Petition for Writ of Certiorari — Federation for American Immigration Reform, Inc. v. Reno

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

ri. 2D (1)

961542 MAR 28 1997

NOFFCE OF TRE CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1996

FEDERATION FOR AMERICAN IMMIGRATION REFORM, INC.,

Petitioner

JANET RENO,

ATTORNEY GENERAL OF THE UNITED STATES, ET.AL.,

Respondents

On Petition for a Writ Of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

WILLIAM W. CHIP

Counsel of Record

Counsel for Petitioner

Suite 500

555 12th Street, N.W.

Washington, D.C. 20004

(202) 879-4934

QUESTION PRESENTED

Do individuals who live and work in an immigration-

impacted community lack standing to challenge a federal

agency’s unlawful admission of tens of thousands of

additional immigrants into their community because, as the

court of appeals decided, Congress would not have intended

to permit so numerous a class of potential plaintiffs to

challenge an agency that is not under pressure from

“powerful domestic interest groups”?

(i)

PARTIES

The petitioner is Federation for American Immigration

Reform, Inc. (“FAIR”). FAIR has no parent company and no.

subsidiaries

The respondents (“Respondents”) are Janet Reno,

Attorney General of the United States, and Doris Meissner,

Commissioner of the U.S. Immigration and Naturalization

Service.

The petitioner and the respondents were the parties to the

proceedings below. In the district court proceedings, FAIR

was the plaintiff and Respondents were the defendants. In

the appellate proceedings, FAIR was the appellant and

Respondents were the appellees.

(ii)

ili

TABLE OF CONTENTS

SGM POINTES oii cisicercettioccc i

III ie Matetiniiainit i ttdicitere acces ne ii

TABLE OF AUTHORITIES ..0.........ccccssssssssssscoseooooccocccc.. iv

hak ake ye AE RED TEE |

Lo ah. s, SEE IC ee l

ssseneram mssede npg ks Oo ME ET SM 2

sos bag cop nly Oy OOO RCO Es SiR 2

ss les eyrcainign ee ott RUN OTE RO EA Sa 2

ie Pe ea tS “4

B. The Proceedings Below...........cssssssssssssssssseeeooo--.5..... 8

REASONS FOR ALLOWANCE OF THE Lu § SRE eRe 12

1. The Interests Asserted in FAIR’s Complaint Are

Clearly Within the “Zone of Interests” of the INA’s

Restrictions on Respondents’ POTTIOTIAY,. So sicccsccseess.. 13

2. The Decision Below Misstates the “Zone of

Interests” Test in Camp and Clarke 2.0.0.0... 17

3. Individuals With Particularized Injuries May Sue

Under Statutes That Protect Widely Shared

cecishisiirngat ee 21

4. Standing Should Not Be Determined by the

Relative Influence of Domestic Interest Groups. .....23

RE i indo rcancisceaseidiccacomscdcusck ss 25

Serco apna UES CN ee Oe ee la

> Sek RN a Mat ra PR

DECISION OF THE DISTRICT COURT.................... 28a |

ORDER DENYING REHEARING ......-sscssssssssesssseeee 49a

ORDER DENYING SUGGESTION OF

REPEC ARING IN BANC oiccinvcrcsconisessensiecseovsavensconses 48a

TG CONT 5la i

RELEVANT PROVISIONS OF THE INA................... 69a

THE CUBAN ADJUSTMENT ACT ..sccsccssssssssessssceeees Tla

TABLE OF AUTHORITIES

Cases:

Air Courier Conf. of America v. American Postal

Workers Union, 498 U.S. 517 (1991) ....... cc eeceeeeeees 15

Amanullah v. Nelson, 811 F.2d 1 (1st Cir. 1987)......... 17

Ass'n of Data Processing Service Organizations v.

Camp, 397 U.S. 150 (1970)............. 17, 18, 19, 20, 21

Barlow v. Collins, 397 U.S. 159 (1970) ..........sccssceeereee 20

Block v. Community Nutrition Institute, 467 U.S. 340

CRI occ saskickctniapocdoevansial darn mnaicaedaaensvnticiions 19 ;

City of Milwaukee v. Block, 823 F.2d 1158 (7th Cir.

1987), cert. denied, 493 U.S. 976 (1989).............004. 21 4

Clarke v. Securities Industry Association, 479 U.S.

388 (1987).......... 4, 8,9, 10, 11, 12, 17, 18, 19, 20, 21

Duke Power Co. v. Carolina Envt'l. Study Group,

FOO, AP rc EE FTES pinicinnsheeisasineninstiiihaabraabenisen 11 |

Hazardous Waste Treatment Council v. EPA, 861

F.2d 277 (D.C. Cir. 1988), cert. denied, 490 U.S. :

UGG 11 es cacncaseeiroataanannel 8,9, 12,21 |

eR TE F

INS v. National Center Sor Immigration Rights, Inc.,

Wwe A. ARS IOUT) eee 14

Lujan v. National Wildlife Federation, 497 U.S. 871,

dela. jeer LE SRE ENED aN fog 20

National Wildlife Federation v. Agricultural

Stabilization and Conservation Serv., 901 F.2d 673

CON Ee, BIOS sheer cceniecioie cae 21

Public Citizen v. Department of. Justice, 491 U.S. 440

CPI ED seiscsstenstcbontiebbdentec kotha aise 23

Sierra Club v. Morton, 405 U.S. 727

CFP A cicssnanahe mene eae, et 4,11, 12, 22

Soler v. Scott, 942 F.2d 592, 605 (9th Cir. 1991),

vacated on other grounds sub. nom Silvey v. Soler,

“bead tae tise cs. RO OT Cre ae 21

BER AN TOOT IP cs 21

Statutes:

The Administrative Procedure Act

Aas © POUNCE ionicie Spey 18

Boca get Rig, OOo em TIES UR oD RMI EN 5 ,18

The Immigration and Nationality Act

8 U.S.C. § duinscna hans, Ge A NG 2,7

SAAT PPR a oi me a 47

URS CSB oa oes a 2

OU 6 TP cecicuacc eu ee. 2

SUBS OI a sit 2, 6,7 !

SG A a iccientocdecsscesbchvncatcusanntnctaioess 16

SUS: 3 RII oe ie 2 ;

Dee Fae Bb HEROIN OOS OR A ok ee BITC OS he

BO LEB Ba a iichibteieicirennensicshstictichnncdedteabicpsiaibes 2

Fe rhs WF Satie sninhensitciileiendith bite dadincesiiodacddendiasiniuitas 5

Be UA © LSI wiih siscesscatrsrecdhactceanipisciiaidapiiont 5

USS CI sae 5

ee BREE IE}: +. «ROR M Mn eM an Maman MRE Se TTT eae 5 |

Other Immigration Laws

Quote Law of 192142 Btat, 5. cocsiccnssosevenrcessierniancerves 13 i

Immigration Act of May 11, 1922, 42 Stat. 540........... 13

Immigration Act of May 26, 1924, 43 Stat. 153........... 13

The Cuban Adjustment Act of 1966............ccsccsseesees ye /

Pub. L. No. 104-208, § 602, 110 Stat. 3009-1........0....... 7 ;

Legislative History:

H.R. Rep. No. 4, 67th Cong., Ist Sess. 3 (1921).......... 13

H.R. Rep. No. 1980, 79th cong., 2d Sess., 41 (1946)... 19

H.R. Rep. No. 1365, 82nd Cong., 2d Sess. 51,

reprinted in 1952 U.S.C.C.A.N. 1653 .0........:cccec0ee 16 4

S. Rep. No. 748, 89th Cong., 1st Sess. 17 (1965),

reprinted in 1965 U.S.C.C.A.N. 3328 .........:0000 14, 16

S. Rep. No. 132, 99th Cong., Ist Sess. 4 (1985) .......... 14

H.R. Rep. No. 469 (pt. 1), 104th Cong., 2d Sess. 140

CED inecciecsichcismciivesshvalinssaoiagiinnaoleancaasctbiaimeda aii 7, 16

Miscellaneous: |

Immigration and Naturalization Service, Jmmigration i

to the United States in Fiscal Year 1995 17

Clit: TG isis ctcnccbisanieeetndacteacale ba. thay 15 |

Vii

L. Alvarez, Jn Quiet Policy Shift, INS Freeing Rafters

Who Make It To U.S., The Miami Herald, Jan. 21,

1995, at 1A

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

FEDERATION FOR AMERICAN IMMIGRATION REFORM, INC.,

Petitioner

Vv.

JANET RENO,

ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,

Respondents

On Petition for a Writ Of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

The Federation for American Immigration Reform

(“FAIR”) petitions for a writ of certiorari to review the

judgment in this case of the United States Court of Appeals

for the District of Columbia Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit (App. 1a) is reported at 93 F.3d

897 (1996). The opinion of the United States District Court

for the District of Columbia (App. 27a) is reported at 897 F.

Supp. 595 (1995).

(1)

JURISDICTION

The court of appeals entered its judgment on December

30, 1996. FAIR’s petition for rehearing and a suggestion of

rehearing in banc were denied on December 30, 1996. (App.

49a, 50a.) The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES INVOLVED

Sections 101(a)(16), 201(a), 202(a)(1), 211(a), 212(d)(5),

and 244a(a)(1) and (g) of the Immigration and Nationality

Act, 8 U.S.C. §§ 1101(a)(16), 1151(a), 1152(a), 1181(a),

1182(d)(5), 1254a(a)(1), (g), are reproduced in pertinent part

in the Appendix at 66a.

The Cuban Adjustment Act of 1966 is reproduced in the

Appendix at 67a.

STATEMENT

FAIR brought this suit under the Administrative

Procedure Act (“APA”) on behalf of approximately 1,400

FAIR members living in Dade County, Florida. FAIR’s

Complaint alleged that Respondents Reno and Meissner

were enabling tens of thousands of Cuban nationals to

immigrate and settle within Dade County in violation of

specified provisions of the Immigration and Nationality Act

(“INA”) and the Cuban Adjustment Act. The Complaint

alleged that Dade County labor markets, public hospitals,

and public schools were already severely overcrowded from

prior waves of lawful and unlawful immigration, and that the

additional immigration caused by Respondents’ unlawful

actions was therefore likely to injure FAIR members who

‘

‘“

were looking for work in Dade County, seeking health care

in Dade County public hospitals, or sending their children to

Dade County public schools.

The district court granted Respondents’ motion to

dismiss the Complaint under Rule 12(b)(1), holding that

none of FAIR’s members would have constitutional standing

to sue. (App. 43a-47a.) In a split decision the court of

appeals affirmed, but on different grounds, holding that

FAIR’s members would lack “prudential standing” to sue

because their interest in avoiding the adverse effects of

excessive immigration were not within the “zone of

interests” protected by the INA provisions that the Complaint

seeks to enforce. (App. 13a.)

The court of appeals ruled that for FAIR to have

standing, the INA or its legislative history must show that

persons like FAIR’s members were “intended beneficiaries”

of the statute or “suitable challengers” of unlawful agency

action. (App. 4a, 9a.) The court was not satisfied from its

reading of the INA’s legislative history that the statutory

restrictions at issue, as opposed to the INA’s immigration

limits, were intended to protect individuals living or working

in immigration-impacted communities. (App. 6a-7a, lla-

13a.) Lacking decisive evidence of what Congress intended,

the court looked to the “immigration context” to determine

whether FAIR members would be “suitable challengers” of

the alleged violations. (App. 9a-1 1a.) The court concluded

that the class of persons who might suffer the negative

effects of immigration was too numerous to act as “suitable

challengers” of unlawful action by immigration officials

unless the officials were subject to pressure from “powerful

pro-immigration interest groups”, which the court believed

was not the case. (App. 10a.)

The dissenting opinion found that the INA’s legislative

history sufficiently showed that the INA’s limits on

immigration were intended to prevent the type of injuries

alleged in FAIR’s Complaint and that the INA’s restrictions |

on Respondent’s authority which the Complaint sought to

enforce were intended to prevent a circumvention of those

limits. (App. 15a-18a.) The dissent concluded that to

require any additional evidence of congressional intent to

permit the suit contradicted this Court’s “express instruction”

in Clarke v. Securities Industry Ass'n, 479 U.S. 388, 399-400

(1987), that for APA standing “there need be no indication of

congressional purpose to benefit the would-be plaintiff’.

(/d.) The dissent also argued that to deny standing based on -

the size of the protected class conflicted with decisions such

as Sierra Club v. Morton, 405 U.S. 727 (1972), which hold

that individuals may challenge agency violations of statutes

that protect widely shared interests so long as the individuals

allege personalized injuries. (App. 18a-19a.)

A. FAIR’s Complaint

The actions challenged by FAIR’s Complaint originated

with a commitment made by representatives of the United

States Government to the Cuban Government during the

most recent Cuban immigration crisis. Prior to August of

1994, the Cuban Government had forcibly prevented

unauthorized departures from Cuba. The United States

Government had criticized that policy and had been

permitting the few Cubans who evaded the policy to land and

remain in the United States. In August of 1994, the Cuban

Government suspended its anti-departures policy, prompting

thousands of Cubans to leave Cuba in boats headed for the

United States. In response, the United States Government

ended its policy of allowing Cubans to land and remain in

the United States and sent representatives to hold talks with

the Cuban Government.

A “Joint Communiqué” signed by representatives of the

United States and Cuban Governments on September 9, 1994

confirmed that the Cuban Government had resumed its

policy of preventing unauthorized departures and that the

United States Government had ended its policy of allowing

Cubans to reach the United States by irregular means. The

Joint Communiqué also committed the parties to facilitate

lawful immigration and stated: “The United States ensures

that total legal migration to the United States from Cuba will

be a minimum of 20,000 Cubans each year, not including

immediate relatives of United States citizens.” (App. 33a.)

The INA limits the number of immigrants that

Respondents may admit into the United States and allows

immigration only by aliens in certain statutory categories,

such as relatives of citizens. 8 U.S.C. § 1151(a). Because

the number of Cuban immigrants who could lawfully be

admitted under these numerical and eligibility limits was far

less than 20,000, Respondents proposed to achieve the

targeted migration level by (1) holding lotteries in Cuba for

the opportunity to immigrate, (2) bringing lottery winners to

the United States under color of the Attorney General’s

power to temporarily “parole” aliens into the United States,

and (3) later “adjusting” them to lawfully admitted status

under the Cuban Adjustment Act of 1966. (App. 34a.)

On November 16, 1994, FAIR filed its Complaint (App.

51a-68a) in the United States District Court for the District

of Columbia. The district court’s jurisdiction was invoked

under 28 U.S.C. § 1331 as a claim arising under the laws of

the United States, under 28 U.S.C. § 1329 asa civil action

arising under the INA, under 5 U.S.C. § 702 as a civil action

arising under the APA, and under 28 U.S.C. §§ 2201 and

2202 as a civil action seeking, in addition to other remedies,

a declaratory judgment. Because the Complaint was

dismissed on the pleadings, its allegations have been treated ;

as true in the proceedings below. F

The Complaint alleged that nearly 600,000 legal and

illegal immigrants had settled in Dade County since 1970,

overwhelming the capacity of local labor markets to provide

employment for the local workforce and the capacity of

public schools and hospitals to provide essential educational

and health services to local residents. (App. 57a.) The

Complaint recited U.S. Department of Labor statistics

showing that the Dade County unemployment rate was 31%

higher than in the rest of Florida, Florida Department of

Education statistics showing that public school enrollment

exceeded school capacity by 60,000 students, and similar

Statistics relating to hospital and police protection services.

(App. 57a-60a.)

In affidavits individual FAIR members detailed the

injuries they were personally suffering from immigrant labor

competition and from severely overcrowded schools and

hospitals.! Citing government statistics that 75% of all

Cuban immigrants have settled in Dade County (App. 53a),

the Complaint alleged that the increased immigration into

Dade County likely to be caused by Respondents’ unlawful

actions threatened to exacerbate the specific injuries already

being suffered by FAIR members (App. 54a).

The Complaint alleged that Respondents’ actions to bring

tens of thousands of ineligible Cuban immigrants to the

United States violated the following restrictions on their

authority:

(1) Paroling Cuban immigrants to bring them

permanently into the United States violates 8 U.S.C. §

1 The affidavits were not introduced in the proceedings below because

the suit was dismissed on the pleadings.

1182(d)(5), which requires that parolees be released into the

United States only “temporarily” and be eventually returned

to custody and treated like other applicants for admission.

(App. 63a-64a.)

(2) Permitting paroled Cuban immigrants to remain in

the United States until their status can be adjusted violates 8

U.S.C. § 1254a(g), which prohibits the use of parole to

permit a group of aliens to remain temporarily in the United

States because of their nationality. (App. 64a-65a.)

(3) Issuing documentation allowing ineligible Cuban

immigrants to enter and remain in the United States violates

8 U.S.C. § 1101(a)(16), which requires that immigrant visas

be issued only by consular officers and only in the numbers

permitted by the INA. (App. 65a-67a.)

(4) Adjusting the paroled Cuban migrants to lawfully

admitted status exceeds the authority conferred by the Cuban

Adjustment Act, since most of the Cubans are not “eligible

to receive an immigrant visa,” a precondition of adjustment

under the Act. (App. 672.)

While this suit was on appeal, 8 U.S.C. § 1182(d)(5) was

amended by Congress to require that the Attorney General’s

parole authority be exercised only on a “case-by-case basis’.

Pub. L. No. 104-208, § 602, 110 Stat. 3009-1 (Sept. 30,

1996). The Report of the House Judiciary Committee states

that this restriction reaffirmed the intention of Congress that

parole not be used “to admit aliens who do not qualify for

admission under established legal immigration categories”.

ELR. Rep. No. 469 (pt. 1), 104th Cong., 2d Sess. 141 (1996).

The Report stated that in recent years the Attorney General

had contravened the intent of 8 U.S.C. § 1182(d)(5) by using

parole “to admit entire categories of aliens who do not

qualify for admission under any other category in the

immigration law” and cited Respondents’ Cuban parole

program as a specific example of this “abuse”. Jd. at 140.

B. The Proceedings Below

The district court dismissed FAIR’s Complaint on the

grounds that its allegations did not establish the

“traceability” and “redressability” elements of constitutional

standing. (App. 43a-47a.) The court held that the alleged

injuries were not “traceable” to Respondent’s actions

because they might be ameliorated by additional local

government spending and that they were not “redressable”

because FAIR members might suffer an equivalent injury if

the court’s injunction prompted the Cuban Government to

permit irregular departures again. (/d.) The court held that

the case was “justiciable”, citing Japan Whaling Ass’n v.

American Cetacean Society, 478 U.S. 221 (1986). (App.

37a-43a.)

The court of appeals affirmed the district court’s

dismissal of the Complaint, but on different grounds. The

majority opinion did not address constitutional standing or

justiciability, but held instead that FAIR members lacked

“prudential standing” because they were outside the “zone of

interests” of the statutory provisions alleged to have been

violated. (App. 6a-13a.)

The majority took its “zone of interests” test from the

circuit’s prior decision in Hazardous Waste Treatment

Council v. EPA, 861 F.2d 277 (D.C. Cir.), cert. denied, 490

U.S. 1106 (1989). (App. 4a.) In Hazardous Waste, 861 F.2d

at 282-83, the court of appeals had found that the zone of

interests test formulated in Clarke v. Securities Industry

Ass'n, 479 U.S. 388 (1987), was “somewhat unclear” and

proposed the following “operational meaning”:

Where [congressional intent to benefit the plaintiff] is

plain, we may entertain a presumption of standing.... In

the absence of apparent congressional intent to benefit,

however, there may still be standing if some factor--some

indicator that the plaintiff is a peculiarly suitable

challenger of administrative neglect--supports an

inference that Congress would have intended eligibility.

Citing Hazardous Waste as precedent, the majority in the

instant case defined the zone of interests test as follows:

In light of the Supreme Court's decision in [Clarke], we

have viewed parties as showing a protected interest if

either they were intended by Congress as “beneficiaries”

of the statute or we could infer that Congress intended

them as a “suitable challenger”.

(App. 4a.) According to the majority, the showing of

congressional intent must come from the statute or its

legislative history:

The question under the zone-of-interests test of § 702 [of

the APA] is simply whether the language of the statutes

invoked by the plaintiff or the supporting legislative

history suggests a congressional intent to permit the

plaintiff's suit.

(App. 9a.)

Reviewing the INA’s legislative history, the majority

found no decisive evidence that FAIR’s Dade County

members fell within any class of intended “beneficiaries”.

According to the majority, expressions of congressional

concern about the local impact of excessive immigration

were few and “trivial” (App. 6a), while those addressed to

labor market impact were connected to the INA’s numerical

limits on immigration, which did not seem to have an

integral relationship to the parole, visa issuance, and status

adjustment restrictions that Respondents were alleged to

have violated (App. 1la-13a). Without decisive evidence of

what Congress intended in either the INA or its legislative

history, the majority declared itself in a “vacuum” (App. 9a)

without “any obvious tie-breaking rule” (App. 1 1a).

To break the tie left by Congress’s silence, the majority

looked to the size of the potential plaintiff class and the

“immigration context”. (App. 10a-lla.) Having rejected a

narrow zone of interests limited to labor market participants

or to residents of immigration-impacted communities, the

majority reasoned that a zone of interests that included

FAIR’s Dade County members would also have to include

all other United States residents likely to suffer from “the

generic negative features of immigration”. (App. 7a-8a.)

The majority concluded that Congress was unlikely to have

intended that so nearly “universal” a class of potential

litigants should serve as the INA’s “litigative champions,”

unless the Immigration and Naturalization Service were

exposed to “acute pressure from powerful pro-immigration

interest groups”. (App. 10a.) The majority decided that

immigrants were ill-suited to exert such pressure. (/d.) The

immigration context was distinguished from the

environmental context, where “universal _ litigative

champions” were needed to offset the distorting influence on

agency decisionmaking of “obvious and powerful domestic

interest groups”. (/d.)

The dissenting opinion wrote that the majority’s

interpretation of the zone of interests test “ignores express

instruction from the Supreme Court” in Clarke and “fashions

a new standard without any previous support”. (App. 15a.)

In Clarke this Court held that the zone of interests test in an

APA case requires “no indication of congressional purpose

to benefit the would-be plaintiff’ and instead denies a right

to review “if the plaintiff's interests are so marginally related

to or inconsistent with the purposes implicit in the statute

that it cannot reasonably be assumed that Congress intended

to permit the suit”. 479 U.S. at 399-400.

The dissent argued that FAIR satisfied Clarke ’s

consistent-purpose test and that there was no authority for the

court to supplant that test with one that determines

reviewability based on the size of the protected class. (App.

18a.) The dissent found that the majority’s test conflicted

with cases such as Sierra Club v. Morton, 405 U.S. 727, 737-

38 (1972), wherein this Court has held that agency violations

of statutes protecting the general public can be challenged by

individuals who allege particularized injury. (App. 18a-19a.)

The dissent also disagreed with the majority’s

assumption that the INA restrictions which the Complaint

sought to enforce bore no “integral relationship” to the

numerical and eligibility limits that protect the interests

asserted by FAIR. (App. 16a-17a.) The dissent quoted

legislative history showing that the statutory restrictions on

parole that Respondent Reno is alleged to have violated were

enacted to keep parole a strictly limited exception to the

general limits on admissions. (id.) The dissent noted that

the plaintiff found by this Court to have standing in Clarke

was also challenging an agency's unlawfully broad

application of an exception to a rule of general application.

(App. 17a n.2.)

The dissent would have affirmed the district court’s

decision that the case was justiciable and would have

reversed its decision that FAIR lacked constitutional

standing. (App. 19a-26a.) Citing Duke Power Co. v.

Carolina Envt’l. Study Group, Inc., 438 U.S. 59, 78 (1978),

the dissent found that the possibilities that local governments

might alleviate the injuries caused by Respondents’ actions

or that the Cuban Government might change its policy again

were too “speculative and hypothetical” to negate the fact

that “but for” Respondents’ actions, the Cubans in question

would not be able to settle in Dade County. (App. 22a &

n.8, 23a-24a.)

REASONS FOR ALLOWANCE OF THE WRIT

The writ of certiorari should be allowed for the following

reasons:

1. The interests of FAIR’s Dade County members in

avoiding the adverse economic consequences of immigration

in excess of INA immigration limits are within the zone of

interests of the INA restrictions that Respondents are

violating because those INA restrictions were intended to

prevent a circumvention of the immigration limits.

2. The District of Columbia Circuit’s formulation of the

zone of interests test in Hazardous Waste and the instant

case, requiring statutory or committee report evidence of

congressional intent to benefit the plaintiffs or to permit their

suit, conflicts with this Court’s express instruction in Clarke

that the APA zone of interests test requires no evidence of

congressional intent to benefit the plaintiff.

3. The holding below that the widespread nature of an

injury serves as a “tie-breaking rule” disfavoring review has

repeatedly been rejected by this Court in decisions such as

Sierra Club.

4. The District of Columbia Circuit’s “suitable

challenger” test requires judges to engage in inappropriate

inquiries and determinations concerning the relative political

influence of domestic interest groups.

| 13

1. The Interests Asserted in FAIR’s Complaint Are

Clearly Within the “Zone of Interests” of the INA’s

Restrictions on Respondents’ Authority.

The dissent below considered it obvious from the INA’s

legislative history that the INA’s restrictions on the

admission of immigrants were intended to protect the

interests of United States residents. (App. 17a.) The majority

did not dispute that general proposition, but determined that

(1) Congress had shown no special concern for residents of

immigration-impacted communities, such as Dade County,

and (2) congressional concerns about iabor market impact

related to the INA’s numerical limits rather than to the INA’s

restrictions on parole, visa issuance, and status adjustment.

(App. 6a-7a, 13a.)

Contrary to what the majority concluded, the INA’s

legislative history demonstrates (1) that Congress was aware

that the negative features of immigration had a primarily

local impact and (2) that the INA’s parole, visa issuance, and

status adjustment provisions are integrally related to the

numerical and eligibility limits.

The first numerical limits on immigration, known as

“area quotas”, were imposed by the Quota Law of 1921, 42

Stat. 5. Among the purposes given for imposing immigra-

tion restrictions were that a large majority of immigrants

were settling in “congested districts” and that unemployment

and housing shortages made it impractical not to restrict

immigration. H.R. Rep. No. 4, 67th Cong., 1st Sess. 3, 6

(1921).The area quotas were extended by the Immigration

Act of May 11, 1922, 42 Stat. 540, were made permanent by

the Immigration Act of May 26, 1924, 43 Stat. 153, and were

continued by the INA when it was enacted in 1952.

In 1965, when Congress amended the INA to apply the

numerical limits on a hemispheric rather than national basis,

ace

it declared that limits were set to reflect “the present

absorptive capacity of the country” and “to protect the

American labor market from an influx of both skilled and

unskilled foreign labor”. S. Rep. No. 748, 89th Cong., Ist

Sess. 14, 15 (1965), reprinted in 1965 U.S.C.C.A.N. 3328,

3332-33. This Court has itself observed: “We have often

recognized that a ‘primary purpose in restricting immigration

is to preserve jobs for American workers’.” INS v. National

Center for Immigrants’ Rights, Inc., 502 U.S. 183, 194

(1991) (citation omitted).

Congress did not forget after 1921 that the adverse

consequences of excessive immigration are felt mainly in the

localities where the immigrants settle. In 1986, concerned

that the INA’s numerical limits were being circumvented by

illegal immigration, Congress passed the Immigration

Reform and Control Act, which penalized employers that

hired illegal aliens. The Senate Judiciary Committee’s

Report stated:

Because the well-being of individuals is affected by both

economic and mnoneconomic' circumstances, an

immigration policy which serves the national interest

should be based on an analysis of both the economic and

noneconomic impacts of immigration. . . .

[National immigration] figures actually underestimate

the impact of immigration. Since it is concentrated in

only a few regions of the country, the impact on those

regions is of much greater significance that the overall

figure suggests.

S. Rep. No. 132, 99th Cong., Ist Sess. 4, 5 (1985).

Without saying why, the majority declined to consider the

1921 legislative history. It also discounted the 1986

legislative history as a “trivial” exception addressed only to

ee —

the “current problems” of the time.* (App. 6a.) The

majority did mot dismiss as “trivial” the statements of

congressional intent to protect American workers, but

considered them unhelpful to FAIR’s standing because they

related only to the INA’s numerical limits. (App. lla-13a.)

Falling within the zone of interests of a particular

statutory provision does not automatically bring a plaintiff

within the zone of interests of the statute’s other provisions.

Air Courier Conf. of America v. American Postal Workers

Union, 498 U.S. 517, 529-30 (1991). However, FAIR’s

Complaint challenges violations of restrictions on

Respondents’ authority that exist expressly to ensure that the

INA’s numerical and eligibility limits are not circumvented,

and the Complaint spells out the relationships in some detail.

(App. 60a-63a.) While the majority opinion below asserts

that the provisions are “apparently unrelated” and “do not

seem” to be related (App. 7a, 13a), it does not disclose the

analysis of the statutory scheme that led the majority to its

conclusion. The dissenting opinion, in contrast, quotes from

legislative history wherein Congress itself explained the

integra! relationship between the INA’s restrictions on parole

and the INA’s numerical and eligibility limits on admissions.

(App. 16a-17a.)

The INA was the first immigration statute that authorized

the Attorney General to “parole” aliens who could not

otherwise be admitted into the United States. The accom-

panying Report of the House Judiciary Committee stated that

the discretionary authority to waive the INA’s “strict

2 It is improbable that Congress perceived the disproportionate impact of

immigration as only a “current problem”. In 1995 just three states

received 50% of that year’s immigrants. See Immigration and

Naturalization Service, Jmmigration to the United States in Fiscal Year

1995 17 (March, 1996).

qualitative tests” for admission “should be surrounded with

strict limitations”. H.R. Rep. No. 1365, 82d Cong., 2d Sess.

51, reprinted in 1952 U.S.C.C.A.N. 1653, 1705. The

original “strict limitations”, still in force, include the

requirements that aliens be paroled only “temporarily” and

that they eventually be returned to custody and treated like

other applicants for admission. 8 U.S.C. § 1152(d)(5)(A).

In 1965, when revoking a power granted in 1960 to parole

groups of refugees, the Senate Judiciary Committee reported:

[I]t is the express intent of the committee that the parole

provisions of the Immigration and Nationality Act. . . be

administered in accordance with the original intention of

the drafters of that legislation. The parole provisions were

designed to authorize the Attorney General to act only in

emergent, individual, and isolated situations, such as the

case of an alien who requires immediate medical

attention, and not for the immigration of classes or groups

outside the limit of the law.

S. Rep. No. 748, 89th Cong., Ist Sess. 17 (1965)(emphasis

added), reprinted in 1965 U.S.C.C.A.N. 3328, 3335.

As noted supra at 7, Congress stated in connection with a

1996 amendment to the INA’s parole provision that both

before and after the amendment it was unlawful to use parole

for the admission of “entire categories of aliens who do not

qualify for admission under any other category in the

immigration law”. H.R. Rep. No. 469, supra, at 140-41.

The First and Eleventh Circuits have both discerned an

integral relationship between the INA’s restrictions on parole

and its limits on immigration. In a decision affirmed by this

Court, the Court of Appeals for the Eleventh Circuit stated:

The reason that Congress has passed legislation regulating

the admission of aliens is its concern about how their

entry will affect the economic, political, and social well-

being of this nation. The grant of parole is subject to

certain restrictions . . . and implicates many of the same

considerations--such as employment and national security

concerns--that justify restrictions on admission.

Jean v. Nelson, 727 F.2d 957, 971-72 (11th Cir. 1984)

(footnote omitted) (en banc), aff’ d, 472 U.S. 846 (1985). See

also Amanullah v. Nelson, 811 F.2d 1, 13 (1st Cir. 1987).

The visa issuance and status adjustment restrictions which

the Complaint also addresses are even more closely

integrated with the INA’s limits on immigration. The INA’s

immigration limits are not limits on admissions per se;

rather, they are limits on the number of immigrant visas that

may be issued and on the types of person to whom they may

be issued. 8 U.S.C. § 1151(a). The Complaint expressly

alleges that Respondents are unlawfully issuing immigrant

visas that are precluded by the numerical limits and

eligibility requirements of the INA. (App. 66a, 947.)

Similarly, although the Cuban Adjustment Act is not itself

part of the INA, the numerical and eligibility limits of the

INA apply, not only to aliens seeking immigrant visas under

the INA, but also to aliens “who may otherwise acquire”

2 lawfully admitted status, which would include those adjusted

to such status under the Cuban Adjustment Act. 8 U.S.C. §

1151(a).

2. The Decision Below Misstates the “Zone of

Interests” Test in Camp and Clarke.

Without what it considered to be decisive evidence in the

INA’s legislative history on whether Congress intended to

Pe ee eee

protect people like FAIR members or to permit suits such as

this one, the majority found itself in a “vacuum” with “no

obvious tie-breaking rule” and endeavored to break the “tie”

by seeking congressional intent in the “immigration context”.

(App. 9a-10a.) However, the whole point of this Court’s

APA standing jurisprudence has been to renounce the elusive

search for indicia of congressional intent where none is

expressed and to establish a uniform “tie-breaking rule” that

favors review unless the plaintiffs interest is inconsistent

with, or not more than marginally related to, the statute’s

purpose.

The origin of the “zone of interests” test is Ass'n of Data

Processing Service Organizations v. Camp, 397 U.S. 150,

153 (1970), wherein this Court held that, apart from the

constitutional minima, the standing inquiry concerns

“whether the interest sought to be protected by the

complainant is arguably within the zone of interests to be

protected or regulated by the statute or constitutional

guarantee in question”. The Camp case, like the instant case,

proceeded under section 10 of the APA, which confers a

cause of action upon persons “adversely affected or

aggrieved by agency action within the meaning of a relevant

statute”, excepting statutes that “preclude judicial review”. 5

U.S.C. §§ 701(a)(1), 702.

While Camp did not elaborate on the difference between

the “zone of interests” test for APA and non-APA suits,

subsequent Supreme Court decisions have done so. When a

suit against unlawful agency action is nof subject to the

APA, the court must first decide whether a right of action

exists at all, let alone whether the particular plaintiff should

be permitted to exercise it. Clarke v. Securities Industry

Ass'n, 479 U.S. 388, 400 n.16 (1987). If the statute itself

does not confer such a right, standing may require a showing

of congressional intent to benefit the specific interest

asserted by the plaintiff. Jd. In other words, when the APA

is inapplicable, congressional intent to permit the suit is

established by showing congressional intent to protect the

plaintiff.

When the APA is applicable, the right of action is

supplied by the APA itself and no showing of intent to

permit the suit or to protect the plaintiff is needed. Clarke,

479 US. at 399-400. Quite the opposite; reviewability is

presumed unless an intention to preclude review “is fairly

discernible in the statutory scheme”. Camp, 397 U.S. at 157.

Congress made that clear enough in the House Report on the

APA:

The statutes of Congress are not merely advisory when

they relate to administrative agencies, any more than in

other cases. To preclude judicial review under this bill a

statute, if not specific in withholding such review, must

upon its face give clear and convincing evidence of an

intent to withhold it.

H.R. Rep. No. 1980, 79th Cong., 2d Sess., 41 (1946).

Congress’s silence favors the plaintiff. “[W]here substantial

doubt about the congressional intent exists, the general

presumption favoring judicial review of administrative action

is controlling.” Block v. Community Nutrition Institute, 467

U.S. 340, 351 (1984).

Because the right of action in an APA suit depends only

on whether Congress clearly intended to preclude review and

not on whether the statute was intended to protect the

plaintiff's interests, the zone of interests test serves a

narrower function in APA suits than in other actions to

redress unlawful agency action. In the APA context the zone

of interests test has been characterized as simply a “gloss” on

the requirement that the plaintiff be aggrieved “within the

meaning of a relevant statute”. Clarke, 479 U.S. at 395;

Lujan v. National Wildlife Federation, 497 U.S. 871, 883

(1990). The purpose for this “gloss” is to balance the strong

presumption of reviewability against “the potential for

disruption inherent in allowing every party adversely

affected by agency action to seek judicial review”. Clarke,

479 USS. at 397.

In Camp and Clarke this Court “struck the balance in a

manner favoring review” by excluding from APA standing

only plaintiffs “whose interests are so marginally related to

or inconsistent with the purposes implicit in the statute that it

cannot reasonably be assumed that Congress intended to

permit the suit”. Jd. at 399. While evidence of congressional

intent to protect the plaintiff's interest is sufficient to satisfy

this test, see, e.g, Barlow v. Collins, 397 U.S. 159, 164

(1970), such evidence is never necessary. “The test is not

meant to be especially demanding; in particular, there need

be no indication of congressional purpose to benefit the

would-be plaintiff.” Clarke, 479 U.S. at 399 (citation and

footnote omitted).

Taken together, Camp and Clarke define the APA

standing inquiry as a simple, two-part test, each part

weighted in favor of review. A plaintiff with concrete injury

is aggrieved “within the meaning of the statute” unless the

plaintiff's interest is inconsistent with the purpose of the

statute or is so marginally related to it that the ordinary

presumption of reviewability would be unreasonable. /d. at

399. If the plaintiff's interest falls within that liberally

defined zone of interests, the challenged agency action is

reviewable unless the “statutes preclude review,” either

expressly or by an intention that is “fairly discernible in the

statutory scheme”. Camp, 397 U.S. at 157.

Notwithstanding Clarke’s “express instruction” on APA

reviewability, the majority in this case applied the alternative

formulation from Hazardous Waste, which burdens FAIR

with identifying evidence in the INA or its legislative history

that Congress intended to protect the particular interests of

FAIR members or would have regarded FAIR members as

“suitable challengers”. Yet the INA, like many statutes

invoked in APA proceedings, says little or nothing about

which groups Congress intended to be the statute's “litigative

champions”. To require courts to divine an intention when

the statute, its structure, and its legislative history evince no

intention at all is to invite inappropriate contextual and

political analysis of the sort on which this case was decided.

In Hazardous Waste, and now in this case, the District of

Columbia Circuit has impermissibly substituted its own

“operational meaning” of the zone of interests test for the

Clarke consistent-purpose test, which the circuit court found

to be unclear. However, none of the other circuit courts have

found the Clarke test to be so unclear as to require adding to

or supplanting the tests articulated in Camp and Clarke. See,

e.g, UPS Worldwide Forwarding, Inc. v. U.S. Postal

Service, 66 F.3d 621, 631 (3d Cir. 1995), cert. denied, 116

S.Ct. 1261 (1996); Soler v. Scott, 942 F.2d 597, 605 (9th Cir.

1991), vacated on other grounds sub. nom Silvey v. Soler,

506 U.S. 969 (1992); National Wildlife Federation v.

Agricultural Stabilization and Conservation Serv., 901 F.2d

673, 678 (8th Cir. 1990); City of Milwaukee v. Block, 823

F.2d 1158, 1167 (7th Cir. 1987), cert. denied, 493 U.S. 976

(1989).

3. Individuals With Particularized Injuries May Sue

Under Statutes That Protect Widely Shared

Interests.

As the dissent observed, the majority identified no

inconsistency between the INA’s purposes and FAIR’s

interest in preventing the adverse economic impacts of

excessive immigration. (App. 18a.) The majority’s

objection to standing was not that FAIR members’ interests

differed from those protected by the INA but that FAIR

members had the same interests in preventing excessive

immigration as virtually all other United States residents.

(App. 7a-8a.) Because the widespread nature of the

protected interest provided the “hint” of congressional intent

on which the court below decided this case (App. 8a), this

petition raises the question whether a plaintiff's standing is

negated simply because the statute at issue protects broad

segments of the general public and not just the plaintiff and

persons like him.

As pointed out in the dissenting opinion (App. 18a-19a),

the court’s decision to deny standing based upon the

widespread nature of the protected interest conflicts with

decisions of this Court by failing to recognize the distinction

between the public interest that is served by statutes that

protect everyone and the particularized interest of an

individual that is concretely affected by a federal agency’s

violation of the statute. As an example, the dissent cited

Sierra Club v. Morton, 405 U.S. 727, 737 (1972), which

held:

[T]he fact of economic injury is what gives a person

standing to seek judicial review under the statute, but

once review is properly invoked, that person may argue

the public interest in support of his claim that the agency

has failed to comply with its statutory mandate.

In Sierra Club the Court also “noted with approval” the

“trend . . . toward discarding the notion that an injury that is

widely shared is ipso facto not an injury sufficient to provide

the basis for judicial review”. Jd. at 738. A year later, the

Court reached the same conclusion in United States y.

SCRAP, 412 U.S. 669, 687-88 (1973), declaring:

But we have already made it clear that standing is not to

be denied simply because many people suffer the same

injury. . . . To deny standing to persons who are in fact

injured simply because many others are also injured,

would mean that the most injurious and widespread

Government actions could be questioned by nobody. We

cannot accept that conclusion.

More recently, in Public Citizen v. Department of Justice,

491 U.S. 440, 449-50 (1989), the Court explained:

The fact that other citizens or groups of citizens might

make the same complaint . . . does not lessen appellants’

asserted injury, ....

4. Standing Should Not Be Determined by the

Relative Influence of Domestic Interest Groups.

The new standing test fashioned by the court of appeals

will have federal judges in the District of Columbia Circuit

making inquiries and determinations regarding the relative

influence of competing interest groups that are inappropriate

to the judicial role. The perils inherent in the exercise are

demonstrated by the decision below. The majority’s

assumption that there are no “powerful pro-immigration

interest groups” pressuring the Immigration and

Naturalization Service might have been refuted had FAIR

been given a chance to do so.

The majority opinion assumes that the only groups likely

to pressure government officials to admit ineligible

immigrants are the immigrants themselves, a relatively

powerless group in the eyes of the majority. (App. 10a.) 4

This assumption overlooks the pressures that can be exerted :

by U.S. relatives of immigrants, by employers wishing to q

hire immigrants, by ethnic and religious organizations

favoring the admission of their fellows, and by elected

officials with political motivations. Examples of such

pressure abound, beginning with the Joint Communiqué

itself. Only four months after the United States had agreed

with Cuba to end its practice of releasing Cuban migrants

who arrived illegally in the United States, The Miami Herald

reported that, under pressure from “Cuban activists”, the INS

had “quietly” been releasing hundreds of illegal Cuban

entrants, a charge confirmed by a Justice Department

spokeswoman. See L. Alvarez, “In quiet policy shift, INS

frec._.2 rafters who make it to U.S.”, The Miami Herald, Jan.

21, 1995, at 1A.

Cuban-American groups are not alone in pressuring the

government to “bend the rules”. In 1995 The Washington

Times reported that the Immigration and Naturalization

Service had succumbed to demands by “lobby groups” to

stop enforcing statutory refugee admission requirements

against Russian applicants, as a result of which many

criminals and other ineligible Russian immigrants had

entered the United States. See M. Hedges, “Vast Soviet

refugee fraud detailed”, The Washington Times, Nov. 4,

1995, at Al. More recently, The Washington Post reported

that the White House, “prodded by Democratic community

activists,” had pressured the INS to naturalize an unknown

number of ineligible aliens before the 1996 elections. See

W. Branigin, “INS Accused Of Giving In To Politics”, The

Washington Post, Mar. 4, 1997, at Al.

Congress is well aware of the existence and influence of

“powerful pro-immigration interest groups”. Last year the

immigration subcommittees of both houses approved

a eR a aaa da,

legislation, originally endorsed by the President, to reduce

the number of immigrants that could be sponsored by

businesses and relatives. Public lobbying registration

records show that business and ethnic organizations

employed more than 90 registered lobbyists to oppose the

bill. According to The Boston Globe, the bill was defeated

when the President withdrew his support after being

informed that retaining the immigration entitlement was “the

top priority” of certain contributors to the Democratic

National Committee. See M. Kranish, “Policy shift over

fund-raiser is denied”, The Boston Globe, Jan. 17, 1997, at

Al.

The forgoing examples are recited only because the

majority opinion below used the supposed non-existence of

pro-immigration pressure groups to impose a higher standard

of reviewability for violations of the immigration law than

has been applied to other statutes that also protect large

segments of the general public. Like the dissent below (App.

18a n.4), FAIR believes that its standing ought not to depend

on whether Respondents’ unlawful actions are intended to

advance the public interest or to appease Cuban-American

pressure groups.

CONCLUSION

Because the Court of Appeals for the District of

Columbia Circuit has decided the important federal question

of APA standing in a way that conflicts with applicable

decisions of this Court, the writ of certiorari should be

allowed.

Respectfully submitted,

WILLIAM W. CHIP

Counsel of Record

Counsel for Petitioner

Suite 500

555 12th Street, N.W.

Washington, D.C. 20004

(202) 879-4934

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 18, 1996 Decided August 30, 1996

No. 95-5369

FEDERATION FOR AMERICAN IMMIGRATION REFORM, INC.,

APPELLANT

JANET RENO,

ATTORNEY GENERAL OF THE UNITED STATES, ET AL..,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 94cv02459)

William W. Chip argued the cause for appellant. With

him on the briefs was Kenneth G. Starling.

Donald E. Keener, Deputy Director, United States

Department of Justice, argued the cause for appellees. With

him on the brief was Frank W. Hunger, Assistant Attorney

General.

Before: WILLIAMS, GINSBURG and ROGERS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Dissenting Opinion filed by Circuit Judge ROGERS.

WILLIAMS, Circuit Judge: For decades Cuban citizens

have taken dramatic—often fatal—trisks to leave Cuba and

get to the United States. When the United States rescued

them at sea it would routinely “parole” (release) them into

the country and issue them work authorization, in contrast to

(la)

the standard practice under international law of requiring a

threshold showing of refugee status. But in August 1994 the

Cuban government dropped its policy of forcibly preventing

its citizens from emigrating to the United States by boat, and

thousands of Cubans seized the opportunity. Our government

in turn quickly changed its policy, barring Cubans rescued at

sea from entering the United States. Instead they were

transported to the Guantanamo Bay Naval Station and other

safe havens, where they were held pending further

developments.

One month later, in September 1994, both countries

again changed their policies, issuing a Joint Communique

Concerning Normalizing Migration Procedures, State Dep't

No. 94-232, 1994 WL 621,517. According to the

Communique, Cuba agreed “to take effective measures in

every way it possibly can to prevent unsafe departures,” and

the United States agreed to admit at least 20,000 Cubans per

year as legal immigrants, not including immediate relatives

of United States citizens. Shortly after the signing of the

Communique, the Commissioner of the Immigration and

Naturalization Service announced that the floor on legal

immigration of Cubans would be achieved in part by

“paroling” several thousand Cubans into the country each

year under § 212(d)(5) of the Immigration and Naturalization

Act (“INA”), 8 U.S.C. § 1182(d)(5), and then permitting

them to apply for an adjustment of status to that of lawful

permanent resident under the Cuban Adjustment Act, Pub. L.

No. 89-732, 80 Stat. 1161 (1966) (reproduced as historical

note to 8 U.S.C. § 1255).

The Federation for American Immigration Reform filed

suit challenging the proposed implementation of the

Communique. The Federation is dedicated to “ensuring that

levels of legal immigration are consistent with the absorptive

capacity of the local areas where immigrants are likely to

settle.” Brief for Appellant at 6. Its members include

approximately 1,400 dues-paying members who live in the

Miami area, where many Cuban immigrants have settled in

the past. Its complaint alleges that the scheme for parole and

adjustment of status of Cuban nationals contravenes various

provisions of the INA and other immigration laws, and that

such actions will impair the quality of life enjoyed by its

members in the Miami area by, for example, diminishing

employment opportunities and crowding public schools and

other government facilities and services. The district court

dismissed the complaint, finding that the Federation failed to

establish the “traceability” and “redressability” elements of

Article III standing. Federation for Am. Immigration Reform

v. Reno, 897 F. Supp. 595 (D.D.C. 1995); see Valley Forge

College v. Americans United for the Separation of Church

and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct.

752 (1982).

On appeal, the government argues, as it did in district

court, that the Federation's challenge presents nonjusticiable

political questions and that the Federation lacks

constitutional and prudential standing. Because we find that

the Federation lacks prudential standing, we need not

consider the issue of constitutional standing or the political

question doctrine.

* * *

Standing of an association as a representative of

members requires that at least some of the members would

have standing to sue in their own right, and also that the

interests the association seeks to advance are germane to its

purposes and that neither its claim nor the relief requested is

such as to require participation in the suit by individual

members. United Food & Commercial Workers Union Local

751 v. Brown Group, Inc., 116 S. Ct. 1529, 1534 (1996);

Hunt v. Washington State Apple Advertising Comm'n, 432

U.S. 333, 343 (1977). Neither of the latter (association-

specific) requirements is in question here, so the Federation

has standing if some of its members would.

The Federation brought its challenge under § 10(a) of the

Administrative Procedure Act, which allows standing for one

“aggrieved by agency action within the meaning of a relevant

statute.” 5 U.S.C. § 702; see also Association of Data

Processing Service Organizations v. Camp, 397 U.S. 150,

153 (1970). A party meets that standard if it is “arguably

within the zone of interests” that Congress sought to protect

or regulate under the statute in question. Data Processing,

397 U.S. at 153. As the Federation's members are not

regulated by the immigration provisions it believes the

government has violated, its claim necessarily rests on the

idea that its members’ interests are among those Congress

sought to protect. In light of the Supreme Court's decision in

Clarke v. Securities Indus. Ass'n, 479 U.S. 388 (1987), we

have viewed parties as showing a protected interest if either

they were intended by Congress as “beneficiaries” of the

statute or we could infer that Congress intended them as a

“suitable challenger.” Hazardous Waste Treatment Council

v. EPA, 861 F.2d 277, 283 (D.C. Cir. 1988). To qualify as

the latter, a party must show “less than an intent to benefit

but more than a “marginal[ ] relationship’ to the statutory

purposes.” Jd. (quoting Clarke, 479 U.S. at 399).

The Federation's complaint alleges violations of several

statutory provisions. Its primary claim is that the scheme for

parole and adjustment of Cuban nationals is inconsistent with

the temporal limits on the parole authority granted to the

Attorney General under 8 U.S.C. § 1182(d)(5)(a):

The Attorney Generai may ... in his discretion parole

into the United States temporarily under such conditions

as he may prescribe for emergent reasons or for reasons

deemed strictly in the public interest any alien applying

for admission to the United States, but such parole of

such alien shall not be regarded as an admission of the

alien and when the purposes of such parole shall, in the

opinion of the Attorney General, have been served the

alien shall forthwith return or be returned to the custody

from which he was paroled and thereafter his case shall

continue to be dealt with in the same manner as that of

any other applicant for admission to the United States.

Id. The Federation contends, as we understand it, that the

Attorney General's treatment of the Cuban nationals violates

the statute's mandate that parole “shall not be regarded as an

admission of the alien.” The Federation also argues that the

adjustment of the Cubans' status to that of lawful permanent

resident violates 8 U.S.C. § 1254a(g), which says that certain

provisions by which the Attorney General may permit aliens

to remain in the United States temporarily because of their

nationality are the exclusive means to that end. It further

claims that the parole and adjustment scheme has the effect

of discriminating on the basis of nationality in the issuance

of immigrant visas in violation of 8 U.S.C. § 1152(a)(1).

Finally, it says that the adjustment of paroled Cubans to the

status of immigrants lawfully admitted for permanent

residence violates § 1 of the Cuban Adjustment Act of 1966,

as amended (reproduced as historical note to 8 U.S.C. §

1255), because the paroled individuals do not satisfy its

requirement that they be eligible to receive immigrant visas

The Federation's theory of injury—which we assume to

have satisfied the demands of constitutional standing—is that

a rush of immigrants adversely affects the welfare of the

Federation's members by generating unemployment and

wage reductions and by placing burdens on public services

such as hospitals and schools, especially in the Miami area.

But cf. David Card, “The Impact of the Mariel Boatlift on the

Miami Labor Market,” 43 Indus. & Lab. Rel. Rev. 245, 250

(1990) (finding no effect on non-Cuban residents’ wages

from the influx of 125,000 “Mariel” Cubans in 1980). As to

prudential standing, the Federation's idea is that because

congressional limitations on immigration reflect concern

over just such effects, the interests of Federation members

must be within the zone of interests sought to be protected.

The Federation presents two facets of the argument, one

framed in nationwide terms and the other region-specific--

focused on the Miami area, which has absorbed large

numbers of Cuban immigrants over the past two decades. We

turn to the latter argument first.

Interest in Limiting Immigration to Impacted Regions.

The Federation argues that “it would be hard to imagine

for whose benefit Congress imposed the INA's limitations if

not for the benefit of persons living in the localities where

immigrants would settle if allowed to immigrate, notably the

[Miami area] in the case of immigration from Cuba.” The

problem with this argument is that the Federation has pointed

to neither language in the statutes on which it relies (8 U.S.C.

§§ 1152, 1182, and 1254a and the Cuban Adjustment Act)

nor, with the trivial exceptions discussed just below,

legislative history that even hints at a concern about regional

impact. And intent to protect residents of impacted regions

does not appear so plausible from the statute itself that we

will infer it without more.

Of the various pieces of legislative history cited by the

Federation, only two brief passages allude to regional (as

opposed to national) effects of immigration at all. One

passage, contained in a Senate Report on the Immigration

Reform and Control Act of 1986, mentions regional effects

in a general discussion of various “current problems” related

to that act, which itself is not the source of any of the

Federation's claims. The relevant passage in the report reads

in full:

aia

{National immigration] figures actually underestimate the

impact of immigration. Since it is concentrated in only a

few regions of the country, the impact on these regions is

of much greater significance than the overall figure

suggests. For example, ... assuming continuance of

existing settlement patterns, the population of California

would double by 2080. Over one-half of that State's

population would consist of post-1980 immigrants and

their descendants.

S. Rep. No. 132, 99th Cong., Ist Sess. 5 (1985). The

Federation's second passage concerning regional effects is

also drawn from the legislative history of the 1986 Act and

this time involves a funding provision of that act (again, not

connected in any way to the provisions invoked by the

Federation) under which the federal government was to

provide partial reimbursement of costs incurred by states due

to participation of “legalized” aliens (presumably those

legalized by the Act) in various public programs. H.R. Conf.

Rep. No. 1000, 99th Cong., 2d Sess. 93 (1986). The passage

notes that funds were authorized to be used for “programs of

public assistance, programs of public health assistance, and

services provided by local educational agencies.” /d. These

brief references to regional effects do little to establish that

individuals living in immigration-impacted areas are either

beneficiaries of, or otherwise suitable challengers under, the

apparently unrelated statutory provisions that the Federation

claims the government violated here.

General Interest in Limiting Immigration.

Another possibility is that the zone of interests protected

by the statutory provisions invoked in the complaint includes

the interest that legal residents throughout the United States

may have in preventing immigration-related unemployment

and stresses on the provision of government services. But the

widespread nature of this alleged interest, indeed its near

universality, suggests to us a negative answer to Clarke's

question whether Congress intended that persons having the

interest should be “heard to complain” in federal court of

alleged interferences with it. 479 U.S. at 399. The injury (if

any) to a citizen qua citizen from admission of an alien is an

injury common to the entire population, and for that reason

seems particularly well-suited for redress in the political

rather than the judicial sphere. Small-scale violations of the

law are unlikely to do much harm, and large-scale ones are

likely to be picked up by the political process. As the

Supreme Court said in Warth v. Seldin, 422 U.S. 490, 498

(1975), “In essence the question of standing is whether the

litigant is entitled to have the court decide the merits of the

dispute or of particular issues.... In both [its constitutional

and its prudential] dimensions [standing doctrine] is founded

in concern about the proper--and properly limited--role of the

courts in a democratic society.” (Emphasis added.) See also

id. at 508 n.18 (“[C]itizens dissatisfied with provisions of

[particular] laws need not overlook the availability of the

normal democratic process.”) Where the question is whether

Congress intended to grant a right to a particular class of

individuals to enforce a statute or other provision of law in

federal court, the near-universality of the class at least hints

at a negative answer.

This is of course not to say that Congress is unable to

enact statutes enforceable by any member of the public. As

long as the requirements for Article III standing are met,

Congress may permit suit by persons who would otherwise

be barred by prudential standing requirements. Warth, 422

U.S. at 501. And, although the Article III requirements will

not be met if the alleged injury is to an abstract or

generalized interest, such as the interest in the proper

operation of government, see Lujan v. Defenders of Wildlife,

504 U.S. 555, 573 (1992); Allen v. Wright, 468 U.S. 737, 760

(1984), they may be satisfied even though the alleged injury

is widespread or universal, so long as it is concrete, see

United States v. Students Challenging Regulatory Agency

Procedures (“SCRAP”), 412 U.S. 669, 686-88 (1973). The

question under the zone-of-interests test of § 702 is simply

whether the language of the statutes invoked by the plaintiff

or the supporting legislative history suggests a congressional

intent to permit the plaintiff's suit.

Apart from the near-universal character of the asserted

interest of citizens qua citizens in assuring that employment

opportunities are not impaired and public services and

facilities not overburdened, we see little that pushes us one

way or the other in discerning whether Congress intended to

permit suit by members of this broad class. As the

Federation's counsel stated in oral argument, “[i]f it is not to

protect the people who live in the few communities where

immigrants tend to settle, it would be hard to know for

whose benefit those limitations were enacted, because

Congress never mentions anybody else.” (Emphasis added).

We have already seen that Congress failed to mention

citizens living in immigration-impacted areas in any relevant

connection, so we are left facing something of a vacuum. We

do not believe that an affirmative signal of Congressional

intent to permit a suit is required for a finding of prudential

standing; a different conclusion would be difficult to

reconcile with the Court's statement in Clarke that “[t]he

[zone-of-interests] test is not meant to be especially

demanding; in particular, there need be no indication of

congressional purpose to benefit the would-be plaintiff.” 479

U.S. at 399-400 (emphasis added). But we have also held

that the absence of a clear indication of congressional intent

to forbid the suit does not automatically confer standing on

the plaintiff. National Fed'n of Fed. Employees v. Cheney,

883 F.2d 1038, 1052 (D.C. Cir. 1989) (explicitly rejecting

10a

idea that parties “have standing unless the statutes or their

legislative histories reveal a congressional intent to preclude

reliance on this particular class of plaintiffs”).

The immigration context suggests the comparative

improbability of any congressional intent to embrace as

suitable challengers in court all who successfully identify

themselves as likely to suffer from the generic negative

features of immigration. If it were likely that the Immigration

and Naturalization Service might be subjected to acute

pressure from powerful pro-immigration interest groups, a

congressional contemplation of universal _litigative

champions would perhaps be a likely inference. But in fact

the people most directly affected by the agency's behavior, |

the would-be immigrants, are exceptionally ill-placed to

mount such pressures. Environmental legislation is a sharp

contrast. Although it often has champions who have near-

universal interests (breathing clean air, for example), it also

works in an area with obvious and powerful domestic interest

groups, the regulated firms, which Congress might fear as a

source of distorting influence over the relevant agencies. In

that context, the inference that Congress contemplated

universal champions seems far more reasonable.

Moreover, we do not understand the Federation's concept

of its members’ injury to be at all analogous to the injury

suffered by a broad public as a result of an increase in air

pollution--each extra particle (or alien) causing a marginal

increase in hazard. The Federation makes no such

zenophobic suggestion, which in any event we would be

most reluctant to impute to Congress as the injury it sought

to avert (and thus the obverse of the interest to be protected).

Rather, the injury asserted appears no different from the

crowding effect that might be expected from any abrupt

surge in the adult population. And under that view the injury

is as diffuse as can be imagined. It is, for example, suffered

gg ee ON ag, See eT te ee

lla

even by those Cuban immigrants who would secure entrance

to the United States if the program attacked by the

Federation were dismantled. The asserted injury is thus

borderless and universal in a way that even environmental

injury is not.

Here, without either a clear indication of congressional

intent or any obvious tie-breaking rule, we infer from the

universality of the proposed class of plaintiffs and the above

characteristics of the immigration context that Congress did

not intend to permit suit in federal court by all members of

the proposed class.

Employment-based Interest in Limiting Immigration.

In /nternational Union of Bricklayers & Allied Crafismen

v. Meese, 761 F.2d 798 (D.C. Cir. 1985), we held that

domestic workers fell within the zone of interests of INA §

212(a)(4), 8 U.S.C. § 1182(a)(14), which specifically

excluded from the United States “alien workers whose entry

“will ... adversely affect the wages and working conditions of

the workers in the United States similarly employed.’ “

Bricklayers, 761 F.2d at 804 (quoting 8 U.S.C. §

1182(a)(14)). The Federation suggests, as an alternative to its

primary arguments, that under Bricklayers a narrowed class

of prospective plaintiffs, including only those persons for

whom more immigration may imply a prospect of increased

competition in the job market—and thus a lower wage or an

increased risk of unemployment—falls within the zone of

interests of the statutory provisions named in the complaint.

The INA contains various numerical limits on

immigration. E.g., 8 U.S.C. § 1153. At least in some

instances, these limits reflect a clear concern about protecting

the job opportunities of United States citizens. A clear

example is § 1153(b)(3)(A), which restricts visas for various

types of workers to individuals capable of performing work

for which “qualified workers are not available in the United

12a

States.” Assuming that the Federation's members fall within

the zone of interests of the numerical limit provisions, and

thus would have prudential standing to complain of direct

violations of those provisions, it does not follow that they

have standing to complain about violations of the statutory

provisions they in fact assert. See National Wildlife Fed'n,

497 U.S. at 883.! If a plaintiff were permitted to bring a

claim for violation of a particular statutory provision

whenever he or she came within the zone of interests of some

provision contained within the same act, the zone-of-interests

test could be “deprive[d] ... of virtually all meaning.” Air

Courier Conference of Am. v. American Postal Workers

Union, 498 U.S. 517, 529-30 (1991).

In applying the zone-of-interests test, we do not look at

the specific provision said to have been violated in complete

isolation. In Clarke the Court looked not only to the

provision allegedly violated but also to one to which it was

an exception. 479 U.S. at 401-02. And in Bricklayers we

found that labor unions had standing to challenge the

admission of aliens classified as “B-1's” on the ground that

their admission violated the limits on use of “H-2” visas,

where both of the relevant statutory provisions appeared in a

common subsection of the INA, § 101(a)(15), and concerned

the same subject matter, entry specially for work purposes.

761 F.2d at 804-05. But in Air Courier the Supreme Court

emphasized that it would look only to provisions having an

“integral relationship” with the provisions under which the

suit was brought. 498 U.S. at 530. It thus refused to permit

labor unions to challenge the “Postal Express Statutes”

(governing use of private mailing services) on the basis of

1 The Federation's complaint does refer to (unspecified) “numerical

limits" on immigration, but we do not read the complaint to allege a

claim for relief for violation of § 1153 or any similar provision.

sa ae ee

l3a

certain labor-management provisions--within whose zone of

interests the unions presumably fell--contained in the same

piece of legislation, the Postal Reorganization Act. Jd. “None

of the documents constituting the [Act's] legislative history

suggest that those concerned with postal reforms saw any

connection between the [Postal Express Statutes] and the

provisions of the [Act] dealing with labor-management

relations.” Jd.

The numerical limits in the INA do not seem to have the

sort of “integral relationship” with the parole, nationality-

preference, and visa-eligibility provisions invoked by the

Federation that would permit the numerical limits to be

considered in establishing standing for the Federation's

members. Of course every immigration provision is in a

broad sense part of the framework of every other provision.

But if that were enough, then every provision constraining

the admission of anyone under any circumstances (including

any provision allowing the admission of anyone, for all such

permissive provisions necessarily have their limits) would be

pertinent in applying the zone-of-interests test to any

provision. This does not seem the sort of relationship the

Supreme Court had in mind in Air Courier.

* * &

Because Congress, in the various immigration provisions

that the Federation says have been violated, did not seek to

protect the interests of the Federation's members by

intending them as beneficiaries or as suitable challengers of

violations, the judgment dismissing the complaint is

Affirmed.

ROGERS, Circuit Judge, dissenting: The Federation for

American Immigration Reform, Inc. (“FAIR”) has brought

suit in federal district court seeking declaratory and

injunctive relief for alleged violations of the Immigration and

Nationality Act (“INA”) by the Attorney General. In

l4a

accordance with a joint communique issued by the

governments of the United States and Cuba on September 9,

1994, the Attorney General announced a policy of paroling a

substantial number of Cubans into the United States each

year and, after one year's presence in the United States,

adjusting their status to permanent residents.! FAIR's

complaint alleges that the Attorney General's parole program

for special Cuban migrants exceeds her authority under the

parole provision, INA § 212(d)(5)(A), 8 U.S.C. §

1152(d)(S)(A) (1994), the Cuban Adjustment Act, Pub. L.

No. 89-732, § 1, 80 Stat. 1161, 1161 (1966), as amended by

Pub. L. No. 96-212, § 203(i), 94 Stat. 102, 108 (1980),

reprinted as 8 U.S.C. § 1255 note (1994), and several other

provisions of the INA. The court concludes that FAIR's

members are not within the “zone of interests” of the

immigration statutes and affirms the dismissal of the

complaint. Because I conclude that FAIR has standing and

its complaint does not present a non-justiciable political

question, I respectfully dissent.

Prudential standing. In its complaint, FAIR asserts that

the limits on immigration in the INA “were enacted by

Congress to protect U.S. citizens and previously admitted

immigrants from the adverse effects of immigration in excess

of the absorptive capacity of the nation and of the

communities where the immigrants settle.” Cmplt. § 26.

Viewing the question as “whether the language of the

1 The United States government has undertaken in its agreement

with Cuba to admit a minimum of 20,000 Cubans into the United States

each year, not including immediate relatives of United States citizens.

The government has estimated that about 3,000 Cuban migrants would

arrive as immigrants, about 7,000 as refugees, and about 10,000 as

parolees. Statement of Doris Meissner, Commissioner of the Immigration

and Naturalization Serv., transcript at 15 (Sep. 9, 1994).

l5a

statutes invoked by the plaintiff or the supporting legislative

history suggests a congressional intent to permit the

plaintiff's suit,” Majority Opinion (“Maj. Op.”) at 8, the court

“sees little that pushes us one way or the other in discerning

whether Congress intended to permit suit by members of this

broad class.” Maj. Op. at 8. The court concludes that the

“near-universality” of the injury operates as a “tie-breaking

rule” indicating that FAIR's members are not within the zone

of interests. Maj. Op. at 10. In conducting the zone-of-

interests inquiry in this manner, the court ignores express

instruction from the Supreme Court and fashions a new

standard without any previous support.

In Clarke v. Securities Industries Association, 479 U.S.

388, 399-400 (1987), the Court articulated the zone-of-

interests test in the following terms:

The “zone of interest” test is a guide for deciding

whether, in view of Congress’ evident intent to make

agency action presumptively reviewable, a particular

plaintiff should be heard to complain of a particular

agency decision. In cases where the plaintiff is not itself

the subject of the contested regulatory action, the test

denies a right to review if the plaintiff's interests are so

marginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit. The

test is not meant to be especially demanding; in

particular, there need be no indication of congressional

purpose to benefit the would-be plaintiff.

In an accompanying footnote, the Supreme Court declared

that the approach taken by the D.C. Circuit in Control Data

Corp. v. Baldridge, 655 F.2d 283, 293-95 (D.C. Cir.), cert.

denied, 454 U.S. 881 (1981) (requiring a positive showing,

albeit only “slight,” of congressional intent to benefit the

class of which the plaintiff is a member), was “inconsistent

16a

with our understanding of the “zone of interest’ test, as now

formulated.” 479 U.S. at 400 n.15. As the court notes, Maj.

Op. at 8-9, the presumption of reviewability of agency action

under the Administrative Procedure Act, 5 U.S.C. §§ 701-06

(“APA”), can be overcome not only by express statement in

the statute or its legislative history that Congress did not

intend to permit suit by a particular class of plaintiffs, but

also if the plaintiff's interest is “in fact inconsistent with the

animating purpose” of the statute. National Fed'n of Fed.

Employees v. Cheney, 883 F.2d 1038, 1043-44 (D.C. Cir.

1989), cert. denied, 496 U.S. 936 (1990). On the other hand,

if the plaintiff is a “suitable challenger” in the sense that its

“interests, while not in any specific or obvious sense among

those Congress intended to pyotect, coincide with the

protected interests,” then the plaintiff is permitted to bring

suit. Hazardous Waste Treatment Council v. Thomas, 885

F.2d 918, 922-23 (D.C. Cir. 1989).

The issue is whether FAIR falls within the zone of

interests of the limitations on the Attorney General's

authority to grant parole, not the zone of interests of the

permissive aspect of the parole authority. When a plaintiff

“challenges [a] program as ultra vires,” the court should ask

whether the “statutory provision was intended to protect

persons like the litigant by limiting the authority conferred. If

so, the litigant's interest may be said to fall within the zone

protected by the limitation.” Haitian Refugee Ctr. v. Gracey,

809 F.2d 794, 811 n.14 (opinion of Bork, J.). The INA

imposes limits on the overall number as well as on the

characteristics of immigrants to the United States. INA §§

201-203, 8 U.S.C. §§ 1151-1153 (1994). When the parole

provision was first adopted in 1952, the Report of the House

Committee on the Judiciary explained that the INA

established “strict qualitative tests” for admission, and “any

discretionary authority to waive the grounds for exclusion

17a

[by parole} should be carefully restricted to those cases

where extenuating circumstances clearly require such action

and ... the discretionary authority should be surrounded with

strict limitations.” H.R. Rep. No. 1365, 82d Cong., 2d Sess.

51, reprinted in 1952 U.S.C.C.A.N. 1653, 1705. In other

words, the “strict limitations” on the Attorney General's

parole authority implement the INA's overall limits on

immigration.2

When Congress abolished the national quota system in

1965 and set an overall numerical limitation on immigration,

with a system of “preferences” for immigrants meeting

certain qualifications, the Report of the Senate Committee on

the Judiciary explained that the “limit will permit

immigration within what is believed to be the present

absorptive capacity of this country.” S. REP. NO. 748, 89th

Cong., Ist Sess. 14, reprinted in 1965 U.S.C.C.A.N. 3328,

3332. These limits on immigration are obviously intended to

benefit current residents of the United States. Cf S. REP.

NO. 132, 99th Cong., Ist Sess. 3 (1985) (“[W]e believe that

the formulation of U.S. immigration policy must involve a

2 The court concludes, Maj. Op. at 10-12, that the parole provision

does not have an “integral relationship" with the limitations on

immigration in INA §§ 201-203, 8 U.S.C. §§ 1151-1153. Cf Air Courier

Conference v. American Postal Workers Union, 498 U.S. 517, 530

(1991). I agree that it does not avail FAIR to be within the zone of

interest for specific limitations on immigration that are not at issue, such

as the limits on immigrants capable of performing labor for which

qualified workers are unavailable in the United States, INA § 203(b\3),

8 U.S.C. § 1153(b)3). On the other hand, the Attorney General's parole

authority does bear an “integral relationship" to the limitations on

immigration as a whole. Just as in Clarke, in which the section of the

statute under which the plaintiff sought relief was "a limited exception to

the otherwise applicable requirement" of another section of the statute,

479 U.S. at 401, the Attorney General's parole authority is a limited

exception to the general restrictions on immigration.

18a

judgment of what would promote the interests of American

citizens....”). Congress has arrived at these limits on

immigration by weighing “both the economic and

noneconomic impacts of immigration.” Jd. at 4.3

The court does not explain why FAIR would not be a

“suitable challenger” to bring a claim that the Attorney

General has acted beyond her parole authority. FAIR's

interest in limiting immigration so as to prevent what it

considers to be the adverse economic impacts of immigration

coincides with one of Congress’ implicit purposes in enacting

limitations on the Attorney General's parole authority.

Hence, FAIR's interest is not “marginally related to or

inconsistent with the purposes implicit in the statute.”

Clarke, 479 U.S. at 399.

The court provides no authority for its proposition that

the “near-universal character of [an] asserted interest”

overcomes the presumption of reviewability under the APA.

Maj. Op. at 8. As the court acknowledges, Maj. Op. at 7,

FAIR does not present a mere generalized grievance,

“claiming only harm to [its] and every citizen's interest in

proper application of the ... laws.” Lujan v. Defenders of

Wildlife, 504 U.S. at 573; see also Warth v. Seldin, 422 U.S.

490, 499, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Rather,

FAIR alleges imminent injury to its members’ concreie and

particularized interest in job opportunities and local public

services. See infra Part II. Although FAIR's members’ injury-

in-fact is particular, FAIR's asserted legal interest is general--

indeed, everyone resident in the United States is protected by

the INA from what Congress considers to be the harms from

3 Senate Report No. 132 accompanied the Immigration Reform and

Control! Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359. The quoted

passages can also be found in identical form in a Senate report from the

previous Congress accompanying a similar bill that was not enacted into

law. S. REP. NO. 67, 98th Cong., Ist Sess. 3-4 (1983).

BETES

ne ah

BEL, ST

19a

over-immigration. In the same manner, everyone is protected

by laws governing the preservation of national parks, only

those persons concretely affected by the over-development of

such a park suffer the injury-in-fact necessary for

constitutional standing.4 See, e.g., Sierra Club v. Morton,

405 U.S. 727 (1972). To take other examples, the legal

interest of groups like voters and television viewers are

similarly held by almost the entire populace, yet such groups

are within the zone of interests of certain statutes. See, e.g.,

Office of Communication of the United Church of Christ v.

FCC, 359 F.2d 994 (D.C. Cir. 1966). “[T]he fact of [injury-

in-fact] is what gives a person standing to seek judicial

review under the statute, but once review is properly

invoked, that person may argue the public interest in support

of his claim that the agency has failed to comply with its

statutory mandate.” Sierra Club, 405 U.S. at 737. There

appears no reason to conclude from the generality of the

legal interest that FAIR asserts that FAIR's members do not

fall within the relevant zone of interest.

Il.

I address briefly the defendants’ remaining arguments for

why FAIR's claims are non-justiciable, which rely on

constitutional standing concerns and the political-question

doctrine.5

4 The court distinguishes the application of the zone-of-interests test

to environmental statutes on the ground that anti-conservation groups are

politically more powerful than pro-immigration groups. Maj. Op. at 9.

Standing to sue, however, does not depend on the likelihood of agency

"capture" by opposed interest groups. FAIR's members fall within the

zone of interests of the limitations on the Attorney General's parole

authority regardless whether she acts out of her sense of the public

interest or at the behest of interest groups favoring Cuban immigration.

5 In addition, the defendants contend that the federal courts lack

jurisdiction over FAIR's claims because they fall within the exceptions to

20a

Constitutional standing. A _ plaintiff presents a

justiciable “case or controversy” under Article III only if the

plaintiff meets three constitutional standing requirements.

First, the plaintiff 's “injury in fact” must be “concrete and

particularized” and “actual or imminent, not conjectural or

hypothetical”; second, that injury must be fairly traceable to

the defendant's conduct; and third, the judicial relief

requested must be likely to redress the injury. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal

quotation marks omitted).

FAIR alleges in its complaint that, according to INS

statistics, 75% of Cuban immigrants in 1991 to 1993 stated

that they intended to settle in the Miami area. FAIR recites

that, between 1970 and 1990, the foreign-born population of

the Miami area increased by 568,000, whereas the native-

born population increased by only 100,000. Based on the

experiences of FAIR's members with past immigration,

FAIR contends that its members who reside in the Miami

area will suffer harm in four respects: (1) their children's

public schools will become even more overcrowded; (2)

local public medical facilities will become even less efficient

and accessible; (3) local police protection will be even

further diluted; and (4) employment opportunities will be

even further diminished. In each instance, FAIR has

judicial reviewability under § 10 of the APA for when "statutes preclude

judicial review" and when "agency action is committed to agency

discretion by law." 5 U.S.C. § 701(a). Reviewability under the APA is

generally not a jurisdictional matter but rather a question of "whether a

cause of action exists." Air Courier Conference v. American Postal

Workers Union, 498 U.S. 517, 523 n.3 (1991). The district court granted

the defendants’ motion to dismiss for lack of jurisdiction under Rule of

Civil Procedure 12(b)(1) and denied as moot defendants’ motion to

dismiss for failure to state a claim under Rule 12(b)(6). In this dissenting

opinion I need address the issue of standards permitting judicial review

only in connection with the political question doctrine. See infra.

2la

provided specific examples of alleged injuries of this nature

suffered by its members.

At the pleading stage, FAIR has sufficiently alleged

injury in fact.6 See Lujan v. Defenders of Wildlife, 504 U.S.

at 561 (“At the pleading stage, general factual allegations of

injury resulting from the defendant's conduct may

suffice....”). Its claimed injuries are quite concrete, and they

are particularized because they are confined to the Miami

area. Aithough FAIR's allegations of injury draw on

experience from past Cuban migration, “past wrongs are

evidence bearing on whether there is a real and immediate

threat of repeated injury.” O'Shea v. Littleton, 414 U.S. 488,

496 (1974); see also International Union of Bricklayers &

Allied Craftsmen v. Meese, 761 F.2d 798, 803 (D.C. Cir.

1985). Of course, the alleged injuries to the Miami area from

the special Cuban migrant program may never occur, cf

David Card, The Impact of the Mariel Boatlift on the Miami

Labor Market, 43 INDuS. & LAB. REL. REV. 245 (1990), and

the defendants may contest FAIR's showing of injury in fact

at the summary-judgment stage.’

The district court concluded that FAIR could establish

neither causation nor redressability. First, the court reasoned

that “there are simply too many independent variables in the

chain of causation linking defendants’ actions with plaintiff's

injuries.” Federation of Am. Immigration Reform v. Reno,

6 The defendants maintain, citing Tennessee Power Co. v. TVA, 306

U.S. 118, 137 (1938), that the injuries suffered by FAIR's members are

not legally cognizable. The legal-interest test, however, was laid to rest

by the Supreme Court in 1970. Association of Data Processing Serv.

Orgs. v. Camp, 397 U.S. 150, 153 (1970).

7 The defendants assert that the parolees in the Cuban parole

program will have different characteristics from past Cuban immigrants.

If that is so, the defendants will have the opportunity to establish that fact

at summary judgment.

22a

897 F. Supp. 595, 604 (D.D.C. 1995). The court pointed in

particular to the uncertainty whether the Cuban migrants will

choose to settle in the Miami area and to the possibility that

“plaintiff's injuries could be abated by actions of the political

branches of the Florida government.” Jd. Second, the court

denied that the relief sought would redress FAIR's members’

injuries because the defendants could admit the Cuban

migrants into the United States through alternative methods

that would result in the same injuries. Alternatively, if the

defendants were unable to fulfill their obligations under the

joint communique, the Cuban government might react by

lifting emigration restrictions, which could potentially result

in even greater injury to FAIR's members. Jd. at 605.

In deciding whether the injury caused by the migration of

Cubans to the Miami area is fairly traceable to the

defendants’ actions, the court must ask whether “the third

party's conduct is sufficiently dependent upon the incentives

provided by the defendant's action.” Wilderness Soc'y v.

Griles, 824 F.2d 4, 17 (D.C. Cir. 1987). When a defendant's

action is “the primary factor enabling” the third-party action

harmful to the plaintiff, the causation element of standing is

satisfied.8 Jd. Under Griles, the defendants’ (allegedly

unlawful) admission of the special Cuban migrants into the

United States is the “primary factor enabling” them to settle

in the Miami area: without the defendants’ actions, none of

the special Cuban migrants would enter the country.? The

8 The district court relied on our decision in Von Aulock v. Smith,

720 F.2d 176, 180-85 (D.C. Cir. 1983). In that case, the court denied

standing because it concluded that third parties would have taken the

identical actions regardless of the defendant's conduct. Von Aulock is

distinguishable because the special Cuban migrants would not enter the

United States but for the defendants’ parole program.

9 Recently, in Florida Audubon Society v. Rubin, _F.3d__, (No.

94-5178, D.C. Cir. Aug. 20, 1996, in banc), in which the plaintiffs

pia cori ae cos a ara ncaa aaa

23a

speculative possibility that local governments might alleviate

the injuries to FAIR's members is not germane to the

standing inquiry; FAIR's chain of causation does not rely

upon any actions to be taken by local governments, and

FAIR is not required “to negate the kind of speculative and

hypothetical possibilities suggested.” Duke Power Co. v.

Carolina Envtl. Study Group, Inc., 438 U.S. 59, 78 (1978).

FAIR also satisfies the redressability element of standing.

The defendants now contend, curiously, that declaratory and

injunctive relief against the Cuban parole program would be

ineffectual because the government could simply admit the

Cuban migrants through alternative, lawful means. By

contrast, the Principal Deputy Assistant Secretary of State for

Inter-American Affairs, declared under penalty of perjury to

the district court that “[w]ithout the use of section

212(d)(5)(A) of the INA, it would be virtually impossible for

the United States to comply with its legal obligations under

the September 9 migration agreement.” Declaration of

Michael Skol 4 10 (Jan. 30, 1995). In its complaint, FAIR

alleges that “the Defendants cannot lawfully admit [the

special Cuban migrants] into the United States.” Cmplt. P

38. Because, the court must accept FAIR's allegations as

sought to set aside a rulemaking granting a tax credit to a certain ethanol-

fuel mixture because the Secretary of the Treasury prepared an

environmental impact statement assertedly required under the National

Environmental Policy Act of 1969, the court concluded that the plaintiffs

lacked standing "both because of the uncertainty of several individual

links and because of the number of speculative links that must hold for

the chain to connect the challenged acts to the asserted particularized

injury." Assuming the validity of the court's conclusion in that case, but

see id. at 1 (Rogers, J., dissenting), however, the causal relationship that

FAIR alleges is more direct than in the case of a tax incentive, and the

pattern of past Cuban migration to the Miami area makes it highly likely

that many of the special Cuban migrants will settle there. Furthermore,

the instant case remains at the pleading stage.

24a

true, Warth v. Seldin, 422 U.S. 490, 501, (1975), and the

defendants identify no alternative legal procedure for

admitting the special Cuban migrants, FAIR's members’

alleged injuries are redressable by the judicial relief that

FAIR requests. The defendants’ assertion that judicial relief

would be unavailing because the Cuban government would

take actions that would lead to even larger numbers of

Cubans coming to the United States is speculative and is

belied by current United States policy, which is to interdict

Cuban refugees at sea and not allow them to enter the United

States. See The President's News Conference (Aug. 19,

1994), 30 WEEKLY Comp. PRES. Docs. 1682, 1683 (Aug. 22,

1994).

Political question doctrine. To identify non-justiciable

political questions, the court must ask:

“(i) Does the issue involve resolution of questions

committed by the text of the Constitution to a coordinate

branch of Government? (ii) Would resolution of the

question demand that a court move beyond areas of

judicial expertise? (i11) Do prudential considerations

counsel against judicial intervention?”

Ramirez v. Arellano v. Weinberger, 745 F.2d 1500, 1511

(D.C. Cir. 1984) (en banc) (quoting Goldwater v. Carter, 444

U.S. 996, 998 (Powell, J., concurring in the judgment)); see

also Baker v. Carr, 369 U.S. 186, 217 (1962).

The sensitive immigration context in which FAIR's

claims arise counsels caution, but not complete judicial

abnegation of jurisdiction. There is no “textually

demonstrable constitutional commitment of the issue to a

coordinate political department,” as would be required to

conclude that FAIR's complaint presented a_ political

question. Baker v. Carr, 369 U.S. at 217. As this court stated

in Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir.

1986), aff'd, 484 U.S. 1 (1987):

Pye ee ee

25a

The Executive has broad discretion over the admission

and exclusion of aliens, but that discretion is not

boundless. it extends only as far as the statutory authority

conferred by Congress and may not transgress

constitutional limitations. It is the duty of the courts, in

cases properly before them, to say where those statutory

and constitutional boundaries lie.

See also Ukrainian-American Bar Ass'n, Inc. v. Baker, 893

F.2d 1374, 1380 (D.C. Cir. 1990) (concluding that a First

Amendment challenge to the government's asylum

procedures did not present a political question). Despite the

sovereign character of immigration decisions, see Fiallo v.

Bell, 430 U.S. 787, 792 (1977), they are subject to judicial

review.

The district court ruled correctly that FAIR's claims did

not present a non-justiciable political question. 897 F. Supp.

at 601-03. As the district court noted, the Supreme Court's

decision in Japan Whaling Association v. American

Cetacean Society, 478 U.S. 221 (1986), “is remarkably

similar to the instant case.” 897 F. Supp. at 603. In Japan

Whaling, the United States entered into an executive

agreement with the government of Japan regarding whale-

harvesting quotas, and the plaintiffs challenged the Secretary

of Commerce's failure to “certify” Japan under a statute

providing for penalties against nations that did not comply

with more restrictive quotas. The Supreme Court rejected the

government's contention that the case presented a political

question, stating that “the challenge to the Secretary's

decision not to certify Japan ... presents a purely legal

question of statutory interpretation.” 478 U.S. at 230. The

plaintiffs in both cases claim that the Executive Branch,

pursuant to an executive agreement with a foreign nation,

26a

violated a congressional statute.!9 The interpretation of §

212(d)(5)(A) of the INA is well within the area of judicial

expertise. ’

Because FAIR's complaint raises only _ statutory

questions, there are “judicially discoverable and manageable

standards for resolving it,” Baker, 369 U.S. at 217, in the text

of the statute itself, as well as in accompanying regulations

adopted by the Attorney General, 8 C.F.R. § 212.5 (1996).

Admittedly, the scope of judicial review is limited: “The

unusually broad Congressional power over the admission of

aliens into the United States is reflected in the narrow

construction by courts of their own power to review the

discretionary decisions of the Aitorney General made

pursuant to authority delegated to him [or her] by Congress.”

Bertrand v. Silva, 684 F.2d 204, 212 (2d Cir. 1982); see also

Jean v. Nelson, 727 F.2d 957, 976-77 (11th Cir. 1984) (en

banc), aff'd on other grounds, 472 U.S. 846 (1985). But even

though “the Attorney General has broad discretion to grant or

deny parole,” that discretion “is not unlimited.” Moret v.

Karn, 746 F.2d 989, 991 (3d Cir. 1984). Therefore, FAIR's

complaint does not present any non-justiciable political

questions.

10 The defendants attempt to distinguish Japan Whaling on the

ground that the plaintiffs in that case sought a writ of mandamus,

whereas FAIR seeks a prohibitory injunction under the APA. This is a

distinction without significance, as far as the political question doctrine

goes; if anything, the less intrusive nature of the relief that FAIR seeks

makes its claims even less problematic.

27a

Accordingly, I would reverse and remand the case to the

district court.

28a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Decided August 23, 1995 Filed August 23, 1995

Civil Action No. 94-2459 (JHG)

FEDERATION FOR AMERICAN IMMIGRATION REFORM, INC.,

PLAINTIFF,

Vv.

JANET RENO,

ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,

DEFENDANTS.

For FEDERATION FOR AMERICAN IMMIGRATION REFORM,

INC., plaintiff: Kenneth George Starling, William

Waddington Chip, SUTHERLAND, ASBILL & BRENNAN,

Washington, DC.

For JANET RENO, Attorney General of the United States,

Doris MEISSNER, Commissioner, U.S. Immigration and

Naturalization Service, defendants: Donald Eugene Keener,

U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington,

DC.

Before: JOYCE HENS GREEN, United States District

Judge.

Opinion By: JOYCE HENS GREEN

MEMORANDUM OPINION AND ORDER

To end the massive flow of Cuban nationals fleeing Cuba

in makeshift boats for the United States in the summer of

1994, the governments of the United States and the Republic

29a

of Cuba signed the United States-Cuba Joint Communique

Concerning Normalizing Migration Procedures (“Joint

Communique”) on September 9, 1994. The Joint

Communique provides for the migration of at least 20,000

Cubans per year into the United States in exchange for

Cuba's promise to patrol its borders to prevent unauthorized

departures.

Plaintiff, Federation for American Immigration Reform,

Inc. (“FAIR”), instituted this action against defendants, Janet

Reno, Attorney General of the United States, and Doris

Meissner, Commissioner of the United States Immigration

and Naturalization Service (“INS”), claiming that several of

the methods defendants will utilize to meet the 20,000 person

threshold violate federal immigration law. Defendants have

moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of

the Federal Rules of Civil Procedure. Because plaintiff lacks

standing, defendants’ Rule 12(b)(1) motion is granted and

this case is dismissed.

I, Background

A. The Parties

FAIR is a nonprofit, tax-exempt, charitable and

educational membership organization founded in 1978. Its

objectives include improving the enforcement of laws against

illegal immigration and ensuring levels of legal immigration

that are consistent with the capacity of the areas in which

immigrants typically settle to absorb them. To achieve these

ends, FAIR studies the economic, environmental, and social

consequences of immigration into the United States. The

results of its studies, as well as other information regarding

national immigration policy, are disseminated to its

members, educational institutions and policymakers.

Significant to the instant case, FAIR has approximately

1400 dues-paying members in the Miami-Hialeah Primary

Metropolitan Statistic Area (“Miami PMSA”), which is

30a

coextensive with Dade County, Florida, and includes the

cities of Miami, Miami Beach and Hialeah. The INS has

estimated that 75% of all Cuban immigrants in fiscal years

1991-93 intended to settle in the Miami PMSA.

As Attorney General of the United States, Janet Reno is

responsible for administering and enforcing all “laws relating

to the immigration and naturalization of aliens”, 8 U.S.C. §

1103(a), and is authorized to “parole” aliens temporarily into

the United States “for emergent reasons or for reasons

deemed strictly in the public interest”, 8 U.S.C. § 1182(d)(5).

Doris Meissner, the Commissioner of the INS, must perform

any responsibilities relating to immigration delegated to her

by the Attorney General, 8 U.S.C. § 1103(b), and is charged

with the responsibility of collecting and disseminating

information related to immigration. 8 U.S.C. § 1103(c). Both

defendants are sued in their official capacities.

B. Factual Background

The United States annually welcomes tens of thousands

of refugees from around the world. Nonetheless, it

discourages mass economic migration on unseaworthy

vessels to reach its shores and does not open its borders to

migrants who do not qualify for refugee protection.

Testimony of INS Commissioner Meissner before the House

Judiciary Committee Subcommittee on International Law,

Immigration and Refugees (October 5, 1994) [hereinafter

“Meissner Testimony”], attached at Tab 1 to Defendants’

Motion to Dismiss Pursuant to Rule 12(b)(1), at 22-23. The

year 1994 presented extraordinary challenges to these

policies.

In the spring, large numbers of Haitians fled the

deplorable conditions in Haiti on makeshift boats and rafts to

seek entry into the United States. In May 1994, President

Clinton ended the policy of direct repatriation of Haitians

found at sea. He instituted a new policy effective June 16

3la

whereby Haitians were screened for refugee status on United

States Coast Guard ships or in other countries. In July,

further new procedures were implemented through which

Haitians were offered temporary protection in safe haven

camps. The cessation of air links between the United States

and Haiti in early August restricted the processing of

refugees in Haiti, but the United States has continued to

assist Haitian refugees who fear persecution in their

homeland. Jd. at 22-25.

Also in August, the Cuban government announced that it

would no longer forcibly prevent emigration from Cuba by

boat. Jd.; see also Cuban Am. Bar Ass'n, Inc. v. Christopher,

43 F.3d 1412 (11th Cir. 1995). This announcement

exacerbated an already irregular and highly unsafe pattern of

migration that has existed between Cuba and the United

States since Fidel Castro rose to power in Cuba 35 years ago.

Throughout this period, Cubans who do not qualify for “in-

country” refugee processing,! have regularly set sail on the

open seas for the southeast coast of the United States.

These voyages are almost always made on overcrowded,

substandard boats or homemade rafts and frequently end in

disaster. The reward for those who successfully evade the

Cuban boat and shore patrols, however, was that the United

States did not return these would-be refugees to Cuba. The

United States brought Cubans rescued at sea into this

country, where they were paroled and issued work

authorization. Any Cuban who was “paroled in the United

States could file for asylum or apply for adjustment of status

| The United States offers channels for legal immigration for Cuban

nationals. Since 1987, there has been a refugee processing program

within the confines of Cuba for political prisoners, human rights

activists, dissidents, and members of persecuted religious minorities.

Meissner Testimony at 25.

32a

to lawful permanent resident after one year as provided in the

Cuban Adjustment Act of 1966.” Meissner Testimony at 26.

The August 1994 announcement by the Cuban

government prompted a massive flow of Cuban nationals

toward the United States. It is estimated that 40,000 Cubans

attempted the perilous journey across the Florida straits in

August and September of 1994.2 Not since the Mariel

boatlift in the early 1980's had Cubans fled in such

numbers. Of these would-be refugees, approximately 8000

arrived safely in the United States; about 32,000 were

rescued at sea by United States military vessels; several

hundred were lost at sea.

Effective August 19, the United States changed its policy

with regard to Cuban migrants. Cubans rescued at sea were

barred from entering the United States.4 Instead, they were

to be transported to such safe havens as the Guantanamo Bay

Naval Station or Panama where they could remain, return to

Cuba or seek lawful entry into a country other than the

United States. As of October 2, 1994, there were nearly

32,000 Cubans in these safe havens. Similarly, any Cuban

arriving in the United States on or after August 19, 1994 was

to be detained rather than immediately paroled. By mid-

September, approximately 725 Cuban nationals were being

held in detention facilities in the United States. Jd. at 26.

Back in early September, officials of the United States

met with representatives of the Cuban government to

2 For example, it has been estimated that 4100 Cubans arrived in the

United States by boat or raft in calendar year 1993.

3 See Louis v. Nelson, 544 F. Supp. 973, 978-79 (S.D. Fla. 1982)

(subsequent history omitted) (noting that 125,000 Cubans came into the

United States during the spring of 1980); Pollgreen v. Morris, 496 F.

Supp. 1042 (S.D. Fla. 1980) (subsequent history omitted).

4 The Attorney General did grant humanitarian parole to infirm or

elderly people as well as unaccompanied minors.

33a

negotiate an end to this crisis. The result of these

negotiations was the Joint Communique, signed on

September 9, 1994, in which the two countries recognized

their “common interest in preventing unsafe departures from

Cuba which risk loss of human life.” Joint Communique,

attached at Tab 7 to Defendants' Motion to Dismiss Pursuant

to Rule 12(b)(1), at 1. The Joint Communique committed the

Cuban government to “take effective measures in every way

it possibly can to prevent unsafe departures”. Jd. By

December, the emigration virtually ceased.

The Joint Communique emphasized the two countries’

desire “to direct{] Cuban migration inte safe, legal and

orderly channels”. Jd. The United States will strive to

achieve this goal in a number of ways. It will continue its

policy of issuing visas to immediate relatives of United

States citizens, which will result in between 500 and several

thousand Cuban nationals being lawfully admitted each year.

The United States also agreed to permit the migration of

qualified Cuban nationals on the immigrant visa waiting list

as of September 9, 1994. This measure, which the Joint

Communique refers to as “extraordinary”, will bring an

estimated 4000-6000 Cuban nationals into the United States.

In addition, the United States committed “to authorize and

facilitate additional lawful migration to the United States

from Cuba. The United States ensures that total legal

migration to the United States from Cuba will be a minimum

of 20,000 Cubans each year, not including immediate

relatives of United States citizens.” Jd.

Shortly after the Joint Communique was signed, the

United States announced the details of how it would meet the

20,000 immigrant threshold. First, the United States will

encourage earlier Cuban immigrants to become United States

citizens and then petition for the admission of their relatives.

These “preference immigrant visa holders” will constitute

34a

several thousand new Cuban nationals being lawfully

admitted into the United States each year. Second, the United

States will admit Cuban nationals who come within the

INA's definition of “refugee”, 8 U.S.C. § 1157, within

certain numerical limits.° This policy change will result in

6000-8000 new Cuban nationals in the United States

lawfully.

The final new policy adopted by the United States is the

special migration program for Cuban immigrants who could

not otherwise be lawfully be admitted into the United States

(“Special Cuban Migration Program”). These immigrants

will be selected mostly by lottery from an applicant pool.

Eligibility for the applicant pool is based upon such factors

as language skills, job skills, education level, family ties and

discrimination in Cuba.

Cubans selected under the Special Cuban Migration

Program are admitted to the United States in the following

sequence: (1) the INS issues documents that permit the

Cuban nationals to enter and remain in the United States; (2)

the Attorney General releases, or “paroles”, these migrants

from her custody upon their arrival and permits them to

remain in the United States; (3) after one-year's residence,

the migrants can apply for an adjustment of status pursuant

to the Cuban Adjustment Act, Act of Nov. 2, 1966, Pub. L.

No. 89-732, 80 Stat. 1161 (1966), 8 U.S.C. § 1255 note.

C. The Complaint

FAIR asserts that as a result of the new Cuban

immigration programs, its members residing in the Miami

PMSA will be confronted with overcrowded public schools,

decreased access to public medical facilities, reduced police

protection and diminished employment opportunities. Based

5 In the past, the United States had a policy of restricting refugee

admissions from Cuba to political prisoners.

35a

on these alleged injuries, it challenges a number of the

methods through which defendants propose to satisfy their

obligations under the Joint Communique. Specifically, it

contests the Attorney General's use of her parole authority

and the decision to permit the migration of qualified Cuban

nationals on the immigrant visa waiting list as of September

9, 1994.

In Count I, plaintiff asserts that the use of parole to allow

ineligible Cuban nationals to “enter and remain in the United

States permanently” is inconsistent with the Attorney

General's statutory parole authority granted by Section

212(d)(5)(A) of the Immigration and Naturalization Act

(“INA”), codified at 8 U.S.C. § 1182(d)(5)(A). FAIR claims

that this provision mandates that parole be temporary and

that parolees are to be treated just as any other applicants for

admission; FAIR also avers that Congress did not intend that

parole be used to evade limits on immigration.

Count II presents plaintiff's claim that, whether or not the

Attorney General is misusing her parole authority (as

claimed in Count I), to permit Cuban nationals to remain in

the United States based on their nationality violates Section

244A(g) of the INA, codified at 8 U.S.C. § 1254a(g).

According to plaintiff, such a nationality preference can only

be applied if the Attorney General declares Cuban nationals

in need of “temporary protected status” because of an

extraordinary and temporary condition which prevents their

return to their homeland, something she has not done.

In Count III], FAIR avers that the decision to issue

documentation that enables Cuban immigrants to “enter and

remain in the United States permanently” is the equivalent of

issuing visas to immigrants not eligible for visas pursuant to

8 U.S.C. § 101(a) (16). Count III further claims that the

issuance of this documentation to Cubans contravenes 8

36a

U.S.C. § 1152(a)(1), which prohibits the use of preferences

based on, inter alia, nationality.

Finally, in Count IV, plaintiff claims that the Attorney

General cannot adjust the status of paroled Cuban nationals

after one-year of residence. FAIR avers that, pursuant to the

Cuban Adjustment Act, the status of lawfully admitted aliens

can only be adjusted if the paroled Cuban “is eligible to

receive an immigrant visa.” Because these immigrants are

not “eligible to receive an immigrant visa”, FAIR claims that

their status cannot be adjusted.

Il. Discussion

Presently pending are two motions to dismiss. The first

asserts that this case must be dismissed for lack of subject

matter jurisdiction, because the case presents nonjusticiable

political questions and FAIR does not have standing. Fed. R.

Civ. P. 12(b)(1).6 The second motion avers that plaintiff

fails to state a claim on which relief can be granted. Fed. R.

Civ. P. 12(b)(6).

A motion to dismiss should not be granted “unless it

appears beyond doubt that the plaintiff can prove no set of

facts in support of [its] claim which would entitle [it] to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

6 A Court considering a 12(b){1) motion can consider matters

outside the pleadings without converting the motion into one for

summary judgment. See Prakash v. American Univ., 727 F.2d 1174,

1181 (D.C. Cir. 1984); Riley v. Titus, 190 F.2d 653, 655 n.1 (D.C. Cir.),

cert. denied, 342 U.S. 855 (1951) ("A motion to dismiss for lack of

jurisdiction over the subject matter is not so converted [to summary

judgment] for obvious reasons. Had the court determined that it had no

jurisdiction over the subject matter, dismissal rather than summary

judgment would have been the proper disposition."); see also 5A Charles

A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1366

at 484-85 (2d. ed. 1990) ("There has never been any serious doubt as to

the availability of extra-pleading material on these [12(b)(1)-(5), (7)!

motions").

37a

Kenneda v. United States, 880 F.2d 1439 (D.C. Cir. 1989).

The factual allegations of the complaint must be presumed

true, Kowal v. MCI Communications Corp., 16 F.3d 1271,

1276 (D.C. Cir. 1994); see 5A Charles A. Wright, et al.,

Federal Practice and Procedure, § 1357, at 304 (1990 &

Supp. 1995), and plaintiff is entitled to all favorable

inferences which can be drawn from those allegations.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Nonetheless,

“the court need not accept inferences drawn by plaintiff[] if

such inferences are unsupported by the facts set out in the

complaint.” Kowal, 16 F.3d at 1276.

A. The Political Question Doctrine

The political question doctrine is “essentially a function

of the separation of powers”. Baker v. Carr, 369 U.S. 186,

217 (1962). It prevents the judicial branch from encroaching

upon areas reserved to the other branches of the federal

government. See Japan Whaling Ass'n v. American Cetacean

Soc'y, 478 U.S. 221, 230 (1986) (“The political question

doctrine excludes from judicial review those controversies

which revolve around policy choices and _ value

determinations constitutionally committed for resolution to

the halls of Congress or the confines of the Executive

Branch.”). When the government moves to dismiss on

political question grounds, the Court must conduct “a

discriminating inquiry into the precise facts and posture of

the particular case” to ensure that the lawsuit is not “a bona

fide controversy as to whether some action denominated

‘political’ exceeds constitutional authority.” Jd.

In Baker v. Carr, the Supreme Court noted that

“fp]rominent on the face of any case held to involve a

political question” will be:

(1) “a textually demonstrable constitutional commitment

of the issue to a coordinate political department; or”

38a

(2) “a lack of judicially discoverable and manageable

standards for resolving it; or”

(3) “the impossibility of deciding without an initial

policy Jetermination of a kind clearly for nonjudicial

discretion, or”

(4) “the impossibility of a court's undertaking

independent resolution without expressing lack of the

respect due coordinate branches of government; or”

(5) “an unusual need for unquestioning adherence to a

political decision already made; or”

(6) “the potentiality of embarrassment from multifarious

pronouncements by various departments on one

question.”

369 U.S. at 217.

Defendants’ claim that this case presents political

questions is premised on cases that recognize immigration

matters as “frequently of a character more appropriate to

either the Legislature or the Executive than to the Judiciary.”

Mathews v. Diaz, 426 U.S. 67, 81 (1976); see Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 210 (1953) (“the

power to expel or exclude aliens [is] . . . largely immune

from judicial control”); United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 542-43 (1950) (“The exclusion

of aliens is a fundamental act of sovereignty. The right to do

so stems not alone from legislative power but is inherent in

the executive power to control the foreign affairs of the

nation.”); see also Harisiades v. Shaughnessy, 342 U.S. 580,

588-89 (1952). Defendants assert that this authority is

particularly applicable here because they acted in response to

an unfolding foreign policy, immigration and humanitarian

crisis.

Defendants rely primarily on the first two Baker factors.

They argue that the constitution textually commits the

question of whether the Cuban aliens may be admitted to the

39a

legislative and executive branches. This textual commitment,

defendants claim, can be found in Article I, § 8, cl. 4, which

authorizes Congress “to establish an uniform Rule of

Naturalization . . . .” Pursuant to this authority, both the

legislative and executive branches have, indeed, created “an

intricate system governing admission of immigrant and

nonimmigrant aliens into the United States.” Defendants'

12(b)(1) Memo. at 20.

This cannot be the kind of “textually demonstrable

constitutional commitment” to which the Supreme Court

referred in Baker v. Carr. Were this true, questions regarding

immigration would always constitute political questions, and

the Supreme Court has specifically noted that a judicial

examination into immigration questions must be undertaken

with a “narrow standard of review’, Mathews, 426 U.S. at

81-82, not that it cannot be done at all.

Similarly, the government cannot rely on the foreign

powers authority of the executive and legislative branches.

Defendants' 12(b)(1) Memo. at 16 (noting that the Joint

Communique “was a Presidential initiative and received

Presidential approval”). It is true that “the conduct of the

foreign relations of our government is committed by the

Constitution to the executive and legislative departments--

'the political’ departments of the government and the

propriety of what may be done in the exercise of this political

power is not subject to judicial inquiry or decisions.” Oetjen

v. Central Leather Co., 246 U.S. 297, 302 (1918); see Fiallo

v. Bell, 430 U.S. 787, 792 (1977) (“over no conceivable

subject is the legislative power of Congress more complete

than it is over the admission of aliens”). In Baker v. Carr,

however, the Supreme Court specifically noted that “it is

error to suppose that every case or controversy which

touches on foreign relations lies beyond judicial

cognizance.” 369 U.S. at 211; see Flynn v. Shultz, 748 F.2d

40a

1186, 1190 (7th Cir. 1984). Thus, the fact that this case

involves foreign relations does not, in itself, render this case

nonjusticiable.

Defendants also argue that there is a lack of judicially

discoverable and manageable standards. They emphasize the

broad discretionary authority given the Attorney General to

implement the parole program and claim that there is no

basis on which this Court can gauge their actions.’ The

Court does not agree. The Attorney General has broad, but

not unfettered, authority to implement the parole program.

As our Court of Appeals noted in Abourezk v. Reagan, 785

F.2d 1043 (D.C. Cir. 1986), aff'd, 484 U.S. 1 (1987):

The Executive has broad discretion over the

admission and exclusion of aliens, but that discretion

is not boundless. It extends only as far as the

statutory authority conferred by Congress and may

not transgress constitutional limitations. It is the duty

of the courts, in cases properly before them, to say

where those statutory and constitutional boundaries

lie.

785 F.2d at 1061; see Jean v. Nelson, 727 F.2d 957, 975

(11th Cir.), affd, 472 U.S. 846 (1984) (noting that the

Executive's discretion regarding parole is broad but not

unlimited). In fact, it is precisely because this is a challenge

to the statutory boundaries of defendants’ authority that this

case is justiciable.

7 See 8 U.S.C. § 1182(d)(5)(A). Further, section 103 of the INA

provides, in pertinent part:

The Attorney General shall be charged with the administration

and enforcement of this Act and all other laws relating to the

immigration and naturalization of aliens .. . . [She] shall. . .

perform such other acts as she deems necessary for carrying out

[her] authority under the provisions: of this Act.

8 U.S.C. § 1103.

4la

In Japan Whaling Association, the Supreme Court

recognized that courts have “authority to construe treaties

and executive agreements, and it goes without saying that

interpreting congressional legislation is a recurring and

accepted task for the federal courts.” 478 U.S. at 230. In that

case, several wildlife conservation groups sought to compel

the Secretary of Commerce to comply with United States law

and certify that Japan was in violation of international

whaling agreements. The United States had previously

reached an agreement with Japan that no such certification

would be made if Japan complied with certain conditions.

Notwithstanding the foreign policy overtones of the case, the

Supreme Court ruled that it was not a political question; the

case only required the Court to “determine the nature and

scope of the duty imposed upon the Secretary” by law. Jd. As

Justice White remarked, “under the Constitution, one of the

Judiciary's characteristic roles is to interpret statutes, and we

cannot shirk this responsibility merely because our decision

may have significant political overtones.” /d.8

This is remarkably similar to the instant case. The United

States has obligated itself to a foreign country and FAIR is

challenging the statutory authority that defendants invoked to

fulfill the United States' obligations. It is true that defendants

acted in response to an imminent, unfolding international

8 This principle has been reinforced in this circuit. See, e.g.,

Ukrainian-American Bar Ass'n, Inc. v. Baker, 893 F.2d 1374, 1380 (D.C.

Cir. 1990) ("That a claim implicates important governmental policies . . .

does not necessarily mean that the political question doctrine precludes

the judiciary from hearing it. . . . So long as there are . . . ‘judicially

discoverable and manageable standards for resolving’ the dispute without

intruding into the realm of discretion properly reserved to the other

branches of government, the underlying issue is not itself a

nonjusticiable political question."); South African Airways v. Dole, 817

F.2d 119, 123 (D.C. Cir.), cert. denied, 484 U.S. 896 (1987).

7 42a

crisis that directly impacted our borders, and their actions

cannot be examined in a vacuum. See Harisiades, 342 U.S.

at 588-89 (“It is pertinent to observe that any policy toward

aliens is vitally and intricately interwoven’ with

contemporaneous policies in regard to the conduct of foreign

relations . . . . Such matters are so exclusively entrusted to

the political branches of government as to be largely immune

from judicial inquiry or interference.”); Narenji v. Civiletti,

617 F.2d 745 (D.C. Cir. 1979), cert. denied, 446 U.S. 957

(1980). Nonetheless, these circumstances do not render an

otherwise straightforward question of statutory interpretation

a nonjusticiable political question. The Court will tread

lightly on this sensitive matter involving foreign affairs, but

must not abrogate its responsibility to interpret the law of the

land. See DKT Memorial Fund, Ltd. v. Agency for Int'l Dev.,

810 F.2d 1236, 1238 (D.C. Cir. 1987) (“whereas attacks on

foreign policymaking are nonjusticiable, claims alleging

non-compliance with the law are justiciable, even though the

limited review that the court undertakes may have an effect

on foreign affairs”). Accordingly, defendants’ motion to

dismiss on the ground that this case presents nonjusticiable

political questions will be denied.

B. Standing

An association, such as FAIR, can establish standing in

one of two ways. It can have standing in its own right if it

demonstrates an injury to itself, or, alternatively, it can have

standing as a representative of its members on the basis of

injuries suffered by those members. Automobile Workers v.

Brock, 477 U.S. 274, 284 (1986). Because FAIR brings this

action in its representative capacity, it must satisfy the

following elements: |

(a) its members would otherwise have standing to sue

in their own right; (b) the interests it seeks to protect

are germane to the organization's purpose; and (c)

43a

neither the claim asserted nor the relief requested

requires the participation of individual members in

the lawsuit.

Hunt v. Washington State Apple Advertising Comm'n, 432

U.S. 333, 343 (1977).

Defendants claim that plaintiff cannot prove the first

element because no FAIR member would have standing to

bring this action.? See Lujan v. Defenders of Wildlife, 504

U.S. 555, 112 S. Ct. 2130, 2136 (1992) (plaintiff bears the

burden of proving standing). They argue that no FAIR

member satisfies either the constitutional or prudential

requirements for standing. Plaintiff, in contrast, claims that

the injuries to its members--identified as an increased burden

on already overcrowded public schools, overused public

health facilities, overworked public safety personnel and an

oversaturated job market in the Miami PMSA--satisfy the

constitutional and prudential requirements for standing. !9

1. Constitutional Standing

The constitutional elements of standing are that: (1) the

plaintiff has “personally . . . suffered some actual or

threatened injury as a result of the putatively illegal conduct

of the defendant” (injury in fact); (2) the injury “fairly can be

traced to the challenged action” (traceability); (3) the injury

is “likely to be addressed by a favorable decision”

(redressability). Valley Forge College v. Americans United

for the Separation of Church and State, 454 U.S. 464, 472

(1982); Florida Audubon Soc'y v. Bentsen, 54 F.3d 873, 877

(D.C. Cir. 1995); Ukrainian-American Bar Ass'n, Inc. v.

9 Defendants neither contest nor admit the second and third

elements of associational standing. Defendants’ 12(b)(1) Memo. at 27

n.8.

10 Of course, plaintiff's factual allegations with regard to standing

will be accepted as true for the purposes of this motion. Mideast Sys. and

China Civil Constr. v. Hodel, 792 F.2d 1172, 1177 (D.C. Cir. 1986).

44a

Baker, 893 F.2d 1374, 1378 (D.C. Cir. 1990). Defendants

claim that FAIR cannot establish either traceability or

redressability.!!

Traceability examines “the relationship between the

alleged unlawful conduct and the injury.” Mideast Sys. and

China Civil Constr. v. Hodel, 792 F.2d 1172, 1176 (D.C. Cir.

1986). It requires that there be a “causal connection” between

the challenged action and the injury alleged in the complaint.

Defenders of Wildlife, 112 S. Ct. at 2136. This “causal

connection” does not require that the alleged injury be a

certainty, but plaintiff must demonstrate that the alleged

injury is “fairly” traceable to the defendants’ action. /d.;

International Union of Bricklayers & Allied Craftsmen v.

Meese, 761 F.2d 798, 803 (D.C. Cir. 1985).

As applied in the instant case, FAIR must assert that its

members' injuries can fairly be traced to defendants’

allegedly unlawful immigration plan. See Von Aulock v.

Smith, 720 F.2d 176, 181 (D.C. Cir. 1983). This it cannot do.

There are simply too many independent variables in the

chain of causation linking defendants' actions with plaintiff's

injuries. Jd. (“we must exercise special care to ensure that

standing is not being rested on ‘injury that results from the

independent action of some third party not before the court’)

(quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.

26, 41-42 (1976)).

Defendants’ parole plan does not require the new Cuban

migrants to settle in the Miami PMSA. Although in the past

Cubans migrants have settled in the Miami PMSA, this is not

necessarily due to the defendants’ actions. As one court

noted:

11 Defendants state that discovery would be required before they

could determine whether to challenge the first prong.

NN A ARS

45a

FAIR completely ignores the common fact that

Florida is a desirable place to live. Indeed, for many

years there has been a constant flow of immigration

into Florida from not only Cuba but also from other

countries as well as from citizens of the United

States.

Federation for Am. Immigration Reform v. Meese, 643 F.

Supp. 983, 986 (S.D. Fla. 1986). The Cuban migrants will be

given visas to enter at any port of call in the United States

and can settle anywhere in the United States that they

choose.

Further, even were all new Cuban migrants to settle in

the Miami PMSA, plaintiffs injuries could be abated by

actions of the political branches of the Florida government. !2

The state could apportion more money for school or public

health facility construction and could hire more police

officers. Finally, defendants’ actions do not require the new

Cuban migrants to have children of school age, to send their

children to public, rather than private, schools, to create the

need for more law enforcement personnel, or to obtain jobs

that otherwise would go to FAIR members. In short, it is

impossible to conclude that plaintiff's injuries can “fairly” be

traced to defendants’ parole plan.

The redressability requirement, although “theoretically

distinct” from the traceability prong, often overlaps with it.

Mideast Sys., 792 F.2d at 1176. This is particularly true

where, as here, the claimed injury is “future injury”. Von

Aulock, 720 F.2d at 180. Redressability examines “the

relationship between the injury and the requested relief.” Jd.

As with traceability, certainty is not required, Autolog Corp.

12 The United States successfully fought the State of Florida's

attempt to obtain additional federal funding. Chiles v. United States, 874

F. Supp. 1334 (S.D. Fla. 1994).

46a

v. Regan, 731 F.2d 25, 31 (D.C. Cir. 1984), but there must be

a “substantial likelihood” that the requested remedy will

redress the aileged injury. Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 45 (1976).

In the instant case, FAIR must allege that a judicial

decision invalidating the new Cuban migration plan will

abate its members’ claimed injuries. See Von Aulock, 720

F.2d at 181. Plaintiff cannot meet this prong. FAIR does not

challenge the United States’ decision to admit 20,000 Cubans

per year, it only challenges the methods chosen to achieve

this end. Were FAIR to succeed, all it would receive is an

assurance that the 20,000 Cuban nationals arriving in the

United States each year would do so through “lawful”

means. The public schools would be just as overcrowded, the

public health facilities would be just overburdened, the

police department would be just as overworked and the job

market would be just as oversaturated.

In addition, were the Cuban migration program

invalidated and the United States unable to satisfy its

obligations under the Joint Communique, it is likely that the

massive flow of Cuban nationals into the United States

would resume. For example, in the first seven months of

1994, approximately 700 Cubans were rescued at sea and

paroled into the United States every day. This would

exacerbate many of the problems about which plaintiff

complains because under defendants’ programs, the Cubans

admitted into the United States will be prescreened for

education and job skills. Accordingly, any relief is not likely

to redress FAIR's grievances.

Finally, FAIR argues that it does not have to meet either

the traceability or redressability prongs because it has

suffered a “procedural injury”. As the Supreme Court noted

in Lujan v. Defenders of Wildlife:

47a

There is this much truth to the assertion that

“procedural rights” are special: The person who has

been accorded a procedural right to protect his

concrete interests can assert that right without

meeting all the normal standards for redressability

and immediacy.

112 S. Ct. at 2142 n.7; see Florida Audubon Soc'y, 54 F.3d at

879-80 (noting that NEPA confers a procedural right). This

provision, however, does not apply because the INA does not

afford procedural rights to lawful United States residents,

such as FAIR's members, Fernandez v. Brock, 840 F.2d 622

(9th Cir. 1988), and FAIR's members do not fall within the

zone of interest of the immigration laws. See INS v.

Legalization Assistance Project, 114 S. Ct. 422, 424

(O'Connor, sitting as Circuit Justice, 1993) (noting that the

Immigration Reform and Control Act of 1986 “was clearly

meant to protect the interests of undocumented aliens”).!3

To hold otherwise would be to read a generalized citizen

standing provision into the immigration laws.

2. Prudential Standing

Litigants must assert their own rights, cannot present

generalized grievances and, if they sue under the APA, must

fall within the zone of interests protected by the laws

invoked. Valley Forge College, 454 U.S. at 475; see Allen v.

Wright, 468 U.S. 737, 751 (1984). Although the Court is not

13 Contrary to plaintiffs contentions, Legal Assistance for

Vietnamese Asylum Seekers v. Department of State, 45 F.3d 469 (D.C.

Cir. 1995), is inapplicable. The plaintiffs in that case were family

members of would-be refugees. They were, therefore, clearly within the

zone of interest of the INA because “in originally enacting the INA,

Congress ‘implemented the underlying intention of our immigration laws

regarding the preservation of the family unit.'" /d. at 472 (quoting H.R.

Rep. No. 1365, 82d Cong., 2d Sess. (1952), reprinted in 1952

U.S.C.C.A.N. 1653, 1680). No such policy is implicated here.

48a

confident that plaintiff has satisfied any of these

requirements, ultimate resolution of these issues is

unnecessary in light of the decisions reached above.

Ill. Conclusion

For the reasons noted above, it is hereby

ORDERED that defendants’ motion to dismiss pursuant

to Rule 12(b)(1) of the Federal Rules of Civil Procedure is

granted; it is

FURTHER ORDERED that defendants’ motion to

dismiss pursuant to Rule 12(b)(6) is denied as moot.

IT IS SO ORDERED.

August 23, 1995

JOYCE HENS GREEN

United States District Judge

49a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 95-5369 September Term, 1996

94cvO02459

Federation for American Immigration Reform, Inc.,

Appellant

Janet Reno, Attorney General of the United States

and Doris Meissner, Commissioner, U.S. Immigration

and Naturalization Service,

Appellees

BEFORE: Williams, Ginsburg, and Rogers, Circuit

Judges

ORDER

Upon considerarion of appellant’s petition for

rehearing filed October 5, 1996, and of the response thereto,

it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Robert A. Bonner

Deputy Clerk

Circuit Judge Rogers would grant the petition.

50a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 95-5369 September Term, 1996

94cv02459

Federation for American Immigration Reform, Inc.,

Appellant

Vv.

Janet Reno, Attorney General of the United States

and Doris Meissner, Commissioner, U.S. Immigration

and Naturalization Service,

Appellees

BEFORE: Edwards, Chief Judge; Wald, Silberman,

Williams, Ginsburg, Sentelle, Henderson,

Randolph, Rogers and Tatel, Circuit Judges

ORDER

Appellant's Suggestion For Rehearing In Banc and

the response thereto have been circulated to the full court.

The taking of a vote was requested. Thereafter, a majority of

the judges of the court in regular active service did not vote

in favor of the suggestion. Upon consideration of the

foregoing, it is

ORDERED that the suggestion be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Robert A. Bonner

Deputy Clerk

Circuit Judges Wald, Rogers and Tatel would grant

the suggestion.

ie tak:

rh 7 yt phe ps . A ous cf e

Le ttt A i A 6S AR SANE SEDO 8 RUB A ch8 teat to, STI

5la

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 1:94CV02459

FEDERATION FOR AMERICAN IMMIGRATION REFORM, INC.,

PLAINTIFF,

Vv.

JANET RENO,

ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,

DEFENDANTS.

COMPLAINT

Federation for American Immigration Reform, Inc.

(“FAIR”), as the representative of its members, by its

undersigned attorneys, hereby brings this action to obtain

declaratory and injunctive relief against the Defendants

named herein and complains and alleges as follows:

1. On September 9, 1994, officials of the United States

and the Republic of Cuba signed a document entitled “Joint

Communique”. According to the Joint Communique, the

United States (a) “ensures that total legal migration to -the

United States from Cuba will be a minimum of 20,000

Cubans per year, not including immediate relatives of United

States citizens” and (b) “will facilitate in a one year period

the issuance of documentation to permit the migration to the

United States of those qualified Cuban nationals in Cuba

currently on the immigrant Visa waiting list”.

2. At a press conference on September 9, 1994, the

Defendants announced (a) that approximately 9,000 to

10,000 Cubans could be lawfully admitted each year as

52a

immigrants and refugees and that any difference between the

number admitted lawfully and the “ensured” migration level

of 20,000 Cubans per year would be achieved by “paroling”

into the United States Cuban immigrants who could not be

lawfully admitted as immigrants or refugees, (b) that

approximately 6,000 (but as many as 19,000) Cubans who

were on the “immigrant visa waiting list” because they could

not yet lawfully be admitted would also be “Paroled” into the

United States, and (c) that inadmissible Cuban immigrants

paroled into the United States would become eligible to

apply for and be adjusted to lawfully admitted status under

Public Law 89-732 (“the Cuban Adjustment Act”) after a

presence of one year.

3. In testimony on October 5, 1994, before the

Subcommittee on International Law, Immigration and

Refugees of the Committee on the Judiciary of the U.S.

House of Representatives, Defendant Meissner reiterated the

policy announced at the September 9 press conference and

stated that (1) the paroled Cuban immigrants “will be issued

documentation to allow them to enter and remain in the

United States permanently” and (2) their parole status would

continue until they were adjusted to lawfully admitted status

under the Cuban Adjustment Act.

4 In a statement released October 12, 1994, Acting

State Department Spokesman Christine Shelly stated that

some of the Cuban immigrants to be paroled into the United

States would be selected by a “lottery”.

5. The Defendants propose taking the following three

actions with respect to inadmissible Cuban immigrants: (1)

paroling them into the United States, (2) permitting them to

remain in the United States on the basis of their Cuban

nationality, and (3) adjusting them to lawfully admitted

status under the Cuban Adjustment Act if they apply for such

adjustment after a year's presence in the United States. Each

Pas ees

Ast

CMOS AAPL ES SE IOLA E ETS aie Bh Sh ihe aha nena aE KMS Pte

PIP wns Sc¥ Sains:

53a

of these actions contravenes one or more provisions of the

Immigration and Nationality Act (“INA”), as set forth in

Counts | through 4 herein.

6. According to INS Statistical Yearbooks, 75% of all

Cuban immigrants in fiscal years 1991, 1992, and 1993

intended to settle in the region of Southern Florida that is

designated by the federal government as the Miami-Hialeah

Primary Metropolitan Statistic Area (“the Miami PMSA”).

The Miami PMSA is coextensive with Dade County, Florida,

and includes the cities of Miami, Miami Beach, and Hialeah.

7. In the current fiscal year, the Defendants propose to

parole approximately 6,000 (but as many as 19,000)

inadmissible Cuban immigrants who were on the immigrant

visa waiting list as of September 9, 1994. In addition, in the

current fiscal year and in each succeeding fiscal year, the

Defendants propose to parole approximately 11,000 (but as

many as 20,000) inadmissible Cuban immigrants who were

not on the immigrant visa waiting list as of September 9,

1994. If 75% of the paroled Cuban immigrants settle in the

Miami PMSA, as documented settlement patterns indicate

they will, immigration into the Miami PMSA would likely

increase between 13,000 and 29,000 in the current fiscal year

and between 8,000 and 15,000 in each succeeding fiscal year.

8. Since 1970 the Miami PMSA has experienced very

high levels of immigration from Cuba and other countries.

This very high level of immigration has caused the local

population to grow more rapidly than the capacity of the

local economy to provide employment to local residents, as a

result of which local residents have experienced above-

average unemployment rates. This very high level of

immigration has also caused the local population to grow

more rapidly than the capacity of local government to

provide educational, medical, and police protection services

to local residents, resulting in overcrowded schools, less

54a

accessible and efficient medical services, and reduced

protection from crime.

9. Members of FAIR who reside in the Miami PMSA

send their children to local public schools, use local public

medical facilities, rely on local police protection for their

safety, and are unable to find local employment. Paroled

Cuban immigrants who settle in the Miami PMSA will be

entitled to local police protection and many of them are

likely to seek local employment and use the local public

schools and public medical facilities. The Defendants’

unlawful acceptance into the United States of thousands of

inadmissible Cuban immigrants who are likely to settle in the

Miami PMSA therefore threatens to cause members of FAIR

who reside in the Miami PMSA to suffer greater school

overcrowding, decreased access to public medical facilities,

reduced police protection, and diminished employment

opportunities.

JURISDICTION

10. Plaintiff's claims arise under (a) 8 U.S.C. §§ 1151,

1152(a)(1), 1153, 1181(a), 1182(d)(5), 1227(a)(1), 1254 afa),

and 1324(a) and (b) 5 U.S.C. §§ 551 et seq.

11. Jurisdiction is based on (a) 28 U.S.C. § 1331, as a

civil action arising under the laws of the United States, (b) 8

U.S.C. § 1329, as a civil action arising under the INA, as

amended, (c) 5 U.S.C. § 702 as a civil action arising under

the Administrative Procedure Act, and (d) 28 U.S.C. §§ 2201

and 2202, as a civil action seeking, in addition to other

remedies, a declaratory judgment.

Il.

VENUE

12. Venue is proper in this district under 28 U.S.C. §

1391(e)(1) because the Defendants are officials of agencies

55a

of the United States each of whose principal place of

business is in the District of Columbia.

Il.

PLAINTIFF

13. Plaintiff FAIR is a nonprofit corporation, organized

and existing under the laws of the District of Columbia.

FAIR is recognized as a tax-exempt charitable and

educational organiza*ion by the Internal Revenue Service.

14. Since its founding in 1978, FAIR has studied the

economic, environmental, and social consequences of

immigration into the United States. FAIR disseminates the

results of its studies and other information on national

immigration policy to its members, to educational

institutions, and to policymakers through newsletters,

reports, and legislative testimony. For example, Immigration

2000 (Washington, D.C., 1992) surveys and analyzes the

research findings of labor economists on the relationship

between high levels of immigration and labor market

conditions, while Crowding Out the Future (Washington,

D.C., 1992) illustrates through text, data, and satellite

imaging the ecological impact of immigration and population

growth in U.S. coastal counties.

15. FAIR is guided in its work by a National Board of

Advisors, many of whom have academic or professional

expertise on the subject of immigration. The FAIR Board of

Advisors has included in its membership former U.S.

Senators and Congressmen who participated in the

formulation of Congressional immigration policy and former

officials of the Executive Branch who were responsible for

the implementation of immigration policy, including a

former U.S. Attorney General and a former Commissioner of

the U.S. Immigration and Naturalization Service.

16. By petitioning Congress within the limits prescribed

by the Internal Revenue Code, by commenting on proposed

56a

immigration regulations, by litigation, and by other lawful

means, FAIR has worked on behalf of its members in the

Miami PMSA and elsewhere for improved enforcement of

the laws against illegal immigration and for levels of legal

immigration consistent with the absorptive capacity of the

areas where immigrants have tended to settle.

17. FAIR has approximately 1,400 dues-paying members

who reside in the Miami PMSA.

IV.

DEFENDANTS

18. Defendant Reno. Defendant Janet Reno is the

Attorney General of the United States. In that capacity she

is: (a) charged by 8 U.S.C. § 1103(a) with the

“administration and enforcement of (the INA] and ali other

laws relating to the immigration and naturalization of aliens”

and with a “duty to control and guard the boundaries of the

United States against the illegal entry of aliens” and (b)

designated by 8 U.S.C. § 1182 (d) (5) as the federal official

authorized to “parole” aliens into the United States.

Defendant Reno is being sued in her official capacity.

19. Defendant Meissner. Defendant Doris Meissner is

the Commissioner of the Immigration and Naturalization

Service (“INS”) of the United States Department of Justice.

In that capacity she is charged (a) by 8 U.S.C- § 1103(b)

with the responsibilities and authorities in the administration

of the INA and the INS that are delegated to her by the

Attorney General or prescribed by the Attorney General and

(b) by 8 U.S.C. § 1103(c) with collecting and disseminating

information about immigration trends, the alien population,

and other information “useful in evaluating the social,

economic, environmental, and demographic impact of

immigration laws”. Defendant Meissner is being sued in her

official capacity.

——

57a

STANDING OF PL FF

20. FAIR has standing to seek declaratory and injunctive

relief because enforcement of the statutory limitations on

immigration that Defendants propose to contravene is

germane to FAIR's purpose and because the unlawful actions

of the Defendants threaten to injure members of FAIR who

reside in the Miami PMSA.

21. Population Growth. Since 1970, the Miami PMSA

has experienced very rapid population growth, largely due to

legal and illegal immigration. While the U.S.-born

population of the Miami PMSA grew by only 100,000

persons between 1970 and 1990, the foreign-born population

grew by 568,000 in the same period. The population

increase resulting from legal and illegal immigration into the

Miami PMSA has outstripped the capacity of the local

economy to provide employment and the ability of local

government to provide educational, medical, and police

protection services.

22. Education. The number of students enrolled in Dade

County public schools increased by 78,000 students between

1983 and 1992. Immigration accounted for substantially all

(76,000) of that increase. The rapid growth in immigrant

student enrollment has resulted in school overcrowding,

jeopardizing the health and comfort of students within the

system and diminishing their educational opportunities.

According to a 1992 report of the Dade County

Superintendent of Schools, the system had already tapped all

available funding sources for additional school construction

and could accommodate additional growth in the immigrant

student population only by “reducing the updating of older

facilities or by adopting alternative housing arrangements for

severely overcrowded schools (i.e., double sessions)”.

According to a September 21, 1994 report of the Florida

Department of Education, the present enrollment in Dade

58a

County public schools exceeds capacity by 60,000 students.

The enrollment in over 200 of the County's 270 public

schools exceeds the capacity for which those schools were

built. Members of FAIR send their children to overcrowded

Dade County public schools. For example, one FAIR

member has two children in a Dade County public school.,

Each of them shares a classroom with 40 or more children.

If the overcrowding continues, one of her children’ s classes

next year will be held in an auditorium with 100 pupils. She

and other FAIR members will be injured by the increased

overcrowding that is likely to result from the settlement in

the Miami PMSA of thousands of unlawfully paroled Cuban

immigrants.

23. Medical Care. Immigrants make extensive use of

Jackson Memorial Hospital and other public medical

facilities in the Miami PMSA. Iilegal immigrants alone

account for approximately 25% of births at Jackson

Memorial Hospital. The heavy utilization of these public

medical facilities by the rapidly growing immigrant

population has reduced the efficiency of those facilities and

their accessibility to local residents. Members of FAIR and

members of their families use these local public medical care

facilities. For example, a FAIR member who has relied upon

the . local county health clinic for inoculations was required

on his last visit to wait nearly an hour for this simple, two-

minute procedure in waiting rooms that were so overcrowded

and dirty that he feared infection with tuberculosis or some

other contagious disease. He and other FAIR members and

their families will be injured by the increased demand on

local public medical facilities and the reduced efficiency and

accessibility that is likely to result from the settlement in the

Miami PMSA of thousands of unlawfully paroled Cuban

immigrants.

59a

24. Police Protection. The ability of local law

enforcement agencies to protect residents from crime has

been outpaced by the growth of (i) the native and immigrant

criminal populations and (ii) the growth of the resident

population requiring protection. For example, according to

both the Governor of Florida and the chief of the Florida

prison system, the incarceration of thousands of criminal

aliens, many of them illegal immigrants, has contributed to

prison overcrowding that has necessitated the early release of

thousands of dangerous criminals into the community.

According to the U.S. Census Bureau, the number of serious

crimes per capita in the Miami PMSA increased by 14%

between 1981 and 1991, compared to a 1% increase in the

rest of Florida. Members of FAIR. have been victims of this

crime wave. For example, since 1980 one FAIR member has

experienced an accelerating rate of burglaries and other

crimes against his automobile and business premises in

Miami and has been spending approximately $10,000 per

year repairing broken doors, locks, and bars. To his

knowledge, in only one case was the perpetrator

apprehended. The local police have informed him that they

cannot respond on a timely basis to his calls for police

assistance because their resources are stretched too thin. He

and other FAIR members will be injured by the further

dilution of local police protection that would result from the

settlement in the Miami PMSA of thousands of unlawfully

paroled Cuban immigrants.

25. Employment ities. Legal and _ illegal

immigration into the Miami PMSA has greatly increased the

supply of labor there. According to the U.S. Census Bureau,

194,000 workers were added to the Miami PMSA labor force

between 1980 and 1990. The demand in the local economy

for labor has not increased as rapidly as the supply of labor,

resulting in above-average unemployment within the Miami

60a

PMSA. According to figures published by the U.S. Bureau

of Labor Statistics, the unemployment rate in the Miami

PMSA was 11% less than the national unemployment rate in

1980. Thirteen years later, in 1993, it was 21% higher; in

August of 1994 (the latest month for which statistics have

been published) it was 31% higher. The overcrowded labor

market has diminished employment opportunities for

workers in the Miami PMSA, including unemployed

members of FAIR. For example, one FAIR member whose

employer reduced her work hours to one day per week has

been looking unsuccessfully for alternative employment in

the Miami PMSA for two years. Many of the workers with

whom she competes for employment are immigrants.

Employment opportunities for her and for other FAIR

members will be further diminished by the settlement in the

Miami PMSA of thousands of unlawfully paroled Cuban

immigrants.

26. The INA limits the number of immigrants that may

lawfully be admitted each year. These limits were enacted

by Congress to protect U.S. citizens and previously admitted

immigrants from the adverse effects of immigration in excess

of the absorptive capacity of the nation and of the

communities where the immigrants settle. FAIR members

who reside in the Miami PMSA are therefore within the

INA’s “zone of interest”.

V1.

APPLICABLE STATUTORY PROVISIONS

27. The INA, enacted in 1952, is a comprehensive

statutory scheme regulating the entry of aliens into the

United States. Important amendments to its provisions for

admitting immigrants were made by the INA Amendments

of 1965, by the Refugee Act of 1980, and by the Immigration

Act of 1990. The INA, as amended, is codified in Title 8 of

the U.S. Code.

6la

28. Except for certain statutorily excepted classes, such

as refugees and certain previously admitted immigrants, no

immigrant may be admitted into the United States without an

immigrant visa. 8 U.S.C. § 1181(a) . The INA provides that

immigrants without a valid immigrant visa shall be

“excluded” from admission and “shall be immediately

deported”. 8 U.S.C. 1182(a)(7), 1227(a)(1).

29. An immigrant visa can lawfully be issued only by a

consular officer and only to an “eligible immigrant”. 8

U.S.C. 101(a)(16).

30. Except for certain statutorily excepted classes, such

as immediate relatives of citizens, aliens are eligible

immigrants only if they are “family-sponsored immigrants”,

“employment-based immigrants”, or “diversity immigrants”.

8 U.S.C. § 1151(a). “Family-sponsored immigrants” are

immigrants, such as siblings of citizens and spouses of

permanent resident aliens, who bear a statutorily defined

relationship to a U.S. citizen or permanent resident alien who

has petitioned for their admission. 8 U.S.C. § 1153(a).

“Employment-based immigrants” are immigrants with

statutorily specified skills or business qualifications. 8

U.S.C. § 1153(b). “Diversity immigrants” are randomly

selected immigrants who have applied for admission from

certain low-admission states. 8 U.S.C. § 1153(c).

31. Except for certain statutorily excepted classes, such

as immediate relatives of citizens, the number of otherwise

eligible immigrants who, may be issued an immigrant visa

during any fiscal year is limited. 8 U.S.C. § 1151(a). There

are separate numerical limitations on the number of family-

sponsored immigrant visas, the number of employment-

based immigrant visas, and the number of diversity

immigrant visas, as well as numerical limits on four

subcategories of family-sponsored immigrants and four

subca

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.