot judicial review was a logical means

to the end of finality, speed, and the smooth operation

of the system, cf. Maj. op., ante, at 10-18, 18-19, it is

intuitively implausible to attribute to Congress a con-

scious desire to spur the INS on to fight any major

rule challenge to the bitter end in each of a dozen

circuits. The best evidence of what Congress did want

goes in exactly the opposite direction. See Traynor v.

Turnage, 108 S. Ct. 1872, 1879 (1988) (finding no bar

to judicial review of certain decisions of the Veterans’

Administration, noting that “[p]Jermitting these cases to

go forward will not undermine the purposes of’ the

review-preclusion provision). As the majority itself ac-

knowledges, a suit such as this one directly challenging

INS rules is by far the superior vehicle to achieve a swift

and decisive resolution of the law nationwide without

the need for ultimate settlements of intercircuit con-

flict by the Supreme Court itself, followed by reopening

of thousands of appeals in the courts whose views are

rejected. Maj. op., ante, at 10-138. My interpretation

of § 1255a(f) as allowing direct review of rules, coupled

with limited judicial review of individual adjudications,

is the most consistent method of accomplishing what

Congress clearly intended.

3. Purpose of the Legalization Program Generally

The majority also fails to consider the judicial review

provisions in the context of the entire legalization

scheme. It reduces the legalization program to merely

62a

“part of a legislative compromise” necessary to engineer

passage of the statute’s main goal of penalizing employ-

ers who hire illegal aliens. Jd. at 2. Thus—the major-

ity argues—Congress would not likely have worried

about an individual alien’s fear that coming forward in

order to challenge an invalid INS rule denying him

eligibility would entail a risk of deportation. See id. at

42-43.

My colleagues’ dismissa] of the legalization component

of the bill is inaccurate, as a careful reading of the

history will show. Congress saw legalization as one of

the centrai components of immigration reform. Sce H.R.

Rep. No. 682, pt. 1, 99th Cong., 2d Sess. 49 (1986)

(legalization is “an essential part of any immigration

reform legislation”). Legalization had always been a

critical feature (along with employer sanctions and im-

proved border control) of immigration reform proposals

advanced by the Ford, Carter and Reagan administra-

tions and debated by Congress for over a decade. See

S. Rep. No. 132, 99th Cong., lst Sess. 20-24 (1985);

H.R. Rep. No. 682, pt. 1, supra, at 53-56; see also id. at

103 (employer sanctions and legalization are the “core

elements” of the Reagan administration program) (quot-

ing Attorney General Edwin Meese, III). Legalization

was motivated in part by the belief that long-standing

resident aliens deserved it,’ but there were more prag-

matic concerns as well. First, legalization would enable

the INS to focus its resources on the illegal entry of

new aliens, thereby giving the United States more “en-

forcement for its dollar.” S. Rep. No. 132, supra, at 16;

see H.R. Rep. No. 682, pt. 1, supra, at 49. Second, legal-

ization would “eliminate the illegal subclass now present

in our society,” whose members’ weak bargaining position

(stemming from their illegal status) was eroding U.S.

wages and working conditions. S. Rep. No. 132, supra,

® See, e.g., H.R. Rep. No. 682, pt. 1, supra, at 49.

63a

at 16; see H.R. Rep. No. 682, pt. 1, supra, at 49. To be

effective in those goals, however, the legalization program

had to attract a large majority of the approximately one

million illegal aliens estimated to be eligible. See S. Rep.

No. 182, supra, at 64 (estimate based on proposed 1980

cutoff date, rather than 1982 date adopted in IRCA). To

this end, Congress intended a “generous program” that

would be “implemented in a liberal and generous fashion”

to “ensure true resolution of the problem and... ensure

that the program [would] be a one-time-only program.”

H.R. Rep. No. 682, pt. 1, supra, at 49, 72.

Congress naturally recognized that illegal aliens would

initially be suspicious of any amnesty program. A plethora

of witnesses told them so, if thev had not known it

already. See, e.g., Immigration Reform and Control

Act: Hearings on H.R. 1510 Before the Subcomm. on Im-

migration, Refugees and International Law of the House

Comm. on the Judiciary, 98th Cong., 1st Sess. 783, 789

(1983) (satement of Dale DeHaan, American Council for

Voluntary Agencies) ; id. at 844-45, 855-56 (statement of

John Huerta, Mexican American Legal Defense and Edu-

cation Fund). Because failure to apply on the part of a

significant number of aliens could defeat a major purpose

of the bill, Congress took special steps to encourage

apprehensive aliens to come out of the shadows and applv

for an adjustment of status. It required the Attorney

General to widely disseminate infc=mation about the

legalization program and the requirements for obtaining

adjustment of status. 8 U.S.C. § 1255a(i); H.R. Conf.

Rep. No. 1000, 99th Cong., 2d Sess. 98 (1986). Conyress

also told the Attorney General to name as “qualified

designated entities” (“QDEs”) community organizations

with whom the aliens had friendly relations to advise and

assist them in the preparation of applications. Id. § 1255a

(e)(2). A QDE could forward an application to the

Attorney General only if authorized by the applicant

to do so, id. § 1255a(c) (3), and even more important,

the Attorney General] and the INS could not obtain access

64a

to any alien’s QDE file without that alien’s consent. Id.

§ 1255a(c) (4). The QDEs were to be honest counselors

for suspicious aliens. If an alien seeking their help

found she was not eligible, she would not automatically

be reported to the INS.

Congress fashioned such unusual measures in response

to legislators’ expressed concern about a “low rate of

participation among the eligible candidates.”

At least part of the reason is distrust of authority

and lack of understanding among the undocumented

population. The Committee hopes that by working

through the voluntary agencies, the Attorney Gen-

eral might be able to encourage participation among

undocumented aliens who fear coming forward... .

The confidentiality of the records [of QDEs] is meant

to assure applicants that the legalization process is

serious, and not a ruse to invite undocumented aliens

to come forward only to be snared by the INS.

H.R. Rep. No. 682, pt. 1, supra, at 73. See also S. Rep.

No. 312, supra, at 47 (QDEs provision aims “to assure

applicants that they may apply to such entities without

fearing that their applications will be forwarded to the

INS even if in the view of such entities they do not

qualify for legalization”). Senator Simpson, IRCA’s main

sponsor in the Senate, acknowledged that the program

could work only if it were widely publicized in such a

way as to overcome aliens’ netura] distrust. In a speech

on the Senate floor urging the adoption of the Confer-

ence version, he stated:

So when they legalize they will have to know, as that

call goes out, that this legalization period is ex-

istent, that they must come forward because this is

the last call. This is the first call, and the last call,

a one-shot deal. Come on out. Go to your church.

We are not trying to fool you this time.

132 Cong. Rec. S16888 (daily ed. Oct. 17, 1986).

65a

Congress then provided for a one-time-only legalization

program with a 12-month “window” period for filing

applications. For the program to work, literally hundreds

of thousands of aliens had to be induced to come forward

and find out if they were eligible during that brief period.

They had to be given the correct information about legal-

ization requirements if the maximum number were to

apply. By providing for a network of QDEs, Congress

meant to permit aliens unsure of their status to step for-

ward tentatively, obtain accurate and confidential advice

about legalization, and only then decide whether to sub-

mit an application to the INS.

In light of this carefully crafted scheme, the majority’s

tortured reading of 8 U.S.C. §1255a(f)(1) to deny

any avenue for challenging INS rules restricting eligibil-

ity except through individual aliens’ applications is un-

tenable. An illegal alien told that he is ineligible under

INS regulations must decide which regulations may be

unauthorized and step forward to submit his application

anyway and become a test-case. And not just one such

courageous act would be required; all aliens wishing to

avail themselves of the benefits of a ruling against the

regulation must submit applications to the INS. They

would not be allowed to wait on the sidelines until the

first test case came to closure since the window period

was only 12 months long and judicial review of the first

wave of applications would almost certainly not take

place until long after the 12-month period had lapsed.

Although the majority dismisses the aliens’ understand-

able fear of the INS as being “inherent in their position,”

Maj. op., ante, at 42, the fact is that Congress made

one of IRCA’s chief purposes the diminution of that fear.

A Congress expressly desirous of seeing that aliens are

accurately advised of their eligibility for legalization

would hardly choose the course the majority stakes out.

Certainly it is presumptuous to impute to that Congres#

such a scheme, as the majority does, when it runs counter

66a

to all the signals Congress actually sent, yields a

harvest of distrust and subverts the major goals of the

Act. It makes infinitely more sense to assume that in the

absence of any specific bar, Congress meant to keep in

place the ordinary avenues of direct review for eligibility

regulations so that egregious misinterpretations could be

quickly corrected for all aliens in all jurisdictions before

the 12-month period for applications ran out. That intent

was at the base of the district court’s restricted interpre-

tation of § 1255a(f) (1), and I agree with it.

C. Prior Cases

The majority’s flamboyant reading of § 1255a(f) is

also out of step with the rulings of other federal courts.

It is at odds with three sister circuits’ interpretation of

§ 106 of the INA, which governs review of deportation

orders. IRCA’s judicial review provision for denials of

legalization applications requires that such review take

place onlv in the course of § 106 deportation proceedings.

Section 106, in turn, has its own “sole and exclusive pro-

cedure for[] the judicial] review of all final orders of

deportation,” 8 U.S.C. §1105a(a), and “[ajn order of

deportation or of exclusion shall not be reviewed by any

court if the alien has not exhausted the administrative

remedies available to him.” Jd. §1105a(c). Notwith-

standing that languaze, three circuit courts have held

that challenges to official INS policy—whether in the

form of regulations or of an officially approved pro-

gram, pattern or scheme followed by immigration officials

and approved by those in charge—can be directly attacked

in a district court proceeding brought against the agency.

See Salehi v. District Director, 796 F.2d 1286, 1290 (10th

Cir. 1986) (challenge to validity of regulations and to

the INS’ application of them in denying plaintiffs’ appli-

cations for asylum); Jean v. Nelson, 727 F.2d 957, 979-

81 (11th Cir. 1984) (en banc) (challenge to an INS pol-

icy of detaining aliens pending disposition of their peti-

tions for asylum, as being discriminatory and as having

ee a ee

ee ea ee a

acacia

67a

been adopted without notice and comment), aff'd, 472

U.S. 846 (1985) (expressing no view on jurisdictional

issues); Haitian Refugee Center v. Smith, 676 F.2d

1028, 1033 (5th Cir. 1982) (challenge to an alleged INS

program of unlawfully discriminatory treatment of Hai-

tians’ petitions for asylum). Four district courts have

already extended the logic of those cases to the judicial

review provisions of IRCA. See Doe v. Nelson, 703 F.

Supp. 713, 720-22 (N.D. Ill. 1988) ; Immigration Assist-

ance Project v. INS, No. C88-379R, slip op. at 10-11

(W.D. Wash. Nov. 2, 1988); Haitian Refugee Center v.

Nelson, 694 F. Supp. 864, 873-74 (S.D. Fla. 1988) ; Zam-

brano v. INS, No. S-88-455, slip op. at 6-7 (E.D. Cal.

Aug. 9, 1988).

The majority evidently believes that these courts have

all misinterpreted § 106 of the INA and § 1255a of IRCA,

and cites other cases in support of its restrictive ap-

proach to both sections: Foti v. INS, 375 U.S. 217 (1963),

and INS v. Chadha, 462 U.S. 919 (1983). In Foti, an

alien appearing at a deportation hearing conceded his

deportability and requested discretionary relief, in the

; form of a suspension of deportation, which was denied.

He was granted the right to voluntary departure at his

own expense, but that grant was coupled with a con-

tingent deportation order directing that he be deported

if he failed to depart voluntarily within the prescribed

time. 375 U.S. at 219 n.1. The Court held that review

of a denial of suspension of deportation fell within the

court of appeals’ exclusive jurisdiction under § 106, since

the statutory term “final orders of deportation” included

“all determinations made during and incident to the ad-

ministrative proceeding conducted by a special inquiry

office and reviewable together by the Board of Immigra-

tion Appeals.” Jd. at 229. In Chadha, an alien was

granted a suspension of deportation but the House of

Representatives vetoed the suspension; the alien was

then ordered deported. The Court held that the alien’s

68a

constitutional challenge to the statute authorizing the

one-house veto fell within the jurisdiction of the court

of appeals under § 106. The Court held that “the term

‘final orders’ in § 106(a) ‘includes all matters on which

the validity of the final order is contingent, rather than

only those determinations actually made at the hearing.’ ”

462 U.S. at 937-38 (quoting INS v. Chadha, 634 F.2d

408, 423 (9th Cir. 1980) ).

In both Foti and Chadha, the alien seeking court of

appeals review was subject to an outstanding final order

of deportation. Foti, 375 U.S. at 219 n.1; Chadha, 462

U.S. at 928. Thus, both were primarily seeking “judi-

cial review of [a] final order[{] of deportation.” 8 U.S.C.

§1105a(a). The Supreme Court predictably held that

an alien who is subject to a final order of deportation can

challenge all matters on which the validity of that final

order is contingent in his appeal of the order under

§ 106; those other matters are “included” or “encom-

passed” within the term “final order[].” This is quite

different, however, from a holding that under no cir-

cumstances can the legality, or presumably even the con-

stitutionality, of TNS regulations or policies be directly

challenged outside the § 106 procedure. The Supreme

Court did not intimate any view in either Foti or Chadha

as to whether the exclusivity feature of § 106 attaches

not only to the actual deportation process itself, but also

to matters which the individual might conceivably raise

in such a deportation proceeding. The circuits are pres-

ently divided on the issue; ours has not yet chosen

sides. Compare Jaa v. INS, 779 F.2d 569, 571 (9th Cir.

1986) (denial of application for adjustment of status

reviewable in district court) with Kashani v. Nelson,

793 F.2d 818, 826-27 (7th Cir.) (denial of applica-

tion for asy!um not reviewable in district court but must

be renewed in deportation proceeding), cert. denied, 107

S. Ct. 644 (1986). Compare Hotel & Restaurant Em-

ployees Union Local 25 v. Smith, 846 F.2d 1499, 1506

——

69a

(D.C. Cir. 1988) (en bane) (equally divided court) (ex-

haustion requirement of § 106 does not apply to “general

challenge to the INS’ entire framework for processing

[asylum] applications”) (opinion of Mikva, J.) with

id. at 1518-19 (stating, without deciding, that “it is

likely that a denial of asylum is appealable. under the

APA”) (opinion of Silberman, J.). In short, this court

has not yet decided whether an individual alien could

bring a direct, district court challenge to a denial of

asylum or denial of adjustment of status; moreover, there

is no precedent in any circuit for the proposition that

§ 106 bars a suit challenging a regulation or agency-

wide practice on statutory or constitutional grounds, and

at least one case goes the other way. In sum, none of the

panel’s § 106 case citations offers any meaningful support

for my colleagues’ interpretation of § 1255a(f) (1).

The majority also analogizes this case to Heckler v.

Ringer, 466 U.S. 602 (1984), involving appeals under

the Medicare Act. In that case, plaintiff Ringer sued in

district court for a declaratory judgment invalidating a

ruling of the Secretary of Health and Human Services

that precluded Medicare reimbursement for a particular

surgical procedure. Judicial review of “any claim aris-

ing under” the Medicare Act is available only after a

claimant undergoes the procedure, seeks payment and ex-

hausts administrative remedies. Ringer, who wished to

undergo the procedure but said he could not do so with-

out assurance of repayment, argued that he did not yet

have a “claim” and so the exhaustion requirement did

not apply to him. The Supreme Court rejected Ringer’s

arguments, holding that he was “clearly seeking to estab-

lish a right to future payments should he ultimately de-

cide to proceed” with the surgery, and that his lawsuit

was therefore a “claim arising under” the Medicare Act

within the meaning of the jurisdiction-preclusion provi-

sion. 466 U.S. at 621. The majority contends that IRCA,

like Medicare, provides only one defined channe] for judi-

ea ia a

70a

cial review—in this case, a legalization application—and

that all other fronts of attack on agency policy are

prohibited. If Ringer’s challenge was a “claim arising

under” the Medicare Act, the majority believes, then the

present action seeks “judicial review of a determination

respecting an application” for legalization.

Ringer of course presents a very different fact situa-

tion and arises under a very different statute than IRCA.

The Court held that Ringer’s cause of action—namely,

that the Secretary’s ruling barring reimbursement for a

certain medical procedure was invalid under the Medicare

Act—constituted a “claim arising under” the Act and

must be pursued as such. Ringer cannot, however, be

stretched out of its own shape to say that the claim here

—that the INS’ eligibility rules are invalid under

IRCA—is an action seeking “judicial review of a deter-

mination respecting an application” for legalization. Un-

like the Medicare Act, IRCA nowhere attempts to define

and prescribe the method of review for all “claims

arising under” the Act. Indeed, as we discussed, Con-

gress rejected a Senate proposal that would have done

just that. Congress in IRCA merely laid down a single

uniform procedure for judicial review of “a determina-

tion respecting an application” for legalization. The

word “application” as used in IRCA denotes the written

document that is filed by the alien. IRCA said nothing

at all about similarly regulating challenges to other kinds

of agency actions. Far from providing a model for how

IRCA should be construed, the Medicare Act illustrates

that Congress knows how to draft a comprehensive jur-

isdiction-preclusion provision when it wants to.

The background and purposes of the two Acts, more-

over, could not be more disparate. Congress, in enacting

IRCA, set up a one-shot finite-period crash program to

legalize undocumented aliens. It was intent on making

sure those undocumented aliens would not be deterred

from filing for legalization due to uncertainty about the

7la

rules; it created the QDEs for that purpose and man-

dated that accurate information about the program be

broadly disseminated. In IRCA, aliens were encouraged

to come forward on a confidential basis to obtain advice

about legalization eligibility from the QDEs; only then

need they decide whether to present a concrete claim for

legalization. To the extent that uniformity of interpre-

tation of eligibility requirements and prompt correction

of erroneous administrative rulings can be achieved by

direct judicial review of key INS regulations, Congress’

aim will be enhanced, not denigrated. In the Medicare

Act, by contrast, Congress had no reason to fear appli-

cants would not file claims for reimbursement; in fact, it

sought to establish a permanent scheme for the orderly

processing of anticipated millions of claims every year;

for that purpose, it “set up a scheme that requires the

presentation of a concrete claim to the Secretary.” Rin-

ger, 466 U.S. at 625. The Medicare Act, according to

the Ringer Court, was intent on balancing the individual

hardship caused by uncertainty as to reimbursability

“against the potential for overly casual or premature

judicial intervention in an administrative system that

processes literally millions of claims every year.” Id.

at 627. Congress’ foci in the two Acts was very differ-

ent: in IRCA to encourage applications, in Medicare to

regulate their flow.

The very dissimilar circumstances of the two lawsuits

illustrate this point. Here, the QDEs are seeking to re-

‘ress the harm caused them in their statutory obligation

to provide accurate information to aliens about legaliza-

tion requirements by the government’s misconceived reg-

ulations. These organizations cannot themselves file ap-

plications for adjustment of status, so their only redress

is to bring an action challenging the regulations in dis-

trict court. Ringer, on the other hand, was seeking an

advance guarantee that his later “claim” for reimburse-

ment for an operation would be successful. There is no

72a

parallel. The QDEs are not submitting a request for

advance approval of an “application”; they are suing to

stop the INS from acting in a way so as to hinder their

basic purpose of disseminating accurate information

about the legalization program and encouraging all elig-

ible applicants to apply. The majority’s asserted analogy

to Ringer is inapposite. The statutory text in the two

cases is different; the statutory schemes are different;

the purposes of the two laws in regulating judicial re-

view are altogether different. The majority strives

mightily to squeeze its elephant into the proverbial phone

booth, but ultimately it fails.

Indeed, a Supreme Court case interpreting the Medi-

care Act more recently than Heckler v. Ringer best

points up the majority’s strained logic in interpreting

8 U.S.C. § 1255a(f) (1). In Bowen v. Michigan Academy

of Family Physicians, 476 U.S. 667 (1986), an organiza-

tion of family physicians and several] individual nhysi-

cians filed suit in district court challenging a Health and

Human Services Department regulation authorizing the

payment of Medicare “part B” benefits in different

amounts for similar physicians’ services. The govern-

ment argued that the district court lacked jurisdiction,

contending that the Medicare Act impliedly forecloses

judicial review of any action taken under part B of the

Medicare program, because it fails to authorize such re-

view while simultaneously authorizing judicial review of

“any determination... as to... the amount of benefits

under part A.” 476 U.S. at 673 (quoting 42 U.S.C.

§ 13895ff(b) (1) (C) (1982 ed., Supp. II)). The govern-

ment also pointed to a provision in the Act requiring pri-

vate insurance carriers furnishing part B coverage to

afford claimants a “fair hearing” on any claimant’s chal-

lenge to “the amount of . . . payments” under part B,

but making no provision for judicial review of those

fair hearings. 42 U.S.C. § 13895u(b) (3) (C).

73a

The Supreme Court rejected the government’s argu-

ments, holding that the district court had jurisdiction

over the piaintiffs’ challenge to the reimbursement regu-

lation. The Court reasoned that the provisions detailing

how and in what forum an individual can obtain review

of a determination as to the amount of benefits under

parts A and B “simply [do] not speak to challenges

mounted against the method by which such amounts are

to be determined rather than the determinations them-

selves.” 476 U.S. at 675 (emphasis in original).

[A]jn attack on the validity of a regulation is not the

kind of administrative action that we described in

[United States v. Erika, Inc., 456 U.S. 201 (1982) ]

as an “amount determination” which decides “the

amount of the Medicare payment to be made on a

particular claim” and with respect to which the Act

impliedly denies judicial review.

476 U.S. at 676. The Court distinguished Ringer as a

case seeking review of an amount determination, id. at

677-78 n.7, and rejected the argument that its ruling

would open the floodgates of litigation.

Unlike the determinations of amounts of benefits, the

method by which such amounts are determined ordi-

narily affects vast sums of money and thus differs

qualitatively from the “quite minor matters” review

of which Congress confined to hearings by carriers.

In addition, as one commentator pointed out, “per-

mitting review only [of] ... a particular statutory

or administrative standard . . . would not result in a

costly flood of litigation, because the validity of a

standard can be readily established, at times even in

a single case.”

Id. at 680-81 n.11 (emphasis in original) (quoting Note,

97 Harv. L. Rev. 778, 792 (1984) ).

Bowen v. Michigan Academy of Family Physicians

demolishes the majority’s broad reading of the IRCA

term “determination respecting an application.” 8 U.S.C.

74a

§ 1255a(f) (1). Application of this panel’s logic to the

Michigan Academy case would dictate a result 180 de-

grees opposed to that reached by the Supreme Court. The

majority here argues that a regulation is a “determina-

tion respecting an application” because it impacts on

the outcome of future determinations on applications.

Maj. op., ante, at 13. That same logic would have

required the Supreme Court to deem the HHS regulation

in Michigan Academy to be an “amount determination”

because it would surely have impact on future amount

determinations; the Supreme Court, however, refused to

do so.

Michigan Academy also shows the limited applicability

of the Heckler v. Ringer holding, on which the majority

relies. After Michigan Academy, the proposition Ringer

stands for is, at the most, that individual Medicare claim-

ants must follow the narrow statutory path of limited

administrative and judicial review rather than challenge

regulations in federal district court. Michigan Academy

found that the narrow review provisions simply do not

apply to an organization of physicians bringing a facial

challenge in district court. A similar logic should pre-

vail in this case: just as the Michigan Academy organi-

zation was not challenging an “amount determination,”

the organizations bringing this lawsuit are not seeking

review of “a determination respecting an application.”

Thus, even if the logic of Ringer were to dictate that in-

dividual aliens could not bring an action in district court

directly challenging the INS regulations challenged in the

present case—a proposition in itself dubious °—Michigan

® As discussed above, the Ringer preclusion of rule chal-

lenges brought by individual Medicare claimants cannot be

readily transplanted into IRCA, whose jurisdiction-preclusion

provision does not bar all “claims arising under” IRCA but

instead bars all suits seeking review of “a determination re-

specting an application.” See supra p. 27.

:

;

Academy makes clear beyond peradventure that Ringer's

logic is no bar to a challenge brought by alien-assistance

organizations who (like the physicians in Michigan Acad-

emy) will never have claims capable of being processed

through the standard statutory review procedure.

Finally, Michigan Academy adopts a pragmatic inter-

pretation of a narrow statutory judicial review scheme

by focusing—in a way this panel has failed to—on Con-

gress’ purpose for limiting judicial review. The Michi-

gan Academy Court recognized a distinction between

challenges to agency determinations on individual ap-

plications, on the one hand, and challenges to the validity

of a regulation establishing the method by which such

determinations wil] be made, on the other. In the present

case, just as in Michigan Academy, permitting direct

judicial review of a regulation “would not result in a

costly flood of litigation, because the validity of a stand-

ard can be readily established, at times even in a single

case.” 476 U.S. at 680-81 n.11."° The majority’s quest

for Supreme Court support for its reading of 8 U.S.C.

§ 1255a(f) (1) is doomed: Michigan Academy has knocked

its Ringer out of the box.

III. RIPENESS

Alternatively, the majority rules that the INS policy

on § 265 cases was not yet finalized so as to be ripe

for review; because it still reflected only the decisions of

©The majority states: “It seems inconceivable that Con-

gress would have wished . . . to closely circumscribe judicial

review of legalization decisions that applied whatever regula-

tions the INS issued, and at the same time to allow APA

challenges to such regulations in almost any district court

of the United States.” Maj. op., ante, at 15-16. Michigan

Academy, however, shows that Congress sometimes does

intend to circumscribe (or foreclose) judicial review of case-

by-case application of rules while permitting district court

challenges to the rules themselves.

76a

lower level agency offi

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