Opposition Brief — Ayuda, Inc. v. Reno

(3) Muprema Court, iL,

rite,

No. 93-1923 | AUG 7 1994

OFFICE OF THE CLERK

In the Supreme Court of the Wii

OCTOBER TERM, 1994

AYUDA, INC., ET AL., PETITIONERS

Vv.

JANET RENO, ATTORNEY GENERAL OF

THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Drew S. DAYS, Ill

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

ROBERT KENDALL, JR.

DONALD E. KEENER

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

BEST AVAILABLE COPY’

"

Mie He sin ace a Seal

QUESTIONS PRESENTED

1. Whether the court of appeals, on remand from this

Court in light of Reno v. Catholic Social Services, Inc.,

113 S. Ct. 2485 (1993) (CSS), permissibly declined to re-

mand this case to the district court for proceedings to

determine whether individual aliens who are not parties to

this case (which has not been certified as a class action)

might have had their applications for legalization under

the Immigration Reform and Control Act of 1986 rejected

for filing (“front-desked”).

2. Whether the court of appeals correctly followed this

Court’s decision in CSS by ruling that the district court

lacked jurisdiction over petitioners’ challenge to the validi-

ty of INS legalization regulations and policies.

TABLE OF CONTENTS

Page

ES tigi. cls oles bbs eb cdebuk codes os l

ee i a dS Cws ads aa v'doeens Leekwens 2

ECs aa eels bc Uy kao bs wo declan eee sons 2

Tl ts Sina Wa us Sir 005 8a cb a aaa es he eo ks 9

PE 6 eo coe oie 4 5646-5 0. awe bb ced Vkeace 18

TABLE OF AUTHORITIES

Cases:

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

I eee bee a oie was ied ek ok oe ae 17

Catholic Social Services, Inc. v. Reno, 996 F.2d 221

ED os b's a ss hwo ub ot Uo a marcia 10

INS v. Legalization Assistance Project, 114 S. Ct.

Re ee Oe rt 15, 16

League of United Latin American Citizens v. INS,

Dee © ie Ce POG: BOOED oc iccdccaccccssde 9-10

McNary v. Haitian Refugee Center, Inc., 498 U.S.

I SCE Re Ga ok occ Vay ods b bsde takes. a3

Matter of H, Interim Dec. No. 3205 (Assoc.

Re le SED og bocce disk saweeieecae 15

Naranjo-Aguilera v. INS, Nos. 92-16653 &

92-16933 (9th Cir. July 22, 1994) .........0.... 16

Reno v. Catholic Social Services, Inc., 113 S. Ct.

ee eee beth ny ee ee oe oe

Schweiker v. Hansen, 450 U.S. 785 (1981)... 2... 13

Valley Forge Christian College vy. Americans

United for Separation of Church and State, Inc.,

en EE Pod caw acevo sdewsd cae. 17

Villarina v. INS, 18 F.3d 765 (9th Cir. 1994) ...... 16

(111)

lV

Statutes, regulation, and rule: Page

Immigration and Nationality Act, 8 U.S.C. 1101 ef

seq.:

§ 1O0i(a)(IS)A), 8 U.S.C. T1OMayCSA) .... 6

§ 1OMayIS(G), 8 U.S.C. 11OMaySpG) .... 6

DS Se es BE cn eke dus ee aesa eee 6

SO, SUSA., THR CIGP ook ce cscs. 4, 6, 14, 15

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359 ............ 2

Ress I ek ibaa teaeees 3,4

© Un CRPINEIID kn cece cncvewnsues 13

DS Oe. Be ons a ove 52 a wecasine 3, 14

Be ee ED 6 5 ein os a pd nn bd ae ws as

S Oe a SEED soso ae chads vaeuny mo

PAs EOE x ecen kee Jakowiece ceases 3

SPs Se GE Sab So 2 e¥ casas aed concede ces 12

In the Supreme Court of the Wiited States

OCTOBER TERM, 1994

No. 93-1923

AYUDA, INC., ET AL., PETITIONERS

V.

JANET RENO, ATTORNEY GENERAL OF

THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-24a)

is reported at 7 F.3d 246. The order denying the suggestion

of rehearing en banc (Pet. App. 27a-29a) is reported at 14

F.3d 61.

This Court’s order vacating the prior judgment of the

court of appeals and remanding for further consideration

(Pet. App. 30a) is reported at 113 S. Ct. 3026. The prior

opinion of the court of appeals (Pet. App. 31a-94a) is re-

ported at 948 F.2d 742, and the order of the court of ap-

peals on denial of rehearing en banc of that decision (Pet.

App. 95a-106a) is reported at 958 F.2d 1089.

(1)

2

This Court’s order vacating the initial judgment of the

court of appeals and remanding for further consideration

(Pet. App. 107a) is reported at 498 U.S. 1117. The initial

opinion of the court of appeals (Pet. App. 121a-207a) is

reported at 880 F.2d 1325. The orders denying rehearing

and rehearing en banc of the initial decision (Pet. App.

208a-215a) are unreported.

Related opinions of the court of appeals (Pet. App.

108a-120a, 216a-245a) are reported at 919 F.2d 153 and

869 F.2d 1503.

Several opinions and orders of the district court (Pet.

App. 246a-295a, 298a-308a, 322a-324a) are reported at

687 F. Supp. 650, 700 F. Supp. 49, and 744 F. Supp. 21.

Other opinions and orders of the district court (Pet. App.

296a-297a, 309a-321a, 325a-332a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 26, 1993, and a petition for rehearing was denied

on January 27, 1994. Pet. App. 25a-26a. On April 13,

1994, the Chief Justice extended the time for filing a peti-

tion for a writ of certiorari to and including May 27, 1994,

and the petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

This case arises out of a challenge to an Immigration

and Naturalization Service (INS) regulation concerning

the legalization program established by the Immigration

Reform and Control Act of 1986 (IRCA), Pub. L. No.

99-603, 100 Stat. 3359. Among other things, IRCA pro-

vided a one-time Opportunity for certain aliens residing il-

legally in the United States to acquire legal status by hav-

ing their status adjusted to that of an alien lawfully

3

admitted for temporary residence. 8 U.S.C. 1255a. Pur-

suant to Section 1255a(a)(2)(B), nonimmigrant aliens who

initially entered the country in a legal manner, but who

later lost their lawful status, were entitled to legalization

only if their unlawful status was “known to the Govern-

ment.”

The INS promulgated a regulation defining “known to

the Government” to mean “known to the INS.” 8 C.F.R.

245a.1(d) (1988). Petitioners challenged that regulation in

the district court, which held the regulation invalid and

issued several supplemental orders, including certain in-

junctive orders against the INS. See Pet. App. 34a-35a.

The court of appeals vacated the district court orders. It

concluded that the district court lacked jurisdiction be-

cause the petitioners’ legal challenge did not fall within the

narrow exception to the general rule that jurisdiction to

review INS legalization determinations is exclusively

vested by IRCA in the court of appeals (on judicial review

of a final order of deportation, see 8 U.S.C. 1255a(f)(1)

and (4)(A)), and not in the district court. Pet. App. 4a-5Sa;

see id. at 121a-207a.

This case has come before this Court twice before, and

on each occasion the Court granted the certiorari petition,

vacated the judgment of the court of appeals, and remand-

ed for further consideration in light of a then-recent deci-

sion of the Court—first, McNary v. Haitian Refugee

Center, Inc., 498 U.S. 479 (1991), and then Reno v.

Catholic Social Services, Inc., 113 S. Ct. 2485 (1993)

(CSS). On each remand, the court of appeals reconsidered

the case in light of the recent decision of this Court and

determined that the district court did not have jurisdiction

and that certain claims were not ripe for review. Pet. App.

31a-94a; id. at la-24a. The instant petition seeks review of

the decision of the court of appeals on the second remand.

1. Petitioners consist of five individual aliens and four

organizations that counseled and advised aliens in connec-

4

tion with the legalization program established by IRCA.

They filed suit in the United States District Court for the

District of Columbia, contending that the INS’s “known to

the Government” regulation incorrectly interpreted the

eligibility requirements set forth in Section 1255a. The

government unsuccessfully challenged the jurisdiction of

the district court, which ruled in petitioners’ favor and en-

joined the INS from applying the regulation. Pet. App.

246a-280a.

In a supplemental order (Supplemental Order V), the

district court extended its original order to include aliens

who had failed to provide the INS with quarterly or an-

nual reports regarding their address, as required by Sec-

tion 265 of the Immigration and Nationality Act (INA), 8

U.S.C. 1305 (1976). The court agreed with petitioners that

the absence of such reports established that the status of

such aliens was unlawful and “known to the Government.”

Pet. App. 284a-286a.

2. The government appealed Supplemental Order V,

arguing that the district court’s exercise of jurisdiction ex-

ceeded the limits established by IRCA and jurisprudential

doctrines. The court of appeals agreed and reversed. Pet.

App. 12la-207a. It reasoned that because “an alien could

challenge, on appeal from a deportation order, an inter-

pretive 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.”

Id. at 136a.

The court of appeals also concluded that the INS’s

policy with respect to aliens whose unlawful status had

been revealed to the government only by their failure to

file reports as required by Section 265 of the INA was not

final agency action for purposes of judicial review and

that petitioners’ challenge to the policy was not ripe. Pet.

App. 152a-163a. The court noted that the final INS au-

thority on that point—the Legalization Appeals Unit —

had not yet decided an actual case raising the issue, so that

the government’s policy was not sufficiently concrete to

permit the district court challenge. Id. at 153a-154a,

156a-158a, 160a-162a.'

3. Petitioners filed a petition for a writ of certiorari,

No. 89-1018. This Court granted the petition, vacated the

judgment of the court of appeals, and remanded the case

for further consideration in light of McNary v. Haitian

Refugee Center, Inc., 498 U.S. 479 (1991), which held that

a district court may entertain certain challenges to pro-

cedures utilized by the INS in connection with the special

agricultural worker amnesty program enacted by IRCA.

Pet. App. 107a.

4. On remand, the court of appeals again concluded

that the district court lacked jurisdiction over the case be-

cause IRCA, in 8 U.S.C. 1255a(f)(1) and (4)(A), vests ex-

clusive jurisdiction in the courts of appeals for review of

denials of legalization, on the alien’s petition for review of

a final order of deportation. Pet. App. 3la-94a.? The

| The court of appeals denied petitioners’ suggestion of rehearing en

banc by a 5-4 vote. Pet. App. 208a-215a.

2 On remand, the case was consolidated with two appeals from

related orders entered by the district court. The first of those appeals

was the government’s challenge to a district court order (Supplemental

Order XIV) that effectively granted work authorizations to aliens who

claimed that they were eligible for legalization under the district

court’s “known to the Government” orders, although they had not

filed timely applications for legalization under IRCA. Pet. App.

322a-324a. Supplemental Order XIV applies across the board to all

aliens covered by petitioners’ action. The district court’s earlier order

made it clear that that group included aliens who had failed to submit

a timely application for legalization. See Supplemental Orders VII,

1X, XI, XII (Pet. App. 286a-288a, 290a-295a, 298a-308a). Supple-

sess i

6

court of appeals explained that McNary “focused on the

structural inadequacy of court of appeals review of the

collateral constitutional claims presented in that case”; it

therefore held that “if the statutory administrative and

judicial review scheme provides meaningful court of ap-

peals review of an alien’s legal claim, then Congress in-

tended that scheme to be exclusive—ousting the district

court of jurisdiction to hear the sort of claim at issue

here.” /d. at 50a. In this case, the court reasoned that

because petitioners’ challenge to the INS’s interpretation

of the “known to the Government” requirement as applied

to a particular alien’s application could be adequately con-

sidered by a court of appeals on judicial review under 8

U.S.C. 1105a of a final order of deportation (id. at

43a-44a, 50a), the district court could not entertain a

challenge to the regulations. Jd. at 33a, 58a-60a, 64a.

The court of appeals also reaffirmed its prior holding

that the issue concerning the filing of reports under Sec- |

tion 265 was neither final nor ripe (Pet. App. 5la-56a), ex- |

plaining that in McNary the plaintiffs “did not ask the |

district court to preempt the INS’s efforts to interpret |

IRCA’s ambiguous provisions; the Ayuda plaintiffs’

claims do.” Id. at 52a-53a.3

5. Petitioners filed a second petition for a writ of cer-

tiorari, No. 91-1924. The Court granted that petition,

vacated the judgment of the court of appeals, and re-

mental Order XIV never went into effect, because the government ob-

tained a stay from the court of appeals. Pet. App. 108a-120a.

The second appeal was petitioners’ challenge to a district court

order declining to order legalization of four individuals who improp-

erly had obtained employment while holding nonimmigrant visas

granted under subparagraphs (A) and (G) of 8 U.S.C. 1101(a)(15).

Pet. App. 309a-315Sa.

> The court of appeals denied petitioners’ suggestion of rehearing en

banc by a 65 vote. Pet. App. 95a-106a.

7

manded the case for further consideration in light of Rene

v. Catholic Social Services, Inc., 113 S. Ct. 2485 (1993)

(CSS). Pet. App. 30a.

6. On the second remand, the court of appeals again

concluded that district court review was precluded and

vacated the district court orders. Pet. App. la-24a. The

court explained that under CSS, “a putative beneficiary

under a statute such as the amnesty program does not have

a ripe claim merely when an agency publishes a regulation

that might bear on his right to the benefit.” Id. at 8a (citing

CSS, 113 S. Ct. at 2496). Rather, the court continued, the

“claimant must at least apply and be denied the benefit

before the claim ripens. Typically, when the claimant is

denied the benefit, the claim is then ripe for adjudication.”

Id. at 8a-9a. The court further explained, however, that

under CSS, once an alien’s claim becomes ripe by virtue of

the denial of the application, it falls under the exclusive

judicial review provisions of IRCA, and review in the dis-

trict court is barred. Jd. at 9a-10a. The court of appeals

noted in this regard that in CSS, the Court had limited the

reach of McNary’s exception to IRCA’s provision for ex-

clusive jurisdiction in the courts of appeals to “ ‘pro-

cedural’ objections that could not receive ‘practical

judicial review within the [statutory] scheme.’ ” /d. at 10a

(quoting CSS, 113 S. Ct. at 2497).

In light of its jurisdictional/ripeness ruling, the court of

appeals declined to remand the case to the district court for

further proceedings. The court emphasized that this case dif-

fers from CSS, in which the case was remanded to the

district court because members of a certified class had al-

leged that they actually had tried to file legalization applica-

tions but had been turned away (been “front-desked”);* in

4 “Front desking” was used by the Court to describe the prefiling re-

jection of applications at the front desk of an INS office. CSS, 113 S.

Ct. at 2497-2498.

that situation, the court below explained, an alien could

bring an action in district court under the McNary excep-

tion to require the INS to accept and adjudicate the appli-

cation, although not to challenge an interpretation of

IRCA’s legalization standards by the INS. Pet. App. Ila.

The court emphasized that in this case, by contrast, there

was no certified class. The court noted that none of the

five individual petitioners alleged that they had been front-

desked, id. at 12a, and it concluded that under CSS, the

organizational petitioners lacked standing to challenge the

INS’s interpretation of IRCA and would not in any event

have been involved in front-desking because of the special

procedures established by IRCA for aliens who were

assisted by such organizations. /d. at 13a n.10.

The court of appeals disagreed with the view of Judge

Wald in her dissenting opinion (see Pet. App. 15a-24a)

that the case should be remanded to permit certification of

a class at this juncture and then to permit identification of

potential class members who might allege that they were

front-desked. The court pointed out that petitioners had

conceded at an earlier point in the case that there were no

aliens in the proposed class who had been front-desked.

Id. at 12a. It recognized that if an alien had actually been

denied the opportunity to file a legalization application,

the district court would have jurisdiction under McNary to

ensure that the INS adjudicated the application. /d. at

14a. Quoting its second opinion in this case, however, the

court concluded that “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.” Jbid. (quoting id. at 45a). The court of

appeals also pointed out that the INS did not have a policy

of “front-desking” aliens who did not satisfy the INS’s

interpretation of the “known to the Government” stand-

ard, and in fact had instructed its offices to accept all such

9

applications. /d. at 14a. Because there was “not the slight-

est indication that any of the five plaintiffs in [this] case

suffered a harm that would confer limited jurisdiction on

the district court (such as front-desking),” the court held

that district court review is barred. /d. at 14a-15Sa.°

ARGUMENT

The court of appeals properly brought to a close this

long-pending litigation challenging one aspect of the INS’s

implementation of the legalization program established by

IRCA, for which the application period expired more than

six years ago. The decision below is fully consistent with

this Court’s decision in Reno v. Catholic Social Services,

Inc., 113 S. Ct. 2485 (1993) (CSS), and does not conflict

with decisions of any other court of appeals. Further

review therefore is not warranted.

1. Petitioners contend (Pet. 12-22) that the court of

appeals erred by not remanding this case to the district

court for further fact-finding on front-desking and other

possibly ripe claims. Petitioners assert that the court of ap-

peals’ failure to do so conflicts with the Ninth Circuit’s

orders remanding the CSS cases to the district court after

this Court had remanded them to the court of appeals in

light of its CSS ruling.

This Court remanded the two cases consolidated in CSS

to the Ninth Circuit “with directions to remand to the

respective District Courts for proceedings to determine

which class members were front-desked.” 113 S. Ct. at

2500. On remand, the Ninth Circuit, in turn, issued one-

sentence orders remanding the cases to the district courts

as ordered. League of United Latin American Citizens v.

’ The court of appeals denied petitioners’ suggestion of rehearing en

banc by an 8-2 vote. Pet. App. 25a-29a.

10

INS, 999 F.2d 1362 (9th Cir. 1993); Catholic Social Ser-

vices, Inc. v. Reno, 996 F.2d 221 (9th Cir. 1993).

In the case at bar, by contrast, the Court remanded the

case to the court of appeals “for further consideration in

light of [CSS].” Pet. App. 30a. It did not direct the court

of appeals to remand the case to the district court. The

court below followed the mandate of this Court to con-

sider the case further in light of CSS, and, after doing so,

it rejected petitioners’ request for a further remand as

unnecessary On the particular facts and record of this case.

Petitioners challenge the court of appeals’ characteriza-

tion of the record, contending that it contains “clear and

substantial evidence * * * demonstrating that applicants

had been front-desked.” Pet. 14; see Pet. 14-21. They

assert that proceedings before special masters appointed

by the district court and the evidentiary hearing in the

district court revealed aliens who had been front-desked.

Pet. 14-17.

The focus of the special master proceedings was to iden-

tify aliens who did not submit an application prior to the

applicaticn deadline because they were misled by the

prediction that they were ineligible and that their appli-

cations would be denied on the basis of the “known to the

Government” regulation. Pet. App. 30la, 306a. From

among the thousands of aliens who submitted documents

to the special master, petitioners have not identified a

single alien whose application (accompanied by the re-

quired fee) was rejected for filing at the front desk. At the

August 1990 hearing, two aliens testified that they were

told they were ineligible for legalization, but they did not

testify that they had actually submitted an application

(with the fee) to a legalization office and that it had been

rejected for filing. See Civil Docket No. 270, Tr. 158-166,

171-172, 193-196.

' © The documents cited by petitioners as indications of front-desking

(Pet. 16 n.11) do not support that view. The Defendants’ Opposition

Ce

Petitioners attempt to avoid the import of the record

evidence, however, by arguing (Pet. 17-18) that the court

of appeals erred in relying on the fact that no class had

been certified in this case. In their view, the court of ap-

peals should have allowed for further proceedings in the

district court to determine whether there might be any

potential class members who were “front-desked.”’

to Renewal of Plaintiffs’ Motions for Leave to Amend Complaint and

for Class Certification (Civil Docket No. 280, at 1-3, 20-21) did not

suggest the existence of front-desking evidence. The special master’s

report (Civil Docket No. 233) stated that some INS offices had taken

the position that Section 265 claimants were ineligible for legalization

and that many aliens must have self-disqualified; it made no mention

of aliens who submitted an application that was rejected for filing.

The testimony at the May 2, 1988, hearing (Civil Docket No. 75, at

35-36, 43-44) was based on the Brown and Bedor Affidavits. The

Brown Affidavit (Civil Docket No. 40) and the Bedor Affidavit (Civil

Docket No. 33) each complained that one legalization office refused

to accept applications without a fee, which is not front-desking. The

Tafoya Affidavit (Civil Docket No. 33) alleged that INS offices would

recommend aliens’ applications for denial (44 7, 8, 13); that INS of-

fices believed a Section 265 violation did not qualify aliens for

legalization (¢ 12); that the INS disseminated restrictive, vague or er-

roneous eligibility information (44 11, 14, 15, 16, 19, 20); and that

INS offices advised aliens that they were ineligible and did not keep

records of applications it rejected (¢ 20). The Tafoya Affidavit is not a

persuasive indication of front-desking; it attests to knowledge of only

three legalization offices, and each of those offices was taking applica-

tions but recommending them for denial, which is not front-desking.

The court of appeals’ conclusion that the record shows no evidence of

front-desking is further supported by the fact that prior to the close of

the application period on May 4, 1988, more than 1800 applications

raising the Section 265 claim were received by the INS. Pet. App.

102a, 106a.

’ Petitioners do not rely on claims by the individual petitioners to

support their request for a remand to the district court. Judge Wald

agreed that the individual named plaintiffs’ claims could not support a

remand. Pet. App. 18a n.1.

12

Petitioners’ recounting of the history of the litigation to

explain the absence of a certified class case simply con-

firms the appropriateness of the court of appeals’ ruling.

No class was ever certified and petitioners did not make a

timely motion for class certification—the motion peti-

tioners did make was three months out of time. Rule

203(b) of the United States District Court for the District

of Columbia provides: “Within 90 days after the filing of a

complaint in a case sought to be maintained as a class ac-

tion, the plaintiff shall move for a certification under Rule

23(c)(1), Federal Rules of Civil Procedure, that the case

may be maintained.” Petitioners filed the complaint in

early March 1988, and they filed the motion for certifica-

tion in early September 1988, approximately 180 days

after the filing of the complaint. Petitioners’ motion to

amend the original complaint was never granted,*® so that

the amended complaint was never properly before the dis-

trict court or the court of appeals. Moreover, although the

class definition in the amended complaint included aliens

who were not allowed to file an application, none of the

individual petitioners who were listed in the amended com-

plaint alleged that they had tried to submit an application

(with the fee) but had the application rejected by the INS.

Petitioners’ effort to rebut (Pet. 19-20) the court of ap-

peals’ conclusion that they previously conceded that there

was no front-desking is unpersuasive. According to peti-

tioners, the court of appeals’ prior opinion was actually

discussing the INS’s practice of making “recommended

denials,” not front-desking, and therefore any concession

they made had nothing to do with front-desking. Pet. 20.

In fact, however, the court of appeals’ prior opinion dis-

cussed petitioners’ argument that INS employees in the

* Petitioners admit (Pet. 19) that the original complaint did not pre-

sent any front-desking allegations.

13

legalization offices “were refusing to accept applications

from section 265 applicants” —i.e., were “front-desking”

those aliens. See Pet. App. 154a. In response to that argu-

ment, the court of appeals stated that petitioners “con-

ceded at oral argument —and our own review of the affi-

davits confirms—that, at most, some local INS offices

were informing aliens that the office would recommend

denial of applications based on the section 265 theory.”

Ibid.

There is no merit to petitioners’ attempt to redeem their

concession by arguing (Pet. 20-21) that a recommendation

of denial might make out a “substantial cause” for an

alien’s failure to apply, and therefore might give rise to a

ripe claim under CSS. See 113 S. Ct. at 2500 n.28. This

Court did not hold in the footnote on which petitioners re-

ly that such an alien would be entitled to any iegalization

relief under IRCA; the Court stated only that it could not

rule out the possibility (which it termed “unlikely”) that

such an alien might have a ripe claim. Nor is it clear what

relief could be awarded, since the filing of a timely ap-

plication is an essential element of eligibility for legaliza-

tion under IRCA. See 8 U.S.C. 1255a(a)(1)(A); CSS, 113

S. Ct. at 2504-2505 (O’Connor, J., concurring in the judg-

ment); compare Schweiker v. Hansen, 450 U.S. 785

(1981).

In any event, under footnote 28 in CSS, the “substantial

cause” of an alien’s failure to apply would have to be

traced to a policy of rejecting applications for adjudica-

tion at the front desk, not to a practice of accepting appli-

cations and then denying them (or recommending them

for denial). Thus, the court of appeals did not err in con-

cluding that, based on the record in this case, petitioners

had not identified grounds for remanding this six-year-old

case to commence proceedings on the front-desking issue.

The court of appeals also explained that, unlike in CSS,

where an INS Manual had provided for the rejection of

14

certain applications, the INS had adopted a policy of ac-

cepting “known to the Government” applications and had

issued instructions to accept such applications. Pet. App.

14a. Petitioners nowhere deny that the INS had adopted

such a policy and instructions, and evidence of their exist-

ence was admitted during an evidentiary hearing at the

very beginning of this case in March 1988.°

Thus, the D.C. Circuit’s resolution of petitioners’ case

without further remand to the district court is based on the

particular factual and procedural circumstances of this

case. That resolution does not conflict with the orders of

the Ninth Circuit remanding the CSS cases. There, this

Court ordered the further remand to the district court in

light of the class membership and a perceived need for fur-

ther factual development in that particular situation. The

fact-bound determination by the court below not to re-

mand this case to the district court does not warrant this

Court’s review.'°

* The District Court Clerk’s Record cont? ... the transcript of the

preliminary injunction hearing on March ZS, 1988, and Defendants’

Exhibits | and 2 entered into evidence therein (Civil Docket No. 51).

At the hearing, an INS official testified (and the Exhibits demon-

strated) that in November 1987, the INS announced and disseminated

its policy of accepting applications from aliens who claimed eligibility

under the “known to the Government” statutory provision, even

though they did not satisfy INS’s interpretation of the statutory provi-

sion. Throughout the litigation in the court of appeals, the INS re-

peatedly cited those documents and attached copies of them to the

briefs it served on December 21, 1988, February 3, 1989, May 2, 1991,

May 10, 1991, January 15, 1992, and July 14, 1993.

'° In a footnote, petitioners suggest (Pet. 21 n.16) that this case

merits review because it involves claims of individuals who filed timely

applications based on Section 265 (/.e., that they were “known to the

Government” for purposes of 8 U.S.C. 125Sa(a)(2)(B), by virtue of

their failure to file with the INS certain required reports). According

15

2. Petitioners also contend (Pet. 22-26) that the court

of appeals misinterpreted the jurisdictional holdings of

CSS and McNary. Specifically, they argue that the court

of appeals erred in interpreting CSS to mean that a

legalization application must be filed and denied in order

for a legalization claim to be ripe.

Petitioners cite no court of appeals decision that offers

an interpretation or application of CSS’s jurisdictional

analysis that conflicts with the court of appeals’ reasoning.

to petitioners (Pet. 21 n.16), those aliens have ripe claims because they

timely applied, they took all the affirmative steps they could take,

and, in a precedent decision (Matter of H, Interim Dec. No. 3205

(Assoc. Comm. June 11, 1993)), the INS has now announced its policy

to deny Section 265 claims.

None of the five individual petitioners alleged that he or she was

eligible under the Section 265 theory, and even the dissent below

acknowledged that the individual petitioners did not provide a basis to

support an order of remand to the district court. Pet. App. 18a n.1.

The aliens upon whom petitioners rely—those who submitted docu-

ments to the special master—were not party plaintiffs and are not

members of any certified class. Moreover, petitioners misread Matter

of H as establishing a policy to deny Section 265 claims. That case

established two steps for making out a Section 265 claim: an alien

must show that he or she willfully failed to file an address report, and

must further show that the INS had actual knowledge of that failure.

In Matter of H, the alien satisfied the first step but not the second, and

his claim therefore was denied.

In any event, judicial review is barred under CSS. To be ripe, the

Section 265 claim must be presented by an alien’s timely application,

and the alien’s pursuit of legalization on that theory must be concrete-

ly blocked by a denial of the application. At that point, however,

judicial review of the denied application (and of the reasons for the

denial) is available only in the court of appeals on review of a final

order of deportation entered against the alien. CSS, 113 S. Ct. at

2496-2497; INS v. Legalization Assistance Project, 1148. Ct. 422, 423

(1993) (O’Connor, J., in chambers). Thus, the district court has no

jurisdiction over the Section 265 claims that petitioners would present

to it for review.

16

Indeed, the Ninth Circuit has recently held, in agreement

with the decision below, that district court review of

challenges to the INS’s interpretation of IRCA’s legaliza-

tion requirements is barred under CSS. See Naranjo-

Aguilera v. INS, Nos. 92-16653 & 92-16933 (July 22,

1994); see also Villarina v. INS, 18 F.3d 765, 767 (9th Cir.

1994). The cases cited by petitioners (Pet. 25 n.19) do not

deal with IRCA or CSS’s jurisdictional analysis, and ac-

cordingly do not conflict with the decision below.

Moreover, the court of appeals correctly interpreted

CSS’s jurisdictional analysis. See INS v. Legalization

Assistance Project, 114 8. Ct. 422, 423 (1993) (O’Connor,

J., in chambers) (laying out essential elements of CSS’s

jurisdictional analysis, which correspond to analysis of

court below). In CSS, the Court stated that a class

member's claim would ripen for judicial review only after

he took the affirmative steps he could take before the INS

blocked his path; that barrier ordinarily arises when the

INS denies the application. 113 S. Ct. at 2496-2497. The

court below similarly reasoned that the putative bene-

ficiary under a statutory program such as that established

by IRCA must at least apply for and be denied the benefit

before the claim ripens. Pet. App. 8a-9a.

In CSS, the Court stated that once an applicant’s claim

ripens as a result of the denial of the application, the appli-

cant is barred from seeking review in the district court, be-

cause the applicant is seeking a “determination respecting

an application” that is reviewable on review of a deporta-

tion order. 113 S. Ct. at 2497. Likewise, the court below

stated that an alien who is denied legalization has a ripe

claim but is subject to IRCA’s exclusive procedure for

judicial review in the court of appeals. Pet. App. 8a-10a.

This Court stated in CSS that exceptions arise to this

preclusion of district court review when procedural mat-

ters can receive no practical judicial review within the

17

exclusive statutory scheme, as the Court found to be the

case with the procedural objections of the individual plain-

tiffs in McNary and with the front-desking claims in CSS.

The court below recognized that those same exceptions ex-

ist under McNary and CSS. Pet. App. 10a.

Finally, petitioners object that the court of appeals

“suggest[ed]” that CSS undermines what they characterize

as the well-established jurisprudence that district courts

may review challenges to INS regulations and policies. See

Pet. 25-26. The court of appeals’ statement was narrow-

er —it stated only that the Court’s ripeness analysis in CSS

calls into question the cases that “permit substantive legal

challenges prior to an alien applying for a benefit.” Pet.

App. 9a n.6. The court of appeals merely raised the ques-

tion and did not answer it. This Court does not review

mere observations in appellate opinions. See, e.g., Capital

Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697 (1984) (the

Court does “not ordinarily consider questions not specifi-

cally passed upon by the lower court”); Valley Forge

Christian College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 471, 472 (1982)

(judicial power to declare rights of individuals and meas-

ure the authority of government is to be exercised only to

decide a real, earnest, and vital controversy).

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Drew S. DAys, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General _

ROBERT KENDALL, JR.

DONALD E. KEENER

Attorneys

AUGUST 1994

US GOVERNMENT PRINTING OFFICE 1994—301.157/86177