# Appendix — Ayuda, Inc. v. Reno > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1648%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 513 U.S. 815 ## Text 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. —————— 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 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 18 aa Falk wee Bao wad Daa kia WA AP Avie - ? 2 a = Unless and until Ayuda is reversed or overruled by the United States Supreme Court or by this court en banc, Ayuda remains the law of this circuit and no amount of hardship the appellees may suffer as a consequence can confer jurisdiction on the district court. WALD, Chief Judge, concurring in part and dissenting in part: This motion for stay poses a difficult jurisdictional issue: who, if anyone, within our federal judicial hierarchy has the power to provide interim relief to ensure the survival in the coming months of the alien claimants in this case, who are anxiously awaiting a Supreme Court ruling that will determine whether they will be able to press their claims for legalization under the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1255a. It is a sufficiently difficult and troubling issue that neither side can find a controlling precedent to cite. And all sides must certainly feel some discomfort that immigrants, found by the district court to be eligible for legalization, and whose petition from a court of appeals ruling overturning one district court order applying to one subset of the group is presently awaiting decision by the » See Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555 (11th Cir. 1989), cert. granted sub nom. McNary v. Haitian Refugee Center, Inc., ___ U.S. ___, 110 S.Ct. 2584, 110 L.Ed.2d 265 (1990). 112a Supreme Court,” are left with no recourse for interim relief. These aliens, numbering between 4,000 and 6,000 persons, have sought interim relief from the district court in order to survive until the Supreme Court decides the jurisdictional issue. They introduced testimony before the district court showing that some among their numbers will likely go hungry or without shelter if they are not provided with the temporary work permits currently denied them by the Immigration and Naturalization Service ("INS") -- permits, incidentally, that are routinely given to aliens who have deportation proceedings pending against them. These aliens, because they have sought relief in the form of declaratory judgment and injunction rather than in the context of deportation proceedings, currently must struggle to survive without such work permits pending the Supreme Court’s decision on the jurisdictional issue. The district court, finding this situation intolerable, ruled that those alien claimants who have undergone eligibility screening for permanent relief should be provided with temporary work permits. The panel's sole reason for staying the district court’s order is that this court has ruled -- in one appeal from parts of one order governing one portion of the aliens involved in this case -- that the district court has no jurisdiction to grant relief except in individual deportation proceedings. See Ayuda, Inc. v. Thornburgh, 880 F.2d \/ Indeed, oral argument has already been held in the controlling case and a decision can be expected within a few months. 113a 1325 (D.C. Cir. 1989), petition for cert. pending, 58 U.S.L.W. 3451 (No. 89-1018) ("Ayuda"). We are asked to infer from that ruling that the district court thereby lost all jurisdiction to preserve the status quo as to all of the other aliens whose rights were adjudicated in prior orders never appealed by the government to this court. I do not find this logic compelling. The district court’s initial declaratory judgment in favor of plaintiffs, and all but one of its supplemental orders in this protracted and wide-ranging case, retain the force of law at this point. As just noted, the government appealed in Ayuda only parts of one order of the district court, affecting only one group of aliens (the § 265 claimants). Moreover, the government affirmatively acquiesced in the district court’s basic holding rejecting the INS’ interpretation of the "known to the Government" provision of IRCA, 8 U.S.C. § 1255a(a)(2)(B).* Although the taking of an appeal divests the district court of jurisdiction and places in it the court of appeals, it does so only with respect to those aspects of the case involved in the appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982). Thus, with respect to those claimants not directly 2/ = The Ayuda majority acknowledged as much. See 880 F.2d 1328. See also Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C. Cir. 1989) (Ruth B. Ginsburg, J., dissenting | from the denial of rehearing en banc) (noting "the court’s i recognition that the government has acquiesced in prior i rulings of the district court ... [and] the court has precisely } limited its judgment to the vacation of Supplemental Order V"). ; involved in the Ayuda appeal, I believe the district court presently retains its authority to grant "further relief" under the Declaratory Judgment Act, 28 U.S.C. § 2202. See Horn & Hardart Co. v. National Rail Passenger Corp., 843 F.2d 546, 548 (D.C. Cir.), cert. denied, 488 U.S. 849, 109 S.Ct. 129, 102 L.Ed.2d 102 (1988). The government argues that the court of appeals decision in Ayuda, finding no jurisdiction to grant relief in the case of the appealed order concerning the § 265 claimants, infects all of the prior orders concerning the non-§ 265 claimants. Ayuda, the government says, is the "law of the circuit" and no district judge may go against it in any way. Although that must certainly be true as to any future cases while the Ayuda decision remains extant, I question whether it means that a district court is barred in all circumstances from taking action to enforce or supplement decisions it has already rendered that have become final because the government has neither taken an appeal nor initiated a motion to vacate. The issue, in order words, is whether a district court must in all cases sit by and see its final orders undermined or violated outright because, in a separate appeal, the court of appeals has ruled in a way that could logically be applied to prior cases. Certainly the answer is not so easy as my colleagues would suggest in their laconic order. It is also important to note that, due to the pendency of appellees’ petition for certiorari in Ayuda, no mandate has issued from this court based on that decision. See Fed.R.App.P. 41(b). The jurisdictional issue decided in Ayuda is nonetheless squarely before the Supreme Court, which has granted certiorari in Haitian Refugee ee OY ee 1l5a Center v. Nelson, 872 F.2d 1555 (11th Cir. 1989), cert. granted sub nom. McNary v. Haitian Refugee Center, ___ U.S. __, 110 S.Ct. 2584, 110 L.Ed.2d 265 (1990), a case that raises the identical issue” If upheld by the Supreme Court in McNary, Ayuda’s jurisdictional holding might (although even this is not altogether clear) implicate the authority of the district court to grant further affirmative relief with respect to the non-§ 265 claimants, and for this reason the district court has cautiously refrained from granting permanent relief to any of the claimants while the jurisdictional question is pending before the Supreme Court. But, given the current absence of any mandate from the court of appeals and pending the final word on the jurisdictional issue from the Supreme court, this discretionary exercise of restraint does not mean that the district court lacks jurisdiction to provide those claimants not directly involved in Ayuda with the interim relief that it concludes is essential to allow them to survive until such time as the Supreme Court acts. The district court's traditional authority to determine its jurisdiction--and the controlling effect of that determination if unchallenged on appeal--presently remains unimpaired as to these claimants. Until the Supreme Court rules on the underlying jurisdictional issue, that authority includes, minimally, the power to maintain the status quo. See C. Wright, The Law of Federal Courts § 16 (4th ed. 1983). Given the lack of any controlling authority pointing in the opposite direction, I would give the district court the ~ The Supreme Court apparently is holding the petition for certiorari in Ayuda in abeyance, at the request of the government, until it reaches a decision in McNary. 116a benefit of any doubt in this case as to its authority to preserve the status quo by ensuring that the claimants affected by the nonappealed orders are able to survive until the Supreme Court acts. Even if I am wrong and such authority does not exist, I believe the court of appeals itself has that authority and that we may temper or stay the "law of the circuit" in order to preserve the status quo until that law can be validated or rejected by the Supreme Court. It would be a cruel and irrational system of justice indeed that would not lodge that power somewhere and that consequently would permit those affected by this court’s ruling in Ayuda, a challenge to which has already been argued in the Supreme Court, to perish before they can enjoy the benefits of a possible victory. It is a somewhat harder question for me whether the district court has jurisdiction to provide interim relief to the § 265 claimants, but on balance I conclude that it does not and that any interim relief given to these claimants therefore must come from this court. As noted above, a district court normally loses jurisdiction over all aspects of a case that are appealed. Ordinarily, then, this court would be the only court with jurisdiction to provide interim relief to the § 265 claimants given that no mandate has yet issued from this court pursuant to Ayuda and the Supreme Court technically has yet to act on the petition for certiorari. The rule depriving the district court of jurisdiction is, however, subject to a number of exceptions. A district court retains jurisdiction, for example, to issue orders in certain circumstances staying, modifying, or granting injunctions, to direct the filing of supersedeas bonds, and to issue orders affecting the record on appeal, the granting of bail, and similar matters. See Fed.R.App.P. Teed sade tle A. oh els hie OL ee ee Te Ee een ee 117a 7, 8, 9, 10, 11; Fed.R.Civ.P. 62(c). Although none of these established exceptions directly applies in this case,* several courts have held that the rule, being judge-made rather than statutory, is merely prudential and should be departed from where considerations of judicial economy so dictate. See, e.g., Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90 (3d Cir. 1988) ("[T]}he rule] is designed to prevent the confusion and inefficiency that would result if both the district court and the court of appeals were adjudicating the same issues simultaneously. As a prudential doctrine, the . rule should not be applied when to do so would defeat its purpose of achieving judicial economy."). Ultimately, however, I agree with the government that the district court does lack jurisdiction to provide | interim relief to the § 265 claimants. The government's appeal in Ayuda divested the district court of jurisdiction over those claimants and placed jurisdiction in this court, and it would take more than the superior fact-finding and relief-granting capacities of the district court in this situation to justify departing from the traditional rule that 4/ ¥ It is arguable that Fed.R.Civ.P. 62(c) provides authority for the district court’s action with respect to the § 265 claimants. That rule provides as follows: "When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party." Cf. Fed.R.App.P. 8(a). The unusual posture of this case makes it doubtful, however, that it is "pend{ing]" on "appeal" within the intended meaning of this rule. Mei sal ae ED Rai Nal OR eaten 7 rae! 118a the district court may not act further in the absence of a mandate from this court finally disposing of the appeal. Until the Supreme Court either grants certiorari in Ayuda or this court issues mandate based on the Ayuda decision, this court is the only court that may provide interim relief to the § 265 claimants, and these claimants should pursue such relief in this court.2 a Because I conclude that the non-§ 265 claimants survive the threshold jurisdictional challenge made by the government, I turn briefly to the analysis specified in D.C. Circuit Rule 7(h)(1) for stay of judgment or order of the district court. I believe that the government has failed to demonstrate that it or the public interest would be irreparably harmed if the motion for stay were denied as to the non-§ 265 claimants -- in sharp contrast with the undeniable harm that will befall those claimants who cannot survive without work authorization if a stay is granted. As to the government’s argument that it is likely to succeed on the merits in the underlying action, I do not agree that JNS v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988), necessarily deprives the district court of authority to order permanent relief to the affected aliens because they failed to file timely applications for naturalization. Pangilinan held that neither estoppel nor the equitable authority of courts to craft appropriate remedies gives federal courts the authority to order that someone be made a citizen of the United States. 486 U.S. at 883, 108 S.Ct. at 2215-16. However, as discussed in Jn re Thornburgh, 869 F.2d 1503, 1512-17 (D.C.Cir. 1989), the situation presented in this case may significantly differ from that presented in Pangilinan. As noted in Thornburgh, "[t]he only form of relief specifically (continued...) Dee eer mt 7 fo _ aegis aie ie RR Pia hi ech at Ds stud Os tsi crcs aa a ae esac ie ja 119a I would therefore deny the motion for stay as to the non-§ 265 claimants® and grant it as to the § 265 *...continued) disapproved by the Pangilinan Court was the lower courts’ asserted "power to make someone a citizen of the United States.”"" 869 F.2d at 1517. Pangilinan does not foreclose a due process challenge to the actions ef the INS on the grounds that appellees were afforded an unreasonable short period in which to file application for amnesty; Pangilinan also does not explicitly rule out the concept of "constructive filing" within the statutory deadline by those aliens who attempted to comply but who, through no fault of their own, were prevented from doing so by INS action. Two courts directed confronted with this issue have held that Pangilinan does not preclude relief. See Zambrano v. INS, Civ. No. S-88-455 EJG, opinion at 21 (E.D.Cal. Aug. 9, 1988)("applicants who were discouraged from applying by reliance on allegedly illegal [INS] regulations have been denied the twelve month application period Congress intended"); League of United Latin American Citizens v. INS, No.87-47570-WDK, opinion at 8 (C.D.Cal. Aug. 15, 1988) ("[w]hat is available [after Pangilinan], however, . . . is an order enjoining the INS from denying [plaintiffs] the opportunity to apply for an adjustment of status on timeliness grounds when the untimeliness resulted from in INS’ erroneous policy"). | therefore conclude that appellants have not met their burden of demonstrating that they are likely to succeed on the merits. Ie I would, however, limit the scope of the interim relief provided by the district court to those non-§ 265 claimants who have survived the eligibility screening process and who can make individual showings of their (continued...) as i aE TOA EE TOL ON PEED EOE TIE ANN Ht PMN ANN: eS Hint ne rata cristo Ys macy manana = mA rt A pay 120a claimants, indicating that the latter could apply for interim relief to this court. The Ayuda case has been a long and not yet completed trek for these aliens and for the district judge who has presided over the case for more than two years. The immigrant claimants won the first several rounds, only to have one segregated portion of their ranks lose one appeal on jurisdictional grounds in the court of appeals. That ruling, in conflict with the Eleventh Circuit's decision in McNary, is currently under active consider tion by the Supreme Court. But winter is almost here, and without temporary work permits many of the aliens face severe hardship. I believe it incumbent upon our judicial system to identify the proper source for stopgap relief in this situation and to act with dispatch upon their request for such relief. I can only hope that at some point our system does this. ©(...continued) inability to meet minimal needs of food, shelter, and medical care. ee eee ee ee ee orn rE Sen ee ie) eC mann a tae j ; x | 5 | % 12la United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued March 7, 1989 Decided July 18, 1989 No. 88-5226 AYUDA, INC., et al. v. RICHARD THOKNBURGH, et al., APPELLANTS Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-00625) Donald E. Keener, Attorney, Department of Justice, with whom David J. Kline, Assistant Director, Office of Immigration Litigation, Department of Justice, and Jolin R. Bolton, Assistant Attorney General, Civil Division, De- partment of Justice, were on the brief, for appellants. Wayne H. Matelski, with whom Lynda S. Zengerle, Carolyn Waller, Michael Rubin, David Aronofsky and Deborah Sanders were on the brief, for appellees. Before: WALD, Chief Judge, SILBERMAN and D.H. GINSBURG, Circuit Judges. : : b t b ' i : f : : TAN ROR EET TP PG PORE A RIGS LAER NS DIRE Al on AA EES He ws 122a Opinion for the Court filed by Circuit Judge SILBERMAN. Dissenting opinion filed by Chief Judge WALD. SILBERMAN, Circuit Judge: This is an appeal from a declaratory order and injunction issued by the district court concerning implementation of the legalization or “amnesty” provisions of the Immigration Reform and Control Act of 1986 (“IRCA”). We hold the district court lacked jurisdiction and therefore vacate the order. I. IRCA, passed in 1986, imposed civil and criminal pen- alties upon employers who hire illegal aliens. Congress, through that approach, sought to discourage illegal im- migration into the United States and to make it difficult for undocumented aliens to remain in the country. As part of a legislative compromise, the Act provided for the legalization of those immigrants who had entered the United States unlawfully prior to January 1, 1982, and had resided continuously in the country in an unlawful status since then. It was said that “past failures to en- force[] the immigration laws have allowed [illegal immi- grants] to enter and settle here” and that “the alternative of intensifying interior enforcement or attempting mass deportations would be . . . costly, ineffective and incon- sistent with our immigrant heritage.” H.R. Rep. No. 682, 99th Cong., 2d Sess. pt. 1, at 49 (1986). As a corollary, Congress also provided for the legaliza- tion of nonimmigrants, who entered the country lawfully (for example, as employees or students) but whose pres- ence subsequently became unlawful, so long as their status was unlawful prior to January 1, 1982 and they re- sided continuously in the United States after that date.! 1 Nonimmigrant aliens are special classes of aliens who are lawfully admitted to the United States and have no intention of abandoning permanently their residence in a foreign country. See 8 U.S.C. §1101(a) (15) (1982). Nonimmi- 123a Perhaps counterintuitively, then, in order to qualify for legalization under this corollary provision to the general amnesty program, the nonimmigrant had to prove his _ illegal status prior to 1982. That could be accomplished, according to section 245A of the Ac:, in one of two ways: In the case of an alien who entered the United States before January 1, 1982, the alien must estab- lish that the alien’s period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien’s unlawful status was known to the Government as of such date. 8 U.S.C. § 1255a(a) (2)(B) (Supp. V 1987) (emphasis added). This case involves the interpretation of the second clause of that provision: what does “known to the Gov- ernment” mean? In 1987, the INS issued a regulation defining “Government” to mean only the Immigration and Naturalization Service, based on the notion that the At- torney General and the INS were charged with enforce- ment of the immigration laws (and implicitly responsible for “past failures’) and only they could ascertain—truly “know’’—that an alien’s status was “unlawful.” A broader interpretation of “Government,” the agency concluded, would make administration of the legalization program difficult and “would vest [other] government agencies with an authority that Congress spec*fically granted only to the Attorney General.” 52 Fed. Reg. at 16,206 (1987). The regulation provided that an alien who originally en- tered legally could establish that his subsequent illegal status was “known to the Government” prior to 1982 through one of the following documents: (1) an INS record received from another agency, referring to a clear statement or declaration by the alien to the other federal agency that he was in violation of nonimmigrant grants include, inter alia, foreign students and managerial employees of companies located in the United States. 124a status; (2) a record showing an affirmative determina- tion by the INS prior to January 1, 1982 that the alien was subject to deportation proceedings; (3) a copy of a response by the INS to any other agency, stating that a particular alien had no legal status in the United States; or (4) school records which establish that a school forwarded to the INS a report clearly indicating that the applicant had violated his nonimmigrant status prior to January 1, 1982. Id. at 16,208; 52 Fed. Reg. at 43,845 (1987). Under the statute, all aliens seeking to qualify for legalization were obliged to apply for an adjustment of status within a twelve-month period that expired on May 4, 1988. On March 8, only two months before the deadline, appellees, which include four organizations that advise and counsel aliens—Ayuda, Inc., The Ethiopian Community Center, the Latin American Youth Center, and the Mexican American Legal Defense and Educa- tional Fund—and five individual aliens, sued in district court claiming that the INS regulation was based on an impermissible interpretation of the statute. They sought a declaratory order and injunction preventing the INS from applying a “known to the Government” standard that barred an alien from legalization “whenever the fed- eral Government, through any of its agencies, depart- ments, bureaus or entities has or had evidence that, sep- arately or in combination, shows that such alien had violated his or her nonimmigrant status prior to January 1, 1982.” The government challenged the jurisdiction of the district court, asserting that the organizational plain- tiffs lacked standing to sue, and that review of legaliza- tion determinations was available only in the court of appeals after an individual claimant had exhausted his administrative remedies and been subject to a deporta- tion order entered pursuant to section 242(b) of the Immigration and Naturalization Act, 8 U.S.U. § 1252 (hb) (1982). ty i ca ae 5 ab Lr i Ost . EBS He wnt aaNet itt Wis? athe to ta Aas si te A alia ato ymca ad Bile Sails 5b dla st Sea 7 ‘ 125a The organizational plaintiffs responded that the normal procedures for administrative determination and judicial review in the courts of appeals designed for aggrieved aliens did not preclude them from bringing an action in the district court pursuant to the APA, because their mission was to advise aliens on how to proceed through the legalization program and, particularly, on their pros- pects for receiving amnesty. The INS’s alleged miscon- struction of the statute caused injury to the counseling organizations, they complained, because it impaired their ability to provide accurate information about IRCA eli- gibility requirements to aliens and required them to 2x- pend additional resources to clarify the confusion about the correct legal standard. One organization also as- serted that the INS’s interpretation of IRCA was un- lawful and frustrated the organization’s purpose of as- sisting aliens to obtain legalization. Because the statu- tory administrative and judicial procedures were not de- signed to remedy this type of injury, appellees contended APA review was available in district court. The in- dividual plaintiffs asserted that although there is an ex- clusive statutory mechanism for judicial review of in- dividual legalization determinations, the district court nevertheless had jurisdiction to hear a challenge to the INS’s IRCA regulation as long as specific legalization applications were not involved. Appellees argued further that because the May 4, 1988 application deadline was rapidly approaching, an injunction was warranted. The district court (without reaching the claims of the individual aliens) concluded that the organizational plain- tiffs had standing to sue and that judicial review of de- cisions regarding the legalization program was available in the district court. Ayuda, Inc. v. Meese, 687 F. Supp. 650, 654-60 (D.D.C. 1988). The court held that the term “Governmen:” in section 245A meant the entire United States Government and not simply the INS, and declared the INS regulation “contrary to law.” Id. at 666. The INS was also enjoined from “any further ap- 126a plication of the regulation” anywhere in the United States, and ordered “to take steps to notify promptly all persons affected by the regulation of the court’s decision,” id., the court observing that appellee organizations “need certainty in this field, and they need it now.” Id. at 657. The government acquiesced in the court’s interpretation of the statute and did not appeal its order. The court retained jurisdiction of the case “to assure [the] decree [was] carried out fully and completely and to provide such other and further relief as [might] be necessary to implement [its] decision.” Jd. at 666. Sub- sequently, the court issued nine supplemental orders deal- ing with various aspects of the “known to the Govern- ment” provision of IRCA. The first supplemental order, issued April 6, 1988, noted that “[a] question has arisen with respect to the precise meaning of the term ‘unlawful status was known to the Government,’ ” and directed that an alien could satisfy the standard by showing that “documentation existed in one or more government agen- cies so that . . . such documentation taken as a whole would warrant the finding that the nonimmigrant alien’s status in the United States was unlawful.” Jd. (emphasis added). The government has not appealed this supple- mental order either. Eleven new organizations filed a motion to intervene in the case on April 21, 1988. They raised an issue, not previously surfaced, concerning the interrelationship be- tween section 245A of IRCA and former section 265 of the Immigration and Nationality Act, 8 U.S.C. § 1305 (1976), amended by 8 U.S.C. § 1305 (1982). Under the latter provision (prior to its amendment on December 29, 1981), every nonimmigrant alien who remained in the United States for more than 30 days was required to report his address to the Attorney General on a quarterly basis. Id.; see 8 C.F.R. § 265.1 (1981). Any alien fail- ing to comply with this reporting requirement was sub- ject to deportation unless he could show that such failure 127a was “reasonably excusable or was not willful.” 8 U.S.C. § 1306(b) (1982). The putative intervenors alleged that the INS had been “denying these nonimmigrant aliens [who violated the reporting requirement prior to 1982] the opportunity to apply for legalization, even after this court’s clarification of the ‘known to the Government’ standard in the present litigation.” In other words, the proposed intervenors claimed that the district court’s first supplemental order should be interpreted, or extended, to include an alien’s failure to provide documentation—the quarterly report—which fail- ure might have led the INS to conclude that the alien had slipped into illegal status. The district court never granted the motion to intervene, but appellees adopted the intervenors’ claim and sought, over the government’s ob- jections, a new supplemental order addressing the issue. The court granted the order—Supplemental Order V— enjoining the INS from denying legalization to nonimmi- grants who failed to meet the reporting requirements of section 265, “if INS determines that such aliens have credibly established their willful violation of section 265 and such aliens have also met all other applicable condi- tions for legalization.” 687 F. Supp. at 668. The INS was directed te accept applications from section 265 non- reporters without the statutorily-required filing fee in order to prevent aliens from forfeiting the fee should Supplemental Order V be reversed on appeal. Jd. The government does appeal this order, in effect challenging the district court’s jurisdiction over the entire case (al- though not contesting the other orders) and, alternatively, disputing the propriety of Supplemental Order V. II. As part and parcel of the amnesty or legalization pro- visions of IRCA, Congress provided for administrative and judicial review of the application of the Act. Accord- ing to the government, these provisions require exhaustion 128a of administrrative remedies before a party seeks judicial review and vest exclusive jurisdiction in the courts of appeals to review INS decisions that are or could be made in the administrative process. The district court, the government concludes, therefore lacked jurisdiction to entertain the action. The Act provides: “[t]here shall be no administrative or judicial review of a determination respecting an appli- cation for adjustment of status under this section [the legalization provisions] except in accordance with this subsection.” 8 U.S.C. §1255a(f)(1) (Supp. V 1987) (emphasis added). The Attorney General is directed to “establish an appellate authority to provide for a single level of administrative appellate review of [such] a deter- mination,” id. § 1255a(f)(3)(A), and “there shall be judicial review of such a denial only in the judicial review of an order of deportation under section 1105(a) of this title.” Jd. §1255a(f)(4)(A) (emphasis added). That judicial review “shall be based solely upon the administra- tive record” and the “determinations contained in such record shall be conclusive unless the applicant can estab- lish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.” Jd. § 1255a(f) (4) (B) (emphasis added). That standard of review—perhaps even more deferen- tial than the arbitrary or capricious standard and the requirement of substantial evidence on the record as a whole—is about as restrictive as the Congress can fashion. See Jamesway Corp. v. NLRB, 676 F.2d 63, 67 n.4 (3d Cir. 1982) (abuse of discretion more deferential than substantial evidence standard); Bennett v. Tucker, 827 F.2d 63, 68 (7th Cir. 1987) (characterizing abuse of dis- cretion as court’s “most deferential standard”). It would appear that even legal questions concerning the inter- pretation of IRCA are reviewable only under the abuse of discretion standard rather than the companion “contrary to law” formulation of the APA. That is a rare, but not 129a unknown, treatment of reviewability of legal issues. Sce Pierce v. Underwood, 108 S. Ct. 2541, 2546 (1988).* The legislative history clearly indicates that this restrictive scope of judicial review was quite purposeful. The Senate version of the bill, despite Senator Cranston’s concern that it raised constitutional problems, see 129 Cong. Rec. 12,810 (1983),? provided for “no judicial review of a decision or determination with respect to the legalization programs.” §S. Rep. No. 132, 99th Cong., 1st Sess. 48 (1985) (emphasis added). The House-Senate conference committee, however, adopted the House version. which included the less restrictive yet very deferential judicial review provisions that make up the present law. Appellees—including the individual plaintiffs—argue, nevertheless, that their suit in district court could be brought outside the framework of an appeal of a deporta- tion order, because it challenged not a “determination respecting an application for adjustment,” but rather an INS policy (drawn from its regulation) that would be applied subsequently in individual cases. In their view, the administrative procedure that must be exhausted ap- 2 It may well be that if the substantive issue in this case were presented in the context of an appeal to a court of ap- peals, the court’s scope of review and deference to agency’s interpretation would not differ markedly from the APA. Al- most surely, constitutional questions, for instance, would be subject to review de novo. Cf. Webster v. Doe, 108 S. Ct. 2047, 2053 (1988) (“[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.”). And the relationship between the “abuse of discretion” standard and the deferential scope of review | under the second prong of Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 (1984), is a subtle analytical matter. Suffice it to note that Congress used an unusually restrictive scope of review in IRCA. * Senator Cranston’s comments came during debate over an immigration reform bill in the 98th Congress, which included the same bar to judicial review as the bill passed by the Senate in the 99th Congress. 130a plies only to determinations made in individual legaliza- tion cases and not to broad challenges to an INS policy or legal position that could apply to many cases. The courts of appeals, it follows, have exclusive review jurisdiction only over the former; the latter sort of proceedings may be brought pursuant to the APA and resting on general federal question jurisdiction (28 U.S.C. § 1331) in the district court to challenge agency “actions,” like the issu- ance of the regulation before us, independent of any specific determination involving an individual alien. If appellees are correct, such a challenge could be brought not only by an organization alleging an independ- ent injury, but by an individual alien (presumably prior to a denial of legalization), a group of aliens, or an or- ganization representing their interests. These potential plaintiffs would thereby gain significant litigating advan- tages. For one thing—as happened in this very case— the district court could avoid the difficult analytical prob- lem of discerning the relationship between the “abuse of discretion” scope of review that applies in the courts of appeals and the normal scrutiny given agency interpre- tations of their organic statutes. More importantly, such an action, particularly if it includes a request for an injunction, could offer the opportunity decisively to in- fluence the INS’s behavior all over the country—and do so quickly. See, e.g., Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (nationwide relief may be appropriate even in an individual action); Decker v. O’Donnell, 661 F.2d 598, 617-18 (7th Cir. 1980) (nationwide injunction appropriate in case of facial challenge to legality of agency regulation). If denials of legalization are appealed to the courts of appeals only after subsequent deportation orders, it would take a good deal more time to gain a judicial judgment on the legality of the INS’s interpreta- tion of a statutory term such as “known to the Govern- ment.” The courts of appeals, moreover, may well differ in their views as to the legality of the INS’s construction of the statute. Even were the INS to acquiesce in an un- F z oe " 13la favorable judicial interpretation in one circuit,‘ it would surely not be obliged to do so in other circuits that had not decided the question. And, of course, an unfavorable ruling in one circuit would not prevent the INS from continuing to follow its interpretation of the statute in other cases nationwide. United States v. Mendoza, 464 U.S. 154, 160-63 (1984). ‘Whether an agency is required as a matter of law to acquiesce in an unfavorable ruling when future cases arise in the same circuit court of appeals is a matter of much debate. See generally, Note, Agency Nonacquiescence: Implementa- tion, Justification, and Acceptability, 42 Wash. & Lee L. Rev. 1233 (1985) ; Note, Administrative Agency Intracircaut Non- acquiescence, 85 Col. L. Rev. 582 (1985). Some agencies— particularly the Social Security Administration, the Internal Revenue Service, and the National Labor Relations Board— have adopted explicit policies of intracircuit nonacquiescence, and have argued, inter alia, that their policy is justified by the need to guarantee nationwide uniformity of laws, rules, and regulations to all claimants. Although some courts have expressed disapproval of intracircuit nonacquiescence, see, e.g., Ithaca College v. NLRB, 623 F.2d 224, 228-29 (2d Cir. 1980), cert. denied, 449 U.S. 975 (1980); Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 970 (3d Cir. 1979), and even suggested that it might be unconstitutional, Stieberger v. Heckler, 615 F. Supp. 1315, 13863 (S.D.N.Y. 1985), vacated on other grounds sub. nom. Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986), we have never decided the issue. Compare Yellow Taxi Co. v. NLRB, 721 F.2d 366, 383 (D.C. Cir. 1983) (opinion of MacKinnon, J.) (admonishing the Board “to halt its apparently willful defiance of long established, controlling judicial precedent”) with id. at 384 (Wright, J., concurring) (refusing to concur in condemnation of Board’s intracircuit nonacquiescence) and id. at 385 (Bork, J., con- curring) (declining to agree or disagree with criticism of Board but noting that “[a]n agency with nationwide juris- diction is not required to conform to every interpretation given a statute by a court of appeals”). Even the most vociferous critics of intracircuit nonacquiesence have con- ceded the validity of the policy in at least some instances. See Stieberger, 615 F. Supp. at 1365-66. Rare 132a Whether or not the judicial review provisions of IRCA preclude direct recourse to the district court to challenge the INS’s construction of the statute embodied in a regu- lation depends, of course, on congressional intent. Para- doxically, appellees’ construction of those IRCA provisions suggests that Congress wished to channel to the courts of appeals only the application of the statute in presumably less important individual cases while reserving to initial district court review (albeit subject to subsequent appeal) the much more important cases involving broad questions of statutory construction that would apply to a whole class of aliens. But cf. H.R. Rep. No. 1086, 87th Cong., Ist Sess. 28 (1961) (“Since deportation proceedings deal with the liberty of persons rather than mere property, the committee has concluded that granting an initial review in an appellate court gives the alien greater rights, greater scrutiny, and more assurance of a close study of his case by experienced judges.”). While some courts have found that allocation of jurisdiction appropriate under the judicial review provisions of section 106, appar- ently because they believed the only purpose of exclusive court of appeals jurisdiction was to prevent piecemeal liti- gation by aliens in the district courts that would delay deportation, see, e.g., Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. 1982) (discussed infra), we do not believe Congress intended that result under IRCA.® The language and structure of IRCA, as well as 5In enacting section 106 itself, Congress seems to have been more broadly concerned with “unjustified” litigation, even “unjustified attacks upon the constitutionality of the Immigration and Nationality Act” by “astute attorneys who know how to skillfully exploit the judicial process.” H.R. REP. No. 1086, 87th Cong., 1st Sess. 23 (1961). Of course, juris- diction could not turn on the justification (merits) of a claim, but Congress’ concern about attorneys’ skill in using the judicial process to frustrate deportation proceedings by such devices as forum shopping, see id. at 28-29, seems rele- vant to the HRC v. Smith exception—and perhaps even more pertinent to the instant case. 133a its legislative history, do not support appellees’s inter- pretation. Appellees argue that the challenged regulation and its applicability to section 265 do not constitute a “determina- tion respecting an application for adjustment,” review- able only in the courts of appeals, because it is not a ruling on an actual application. Indisputably, however, the regulation embodies determinations that will impact, and therefore are “respecting,” future individual applica- tions. We do not understand appellees to contend that “an application” applies only to an individual claim; surely a “determination” might be made in a proceeding in which several applications were consolidated. Rather, appellees seem to argue that the statutory exhaustion re- quirements and judicial review provisions are confined to determinations made after an application is filed. But the phrase “respecting an application” on its face does not appear to be so limited. Cf. Heckler v. Ringer, 466 U.S. 602, 621 (1984) (defining the word “claim” under the Medicare Act to include a challenge to agency policy that allegedly would prevent the plaintiff from getting an oper- ation upon which a claim would be based) .* The dissent, nevertheless, counters that the “determina- tion” to which subsection 245A(f)(1) refers must be more narrowly interpreted, since it must be the same determination referred to by subsection 245A (f) (3) (A) — *Contrary to the dissent’s assertion, Dissent at 9, Con- gress does not appear to have used the terms “on the applica- tion” and “respecting an application” interchangeably. Sub- section 245A (f) (1), which uses the term “respecting,” refers to both administrative and judicial review of legalization de- terminations. Since judicial review may well be broader than administrative review because only courts would likely de- clare a regulation invalid as applied (rather than interpret and apply agency regulations), it is quite natural for Con- gress to use the broad term when referring to judicial review and the narrower term when discussing only administrative review. 134a “The Attorney General shall establish an appellate au- thority to provide for a single level of administrative appellate review of a determination described in para- graph (1)”—-and it could not be thought that a regulation could be challenged in that administrative proceeding. Dissent at 8-12. We do not understand why that is so. Indeed, if the statutory interpretation embodied in the regulation were to be challenged in the court of appeals after a deportation order, it would have to be first raised in the administrative proceeding, because “judicial review shall be based solely upon the administrative record.” See 8 U.S.C. § 1255a(f) (4)(B). It may well be that the administraitve appellate authority would consider it- self bound by a regulation issued by the INS, but that does not necessarily suggest its interpretation of the regu- lation is pre-ordained. That the LAU may be limited as to its scope of review of a determination (or that part of a determination) embodied in a regulation does not suggest that it cannot review the determinatior.’ Quite commonly, when reviewing agency applications of their own regulations, we see a somewhat different result than might have been expected. The doctrine of special judicial deference to administrative agency adjudicatory interpre- tation of agency regulations grows out of just that ex- perience. See Udall v. Tallman, 380 U.S. 1 (1965). The TOf course, the LAU would not, as the dissent suggests, Dissent at 9-10, be reviewing a facial challenge to the regula- tion, but rather an application of the regulation to an indi- vidual. Facial challenges to the regulation are not permitted, because subsection 245A (f) (3) provides that “administrative appellate review shall be based solely upon the administra- tive record established at the time of the determination on the application.” 8 U.S.C. § 1255a(f) (3) (Supp. V 1987). The use of the term “on” in this subsection illustrates that the LAU may hear only cases involving challenges to deter- minations on individual applications for adjustment, and again underscores the significance of Congress’ use of the broader term “respecting an application” when referring to judicial review. See infra note 6. 135a dissent, by characterizing the “determination” reviewable in the courts of appeals as “fact-specific,” Dissent at 3, 14 n.5, seems to suggest that such review was not in- tended to encompass legal questions of statutory inter- pretation, which were instead to be left to the district courts if and when the INS somehow manifested its statu- tory interpretations other than in an adjudication. Of course, as we have suggested, that is a rather peculiar way to divide jurisdiction between courts of appeals and district courts. Moreover, in subsection 245A (f) (4) ( B), Congress said “findings of fact and determinations” shall be conclusive, thereby recognizing that questions of law were meant to be incorporated in the word “determina- tion.” See 8 U.S.C. § 1255a(f) (4) (B) (Supp. V 1987). Since the INS was authorized but not obliged to issue regulations interpreting the statutory language,® it could have waited until individual legalization proceedings be- fore demonstrating its interpretation of the “known to the Government” language. In that event, surely the courts of appeals would have had, and been expected to exercise, authority to review the agency’s interpretation (giving appropriate deference) in the context of indi- vidual deportation cases. See INS v. Chadha, 462 U.S. 919, 938 (1983). By not requiring the INS to issue regulations that provided an administrative interpreta- tion of statutory language—and not providing a separate mechanism for judicial review of such regulations—Con- gress must have assumed that the agency’s statutory interpretations would be reviewed only in the context of appeals from deportation orders. It seems inconceivable that Congress would have wished instead to closely cir- cumscribe judicial review of legalization decisions that applied whatever regulations the INS issued, and at the * See 8 U.S.C. § 1255a(g) (Supp. V 1987). The INS was required to issue regulations on only one issue—the definition of the statutory term “resided continuously.” Jd. § 1255a( g) (1) (A). 136a same time to allow APA challenges to such regulations in almost any district court of the United States. Indeed, if the district court or any court had jurisdiction to re- view directly the INS’s regulations interpreting IRCA (if issued), Congress would have created a disincentive to issuance of those regulations—which hardly accords with the desirability of providing aliens with prompt information as to the government’s interpretation of the statute. Once it is recognized, as it must be, that an alien could challenge, on appeal from a deportation order, an interpretive regulation which causes the INS to deny his legalization claim, it follows that the district court lacked jurisdiction to hear the same claim in a different forum. For subsection 245A(f) (4) (A) of IRCA limits judicial review of “such” denials to review of deportation orders. Congress thereby explictly prohibited an alien from mounting two parallel challenges to the same regulation. The dissent nevertheless reads the statute to permit an alien to challenge in the district court a regulation that would affect him—apparently before he files a “piece of paper” seeking legalization—and then, in a duplicate pro- cedure, to challenge the same regulation on appeal from a deportation order. Under those circumstances we could have two cases before us: one on appeal from the district court, and one on appeal from a deportation order raising essentially the same claims. It is not at all clear that in light of that possibility the district court could have jurisdiction even in the absence of subsection 245A(f) (4) (A), see Telecommunications Research & Action Cen- ter v. FCC, 750 F.2d 70, 77-79 (D.C. Cir. 1984) ; Invest- ment Co. Inst. v. Board of Governors, 551 F.2d 1270, 1278-80 (D.C. Cir. 1977), but, in any event, the presence of subsection 245A(f)(4)(A) makes it evident that the district court lacks power to entertain the same claim that could be brought to the court of appeals. The statute’s legislative history indicates Congress in- tended aliens to come forward during the 12-month eli- italiana 137a gibility 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. An alien could not defend against a deportation order based on a claim of legalization if the claim was not made during the designated twelve months. See 8 U.S.C. §1255a(a)(1) (Supp. V 1987). Accord- ingly, Congress provided for QDEs to advise aliens as to the validity of this claim: “We are not trying to fool you this time.” 132 Cong. Rec. $16,888 (daily ed. Oct 17, 1986) (remarks of Sen. Simpson). But the QDEs were forbidden to make “a determination required by [the statute] to be made by the Attorney General.” /d. § 1255a(c) (3). It was, therefore, the Attorney General’s interpretation of IRCA that Congress expected to have the primary operational impact during the 12-month period.’ The dissent ascribes to Congress an interest in provid- ing the alien with “accurate advice,” Dissent at 28, and that is undeniable. Accurate, certainly, as to the Attorney General’s interpretation of the statute and, per- haps also, the QDEs’ best appraisal of whether the courts of appeals (and the Supreme Court) would sustain that interpretation. If, for instance, an alien would not qual- ify for legalization based on the Attorney General’s inter- pretation of IRCA as a QDE or a private attorney under- stood it, but the counselor thought the interpretation would not be sustained on review of a deportation order, the alien could rely on the advice and file an application for legalization. Whether the alien ultimately prevailed on appeal from a deportation order would depend—as is typically the case—on the quality of advice he received. * Of course, if a case had come to the court of appeals on review of a deportation order that raised the section 265 issue, we would have had before us the agency’s construction of that term as it applied to a particular applicant. 138a Only an advisory opinion from the Supreme Court would totally remove any uncertainty, and Congress could not provide for that even if it wished to. The dissent, although not the district court, appears to find a congressional intent ‘o provide aliens with more than the Attorney General’s interpretation of the statute during the window period. it is argued that they were entitled to authoritative judicial review and correction of the Attorney General’s misinterpretations ( “egregious” or otherwise), see Dissent at 22, before the 12-month period lapsed. If that were so, Congress would certainly have required the Attorney General quickly to issue regu- lations covering all foreseeable applications of the statute, cf., e.g., Office of Federal Procurement Policy Act Amend- ments of 1988, Pub. L. No. 100-679, § 6, 102 Stat. 4055, 4067 (1988) (all implementing regulations “shall be is- sued .. . within 180 days after the date of enactment”), and also provided for a special expedited judicial review of those regulations in a particular court of appeals. See Yakus v. United States, 321 U.S. 414, 440 n.7 (1944) (Congress provided for expedited judicial review in Emer- gency Court of Appeals of regulations implementing The Emergency Price Control Act); Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6924, 6976 (1982 & Supp. V 1987) (EPA Administration required to pro- mulgate certain regulations within eighteen months, and judicia] review allowed only in D.C. Circuit within ninety days of issuance). Congress was surely well aware, when it placed review of agency action in the courts of appeals, that it could take a long time—and often require Supreme Court inter- vention—before legal uniformity was achieved. That is merely one of the characteristics of our system of federal appellate review, which Congress may avoid if it so wishes. See, e.g., United States v. Fausto, 108 S. Ct. 668, 674 (1988) (exclusive review of Merit System Protection Board decisions placed in Federal Circuit to avoid vary- 139a ing decisions in lower federal courts). To permit one federal district court to short-circuit this process is incon- sistent with the system of appellate review provided in the statute. Appellees’ approach fundamentally alters the relationship between the Executive Branch and the fed- eral judiciary that Congress decreed, because one district court (supported, if necessary, by one court of appeals) could force the Executive Branch to change its interpreta- tion of a statute. As noted above, a decision by a court of appeals against an agency in an individual case does not bind the agency in other circuits, and perhaps not even in other cases within the same circuit. See supra at 10-11. If anything, the legislative history suggests that Con- gress, rather than considering such extensive judicial monitoring of the legalization program, only grudgingly provided any judicial review even in the context of de- portation orders. The choice for the conference committee was between the House version, which was adopted, and the Senate version, which precluded any judicial review “of a decision or determination with respect to the legal- ization programs.” Although we do not propose a general canon of construction that ambiguous statutes be inter- preted in favor of the house of Congress that acquiesces in the eventual text, we think it unlikely that the Senate would have agreed to the House language with the under- standing that it permitted not only review of legalization determinations in the courts of appeals after deportation orders but also even more expansive, intrusive, and direct review of policy determinations that would or could lead to denials of applications for adjustment. As the dissent concedes, Dissent at 14, the Senate bill “would clearly have precluded review of rulemaking as well as adjudica- tion”—i.e., all review of the legalization programs. The leading opponent of the Senate provision, who sought to substitute an amendment “identical to the language pro- posed by the House committee,” believed his change would “merely permit[]” a “very limited form of judicial re- 140a view” that “would be available only when an improper denial of legalization is raised as a defense in a deporta- tion proceeding already subject to judicial review.” 129 Cong. Rec. 12,810 (1983) (statement of Sen. Cranston). The more plausible interpretation of the Senate’s acquies- cence, therefore, is that an IRCA determination is review- able only in the context of cases brought to the courts of appeals pursuant to section 106 of INA." Appellees argue that section 106, which provides for court of appeals review of orders issued in deportation proceedings, has itself been interpreted not to preclude suits in the district court to challenge agency policies, so it is therefore inappropriate to conclude Congress meant to exercise any tighter rein over IRCA, which channels applicants into deportation proceedings reviewed under section 106. The restrictive judicial review provision of section 106 is “the sole and exclusive procedure for[] the judicial review of all final orders of deportation,” 8 U.S.C. § 1105a(a) (1982), and it includes the precondition that “(ajn order of deportation or of exclusion shall not be re- viewed by any court if the alien has not exhausted the ad- ministrative remedies available to him... .” ZJd. § 1105a (ec). The Supreme Court has never directly determined whether this section precludes a challenge to agency reg- ulations in the district court before the initiation of de- portation proceedings. But the Court has read “final ©The dissent, starting from the assumption that “deter- minations respecting an application” as used in the House bill does not refer to rulemaking, argues that Senator Cranston attempted to adopt the section of the House bill permitting judicial review after an order of deportation but not that part allowing separate review of regulations. However, we think Senator Cranston’s statement that his amendment was “identical to the language proposed by the House committee” implicitly, if not explicitly, indicates that he thought his amendment would result in equivalent judicial review pro- visions in the two bills, and thus that “determinations re- specting an application” includes regulations. 14la orders of deportation” to include “all determinations made during the incident te the administrative proceed- ing conducted by a special inquiry officer, and review- able together by the Board of Immigration Appeals,” Foti v. INS, 375 U.S. 217, 229 (1963) (emphasis added), and all such determinations are within the exclusive ju- risdiction of the courts of ‘appeals. Id.; see also Giova v. Rosenberg, 379 U.S. 18 (1964) (denial of motion to reopen deportation proceedings reviewable only under section 106). Although the Court has interpreted section 106 to permit an alien to challenge separately in district court an INS denial of a stay of deportation, issued in an entirely separate proceeding three months after a final order of deportation, Cheng Fan Kwok v. INS, 392 U.S. 206 (1968), it has suggested that any matter “gov- erned by the regulations applicable to the deportation proceeding itself, and . . . ordinarily presented for dis- position to the special inquiry officer who enter{s] the deportation order” is within the exclusive jurisdiction of the courts of appeals. Jd. at 217. Most recently, in INS v. Chadha, 462 U.S. 919 (1983), the Court squarely he!d that section 106 “includes all matters on which the va- lidity of the final order [of deportation] is contingent, rather than only those determinations actually made at a hearing,” id. at 938 (quoting INS v. Chadha, 634 F.2d 408, 412 (9th Cir. 1980) ) (emphasis added). Appellees do have a point, however; as we have noted, lower federal courts have allowed certain plaintiffs to avoid the exhaustion requirement and corresponding ex- clusive court of appeals jurisdiction under section 106. The Fifth Circuit, in Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. 1982) [hereinafter HRC v. Smith], was faced with a broad attack on the prac- tices of immigration judges who heard asylum claims during deportation hearings, and held that an allega- tion of “a program, pattern or scheme by immigration officials to violate the constitutional rights of aliens is. . . 142a a separate matter subject to examination by a district court and to the entry of at least declaratory and injunc- tive relief.” The court read the grant of exclusive juris- diction to the courts of appeals as applying only to ac- tions taken in individual deportation proceedings that may affect the determination of the merits of a claim, and authorized any district court “to wield its equitable powers when a wholesale, carefully orchestrated, pro- gram of constitutional violations is alleged.” Jd. Al- though the Fifth Circuit emphasized the narrowness of its holding and promised not to condone any “end-run around the administrative process,” id., the application of HRC v. Smith has proliferated to the point where it now more nearly resembles a gaping hole in the middle of the INS’s defensive line. Other courts have adopted the Fifth Circuit’s distinction under section 106 between review of individual deportation orders and broad-based challenges to agency policy on both constitutional and statutory grounds. Jean v. Nelson, 727 F.2d 957, 979-81 (llth Cir. 1984) (en banc), aff'd, 472 U.S. 846 (1985) (expressing no view on jurisdictional issues); Salehi v. District Director, 796 F.2d 1286, 1290 (10th Cir. 1986) ; Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1503 (C.D. Cal. 1988); Hotel & Restaurant Employees Union v. Smith, 563 F. Supp. 157, 162 (D.D.C. 1983) (denying motion to dismiss), summary judgment granted for de- fendant, 594 F. Supp. 502 (D.D.C. 1984), aff'd by an equaly divided court, 846 F.2d 1499 (D.C. Cir. 1988) (en banc) ; Orantes-Hernandez v. Smith, 541 F. Supp. 351, 364 (C.D. Cal. 1982). HRC v. Smith and its progeny, however, are not only unsupported by the Supreme Court’s cases on section 106, including the subsequently decided Chadha, but appear in- consistent with the reasoning of the Supreme Court in Heckler v. Ringer, 466 U.S. 602 (1984). The Court there was faced with a challenge to a ruling issued by the Secretary of Health and Human Services that precluded 143a payment under Medicare for a particular surgical pro- cedure. The Medicare Act permits judicial review of “any claim arising under” the Act, via 42 U.S.C. § 405(g), only after a claimant seeks payment and exhausts admin- istrative remedies. The plaintiff, Ringer, wished to un- dergo that procedure, which he could not afford without Medicare reimbursement. He sued in district court for a declaratory judgment, arguing that he was not obliged to exhaust, because he did not yet have a claim and was instead challenging an agency ruling that, in effect, pre- cluded his claim. The Supreme Court refused to accept that distinction, holding that Ringer was “clearly seeking to establish a right to future paymentsshould he ulti- mately decide to proceed with [the particular] surgery.” Id. at 621. It recognized that to hold otherwise would allow claimants “to bypass the exhaustion requirements of the Medciare Act by simply bringing declaratory judg- ment actions in federal court before they undergo the medical procedure in question.” Jd. To be sure, unlike HRC v. Smith, Ringer did not present a constitutional claim, but the HRC v. Smith line of cases has not been limited to constitutional challenges. See, e.g., Jean v. Nelson, 727 F.2d at 980 n.32." ! The dissent’s extensive discussion of Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), is largely beside the point. Michigan Academy did not even question Ringer, and the latter case still supports the general propositions that an individual plaintiff may not circumvent a statutory exhaustion requirement by bringing a preemptory declaratory judgment action. Even the plaintiffs in Michigan Academy read Ringer to mean that “whatever specific pro- cedures [Congress] provided for judicial review .. . were exclusive, and could not be circumvented by resort to the general jurisdiction of the federal courts.” Michigan Acad- emy, 476 U.S. at 679. No circumvention problem was present in Michigan Academy, because Congress had not imposed an exhaustion requirement on claims arising under Part B of the Medicare program. Unlike Ringer, which concerned part A of Medicare, Mich- igan Academy raised the entirely different question whether 144a We have not been obliged to decide whether there is a “program” exception to section 106—for constitutional or statutory claims—that permits a suit by aliens or those representing them,” and we think it is unnecessary to do Congress had altogether precluded review of statutory and constitutional challenges under part B. This was so, because in United States v. Erika, Inc., 456 U.S. 201, 208 (1982), the Court had interpreted the Medicare Act to preclude ju- dicial review of Part B amount determinations. And those determinations were made by insurance carriers who were not authorized to consider legal challenges to the Act or regu- lations. The Court thus declined to deem the regulation at issue in Michigan Academy an “amount determination,” be- cause that would have prevented any judicial review of the rule and raised “serious constitutional issues.” Jd. at 680-81 & n.12. That is, of course, not the case in Ringer or in IRCA, where review of a rule affecting future claims or applications is available after exhaustion of administrative remedies. In any event, nothing in IRCA suggests that the exclusive re- view procedure is limited to “quite minor matters,” cf. Micht- gan Academy, 476 U.S. at 680, that could affect an applica- tion for adjustment. As noted above, supra at 12-13, Con- gress must have expected major legal questions to be resolved in legalization adjudications. Nor does Michigan Academy provide any support for the notion that the appellee organizations can challenge agency regulations in district court, although individuai aliens are required to seek review only in the deportation context. Cf. Dissent at 30-32. Clearly, the organizational plaintiffs in Michigan Academy could challenge regulations in district court in the same manner as the individual plaintiffs could do sv. But nothing in Michigan Academy suggests that an organization could have sued directly in Ringer, where the individual claimant was required to exhaust administrative remedies. And the dissent does not even mention Block v. Community Nutrition Institute, 467 U.S. 340 (1984), the Supreme Court’s most recent thorough discussion of preclu- sion of review under the APA. See infra at 30-31. 12 In Hotel & Restaurant Employees Union v. Smith, 846 F.2d 1499 (D.C. Cir. 1988) (en banc) (equally divided court), four members of the court assumed that the exhaustion re- quirement of section 106 does not apply to “a general chal- eee 145a so here. However, several district courts have applied the Fifth Circuit’s approach under section 106 to the judicial review provisions of IRCA. Doe v. Nelson, 703 F. Supp. 718, 720-22 (N.D. Ill. 1988) (finding HRC v. Smith in- distinguishable) ; Immigration Assistance Project v. INS, No. C88-379R, slip op. at 10-11 (W.D. Wash. Nov. 2, 1988) (citing HRC v. Smith); Haitian Refugee Center v. Nelson, 694 F. Supp. 864, 873-74 (S.D. Fla. 1988) (citing HRC v. Smith and reasoning that “[t]o deny ju- risdiction would be to allow illegal agency action to go unchallenged”) ; Zambrano v. INS, No. S-88-455, slip op. at 6-7 (E.D. Cal. Aug. 9, 1988). We find these cases un- persuasive; they do not focus on the language and legis- lative history of ICRA. We think whatever the proper interpretation of section 106 as it relates to “final orders of deportation,” IRCA’s judicial review- provisions, al- though employing the section 106 machinery, have a broader preclusive effect. It is arguable, for example, that certain INS actions—other than those under IRCA— taken before initiation of deportation proceedings are re- viewable in the district court under APA standards, de- spite the exclusivity provision of section 106. Cf. Hotel and Restaurant Employees Union v. Smith, 846 F.2d at 1513 n.2 (opinion of Silberman, J.) ( assuming without deciding that an alien could sue to gain direct review of a denial of asylum without waiting for a deportation pro- ceeding) ; but see Kashani v. Nelson, 793 F.2d 828, 826- 27 (7th Cir.), cert. denied, 479 U.S. 1006 (1986).% lenge to the INS’s entire frameworking for processing appli- cations.” Id. at 1506 (opinion of Mikva, J.). The other half of the court, citing International Union, UAW v. Brock, 477 U.S. 274 (1986), noted that it “may well be” that such an exception exists, but found it unnecessary to examine that contention in depth since they resolved the case on other jurisdictional grounds. Id. at 1514 (opinion of Silberman, J.). 18 It will be recalled that the specific actions challenged in HRC v. Smith were denials of asylum requested in the depor- tation hearings themselves rather than prior to such proceed- 146a IRCA, however, provides for an alien to seek review of a denial of legalization only in the context of a deportation proceeding, see 8 U.S.C. § 1255a(f) (4) (A) (Supp. V 1987), so we are not confronted with an argument that APA review could be predicated on the denial of legaliza- tion by itself. It is crystal clear—at least with regard to TRCA—that Congress closed that door. Appellees also rely on International Union, UAW v. Brock, 477 U.S. 274 (1986), to support the district court's order. Brock concerned the implementation of the Trade Act of 1974, as amended, 19 U.S.C. §§ 2101-2495 (1982 & Supp. V 1987), which established a program of trade readjustment allowance (TRA) benefits for workers who have lost their jobs because of import competition, and provides, inter alia, that “{a] determination by a coop- erating State agency with respect to entitlement to pro- gram benefits under an agreement is subject to review in the same manner and to the same extent as determina- tions under the applicable State [unemployment insur- ance] law and only in that manner and to that extent.” Id. § 2311(d) (emphasis added) ; see id. § 2319(10). The Court held that the Act authorized a union to sue in fed- eral district court on behalf of its members to challenge a Trade Act regulation issued by the Secretary of Labor, which governed state determinations, notwithstanding the © judicial review provision. But Brock is distinguishable from Ringer (not mentioned in the Court’s opinion) and our case, because Congress never intended TRA claim- ants to exhaust state remedies when challenging the fed- eral guidelines. The Trade Act was passed against a background of a line of cases in the Supreme Court and ings. Because a denial of asylum might be reviewable before deportation proceedings, the argument that denials during the proceedings are not separately reviewable rests on less powerful—if not insignificant—grounds. See Foti, 375 U.S. at 229; International Union, UAW v. Brock, 477 U.S. 274, 294 (1986) (White, J., dissenting). 147a lower federal courts holding that there is federal juris- diction to review state unemployment insurance claims that raise questions of federal law. See Brock, 477 U.S. at 285."* And on its fact, the exhaustion requirement in the Trade Act refers only to “determination[s] by a co- operating State agency.” If the Trade Act had said— paralleling IRCA—that any (federal or state) determi- nation with respect to program benefits was reviewable only through the state process, the cases would be more alike. We do not therefore take Brock to mean that in order to confine litigants to administrative procedures review- able only by certain courts, Congress must affirmatively state that other courts may not hear the same questions if raised in a different form. Often an exclusive pro- cedure for judicial review in the courts of appeals wil! implicitly, if not explicitly, forbid broad-based challenges to agency practice in the district courts. Whitney Nat’l Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 422 (1965) (Where Congress “has enacted a specific stat- utory scheme for obtaining review, . . . the doctrine of exhaustion of administrative remedies comes into play and requires that the statutory mode of review be ad- hered to notwithstanding the absence of an express stat- utory command of exclusiveness.”) ; Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984); see also 5 U.S.C. § 702 (1982) (“Nothing herein ... confers authority to grant relief if any other 14 Even three of the dissenters in Brock, who were in the majority in Ringer, seemed to recognize the difference be- tween the cases when they said “[t]he distinction between a challenge t» the guideline and a challenge to benefit detrmina- tions might be meaningful if petitioners had only challenged the application of the guidelines to as-yet-unsubmitted claims.” Brock, 477 U.S. at 294 (White, J., dissenting). The dissent was limited to the proposition that petitioners could not interpret the state administrative review process once it had begun to consider claims under submission. 148a statute expressly or impliedly forbids the relief which is sought.”) (emphasis added). The IRCA judicial review provision sets forth that kind of procedure. It limits ju- dicial review of any “determination respecting an appli- cation for adjustment” to the courts of appeals, 8 U.S.C. § 245A(f) (Supp. V 1987), and if we were to uphold the district court’s authority to enter declaratory and injunc- tive relief, we would destroy much of the system that Congress crafted. The district court appeared to agree with our analysis as it affects individual plaintiffs,’> but thought that some of the organizational appellees were authorized to chal- lenge the INS policies in district court because of their special status as “qualified designated entities” (QDEs). 18 The district court engaged in the following colloquy with appellees’ counsel, after counsel asserted that the individual plaintiffs presented the strongest case for jurisdiction. THE COURT: Well, but the individual plaintiffs, it would seem to me, they would—why wouldn’t they have to go through the administrative process? ... [I]t seems to me that they can have their status determined through the ad- ministrative process. COUNSEL: I think, Your Honor, they cannot because .. . to do so would be a futile act. We have heard testimony. We have presented affidavits to show that the INS is not changing its opinion. THE COURT: Why is it futile? COUNSEL: Because they could never get a reversal in the administrative process. THE COURT: No, but that’s not the standard. The standard is that as long as they can get a reversal in the Court of Appeals. ... And it would seem to me that they could then have this case go to the Court of Appeals and the Court of Appeals could say .. . it was a bad interpretation. Am 1 wrong on that? Don’t they have an appeal right here? If an individual] goes and applies and he’s turned down, and he goes up on appeal, can’t the Court of Appeals reverse that? COUNSEL: Yes, obviously, the Court of Appeals could reverse it, and for those individual plaintiffs, the Court of Appeals could do that. It could reverse it. i: a an : & i , nee e Ps 4 i 149a Since these organizations had no administrative process to which they could appeal, the court reasoned that they must have a remedy somewhere, and that somewhere was federal district court. Ayuda, 687 F. Supp. at 660. In support of the district court, appellees argue that the QDEs’ special role in the legalization program implies they are entitled to sue in district court to challenge the INS’s regulation even if an alien subject to deportation were not. The Attorney General was obliged under IRCA to “designate qualified voluntary organizations” to assist in the legalization process. 8 U.S.C. § 1255a(e) (2) (Supp. V 1987). Congress, understanding an illegai alien’s ap- prehensions, wished to “assure applicants that they may apply to such entities without fearing that their applica- tions will be forwarded to the INS even if in the view of such entities they do not qualify for legalization.” S. REP. No. 132, 99th Cong., Ist Sess. 47 (1985). Since the QDEs’ very function was to provide a buffer—a confi- dential intermediary—between the INS and the alien, appellees insist Congress could not have intended that they would have no independent right to sue. The QDEs and the other organizations claim they are injured— apart from any injury suffered by the aliens—because their ability to advise aliens is impaired by the “uncer- tainty” caused by the government’s regulation and par- ticularly its problematic application to the section 265 issue. The government responds that the QDEs under IRCA are actually agents of the INS. Cooperative agreements between the Department of Justice and the QDEs direct that the latter “will comply with all relevant INS regu- lations relating to the legalization . . . programs and fol- low the instructions in the INS Training Manual,” and the statute forbids the QDEs from making “a determina- tion required by: [IRCA] to be made by the Attorney General.” 8 U.S.C. § 1255a(c) (3) (Supp. V 1987). We thus find much force to the government’s argument that 150a the QDEs’ interest is so “inconsistent with the purposes implicit in the statute” that they lack standing to sue. Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399 (1987). It seems to us that Congress, at most, intended the QDEs to act as intermediaries, not litigating ombuds- men. And even if the QDEs are thought of as agents for the aliens, we doubt Congress intended the agents to have broader rights to seek judicial review than do the principals. But even assuming that the appellee organizations have standing to sue, we think the district court lacked authority to hear their claim, because to do so would clearly frustrate congressional intent to channel all dis- putes about the legalization program into the courts of appeals under a narrow scope of review. The flaw in the district court’s analysis, in our view, is its assumption that every aggrieved party must have a remedy under the statute. It did not consider that Congress sometimes intends to preclude suits by certain classes of plaintiffs, see 5 U.S.C. § 701(a) (1) (1982) (judicial review under the APA not available when precluded by statute), and we think a “balanced approach to statutory construction,” Block v. Community Nutrition Inst., 467 U.S. 340, 350 (1984), reveals that a congressional purpose in IRCA to preclude judicial review by anyone, except in the depor- tation context, is “ ‘fairly discernible in the statutory scheme.’” Jd. at 351 (quoting Data Processing v. Camp, 397 U.S. 150, 157 (1970) ). In Block, the Court faced a jurisdictional cha!lenze to an action brought under the APA by consumers dis- puting the legality of the Secretary of Agriculture’s milk marketing orders. The government claimed the con- sumers lacked standing, but the court did not find it nec- essary to reach that issue because it determined, instead, that the statute barred consume:s from seeking judicial review—a ruling which the court described as “in ef- fect” jurisdictional. Jd. at 353 n.4; see also Clarke v. Securities Industry Ass’r, 479 U.S. 388, 399-400 (1987). 15la Since the statute provided “a detailed mechanism for judicial consideration of particular issues at the behest of particular persons [milk handlers], judicial review of those issues at th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1648%3A2. Public record. Not legal advice.