Reply Brief — Federation for American Immigration Reform, Inc. v. Reno

No. 96-1542

In the

Supreme Court of the United States

OCTOBER TERM, 1996

FEDERATION FOR AMERICAN IMMIGRATION REFORM, INC..

Petitioner

JANET RENO, ATTORNEY GENERAL, ET AL..

Respondents

On Petition for a Writ Of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONER

WILLIAM W. CHIP

Counsel of Record

Counsel for Petitioner

Suite 500

555 12th Street, N.W.

Washington, D.C. 20004

(202) 879-4934

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TABLE OF CONTENTS

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1. The Petition Should be Granted Because it Presents

the Same Issue as NCUA vy. First National Bank.......... ]

2. FAIR Challenges Respondents’ Own Unlawful Acts,

not their Nonenforcement of the Law........................... 2

3. FAIR Challenges a Breach of Statutory Limits on

Discretion, not the Exercise of Discretion itself............. 3

4. FAIR Sufficiently Alleged Article III Standing............. 4

5. The INA’s Restrictions on Parole Were Intended

to Prevent Evasion of the INA’s Immigration Limits....4

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TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). 3

Clarke v. Securities Industry Association, 479 U.S. 388

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Hazardous Waste Treatment Council v. EPA, 861 F.2d

277 (D.C. Cir. 1988), cert. denied, 490 U.S. 1106

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Heckler v. Chaney, 470 U.S. 821 (1985) .........000000002.

Jean v. Nelson, 472 U.S. 846 (1985)........ccccccccceeeeeeeeeees 3

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

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

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National Credit Union Administration v. First National

Bank & Trust Co., No. 96-843 .........ccccccocccseceeeeees 1,2

Statutes:

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$ U.S.C. § 1255 EAD, on nictiinaiaman 4

REPLY BRIEF FOR PETITIONER

1. The Petition Should be Granted Because it Presents

the Same Issue as NCUA v. First National Bank.

On February 24 this Court granted a writ of certiorari to

the District of Columbia Circuit in National Credit Union

Administration [NCUA] v. First National Bank & Trust Co.,

No. 96-843, to review the same issue that is presented in

FAIR’s petition--whether the Circuit’s “suitable challenger”

test for APA standing is consistent with the APA standing

test in Clarke v. Securities Indus. Ass n, 479 U.S. 388

(1987). In NCUA the plaintiffs were held to be “suitable

challengers” of statutory violations by a federal agency and

were allowed standing; in FAIR’s case the court below

decided that FAIR was not a “suitable challenger” of

Respondents’ actions and denied Standing.

Respondents urge that FAIR’s petition be denied even

though it presents the same issue as NC UA, arguing that the

District of Columbia Circuit is likely to deny FAIR’s

Standing whether or not this Court rejects the “suitable

challenger” test when it decides NCUA. (Opp. at 23-24)

Respondents’ argument erroneously assumes that the

“suitable challenger” test is a less restrictive Standing test

than the Clarke test so that any plaintiff that has failed the

“suitable challenger” test must also fail the Clarke test. In

fact the “suitable challenger” test is neither more nor less

restrictive than the Clarke test. It is a wholly different test

_ that may sometimes permit standing to plaintiffs that fail the

Clarke test and may sometimes deny standing to plaintiffs

that pass the Clarke test.

Clarke held that congressional intent to permit APA

review of alleged statutory violations was presumed “unless

the plaintiff's interests are so marginally related to or

(1)

2

inconsistent with the purposes implicit in the statute” that the

assumption of reviewability would be unreasonable. Clarke,

479 U.S. at 399. In a series of cases beginning with

Hazardous Waste Treatment Council v. EPA, 861 F.2d 277

(D.C. Cir. 1988), cert. denied, 490 U.S. 1106 (1989), the

District of Columbia Circuit has given increasingly less

weight to the relationship between the plaintiffs’ interests

and the statutes’ purposes than to the plaintiffs’ perceived

“suitability” as “litigative champions” of the public interest.

Thus, FAIR was found to be an “unsuitable” challenger, not

entitled to standing, even assuming that the interest of FAIR

members in preventing immigration-related injuries fell

within the statute’s zone of interests. (Pet. at 7a-8a) In

NCUA the bank plaintiffs were found to be “suitable”

challengers of credit union statute violations, entitled to

standing, even though the banks’ interests were, according to

the government, unrelated to those protected by the statute.

NCUA, Pet. 9-10.

This Court’s review of the District of Columbia Circuit's

“suitable challenger” test would be incomplete if it did not

take into account how the test has been used to deny standing

as well as to allow it.

2. FAIR Challenges Respondents’ Own Unlawful Acts,

not their Nonenforcement of the Law.

Citing Heckler v. Chaney, 470 U.S. 821 (1985),

Respondents argue that FAIR’s petition should be denied

because FAIR’s complaint seeks enforcement of the

Immigration and Nationality Act (“INA”) against third

parties. (Opp. 10) That is not correct. FAIR’s suit

demands, not that Respondents prosecute immigration

lawbreakers, but that Respondents not break the law

themselves by paroling or accepting inadmissable

3

immigrants, by issuing them work authorization and entry

documentation, and by adjusting them to lawful permanent

resident status. (Pet. 63a-67a) The APA’s rebuttable

presumption that an agency’s decision not to enforce a

Statute is nonreviewable “did not set agencies free to

disregard legislative direction in the Statutory scheme that the

agency administers”. Heckler v. Chaney, 470 U.S. at 833.

3. FAIR Challenges a Breach of Statutory Limits on

Discretion, not the Exercise of Discretion itself.

Respondents assert that FAIR’s claims are unreviewable

under the APA because the parole authority is committed to

Respondent Reno’s “complete discretion”. (Opp. 10-12, 24)

In fact, federal courts, including this Court, have treated

exercises of the parole authority as reviewable under the

APA. E.g, Jean v. Nelson, 472 U.S. 846 (1985). Moreover,

FAIR’s complaint addresses a breach of the Statutory limits

that constrain Respondent Reno’s parole authority, not how

she chooses to exercise her discretion within those limits.

(Pet. 16a-17a) Finally, while parole itself is discretionary,

several of the other challenged actions are clearly not within

Respondents’ discretion, such as the issuance of documents

allowing inadmissable immigrants to “enter and remain in

the United States permanently”. (Pet. 64a-67a)

The specification of judicial review procedures in a few

INA provisions does not, as Respondents assert (Opp. 11-

12), foreclose by implication review of unrelated provisions

like those at issue in FAIR’s complaint. “[T]he mere fact

that some acts are made réviewable should not suffice to

support an implication of exclusion to others. The right to

review is too important to be excluded on such slender and

indeterminate evidence of legislative intent.” Abbott

Laboratories v. Gardner, 387 U.S. 136, 141 (1967) (quoting

Nai a a am

4

L. Jaffe, Judicial Control of Administrative Action 357

(1965)). Moreover, a number of INA provisions contain

restrictions on judicial review, which Congress would not

have troubled itself to impose if the statute were generally

nonreviewable. E.g., 8 U.S.C. §§ 1158(a)(3), 1158(b)(3),

1160(e)(3), 1182(a)(S)C)(iii), 1229c(f), 1254a(b)(5)(A),

1255a(f)(4)(A).

4. FAIR Sufficiently Alleged Article III Standing.

Respondents urge denial of FAIR’s petition based on the

district court’s holding that FAIR lacks Article III standing.

(Opp. at 12-15, 24) Although the majority opinion in the

court of appeals based its affirmance solely on prudential

standing and did not address Article III standing, the

dissenting opinion includes a thorough refutation of the

district court’s reasoning. (Pet. 20a-24a)

Respondents contend that FAIR’s complaint has not

alleged enough facts to establish Article III standing. (Opp.

14-15) That contention is belied by the complaint itself.

(Pet. 53a-54a, 57a-60a) Moreover, on a motion to dismiss it

is presumed “that general allegations embrace those specific

facts that are necessary to support the claim”. Lujan v.

National Wildlife Federation, 497 U.S. 871, 889 (1990).

5. The INA’s Restrictions on Parole Were Intended

to Prevent Evasion of the INA’s Immigration Limits.

Because the majority below acknowledged that the INA’s

immigration limits were intended to protect the employment

of U.S. residents, they would have recognized FAIR’s

prudential standing but for their conclusion that the

immigration limits had no “integral relationship” with the

parole authority. (Pet. 1la-13a) Inexplicably, the majority’s

2

determination takes no account of the 1952 legislative

history cited in the dissenting opinion (Pet. 16a-17a), nor of

the 1965 and 1996 legislative history cited in FAIR’s petition

(Pet. 13-14), all of which unambiguously declare that the

INA’s restrictions on parole were intended to prevent the use

of parole to evade the INA’s immigration limits.

Respondents state that the 1996 legislative history is

irrelevant because it describes unenacted legislation. (Opp.

18 n.3) That statement is inaccurate. While some provisions

of the original 1996 bill were not enacted into law, Congress

did enact the requirement that parole be exercised on a “case-

by-case” basis, the very provision described in the committee

report as reinforcing longstanding restrictions against using

parole to admit immigrants outside the INA’s limits. (Pet. 7)

CONCLUSION

For the reasons set forth in the petition and herein, the

writ of certiorari should be allowed.

Respectfully submitted,

WILLIAM W. CHIP

Counsel of Record

Counsel for Petitioners

Suite 500

555 12th Street, N.W.

Washington, D.C. 20004

(202) 879-4934