# Petition for Writ of Certiorari — Federation for American Immigration Reform, Inc. v. Reno > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0496%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 521 U.S. 1119 ## 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 V. 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 iv 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 Vv 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 vi 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 | NF 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 | . - y ‘ 3 3 * x z = * : 3 a ‘ ‘“ i 2 j $ + 5 Ae 3 Ff 5 : 2 i 3 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 4 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. EE 5 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 6 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. 7 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 a 9 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 10 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 11 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 12 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 14 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 — 15 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). 16 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: 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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, | 25 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. 26 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 x je 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 V. 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) 2a 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 ea 3a 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 4a 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 5a 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 6a (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 Ta {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 8a 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 9a (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. I. 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). ee 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 co [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0496%3A1. Public record. Not legal advice.