# Appendix — Ayuda, Inc. v. Thornburgh > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0936%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1117 ## Text 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 the basis of its interpretation of “known,” the INS had not yet taken a position on the § 265 issue. Maj. op., ante, at 36-41. This is contradicted by the plain terms of 8 C.F.R. § 245a.1(d) itself. See supra note 11. The regu- lation on its face excludes § 265 violators from the legal- ization program. Given the clarity of the regulation, it cannot be argued that the issue here is not yet fit for judicial decision. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149-52 (1967) (preenforcement review available where “[t]he regulations are clear-cut,” pre- senting a “purely legal” issue, and constitute the agency’s formal] and definitive statement of policy) ; Eagle-Picher Industries v. EPA, 759 F.2d 905, 917-18 & n.68 (“the validity of a rule can be ripe for review whether or not it has actually been improperly applied and enforced in a concrete factual setting”). In short, the majority’s ripeness arguments ignore the fact that the INS had a formal, final policy on § 265 violators and at least some of its officers continued to pursue that policy after mis- construing the district court’s ruling striking down the challenged INS regulation. Only a fundamenta! misread- ing of the procedural] history of the case can sustain a finding that the § 265 issue was not ripe for judicial review. IV. THE STANDING OF THE PLAINTIFF ORGANIZATIONS Although the majority does not base its negative out- come on standing grounds, it does intimate that the plain- tiffs’ standing in this case is doubtful. Since I find no 82a statutory bar to jurisdiction, and since the government raised the standing issue, I must discuss it briefly. A plaintiff challenging agency action in federal court must, in order to meet the Article III test of standing, demonstrate (1) some actual or threatened injury that (2) fairly can be traced to the challenged action and (3) is likely to be redressed by a favorable decision. National Wildlife Federation v. Hodel, 839 F.2d 694, 704 (D.C. Cir. 1988). Additionally, there is the prudential require- ment that the asserted injury be “arguably within the zone of interests protected or regulated by the law on which the complaint is founded.” Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 936 (D.C. Cir. 1986). These plaintiff organizations did allege a concrete in- jury to their organizational activities, caused by the INS’ promulgation of 8 C.F.R. § 245a.1(d), and re- dressable by the court’s invalidation of that regulation. Their allegations fall into three broad categories: (1) that their ability to provide accurate information con- cerning legalization eligibility requirements has been im- paired by the. legal confusion generated by the INS’ alleged misconstruction of IRCA, Complaint, App. 20; (2) that their fundamental organizational purpose of assisting aliens to avail themselves of the benefits of le galization has been directly harmed by the INS’ regula- tions because those regulations have deterred the organi- zations’ clients from filing applications, Complaint, App. 21-23; ** and (3) that they have had to devote significant ©The original complaint stated that one organization’s potential clients had been “deterred from filing” because of the INS’ interpretation of IRCA. App. 21. The complaint stated that the organization’s “extensive counseling campaign to assist Ethiopians and other nationalities to avail themselves of the benefits of legalization under IRCA, which is one of its fundamental organizational purposes, has thus been signifi- cantly and directly harmed and frustrated by the JNS’ in- valid regulations.” App. 21-22. See also App. 23 (another 83a resources to counteract the effects of the INS’ allegedly unlawful interpretation. Complaint, App. 20, 23. These allegations—especially the latter two—are indistinguish- able from the allegations held to be sufficient to convey standing on the plaintiff organizations in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). There, it was sufficient that the plaintiff organization, whose purpose was to help minorities buy available housing, was frus- trated in that purpose by illegal “racial steering” prac- tices and consequently had to devote significant resources to counteract the effects of those practices. Jd. at 378-79. This case is, in all material respects, identical to Havens Realty. The interests at stake in this case also satisfy the prudential “zone of interests’ requirement. The com- plaint alleged that 8 C.F.R. § 245a.1(d) made it more difficult for aliens eligible for legalization under IRCA to exercise their statutory right to obtain legalization, and that the organizations’ interest in helping the aliens obtain legalization was thereby injured. App. 21-22. Con- gress clearly had in mind the interests of alien-assistance organizations, like the plaintiffs here, when it designed and adopted IRCA. See Action Alliance, 789 F.2d at 939-40 n.11. Congress not only recognized but indeed institutionalized in the Act itself chose organizations’ ability to render accurate legal advice about legaliza- tion requirements. Given Congress’ express recognition of the key role played by alien-assistance organizations, the organizations’ own interests fall squarely within the zone of interests protected by IRCA. Action Alliance held, as a general matter, that such organizational in- terests as “promotion of the knowledge, enjoyment, and organizational plaintiff’s “fundamental goals and purposes of assisting Latino youth to obtain the benefits of legalization under IRCA have thus been significantly and directly harmed and frustrated by the INS’ misconstruction of the ‘known to the Government’ requirement’). a 84a protection of the rights created by a statute are securely within the ‘zone of interests’ protected by that statute.” Action Alliance, 789 F.2d at 939. The interests of the organizational plaintiffs in this case fall precisely into such a category and meet the prudential as well as the Article III requirements for standing. V. THE MERITS OF THE § 265 QUESTION Finding no bar to the district court’s exercise of juris- diction over this case, I reach—at last—the merits of the dispute. The order challenged in the present appeal held that an alien’s unlawful status was “known to the Government” within the meaning of 8 U.S.C. § 1255a (a) (2) (B) if that alien can credibly establish his or her “willful violation of section 265” of the INA, 2.e., his or her unexcused failure to file the quarterly reports re- quired by § 265. 687 F. Supp. at 668. The district court held that the absence of a required document in a gov- ernment file confers “know/ledge]” on the government. Under § 265 of the INA, prior to January 1, 1982, a nonimmigrant alien was required to file a document stat- ing his current address every three months, so long as he remained in the United States, regardless of whether his address changed. 8 U.S.C. § 1305 (repealed as of Dec. 29, 1981, Pub. L. No. 97-116, § 11, 95 Stat. 1617). Failure to file such quarterly reports while living in the United States rendered a nonimmigrant’s status un- lawful. Moreover, an alien had to notify the Attorney General within ten days of “each change of address and new address,” id., if he departed the United States to live in another country. Thus, the alien’s INS file would have to contain either a quarterly report for each three- month period or a change-of-address report indicating that the alien had left the United States and therefore was exempt from the quarterly report requirement. Con- sequently, as of January 1, 1982, the INS was able to determine from a nonimmigrant’s INS file, by the ab- 85a sence of quarterly reports, whether the alien was in violation of § 265. When Congress used the term “the alien’s unlawful status was known to the Government” in 8 U.S.C. § 1255a (a) (2) (B), it obviously contemplated that the INS would be deemed to “know[]” of an alien’s unlawful status where an examination of the alien’s file would turn up a document that in itself indicates that the alien’s status is unlawful.’ There is no defensible difference between that circumstance and this one: an examination of the alien’s INS file would turn up the absence of a required docu- ment, which absence by itself indicates that the alien’s status is unlawful. In both cases the agency has actual knowledge from its files of the alien’s illegal status. Since perusal of the files produces actual knowledge of illegal- ity, the majority’s point about the various possible defini- tions of the word “known” is irrelevant. Maj. op., ante, at 40.°* Thus, the district court’s conclusion that the term “known” unambiguously embraces the circum- Stance where the absence of a document itself indicates unlawful status seems unimpeachable. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (where congressional intent is clear, court and agency “must give effect to the un- ambiguously expressed intent of Congress’’). 7 Even the INS recognized this in 8 C.F.R. § 245a.1 (d) (4), which considers an alien’s unlawful status to be known if a school had sent the INS “a report that clearly indicated the appellant had violated his or her nonimmigrant status” before January 1, 1982. ® The majority contends that, while the presence of a docu- ment in INS files would convey actual knowledge, the “mere absence of a quarterly report may well not lead to actual knowledge if all files are not monitored closely.” Maj. op. at 40. I fail to see how this distinguishes an “absence” case from a “presence” case. If an agency’s files are not monitored closley, then agency officials will be equally igno- rant of what the files do contain and what they do not contain. 86a Moreover, contrary to the majority’s contention, a § 265 violator’s unlawful status could be determined simply by noting the absence of required documents in his file. The majority argues that the INS could not have known, merely by looking at an alien’s file, that the alien’s failure to file was “willful” and thus rendered the alien’s status unlawful. Maj. op., ante, at 39. Yet, to begin with, the failure to file a § 265 report was defined in the INA to be a misdemeanor—completely without regard to will- fulness. 8 U.S.C. §1806(b). Moreover, the INA pro- vided that any alien who violated the § 265 filing require- ment was to be arrested and deported “unless such alien established to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful.” Jd. §1306(b). Thus, willfulness was not an element of a § 265 violation; instead, an alien threatened with deportation could invoke nonwillfulness as an affirm- ative defense that the alien would have the burden of establishing. An INS official looking at an alien’s file prior to 1982 would know solely from the absence of one or more required § 265 forms that the alien’s status was prima facie unlawful. Since that official would have known everything needed to bring a deportation proceed- ing against the nonfiling alien, the alien’s unlawful status was “known to the Government.” I agree with the district court that the treatment of § 265 violators in 8 C.F.R. § 245a.1(d) was contrary to law.’ 19 As discussed in the text, however, I do not read § 265 as requiring any showing of willfulness on the part of the gov- ernment to make out a prima facie violation. Hence, the absence of the reports would be sufficient to make a violation “known” to the government. Conversely, the alien wishing to show a past violation would only have to point to the absence of the same reports. The government’s earlier failure to prosecute the violation and thereby afford the alien an op- portunity to plead a nonwillfulness defense cannot result in a heavier burden on the alien to prove a violation now than the government itself would have had then. This is the one respect in which I would modify Judge Sporkin’s order. 87a VI. CONCLUSION In my view, the district court had jurisdiction to rule on the eligibility of § 265 violators for legalization. Neither IRCA’s judicial review provisions, nor ripeness or standing doctrine precluded the district court’s exer- cise of federal-question jurisdiction under 28 U.S.C. § 1831 and 8 U.S.C. § 1329 to invalidate INS legaliza- tion rules. With one minor exception, I would affirm Supplemental Order V. Congress meant by the legalization program to extend a generous hand to longtime resident illegal aliens pre- viously consigned to living in the shadows. Under IRCA’s amnesty dictates, the aliens had to act quickly to apply for legalization in order to meet prescribed deadlines; the QDEs were established to aid them in their quest for legalization. It flouts the text and purpose of this statutory design to interpret § 1255a(f), as my colleagues do, to prevent any prompt judicial testing of INS rules that wrongfully bar legalization to large categories of those aliens, and to relegate those aliens to individual challenges in the course of deportation proceedings. So interpreted, the legalization program is a cruel joke for a compassionate nation to play on those it purports to welcome and redeem. I cannot believe Congress intended such a result, and so I respectfully dissent. 88a APPENDIX B UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA. Civ. A. No. 88-0625. ’ _ 7 q 3 E } 4 2 : 4 3 : ; AYUDA, INC., et. al., Plaintiffs, v. Edwin MEESE, III, Alan Nelson, and INS, * Defendants. March 30, 1988. Supplemental Order April 6, 1988. Supplemental Order II April 7, 1988. Supplemental Order III April 7, 1988. Supplemental Order [V May 2, 1988. Supplemental Order V May 2, 1988. _ Supplemental Order VI May 4, 1988. Supplemental Order VII May 4, 1988. Supplemental Order VIII June 9, 1988. Supplemental Order IX June 9, 1988. Immigration assistance organizations sought preliminary injunction to prevent Immigration and Naturalization Ser- vice from enforcing its rule which limited the number of aliens, otherwise eligible, who could seek legalized resi- dence status. The District Court, Sporkin, J., held that: (1) organizations had standing; (2) organizations had no administrative remedies to exhaust; and (8) organizations were entitled to preliminary relief. 89a So ordered. Wayne Matelski, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., for plaintiffs; Eva M. Plaza, Eleanor Pelta, Carl Valenstein, David Aronofsky, Lynda S. Zen- gerle, Arent, Fox, Kintner, Plotkin & Kahn, Deborah Sanders, Washington Lawyers’ Committee Under Civil Rights Under Law, Washington, D.C., Lucas Guttentag, American Civil Liberties Union, Immigration Task Force, New York City, Ira J. Kurzban, Kurzban, Kurzban, Wein- ger & Holtsberg, Miami, Fla., Michael Rubin, Altshuler & Berzon, San Francisco, Cal., Carolyn Waller, Washington Lawyers’ Committee for Civil Rights Under Law, Wash- ington, D.C., Gilbert P. Carrasco, Hispanic Nat. Bar Ass’n, New York City, of counsel. MEMORANDUM OPINION AND ORDER SPORKIN, District Judge. This class action lawsuit is now before this court on plaintiffs’ complaint seeking declaratory and injunctive re- lief. Plaintiffs, who are nonimmigrant aliens and organ)- zations whose prime function is to perform immigration counseling, brought this lawsuit to challenge regulations promulgated by the Immigration and Naturalization Ser- vice (“INS’’) implementing the legalization or ‘‘amnesty”’ provisions of the Immigration Reform and Control Act of 1986 (“IRCA”’). Plaintiffs contend that the regulations im- plementing the statutory requirements for nonimmigrants to establish their eligibility for legalization (or amnesty) “violate the plain meaning of the statute, are unreasonable and unlawfully exclude individual plaintiffs and the class they represent from obtaining legal immigration status.”’ Complaint at 41. Plaintiffs specifically take issue with defendants’ interpretation of the statutory phrase “‘unlaw- ful status was known to the Government”’ prior to January 1, 1982. See 8 U.S.C. §1255a(aX2XB). According to 90a plaintiffs, defendants’ regulations unlawfully preclude INS from relying on any other evidence, including Internal [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0936%3A2. Public record. Not legal advice.