Appendix — Ayuda, Inc. v. Reno
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IN THE A — SUNT 1999
Supreme Court of the Gnited SlPge oF ME ciere
OCTOBER TERM, 1991
AYUDA, INc., et al.,
Petitioners,
V.
WILLIAM Barr, et al.,
Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
APPENDIX TO PETITION FOR A
WRIT OF CERTIORARI
Counsel of Record:
WAYNE H. MATELSKI
ARENT, Fox, KINTNER, PLOTKIN
& KAHN
1050 Connecticut Ave., N.W.
Washir «ton, D.C. 20036
(202) 857-6340
Of Counsel:
RopERIC V.O. BocGcs
CHRISTINE L. HERRELL
ELEANOR PELTA
MICHAEL RUBIN
DEBORAH SANDERS
CAROLYN WALLER
LYNDA S. ZENGERLE
Attorneys for Petitioners
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
TABLE OF CONTENTS
Appendix A
Ayuda v. Thornburgh, Nos. 88-5226, 89-5301, and
90-5293 (November 5, 1991), also reported at
OOS Fe FO CE. GAP. TIDE) ivccssicccrccissvnsicss
Appendix B
Ayuda v. Thornburgh, No. 88-5226, 89-5301, 90-
5293 (D.C. Cir., March 3, 1992), also reported
me SER FE WORD GIA: TOG E) cvccssccscvencensesssvees
Appendix C
Ayuda v. Thornburgh, 111 S.Ct. 1068 (1991) ........
Appendix D
Ayuda v. Thornburgh, No. 88-5226 (D.C. Cir. July
18, 1989), also reported at 880 F.2d 1325 (D.C.
SS. ITED cibirnscesdtuannnnsnicauscguodonadnsuisecshausacsinncaten
Appendix E
Ayuda v. Thornburgh, No. 88-5226 (D.C. Cir. Oct.
RDO 'si.ilt cs sies Lileaslehcnclaauncdastiauianesbaniesaindamascenanien
Appendix F
In Re: Richard Thornburgh, No. 88-5360 (D.C. Cir.
March 3, 1989), also reported at 869 F.2d 1503
(D.C. Cir. STIR Uisnlddudictscivacasncertia, sisiiomugucaabaiatsanes
Appendix G
Ayuda v. Meese, Civ. A. No. 88-0625 (D.D.C. March
30, 1988), also reported at 687 F.Supp. 650
SSIEE: TIED caniabectinenectassussiascicecnnanenseniaseeinazaes
Appendix H
Ayuda v. Meese, H. Civ. A. No. 88-0625, Supple-
mental Order X (D.D.C., August 18, 1988) ....
Page
la
65a
77a
78a
165a
173a
253a
il
Appendix I
Ayuda v. Meese, Civ. A. No. 88-0625, Memorandum
Opinion and Supplemental Order XI (D.D.C.,
Sept. 27, 1988), also reported at 700 F.Supp.
4D, BO (D.D.C. 1QGB) .cccccnsvsscsresssacancsasnesesescrrass 255a
Appendix J
Ayuda v. Meese, Civ. A. No. 88-0625, Supplemental
Order XII (Oct. 28, 1988), also reported at 700
F.Supp. 49, 52 (D.D.C. 1988) ......:.sseesessseeeees 262a
Appendix K
Ayuda v. Thornburgh, Civ. A. No. 88-0625, Mem-
orandum Opinion (D.D.C., June 29, 1989) ...... 266a
Appendix L
Ayuda v. Thornburgh, Civ. A. No. 88-0625, Mem-
orandum Opinion (D.D.C., July 24, 1989) ....... 273a
Appendix M
Ayuda v. Thornburgh, Civ. A. No. 88-0625, Sup-
plemental Order XIV (D.D.C., Sept. 6, 1990),
also reported at 744 F.Supp. 21 (D.D.C.
QOD venesecisrvcevcessesssasscesniiommauananaaigene 279a
Appendix N
Ayuda v. Thornburgh, Civ. A. No. 88-0625, Mem-
orandum Opinion (D.D.C., Oct. 3, 1990) ......... 282a
Statutes and Regulations
INA $106, 8 U.S.C. § 1106a (1988) ..................000 290a
INA § 210(e), 8 U.S.C. § 1160(e) ............ccceceeeeeeeeeee 295a
INA § 245A(aX2), 8 U.S.C. § 1255(aX(2) (1988) ...... 297a
INA § 245A(f), 8 U.S.C. § 1255a(f) (1988) ............. 298a
Former INA § 265, 8 U.S.C. § 1305 (1976) ........... 300a
INA 8279, 8 U.S.C. LSRO COB) cnncicecccesecesrccssn 301la
BB UBC. © UGB1 CODED nnccesespecsscscscisiscecesesseneestinonss 302a
SO CPR. SiGe CD cccivvicsimiinicnen eee 303a
BO CPW. CBOE CGT he ccisicecnevcssssensiccsnsnen 305a
8 C.F.R. § 103.3 (aXSiit) (1987) ............ccccerescocnenss 306a
la
APPENDIX A
United States Court of Appeals,
District of Columbia Circuit.
Nos. 88-5226, 90-5293 and 89-5301.
AYUDA, INC., et al.
v.
Richard THORNBURGH, Individually, and as Attorney Gen-
eral of the United States, et al., Appellants. (Two Cases)
AYUDA, INC., et al., Appellants,
v.
Richard THORNBURGH, et al.
Argued May 16, 1991.
Decided Nov. 5, 1991.
An action was brought to prevent the Immigration and
Naturalization Service (INS) from administering Immigra-
tion Reform and Control Act (IRCA) in an illegal manner.
The District Court for the District of Columbia, 687
F.Supp. 650, Stanley Sporkin, J., ordered INS to take
certain actions under IRCA. The Court of Appeals, 880
F.2d 1325, held that District Court lacked subject matter
jurisdiction. On appeal, the Supreme Court, 111 S.Ct. 1068,
granted certiorari and vacated judgment. On remand, the
case was consolidated with related cases on appeal from
a decision of the United States District Court, 744 F.Supp.
21, granting interim relief, and a decision which denied
request to hold government in contempt for violating prior
District Court order. The Court of Appeals, Silberman,
Circuit Judge, held that: (1) exception to statutory review
2a
provisions recognized under recent Supreme Court decision
was limited strictly to collateral procedural challenges to
legalization process, regardless of the number of plaintiffs;
(2) District Court lacked jurisdiction to hear claims as to
INS’ interpretation of IRCA provision which were not final
or ripe; (3) District Court lacked jurisdiction to order in-
junctive relief that effectively eliminated timely application
requirement for work authorization for aliens; and (4)
appeal from civil contempt order was moot.
So ordered.
Wald, Circuit Judge, filed a dissenting opinion.
Donald E. Keener, Atty., Dept. of Justice, with whom
Stuart M. Gerson, Asst. Atty. Gen., and Robert Kendall,
Jr., Asst. Director of Immigration Litigation, Dept. of Jus-
tice, Washington, D.C., were on the brief, for appellants
in 88-5226 and 90-5293 and appellees in 89-5301. David J.
Kline and John R. Bolton, Attys., Dept. of Justice, Wash-
ington, D.C., also entered appearances for appellants.
Michael Rubin, with whom Wayne H. Matelski, Lynda
Zengerle, Deborah Sanders, and Carolyn Waller, Wash-
ington, D.C., were on the brief, for appellees in 88-5226
and 90-5293. David Aronofsky, Washington, D.C., also en-
tered an appearance for appellees.
David M. Billings, Washington, D.C., for appellants in
89-5301. Wayne H. Matelski, Washington, D.C., also en-
tered an appearance for appellants.
Before WALD, SILBERMAN and D.H. GINSBURG, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SILBER-
MAN.
Dissenting opinion filed by Circuit Judge WALD.
SILBERMAN, Circuit Judge:
3a
SILBERMAN, Circuit Judge:
These three consolidated cases all involve questions re-
garding the jurisdiction of the district court to hear claims
brought by Ayuda, Inc. {along with three other organi-
zations that advise aliens and five unnamed aliens) to pre-
vent the Immigration and Naturalization Service (INS)
from administering the Immigration Reform and Control
Act (IRCA)! in a fashion alleged to be contrary to the
statute and the Constitution. The first case (Ayuda I, No.
88-5226) is here on remand from the Supreme Court, which
asked us to reconsider our opinion in Ayuda, Inc. v. Thorn-
burgh, 880 F.2d 1325 (D.C.Cir.1989), vacated and re-
manded, __ U.S. __, 111 S.Ct. 1068, 112 L.Ed.2d 1174
(1991), holding that the district court lacked jurisdiction,
in light of the court’s subsequent decision in McNary v.
Hantian Refugee Center, Inc., __ U.S. __, 111 S.Ct. 888,
112 L.Ed.2d 1005 (1991). The second case (Ayuda II, No.
90-5293) involves interim relief granted by the district court
in the same proceeding in which we had held the court
lacked jurisdiction. The government, not surprisingly, chal-
lenges the district court’s jurisdiction to issue the interim
order. Finally, in Ayuda III (No. 89-5301) the plaintiffs?
appeal the district court’s denial of their request that the
government be held in contempt for allegedly violating a
prior district court order in this protracted proceeding.
We hold, in line with our original position, that the district
court lacked subject matter jurisdiction to issue the orders
sought in Ayuda I and Ayuda IJ and that the appeal in
Ayuda III is therefore moot.
‘Immigration Reform and Control Act of 1986, Pub.L. No. 99-603,
100 Stat. 3359.
* As none of the parties is appellant or appellee in all three consol-
idated cases, we will refer to the undocumented aliens and the orga-
nizations supporting them as the ‘“‘plaintiffs.”’
Ayuda I
The background to congressional passage of IRCA is set
forth in our prior opinion, see Ayuda, 880 F.2d at 1326-
27, and in McNary, 111 S.Ct. at 890- 91. Suffice it to say
that IRCA was a congressional compromise whereby new
techniques for stopping the flow of illegal aliens into the
United States were balanced with amnesty programs for
undocumented aliens who met certain requirements.
The amnesty program at issue in this case, see 8 U.S.C.
§ 1255a, gave aliens the opportunity to apply for legali-
zation during a one-year period ending on May 4, 1988.
See rd. § 1255a(aX1\A). If “nonimmigrants” (aliens who
entered the country legally but later lost that lawful status)
could show, inter alia, that they were in this country
unlawfully since January 1, 1982, and that their unlawful
status was “‘known to the Government,” id. § 1255a(a\2)A)
& (B), they were entitled to legalization. The INS pro-
mulgated a regulation stating that ‘known to the Gov-
ernment” meant “known to the INS.” Approximately
seven weeks before the May 4, 1988, deadline, plaintiffs
filed suit in district court, claiming that “‘known to the
Government” was broader in its reach and meant ‘known
to any agency of the Government.” The district court held
that the INS regulation was contrary to the statute and
issued a series of four orders adopting and implementing
plaintiffs’ interpretation. See Ayuda, Inc. v. Meese, 687
F.Supp. 650, 666-68 (D.D.C.1988). The government did not
appeal, and therefore acquiesced in the substance of these
rulings.
Then, less than one week before the end of the amnesty
period, the district court issued a fifth order (Supplemental
Order V), this time construing the word “known’’ rather
than the word “Government.” One class of aliens (section
265 claimants) were under pre-IRCA law® permitted to
reside in the United States so long as they periodically
filed certain forms with the INS; plaintiffs sought a ruling
from the district court that if an alien failed to submit
these forms, knowledge of the alien’s unlawful status could
be imputed to the government. Even though the INS had
never promulgated an official position on whether knowl-
edge could be inferred from the absence as opposed to the
presence of information concerning an alien, and even
though the INS’ Legalization Appeals Unit (LAU) had
never denied an alieri’s legalization application on the
ground that the absence of forms was insufficient to es-
tablish knowledge, the district court granted plaintifis’ re-
quest. See id. at 668. The government appealed this order
on jurisdictional grounds.
The government, ‘in effect challenging the district
court’s jurisdiction over the entire case,’ Ayuda, 880 F.2d
at 1329, argued that IRCA’s provisions respecting admin-
istrative and judicial review first require exhaustion of
administrative remedies and then vest exclusive jurisdic-
tion in the courts of appeals to review INS legalization
decisions. Those provisions specify that ‘“‘[t]here shall be
no administrative or judicial review of a determination
respecting an application ... [for legalization] except in
accordance with this subsection.”’ 8 U.S.C. § 1255a(f\(1).
They further direct the Attorney General to “‘establish an
appellate authority to provide for a single level of admin-
istrative appellate review of [such] a determination,” id.
§ 1255a(f(3A), and state that ‘‘[t]here shall be judicial
review of such a denial only in the judicial review of an
order of deportation under section 1105a of this title [which
provides for exclusive court of appeals jurisdiction],’’ id.
§ 1255a(f4)(A).
3 See Immigration and Nationality Act (INA) § 265, 8 U.S.C. § 1305
(1976), amended by 8 U.S.C. § 1305 (1982); see also 8 C.F.R. § 265.1
(1981).
6a
Plaintiffs argued that the district court had general fed-
eral question jurisdiction, see 28 U.S.C. § 1331 (as well as
jurisdiction under the immigration laws, see 8 U.S.C.§ 1329,
and the Fifth Amendment), to provide direct review of
the legality of the INS regulation—of which the ‘‘known’’
issue was a by-product—because the statutory sections pro-
viding exclusive court of appeals review covered only ‘‘a
determination respecting an application,’ 8 U.S.C.
§ 1255a(f(1) (emphasis added), and therefore did not apply
to “broad challenges to an INS policy or legal position
that could apply to many [determinations].’’ Ayuda, 880
F.2d at 1330. A regulation construing the statute and
agency interpretations of the regulation comprised,
plaintiffs contended, just such a policy or legal position.
We rejected plaintiffs’ argument, reasoning, inter alia,
that the legality of the regulation could certainly be chal-
lenged by an individual alien on appeal from a deportation
order and that the regulation was therefore a determi-
nation respecting an application. We thought we would
otherwise create an anomalous situation in which a single
claimant challenging his deportation order on grounds that
the regulation was inconsistent with the statute and that
his legalization application was therefore improperly denied
would be obliged to bring his appeal to the court of appeals,
while some combination of potential claimants could sue
directly in district court, avoiding the statutory adminis-
trative procedures and the court of appeals. See id. We
relied in part on Heckler v. Ringer, 466 U.S. 602, 104
S.Ct. 2013, 80 L.Ed.2d 622 (1984), in which the Supreme
Court held that plaintiffs who sought to establish a right
to reimbursement for a type of operation under the Med-
icare Act by bringing an action in district court were
obliged to pursue their administrative remedies first. The
Court there defined the word ‘“‘claim’”’ under the Act to
include one plaintiff's preemptive challenge to an agency
policy that allegedly would prevent him from ever getting
the operation that would constitute the basis for his claim
7a
to reimbursement. See Ayuda, 880 F.2d at 1332 (citing
Ringer, 466 U.S. at 621, 104 S.Ct. at 2024-25).
We found it unnecessary to decide a second jurisdictional
objection raised by the government—the organizational
plaintiffs’ standing. The district court seemed to have de-
termined that the individual plaintiffs, singularly or in
groups, could not sue in district court to raise a legal
question that could be resolved in the courts of appeals,
but that organizations such as Ayuda—‘‘qualified desig-
nated entities’’ (QDEs) recognized under the statute as
having a counseling role for illegal aliens—could sue be-
cause they were, of course, not subject to deportation and
therefore had no right to judicial review in the courts of
appeals. See id. at 1339 & n. 15. We did not decide the
standing issue because we concluded that, as in Block v.
Community Nutrition Institute, 467 U.S. 340, 104 S.Ct.
2450, 81 L.Ed.2d 270 (1984), the statutory review provi-
sions revealed a congressional purpose to preclude judicial
review of issues that could be raised in an appeal from a
deportation order on the part of an organization that was,
in effect, acting as a representative of individual aliens
even though it was asserting an “organizational injury.”
See Ayuda, 880 F.2d at 1339-40.
We then held alternatively that the district court also
lacked jurisdiction to issue its order concerning the INS’
“policy” regarding section 265 claimants because that pol-
icy was neither final nor ripe. Only ‘‘final agency action’’
is reviewable, 5 U.S.C. § 704, but all the alleged ‘‘policy”’
amounted to was that ‘‘at most, some local INS offices
were informing aliens that the office would recommend
denial of applications based on the section 265 theory.”
Ayuda, 880 F.2d at 1342 (emphasis in original). Because
“all recommended denials [would be] referred to an ad-
judicator, whose decision [would be] subsequently review-
able by the Legalization Appeals Unit,’’ which had never
actually decided a case involving the issue, it was clear
that ‘‘such a recommendation, let alone a prior indication
_
8a
that such a recommendation would be made, does not con-
stitute final agency action.”’ Jd. (emphasis in original).
The lack of a clear INS position also contributed heavily
to our decision that the section 265 issue was unripe for
review. See id. at 1343-46. The word ‘‘known”’ is ambig-
uous, and it “follows naturally from Chevron [U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984),]”
that ‘“‘when dealing with an ambiguous statutory term ...,
a court should not impose its own interpretation of the
term before the agency has an opportunity to consider the
issue and fix its own statutory construction.”” Ayuda, 880
F.2d at 1343-44 (emphasis in original). We concluded that
the ‘‘compelling reasons for postponing judicial interven-
tion” clearly outweighed ‘“‘the alleged hardship to [the
plaintiffs] if deprived of a rapid clarification of ‘known to
the Government,’ ” especially because the hardship alleged
confused the plaintiff QDEs’ organizational interests with
the interests of non-party aliens and, in any event, glossed
over the fact that aliens inevitably faced the risk of coming
forward to challenge a denial of legalization, without any
guarantees of success. Jd. at 1345-46.
Subsequently, the Supreme Court decided McNary and
we are now to consider whether, and to what extent,
McNary obliges us to reexamine our opinion.
McNary, dealing with IRCA’s Special Agricultural
Workers (SAW) amnesty program, required the Court to
interpret a parallel administrative and judicial review sec-
tion of IRCA, 8 U.S.C. § 1160(e), and to mark the reach
of the phrase ‘‘a determination respecting an application,”’
id. § 1160(eX1). The Supreme Court held- that that wording
did not refer to ‘general collateral challenges to uncon-
stitutional practices and policies used by the agency in
processing applications,’ 111 S.Ct. at 896, and therefore
9a
did not preclude an action brought in district court to
redress such practices.
The plaintiffs in McNary claimed, and for purposes of
Supreme Court review it was undisputed, that the INS
was engaging in “a pattern or practice of procedural due
process violation ... in its administration of the SAW
[amnesty] program.” Jd. 111 S.Ct. at 892. It was alleged,
for example, that applicants were not afforded an oppor-
tunity to challenge material adverse evidence or to present
witnesses, that competent interpreters were not provided,
and that there were no recordings of applicant interviews.
See id. at 894. Crucial to the Court’s reading of section
1160(eX1) was its focus on a companion provision that
provides that ‘‘judicial review shall be based solely upon
the administrative record established at the time of the
review by the appellate authority [within the INS].” 8
U.S.C. § 1160(eX3XB) (emphasis added). The Court con-
cluded that the record created during the SAW adminis-
trative review process would be inadequate for any
meaningful appellate review of the serious procedural con-
stitutional questions raised. See McNary, 111 S.Ct. at 896
(‘‘[T]he administrative appeals process does not address the
kind of procedural and constitutional claims respondents
bring in this action. . . .”’). The Court noted that the courts
of appeals lack the fact-finding and record-developing ca-
pacities necessary to correct this deficit. Therefore, Con-
gress would not have intended that those sort of claims
be subject to administrative exhaustion and limited to court
of appeals review. See id. at 896-97, 898-99.*
‘The Court also believed that a ‘‘collateral challenges’ exception to
the statutory review limitations was indicated by the “abuse of dis-
cretion” standard of judicial review under section 1160(eX3\B), which,
although ‘“‘appropriate for judicial review of an administrative adjudi-
cation of the facts of an individual application ...[,] does not apply
to constitutional! or statutory claims, which are reviewed de novo by
the courts.”” McNary, 111 S.Ct. at 897. We have, however, commonly
understood ‘‘abuse of discretion’’ standards to allow unrestricted ap-
10a
The Court distinguished Ringer on two grounds. The
first was that in Ringer the claim raised in district court
was not collateral to the plaintiffs’ substantive entitlement
to reimbursement for the operations; whereas, in McNary
the Court observed that even if the plaintiffs prevailed,
they would only be entitled to have their ‘‘applications
reconsidered in light of the newly prescribed INS proce-
dures.”’ Id. at 898. Second, in Ringer, the Court believed
that the plaintiffs, if they exhausted their administrative
procedures, would get adequate judicial review; whereas,
in McNary, as the Court pointed out:
[T]he District Court found, because of the lack of
recordings or transcripts of LO [Legalization Office]
interviews and the inadequate opportunity for SAW
applicants to call witnesses or present other evidence
on their behalf, the administrative appeals unit of the
INS, in reviewing the decisions of LOs and regional
processing facilities, and the courts of appeals, in re-
viewing SAW denials in the context of deportation
proceedings, have no complete or meaningful basis
~~ upon which to review application determinations.
Id. at 898 (emphasis added).
McNary, like Ayuda, did not decide whether QDE or-
ganizational plaintiffs have standing. In fact, the Supreme
Court did not consider at all whether those organizations
have any independent litigation role under IRCA. See
McNary, 111 S.Ct. at 891-92, 894 & n. 8. Instead, the
Court appears to have assumed that it was unnecessary
to consider those issues because there were individual al-
pellate review for legal error, see, ¢.g., Pappas v. FCC, 807 F.2d 1019,
1023 (D.C.Cir.1986); Jaimez-Revolla v. Bell, 598 F.2d 243, 246
(D.C.Cir.1979); we do not think the Court meant to disagree with that
proposition. And in any case, the Court’s concern does not appear to
be implicated by the claims presented here, since such statutory inter-
pretation questions are clearly governed by the standard of review set
forth in Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82.
lla
iens as plaintiffs in the action and, presumably, the or-
ganizational plaintiffs would have no greater right (if,
indeed, they had any right) to sue than did the individual
plaintiffs.
C.
In reargument plaintiffs assert that McNary obliges us
to alter our original opinion and now determine that the
district court properly exercised jurisdiction over the case.
They believe that McNary has confined the special judicial
review provisions of IRCA to the case of an individual
challenging a deportation order on the ground that his
legalization application was improperly denied. The gov-
ernment, on the other hand, reads McNary as creating an
exception to the statutory review provisions limited strictly
to collateral procedural challenges to the legalization proc-
ess, regardless of the number of plaintiffs.
Although it is certainly true that the Supreme Court's
reading of the words ‘‘a determination respecting an ap-
plication” is narrower than was ours in our original opin-
ion,» we believe that the Court’s reasoning—and
particularly its distinction of Ringer—leaves our case on
the Ringer side of the analytical divide. In the first place,
‘The Court seemed to read the ‘determination respecting an appli-
cation’’ language as barring direct district court review only of ‘‘a single
[INS] act” or “individual denials of SAW status” and not of ‘‘a group
of [INS] decisions’ or ‘“‘general coilateral challenges.” McNary, 111
S.Ct. at 896 (emphases added). But if this were the case, two aliens
(two being a “group’’) or any class of aliens with similar claims could
freely choose between filing declaratory judgment actions in district
court and filing ‘ndividual legalization applications with the INS—or,
presumably, both. This reading would transform what the Court agreed
were provisions ‘‘limit{ing] review,”’ id. at 898, into provisions bestow-
ing upon aliens a choice of forum. Seen against the remainder of the
Court’s analysis, and in light of Ringer’s directive that review provisions
“‘must be construed” to prevent forum-shopping, 466 U.S. at 621, 104
S.Ct. at 2024-25, we do not think this individual/group distinction is
controlling. See infra at 752-753.
0 SS
12a
this lawsuit is an indirect but nevertheless obvious effort
to adjudicate the plaintiff aliens’ ultimate eligibility for
legalization. We do not encounter a collateral challenge,
the resolution of which does not necessarily confer eligi-
bility.
In this regard, we are not sure that the government is
correct in focusing on the Supreme Court’s repeated use
of the word “‘procedure”’ as setting forth a strict proce-
dural/substantive dichotomy; we think the Court was in-
stead drawing a distinction between collateral issues (which
might normally be procedural) and those that go to the
heart of an applicant’s claim. As in Ringer, plaintiffs here
seek “‘the invalidation of the current [agency] policy’’ as
contrary to statute and a “declaration” of what they be-
lieve is the proper statutory interpretation. Ringer, 466
U.S. at 614, 104 S.Ct. at 2021. The individual aliens whose
interests are at stake, we are told, are persons whose
presence in the United States was “known to the Gov-
ernment’ and who are able to satisfy the other statutory
requirements for legalization. Thus, if plaintiffs’ interpre-
tation of that statutory phrase were to be accepted, the
decision would “‘have the effect of establishing their en-
titlement”’ to legalization. McNary, 111 S.Ct. at 898. To
permit plaintiffs to bring in federal district court an action
designed to resolve the core issue of law that they will
encounter in a legalization proceeding, and perhaps in an
appeal from a deportation order, ‘‘ ‘would allow claimants
substantially to undercut Congress’ carefully crafted
scheme for administering the [IRCA].’’’ McNary, 111 S.Ct.
at 898 n. 13 (quoting Ringer, 466 U.S. at 621, 104 S.Ct.
at 2025). That is why in Ringer the Court thought it mat-
tered not whether a plaintiff had actually made a claim
or was suing in anticipation of filing a claim; in either
event, the action was construed as a “claim arising under’
the Medicare Act because to hold otherwise would be to
allow mere form to defeat congressional purpose. Ringer,
466 U.S. at 621, 104 S.Ct. at 2024-25.
l3a
Second, plaintiffs have not shown why they cannot be
assured complete and adequate review in the courts of
appeals, after exhaustion of administrative procedures, of
the issue—the definition of ‘“known to the Government’ —
that they would have the district court decide. We are not
faced here with the problem of an inadequate record for
appellate review, which troubled the Supreme Court in
McNary and led it to conclude that Congress could not
have intended to limit judicial review of the procedural
challenges involved there. The question in this case is
whether an agency’s alleged interpretation of a statute is
contrary to law, a question courts of appeals quite fre-
quently decide on direct review of agency action. No one
contends that a court of appeals would have any difficulty
deciding whether any INS interpretation of IRCA as it
related to section 265 claimants was good law or not. And
it cannot be seriously suggested that a court of appeals
would be hampered by considering such a legal question
in specific factual contexts—that is, as applied to particular
aliens. In short, if the administrative and judicial review
procedure that Congress provided is adequate to provide
full relief of individual aliens’ legal claim—and we believe
that it is, see Ayuda, 880 F.2d at 1339 & n. 15—there is
no reason to permit plaintiffs to circumvent the statutory
procedure.
This is not, as should be apparent, a garden variety
exhaustion of administrative remedies case, in which a
reviewing court can dispense with (‘‘waive’’) exhaustion if
the court determines that resort to the agency procedures
would be inadequate or futile. See Randolph-Sheppard Ven-
dors of Am. v. Weinberger, 795 F.2d 90, 105-07
(D.C.Cir.1986). Congress here expressly provided that an
alien could challenge the government’s refusal to grant
legalization under the statute only if the government
sought to deport the alien and then only in the courts of
appeals. See Weinberger v. Salfi, 422 U.S. 749, 766, 95
S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975) (holding that ‘‘a
Se
l4a
statutorily specified jurisdictional prerequisite’ is “‘some-
thing more than simply a codification of the judicially de-
veloped doctrine of exhaustion, and may not be dispensed
with merely by a judicial conclusion of futility’’). The
Supreme Court thought that congress did not intend that
procedure to preclude district court authority to remedy
INS practices that could not adequately be reviewed in
the courts of appeals on appeai of a deportation order.
Insofar as the Supreme Court examined the adequacy of
the INS’ administrative procedures in McNary, it was only
to determine whether an adequate record would be com-
piled to provide a court of appeals with the wherewithal
for meaningful review. Neither the Court nor Congress
has granted us an open-ended commission to judge for
ourselves the “‘adequacy”’ of the administrative procedures,
short of judicial review, that are available to remedy an
alleged INS misunderstanding of IRCA.
Nor is there, notwithstanding the implications in the
dissenting opinion, any general right stemming from either
administrative or constitutional law to challenge agency
regulations or, as in this case, interpretations of regula-
tions facially rather than on an as-applied, case-by-case
basis.
The case-by-case approach that this [principle that only
individual agency actions and not entire “programs”
can be challenged requires] is understandably frus-
trating. ... But this is the traditional, and remains
the normal, mode of operation of the courts. Except
where Congress explicitly provides for our correction
of the administrative process at a higher level of gen-
erality, we intervene in the administration of the laws
only when, and to the extent that, a specific ‘final
agency action” has an actual or immediately threat-
ened effect [citation omitted]. Such an intervention
may ultimately have the effect of requiring a regu-
lation ... to be revised in order to avoid the unlawful
result that the court discerns. But it is assuredly not
~-
15a
a swift or as immediately far-reaching a corrective
process as those interested in systemic improvement
would desire. Until confided to us, however, more
sweeping actions are for the other Branches.
Lujan v. National Wildlife Fed’n, _. U.S. —__, 110 S.Ct.
3177, 3191, 111 L.Ed.2d 695 (1990). Of course, if an alien
prevailed in the court of appeals challenging the INS’
interpretation of section 265 as a ‘“‘rule of broad applica-
bility,” the result could well be “‘that the rule is invali-
dated, not simply that the court forbids its application to
a particular individual.’”’ Jd. 110 S.Ct. at 3201 (Blackmun,
J., dissenting).
As far as we can tell, neither the plaintiffs nor the
dissent fix upon any real inadequacy that has developed
or could be expected to develop in the administrative re-
cord of any of the plaintiffs for purposes of judicial review.
Apparently, none of the individual plaintiffs has gone
through the legalization process and none is subject to a
deportation order. To be sure, the plaintiffs suggest that
some aliens were denied an opportunity even to file their
applications for legalization. Were that the case, we would
agree that McNary would apply and the district court
would have had jurisdiction to order the INS’ local offices
to accept applications. (Indeed, the government’s initial
brief conceded as much.) Otherwise, an alien in that po-
sition would not have been able to develop any sort of
administrative record on which, if the government initiated
deportation proceedings and obtained a deportation order,
the alien could rely in the court of appeals. But that is
not this case; there was no evidence presented that any
aliens (much less any of the five individual alien plaintiffs)
were prevented from f''ing an application. See Ayuda, 880
F.2d at 1341-42. Some local INS offices may well have
told some section 265 claimants that if they applied (which
required a hefty $185 fee) the office would recommend
that legalization be denied. To the extent that occurred,
ll
16a
some aliens may have been discouraged or deterred from
filing, just as they would have been discouraged if a QDE
(or, for that matter, a lawyer) gave the same advice, but
that hardly suffices to give the district court jurisdiction
to preempt the INS and issue its own declaratory judg-
ment on the legal issue. The distinction between giving
advice on a difficult legal question—advice that may or
may not turn out to be wrong—and literally closing the
INS’ office doors in aliens’ faces—foreclosing judicial re-
view under the statutory scheme—is, under McNary, de-
cisive whether or not “subtle.’’ Dissent at 761 n. 3.
The dissent also argues—although plaintiffs never did—
that the INS’ prosecutorial discretion to decide when,
against whom, and in which circuit it should bring depor-
tation proceedings that would raise statutory interpreta-
tion questions gives the INS inappropriate power to control
judicial review. But that kind of authority is inherent in
prosecutorial discretion, and it is surely late in the day
for it to be challenged by a circuit judge. See Heckler v.
Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655, 84
L.Ed.2d 714 (1985) (‘‘This Court has recognized on several
occasions over many years that an agency’s decision not
to prosecute or enforce ... is a decision generally com-
mitted to an agency’s absolute discretion.’’). Our colleague
goes on to suggest in a footnote, see Dissent at 767-768
n. 8, that the government might actually refuse to deport
aliens who were denied legalization on disputable legal
grounds—even someone who requested deportation in or-
der to obtain judicial review—just to frustrate judicial re-
view. Of course, we have not seen a shred of evidence
that the INS has ever considered such a despicable course,
but even if it were to occur, we think that the McNary
exception would again apply. Aliens faced with that effort
to circumvent the plain congressional scheme by denying
them any meaningful judicial review could certainly rely
17a
on McNary to sue directly in district court.®
The only real argument that plaintiffs make to the effect
that the statute’s yudicial review procedure is inadequate
(besides that it is burdensome) is that aliens would have
to come forward, lose anonymity, and risk deportation in
order to obtain judicial review of an INS statutory inter-
pretation that governed legalization determinations. It is
important to recognize in this regard that under the Sta-
tutory scheme, aliens run no risk when applying for le-
galization because the INS may not use any information
* The dissent cites two recent Ninth Circuit cases, Campos v. Nail,
940 F.2d 495 (9th Cir. 1991), and El Rescate Legal Servs., Inc. v.
Executive Office of Immigration Review, 941 F.2d 950 (9th Cir.1991),
as support for district court jurisdiction over this case. See Dissent at
766-767 & n. 7. Each of those cases, however, involved not IRCA but
rather section 106 of the INA, 8 U.S.C. § 1105a. See Campos, 940 F.2d
at 497; El Rescate, 941 F.2d at 953. As we discussed in our prior
opinion, the question “whether there is a ‘program’ exception to section
106{] for constitutional and statutory claims’’ raised before the initiation
of deportation proceedings remains open in this circuit. Ayuda, 880
F.2d at 1335-37. We noted, however, that although the judicial review
provision of IRCA incorporates the machinery of section 106, it also
expressly provides that an alien may seek judicial review of a denial
of legalization only in the context of a section 106 proceeding. See 8
U.S.C. § 1255a(f4\a). Whatever the reach of the McNary exception
regarding IRCA cases, then, it might well be broader with respect to
non-IRCA immigration cases. See Ayuda, 880 F.2d at 1337-38. Indeed,
the El Rescate court did not even cite McNary.
In any event, we think that the results—if not the reasoning—of
Campos and El Rescate are consistent with our reading of McNary.
Campos involved an Immigration Judge (IJ) who continued, despite two
reversals by the court of appeals, to employ a blanket practice of
denying venue changes to aliens faced with deportation proceedings.
The Ninth Circuit determined that it could not effectively control the
“rogue’’ IJ through judicial review of individual deportation orders, so
it upheld the district court’s jurisdiction to enjoin the IJ’s misbehavior
and to require him to consider the individual merits of the aliens’
requests. El Rescate involved an INS practice of providing incompetent
and incomplete interpretation to aliens during immigration court hear-
ings—one of the very practices at issue in McNary.
ae
18a
gained through the application or the administrative re-
view of the application to initiate or prosecute a depor-
tation proceeding against the alien. See 8 U.S.C.
§ 1255a(c\(5). Still, a denial of legalization surely causes
some injury and the only way under the statute that an
alien can challenge the denial is to provoke a deportation
proceeding. The Supreme Court did say that ‘“‘that price
is tantamount to a complete denial of judicial review for
most undocumented aliens,’ McNary, 111 S.Ct. at 898,
but we do not see how that observation could be extended
to the holding in the case. If it were, even an individual
alien could sue in federal district court at any point prior
to a deportation order to challenge any action of the INS
that bore on his legalization and to obtain a judicial opinion
that would make the INS’ decision on his actual application
a mere formality. That would make a hash of the legis-
lative scheme, which envisioned an alien not only coming
forward (and losing anonymity) but also becoming the sub-
ject of an actual deportation order as prerequisites to ju-
dicial review. See id. at 898.’ Judge Wald contends,
however, that aliens should have the right to bring “‘test
cases’ in federal district court so that they could know
whether their applications would ultimately lead to legal-
ization before the statutory period for filing applications
expired. See Dissent at 765. The short and complete an-
swer to this contention, in our view, is that Judge Wald’s
desired statute is not the one Congress enacted.
It certainly can be argued as a matter of policy that
Congress should not have put aliens whose applications are
7 It is also not apparent why even a preemptive suit would necessarily
preserve an alien plaintiff's anonymity. See generally 2A J. Moore, J.
Lucus & G. GROTHEER, JR., MOORE’S FEDERAL PR CcTICE 10.02, at
10-6 to 10-8 (1991) (discussing the general presumption against the use
of fictitious names for plaintiffs except where a ‘‘threat of actual phys-
ical harm’’ or a “strong privacy interest’ is at stake); Hotel & Res-
taurant Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1518
(D.C.Cir.1988) (opinion of Silberman, J.) (noting problems in analyzing
standing and ripeness when plaintiffs are not identified).
19a
denied to the difficult choice of either courting deportation
or not seeking judicial review. See generally Kanstroom,
Judicial Review of Amnesty Denials: Must Aliens Bet Their
Lives to Get Into Court?, 25 Harv. C.R.C.L.L.REv. 53
(1990)." But Congress did, and “i]t is not our task to make
an imperfect statute perfect.’’ Central Vermont Ry. v.
Brotherhood of Maintenance of Way Employees, 793 F.2d
1298, 1303 (D.C.Cir.1986). In Ringer, it was also argued
that the statutory exhaustion requirement (jurisdictional,
not waivable) could deprive a claimant of meaningful ad-
ministrative and judicial review because he might not be
able to afford an operation for which a reimbursement
claim would be made—and his doctor might not be willing
to assume the risk of nonpayment by the government. That
concern, expressed in the dissenting opinion, led the
Court’s majority to respond that “Congress ... surely
could have provided a scheme whereby claimants could
obtain declaratory judgments about their entitlements to
benefits. ...’’ Ringer, 466 U.S. at 625, 104 S.Ct. at 2027.
Similarly, here Congress could have provided for a dec-
laratory judgment procedure to ascertain an alien’s enti-
tlement to legalization, or at least for direct review of a
denial of legalization. But Congress did not, and we do
not read McNary to say otherwise.
Essentially, the analytical difficulty with plaintiffs’ po-
sition and, with all due respect, the flaw in our dissenting
colleague’s reasoning, lie in an inability to describe those
situations not covered by the McNary exception to IRCA’s
judicial review procedures. The dissent, for instance, tells
us that anyone--even an individual alien—may seek a dec-
laratory judgment or injunction interfering with the INS’
administration of IRCA simply by framing the challenge
as “directed at a general policy and not an individualized
determination,” Dissent at 763 n. 4—something any com-
* The plaintiffs do not argue that the statutory judicial review scheme
itself violates their constitutional rights.
20a
petent lawyer could surely do. As such, the dissent runs
afoul of the same problem the dissenters in Ringer en-
countered, that the exception would inevitably swallow the
rule. See Ringer, 466 U.S. at 625-26, 104 S.Ct. at 2027-
28; see also supra note 5. We therefore do not think Judge
Wald’s approach is a fair interpretation of the Supreme
Court’s opinion in McNary; the Court thought that Con-
gress created an implied exception to the restrictive ju-
dicial review of legalization denials—on review of
deportation orders in the courts of appeals—only for those
cases in which, for structural reasons, court of appeals
review would be inadequate.
If McNary were not read as focused on the structural
inadequacy of court of appeals review of the collateral
constitutional claims presented in that case, we would cre-
ate a hopeless jumble of confusion as to which IRCA cases
come to the district court and which to the courts of
appeals. The dissent does not, and in our view could not,
contend that should a case come to us or any other court
of appeals on an appeal from a deportation order raising
the section 265 claim, we would have any difficulty in
examining the INS’ interpretation of the statute—in other
words, reviewing the case. Judge Wald’s reading of
McNary, accordingly, runs squarely against (without any
explanation) an important principle governing judicial re-
view of agency action: the same question may not be
brought into either the court of appeals or the district
court at the litigant’s pleasure. See Ayuda, 880 F.2d at
1333; Telecommunications Research & Action Center v.
FCC, 750 F.2d 70, 77-79 (D.C.Cir.1984) (TRAC).
In sum, we believe McNary holds that if the statutory
administrative and judicial review scheme provides mean-
ingful court of appeals review of an alien’s legal claim,
then Congress intended that scheme to be exclusive—oust-
ing the district court of jurisdiction to hear the sort of
claim at issue here. It is only when a collateral issue,
typically a procedural practice, cannot be adequately pre-
2la
sented to the courts of appeals that the exclusivity of
section 1255a(f(1) gives way. We do not dispute the ‘‘well-
settled presumption favoring interpretations of statutes
that allow judicial review of administrative action.”’
McNary, 111 S.Ct. at 898. Plaintiffs’ claims will receive
full judicial review--but only after exhaustion of the ad-
ministrative process that Congress provided and only in
the court that Congress provided.’
‘In the best of all worlds, immediate judicial access
for all of these parties might be desirable. But Con-
gress, in [the statute], struck a different balance, re-
fusing declaratory relief and _ requiring that
administrative remedies be exhausted before judicial
review of the Secretary’s decisions takes place. Con-
gress must have felt that cases of individual hardship
resulting from delays in the administrative process
had to be balanced against the potential for overly
casual or premature judicial intervention in an ad-
ministrative system that processes literally millions of
claims every year. [footnote omitted]. If the balance
is to be struck anew, the decision must come from
Congress and not from this Court.
Ringer, 466 U.S. at 627, 104 S.Ct. at 2028.
D.
Our original opinion in this case rested on alternative
holdings, both jurisdictional in character. We concluded
* The dissent’s invocation of Bowen v. Michigan Academy of Family
Practitioners, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986),
misses the mark. As we noted in our original opinion, see Ayuda, 880
F.2d at 1336-37 n. 11, Michigan Academy dealt with whether Congress
had intended to preclude all judicial review of certain Medicare claims,
not, as here, with whether the vourts must respect the scheme of
judicial review that Congress specifically provided. Our prior opinion
also explained why Jnternational Union, UAW v. Brock, 477 U.S. 274,
106 S.Ct. 2523, 91 L.Ed.2d 228 (1986), relied on by plaintiffs then and
by the dissent now, see Dissent at 768-69, is inapposite. See Ayuda,
880 F.2d at 1338.
eee
that the INS “policy” that plaintiffs sought to attack had
not been adopted or applied by the agency in a definitive
enough fashion, if at all, to permit judicial review—even
assuming the district court had jurisdiction to hear the
claim. Ayuda, 880 F.2d at 1341-46. We see nothing in
McNary that impacts at all on our finality and ripeness
alternative holding.
To be sure, subsection 1255a(f), on which our jurisdiction
discussion centers, is a statutory provision that does two
things. It requires exhaustion of administrative procedures
before going to any court, and it limits review of admin-
istrative determinations that are or could be decided in
that process to the courts of appeals. Exhaustion, as a
doctrine of administrative law, overlaps with ripeness and
finality. See generally Ticor Title Ins. Co. v. FTC, 814
F.2d 731 (D.C.Cir.1987). All three are designed, in part,
to permit an agency of the “&xecutive Branch to decide
issues of administrative law fully before a court intervenes.
Insofar as McNary concluded that section 1160(e) did not
bar collateral challenges to unconstitutional procedures
adopted by the INS in processing applications, it deter-
mined that Congress did not intend that section to require
ethaustion of administrative procedures with regard to
those claims. But that, as we have discussed, was because
those issues could not be adequately addressed in the courts
of appeals since the record compiled in the administrative
process was inadequate. Under those circumstances, the
Court did not believe that Congress intended that those
sorts of issues had to be fully litigated through an ad-
ministrative process that was not really equipped to deal
with a constitutional challenge to the agency’s practices
and procedures. The issues litigated in McNary were also
clearly final and ripe for judicial review as collateral chal-
lenges to the agency’s undisputed systemic practices. See
McNary, 111 S.Ct. at 895. The McNary plaintiffs’ claims
did not ask the district court to preempt the INS’ efforts
23a
to interpret IRCA’s ambiguous provisions; the Ayuda
plaintiffs’ claims do.
In our original opinion we discussed at length why we
thought the section 265 issue presented to the district
court was not final or ripe (our ripeness discussion in-
cluded, of course, a hardship analysis). After examining
McNary, we stand by our views on that question. See
Ayuda, 880 F.2d at 1341-46. Judge Wald, however, aban-
dons her original position, see Ayuda, 880 F.2d at 1362-
64 (Wald, C.J., dissenting) (‘[T]he INS had a formal, final
policy on § 265 violators. ...’’), and now agrees that the
INS had “not yet articulated the agency’s policy with re-
gard to § 265 IRCA applicants’—had not yet acted—but
contends nevertheless that the case was “‘ripe” for judicial —
“review’’ because of the severe hardship that the-plaintiff
aliens would otherwise suffer. Dissent at 769-770. We sim-
ply do not understand how the district court could be
thought to have authority to ‘‘review’’ actions or positions
not yet taken by an agency. To be sure, under the Ad-
ministrative Procedure Act (APA), judicial review is avail-
able to determine whether agency action has been
“unlawfully withheid or unreasonably delayed.” 5 U.S.C.
§ 706(1). See Public Citizen Health Research Group v. Com-
missioner, FDA, 740 F.2d 21, 32 (D.C.Cir. 1984). But the
plaintiffs have never claimed that the INS was dilatory or
in any way unreasonably delayed action. On the contrary,
the agency seems to have been moving with alacrity to
process applicants during the statutory window period.
Moreover, as we noted in our previous opinion, the INS
was not obliged, nor could it reasonably have been ex-
pected, to announce in advance of the receipt of applica-
tions ~its position on all the many, perhaps infinite,
variations of legal issues that could arise in the interpre-
tation of IRCA. See Ayuda, 880 F.2d at 1332-33. Indeed,
as we also noted, Congress did not direct the agency to
issue any regulations (with one exception not relevant here)
that would set forth the agency’s interpretations of the
24a
‘
statute, so it can be assumed that Congress expected those
interpretations would issue in case-by-case legalization de-
terminations. See id. The agency, by issuing a regulation
when it did not have to do so, attracted this litigation.
But that regulation did not, as Judge Wald now agrees,
resolve the question raised by the section 265 claimants.
See id. at 1342-43. We therefore do not see how the cause
of action created by the APA, authorizing judicial inter-
vention when an agency unreasonably delays action, has
anything to do with this case—much less cures its juris-
dictional defects. See TRAC, 750 F.2d at 76 (“APA
(§ 706(1)] unquestionably does not confer an independent
grant of jurisdiction. .. .”’). The case was not ripe nor was
the agency’s action final.
Nor do we understand how the All Writs Act, 28 U.S.C.
§ 165l(a), could have provided authority to the district
court to have issued its extraordinary orders. In the first
place, the Act was not relied upon as a basis for relief
by either the plaintiffs or the district judge. Even more
important, however, it can never provide jurisdiction to a
court that does not and would not otherwise have juris-
diction. See TRAC, 750 F.2d at 76 (‘‘{I]t is firmly estab-
lished that section 1651 does not expand the jurisdiction
of a court. ...”); see also id. at 77 & n. 33 (‘‘Because the
District Court has no present or future jurisdiction over
agency actions assigned by statute to appellate court re-
view, it can contemplate no exercise of jurisdiction that
mandamus might aid.”). This court did, in the TRAC case,
use the All Writs Act to protect our prospective appellate
jurisdiction. But, we did so only to protect our jurisdiction
to review final FCC agency action against encroachment
by the district court. See id. at 76-77. It seems then that
the only arguably appropriate use of the Act in this case
would have been at the instance of the government against
the plaintiffs to protect our appellate jurisdiction.
If we understand our dissenting colleague, she contends
that the district court could do the reverse—issue an order
25a
effectively preventing the court of appeals from gaining
jurisdiction over a claim that the district court wished to
adjudicate. That would seem to be the effect of the court’s
order “‘enjoin{fing the INS] from denying legalization’’ to
section 265 claimants, since it clearly preempts the gov-
ernment from denying legalization, issuing a deportation
order, and defending the denial in the court of appeals in
accordance with the statutory scheme. We think Judge
Wald’s argument is premised on a rather peculiar view of
the interrelationship of the two courts and is, in any event,
a misreading of TRAC. We did not, in that case, take
jurisdiction of the underlying agency proceeding; we simply
prevented the district court from interfering with a case
that could eventually come to the court of appeals. Here,
the dissent—although not the plaintiffs or the district
judge—would have the district court use the All Writs Act
in an entirely unprecedented way, allowing the district
court to become, in effect, the temporary administrator or
overseer of this portion of IRCA. That is not permissible.
As we have explained, even if the McNary exception ap-
plied to this case, the district court still lacked jurisdiction
to issue its order directing the INS to act on the section
265 issue because the agency’s “‘policy’’ on that issue had
not crystallized to the point of finality and ripeness. Surely
a district court may not use the All Writs Act to exercise
jurisdiction over an agency (rather than against an en-
croaching court) before a case is ripe or the agency’s action
is final. Otherwise, district courts could easily circumvent
those jurisdictional bars.
It may well be that some aliens suffered harm by not
filing applications for legalization during the one-year grace
period. That would be so, of course, only if they were
section 265 claimants who were dissuaded from applying
because they did not believe they could establish that they
had widifully failed to file the section 265 quarterly reports
or, even if they could, that that would not prove their
illegal status was “known” to the government, see Ayuda,
26a
880 F.2d at 1344-45—and that it will ultimately turn out
that they were wrong. That would certainly be regrettable,
even sad, but it is not apparent to us who bears the blame.
The Congress provided a risk-free method of filing legal-
ization applications. Any undocumented alien who had a
plausible claim to legalization should have at least filed a
timely application. Everyone in our society bears the risk
of getting bad legal advice. And we all also bear the risk
of relying on an incorrect district court judgment.
Ayuda II
A.
There was not much time left before the May 4, 1988,
statutory deadline for legalization applications when the
district court issued its orders interpreting ‘‘known to the
Government”; in the case of the section 265 applicants,
there were only two days remaining. Just before the grace
period was to expire, the plaintiffs moved to toll the dead-
line for the aliens affected by the court’s orders. On May
4, the district court ostensibly denied this request but
nevertheless retained jurisdiction to provide “‘relief’’ to al-
iens who missed the deadline because the INS had ‘“‘dis-
suaded”’ them from applying. Ayuda, Inc. v. Meese, 687
F.Supp. at 669-70. About a month later, the court ordered
the INS to undertake a publicity campaign asking aliens
who had not filed before the deadline to send a statement
detailing their reasons for not filing and their eligibility
for legalization to the plaintiffs’ counsel. See id. at 671-
74.
The government soon moved to vacate this order on the
authority of the Supreme Court’s intervening decision in
INS v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100
L.Ed.2d 882 (1988), which, the government argued, pre-
cludes courts from extending or otherwise disregarding a
statutory deadline. The district court initially decided that
Pangilinan did prevent it from extending the deadline, but
ae
27a
then held that decision—as well as its earlier decision to
deny plaintiffs’ motion to toll the deadline—‘‘in abeyance”
and appointed special masters to determine whether any
aliens had in fact been dissuaded from applying because
of misinformation received from the INS and whether those
aliens could otherwise make out a prima facie case of
eligibility for legalization. Ayuda, Inc. v. Meese, 700 F.Supp.
49, 51-53 (D.D.C.1988). This court denied the government’s
effort to obtain a writ of mandamus directing the district
court to withdraw its appointments, see In re Thornburgh,
869 F.2d 1503 (D.C.Cir.1989), but when we then held in
Ayuda that the district court lacked jurisdiction over the
entire matter, the district court stayed most—but not all—
of the proceedings involving the special masters.
After filing a petition for certiorari in Ayuda, the
plaintiffs asked the district court to order the INS to pro-
vide interim relief, including work authorizations, to aliens
who the plaintiff organizations decided had been dissuaded
from applying and were eligible for legalization. Notwith-
standing that under the law of this circuit he had no ju-
risdiction to hear any aspect of this case, the district judge
granted the requested injunction ‘‘pending a final dispo-
sition by the United States Supreme court of Ayuda, Inc.
v. Thornburgh ... and further Order of this Court.” Ayuda,
Inc. v. Thornburgh, 744 F.Supp. 21, 22 (D.D.C.1990). We
granted the government’s motion for a stay of that pre-
liminary injunction, see Ayuda, Inc. v. Thornburgh, 919
F.2d 153 (D.C.Cir.1990), and now consider the govern-
ment’s appeal.'°
‘ The dissent argues that this appeal is moot because there has been
‘a final disposition by the United States Supreme Court of Ayuda’’
and because the order’s language regarding a “further Order of this
Court” is mere “‘boiler-plate” since ‘‘only the issuing court can vacate
its own Order.”’ Dissent at 771-772 & n. 15. The Supreme Court has
indeed disposed of Ayuda, but there is no indication whatsoever that
the district court had ‘‘vacate{d] its own Order.”” We cannot glibly
presume that the interim relief ‘“‘has come to an end,”’ Dissent at 772;
the issue thus remains properly before us.
28a
B.
The propriety of interim injunctive relief turns on four
familiar factors: (1) the plaintiffs’ likelihood of success on
the merits; (2) the threat of irreparable harm to the
plaintiffs if interim relief is denied; (3) the threat of sub-
stantial harm to others if the relief is granted; and (4) the
public interest. See, ¢.g., Ambach v. Beil, 686 F.2d 974,
979 (D.C.Cir.1982) (per curiam). We normally review the
district court’s balancing of these factors for abuse of dis-
cretion. See, e.g., Foundation on Economic Trends v. Heck-
ler, 756 F.2d 143, 151 (D.C.Cir.1985). But we do not afford
deference when the appeal presents a substantial argument
that the trial court’s decision was premised upon an er-
roneous legal conclusion. See id. at 152; Ambach, 686 F.2d
at 979-80; see also Delaware & H. Ry. v. United Transp.
Union, 450 F.2d 603, 620 (D.C.Cir.), cert. denied, 403 U.S.
911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971) (such legal
premises are “reviewable fully and de novo’). Indeed, this
Court has held that “‘substantial doubt’”’ as to district court
jurisdiction provides a basis for suspending a preliminary
injunction. See Southern Ry. v. Brotherhood of Locomotive
Firemen, 384 F.2d 323, 326 (D.C.Cir.1967) (per curiam).
This appeal, of course, does raise serious questions con-
cerning the district court’s power to order the INS to
grant work authorizations to aliens who did not tender
legalization applications before the statutory deadline. We
conclude, on two separate grounds, that the district court
lacked jurisdiction to issue such an order. |
C.
Drawing upon the same analysis we developed in the
first part of this opinion, we do not think that the district
court’s exercise of authority in this ancillary proceeding
was any more authorized by the McNary exception to
IRCA’s statutory review procedures than it was in Ayuda
I. We do not view this case as a “‘collateral’’ challenge to
29a
-
an INS practice or procedure. Instead, we agree with the
government that a “‘[t]imely application”’ is one of the four
congressionally mandated substantive eligibility “‘require-
ments,” see 8 U.S.C. § 1255a(a)\1)-(4), for entitlement to
legalization and work authorization for undocumented non-
immigrant aliens. See id. § 1255a(e\(2); see also Perales v.
Thornburgh, 762 F.Supp. 1036, 1067 (S.D.N.Y.1991). The
timeliness of an alien’s application, therefore, contributes
to the ultimate determination of the merits of his appli-
cation no less than the other criteria listed in the statute.
For aliens whose applications satisfy those other criteria
so that they could present an otherwise “prima facie ap-
plication for adjustment of status,” 8 U.S.C. § 1255a(e)(2),
success in this action ‘‘would have-the practical effect of
also deciding their claims for benefits on the merits,”
rather than merely reopening their files for reconsideration
in light of new procedural protections. McNary, 111 S.Ct.
at 897; see also Ringer, 466 U.S. at 614, 104 S.Ct. at
2021.
The review process established in section 1255a(f), more-
over, appears entirely able to address plaintiffs’ challenges
(assuming judicial review of plaintiffs’ claims is available
at all, see infra Part II-D). See Ringer, 466 U.S. at 617,
104 S.Ct. at 2022-23; cf McNary, 111 S.Ct. at 898. We
see no reason why the courts of appeals would encounter
any unusual difficulty in considering the propriety of the
INS’ interpretation of section 1255a to allow or disallow
late or ‘“‘constructive”’ filings. Nor have plaintiffs argued
that the fact-finding capabilities of the district court are
essential because the administrative process would not pro-
duce a record that would allow meaningful judicial review
of their claims. Cf. McNary, 111 S.Ct. at 896, 898-99. And
the courts of appeals are clearly able to afford plaintiffs
whatever relief—legal or equitable—their claims merit.
In short, plaintiffs cannot establish district court juris-
diction simply by presenting their claims as a group and
refusing to file the individual applications that would allow
30a
the administrative process to operate. Limiting the aliens
in this case to the congressionally established review proc-
ess is appropriate because it would not constitute ‘“‘the
practical equivalent of a total denial of judicial review.”’
Id. at 899. And, as we decided before, the statute will not
allow the organizational plaintiffs a broader opportunity
than that of the aliens whom they assist to obtain district
court declaratory judgments controlling the INS’ treat-
ment of those aliens. See Ayuda, 880 F.2d at 1339-40.
D.
Even if the plaintiffs had presented a claim that fell
within the McNary exception, we would reach the same
result because a separate jurisdictional limitation in this
section of IRCA unequivocally bars the district court’s ju-
risdiction. In addition to providing the administrative and
judicial review structure at issue in McNary and Ayuda
I, section 1255a also directs that ‘‘[nJo denial of adjustment
of status under this section based on a late filing of an
application for such adjustment may be reviewed by a
court of the United States or of any State or reviewed in
any administrative proceeding of the United States Gov-
ernment.” 8 U.S.C. § 1255a(f2). This provision, which is
not included in the statutory review provisions considered
in McNary" and which emphasizes the congressional intent
that the amnesty period come to an end as scheduled,
could not in our opinion indicate more plainly that the
district court has no power to order the INS to grant
work authorizations to aliens who failed to file applications
on time. Despite the government’s repeated reference to
this provision, which speaks directly to the district court’s
jurisdiction over this case, plaintiffs’ brief does not attempt
‘In fact, 8 U.S.C. § 1255a(f2) is the only part of the review sub-
section at issue in the Ayuda cases, see id. § 1255a(f1)44), that is not
duplicated in the review subsection at issue in McNary, see id.
§ 1160(eX1){3).
3la
to explain why this language does not constitute a separate
bar to this proceeding. That, as the dissent argues, Dissent
at 773, there have not yet been actual “‘denial[s]’’ due to
late filing because the plaintiff aliens preempted admin-
istrative action by filing in district court cannot defeat this
bar; otherwise, aliens who missed the deadline could cir-
cumvent Congress’ clear purpose of preventing them from
coming to court after losing before the INS on this issue
simply by going to court before filing with the agency.
See McNary, 111 S.Ct. at 898 n. 13; Ringer, 466 U.S. at
621, 104 S.Ct. at 2024-25. Therefore, that we cannot know
for certain whether the INS will reject these applications
is wholly irrelevant.
The ‘‘well-settled presumption favoring interpretations
of statutes that allow judicial review of administrative ac-
tion,’ McNary, 111 S.Ct. at 898; see also Bowen v. Mich-
igan Academy of Family Physicians, 476 U.S. 667, 670-
73, 106 S.Ct. 2133, 2135-37, 90 L.Ed.2d 623 (1986), is, of
course, just that—a presumption—and it can be overcome
by a sufficiently clear congressional directive. See Bowen,
476 U.S. at-673, 106 S.Ct. at 2137; Block v. Community
Nutrition Inst., 467 U.S. at 349, 351, 104 S.Ct. at 2455,
2456.” It is difficult to see how Congress could have made
‘ To be sure, elimination of judicial review over constitutional claims
presents a serious constitutional question and the presumption in that
context may therefore be more difficult to overcome. See, e.g., Webster
v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632
(1988); Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1168-
69, 39 L.Ed.2d 389 (1974). Plaintiffs make mention of a ‘‘due process
theory’’ based on the idea that the government violated the Constitution
by affording ‘‘many Ayuda-eligible aliens ... no meaningful opportunity
to apply for legalization’”’ before the statutory deadline. P|.Br. at 30.
This is a conclusion, however, and not an argument—and it also seems
merely to restate the statutory issue in constitutional terms. Plaintiffs
do not explain why the ‘opportunity to apply for legalization’’ is a
constitutionally protected entitlement, nor—assuming it is, but see Lyng
v. Payne, 476 U.S. 926, 942, 106 S.Ct. 2333, 2343, 90 L.Ed.2d 921
(1986) (“We have never held that applicants for benefits, as distinct
any clearer its intention to prevent judicial intervention
into the INS’ enforcement of the application deadline; we
do not see a plausible alternative interpretation of the
language Congress used that would allow judicial review
in this case. Certainly this provision is far more explicit
in its preclusion of review than the statutes at issue in
eases such as Block, 467 U.S. at 348-52, 104 S.Ct. at 2455-
57, or Morris v. Gressette, 482 U.S. 491, 501-07, 97 S.Ct.
2411, 53 L.Ed.2d 506 (1977), which made no reference at
all to preclusion of review. And we are directed to nothing
in the legislative history that would lead us to a different
conclusion. Indeed, the legislative history seems to support
the plain language. We noted in our original opinion that:
Congress intended aliens to come forward during the
12-month eligibility period because “‘this is the first
call and the last call, a one shot deal.” 132 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.
Ayuda, 880 F.2d at 1333. Furthermore, in late April 1988,
with the deadline fast approaching, Congress refused to
extend the grace period, despite well-ventilated concerns
that last-minute court decisions had confused aliens. See
134 ConGc.REc. 9291-96 (1988).'*
from those already receiving them, have a legitimate claim of entitle-
ment protected by the Due Process Clause. ...’’)—why the plaintiffs
did not receive the process constitutionally due under the circumstances.
Furthermore, plaintiffs do not even hint that this ‘‘due process theory”’
acts to override Congress’ specific preclusion of judicial authority to
review late filings. Rather, plaintiffs’ theory is raised only in the context
of ‘‘distinguishing Pangilinan,” P|.Br. at 28, a case that involved ex-
tension of a statutory deadline rather than evasion of an express sta-
tutory bar to judicial review.
'* Plaintiffs cite Senator Grassley’s comments during the 1988 debate
as support for the idea of judicial power to disregard the deadline:
There may very well be equitable reasons to allow these individ-
33a
We hold that both 8 U.S.C. § 1255a(f)(1) and (f(2) deny
the district court jurisdiction to-order injunctive relief that
effectively eliminates the timely application requirement
for work authorization. We therefore do not reach the
government's remaining arguments.
Ayuda III
“A” and “‘G”’ nonimmigrant visas are provided to cer-
tain foreign diplomats, officials, representatives, and their
families and employees; the visas restrict the type of work
their holders may perform while in this country. See 8
U.S.C. §1101(aXxl5yA) & (G). Certain “A” and “G”’ vis-
aholders who had violated the work restrictions applied to
the INS for legalization, contending that the unauthorized
work made their presence unlawful and that the govern-
ment knew of their status. The INS denied the applications
on the ground that the claimants’ status was not unlawful
because the State Department had not revoked their visas.
Plaintiffs then sought to hold the INS in civil contempt
of the district court’s orders construing “known to the
Government”; the district court denied the motion.
Plaintiffs appealed, then asked our court to hold their
uals to apply [after the deadline]; but there is no doubt that the
courts are well equipped to evaluate equitable considerations.
Id. at 9295. But no other senator spoke in support of this conception
of judicial power, and Senator Simpson, among others, flatly rejected
such a view:
We asked the people to trust us and the trust was ‘‘Here it is.
It is 1 year.” ... “It is a one-time shot and here it is; one time
only.” That is what we expressed and that is what the people of
the United States know. .
... We have to have finality—and that is what we must produce
here, one way or the other—finality in the procedures; that this
is it and if you want to live the dream, here is your chance and
you do it by midnight, May 4, and that is it and it will never
come again.
Id. at 9293-94.
34a
appeal in abeyance pending further appellate review of our
first opinion in Ayuda; the government moved to dismiss,
arguing first that the district court’s ruling was not an
appealable final order and then, after the McNary decision,
that the district court had no jurisdiction over this matter.
The issue before us is thus both the district court’s juris-
diction to hear plaintiffs’ motion and our jurisdiction to
hear plaintiffs’ appeal, but not the merits of the motion."
In Ayuda I, however, we hold that the district court
was without jurisdiction to issue the orders of which the
INS is allegedly in contempt. We accordingly view this
appeal as moot. Civil contempt, unlike criminal contempt,
is imposed not to vindicate the authority of the court but
to enforce the rights deemed by the court as belonging
to the opposing party. See United States v. Spectro Foods
Corp., 544 F.2d 1175, 1182 (8d Cir.1976); 11 C. WRIGHT
& A. MILLER, FEDERAL PRACTICE AND PROCEDURE, Civil
§ 2960, at 583-87 (1973 & Supp. 1991). As we have con-
cluded that the district court had no power to determine
plaintiffs’ rights in this context, there is no longer a basis
for holding the government in civil contempt. See United
States v. United Mine Workers, 330 U.S. 258, 295, 67 S.Ct.
677, 696-97, 91 L.Ed. 884 (1947) (‘“‘The right to remedial
relief [for civil contempt] falls ... a fortiort when the
injunction ... was beyond the jurisdiction of the [district]
court.””); Spectro Foods, 544 F.2d at 1182 (collateral bar
rule inapplicable to civil contempt).
se #2 8H
We hold that the district court was without jurisdiction
to issue Supplemental Order V and to order interim in-
‘* It bears mention, however, that the visaholders’ complaint with the
INS seemingly has nothing whatsoever to do with the district court’s
orders—the visaholders are quarreling about the meaning of “unlawful
status,’’ whereas the court orders concern the meaning of “‘known to
the Government.” See Ayuda, Inc. v. Thornburgh, Civ. Action No. 88-
0625, slip op. at 3 & n. 1 (D.D.C. June 29, 1989).
35a
junctive relief in plaintiffs’ suit to extend the filing dead-
line. We also hold that plaintiffs’ appeal of the district
court’s denial of their motion to hold the government in
civil contempt is moot.
It 1s so ordered.
Dissenting Opinion of Circuit Judge Wald
WALD, Circuit Judge, dissencng:
In 1986, Congress passed an? the President signed land-
mark immigration legislation, the Immigration Reform and
Control Act (“IRCA”’ or “the Act’’). The Act was admit-
tedly pragmatic, a compromise that sought both to reduce
sharply illegal immigration and to provide amnesty for
those who, despite their illegal status, had remained in the
United States for many years.
To meet its first goal, Congress acted with authority
and certainty, and imposed stiff civil and criminal penalties
on employers of undocumented aliens in order to reduce
the incentives for illegal immigration. To meet its second
goal, Congress acted with a corresponding clemency and
humanity, acknowledging that although many undocu-
mented aliens ‘have become a part of their communities”
and ‘“‘have contributed to the United States in myriad
ways,” they “‘live in fear, afraid to seek help when their-
rights are violated, when they are victimized by criminals,
employers or landlords or when they become ill.’’ H.R.Rep.
No. 99-682, 99th Cong., 2d Sess., pt. 1, at 49 (1986), U.S.
Code Cong. & Admin.News 1986, pp. 5649, 5653. To those
aliens who had endured such fear for the longest time,
Congress offered amnesty.
IRCA’s amnesty program opened—briefly—a window of
opportunity for undocumented aliens. For one year, un-
documented aliens could come forward to find out if they
were eligible for iegalization. Much to its credit, Congress
|
36a
recognized that the shadow population of undocumented
aliens, long residing in constant fear of governmental au-
thority, would be deeply suspicious of the new amnesty
program, no matter how shining its promise. Therefore,
IRCA included several measures designed to allay these
fears and suspicions and to encourage aliens to apply for
legalization.’
The case before us involves this amnesty program. For
all of its procedural and institutional intricacies, it presents
a rudimentary question: when is a district court authorized
to hear challenges to the policies and practices adopted
by the INS in its administration of the amnesty program?
Fighting the words of the statute and the power of the
controlling Supreme Court decision, the majority answers
this question ‘almost never.’’ Through a crabbed reading
of the governing statute and case law, the majority has
transformed an unprecedented act of legislative clemency
into a “hall of trap doors and mirrcrs.’”
BACKGROUND
The entangled history of this case is not easily sum-
marized. Plaintiffs—both undocumented aliens and orga-
nizations that assist aliens—filed suit in district court
challenging the INS’ interpretation of 8 U.S.C.
§ 1255a(aX2\B). That section sets out as one of the re-
quirements for amnesty under the new program that “‘the
alien’s unlawful status was known to the Government as
of [January 1, 1982].’”’ The INS promulgated regulations
‘Congress required the Attorney General to disseminate widely in-
formation about the legalization program and the requirements for ob-
taining adjustment of status. 8 U.S.C. § 1255a(i). Congress also directed
the Attorney General to name as qualified designated entities (““QDEs’’)
community organizations with whom the aliens had friendly relations
to advise and assist aliens in the preparation of applications. /d.
§ 1255a(c\(2).
‘This phrase is borrowed from Daniel Kanstroom, Judicial Review
of Amnesty Denials, 25 Harv.C.R.-C.L.L.Rev. 53, 64 (1990).
37a
which defined ‘‘known to the government” as “known to
the INS.” See 8 C.F.R. § 245a.1(d) (1988). The plaintiffs
contended that this interpretation was too narrow and was
inconsistent with IRCA. The district court agreed, granted
declaratory and injunctive relief to the plaintiffs, vacated
the INS regulation, and promulgated several u:ders to
enforce its decision. Ayuda, Inc. v. Meese, 687 F.Supp.
650, (D.D.C.1988). The government did not appeal those
rulings.
The district court’s Supplemental Order I, issued on
April 6, 1988, stated, in relevant part:
In order to meet the statutory standard pursuant to
this Court’s March 30, 1988 Order, a nonimmigrant
alien must establish that prior to January 1, 1982,
documentation existed in one or more government
agencies so that . . . such documentation taken as a
whole would warrant the finding that the nonimmi-
grant alien’s status in the United States was unlawful.
Id. at 666 (emphasis supplied). This order triggered ques-
tions about the eligibility of a group of aliens that came
to be known as the “‘§ 265 aliens.’ Former § 265 of the
Immigration and Naturalization Act (“INA’’) required (un-
der penalty of deportation) nonimmigrant aliens to make
certain annual and quarterly filings. See 8 U.S.C. § 1305
(1976), amended by 8 U.S.C. § 1305 (1982). Apparently,
however, many nonimmigrant aliens failed to make such
filings.
Prior to the district court’s ruling, INS regulations made
clear that failure to file as required by § 265 did not
render an alien ‘‘known to the government.” In order to
be known to the government, ‘“‘the alien must have made
a clear statement or declaration to fanJother federal
agency” which then conveyed that information to the INS
or the INS itself must have made an “affirmative deter-
mination . . . that the alien was subject to deportation
proceedings.” 8 C.F.R. § 245a.1(d)1)-(2) (1988). However,
38a
the district court’s vacation of the INS regulation and its
issuance of Supplemental Order I removed the basis for
any presumption that § 265 aliens were not eligible for
amnesty. Under the Supplemental Order, it could quite
reasonably be argued that if ‘“‘such documentation taken
as a whole” included not only papers filed with the INS
but also the absence of required filings, then § 265 aliens
would fulfill the ‘‘known to the government’”’ requirement
for IRCA amnesty.
Armed with the Supplemental Order, § 265 aliens ap-
proached INS representatives but were advised not to ap-
ply for legalization, on the grounds that they did not meet
the “known to the government” requirement.’ Accord-
ingly, several organizations that assist § 265 aliens sought
to intervene in this suit in order to compel compliance
with and/or to modify the district court’s permanent in-
junction so as to clarify the eligibility of § 265 aliens. The
plaintiffs adopted the intervenors’ claims as their own and
the district court issued Supplemental Order V on May 2,
1988.
2 The majority's comment that there is no evidence that “the five
individual alien plaintiffs,’ Majority opinion (““Maj. op.’’) at 751, were
a turned away by the INS is irrelevant. The five individual aliens were
parties to the original lawsuit challenging the INS’ interpretation of
the term ‘“‘Government” in 8 U.S.C. § i1255a(aX2XB) not to the § 265
interventicn. Ayuda, Inc. v. Thornburgh, 880 F.2d 1325, 1827
(D.C.Cir.1989), vacated and remanded, _— U.S. —_, 111 S.Ct. 1068,
112 L.Ed.2d 1174 (1991). The § 265 intervenors were organizations that
did allege that aliens they counseled had been advised not to file. /d.
at 1328-29.
But beyond that, the majority admits that if low level INS officials
had refused outright to accept legalization applications for filing, the
district court could hear the suit. Maj. op. at 751. Even if the plaintiffs’
affidavits are read to allege active discouragement rather than outright
refusal to accept, this is a subtle distinction indeed, and one undoubtedly
lost on the illegal aliens involved, upon which to grant or deny juris-
diction to challenge the practice.
394
It is hereby ordered that INS shall be enjoined from
denying legalization to nonimmigrant aliens who con-
tend that they violated their nonimmigrant status prior
to January 1, 1982 by failing to comply with the man-
datory . . . registration requirements of Section 265
of the [INA], if INS determines that such aliens have
credibly established their willful violation of Section
265, and such aliens have also met all other applicable
conditions for legalization.
Ayuda, Inc., v. Meese, 687 F.Supp. at 668.
The government appealed this order and a divided panel
of this court reversed the district court. Ayuda, Inc. v.
Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), vacated and
remanded, __. U.S. ___ , 111 S.Ct. 1068, 112 L.Ed.2d 1174
(1991). The Supreme Court vacated the appellate opinion
for reconsideration in light of McNary v. Haitian Refugee
Center, Inc., __U.S. __, 111 S.Ct. 888, 112 L.Ed.2d 1005
(1991). It is this case—the government’s appeal from Sup-
plemental Order V—that, on remand, is the first of the
consolidated cases before us [hereinafter “Ayuda [’’]
But we are getting ahead of the story. By the time the
district court issued Supplemental Order V, the time limit
for applying for amnesty was effectively over: the Order
was issued May 2, 1988, and the filing window closed on
May 4, 1988. Recognizing this, the district court issued
Supplemental Order IX which established amnesty-appli-
cation procedures for persons who had failed to file by the
May 4, 1988 deadline and who could ‘“‘show [that] they
were misled directly or indirectly by the INS or its agents
- or not allowed to apply or dissuaded from applying
for legalization by INS or its agents.” Ayuda, Inc. v. Meese,
687 F.Supp. at 674. Supplemental Order IX was issued on
June 9, 1988, and allowed for such filings until August
31, 1988. Approximately 6,000 persons (including both
§ 265 aliens and aliens filing on other bases) made such
filings and the district court appointed a Special Master
40a
to evaluate the filings and to recommend possible reme-
dies. See Memorandum Opinion and Supplemental Order
XI (filed Sept. 27, 1988); and Supplemental Order XII (filed
Oct. 28, 1988). By this time, plaintiffs had filed a petition
for certiorari with the Supreme Court seeking review of
Ayuda I. In light of the circuit opinion in Ayuda I, the
district court felt compelled to stay the Special Master
proceedings, thereby leaving the 6,000 applicants in legal
limbo. In early 1990, the plaintiffs moved for an injunction
requiring the INS to provide temporary work authorization
to the 6,000 applicants. The applicants averred that they
had failed to file timely in reliance on advice from the
INS and that had they filed timely, they would have been
automatically entitled to temporary work authorization. See
8 U.S.C. § 1255a(aX(1), (eX2).
After an evidentiary hearing, the district court found
that the plaintiffs ‘‘are unable to obtain employment solely
because they lack the requisite work authorization’ and
“that this inability has made it impossible for them to
provide adequate food and shelter for themselves and their
families.” Ayuda, Inc. v. Thornburgh, 744 F.Supp. 21, 22
(D.D.C.1990). The court also noted that the INS had re-
quested that the Solicitor General hold in abeyance the
petition for certiorari in Ayuda I and that the Court had
apparently acceded. The district court concluded that “i]t
is inequitable for [the INS] to . . . delay adjudication of
plaintiffs’ rights without affording plaintiffs a modicum of
interim relief.” Jd. For those reasons, the court issued
Supplemental Order XIV which
ordered that, pending a final disposition by the United
States Supreme Court of [Ayuda J], and further Order
of this Court, the Defendant Immigration and Natu-
ralization Service shall grant work authorization to
those aliens who have been deemed eligible . . .
through plaintiffs’ prescreening process, with the un-
derstanding that defendants may contest before this
Court any determination of individual eligibility.
4la
Td.
The government sought, and a divided panel of this
court granted, a stay of Supplemental Order XIV. Ayuda,
Inc. v. Thornburgh, 919 F.2d 153 (D.C.Cir.1990). Although
Ayuda I was vacated by the Supreme Court on February
25, 1991, the appeal from Supplemental Order XIV _ re-
mains before us as the second of our consolidated cases
(hereinafter “Ayuda IT’).
AYUDA I. SUPPLEMENTAL ORDER V
I. Federal Question Jurisdiction
The initial question raised by Ayuda I is whether 8
U.S.C. § 1255a(f) precludes district court jurisdiction over
a challenge to a general policy of the INS involving the
eligibility of § 265 aliens for legalization under IRCA. |
believe that this question is answered clearly by the ex-
press language of § 1255a(f) itself, the structure of the
INA, and, most importantly, by the Supreme Court’s con-
trolling interpretation of an identical provision in McNary.
These sources demonstrate that § 1255a(f) does not bar
district court jurisdiction over collateral challenges to gen-
eral policies and practices of the INS which are employed
in the determination of individual applications.
A.
IRCA established two amnesty programs: a legalization
program (at issue in this case) for persons who had con-
tinuously and unlawfully resided in the United States for
a specified period and a Special Agricultural Workers
(“SAW”’) program granting amnesty to alien farmworkers
who met specified criteria. In McNary, organizations rep-
resenting SAW applicants and a class of alien farmworkers
challenged certain INS practices employed in processing
individual applications as unconstitutional and in violation
of IRCA. The government argued that 8 U.S.C. § 1160/e)
424
precluded the district court from hearing the plaintiffs’
challenge and that, pursuant to § 1160(eX3\A), the
plaintiffs could only secure judicial review of their claims
if a nonimmigrant alien were subject to “an order of ex-
clusion or deportation,” which was, in turn, subject to
review in a circuit court of appeals. The district court, the
Court of Appeals for the Eleventh Circuit, and finally the
Supreme Court rejected the government's argument.
The Supreme Court began its analysis with the plain
language of the statute. Although § 1160(e\3) provides
that ‘“‘{t]here shall be judicial review of such a denial only
in the judicial review of an order of exclusion or depor-
tation,” the Court noted that ‘such a denial” referred to
“a determination respecting an application for adjustment
of status.” See 8 U.S.C. § 1160(eX1Xemphasis supplied).
“Significantly,” the Court stated, ‘‘the reference to ‘a de-
termination’ describes a single act rather than a group of
decisions or a practice or procedure.” 111 S.Ct. at 896
(emphasis supplied). Accordingly, the Court embraced the
lower courts’ “reading of [§ 1160(e)] as describing the
process of direct review of individual denials of SAW sta-
tus, rather than as referring to general collateral chal-
lenges to unconstitutional practices and policies used by
the agency in processing applications.” Jd. (emphasis sup-
plied). Thus, the Court concluded, § 1160(e) did not
supersede the district court’s general federal question Ju-
risdiction.*
‘My colleagues complain that neither the petitioners nor I delineate
what kind of challenges are not covered by McNary under our inter-
pretation. Maj. op. at 753. The short answer is that McNary says that
any suit that might be prosecuted under general federal question ju-
risdiction in district court if § 210(e), or its counterpart here, see infra
p. 764, did not exist may still be prosecuted so long as it is directed
at a general policy and not an individualized determination:
(W]e hold that § 210(e) applies only to review of denials of in-
dividual SAW applications. Because respondents’ action does not
43a
The Court found further support for that conclusion in
the INA’s provisions concerning the scope and standard
of judicial review. Section 1160(eX3)B), which provides that
judicial review ‘‘shall be based solely upon the adminis-
trative record,” serves as further indication that, in lim-
iting judicial review in § 1160(e), Congress was concerned
not with the kind of claim before the Court in McNary,
but rather with district court review of individual amnesty
applications. Jd. Similarly, the Court observed that. the
statute provided that courts of appeals should review
§ 1160(e) cases for ‘tabuse of discretion.” See & U.S.C.
§ 1160(eX3\B). The Court found that “such a standard
does not apply to constitutional or statutory clavms, which
are reviewed de novo by the courts” but is instead the
alternative standard for “judicial review of an administra-
tive adjudication of the facts of an individual application.”
111 S.Ct. at 897 (emphasis supplied). Thus, the standard
of judicial review provided in the Act further supported
the Court’s holding that § 1160(e) “applies only to review
of denials of individual SAW applications.” Jd. (emphasis
supplied).°
seek review on the merits of a denial of a particular application,
the District Court's general federal question jurisdiction under 2%
U.S.C. $1331 to hear this action remains unimpaired by § 210(e).
McNary, 111 S.Ct. at 897.
*The majority's dismissal of the Court's reading of this provision of
the statute, Maj. op. at 74% n. 4, misses the point. Of course an ap-
pellate court can review for mistakes of law under an abuse of dis
cretion standard. That is not the issue. Rather, the question is whether
Congress intended by enacting this particular review provision to pre-
clude ordinary federa]l question review under § 1331 in the case of
challenges to the way in which the IRCA amnesty programs are being
administered. The McNary Court answered that question in the ney.
ative. Abuse of discretion review, the Court found, suggests that Con-
gress intended § 116(e), and thus § 1255a(f), to govern pnmanily judicial
review of the facts found in administrative adjudications of individua!
legalization applications.
44a
Finally, the Court completed its interpretative analysis
by emphasizing Congress’ use of narrow terms in
§ 1160(e). The Court compared § 1160(e)’s restriction of
“judicial review of a determination respecting an appli-
cation for adjustment of status’”’ with language elsewhere
in the INA which addressed judicial review of all causes
‘arising under” any of the provisions of a particular sub-
chapter and with another statute which governed review
‘‘on all questions of law and fact’”’ under a particular pro-
gram. Id. The Court concluded that “had Congress in-
tended the limited review provisions of § [1160(e)] of the
INA to encompass challenges to INS procedures and prac-
tices, it could easily have used broader statutory lan-
guage.” Id.
All of this leads ineluctably to the conclusion that the
Supreme Court’s analysis in McNary controls this case as
well. The judicial review provision in this case (§ 1255a(f))
is identical to § 1160(e). The two sections are sister pro-
visions in sister programs and, as the government itself
concedes, the identical provisions are entitled to identical
interpretations. Accordingly, it seems inevitable to me that
the judicial review restriction in § 1255a(f), like § 1160(e),
“applies only to review of denials of individual [amnesty]
applications.” Jd.
B.
The escape hatch from this conclusion for my colleagues
is the argument that Ayuda I is controlled by Heckler v.
Ringer, 466 U.S. 602, 104 S.Ct. 2018, 80 L.Ed.2d 622
(1984), a case in which the Supreme Court rejected a fed-
eral court challenge to the policy of the Secretary of Health
and Human Services as to payment of benefits under Part
A of the Medicare program. The McNary Court’s own
discussion of Ringer, however, drains that argument of all
its energy. Ringer involved different facts, different sta-
tutory language, and fundamentally different legislative
45a
goals. In the end, neither Ringer nor any other authority
provides an escape from McNary.
The plaintiffs in Ringer filed an action in federal district
court, invoking the court’s federal question jurisdiction (28
U.S.C. § 1331), to establish a right to Medicare reim-
pursement for a particular ieee of surgery. The governing
statute, however, precluded judicial review under § 1331
of ‘‘any claim arising under” the Medicare Act. 42 U.S.C.
§ 405(h) (emphasis supplied). The statute required all Med-
icare claimants to exhaust their administrative remedies
before seeking review in federal court. 42 U.S.C. § 405(g).
The Ringer Court predictably found that “it makes no
sense to construe the [plaintiffs’] claims . . . as anything
more than, at bottom, a claim that they should be paid
for their . . . surgery.” 466 U.S. at 614, 104 S.Ct. at
2021. Because such claims ‘“‘arise under’ the Medicare Act,
the Court held that the district court lacked federal ques-
tion jurisdiction to adjudicate plaintiffs’ claims. Plaintiffs
had to exhaust their administrative remedies pursuant to
42 U.S.C. § 405(g) before seeking review in federal court.
Id. at 626-27, 104 S.Ct. at 2027-28.
Additionally and critically, however, the Court found that
even though the Ringer plaintiffs would first have to ex-
haust their claims through the administrative review proc-
ess, these plaintiffs ‘‘clearly have an adequate remedy in
§ 405(g) for challenging [in federal court] all aspects of
the Secretary’s denial of their claims.” Jd. at 617, 104
S.Ct. at 2023.
1. Ringer and Ayuda I Involve Substantially Different
Statutory Language and Legislative Goals
The majority in this case argues that the Ayuda
plaintiffs’ federal court action is precluded by Ringer. A
careful reading of Ringer, however, demonstrates that it
is clearly distinguishable from Ayuda J. First, and most
significantly, the Ringer Court was interpreting a different
46a
statute than the one at issue here. The IRCA provision
limiting judicial review applies to “a determination re-
specting an application.”’ 8 U.S.C. § 1255a(f1). The review
provision in Ringer, in contrast, withdraws federal ques-
tion jurisdiction from “any claim arising under’’ the Med-
icare Act. 42 U.S.C. §405(:) (emphasis supplied). The
“arising under” language signals a far broader statutory
preclusion of ordinary federal question review than IRCA’s
parallel limitation of review over “a determination re-
specting an application.” Indeed, the Court in McNary
expressly noted this very difference, finaing that had Con-
gress intended § 1255a(f) to limit review of all INS pro-
cedures and practices it could have used broader statutory
language such as “‘‘all causes ... arising under any of
the provisions’ of the legalization program.” 111 S.Ct. at
897 (quoting 8 U.S.C. § 1329) (emphasis supplied).
Congress’ more expansive preclusion of federal question
jurisdiction under the Medicare Act than under IRCA is
reflected not only in the textual language but in the fun-
damentally different legislative goals of the two statutes.
As discussed above, Congress recognized that most aliens
trapped for years in an illegal status would be initially
distrustful of the legalization procedures in IRCA. By pro-
viding for a network of QDEs to offer aliens accurate and
confidential advice, by ensuring the confidentiality of all
application information, and by mandating widespread dis-
semination of legalization information, Congress structured
IRCA to minimize uncertainty and insofar as possible allay
the fears of potential applicants. Precluding federal ques-
tion review of all INS regulations or general practices
would run directly contrary to these statutory policies. For
it would mean that illegal aliens living in the shadows of
our society would be expected to come forth and identify
themselves as such, even though INS officials, by regu-
lation or policy, were telling them they were ineligible for
legalization and that the officials would recommend that
their applications be denied, and even though they would
47a
have no opportunity to challenge those policies except
through appeals from later deportation proceedings brought
against them. Furthermore, they would be required to wait
until after the statutory deadline for legalization had come
and gone to find out if their applications were in fact
denied, so that no “‘test’’ cases could be brought involving
individual cases. Moreover, the INS could effectively con-
trol any ultimate review of its legalization policies through
its discretionary authority to decide whether or not to
initiate the deportation proceedings which are the only
vehicle for judicial review. It is incredible to believe Con-
gress would have played such a shabby game of ‘seduce
and abandon”’ with the aliens it claimed to be benefitting.
In the Medicare Act, by contrast, Congress had no rea-
son to fear applicants would not file for reimbursement:
quite the opposite, its problem was to establish a_per-
manent and orderly process for the millions of claims it
anticipated would be filed every year. For tuat purpose,
it “set up a scheme that requires the presentation of a
concrete claim to the Secretary.”” Ringer, 466 U.S. at 625,
104 S.Ct. at 2027. The Medicare Act, according to the
Ringer Court, was intent on balancing the individual hard-
ship caused by uncertainty as to reimbursability “against
the potential for overly casual or premature judicial in-
tervention in an administrative system that processes lit-
erally millions of claims every year.’ Jd. at 627, 104 S.Ct.
at 2028. Congress’ foci in the two Acts was thus very
different: in IRCA to encourage legalization applications
to be filed within a very short time frame, in Medicare
to regulate their flow over the long haul. To bar the Ayuda
plaintiffs’ access to federal court on the authority of Ringer
ignores this fundamental difference between the Acts.*
* The majority’s assertion that permitting district court challenges to
generalized INS policies would ‘undercut Congress’ carefully crafted
scheme”’ for administering IRCA, Maj. op. at 749, 752 is thus off target.
While such challenges might undercut administration of the Medicare
)
48a
2. The Ayuda I Plaintiffs are Not Seeking a Sub-
stantive Declaration of Their Right to Legalization
The majority asserts that like the suit in Ringer, “this
lawsuit is an ... effort to adjudicate the plaintiff aliens’
ultimate eligibility for legalization” as opposed to “a col:
lateral challenge, the resolution of which does not neces-
sarily confer eiigibility."” Maj. op. at 749. I disagree. These
petitioners are not seeking an ultimate determination of
their eligibility for legalization, only a ruling that they
could not be turned away at the door because of an er-
roneous interpretation of the “known to the Government”’
requirement in the statute. What McNary said about the
petitioners there is true here as well.
(They] do not seek a substantive declaration that they
are entitled to SAW status. Nor would the fact that
they prevail on the merits ... have the effect of es-
tablishing their entitlement to SAW status. .. . [They]
would only be entitled to have their case files re-
opened and their applications reconsidered in light of
the newly prescribed INS procedures.
McNary, 111 S.Ct. at 898.
Bowen v. Michigan Academy of Family Physicians, 476
U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986), not
Ringer, is thus the most relevant precedent. In Bowen,
the Court permitted a district court challenge to a rule
governing the method by which Medicare benefits were
calculated, even though administrative appeais had been
mandated for individual reimbursement claims. The rule
barred reimbursement for non-Board certified physician
services, and that was also the disputed issue in plaintiffs’
individual claims. Certainly no less than in the case at
hand, a ruling for the plaintiffs would have gone a long
way toward “establishing their entitlement” to the benefit
Act, they affirmatively spport the efficient administration of the IRCA
legalization program.
49a
sought. Maj. op. at 749 (quoting McNary). But similarly,
just as individual plaintiffs in Bowen still had to meet many
additional requirements for Medicare reimbursement, the
Ayuda plaintiffs would have to meet the numerous other
requirements for legalization in the individual application
process. The mere circumstance that both the rule and an
individual determination might implicate the same legal
issue was not found determinative by the Bowen Court
when one attack is directed at a general interpretative
rule and the other at an individual’s eligibility for specific
benefits. The same result should govern here.
3. The Majority’s Ruling Ameunts to an Effective
Denial of Judicial Review for Any Substantive
Challenge to the Legalization Program
The majority argues, however, that the Ayuda plaintiffs,
like those in Ringer, will eventually attain meaningful ju-
dicial review upon completing the individual application
process, and so their situation is distinguishable from the
Bowen plaintiffs for whom all review had been cut off.
But this argument totally ignores the McNary Court’s own
dismissal of judicial review under IRCA as not only in-
effective for fearful applicants, but ineffectual as well for
remedying broad deficiencies in program administration.
The McNary Court found that in a pattern and practice
action appellate review of an individual SAW application
would do little or nothing to illuminate the allegedly illegal
pattern of practice. An appellate court, it said, needs the
factfinding capability of a district court to effectively ad-
judicate such claims. 111 S.Ct. at 898-99. Since McNary,
the Ninth Circuit has picked up on this theme to find
district court jurisdiction for a challenge to the pattern
and practice of an Immigration Judge (“IJ”) in rejecting
applications. In Campos v. Nail, 940 F.2d 495 (9th
Cir.1991), the court permitted a direct federal court chal-
lenge to an IJ’s practice of rejecting all applications for
change of venue made by asylum seekers from Guatemala
50a
and El Salvador. Jd. at 496. The government argued that
the claim was barred by a statute similar to § 1255a(f) that
limited judicial review to appeals from individual depor-
tation orders. The Ninth Circuit rejected this argument,
noting that such claims were ‘“‘difficult, if not ‘mpossible
to present in an individual deportation proceeding or in
review of that proceeding before this court.” Jd. at 497-
98. Moreover, even if an individual alien were able to prove
that his case was illustrative of an illegal pattern or prac-
tice, the individual review process would still fail to provide
meaningful review because
the only remedy available would be the reversal of
that case, not an injunction. This would do little to
alleviate the harm caused to a class of persons injured
by the unconstitutional practice. It is only through an
action in district court that the injured class members
can obtain an injunction stopping the unconstitutional
practice.
Id. at 498 (footnote omitted).
The majority conveniently ignores the McNary Court’s
concern regarding the insufficiency of an individual appli-
cation for adjudicating pattern or practice cases. The
Ayuda plaintiffs suffer a like handicap in attempting to
prove that the INS has systematically discouraged § 265
applications. Absent a direct federal court action, there is
simply no way for plaintiffs in this case to prove, and seek
redress of, the allegedly illegal actions of lower level INS
officials in discouraging § 265 aliens from applying for le-
galization.’
’Cf. El Rescate Legal Servs., Inc. v. Executive Office of Immigration
Remew, 941 F.2d 950, 953 (9th Cir.1991) (recognizing the ‘‘distinction
between jurisdiction to rule on the merits of an individual deportation
order and jurisdiction to rule on an alleged pattern and practice of
constitutional or statutory violations’’); Jean v. Nelson, 727 F.2d 957,
980 (11th Cir.1984), aff'd on other grounds, 472 U.S. 846, 105 S.Ct.
2992, 86 L.Ed.2d 664 (1985) (finding district court jurisdiction to ad-
judicate ‘‘allegations of widespread abuse by immigration officials’’).
5la
The majority also argues—shortsightedly I believe—that
only a legal challenge to the interpretation of the statute
as opposed to a challenge to practices or procedures is
involved here and that therefore the Ayuda plaintiffs, un-
like McNary’s, can receive adequate review through in-
dividual cases culminating in deportation proceedings
appealed to the courts of appeals. Maj. op. at 749-750.
But even if the petitioner’s claim were so narrowly con-
strued, the McNary Court observed that
because there is no provision for direct judicial review
of the denial of SAW status unless the alien is later
apprehended and deportation proceedings are initi-
ated, most aliens ... can ensure themselves review
.. only if they voluntarily surrender themselves for
deportation.
111 S.Ct. at 898 (emphasis supplied). The Court concluded
that “that price is tantamount to a complete denial of
judicial review.” [d.*
*The Court also noted that ‘‘absent initiation of a deportation pro-
ceeding against an unsuccessful applicant [for legalization], judicial re-
view of such individual determinations was completely foreclosed.’’
McNary, 111 S.Ct. at 893. Thus it is conceivable that a problematical
ruling in legalization proceedings could escape review completely if the
government chose not to initiate deportation in all such cases. The
aliens involved, however, would lose all benefits of the Act since they
would be denied work authorization, and in the words of the McNary
Court, be ‘‘in an even worse position than [they were] in before the
Reform Act was passed because lawful employment opportunities are
no longer available to such persons.” Jd. at 895.
“Despicable” or not, Maj. op. at 751, a case currently before this
court demonstrates that government agencies have been known to avoid
any nationally applicable test of their statutory interpretations by re-
fusing to petition for Supreme Court review of adverse circuit court
rulings in individual appeals at the same time they continue to apply
the rejected interpretation not only in other circuits, but to other in-
dividuals’ claims in the same circuit. See, e.g., Brief of Petitioner-Ap-
pellant at 3-4, 15-16, Jonnson v. United States R.R. Retirement Bd.,
52a
What the Court found in McNary obviously applies with
equal force here: “‘restricting judicial review to the courts
of appeals as a component of the review of an individual
deportation order is the practical equivalent of a total den-
ial of judicial review of generic constitutional and statutory
claims.” Jd. at 899. That is why the most relevant prec-
edent—as the Supreme Court noted in McNary—is Bowen,
not Ringer. See id. The Bowen Court construed the judicial
review provisions of the Medicare statute to allow review
of challenges to the method for calculating certain Medi-
care Part B payments. The Court there emphasized its
‘well-settled presumption favoring interpretations of stat-
utes that allow judicial review of administrative action,”
McNary, 111 S.Ct. at 898 (citation omitted), and noted
that a contrary interpretation would mean that there would
be ‘“‘no review at all of substantial statutory and consti-
tutional challenges to the Secretary’s administration of...
the Medicare program.”’ Bowen, 476 U.S. at 680, 106 S.Ct.
at 2141. Just so here.
The majority’s reliance on Ringer is mispiaced. Ringer
involved different facts, different statutory language, and
fundamentally different legislative goals. The vigor and
clarity of the Supreme Court’s holding is not to be dis-
missed, distinguished, or eluded: ‘‘we hold that [§ 1255a/))]
applies only to review of denials of individual ... appli-
cations.”’ 111 S.Ct. at 897 (emphasis supplied).
Nos. 90-1243, 90-5380 (D.C.Cir. filed Aug. 12, 1991) (discussing non-
acquiescence by Railroad Retirement Board); Brief of Respondent-Ap-
pellee at 19, Johnson (D.C.Cir. filed Sept. 12, 1991) (same); Appendix
at 38, Johnson (D.C.Cir. filed Aug. 12, 1991) (dissenting opinion of
Railroad Retirement Board member criticizing non-acquiescence by Rail-
road Retirement Board).
At any rate, the point of the caveat is that Congress would hardly
have devised a scheme that left illegal aliens under such time con-
straints on legalization applications so much at the mercy of immigra-
tion officials’ discretion.
53a
At base, the majority and I differ in our vision of this
case. The majority sees it as a run-of-the-mill exclusive
jurisdiction case in which plaintiffs have to overcome a
general presumption that a statutorily prescribed method
of review in the court of appeals displaces the more gen-
eral grant of federal question jurisdiction to district courts
in 28 U.S.C. § 1331. Maj. op. at 750, 753. I agree with
the Supreme Court in McNary, however, that the provision
limiting judicial review of individual denials of legalization
to appeals from individual deportation orders is (1) not
‘exclusive’ of ordinary federal question jurisdiction for
challenges to generalized rules and practices and (2) in
real life effect, tantamount to no judicial review at all.
{n the case of no, or even fatally defective, judicial review,
the burden falls on the government to demonstrate that
Corgress intended to preclude genera! federal question ju-
risaiction. The Supreme Court said as much in a case
involving judicial review of the administration of an un-
employment benefits program:
[w]hile the Act vested state courts with exclusive ju-
risdiction over claims challenging a{n] ... agency’s
application of federal guidelines to the benefit claims
of individual employees, there is no indication that
Congress intended [the relevant statute] to deprive fed-
eral district courts of subject-matter jurisdiction under
28 U.S.C. § 1831(a) ... to hear statutory or consti-
tutional challenges to the federal guidelines them-
selves. Indeed, we have frequently upheld a contrary
principle: that although review of individual eligibility
determinations in certain benefit programs may be
confined by ... federal law to state administrative
and judicial processes, claims that a program is being
operated in contravention of a federal statute or the
Constitution can nonetheless be brought in federal
court. Cf. Bowen v. Michigan Academy of Family Phy-
54a
International Union, UAW v. Brock, 477 U.S. 274, 285,
106 S.Ct. 2523, 2530, 91 L.Ed.2d 228 (1986) (emphasis
supplied) (citations omitted).
The presumptive shoe is thus on the other foot. Contrary
to the majority’s pervasive assumption, the right to mount
a federal question challenge to general administrative pol-
icies or practices of the INS remains unless Congress sig-
nals otherwise. And McNary made it superciear that
Congress did not make that judgment here. ‘The strong
presumption in favor of judicial review of administrative
action is not overcome by either the language or the pur-
pose of the relevant provisions of the Reform Act.”’
McNary, 111 S.Ct. at 899. In my view then, there is no
other conclusion possible but that the district court had
jurisdiction to adjudicate plaintiffs’ challenge to the INS’
administration of the IRCA legalization program.
II. Ripeness and Finality
Passing on now to my colleagues’ second ground for
denying the Ayuda I plaintiffs jurisdiction, the government
argues and my colleagues agree that because the INS has
not yet undertaken final agency action on the disposition
* Lujan v. National Wildlife Federation, siiiiain WEAN siemae gO
3177, 111 L.Ed.2d 695 (1990), which the majority cites for the prop-
osition that there is no “general right ... to challenge agency ...
interpretation of regulations facially rather than on an as-applied, case-
by-case basis,” Maj. op. at 750, is not to the contrary. In Lujan,
plaintiffs mounted an attack on the administration of an entire program
which consisted of approximately 1250 individual agency actions and
determinations. Jd. 110 S.Ct. at 3189. The Court rejected this attempt
to seek ‘‘wholesale improvement’”’ of a government program through
the courts, but explicitly found that “‘iJf there is in fact some specific
order or regulation, applying some particular measure across-the-board
-_ jt ean of course be challenged under the APA by a person adversely
affected... .” Id. at 3190 & n. 2 (emphasis in origina).
55a
of IRCA applications by § 265 aliens, the case is unripe.”
In my view, this argument sweeps too broadly. Although
finality and ripeness concerns may prohibit the district
court from preempting the INS’ primary authority to in-
terpret IRCA and to rule on the eligibility of § 265 aliens,
such concerns do not bar the district court from taking
measures designed to ensure that the agency’s delayed
action does not irreparably prejudice the plaintiffs and does
not destroy the district court’s ultimate jurisdiction.
The purpose of ripeness doctrine is to “prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over ad-
ministrative policies’ and to “protect agencies from ju-
dicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties.” Abbott Laboratories v. Gardner, 387
U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681
(1967). Abbott Laboratories directs us to examine two fac-
tors: “the fitness of the issues for judicial decision and
the hardship to the parties of withholding court consid-
eration.” Jd. at 149, 87 S.Ct. at 1515."
In this case, the government does not dispute that the
plaintiffs present a “‘case or controversy’; § 265 aliens
‘°T have read my colleagues’ critique of my refutation to their ar-
gument that the plaintiffs’ challenge is not ripe for review. Insofar as
I understand it, I find their reasoning circular, i.e., because the district
court could never have jurisdiction, even if tiiere were final agency
action, it could do nothing to preserve that jurisdiction. Obviously, as
hopefully the prior pages have established, the district court did have
Article III “case or controversy” jurisdiction which it could preserve
unti] the agency had taken its final substantive cut on the matter.
'' This first factor parallels and complements the Administrative Pro-
cedure Act’s general requirement that agency action be “‘final’’ prior
to judicial review. See 5 U.S.C. § 704. As we have often noted, ripeness
and finality “‘tend to converge in that both are meant to prevent pre-
mature judicial intervention in the administrative process.”’ Public Cit-
izen Health Research Group v. FDA, 740 F.2d 21, 30 (D.C.Cir.1984).
56a
seek and have been discouraged from applying for IRCA
legalization. To this constitutionally mandated extent, the
plaintiffs’ challenge is suitable for judicial review. But un-
like the plaintiffs’ initial challenge to 8 C.F.R. § 245a.1(d)
(the “known to the government’ regulation) the § 265-
related challenge does not involve a regulation. Moreover,
the INS’ Legalization Appeals Unit (‘‘LAU”’) has not yet
articulated the agency’s policy with regard to § 265 IRCA
applicants."* Therefore, the government argues, it cannot
be said that the INS has taken a final agency position on
the eligibility of § 265 aliens and the case is not ripe for
review.
Although the majority appears content to end its anal-
ysis here, I believe that Abbott Laboratories and the weight
of circuit precedent require more. ‘“‘[W]Jhen disinclined to
find finality, ‘we must then weigh this consideration against
the immediate impact of the actions on the challengers,
and whether that impact is so harmful that present con-
sideration is warranted.’ ”’ Public Citizen Health Research
Group v. FDA, 740 F.2d 21, 30 (D.C.Cir.1984) (quoting
Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603,
618 (D.C.Cir.1978)).
This second factor—‘‘the hardship to the parties of with-
holding court consideration” —militates strongly in favor of
a finding of ripeness in this case. Absent judicial action,
the period for filing for IRCA legalization would have
ended and thousands of persons would have lost their
chance for amnesty. In purely human terms, it is difficult—
perhaps impossible—for those of us fortunate enough to
have been born in this country to appreciate fully the value
of that lost opportunity. For undocumented aliens, IRCA
offered a one-time chance to come out of hiding, to stop
running, to “belong” to America. The hardship of with-
2 This inaction, of course, is fully understandable: until the district
court vacated § 245a.1(d), that regulation clearly precluded amnesty on
the basis of failure to meet § 265 filing requirements.
57a
holding judicial review is as severe as any that I have
encountered in more than a decade of administrative re-
view.
In short, then, while one of the Abbott Laboratories
factors (hardship) points toward ripeness, the other (fitness
and finality) points away. Facing a similar conflict in Pub-
lic Citizen, we concluded that hardship
will rarely overcome the finality and fitness problems
inherent in attempts to review tentative positions... .
A tentative agency position will not generally be in
a form susceptible of review ... and, perhaps more
importantly, ... review is at odds with fundamental
notions of administrative law that generally require
the agency to resolve substantive issues in the first
instance.
740 F.2d at 31. The same principle applies in this case:
the doctrines of ripeness, finality, and judicial deference
to lawful agency interpretations all indicate that the courts
should give the INS the first opportunity to determine the
eligibility of § 265 aliens.
But—as we explained in Public Citizen—“‘[t]hat deter-
mination does not ... close the book on this case.’’ Id. at
34. Even though the court may not ordinarily substitute,
in the first instance, its own judgment of the way a statute
should be interpreted or applied for that of an agency, a
court may keep watch over the timing of agency action.
Notwithstanding a lack of finality, ‘‘courts are certainly
not without power to address the interests of a regulatory
beneficiary ... when unwarranted agency delay prejudices
those interests.”’ Jd. at 32. Accordingly, in Public Citizen
we went on to observe that the “record strongly suggests
that the pace of agency decisionmaking is unreasonably
dilatory” and remanded to “the District Court to take
evidence and rule initially on whether the agency response
... ha{d] been ‘unreasonably delayed.’ ”’ Jd. at 34-35. This
conclusion comports with Abbott Laboratories’ direction
58a
that doctrines of finality and ripeness be applied in a “‘flex-
ible” and “pragmatic’’ manner. Abbott Laboratores, 387
U.S. at 149-50, 87 S.Ct. at 1515-16.
Public Citizen clearly establishes that a lack of finality
in a context in which continued delay would impose grave
harm does not totally divest a court of jurisdiction. Absent
final agency action, a court may lack the authority to
preempt an agency’s primary jurisdiction to interpret the
substantive statute, but it still retains the jurisdiction to
oversee the agency’s actions, under, for example, § 706(1)
of the Administrative Procedure Act (5 U.S.C. § 796(1))
(as was the case in Public Citizen).
This authority is essential to protect the court’s pro-
spective jurisdiction. Thus when intervening events are
likely to deprive a court of its jurisdiction, the All Writs
Act authorizes the court to ‘‘issue all writs necessary or
appropriate in aid of [its] ... jurisdiction[ J.” 28 U.S.C.
§ 1651(a). In an analogous context, we noted that such
authority is not limited “ ‘to the issuance of writs in aid
of jurisdiction already acquired ... but extends to those
cases which are within [the court’s] appellate jurisdiction
although no appeal has been perfected.’ ” Telecommuni-
cations Research and Action Center v. FCC, 750 F.2d 70,
76 (D.C.Cir.1984) (‘‘TRAC”’) (quoting Federal Trade Com-
mission v. Dean Foods Co., 384 U.S. 597, 603-04, 86 S.Ct.
1738, 1742-43, 16 L.Ed.2d 802 (1966) (internal quotations
omitted)). Accordingly, in TRAC, we held that the All Writs
Act “‘empowers a federal court to issue writs of mandamus
necessary to protect its prospective jurisdiction.” 750 F.2d
at 76 (emphasis supplied). The district court in this case
exercised an analogous power by establishing a mechanism
for the collection of applications filed by those who claimed
that, in not filing within the statutory period, they had
relied on the INS’ unlawful regulations and representa-
tions.
59a
The timing of the district court’s initial and unappealed
ruling vacating the INS’ “known to the government” reg-
ulation on March 30, 1988, meant that the INS would not
have the opportunity to take a final agency position on
the eligibility of the § 265 aliens before the 12-month filing
period ended on May 4, 1988. Until the agency took such
final action, the district court could not rule on the legality
of that action. Thus, if the district court did not act, the
inaction of the INS and the passage of time would conspire
to destroy the district court’s jurisdiction over the claims
of the § 265 aliens. In such circumstances, the district
court has the equitable authority to take action to preserve
its prospective jurisdiction and thereby to preserve its au-
thority to review the legality of the INS’ policies and prac-
tices.
The exercise of that equitable power in this situation is
wholly appropriate. The harm to the plaintiffs of with-
holding judicial review is imminent, severe, and irrepara-
ble; the interim relief is consistent with the public interest
as articulated in IRCA; and the time pressures that urge
relief arise though no fault of the plaintiffs.'* In such cir-
cumstances, I believe that the district court properly and
soundly exercised its long-recognized power ‘“‘to adapt [the
initial injunction] as events may shape the need.” United
States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460,
463, 76 L.Ed. 999 (1932).
Supplemental Order V is properly tailored to suit the
court’s limited power in the absence of final agency action.
The Order does not substitute the court’s judgment for
that of the INS in determining the eligibility of § 265
aliens; the Order is strictly prohiiitory: it “enjoin{s the
INS] from denying legalization” to § 265 aliens—it does
not require the INS to grant legalization. Ayuda, Inc. v.
‘* With regard to this latter fact it is important to recognize that
the § 265 issue arose directly from the district court’s ruling that the
INS’ “‘known to the government” regulation was invalid.
60a
Meese, 687 F.Supp. at 668. As subsequent Orders indicate,
the district court recognized the limits of its authority and
served not as a surrogate of the agency but rather as a
collector of constructively filed applications.'* The district
court did not order the legalization of any aliens, but
merely preserved the status quo by accepting and holding
applications from applicants who averred that they would
have filed but for the INS’ unlawful regulations. Such an
action provided the INS time to develop a policy on the
eligibility of § 265 aliens in light of the vacation of its
initial ‘known to the government”’ regulation. Such actions
are fully consistent with the court’s limited power to pre-
serve its own prospective jurisdiction and with its estab-
lished authority to modify its own injunctions to adapt to
unforeseen circumstances.
In sum, McNary establishes that IRCA does not pre-
clude district court review of collateral challenges to INS
regulations, policies, or practices. Therefore, the district
court in this case properly exercised its federal question
jurisdiction. Moreover, although the challenge raised by the
§ 265 aliens may not have been ripe by ordinary standards,
such unripeness did not divest the court of jurisdiction.
Instead, under well-established circuit law, the court re-
tained the power to preserve its own prospective jurisdic-
tion. Supplemental Order V did precisely that and therefore
that Order, in my opinion, should be affirmed.
AYUDA II. SUPPLEMENTAL ORDER XIV
The original complaint in this titigation was filed on
March 8, 1988. Two years later little had changed: the
district court had issued a dozen Orders, the government
‘The interim character of the district court’s action is also evident
in its instruction that such filings be accepted without the statutorily
required filing fee in order to prevent aliens from forfeiting the fee
should Supplemental Order V be reversed on appeal. See 687 F.Supp.
at 668.
6la
had appealed twice to the court of appeals, and still 4,000
to 6,000 persons waited for their rights to be adjudicated.
As they waited their situation grew more and more des-
perate. The INS enforced IRCA’s new employer sanctions,
and the aliens lost their primary source of income—their
jobs. They cut their expenses, drew upon their savings,
some borrowed money from their friends or from churches
or charities. Despite such generosity, many were left with-
out the bare necessities: food, clothing, shelter.
In Aprill 1990—more than 25 months after the litigation
began—the plaintiffs sought interim relief. Their argument
was straightforward and potent. If the INS had properly
interpreted IRCA’s “known to the government” require-
ment, these persons would have filed for legalization. If
these persons had filed for legalization, they would have
automatically been granted temporary work permits. The
district court agreed and issued Supplemental Order XIV
which required the INS to grant work authorization to
aliens who had filed under Supplemental Order IX.
I. Mootness
This case is before us in a Strange posture. We are
asked to review the district court’s order of “interim re-
lief’ after that relief has come to an end. Supplemental
‘Order XIV provided relief “pending a final disposition by
the United States Supreme Court of Ayuda, Inc. v. Thorn-
burgh. No. 89-1018.” Ayuda, Inc. »v. Thornburgh, 744
F.Supp. at 22.' It is undisputed that such final disposition
was granted February 25, 1991. Therefore, I believe the
appropriate action is to dismiss the Ayuda II appeal as
moot and to remand this matter to the district court to
vacate the Order. See United States. v. Munsingwear, Inc.,
‘* The Order does condition the interim relief as “pending ... further
Order of this Court.” 744 F.Supp. at 22. But that phrase, it seems to
me, is simply the boilerplate language of interim relief: only the issuing
court can vacate its own Order.
62a
340 U.S. 36, 39-40 & n. 2, 71 S.Ct. 104, 106-07 & n. 2,
95 L.Ed. 36 (1950).
I feel compelled, however, to make one further obser-
vation. This is the third time in three years that this
litigation has been before this court and the litigation has
lasted more than three times the length of the amnesty
program itself. While I admire the tenacity of counsel for
both sides, I suspect that this litigation might, sadly, itself
become moot of ‘natural causes’: with no means for sup-
port and little hope of legalization, the thousands of aliens
who pressed their claims may be forced to leave the coun-
try, their rights unadjudicated, their status determined not
by law but by necessity.
II. Abuse of Discretion
Even if I were to reach the merits of the district court’s
Order, I believe that it cannot reasonably be said that that
court abused its discretion in ordering interim relief.
The factors the district court considers are familiar: (1)
the plaintiffs’ likelihood of success on the merits; (2) the
threat of irreparable injury to the plaintiffs absent interim
relief; (3) the possibility that the relief will cause substan-
tial harm to others; and (4) the public interest. Ambach v.
Bell, 686 F.2d 974, 979 (D.C.Cir.1982).
The government and the majority rely most heavily on
the first of these factors. The majority emphasizes 8 U.S.C.
® 1255a(f2), which provides that:
No denial of adjustment of status under this section
based on a late filing of an application for such ad-
justment may be reviewed by a court of the United
States. ...
The majority, however, jumps the gun. The district court
was not “reviewing’’ a ‘denial’ of adjustment of status,
it was merely preserving the status quo. This section would
come into play—and the apprehensions of the majority be
63a
sound—only upon the occurrence of several events. First,
the district court must direct the INS to consider the
collected applications as constructively promptly filed (filed
nune pro tune as suggested by the Special Masters). Sec-
ond, a Legalization Office (‘LO’) must refuse to do so
and instead reject the applications as late filed. Third, the
LAU must affirm that determination. Fourth, upon a col-
lateral challenge to the LAU’s ruling, a federal court must
interpret § 1255a(f(2) as barring such nunc pro tune fil-
ings. If and only if these events occur will the plaintiffs
fail to succeed on the merits.
I do not agree with my colleagues that the probability
of all four of the required events occurring is so high as
to offer the plaintiffs only a minimal likelihood of success
on the merits. Accordingly, I do not agree with my col-
leagues either that the district court abused its discretion
in ordering the interim relief necessary to feed, clothe,
and shelter the thousands of aliens and their families whose
only request is a chance to have their legal claims heard."
“I also dissent from the holding of the panel that plaintiffs’ appeal
in Ayuda III is now moot. As summarized by the majority, Maj. op.
at 759, plaintiffs appealed the district court’s denial of their motion to
hold the government in contempt for denying the legalization appli-
cations of “A’’ and ‘‘G” non-immigrant visa holders. The government
has moved that this appeal be dismissed on the alternative grounds
that the district court lacked jurisdiction to hear plaintiffs’ motion and
that the denial of plaintiffs’ motion was not an appealable final order.
I believe the district court had jurisdiction to hear plaintiffs’ motion
so that the issue before us is whether the court’s order was appealable
as a final order. In my view, the district court’s order denying plaintiffs’
motion to hold the government in contempt was an appealable order.
Even where the underlying litigation has not been concluded. civil con-
tempt adjudications arising from permanent injunctions are considered
post-judgment proceedings and may be immediately appealable under
28 U.S.C. § 1291. See New York v. Shore Realty Corp., 763 F.2d 49,
51 (2d Cir.1985); New York State Urban Dev. Corp. v. VSL Corp., 738
F.2d 61, 64 (2d Cir.1984). I would therefore deny the government's
64a
CONCLUSION
The AYUDA plaintiffs must truly know the meaning of
having defeat snatched from the jaws of victory. My col-
leagues’ earlier decision denying jurisdiction over their
claims was vacated by the Supreme Court and the case
remanded for ‘reconsideration in light of’ McNary.
McNary was a plain-speaking interpretation by the
Supreme Court that the provision we revisit today re-
stricting judicial review did not apply to generalized chal-
lenges like theirs. McNary has, however, now been
subjected to a revisionist interpretation in order to deny
them relief on basically the same grounds as before. Three
years of a dedicated trial judge’s painstaking efforts to
bring reason and justice to one of our most troubled na-
tional problems have been erased with the stroke of a pen.
I dissent from what I sincerely believe to be a wrong
interpretation of the statute, compounded by an unneces-
sarily cramped interpretation of the Supreme Court’s ef-
forts to implement it. The injury to rational principles of
statutory interpretation and controlling precedent by to-
day’s decision is surpassed only by the human suffering
involved in turning away 6,000 applicants for amnesty
without a hearing.
moticn to dismiss plaintiffs’ appeal.
Along with my colleagues, however, Maj. op. at 759 n. 14, I too
note that the dispute over the status of ‘“‘A’”’ and “G’’ nonimmigrant
visa holders apparently revolves around the INS’ interpretation of a
different asepct of § 1255a(a\2) than the “known to the government”
provision that was the basis of the trial court’s orders in Ayuda J and
Ayuda II.
65a
APPENDIX B
Gnited States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed March 3, 1992
No. 88-5226
Ayupa, INc., et al.
v.
RICHARD THORNBURGH, INDIVIDUALLY, AND
AS ATTORNEY GENERAL OF THE UNITED STATES, et al.,
APPELLANTS
No. 90-5293
Ayupa, Inc., et al.
Vv.
RICHARD THORNBURGH, INDIVIDUALLY, AND
AS ATTORNEY GENERAL OF THE UNITED STATES, ef al.,
APPELLANTS
66a
No. 89-5301
Ayupa, INc., et al., APPELLANTS
Vv.
RICHARD THORNBURGH, et al.
(Civil Action No. 88-00625)
On Appellees’ Suggestion for Rehearing En Banc
Before: Mixva, Chief Judge, WaD, Epwarps, RutuH B.
GINSBURG. SILBERMAN, BucKLEY, WILLIAMS, D.H. GinsBuRG,
SENTELLE, HENDERSON and RANDOLPH, Circuit Judges.
ORDER
Appellees’ Suggestion for Rehearing En Banc and the
response thereto have been circulated to the full Court.
The taking of a vote was requested. Thereafter, a majority
of the judges of the Court in regular active service did nut
vote in favor of the suggestion. Upon consideration of the
foregoing it is
ORDERED, by the Court en banc, that the suggestion
is denied.
PER CURIAM
FOR THE COURT:
Constance L. Dupré
Clerk
Chief Judge Mikva and Circuit Judges WaLp, EDWARDS,
Ruth B. Ginsspurc and BuckLey would grant the sugges-
tion for rehearing en banc.
Separate statement filed by Circuit Judge WaLp, dis-
senting from the denial of rehearing en banc.
Separate statement filed by Circuit Judge SILBERMAN,
concurring in the denial of rehearing en banc.
Separate statement filed by Circuit Judge Wi.1iamMs,
concurring in the denial of rehearing en banc.
68a
Wap, Circuit Judge, dissenting from the denial of
rehearing en banc, with whom Mixva, Chief Judge, and
Epwarps and Rut B. Ginssurc, Circuit Judges, join: I
believe the court should hear this case en banc in order
to correct a serious misconstruction of both the Immigra-
tion Reform and Control Act (“IRCA”) and the Supreme
Court’s opinion in McNary v. Haitian Refugee Center, 111
S. Ct. 888 (1991). Despite the clearest of signals from that
Court to the effect that jurisdiction lies in the district
court to hear challenges to policies, practices or proce-
dures of the Immigration and Naturalization Service
(“INS”) that deny to aliens their statutory rights to legal-
ization, and despite the vacation and remand by that
Court of a prior panel opinion denying such jurisdiction
in this case, the panel has reinstated its original dismissal
by reading McNary in a remarkably rigid fashion, confin-
ing it to challenges that are incapable of being raised in
individual legalization and deportation appeals. The
panel’s rationale undeniably requires rejection of chal-
lenges to any rule or regulation or practice that could be
litigated in an individual deportation appeal. Ayuda, Inc.
v. Thornburgh, 948 F.2d 742, 753-54 (D.C. Cir. 1991). Yet,
both the Ninth and Seventh Circuits have interpreted
McNary in just the opposite way, to confirm district court
jurisdiction over a challenge to a regulation limiting eligi-
bility for legalization, despite the indisputable fact that
the validity of such a regulation could have been raised
by the alien plaintiffs in individual deportation proceed-
ings. Catholic Social Servs., Inc. v. Thornburgh, Nos.
88-15046, -15127, 15128, -6447, 1992 WL 23219 (9th Cir.
Feb. 13, 1992) (Hug, J.); Morales v. Yeutter, 952 F.2d 954
(7th Cir. 1991) (Posner, J.). The McNary Court has, more-
over, definitively refuted the panel’s assertion that the
aliens had any reasonable opportunity to contest INS
interpretations, whether regulations or practices, through
the legalization procedure.
[Blecause there is no provision for direct judicial
review of the denial of SAW status unless the alien
is later apprehended and deportation proceedings are
initiated, most aliens ... can ensure themselves
69a
review ... only if they voluntarily surrender them-
selves for deportation. . . . [T)hat price is tantamount
to a complete denial of judicial review.
111 S. Ct. at 898. The panel’s emasculation of the
Supreme Court’s authoritative interpretation of IRCA in
McNary stould not stand as circuit precedent.
It seems, however, that my colleagues are willing to
bury any doubts about the panel’s construction of McNary
because of an alternative holding that the challenge was
unripe since the INS had not yet taken a final position
with regard to the eligibility of the so-called “§ 265 aliens”
(nonimmigrant aliens who had failed to file the requisite
papers needed to maintain their legal status in the coun-
try).
The facts are these: The § 265 aliens had been indispu-
tably barred from eligibility under the prevailing INS reg-
ulation until April 6, 1988, when the district court issued
its ruling that the “known to the Government” require-
ment in the statute meant known to one or more govern-
ment agencies, not just the INS. The district judge’s
ruling, acquiesced in by the INS, left unclear, however,
whether those aliens who were “known” through their
failure to file required documents rather than by affirma-
tive documents in their file were eligible for legalization.
QDEs in major cities throughout the United States, man-
dated as statutory agents to assist eligible aliens in apply-
ing for legalization, and so bound to follow INS
regulations and policies, attested that they had either
been directly told by INS officers or understood from prior
INS information that § 265 aliens were not eligible for or
would not be recommended for legalization. Affidavits of
Garcia, Limon, Church, Mohn, Tafoya, Joseph, Hanish,
Suppiah (D.D.C. Apr. 28, 1988). (Indeed, the INS counsel
himself stated before the district court that he was “at a
loss to see how the absence of documentation ... would
come within the ... standard for legalization.”) With the
May 4, 1988 statutory deadline for legalization only weeks
away, and in light of the QDEs’ dilemma of whether to
70a
advise illegal aliens to come out of the shadows and file
applications against agency advice, the plaintiffs sought
a declaration from the district court that § 265 aliens were
also included within the “known to the Government” cate-
gory. It is the district court’s response to that urgent need
for clarification of the § 265 aliens’ status, in the form of
an order requiring the INS to process and not to deny out-
right such legalization applications (at least until a formal
position had been taken by the government as to their elli-
gibility), that the panel found unripe. In short, the panel
ruled that in the last weeks before the final deadline for
amnesty the INS could wait out the confused and unsure
§ 265 aliens by decliring to declare a formal policy as to
their eligibility and thereby prevent any general challenge
to the on-site practice of many INS offices of discouraging
applications from § 265 aliens. I simply do not believe tra-
ditional doctrines of ripeness or primary jurisdiction were
meant to encompass any such scenario.
I am afraid we have done an irremediable injustice to
the 4,000-6,000 aliens who have filed with the Special
Masters appointed by the district court sworn statements
justifying their inability on account of misleading advice
to file formal legalizecion applications prior to the dead-
line and who are pow barred forever -from amnesty
because of the panel’s serpentine construct denying all
jurisdiction to the district court as to any group of illegal
aliens in this suit, § 265 or otherwise. Ayuda, 948 F.2d at
757-58. This is a regrettable decision both for them and
for the law of our Circuit.
7la
SILBERMAN, Circuit Judge with whom D.H. Ginssurc,
Circuit Judge, joins, concurring in the denial of rehearing
en banc: The issue before the full court is, of course, some-
what different from the jurisdictional questions in the
cases which were extensively discussed in the panel opin-
ion and Judge Wald’s dissent. Now our focus is on
whether the case is en banc worthy, and with all due
respect, we do not think the dissenters make a substantial
argument that it is.
Our opinion bars district court review of INS actions
that are amenable to meaningful judicial review in the
courts of appeals in accordance with the judicial review
provisions of the Immigration Reform and Control Act of
1986 (IRCA). The decision rests on two separate jurisdic-
tional grounds: statutory preclusion of district court
review, and lack of ripeness and finality. Petitioners make
no serious argument that even if they could surmount the
statutory preclusion barrier, they could also scale the
ripeness and finality hurdle. Judge Wald, having twice
tried (unsuccessfully, we submit) to provide a riposte to
the government’s well-founded assertion that no concrete
or formal INS policy regarding the meaning of the word
“known” in the statutory phrase “known to the
Government” has ever emerged, now suggests—for the
first time—that the INS pursued a nefarious “on-site
practice” of discouraging applications from § 265 aliens
while refusing to declare a formal policy as to their eligi-
bility.
There is no support whatsoever in the record for that
accusation. Indeed, the theory that the government could
be thought to have knowledge of an alien’s unlawful sta-
tus simply because the alien stopped filing quarterly
reports required under INA § 265 was not presented to
the district court until just two weeks before the statutory
deadline for legalization applications. And at that time,
as we observed in our opinion, the most that could be said
is that a few INS local offices (according to the record,
only four of the more than one hundred offices nation-
wide) had indicated that if aliens filed applications for
72a
legalization based on the § 265 theory, the offices would
recommend denial. This meant only that the applications
would be referred upward for individual adjudication,
with no predetermined result, since the INS Legalization
Appeals Unit (LAU) had yet to decide a single case pre-
senting the theory.
In truth, nothing at all barred aliens who wished to
pursue their § 265 claims from filing an application for
legalization prior to the statutory deadline. We are told
that about 1,800 aliens did so; their applications have
been held by the INS pending completion of this litigation.
Nor is there any support for Judge Wald’s assertion that
the QDEs would have somehow violated their obligations
under the statute by advising the aliens they counseled
to do as did those 1,800 and file their applications before
the deadline rather than gambling that the district court
would be affirmed.
The QDE “dilemma” that Judge Wald describes is quite
artificial. The QDEs were, it is true, required to comply
with INS regulations, but there was no regulation
addressing the § 265 question and no indication that the
INS had ever focused on that issue. And even if the INS
had adopted a policy or practice on the matter, the INS
Legalization Manual, which contained binding instruc-
tions for INS staff and the QDEs, specifically stated that
any alien could insist on filing an application. Nothing,
therefore, would have prevented a QDE from advising an
alien to apply even if the INS had formally determined
that the alien’s application would ultimately be denied.
Indeed, if INS offices had ever closed their doors and
refused to allow aliens to submit applications (there is no
evidence any INS office did so), then the McNary
exception would apply. See Ayuda, Inc. v. Thornburgh,
948 F.2d 742, 751 (D.C. Cir 1991). There was, moreover,
little reason for aliens not to “come out of the shadows”
and appiy since IRCA expressly prohibited the INS from
using any information gained from an application to initi-
ate or prosecute a deportation proceeding against an
73a
alien. See id. at 752. The aliens who did not apply, if any,’
simply followed incorrect advice. See id. at 756.
In any event, even if we had determined that the dis-
trict court had jurisdiction, we rather doubt that any
aliens affected would ultimately have been entitled to
legalization, because petitioners’ substantive claim, that
the word “known” must be extended to include such
broadly imputed knowledge, seems tenuous. See Ayuda,
Inc. v. Thornburgh, 880 F.2d 1325, 1344-45 (D.C. Cir.
1988), vacated and remanded, 111 S. Ct. 1068 (1991). Not
only, then, is the case not ripe, but the real world effects
on aliens of all the sound and fury of this extended litiga-
tion may well be virtually undetectable.
As to the specific judicial review provisions of the IRCA
legalization program, it should be first noted that the pro-
gram is receding into history. Secondly, although Judge
Wald apparently received the “clearest of signals” from
the Supreme Court’s opinion in McNary v. Haitian Refu-
gee Center, 111 S. Ct. 888 (1991), we too did our level best
to interpret its stated reasoning and apply it to our case.
Without renewing the entire debate, we simply reiterate
that petitioners and Judge Wald still have not supplied
any answer to the crucial boundary problem of how one
would distinguish, under their interpretation of McNary,
between the legalization cases that must come to the
courts of appeals for review and those that could be
brought in the district courts. See Ayuda, 948 F.2d at 753.
Nor did the Ninth Circuit in Catholic Social Servs., Inc.
v. Thornburgh, Nos. 88-15046, -15127, -15128, slip op.
1506, 1519-20 (9th Cir. Feb. 13, 1992). The Seventh Cir-
cuit, by contrast, recognized the seriousness of this prob-
lem:
We are mindful of the concern expressed by the D.C.
'The 4,000-6,000 figure Judge Wald uses includes aliens
affected by the district court’s original order, which the govern-
ment did not appeal. If there are any aliens still affected by the
original lawsuit, they are § 265 aliens, whose number is entirely
undetermined.
74a
Circuit in Ayuda, Inc. v. Thornburgh, No. 88-5226,
slip op. at 18 (D.C. Cir. Nov. 6, 1991), with the dan-
ger of undermining the remedial scheme of the immi-
gration laws by imputing patterns and policies
behind determinations and then allowing those pat-
terns and policies to be challenged in injunction suits
under 28 U.S.C. § 1331. That dange= is not present,
however, when as in this case the challenge is to a
formal regulation determining eligibility.
Morales v. Yeutter, No. 90-2787, 1991 WL 268367 (7th Cir.
Dec. 18, 1991).
In our case, the government did not appeal the district
court’s original order holding the INS regulation to be
inconsistent with IRCA, so Morales’ determination as to
formal (and final) regulations creates no square intercir-
cuit dispute. See also Catholic Social Servs., slip op. at
1510-11, 1513-14 (reviewing two INS regulations). As the
government notes, furthermore, the “principal plaintiff in
fact” in Morales was a sod growers’ association that
unquestionably had standing under IRCA yet could not
under that statute seek judicial review in the courts of
appeals; the Seventh Circuit did not have to, and did not,
focus on the status of the individual alien plaintiffs. The
standing of the QDEs, on the other hand, is a dubious
proposition left undecided by this court and the Supreme
Court. There is, then, no conflict in the holdings of
Morales and Ayuda (but see Catholic Social Servs., slip op.
at 1519-20), and any tension between the cases seems of
little import because surely no more regulations will issue
governing the now long-expired IRCA legalization pro-
grams.
Our doubts about the QDEs’ standing warrant a final
observation. Despite the repeated :-ferences to the
“aliens” and the “plaintiffs” in our opinions, the only
actual plaintiffs besides the QDEs were five individual
aliens whose claims were fully resolved by the district
court’s initial order, which is not before us. Motions by
other organizations to intervene on the § 265 issue were
never granted (the QDEs already in the case adopted the
75a
claim), nor was any class of aliens ever certified. Cf. Cath-
olic Social Servs., slip op. at 1511, 1513 n.2, 1514 (noting
that two classes of aliens were certified and that the orga-
nizational plaintiffs in one case were dismissed by stipula-
tion). The strong possibility that no plaintiffs with
standing remain in the case is yet another reason for con-
sidering this case unworthy of additional judicial review.
76a
Wi.uiams, Circuit Judge, concurring in the denial of
rehearing en banc: I do not think it a sound use of our
resources to have an en banc hearing on the correct inter-
pretation of 8 U.S.C. § 1155a(f), in a case where the
panel's decisions that the plaintiffs’ claim was unripe and
that there was no final agency action are so thoroughly
convincing. See Ayuda, Inc. v. Thornburgh, 948 F.2d 742,
754-56 (D.C. Cir. 1991). It would be hard to focus on the
exact scope of the class of agency decisions that are out-
side § 1155a(fX1)’s preclusion in a case where there is no
agency decision at all. As about 1800 aliens have filed
timely applications raising the § 265 claim, and the INS
has withheld adjudication solely because of the pending
litigation, see Response in Opposition to Petition for
Rehearing and Suggestion for Rehearing En Banc at 18,
there should be no difficulty securing administrative reso-
lution once the courts clear the way.
77a
APPENDIX C
AYUDA, INC., et al., petitioners, v. Richard THORN-
BURGH, Attorney General of the United States, et al.
No. 89-1018.
Case below, Ayuda v. Meese, 687 F.Supp. 650; 880 F.2d
1325.
Feb. 25, 1991. On petition for writ of certiorari to the
United States Court of Appeals for the District of Colum-
‘bia Circuit. The petition for writ of certiorari is granted.
The judgment is vacated and the case is remanded to the
United States Court of Appeals for the District of Colum-
bia Circuit for further consideration in light of McNary v.
Haitian Refugee Center, Inc., 498 U.S. _ , 111 S.Ct. 888,
—__L.Ed.2d —_ (1991).
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APPENDIX D
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 7, 1989 Decided July 18, 1989
No. 88-5226
AYUDA, INC., et al.
v.
RICHARD THOKNBURGH, 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 Jolin
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.
’
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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-
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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:
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.
8la
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).
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The organizational plaintiffs responded
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