Appendix — Ayuda, Inc. v. Reno
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Supreme Court, U.S.
FILED
No
— 93.19 2.3 WAY 27 1
IN THE —ogrice OF THE CLERK
Supreme Court of the Anited States
OCTOBER TERM, 1993
AYUDA, INC., et al.,
Petitioners,
V.
JANET RENO, 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
Vv RIT OF CERTIORARI
Counsel of Record:
WAYNE H. MATELSK!I
ARENT Fox KINTNER PLOTKIN
& KAHN
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
(202) 857-6340
Of Counsel:
RoperiIc V.QO. Boccs
ELEANOR PELTA
MICHAEL RUBIN
DEBORAH SANDERS
CAROLYN WALLER
LYNDA S. ZENGERLE
Attorneys for Petitioners
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208
i.
TABLE OF CONTENTS
Ayuda, Inc. v. Reno, Nos. 88-5226, 89-5301 and 90-
5293 (D.C. Cir. October 26, 1993), also
reported at 7 F.3d 246 (D.C. Cir. 1993) ... la
Ayuda, Inc. v. Reno, Nos. 88-5226, 89-5301 and 90-
5293 (D.C. Cir. January 27, 1994) ....... 25a
Ayuda, Inc. v. Reno, Nos. 88-5226, 89-5301 and 90-
5293 (D.C. Cir. January 27, 1994), also
reported at 14 F.3d 61 (D.C. Cir. 1994) ... 27a
Ayuda, Inc. v. Reno, (U.S. June 28, 1993), also
reported at 113 S.Ct. 3026 (1993) ....... 30a
Ayuda, Inc. v. Thornburgh, Nos. 88-5226, 89-5301,
and 90-5293 (D.C. Cir. November 5, 1991),
also reported at 948 F.2d 742 (D.C. Cir.
See ced Kes ee Paka ao 3la
Ayuda, Inc. v. Thornburgh, Nos. 88-5226, 89-5301,
and 90-5293 (D.C. Cir. March 3, 1992), also
reported at 958 F.2d 1088 (D.C. Cir. 1992) 95a
Ayuda, Inc. v. Thornburgh, (U.S. February 25,
1991), also reported at 498 U.S. 1117 (1991) 107a
ii.
Ayuda, Inc. v. Thornburgh, No. 90-5293 (D.C. Cir.
November 13, 1990), also reported at 919
F.26 133 GAG. Ga Bee oe 15s
Ayuda, Inc. v. Thornburgh, No. 88-5226 (D.C. Cir.
July 18, 1989), also reported at 880 F.2d
1923 GOK. Ci ee oda cease
Ayuda, Inc. v. Thornburgh, No. 88-5226 (D.C. Cir.
Oct. 4, SAR ccna dh voces es ca
In Re: Richard Thornburgh, No. 88-5360
(D.C. Cir. March 3, 1989), also reported at
$69 F.2d) 1503 (D.C. (at. TGR x ova ss
Ayuda, Inc. v. Meese, Civ. A. No. 88-0625 (D.D.C.
March 30, 1988), also reported at 687
F.Supp. G0 (ARAL, SOR oc eee ees
Ayuda, Inc. v. Meese, Civ. A. No. 88-0625,
Supplemental Order X (D.D.C. August 18,
SOU nis sa ss ee ele eee
Ayuda, Inc. 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. 49 (D.D.C. 1988)
298a
ill.
Ayuda, Inc. v. Meese, Civ. A. No. 88-0625,
Supplemental Order XII (D.D.C. Oct. 28,
1988), also reported at 700 F.Supp. 49, 52
(D.D.C. 1988) ..... 2c eee cere cece: 305a
Ayuda, Inc. v. Thornburgh, Civ. A. No. 88-0625,
Memorandum Opinion (D.D.C. June 29,
ES ee re 309a
Ayuda, Inc. v. Thornburgh, Civ. A. No. 88-0625,
Memorandum Opinion (D.D.C. July 24,
SE Jt Leeiueheadoseeccnnesrees 316a
Ayuda, Inc. v. Thornburgh, Civ. A. No. 88-0625,
Supplemental Order XIV (D.D.C. Sept. 6,
1990), also reported at 744 F.Supp. 21
(D.D.C. 1990) ......-- ee eee rece rees 322a
Ayuda, Inc. v. Thornburgh, Civ. A. No. 88-0625,
Memorandum Opinion (D.D.C. Oct. 3,
cae Sheed bb ebb se seseee 325a
Statutes and Regulations
INA § 106, 8 U.S.C. § 1105a (1988) ......---- 333a
INA § 210e, 8 U.S.C. § 1160(e) .....----+-->- 338a
INA § 245A(a)(2), 8 U.S.C. § 1255a(a)(2) (1988) . 340a
iv.
INA § 245A(f), 8 U.S.C. § 1255a(f) (1988) ..... 341a
Former INA § 265, 8 U.S.C. § 1305 (1976) ..... 343a
ENA $ 279, S USK. TSS CIBER 2c ccc caves 344a
SO ts BH ER A RETR SSE SS 345a
SC ee eee GUD 0 cds Chats oh eue vias 346a
Be er er ear rere eee 348a
S CPR. § H.3 GOTO) on ne cece. 349a
la
AYUDA, INC., et al.
Vv.
Janet RENO, Individually and as Attorney
General of the United States, et
al., (Appellants) (Two Cases).
AYUDA, INC., et al.
v.
Janet RENO, et al.
Nos. 88-5226, 90-5293 and 89-5301.
United States Court of Appeals,
District of Columbia Circuit.
Decided October 26, 1993
Appeal was taken from the United States District
Court for the District of Columbia, Stanley Spurkin, J., 687
F.Supp. 650, directing Immigration and Naturalization
Service to take certain action under Immigration Reform
and Control Act. The Court of Appeals, 880 F.2d 1325,
found that district court lacked jurisdiction. Certiorari was
granted. The United States Supreme Court, 498 U.S. 1117,
111 S.Ct. 1068, 112 L.Ed.2d 1174, vacated and remanded.
On remand, the Court of Appeals, 948 F.2d 742, reiterated
2a
view that district court lacked jurisdiction. Certiorari was
granted. The United States Supreme Court, 113 S.Ct.
3026, vacated and remanded. On remand, the Court of
Appeals, Silberman, Circuit Judge, held that: (1) district
court lacked jurisdiction, and (2) organizational plaintiffs
lacked standing.
District court orders vacated.
Wald, Circuit Judge, dissented and filed opinion.
Before: WALD, SILBERMAN AND D.H.
GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge
SILBERMAN.
Dissenting opinion filed by Circuit Judge WALD.
SILBERMAN, Circuit Judge:
This case is returned to us by the Supreme Court
for the second time. ------ U.S. ------ , 113 S.Ct. 3026, 125
L.Ed.2d 714. The Supreme Court vacated and remanded
our first opinion, Ayuda, Inc. v. Thornburgh, 880 F.2d
1325 (D.C.Cir.1989), and asked us to reconsider the issues
presented in light of its opinion in McNary v. Haitian
Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112
L.Ed.2d 1005 (1991). We did so, and reiterated our view
that the district court lacked jurisdiction to entertain a suit
brought to challenge a supposed Immigration and
3a
Naturalization Service (INS) interpretation of a regulation
governing the manner in which legalization decisions were
made under the Immigration Reform and Control Act of
1986 (IRCA), Pub.L. No. 99-603, 100 Stat. 3359 (1986).
Ayuda, Inc. v. Thornburgh, 948 F.2d 742 (D.C.Cir.1991).
We are again asked to consider our opinion in the
aftermath of Reno v. Catholic Social Servs., Inc. ----- U.S.
----- 113 S.Ct. 2485, 125 L-Ed.2d 38 (1993) (CSS). After
carefully examining CSS, we stand by our conclusion that
the district court lacked jurisdiction in this case, and hence,
we decline to remand to the district court as plaintiffs urge.
L.
As we described in our first opinion, this litigation--
directed at the INS’ administration of the special one-time
IRCA amnesty program--came on the heels of a developing
line of cases in which aliens, or organizations representing
aliens, sought to supplement courts of appeals review of
INS deportation orders under 8 U.S.C. § 1105a with
actions brought in the district court challenging generic
INS policies before they were applied in deportation
proceedings. Ayuda, 880 F.2d at 1335-36. Such a lawsuit,
particularly when brought by an organizational plaintiff or
by a class, permits aliens to challenge INS policies in
federal court without the risk of identification and
consequent deportation if they should lose Our case,
brought by five aliens and four organizational plaintiffs
(so-called Qualified Designated Entities (QDEs) who are
Y Under IRCA’s amnesty program, the INS cannot use
information contained in an application for amnesty against
the applicant. See 8 U.S.C. § 1255a(c)(5).
4a
authorized to serve as intermediaries between aliens and
the INS), focused only on the particular judicial review
provisions of IRCA. We held that the district court lacked
jurisdiction to hear the plaintiffs’ challenge to an asserted
interpretation of an INS regulation that defined the
statutory term "known to the government."
We concluded that the district court lacked
jurisdiction on two separate grounds. First, we thought
that the statutory review provisions, which provide for
exciusive review in the courts of appeals for all deportation
orders,~ precluded a district court challenge to any formal
or informal manifestation of the INS’ construction of
aliens’ substantive rights under the statute. Ayuda, 880
F.2d at 1333-40. Second, we determined that INS had not
~ Only aliens whose illegal status in the United States was
“known to the g) vernment" are entitled to amnesty under
the program.
~ Section 1255a(f)(1) states: "[t]here shall be no
administrative or judicial review of a determination
respecting an application for adjustment of status under
this section except in accordance with this subsection." 8
U.S.C. § 1255a(f)(1). Section 1255a(f)(4)(A) states:
"[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." 8 U.S.C.
§ 1255a(f)\(4)(A). Section 1105a, in turn, asks us to look
at title 28, chapter 158, to ascertain how all review of
deportation orders will proceed. 8 U.S.C. § 1105a.
Chapter 158 grants jurisdiction to the courts of appeals. 28
U.S.C. § 2342.
——————<—<—
5a
yet decided whether the absence of quarterly reports in an
alien’s INS file put the government on constructive notice
that the alien’s illegal status was "known to the
government". Thus, even if the district court enjoyed
statutory jurisdiction, the case was not yet ripe. Ayuda,
880 F.2d at 1343. We did not reach the government's
challenge to the standing of organizational plaintiffs upon
which the district court had premised "plaintiffs’" standing.
Ayuda, 880 F.2d at 1339-40.
Subsequently, the Supreme Court in McNary held
that the district courts did have jurisdiction to entertain a
constitutional and statutory challenge to the INS’ alleged
failure to provide due process in the administration of
another portion of the amnesty program. The INS had
been accused of depriving applicants of an opportunity to
challenge material evidence, to present witnesses, and to
employ competent interpreters, and the Court concluded
that Congress did not mean to limit judicial review to the
court of appeals in such a case. McNary v. Haitian
Refugee Center, Inc., 498 U.S. at 487-88, 494, 111 S. Ct.
at 893-94, 897.
On remand, we sought to reconcile what we
thought were conflicting currents in the Supreme Court's
opinion. On the one hand, the Court’s language did appear
to restrict the phrase "a determination respecting an
application"--on which court of appeals jurisdiction is
fixed--to "an individual denial of ... status" and not a
"group of INS decisions." 498 U.S. at 492, 11 S.Ct. at
896. Still we did not think the IRCA judicial review
provisions could reasonably be construed to permit two or
more aliens to sue freely in the district court, if one alien
6a
would be limited presumably to the court of appeals. See
Ayuda, 948 F.2d at 749 n. 5. Instead, we concluded that
the Supreme Court meant McNary to stand as an exception
to the exclusive court of appeals review of INS legalization
determinations (after deportation orders) for collateral
procedural challenges if the administrative record would be
inadequate to support appellate review of those issues in
the courts of appeals. If, instead, aliens were seeking
review of INS interpretations of IRCA--which the plaintiffs
in our case clearly were--the district court lacked
jurisdiction.
We rejected the notion that to force any alien to
come forward and provoke a deportation order as a
prerequisite to challenging his or her denial of legalization
would amount to a "complete denial of judicial review for
most undocumented aliens," McNary, 498 U.S. at 497, 111
S.Ct. at 898, and therefore should be thought "inadequate"
within the meaning of McNary’s holding. We did so
because otherwise we would have either ignored the
statutory scheme for exclusive court of appeals jurisdiction
in cases involving a "determination respecting an
application" or been faced with what seemed an impossible
analytic task of drawing a boundary between the
jurisdiction of the district court and courts of appeals in
cases challenging INS’ substantive interpretation of IRCA.
See Ayuda, 948 F.2d at 753; 958 F.2d 1089, 1092-93
(D.C.Cir. 1992) (Silberman, J., concurring in the denial of
rehearing en banc).
In addition, we reiterated our view that the
plaintiffs’ challenge was unripe (the INS still had not
resolved the "known to the government" issue) and we
Ta
once again reserved the issue of the QDEs standing. See
Ayuda, 958 F.2d at 1093 (Silberman, J., concurring in the
denial of rehearing en banc).
The Supreme Court then granted certiorari in CSS,
a case in which the Ninth Circuit read McNary contrary to
the way we did While a petition for certiorari in Ayuda
was pending before the Supreme Court, the Solicitor
General notified the Court that the INS had recently
arrived at an agency position as to whether the absence of
documents from government files indicated that the alien’s
illegal status was known to the government. Hence, the
particular ripeness ground upon which we had relied was
no longer present.
The Court handed down CSS this summer and
subsequently vacated our decision (along with several
cases that disagreed with our opinion) for reconsideration
in light of CSS. We then asked the parties for their views.
Perhaps understandably in light of their long litigation
struggle, the plaintiffs and the government disagree both as
to the meaning of CSS and as to the appropriate next step
in our case. The plaintiffs argue that "[b]ecause the
generic challenges in Ayuda can be resolved without
referring to or relying on the denial of any individual
application (as indeed they were resolved by the district
court), the district court may properly exercise jurisdiction
“ The Seventh Circuit, Morales v. Yeutter, 952 F.2d 954
(7th Cir. 1991), and Second Circuit, Perales v.
Thornburgh, 967 F.2d 798 (2d Cir. 1992), had also held
that an INS regulation was directly reviewable in district
court.
Ra
over plaintiffs’ challenges.” The government argues that
the district court lacked jurisdiction as the plaintiffs
challenged INS’ substantive regulations, rather than
collateral procedures.
We think plaintiffs badly misread the Supreme
Court’s opinion. CSS confirmed the plaintiffs’ view of
McNary construction of section 1255a(f)(1) as applying
only to the denial of a single application. But the Court,
noting that federal courts have been reluctant to apply
injunctive and declaratory judgment remedies to
administrative determinations= unless these arise in the
context of a controversy "ripe" for judicial resolution,
elaborated and extended the general ripeness doctrine of
Abbott Laboratories vy. Gardner, 387 U.S. 136, 152-54, 87
S.Ct. 1507, 1817-18, 18 L.Ed.2d 681 (1967), and Lujan v.
National Wildlife Federation, 497 U.S. 871, 891, 110 S.Ct.
3177, 3190, 111 L.Ed.2d 695 (1990), so as to severely
limit McNary, see CSS, --- U.S. at --- - ---, 113 S.Ct. at
2495-96, and thus neatly came, by a somewhat modified
route, to our resolution of the boundary issue. The Court
held that a putative beneficiary under a statute such as the
amnesty program does not have a ripe claim merely when
an agency publishes a regulation that might bear on his
right to the benefit. CSS, --- U.S. at ---, 113 S.Ct. at 2496.
The claimant must at least apply and be denied the benefit
before the claim ripens. Typically, when the claimant is
We also had recognized the difficulties presented to
admunistrative agencies when a plaintiff, instead of seeking
review in the court of appeals of a single case, seeks a
broad scale injunction in the district court. See Ayuda, 880
F.2d at 1330-31.
, | '
9a
denied the benefit, the claim is then ripe for
adjudication” Id.
Under IRCA, as the Supreme Court observed, an
alien who is denied legalization is subject to the exclusive
administrative and judicial review provisions of that
statute. His claim may, in general terms, be thought ripe,
yet the statute directs him exclusively to the court of
appeals and only on a review of a deportation order~
Although the Supreme Court initially rejected our
construction of the statutory jurisdiction provisions, It
ultimately came very close to affirming our holding by
seeming to rely on those same provisions:
The ripeness doctrine and the Reform Act’s
jurisdictional provisions would thus dovetail neatly,
and not necessarily by mere coincidence. Congress
may well have assumed that, in the ordinary case,
the courts would not hear a challenge to regulations
“ The Court’s ripeness test also calls into question the 3
106 line of cases. Ayuda, 880 F.2d at 1335-36, insofar as
they permit substantive legal challenges prior to an alien
applying for a benefit.
” The Court was unmoved by the argument that an alien
should not have to risk identification in order to seek
review and noted that the INS represented that any alien
who wished to secure review of his denial of legalization
could "surrender ... for deportation." CSS, --- U.S. at ---
n. 16, 113 S.Ct. at 2494
n. 16.
Darian
10a
specifying limits to eligibility before those
regulations were actually applied to an individual,
whose challenge to the denial of an individual
application would proceed within the Reform Act's
limited scheme.
CSS, --- U.S. at ---, 113 S.Ct. at 2485.
The Court also agreed with our reading of McNary,
limiting its reach to situations in which plaintiffs raised
“procedural” objections that could not receive "practical
judicial review within the [statutory] scheme." Compare
CSS, --- U.S. at ---, 113 S.Ct. at 2497 with Ayuda, 948
F.2d at 753.~ At the end of the day, then, the Supreme
Court conclusively foreclosed all efforts to gain federal
district court review of INS interpretations of IRCA
Jurisdiction of the federal district courts could be invoked,
as in McNary, only when it is necessary to supplement or
aid ultimate court of appeals review under section
1255a(f)(1).
I~
[W]e believe McNary holds that if the statutory
administrative and judicial review scheme provides
meaningful court of appeals review of an alien’s
legal claim, then Congress intended that scheme to
be exclusive--ousting 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 presented
to the courts of appeals that the exclusivity of
section 1255a(f)(1) gives way.
Ayuda, 948 F.2d at 753.
lla
Il.
In CSS the Supreme Court remanded the case
to the Ninth Circuit with instructions to remand, in turn, to
the district court. The plaintiffs ask us also to remand this
case to the district court. We decline to do so. In CSS,
the Supreme Court noted that plaintiffs had alleged that
members of the certified class actually tried to file
applications for legalization and had been turned away--
arguably pursuant to an INS Manual entry dealing with the
subject. The Court thought this practice, described as
"front desking,” if it had occurred, would fall under the
McNary exception. CSS, --- USS. at ---, 113 S.Ct. at 2499.
If an alien tried to file an application within the one-year
period Congress provided for seeking amnesty and was
blocked by INS officials, there would be no record on
which he could challenge the INS’ refusal to grant him
legalization. District courts would therefore have
jurisdiction to ensure that such a person had his claim
adjudicated by the INS. /d. That does not mean, of
course, as plaintiffs contend, that district courts would have
any power to consider "generic" or any other kind of
substantive challenges to the [NS’ interpretation of IRCA.
The CSS holding relying on the combination of general
ripeness doctrine and the statutory review provisions
precludes such an “end around play." CSS, --- U.S. at ---,
113 S.Ct. at 2497. On the contrary, the court suggested
that relief would be limited to requiring the INS to
adjudicate the claims. See CSS, --- U.S. at --- 0.29, 113
S.Ct. at 2500 n.29.
Our case is quite different. Here there was no class
certified. Plaintiffs sought class certification too late--after
12a
the district court’s order had been appealed to this court,
thus depriving the district court of jurisdiction--and,
therefore, no class was ever certified. Hence, we only
have five alien-plaintiffs and the organizations before us--
not a class. Our dissenting coiieague would nevertheless
remand to the district judge to permit him now to certify a
class if a search of the files of the special masters,
appointed by the district judge to identify aliens who were
discouraged from filing applications, revealed any that
were front-desked.* At oral argument four years ago,
appellants conceded that there were none, Ayuda, 880 F.2d
at 1342, and we are confident that counsel would have
brought any such to our attention long ago since we had
indicated that those persons would be entitled to relief. It
is certainly not up to the court to search for a plaintiff
upon whom to append a class certification, let alone to do
so five years after the case was brought and after judgment
in the case
None of the named five plaintiffs alleged front-
desking. Four never attempted to apply, and the fifth had
an application accepted for processing. CSS makes clear,
moreover, that the four organizational plaintiffs lack
standing. The district court, it will be recalled had
determined otherwise; indeed, all of its orders, 1acluding
the appointment of special masters to inquire into the
situation of various aliens, were predicated on that
¥
The district judge appointed special masters after
granting complete relief to the plainuffs in an unusual
effort to determine if there was anyone else who might be
affected by his order.
13a
determination. We had reserved the question of
organizational standing, but it is now quite clear, in light
of the CSS analysis, that the organizations did not have
standing to raise their claims challenging INS policies or
regulations that interpreted aliens’ rights to legalization
under IRCA. That is so because, as the Court reasoned,
these claims may only be brought in court by individual
aliens after the INS’ statutory interpretation 1s applied to
them, their application for legalization 1s denied, and they
are subject to deportation orders. CSS, --- US. at ---, 113
S.Ct. at 2497. It follows then, that an organizational
plaintiff could not undermine the statutory scheme by
suing to challenge “generic” [NS policies or statutory
interpretations that bear on an alien's right to legalization.
See Block v. Community Nutrition Institute, 467 U.S. 340,
345-48, 104 S.Ct. 2450, 2453-55, 81 L.Ed.2d 270 (1984).
That means that the district judge should have dismissed
the organizational plaintiffs from the suit.
1” The QDEs could not have had any connection to "front-
desking,” even had it occurred. As the Supreme Court
made clear, front-desking could occur only if aliens came
to an INS office with an application completed and
payment in hand, and were then turned away. See CSS, ---
US. at --- n.27, 113 S.Ct. at 2500 n. 27. Aliens who
submitted applications with the assistance of QDEs,
however, were allowed to skip review by Legalization
Assistants who might front-desk applications. Hence,
front-desking could only happen when QDEs had
absolutely nothing to do with the submission of the
application. CSS, --- U.S. at --- n.21, 113 S.Ct. at 2498
n.2l.
l4a
Nor do we perceive that the Supreme Court's
treatment of the front-desking issue is any different than
ours. We had similarly concluded that if an alien had
actually been “denied an opportunity even to file an
application,” the district court would have had jurisdiction
under McNary for the limited purpose of ensuring that the
INS adjudicated his application. Ayuda, 948 F.2d at 751.
But, as we pointed out, “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 filing
an application. See Ayuda, 880 F.2d at 1341-42." Id.
And, the government assures us, without contradiction, that
there is no manual entry involving the "known to the
government” issue that could be thought to support a claim
that front-desking occurred, and that Legalization
Assistants at INS offices were instructed to accept all
“known to the government” applicants. Our dissenting
colleague argues that the Supreme Court has set forth a
slightly more generous test in CSS because it suggested (in
a footnote) the “unlikely possibility” that an alien who had
been informed that others had been front-desked could
show that "the front desking policy was nevertheless a
substantial cause of their .ailure not [sic] to apply.” CSS, -
-- US. at --- 1.28, 113 S.Ct. at 2500 n.28. The Supreme
Court's footnote, however, was premised on allegations of
front-desking not present in our case. One could not very
well be prevented from applying because of a non-existent
policy or practice of front-desking.
Since there 1s not the slightest indication that any of
the five plaintiffs in our case suffered a harm that would
confer limited jurisdiction on the district court (such as
15a
front-desking), we see no justification in continuing this
‘ /
lawsuit.—
As we said over four years ago, what plaintiffs
sought "was an advisory ruling on a potential theory for
amnesty.” Ayuda, 800 F.2d at 1346. They wished to
evade JIRCA’s administrative and judicial review scheme
by going directly to the district court. The Supreme Court
has now definitively determined that if plaintiffs wished to
take advantage of the amnesty program, they were obliged
to follow IRCA’s procedures. For the foregoing reasons,
we reiterate that the district court lacked jurisdiction to
issue Supplemental Order V and to order the INS to grant
work authorization to aliens who failed to file applications
before the May 4, 1988 deadline. These orders are
therefore vacated.
WALD, Circuit Judge, dissenting:
1” Of course, any other alien who could allege that he or
she was actually "front-desked” might have a cause of
action under the Administrative Procedure Act to compel
INS to adjudicate his proffered application. See 5 U.S.C.
706 ("The reviewing court shall ... compel agency action
unlawfully withheld or unreasonably denied.”), CSS, ---
US. at --- 2.29, 113 S.Ct. at 2500 n.29 (noting that a
front-desked individual had nevertheless “applied” within
the meaning of the statute and c yuid compel the [NS to
adjudicate that application).
l6a
| agree with my colleagues that there is little left to
this case after four years of appeals and two remands from
the Supreme Court. Most of the 4000 illegal aliens who
allegedly did not register for amnesty by the May 4, 1988
deadline because of misinformation received from INS
agents or QDEs about their eligibility under the challenged
INS "known to the government” regulations are now
consigned to deportation or indefinite continuation of their
shadow status. In Reno v. Catholic Social Services, Inc., --
- US. ---, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ("CSS"),
the Supreme Court decided that, except in a very minute
category of cases, an undocumented alien's challenge to an
INS regulation barring her eligibility for amnesty was not
"ripe" unless she had tried unsuccessfully to apply for
legalization and been turned away (even though the alien
could not contest denial of legalization except by
surrendering for deportation). The only cracks the Court
left open for a front-end challenge were for those aliens
who had been “front-desked,” i.e., whose applications had
been turned away without filing by lower-level INS
officials, or for those aliens who might come within the
confines of the Court’s footnote 28:
Although we think it unlikely, we cannot rule out
the possibility that further facts would allow class
members who were not front-desked to demonstrate
that the front-desking policy was nevertheless a
substantial cause of their failure non [sic] to apply,
so that they can be said to have had the [challenged
regulations] applied to them in a sufficiently
concrete manner to satisfy ripeness concerns.
eeemmmneiaiimeaiaaiaie
17a
Id. -- US. at -- n.28, 113 S.Ct. at 2500 n. 28. The Court
remanded to the trial court to identify any such eligible
persons, other courts whose prior rulings, like ours, were
vacated in light of CSS, have done likewise. See Perales
v. Thornburgh, 4 F.3d 99, 100 (2d Cir. 1993); League of
United Latin American Citizens v. INS, 999 F.2d 1362 (9th
Cir. 1993); Catholic Social Services, Inc. v. Reno, 999 F.2d
221, 222 (9th Cir. 1993)
My colleagues decline to follow that route,
however, and it is from that determination that I dissent. I
do not believe that on the extensive record before us, now
spanning over five years, we can "rule out the possibility
that further facts would allow class members who were not
front-desked to demonstrate that the front-desking policy
was nevertheless a substantial cause of their failure not
[sic] to apply,” or the possibility that some of the
thousands of aliens whose claims have been investigated
by masters appointed by the district court were not actually
front-desked. I would, therefore, remanded for the
identification process contemplated by the Court in CSS.
The objections my colleagues raise to pursuing that
route are not persuasive. They say first that we have no
certified class here as was the case in CSS and some of the
other post-CSS remands, and further, since the original five
plaintiffs in the Ayuda litigation and the organizational
plaintiffs would not meet the CSS ripeness analysis so as
to be eligible to continue the case, no one else can possibly
———— =<
18a
maintain it~ The tortured procedural history of this
action, however, does not lend itself to any such neat "over
and out" solution. When Judge Sporkin made his decision
on March 30, 1988 that the INS’s "known to the
government” regulation was invalid (a decision the
government chose not to appeal), he issued Supplemental
Orders VII, LX, and X, which in tandem set up a procedure
through which aliens who had not applied for amnesty
because they were "not allowed [were] dissuaded from
filing an application by INS or its agents" could file
Statements with specially appointed masters about their
reasons for not seeking legalization by May 4, 1988.4
Ayuda, Inc. v. Meese, 687 F.Supp. 650 (D.D.C. 1988)
(Supplemental Order VII). The express purpose of this
process was to identify aliens who had been deterred in
any way from registering by the INS regulation or INS
officials and to ascertain the nature and extent of their
injury, so that appropriate remedies could be formulated.
au
I do agree that in light of the Supreme Court’s
analysis in CSS, the organizational plaintiffs would not
likeiy have any standing, although we have never decided
that issue expressly. I also would not rely on the original
five plaintiffs in the Ayuda suit, four of whom alleged only
that they did not file because they thought it "futile" and
the fifth of whom actually filed, to represent any class
created under the Supreme Court’s new test.
> The Memorandum Opinion accompanying
Supplemental Order XI subsequently changed the wording
to “individuals . . . misled to their detriment by INS’s
erroneous interpretation and related government action."
Ayuda, Inc. v. Meese, 700 F.Supp. 49, 50 (D.D.C.1988).
iemmeial
19a
See Ayuda, Inc. v. Meese, 700 F.Supp. 49, 50 (D.D.C.
1988). The aliens’ statements were to detail for the
masters the reasons why they had not registered by the
statutory deadline. See 687 F.Supp. at 672-74 (reproducing
court-ordered form requesting statement of reasons).
Given this order, the critical factual foundation of whether
any of the aliens who filed such statements are eligible
under the "front-desking” exception or footnote 28 already
exists in the masters’ files below.
Moreover, as the majority notes, a class
certification motion and a motion to add new plaintiffs as
representatives of the class have been pending for several
years. These motions have never been acted on by the
district court. After Judge Sporkin announced his intention
to retain jurisdiction over the case to formulate relief for
individuals misled or prevented for applying by the INS
(or QDEs), the original plaintiffs sought to amend their
complaint to certify a class of persons who "failed to apply
for legalization prior to May 5, 1988 because they were
dissuaded or misled . . . [by] the INS or its agents . . . OF
because they were not allowed to file or were dissuaded
fromm filing an application by INS or its agents... .
Plaintiffs’ First Amended Compliant at 17-18. This
original class certification motion was filed in September
1988 and renewed two years later. Judge Sporkin held the
motion in abeyance pending completion of the masters’
work. See 700 F.Supp. at 52.
A search of the masters’ files would reveal whether
any of the putative class members meets the new CSS
20a
ripeness test If such persons exist it should not be too
late for the court to rule on a certification motion to allow
the action to continue. Rule 23(c)(1) requires a ruling on a
class certification motion "[a]s soon as practicable after the
commencement of an action.” Fed.R.Civ.P. 23(c)(1). The
district court held the motion for class certification open
pending the results of its special inquiry "to determine who
the injured parties are and the extent to which their injuries
were caused by the government's conduct and need to be
remedied." Ayuda, 700 F.Supp. at 50. Although the words
“as soon as practicable" are not without effect, "there 1s no
set deadline by which the court must act." Montelongo v.
~ Throughout the diffuse record there are indications
that such persons may exist. See, e.g., Defendants’
Opposition to Renewal of Plaintiffs’ Motions for Leave to
Amend Compiaint and for Class Certification, Sept. 26,
1990, at 21 ("testrmony . . .show[s] wide variation as to
whorm [at INS] the aliens spoke to, what they said, and
what was said to them"); Special Masters’ Report, Oct. 25,
1989, at 2 (identifiable class of aliens exists who did not
file by the May 4, 1988 deadline because they were
illegally dissuaded or misled by the INS); Transcript of
Status Call, May 2, 1988, at 35-36 (statements that INS
officers in two cities are not accepting applications for
legalizing applicants eligible under the terms of the court’s
order); Bedor Affidavit, attached to Notice of Evidence of
Defendants’ Failure to Comply with the Court’s Orders and
Renewal of Request to Toll May 4, 1988 Filing Deadline
at § 10 (refusals to accept "known to the government"
applications without fee despite order of the court); Tafoya
Affidavit at { 20 (applicants told by INS they were
ineligible under "known to the government" criteria and
declarant not aware INS kept records of such rejected
applicants).
2la
Meese, 803 f.2d 1341, 1351 (Sth Cir. 1986) (decision to
certify made three years after institution of suit), cert.
denied, 481 U.S. 1048, 107 S.Ct. 2179, 95 L.Ed.2d 835
(1987), see also Larionoff v. United States, 533 F.2d 1167,
1183 n. 40 (D.C.Cir.1976) (citing Marvin E. Frankel, Some
Preliminary Observations Concerning Civil Rule 23, 43
F.R.D. 39, 41-42 (1967)) ("[T]he time when a hard
determination is ‘practicable’ as to the propriety of a class
action will obviously vary from case to case.... [I]t
may not be possible to decide even tentatively near the
outset of the case whether it should continue as a class
action.”) aff'd, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48
(1977). in light of the complexity of the legal and factual
issues raised in this case and the labyrinthine route it has
followed through the appellate courts, we should afford the
district court considerable latitude with regard to matters of
timing. Moreover, "although the question of the propriety
of class certification after a judgment on the merits in
favor of the class is a difficult one," Postow v. OBA
Federal Savings & Loan Ass'n, 627 F.2d 1370, 138]
(D.C.Cir. 1980), we have long recognized that "there may
be equitable reasons for allowing post-judgment
certification in some cases." /d. at 1383. Because of the
singularly difficult posture of this case, and because strong
considerations of equity should animate its resolution, I
would give the district court an opportunity now to rule on
a class certification motion that would accommodate the
CSS test, if that proves feasible.
My colleagues also argue that our earlier opinions
acknowledged that if any alien claiming they were "known
to the government” because of failure to file required
reports under section 265, 8 U.S.C. § 1305 (1970), had
22a
actually been turned away from filing, they could have
brought suite in the district court, but that no such cases
were advanced. See Ayuda, Inc. v. Thornburgh, 948 F.2d
742, 751 (D.C Cir. 1991). Such persons, however, would
not at the time have been plaintiffs in the suit, and their
Statements may not yet have been filed with the masters
or, if filed, may well have been buried among the 4000
stories in the masters’ files. Moreover, non-section 265
aliens who would fall into the "front-desker” or footnote 28
categy ies would have had little motivation to come
forward in the section 265 portion of the case, since the
earlier district court decision invalidating the “known to the
government” regulation not involving section 265 alien was
never appealed. And although the government now asserts,
as the majority points out, that "known to the government’
applications were never “front-desked,” this policy appears
only to have been instituted after the March 30 decision by
the district court invalidating the regulation The
4
See Press Release attached to Notice of Measure to
be Taken in Response to Court’s Order of March 30, 1988,
Apr. 4, 1988 (new policy announced in March 1988
permitting filing of “known to the government”
applications).
My colleagues cite a "concession" at oral argument
by plainuff's counsel almost five years ago that “at most,
some \oca] 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 (cited in
maj. at 25]). We have no transcript of that argument, so it
is not possible to evaluate in what context any such
concession may have been made. I do note, however,
(contuunued... )
i aaaiaiiiaaiaaaiaaiaaiin
plaintiffs have had no opportunity to respond to that claim
See Plaintiff's Response to July 7, 1993 Order at 9
(asserting need for review of applicants who were "front
desked" by the INS or a QDE or who fall within the s< ope
of CSS footnote 28)
[In addition, the test for eligibility to sue touched
upon in earlier opinions was not precisely the one adopted
by the CSS Court, years later. The majority found no
evidence of the INS “literally closing the INS’ office doors
in aliens’ faces." Ayuda, 948 F.2d at 751. The Supreme
Court was a tad more generous, acknowledging the
possibility that if the “front-desking policy was
“(...continued)
that such a concession appears to be at odds with what the
plaintiffs have said subsequently, see Plaintiff s Response
to July 7, 1993 Order at 9, and with other evidence in the
record, see note 3 supra, and even on its Own terms does
not apply to non-section 265 aliens who apparently had
been front-desked prior to Judge Sporkin’s March 30. |982
order. See, e.g, INS News Release, Apr. 11, 1988,
attached to Supp.App. to Defendant-Appellants’ Brief at &
(No. 90-5293) (INS ‘will immediately begin accepting
applications for legalization from some non-immigrant
aliens in this country who were previously viewed as
ineligible for the program.”) (emphasis added): Affidavit of
William S. Slattery, Assistant Commissioner Legalization,
Apr. 28, 1988 at | 9, attached to Supp.App. to Defendant-
Appellants’ Brief at 2 (No. 90-5293) ("INS has not
received any complaints that any Legalization Office or
officer has refused to accept applications in the ‘known to
the Government’ category, since we have begun our efforts
to publicize the court's orders”) (emphasis added)
24a
nevertheless a substantial cause of their failure not [sic] to
apply, aliens might be eligible.” CSS, -- U.S. at -- n. 28,
113 S.Ct. at 2500 n. 28. This new and somewhat broader
test would now be the central focal point of the
Standing/ripeness inquiry in any continued litigation. It
certainly was not so in the earlier rounds.
There is no doubt that this is the last action of the
Avuda drama. Given the narrowness of the exception left
open by the Supreme Court and the ready availability of
information as to whether any aliens within this exception
exist, together with the pendency of a class certification
mouon for over five years that would include such persons
and a motion to add new plaintiffs as class representatives,
a remand to allow the plaintiffs to renew a class
certification motion for persons registered with the Masters
who meet the CSS ripeness criteria seems the safe,
humane, and legally correct thing to do
I respectfully dissent from the panel’s refusal to
remand for that limited purpose.
25a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Nos. 88-5226, 90-5293, and 89-5301
September Term, 1989
CA 88-00625
AYUDA, INC. et al.,
V.
Janet RENO, individually and as Attorney
General of the United States, et al.
Appellants
United States Court of Appeals
For the District of Columbia Circuit
FILED JAN 27 1994
RON GARVIN
CLERK
BEFORE: Wald, Silberman ard D. H. Ginsburg,
Circuit Judges
ORDER
Upon consideration of appellees’ Petition for
Rehearing, filed December 10, 1993, it is
ORDERED, by the Court, that the petition is
denied.
Per Curiam
FOR THE COURT:
26a
RON GARVIN, CLERK
BY: /s/ Robert A. Bonner
Robert A. Bonner
Deputy Clerk
Circuit Judge Wald would grant the Petition for
Rehearing.
27a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Nos. 88-5226, 90-5293, and 89-5301
September Term, 1989
CA 88-00625
AYUDA, INC. et al.,
Vv
Janet RENO, individually and as Attorney
General of the United States, et al.
Appellants
United States Court of Appeals
For the District of Columbia Circuit
FILED JAN 27 1994
RON GARVIN
CLERK
BEFORE: Mikva, Chief Judge; Walkd, Edwards,
Silberman, Buckley, Williams, Ginsburg,
Sentelle, Henderson, and Randolph, Circuit
Judges.
ORDER
Appellees’ Suggestion for Rehearing En Banc has
been circulated to the full court. The taking of a vote was
28a
requested. Thereafter, a majority of the judges of the court
in regular active service did not vote in favor of the
suggestion. Upon consideration of the foregoing it ts
ORDERED. by the Court en banc, that the
suggestion 1s denied.
Per Curiam
FOR THE COURT:
RON GARVIN, CLERK
BY: /s/ Robert A. Bonner
Robert A. Bonner
Deputy Clerk
Chief Judge Mikva and Circuit Judge Wald would
grant the suggestion. A statement of Circuit Judge Wald ts
attached.
Wald, Circuit Judge, dissenting from the denial of
the suggestion for rehearing en banc.
For reasons discussed in my dissent in Ayuda, Inc.
v. Reno, 7 F.3d 246, 251-54 (D.C.Cir.1993), I would grant
the suggestion for rehearing en banc to remand the case to
the district court in order to determine whether there are
undocumented aliens in the Masters’ files eligible to
pursue this five-year-old challenge to the INS amnesty
regulations under the Supreme Court’s criteria in Reno v.
Catholic Social Services, Inc. ----- U.S. ----- , 113 SA2.
2485, 125 L.Ed.2d 38 (1993). This was the course
followed by the Supreme Court itself in Catholic Social
Services and by other courts of appeals on remand from
the Supreme Court after Catholic Social Services was
decided. See Perales v. Thornburgh, 4 F.3d 99 (2d
29a
Cir.1993); League of United Latin American Citizens v.
INS. 999 F.2d 1362 (9th Cir.1993); Catholic Social
Services, Inc. v. Reno. 996 F.2d 221, 222 (9th Cir.1993)
The petitioners here tell us that ¢ligible plaintiffs are in
fact registered in the Masters’ files. and I do not think we
need or should ignore their plight.
30a
AYUDA, INC., et al., petitioners, v. Janet RENO,
Attorney General of the United States, et al. No.
91-1924.
June 28, 1993. On petition for writ of certiorari to
the United States Court of Appeals for the District of
Columbia 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 Columbia Circuit for further consideration in
light of Reno v. Catholic Social Services, Inc. 509 US ----,
125 L Ed 2d 38, 113 S Ct ---- (1993).
Same case below, 292 US App DC 150, 948 F2d
742.
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
32a
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:
hile: nace r ts
33a
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.
Haitian 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 II 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.’’
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 id. § 1255a(aX1XA). 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(ay2\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
Near Ril hie IRIEL IAL Mes
35a
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 alien’s legalization application on the
ground that the absence of forms was insufficient to es-
tablish knowledge, the district court granted plaintiffs’ 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(3KA), 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).
* 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).
36a
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(f1) (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
Onli As eae
37a
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
38a
that such a recommendation would be made, does not con-
stitute final agency action.” Id. (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.
B.
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
2
3
4
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4
Weird RMR IT oe de fom T
Nn ene eee ae ee ean eee. Tye
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39a
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.” Id. 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(eX3XB), 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-
40a
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, e.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.
Te ee ee ee ns
init aie pRh cA 2 i ies te hte a4
4la
iens as plaintiffs in the action and, presumably, the or-
ganizational plaintiffs would have no greater rght (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 deniais of SAW status” and not of “‘a group
of [INS] decisions’’ or ‘‘general collateral 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 individual 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.
42a
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.
43a
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
44a
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 appeal 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
AAR aad 6 aan ih. UNI Ce ea ee eo ee
45a
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 filing 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,
46a
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
47a
on McNary to sue directly in district court.®
The only real argument that plaintiffs make to the effect
that the statute’s judicial 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 cceniext 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.
48a
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\X5). 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
’ 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 PRACTICE 4 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).
49a
denied to the difficult choice of either courting deportation
or not seeking judicial review. See generally Kanstroom,
Judicia. 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.
50a
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 swallew 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 or 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-
eC RRND
;
4
4
2
z
is
Ay
5la
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 individua: 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 courts must respect the scheme of
judicial review that Congress specifically provided. Our prior opinion
also explained why International 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.
52a
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 Executive 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
exhaustion 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
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53a
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) (“[TJhe 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 withheld 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
54a
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.
§ 1651(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
Lae ee, a ae TY
55a
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{ing 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 willfully 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,
aaa iii
56a
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 proviced 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 wh 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
57a
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 con:ider 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.
58a
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 ‘s denied; (3) the threat of sub-
stantial harm to others if the relief is granted; and (4) the
public interest. See, eg., Ambach v. Bell, 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.
Cc.
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
59a
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(aX1}(4), for entitlement to
legalization and work authorization for undocumented non-
immigrant aliens. See id. § 1255a(e\X2); 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; ef 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
60a
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 ‘[n]o 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(f\(2) is the only part of the review sub-
section at issue in the Ayuda cases, see id. § 1255a(f1)}(4), that is not
duplicated in the review subsection at issue in McNary, see id.
§ 1160(eX1}43).
a lt a
aw we ie
6la
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. 18; 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,” M-Nary, 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. PI.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
62a
any ciearer its intention to prevent judicial intervention
into the INS’ enforcement of the application deadline; we
do not see a plausibie 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
cases such as Block, 467 U.S. at 348-52, 104 S.Ct. at 2455-
57, or Morris v. Gressette, 432 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 Conc.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 wel] be equitable reasons to allow these individ-
63a
We hold that both 8 U.S.C. § 1255a(fX1) and (fX2) deny
the a'strict 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(aX15\A) & (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 wel] 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.
64a
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 (3d Cir.1976); 11 C. WricHT
& 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 fortiori 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).
ses *& & & *&
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).
65a
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 is so ordered.
Dissenting Opinion of Circuit Judge Wald
WALD, Circuit Judge, dissenting:
In 1986, Congress passed and 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 illega! immigration and to provide amnesty for
those who, despite their illegal status, had remained in the
United States fc: 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 legalization. Much to its credit, Congress
66a
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 mirrors.’’?
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
ray 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(cK2).
‘This phrase is borrowed from Daniel Kanstroom, Judicial Review
of Amnesty Denials, 25 Harv.C.R.-C.L.L.Rev. 53, 64 (1990).
See, ree Coed
67a
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 orders 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 [another 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,
68a
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 Suppiemental 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.
*The majority’s comment that there is no evidence that ‘“‘the five
individual alien plaintiffs,” Majority opinion (‘‘Maj. op.”) at 751, were
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. § 1255a(aX2\B) not to the § 265
intervention. Ayuda, Inc. v. Thornburgh, 880 F.2d 1325, 1327
(D.C.Cir.1989), vacated and remanded, US. , 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. Jd.
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.
ee eee 1
ee a ee
69a
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 mar-
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. ».
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-
plementai Order V—that, on remand, is the first of the
consolidated cases before us [hereinafter “Ayuda I’’}.
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
‘vas 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 [X 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
70a
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(aX1), (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 “‘iJt
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 shal] 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.
Ns ese
Tla
Id.
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. I
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)
72a
precluded the district court from hearing the plaintiffs’
challenge and that, pursuant to § 1160(eX3XA), 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(eX3) 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:
[Wje hold that § 210(e) applies only to review of denials of in-
dividual SAW applications. Because respondents’ action does not
73a
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 “‘abuse of discretion.”’ See 8 U.S.C.
§ 1160(eX3XB). The Court found that “such a standard
does not apply to constitutional or statutory claims, 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 28
U.S.C. § 1331 to hear this action remains unimpaired by § 21((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 748 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 federal 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 neg-
ative. Abuse of discretion review, the Court found, suggests that Con-
gress intended § 1160(e), and thus § 1255a/f), to govern primarily judicial
review of the facts found in administrative adjudications of individual
legalization applications.
74a
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. Jd. 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.
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. 2013, 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
alti ME ne! +e
75a
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-
bursement for a particular form of surgery. The governing
statute, however, precluded judicial "eview 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 I. First, and most
significantly, the Ringer Court was interpreting a different
76a
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(f\(1). 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(h) (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, finding 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
:
i
}
;
77a
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 that 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
78a
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 eligibility.”” 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 appeals 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 support the efficient administration of the IRCA
legalization program.
Sete tet as react i a)
on. Lee? Pia
79a
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 Amounts 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. Natl, 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
80a
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 impossible
to present in an individual deportation proceeding or in
review of that proceeding before this court.’’ Id. 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
ean obtain an injunction stopping the unconstitutional
practice.
Id. at 498 (footnote omitted).
The majority conveniently ignores the McNary Court’s
concern regarding the insufiiciency 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
Review, 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), affd 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’’).
_—
Ute eA wabidcnebs hE rtald at owt
8la
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.”’ Jd.*
*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 conceivabie 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 wer<j 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, Johnson v. United States R.R. Retirement Bd.,
82a
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 misplaced. 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(f)]
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.
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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.
In the case of no, or even fatally defective, judicial review,
the burden falls on the government to demonstrate that
Congress intended to preclude general federal question ju-
risdiction. 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. § 1331(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-
84a
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 superclear 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 §8.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.
Il. 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, ___ U.S. ___ , 110 S.Ct.
3177, 111 L.Ed.2d 695 (1990), which the majority cites for the prop-
osition that there is no “general right ... te 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 “‘[i}f there is in fact some specific
order or regulation, applying some particular measure across-the-board
.. . It can of course be challenged under the APA by a person adversely
affected... ."” Id. at 3190 & n. 2 (emphasis in original).
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85a
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.” Id. at 149, 87 S.Ct. at 1515.4
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 there 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
until 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-
wen Health Research Group v. FDA, 740 F.2d 21, 30 (D.C.Cir.1984).
86a
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 polic
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