# Opposition Brief — Ayuda, Inc. v. Reno

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 815

## Text

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1648%3A3. Public record. Not legal advice.