Ayuda, Inc. v. Richard Thornburgh

AYUDA, INC., et al. THORNBURGH,

Richard et al., Appellants.

Nо. 88-5226. Appeals, States United Court of District of Circuit. Columbia

Argued March 18, 1989. July Decided Justice,

Gen., Div., Washing- Dept, of Civ. brief, ton, D.C., appellants. were on Matelski, Lynda whom S. Wayne H. with Rubin, Waller, Carolyn Michael Zengerle, Sanders, Aronofsky and Deborah David brief, D.C., Washington, were on the appellees. WALD, Judge, Chief

Before GINSBURG, Circuit SILBERMAN Judges.

Opinion filed for the Court

Judge Circuit SILBERMAN.

Dissenting opinion filed Chief Judge WALD.

SILBERMAN, Judge: Circuit declaratory appeal This is an from a or- injunction by the district der and issued le- concerning implementation galization “amnesty” provisions of the or Immigration Reform and Control Act of (“IRCA”). hold the district court We jurisdiction and therefore lacked vacate order.

I. IRCA, passed imposed civil penalties upon employers hire criminal who ap- illegal Congress, through aliens. proach, sought discourage illegal immi- gration into the United States and to make it difficult for undocumented aliens to re- country. part legisla- main As compromise, provided the Act for the tive immigrants of those who had unlawfully prior entered the United States January and had resided contin- uously country an unlawful status “past then. It was said that failures since immigration laws al- enforce[] [illegal immigrants] lowed to enter and set- tle here” and that “the alternative inten- sifying attempting interior enforcement or Keener, Atty., Dept, deportations costly, Donald E. of Jus- mass in- would be ... tice, D.C., Washington, with whom David J. effective and inconsistent our immi- Rep. Kline, Director, Immigra- grant heritage.” Asst. Office of H.R. No. 99th Litigation, Dept, Justice, Cong., pt. Alexan- 2d at 49 Sess. U.S.Code dria, Va., Bolton, Cong. pp. 5649, Atty. and John R. Asst. & Admin.News following one of corollary, provided also documents: As immigrants, agency, non record received from another refer- (for country lawfully ex- ring entered the to a clear who statement or declaration students) but ample, employees agency alien other federal that un- presence subsequently became nonimmigrant status; whose he was in violation of lawful, long so status was unlaw- (2) as their showing a record an affirmative deter- January they to 1982 and resid- prior ful the to prior January mination INS continuously ed in the United States after subject the deporta- 1982 that alien was to counterintuitively, Perhaps that date.1 proceedings; (3) copy response tion then, qualify legalization in order for to agency, the INS to stating other corollary provision gener- to the under particular legal that a alien no had status amnesty nonimmigrant had program, al the States; in the United school records prior prove illegal his status to 1982. which establish that a school forwarded to accomplished, according could That report clearly indicating the INS a Act, in 245A of the one of two section applicant had violated nonimmigrant his ways: prior status to January 1982. Id. at the In the case of an alien who entered 16,208; Fed.Reg. 43,845 (1987). at 1,1982, January States the United before statute, Under the seeking all aliens that peri- alien must the alien’s establish qualify obliged ap- were stay nonimmigrant of authorized as a od ply adjustment for an of status within a expired through before date the such period expired twelve-month May that of the passage time or alien’s unlawful 1988. March only On two months before was known to the Government status deadline, appellees, the include four such date. of organizations that and advise counsel 1987) 1255a(a)(2)(B)(Supp. V Inc., Ayuda, Ethiopian The Commu- aliens— nity added). (emphasis Center, the Latin American Youth Center, case and the interpretation Legal This involves of Mexican American provision: clause that Defense and Educational Fund—and the second what five aliens, does “known to the Government” mean? individual sued district court claiming regulation regulation that was INS issued defin- based ing only impermissible interpretation mean on an “Government” to the Immi- They gration Service, sought declaratory and statute. Naturalization based order injunction preventing notion and Attorney on the that General INS from charged applying a “known and INS were with enforce- to the Government” (and immigration legaliza- of the standard that barred an from implicit- ment laws alien ly responsible failures”) only Government, tion “past and “whenever federal they truly through any agencies, departments, could of its “know”—that ascertain — an alien’s status “unlawful.” bureaus or entities has or had A broad- evidence that, combination, “Government,” separately er or in shows concluded, alien had his would make violated or her administra- legalization program nonimmigrant prior January status difficult government government agen- challenged “would 1982.” The the jur- and vest [other] court, asserting with an authority Congress specif- cies isdiction of district granted organizational plaintiffs ically Attorney lacked stand- Gener- 16,206 (1987). sue, 52 Fed.Reg. al.” and that provided regulation origi- that an alien determinations was in the who available nally legally appeals entered could court individual establish after an claim- subsequent illegal his status was “known ant had exhausted his administrative reme- through prior subject to the Government” to 1982 dies and been to a or- Nonimmigrant special 1101(a)(15) (1982). try. aliens U.S.C. § classes See 8 Nonim- include, alia, lawfully migrants foreign who are admitted to the United inter students abandoning managerial companies employees States have no intention of locat- permanently foreign their residence in a ed United coun- States. anywhere in regulation” 242(b) application of to section pursuant der entered Act, States, “to take and ordered the United Naturalization Immigration and persons affect- notify promptly all 1252(b) steps to U.S.C. § the court’s deci- ed responded plaintiffs organizational appellee sion,” id., observing that the court administra- procedures the normal field, certainty in this organizations “need judicial review determination tive Id. at 657. need now.” aggriev- designed for appeals the courts in the court’s inter- government acquiesced bring- preclude them ed aliens did appeal and did not pretation of the statute pursuant in the district action ing an its order. APA, their mission was because through proceed how to advise aliens jurisdiction of the court retained The and, particularly, program decree carried case “to assure [was] [the] amnesty. receiving for prospects on their completely provide and to fully out of the alleged misconstruction The INS’s [might] be other and further relief as counseling to the or- injury caused statute necessary implement decision.” Id. to [its] it im- they complained, because ganizations, issued Subsequently, the court at 666. in- ability provide to accurate paired their dealing vari- supplemental nine orders with eligibility require- IRCA formation about aspects to the Govern- ous “known required them to ex- to aliens ments sup- provision of IRCA. The first ment” clarify to the con- resources pend additional order, April noted plemental issued legal the correct standard. fusion about respect question has arisen with that “[a] also asserted organization One meaning term ‘unlaw- precise was unlawful IRCA INS’s known to the Govern- ful status was purpose organization’s and frustrated ” ment,’ an alien could and directed that legalization. assisting aliens to obtain showing satisfy the standard that “doc- statutory administrative and Because govern- in one or more umentation existed designed not to procedures were judicial agencies such documenta- ment so that ... injury, appellees con- remedy type of this warrant the tion taken as a whole would in district review was available tended APA nonimmigrant alien’s sta- finding that the plaintiffs asserted The individual court. in the was unlawful.” tus United States although there is an exclusive statu- added). government (emphasis The has judicial of indi- for tory mechanism supplemental order ei- appealed not this determinations, the dis- vidual ther. jurisdiction had to trict court nevertheless regula- organizations to the INS’s IRCA filed a motion hear a Eleven new legalization applica- long specific April tion as to intervene in the case on Appellees argued issue, not involved. previously tions were They raised an sur- 4,May appli- further that because faced, concerning interrelationship be- rapidly approaching, was cation deadline tween section 245A of IRCA and former injunction was warranted. Immigration 265 of the and Nation- section Act, ality amended § (without reaching The district by 8 U.S.C. 1305 Under the latter § aliens) of the individual concluded claims provision (prior to its amendment on De- organizational plaintiffs had stand- 29,1981), every nonimmigrant cember alien judicial ing to sue and that review of deci- remained in the United States for who legalization program regarding sions days required report more than 30 was to in the Ayuda, was district court. available Attorney his address to the General on a Meese, F.Supp. Inc. v. 654-60 Id.; quarterly 265.1 basis. see C.F.R. (D.D.C.1988). The court the term held that (1981). Any failing comply alien section 245A meant the “Government” reporting requirement subject entire United States Government INS, regu- unless he could show that such simply the declared the INS “contrary “reasonably or was lation to law.” Id. at 666. The failure was excusable 1306(b) (1982). “any enjoined was also further not willful.” 8 U.S.C. alleged putative or could made in the intervenors pro- administrative “denying court, these government INS had been nonimmi- cess. The district concludes, grant reporting violated therefore lacked [who requirement prior opportunity entertain the action. 1982] legalization, after this apply even provides: The Act shall be no “[t]here court’s clarification the ‘known to the administrative or deter- present litiga- Government’ standard respecting mination tion.” adjustment of status under this section [the words, proposed In other intervenors legalization provisions] except accord- sup- claimed that the district court’s first ance with this subsection.” U.S.C. plemental interpreted, order should be 1255a(f)(l) 1987) (Supp. (emphasis V add- extended, to include an аlien’s ed). failure Attorney General directed provide quarterly re- documentation—the appellate “establish authority provide port might failure have led the INS —which a single level appel- of administrative slipped to conclude that the alien had into determination,” late review id. [such] illegal court never status. district 1255a(f)(3)(A), and “there shall be intervene, granted appel- motion but review of such a judicial denial adopted lees the intervenors’ claim and deportation review of an order of under sought, government’s objections, over the a section 1105a of this title.” addressing new order supplemental the is- 1255a(f)(4)(A) added). (emphasis ju- That Supple- granted sue. The court the order— solely dicial “shall upon review be based enjoining mental Order V— the administrative record” and the “deter- legalization nonimmigrants denying who minations contained such record shall be reporting requirements failed to meet the applicant conclusive unless can estab- of “if section INS determines that lish abuse of discretion or that findings credibly such aliens their established directly contrary are and clear convinc- willful violation such of section ing facts contained in the record considered aliens have met all applicable also other 1255a(f)(4)(B) a (emphasis as whole.” Id. § legalization.” conditions for 687 F.Supp. at added). accept appli- 668. INS was directed to cations from non-reporters section 265 perhaps That standard of review— the statutorily-required filing without fee even more than arbitrary deferential or prevent forfeiting order aliens from capricious requirement standard and the Supplemental the fee should Order Y be substantial evidence on the record aas on appeal. government reversed Id. The as the whole—is about restrictive Con order, appeal challenging does in effect gress Jamesway can Corp. fashion. v. See jurisdiction the district court’s over the en- NLRB, Cir.1982) (3d 676 F.2d 67 n. 4 tire (although contesting case not the other (abuse of more discretion deferential than orders) and, alternatively, disputing the standard); substantial evidence Bennett propriety of Supplemental Order V. (7th Tucker, Cir.1987)(char 827 F.2d acterizing abuse of discretion as court’s

II. standard”). “most ap deferential It would part parcel As amnesty pear legal questions concerning or that even IRCA, provisions of IRCA are reviewable provided for judicial administrative and re- under the abuse of discretion standard application of the companion view of the Act. Accord- “contrary rather than the ing government, provisions these law” formulation of APA. That is require rare, unknown, exhaustion administrative reme- but not treatment of re party judicial dies legal before seeks review viewability issues. Pierce v. — Underwood, U.S. -, vest exclusive in the courts appeals (1988).2 to review INS decisions that are legisla- 101 L.Ed.2d 490 may if presented It well be that the substantive issue in this case were in the context of an correct, such a appellees If clearly that this re- indicates history tive brought only by organiza- an quite judicial review was could be scope of strictive bill, injury, alleging independent an but The Senate version purposeful. prior that it (presumably Cranston’s concern an individual alien despite Senator aliens, problems, see legalization), group constitutional denial of raised (1988),3 12,810 provided “no Cong.Rec. organization representing their inter- an or determina- decision plaintiffs potential These ests. pro- respect tion with gain litigating thereby significant advan- S.Rep. Cong., 1st 99th grams.’’ thing happened one in this tages. For No. —as added). (emphasis Sess. could very case—the district court avoid committee, how- conference House-Senate problem of analytical difficult discern- version, in- ever, adopted House relationship the “abuse of between yet very defer- less restrictive cluded scope applies discretion” of review that make provisions ential the normal appeals the courts scruti- law. up present ny interpretations of their given agency importantly, organic statutes. More plain- the individual Appellees including — action, it particularly if includes a re- nevertheless, their suit in argue, tiffs — district could quest injunction, for an offer brought could outside the decisively to influence the opportunity appeal framework country all over the order, challenged a “determi- INS’s behavior because —and See, Brock, adjust- quickly. e.g., Bresgal v. do so respecting nation Cir.1987) (drawn (9th (nation- F.2d ment,” policy rather an INS but may applied appropriate wide relief even in an regulation) that would be be from its action); O’Donnell, individual v. in individual cases. their Decker subsequently Cir.1980) 598, (7th (nation- view, procedure that 661 F.2d 617-18 the administrative in only injunction appropriate to determi- wide case of facial applies exhausted must be regulation). legalization challenge legality agency in to made individual nations appealed challenges to to an If denials of are to and not broad cases legal position appeals only subsequent could after policy ap- or the courts orders, appeals, good take many deportation cases. The courts of it would ply to follows, jurisdic- gain judicial judgment more time have exclusive review deal to former; legality interpretation the latter sort of on the of the INS’s only over may as “known proceedings brought pursuant be to term such to the resting general appeals, The courts of the APA and on federal Government.” 1331) moreover, (28 may in their question jurisdiction U.S.C. well differ views as challenge agency legality court to the district “ac- INS’s construction tions,” regulation the INS like the issuance of the the statute. were to ac- Even us, independent any specific quiesce judicial interpre- in an before de- unfavorable circuit,4 involving surely in one termination an individual alien. tation it would not be appeals, scope appeal during a court of came the court's 3. Senator Cranston's comments de- agency’s interpretation deference review and immigration bate over an reform bill in the 98th markedly not differ from the APA. would Al- Congress, judi- the same bar included surely, questions, constitutional for in- most stance, passed by cial review the bill Senate in subject de to review novo. Cf. Congress. the 99th Doe, 592, 486 108 S.Ct. Webster v. U.S. (1988) ("[Wjhere 100 L.Ed.2d 632 Con- required 4. Whether as matter of preclude judicial gress intends review of con- acquiesce ruling law to in an unfavorable when claims its intent to do so must stitutional future cases arise in the same circuit court of clear.”). relationship And the between appeals gener- ais matter of much debate. See “abuse of discretion” standard and the defer- Note, ally, Agency Nonacquiescence: Implemen- scope prong of review the second ential under tation, Justification, Acceptability, 42 Wash. NRDC, U.S.A. of Chevron Inc. v. 467 U.S. Note, (1985); & Lee L.Rev. 842-43, Administrative 2778, 2781-82, 104 S.Ct. L.Ed.2d Agency Nonacquiescence, (1984), Intracircuit analytical 85 Col.L. is a subtle matter. Suffice it (1985). Congress agencies particularly unusually Rev. 582 Some to note that used restric- — Administration, scope Security tive of review in IRCA. the Social the Internal study by experi- of his case that had anee of a close circuits in other obliged do so And, course, some courts have judges.”). While enced question. decided the not jurisdiction appro- one circuit would found that allocation of ruling in an unfavorable continuing provisions to priate under the the INS prevent 106, apparently of the statute in be- of section because its follow v. only purpose United States lieved the of exclusive cases nationwide. other 160-63, Mendoza, prevent piece- appeals jurisdiction was to 568, 572-74, litigation by 78 L.Ed.2d meal the district see, delay deportation, courts that would judicial review not the Whether Smith, e.g., Refugee Haitian Center direct re preclude provisions of IRCA (5th Cir.1982) (discussed F.2d district court course infra), we do not intend- believe embodied of the statute construction INS’s language ed that result under IRCA.5 The course, con regulation depends, in a IRCA, legis- and structure of as well as Paradoxically, appellees’ intent. gressional history, support appellees’ in- lative do not sug provisions of those IRCA construction terpretation. channel to gests that wished argue challenged reg- Appellees appeals the courts of applicability to section 265 important ulation and its presumably less of the statute respect- a “determination reserving to initial do constitute individual cases while adjustment,” re- (albeit application for subject to sub district court appeals, be- important the courts more viewable sequent appeal) the much ruling applica- on an actual statu cause it is not involving questions of broad cases however, Indisputably, apply to a tion. that would tory construction H.R.Rep. impact, determinations will No. embodies of aliens. But whole class cf. “respecting,” future indi- U.S. and therefore Cong., 1st Sess. 28 87th do not understand pp. applications. We vidual Cong. & Admin.News Code application” “an appellees to contend that (“Since proceedings deal claim; surely only to an applies than individual liberty persons rather might pro- in a be made has conclud “determination” property, the committee mere applications were ceeding in in which several initial an granting an review ed that Rather, appellees seem to consolidated. gives greater the alien appellate statutory exhaustion re- argue that more assur- greater scrutiny, and rights, Service, disagree but agree with criticism of Board National Labor Relа and the Revenue juris- noting agency with nationwide adopted explicit policies of that "[a]n tions Board—have every required argued, to conform to diction is not nonacquiescence, and have intracircuit ap- given interpretation a court of alia, justified by statute policy inter that their peals"). vociferous critics uniformity Even the most guarantee need to laws, rules, nationwide nonacquiesence have conceded intracircuit to all claimants. validity policy at least some instances. disapprov in expressed Although have some courts see, F.Supp. Stieberger, at 1365-66. e.g., 615 nonacquiescence, Itha See al of intracircuit 224, (2d NLRB, College 228-29 623 F.2d ca Cir.1980), v. itself, Congress 975, denied, enacting seems section 106 101 S.Ct. cert. 449 U.S. broadly "un- 386, (1980); concerned with Allegheny more Gen. to have been 237 66 L.Ed.2d "unjustified 965, Cir.1979), attacks NLRB, (3d justified” litigation, even Hosp. 608 F.2d 970 v. Immigration constitutionality of the might upon suggested unconstitu- that it and even tional, attorneys Heckler, 1315, who Nationality "astute F.Supp. Act" Stieberger v. pro- judicial skillfully exploit the (S.D.N.Y.1985), grounds know how to on other vacated H.R.Rep. 1086, Cong., Bowen, (2d 1st Sess. 87th cess.” No. Stieberger F.2d 29 v. sub. nom. Cong. & Admin.News Cir.1986), U.S.Code issue. have never decided the we course, NLRB, jurisdiction could not turn p. 2967. Of 721 F.2d Compare YellowTaxi Co. claim, MacKinnon, (merits) J.) but Con- justification of a (D.C.Cir.1983) (opinion on the 383 (admonishing using attorneys’ skill in apparently gress’ about concern Board "to halt its pro- established, deportation controlling judicial process to frustrate long defiance of willful J., shopping, see ceedings by (Wright, devices as forum judicial precedent") id. at 384 28-29, the HRC v. Smith relevant to (refusing id. at seems concurring) concur in condemna- pertinent perhaps exception even more nonacquiescence) Board's intracircuit tion of —and J., (Bork, (declining concurring) the instant case. id. at 385 provisions regulation pre-ordained. tion That quirements may scope determinations made the LAU be limited as confined to to its after (or phrase But the of a part is filed. “re- determination an determination) application” on its face does in regulation an embodied specting suggest so limited. Heckler v. does not that it appear to be cannot review the Cf. Quite commonly, 104 S.Ct. determination.7 Ringer, 466 U.S. when re (defining viewing agency applications 80 L.Ed.2d of their own regulations, under the Medicare Act to we see word “claim” a somewhat different agency policy might expected. result than include a been prevent plaintiff special allegedly would from doctrine of deference to ad operation upon which a claim getting adjudicatory interpre ministrative based).6 agency regulations grows tation of would be out of just experience. See Udall v. Tall dissent, nevertheless, counters man, 13 L.Ed.2d that the “determination” to which subsec dissent, by characterizing 245A(f)(l)refers must be more narrow the “determination” reviewable it must ly interpreted, since be the same appeals “fact-specific,” courts of Dissent determination referred subsection 1352-1353 n. suggest seems to 245A(f)(3)(A) Attorney General shall —“The that such review was not intended to en- appellate authority provide establish compass legal questions statutory inter- single appel level of administrative prеtation, which were instead to be left to late review of a determination described in the district courts if and when the INS (1)” paragraph it could not be —and somehow manifested statutory interpre- regulation thought that a could be chal tations other than in adjudication. Of lenged proceeding. that administrative course, suggested, as we have is a We do Dissent at 8-12. not understand peculiar way rather to divide Indeed, if why that is so. appeals between courts of and district in the embodied Moreover, courts. subsection challenged ap were to in the court of 245A(f)(4)(B), Congress “findings said order, peals after a it would fact and determinations” shall be conclu- have to be first raised the administrative sive, thereby recognizing questions proceeding, “judicial because review shall incorporated law were meant to be upon solely be based the administrative word “determination.” U.S.C. 1255a(f)(4)(B). record.” See It 1255a(f)(4)(B) 1987). (Supp. V may appel well be administrative authority late consider itself bound Since the INS was authorized but not by regulation INS, obliged issued regulations but that to issue interpreting necessarily suggest interpreta- does not its statutory language,8 it could have wait- assertion, Contrary challenges regulation to the dissent's permitted, Dissent at to the are not 9, Congress appear does not 245A(f)(3) have used the provides because subsection that “ad- application” "respecting terms "on the application” 245A(f)(l), appellate ministrative review shall be based interchangeably. Subsection solely upon the administrative record estab- "respecting," which uses the term lished at the time of the determination on the judicial refers to both administrative and application." 1255a(f)(3) (Supp. V legalization judicial determinations. Since 1987). The use of the term "on” in this subsec- may well be broader than administrative may only tion illustrates that LAU hear cases likely review because courts would declare involving challenges to determinations on indi- (rather regulation applied invalid as than in- applications adjustment, again vidual terpret apply regulations), quite it is significance Congress’ underscores the use natural for to use the broad term “respecting application" the broader term referring judicial when review and the nar- referring when review. See infra discussing only rower term when administrative note 6. review. course, not, 1987). 1255a(g) (Supp. 8.See 8 U.S.C. 7. Of the LAU would V as the dissent 9-10, suggests, reviewing required regulations Dissent at INS was a facial issue on challenge regulation, appli- statutory but rather an one issue—the definition of the term regulation cation of the continuously." 1255a(g)(l)(A). to an individual. Facial "resided Id. § “piece paper” seeking legalization legalization proceedings individual ed until —and then, demonstrating duplicate procedure, in a before language. appeal to the Government” the same on from a de- the “known event, appeals surely the courts of portation order. Under those circumstanc- had, to exer- expected and been would es we could have two eases before us: one inter- cise, authority agency’s to review court, appeal from the district and one on deference) in (giving appropriate pretation appeal deportation raising from a order on deportation cases. individual the context of essentially the same claims. It is not at all Chadha, 919, 938, v. See INS light possibility clear that of that By 77 L.Ed.2d 317 S.Ct. district court could have even regulations issue requiring the INS to 245A(f)(4)(A), see the absence of subsection interpreta- provided an administrative Telecommunications Research Action & provid- statutory language tion of FCC, —and Center v. (D.C.Cir. 750 F.2d 77-79 judicial re- separate mechanism for 1984); Investment Co. Inst. Board of regulations Congress must of such view — Governors, (D.C. 551 F.2d 1278-80 agency’s have assumed Cir.1977), but, event, any presence only in interpretations would be reviewed 245A(f)(4)(A) subsection makes it evident deportation appeals the context power that the district court lacks to enter that Con- It seems inconceivable orders. brought tain the same claim that could be closely gress have wished instead appeals. to the court of legalization judicial review of circumscribe legislative history The statute’s indicates regulations applied whatever decisions Congress intended aliens to come forward issued, the same time to and at during eligibility period the 12-month be- challenges to such allow APA call, is the first call and the last cause “this any court of the United in almost district S16,888 Cong.Rec. a one shot deal.” 132 Indeed, if the district court or States. 17, 1986) (remarks (daily ed. Oct. of Sen. directly the jurisdiction to review court had Simpson). legali- If did not make a (if regulations interpreting IRCA is- INS’s during period, it zation claim that window sued), Congress would have created a disin- was lost forever. An alien could not de- regulations— centive to issuance of those against deportation order on a fend based hardly desirability accords with the if the claim was not claim providing prompt aliens with informa- designated during made twelve months. government’s interpretation tion as to the 1987). 1255a(a)(l) (Supp. See U.S.C. § Y of the statute. QDEs Congress provided Accordingly, be, recognized, it is as it must Once validity of this to advise aliens as to challenge, appeal from a an alien could trying you are not to fool claim: “We order, interpretive regula- S16,888 Cong.Rec. (daily ed. time.” deny tion which causes the INS his 1986) (remarks Simpson). of Sen. Oct. claim, it follows that the dis- QDEs to make “a But the were forbidden jurisdiction to hear the trict court lacked required determination [the statute] For same claim a different forum. sub- Attorney be made General.” 245A(f)(4)(A) limits section of IRCA therefore, 1255a(c)(3). was, It the Attor- review of “such” denials to review of de- ney interpretation of IRCA that General’s thereby portation Congress orders. ex- op- Congress expected primary to have the mounting plictly prohibited an alien from impact during peri- the 12-month erational parallel challenges regula- two to the same od.9 The dissent nevertheless reads the tion. Congress in- an permit challenge in The dissent ascribes statute to an alien to “accurate providing terest in the alien with the district court a that would information,” 28, and that apparently affect before he files a Dissent him — course, agency’s that term court before us the construction of 9. Of if case had come to the of appeals deportation on review a order that applied particulаr applicant. of as it to a issue, raised the section 265 we would have had months, Accurate, certainly, judicial as to the review allowed in undeniable. interpretation of Attorney ninety days General’s D.C. Circuit within is- of also, and, QDEs’ suance). perhaps statute best appeals appraisal of courts of whether aware, surely was well it when Court) (and would sustain Supreme placed agency review of action If, instance, an interpretation. for appeals, it long courts could take a qualify alien would not for Supreme often in- require time—and Court Attorney interpreta- based on the General’s legal uniformity tervention —before QDE private or a attor- of IRCA as merely achieved. That is one of the char- it, ney but the counselor understood system acteristics of our appel- federal interpretation thought would not be review, Congress may late which avoid if order, deportation sustained on review See, so e.g., wishes. United States rely the alien on the advice and file could Fausto, 439, 108 S.Ct. legalization. an Whether for (1988) (exclusive L.Ed.2d review of ultimately prevailed appeal the alien System Merit Protection Board decisions deportation depend order would —as in placed Federal varying Circuit avoid typically quality the case—on ad- courts). in per- decisions lower federal To Only advisory opinion vice he received. mit one federal district court to short-cir- Supreme totally from the Court would re- process cuit this is inconsistent with the uncertainty, any move could system appellate provided in provide that even if it to. wished Appellees’ statute. approach fundamental- dissent, although not the district ly relationship alters between the Exec- court, appears congressional to find a in- utive Branch and the federal judiciary that provide tent to more than the Congress decreed, because one district interpretation Attorney General’s of the (supported, necessary, court if by one court during period. statute the window It is appeals) could force Executive argued were author- entitled to change Branch aof judicial itative review and correction above, statute. As noted aby decision Attorney misinterpretations General’s appeals against agency otherwise), (“egregious” or see Dissent at individual case bind does not lapsed. period the 12-month before circuits, other perhaps not even in oth- so, Congress If that certainly were er cases within the same circuit. See su- required Attorney quickly General pra at 1330-1331. regulations covering to issue all foreseea- anything, legislative sug- If history statute, applications e.g., ble cf, Of- gests Congress, rather than consider- fice Policy of Federal Procurement Act such extensive monitoring 100-679, Amendments of Pub.L. No. legalization program, only grudgingly (1988) (all imple 102 Stat. provided any judicial review even in the menting regulations “shall be issued ... context orders. The choice within 180 after days the date of enact for the conference committee was ment”), between provided and also ex special version, the House pedited adopted, which was judicial review of regulations those version, precluded Senate particular in a appeals. court of See Ya States, review “of a kus v. decision determina- United U.S. n. respect tion with pro- 674-75 n. L.Ed. 834 grams.” provided Although do not á (Congress ju propose we expedited general dicial canon of Emergency ambigu- construction that Ap Court of peals ous implementing interpreted statutes be favor of the Emergency Act); acquiesces Price Control of Resource house in the Recovery 1976, text, Conservation and Act unlikely of 42 eventual we think it (1982 6924, 1987) U.S.C. 6976 Supp. & V Senate would agreed have to the §§ House (EPA required promul Administration language understanding it gate eighteen certain permitted within only not review

1335 appeals Supreme af- directly in the courts Court has never deter- determinations mined precludes more whether this section also even deportation orders but ter agency regulations in the dis- intrusive, direct review of expansive, trict court deporta- initiation of or could would determinations that policy before proceedings. But the Court has read adjust- applications lead to denials deportation” “final orders of to include “all concedes, Dissent at As the dissent ment. during determinations made the incident to 1353, clearly have bill “would the Senate proceeding administrative conducted as rulemaking as well precluded review of officer, special inquiry and reviewable legali- all review of adjudication” i.e.,— together by Immigration Ap- the Board of leading opponent programs. zation peals,” INS, Foti v. 375 U.S. sought provision, to substi- the Senate who 306, 313-14, S.Ct. 11 L.Ed.2d 281 to the lan- tute an amendment “identical added), (emphasis and all such determina- committee,” by the House guage proposed tions are within the exclusive “merely per- change his believed appeals. Id.; the courts of see also Giova “very judicial re- limited form mit[ ]” 156, Rosenberg, v. 85 S.Ct. only available when view” that “would be (1964) (denial L.Ed.2d 90 of motion to re- raised improper an denial of open deportation proceedings reviewable deportation proceeding as a defense in only 106). Although under section already ‍‌​​‌​​‌‌​‌​​​‌‌​​‌‌‌​‌​​‌​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌​‌‍subject judicial review.” 129 interpreted permit Court has section 106 to 12,810 (1983)(statement Cong.Rec. of Sen. challenge separately an alien to in district Cranston). plausible interpreta- The more stay deporta- court an INS denial of a acquiescence, there- tion of the Senate’s tion, entirely separate proceed- issued in an fore, is re- is that an IRCA determination ing three months a final order of after cases the context of viewable deportation, INS, Cheng Fan Kwok v. appeals pursuant brought to the courts of U.S. 88 S.Ct. 20 L.Ed.2d 1037 section 106 of INA.10 (1968), suggested any it has matter Appellees argue that section which “governed by regulations applicable provides appeals itself, for court of deportation proceeding review and ... deportation proceedings, ordinarily presented disposition orders issued inquiry interpreted preclude special itself officer who de has been enter[s] jur portation order” is within the exclusive challenge agen- court to suits district appeals. isdiction of the courts of Id. at cy policies, inappropriate so is therefore recently, at 1976. Most S.Ct. to conclude meant exercise Chadha, v. U.S. IRCA, tighter ap- rein over which channels the Court 77 L.Ed.2d plicants deportation proceedings into re- squarely held that section 106 “includes all viewed under section 106. The restrictive validity the final matters on which the judicial provision of section 106 is review contingent, deportation] order rather [of procedure “the sole exclusive for[ ] actually determinations than those depor- of all final orders of ” 938, 103 hearing, S.Ct. at made at a id. tation,” 1105a(a) (1982), and it 8 U.S.C. § INS, 634 F.2d (quoting Chadha precondition includes the order “[a]n added). (9th Cir.1980)) (emphasis or of exclusion shall not be however; by any if the alien Appellees point, reviewed has do noted, courts have exhausted the administrative remedies we have lower federal him_” 1105a(c). plaintiffs to avoid the ex- available to allowed certain dissent, starting assumption his amendment tor statement 10. The Cranston’s respecting application” language proposed by that "determinations was "identical to the as used in the House bill does not refer to implicitly, explicitly, if not House committee” rulemaking, argues that Senator Cranston at- thought indicates his amendment would that he tempted adopt the bill section of the House provisions equivalent result in permitting judicial review de- order of after bills, "determinations re- the two and thus that portation part allowing separate but not that regulations. application" specting includes However, regulations. review of we think Sena- 1336 requirement court, corresponding by equaly and 846 haustion divided F.2d aff'd jurisdiction of appeals banc); court un- (D.C.Cir.1988) (en exclusive 1499 Orantes- Circuit, in der Fifth Hai- section Smith, 351, F.Supp. Hernandez v. 541 364 Smith, tian Center v. 676 F.2d Refugee (C.D.Cal.1982). 1023, (5th Cir.1982) 1033 HRC [hereinafter however, progeny, HRC v. and its Smith a broad attack ], v. was faced with Smith only unsupported by Supreme are not practices immigration judges who 106, including Court’s cases on section during deportation asylum heard claims Chadha, subsequently appear decided but allegation hearings, held that an of “a and reasoning with inconsistent of the Su- by immigra- program, pattern or scheme preme in Ringer, Court Heckler v. 466 U.S. to violate the constitutional officials 80 622 S.Ct. L.Ed.2d separate rights matter of aliens ... The Court there was a challenge faced with subject by examination a district court to ruling to a by Secretary issued entry declaratory of at least Health precluded and Human Services injunctive relief.” The read the payment particular under Medicare grant for to the courts exclusive surgical procedure. appeals applying only per- actions taken Medicare Act deportation proceedings

in individual that mits “any review of claim arising may affect the determination of the Act, merits under” the via 42 405(g), U.S.C. claim, any and authorized district court after a claimant payment seeks and ex- equitable powers “to its wield when a plain- hausts administrative remedies. The orchestrated, wholesale, carefully program tiff, Ringer, undergo proce- wished to alleged.” of constitutional violations is dure, he could not afford without Although emphasized Fifth Circuit the Medicare reimbursement. He sued dis- promised holding narrowness not judgment, trict court a declaratory ar- to condone “end-run around the admin- guing obliged exhaust, that he was not id., process,” istrative yet because he not did have a claim and proliferated point has HRC v. Smith challenging instead ruling nearly where it now more resembles a gap- that, effect, precluded his claim. The in the middle hole of the INS’s defen- Supreme accept Court refused to that dis- adopted sive line. Other courts have tinction, holding Ringer was “clearly Fifth Circuit’s distinction under section 106 seeking right to establish a to future pay between review individual ments he ultimately should decide pro challenges orders agen- and broad-based particular] ceed surgery.” Id. at [the cy policy on both constitutional and statu 621, 104 recognized S.Ct. at 2024. It Nelson, tory grounds. Jean v. 727 F.2d to hold otherwise would allow claimants (11th Cir.1984)(en banc), 979-81 aff'd, bypass “to requirements the exhaustion 846, 105 S.Ct. 86 L.Ed.2d 664 Act simply bringing Medicare de jurisdictional no (expressing view on claratory judgment actions in federal court issues); Director, v. Salehi District they undergo before procedure the medical (10th Cir.1986); F.2d Orantes- question.” sure, Id. To be unlike HRC Meese, F.Supp. 1488, Hernandez v. Smith, v. Ringer did present not a consti (C.D.Cal.1988); Hotel & Restaurant claim, tutional but Smith, v. Employees Union HRC Smith line v. 563 F.Supp. (D.D.C.1983) cases has been (denying motion limited constitu dismiss), summary tional judgment granted challenges. See, e.g., Jean v. Nel defendant, 594 F.Supp. (D.D.C.1984), son, 727 F.2d at 980 n. 32.11 11. The tory dissent's extensive discussion of requirement Bowen bringing exhaustion Michigan Academy Family Physicians, preemptory declaratory judgment action. Even U.S. plaintiffs 90 L.Ed.2d 623 Michigan Academy Ringer read largely point. Michigan beside the Academy specific procedures mean that "whatever question Ringer, did not even [Congress] and the provided latter case review ... were supports general propositions exclusive, still that an could not be circumvented plaintiff may individual general jurisdiction circumvent a statu- resort to the of the federal

1337 language obliged legislative to decide focus on the histo We not been have exception.to “program” ry whether there is proper of ICRA. We think whatever statutory 106—for constitutional or section interpretation of section 106 as it relates to permits a suit aliens or claims —that deportation,” judi “final orders of IRCA’s them,12 and think it representing those we provisions, although employing cial review However, unnecessary to do so here. machinery, the section 106 have a broader applied courts have several district preclusive arguable, effect. It is for exam under section 106 approach Fifth Circuit’s ple, that certain INS actions —other than provisions to the IRCA. those under IRCA —taken before initiation Nelson, Doe v. 713, 720-22 F.Supp. deportation proceedings are reviewable HRC v. Smith (N.D.Ill.1988) (finding indis standards, in the district court under APA Immigration Assistance tinguishable); despite exclusivity provision of section INS, Project v. C88379R, slip op. at No. Hotel and Employ Restaurant 106. Cf. 2, 1988) (W.D.Wash. (citing 10-11 Nov. Smith, ees Union v. 846 F.2d at 1513 2n. Smith); Refugee HRC v. Haitian Center Silberman, (opinion J.) (assuming with Nelson, 864, (S.D. F.Supp. 873-74 deciding gain out that an alien could sue to HRC v. Smith Fla.1988) (citing and reason asylum direct denial of without deny jurisdiction would be “[t]o but waiting deportation proceeding); for a illegal agency go unchal allow action Nelson, see Kashani v. INS, 818, 793 F.2d lenged”); Zambrano v. 826- S-88-455, No. denied, cert. (7th Cir.), 1006, (E.D.Cal. 9, 1988). 479 U.S. Aug. We sliр op. at 6-7 644, (1986).13 unpersuasive; they do not 107 S.Ct. 93 L.Ed.2d 701 find these cases court, although Michigan Academy, courts." 476 U.S. at trict aliens are re- individual quired problem to seek review in the 106 S.Ct. at 2140. No circumvention Clearly, the present Michigan Academy, context. Dissent at 1360-61. in because Con- Cf. organizational plaintiffs Michigan Academy in gress imposed require- had not an exhaustion challenge regulations could in in district court arising B of the ment on claims under Part plaintiffs the same manner as the individual program. Medicare nothing Michigan Academy could do so. But in Ringer, part Unlike which concerned A of suggests organization that an could have sued Medicare, Michigan Academy entirely raised directly Ringer, where the claim- individual question different whether had alto- required ant was to exhaust administrative rem- gether precluded review of and consti- edies. And the dissent does not even mention so, challenges part tutional under B. This was Institute, Community Block v. Nutrition 467 U.S. Erika, Inc., because in United States v. 201, 456 U.S. (1984), 104 S.Ct. 81 L.Ed.2d 270 208, 102 S.Ct. 72 L.Ed.2d 12 Supreme thorough Court’s recent most discus- (1982), interpreted the Court had the Medicare preclusion sion of of review under APA. preclude judicial Act review of Part B amount at 1339-40. infra determinations. And those determinations Employees 12. Hotel & Restaurant Union v. In were made insurance carriers who were not Smith, (en banc) (D.C.Cir.1988) F.2d legal challenges authorized to consider court), (equally divided four members of the regulations. Act The Court thus declined to or requirement court assumed that the exhaustion Michigan deem the at issue in Acade- general apply 106 does not to "a of section determination,” my an because that "amount frameworking challenge to the INS's entire prevented any would have review of processing applications.” (opinion Id. at 1506 rule and raised "serious constitutional issues.” court, Mikva, J.). citing half of the other Id. at 680-81 & n. 106 S.Ct. at 2140-41. That Union, Brock, UAW v. International is, course, IRCA, Ringer not the case or L.Ed.2d noted affecting where review of a rule future claims exception "may well be” that such an applications is available after exhaustion of exists, unnecessary found it to examine that but event, nothing administrative remedies. depth since resolved the case contention suggests pro- in IRCA that the exclusive review jurisdictional grounds. Id. at 1514 on other matters," “quite is limited to minor cedure cf. Silberman, J.). (opinion of Michigan Academy, 476 U.S. at 106 S.Ct. at adjust- that could affect an specific It will be recalled that the actions above, 1331-32, supra ment. As noted challenged denials of Con- in HRC v. Smith were gress expected major legal questions asylum deportation hearings requested must adjudications. prior proceed- to be resolved in themselves rather than Michigan Academy provide any sup- asylum might ings. Nor does Because a denial of port appellee organiza- deportation proceedings, for the notion that the reviewable before challenge agency regulations argument during proceedings denials tions can in dis- however, IRCA, provides questions for an alien to insurance claims that raise Brock, 285, legalization only federal U.S. at of a denial law. See 477 seek review face, deportation proceeding, S.Ct. 106 at 2530.14 And on the the context 1987), 1255a(f)(4)(A)(Supp. V requirement exhaustion in the Trade Aсt see 8 U.S.C. § argument only by coop- not confronted with an refers to so we are “determinations] predicated erating agency." be on the APA review could State If the Trade Act that by crystal (fed- paralleling any itself. It is had denial of IRCA—that said— regard state) respect to eral or least with IRCA—that determination with to clear—at door. Congress program closed that benefits was reviewable only through process, the state the cases would Union, Appellees rely also on International more alike. 274, Brock, U.S. 477 UAW 2528, support to the L.Ed.2d 228 91 We do not therefore take Brock to the order. Brock concerned district court’s litigants mean that in order to confine to of the Trade Act of implementation procedures only administrative reviewable (1982 amended, 2101-2495 §§ courts, certain Congress must affirma 1987), pro Supp. V which established & tively may state other that courts not hear readjustment gram trade allowance questions same if raised in a different (TRA) who have lost benefits workers procedure form. Often an exclusive import jobs competition, their because of judicial appeals review in the courts of will alia, provides, and inter determi implicitly, explicitly, “[a] if not forbid broad- cooperating aby nation State with challenges practice to agency based in the program respect to entitlement benefits Whitney district courts. Nat’l Bank v. agreement subject under an to review Co., Bank New Orleans & Trust 379 411, 422, to the the same manner and same extent as S.Ct. 13 U.S. 85 L.Ed.2d applicable (1965)(Where determinations under State 386 “has enacted a [unemployment law and in specific statutory obtaining scheme for re insurance] view, that manner and to extent.” ... the doctrine of exhaustion of added); 2311(d) (emphasis see id. play administrative remedies comes into 2319(10). requires The Court held that the Act and mode of a union to sue in notwithstanding authorized federal district be adhered to review challenge express statutory court on behalf of its members to absence command exclusiveness.”); a Trade Act issued Secre- Telecommunications Labor, tary governed deter- FCC, state Research and Action Center v. minations, notwithstanding (D.C.Cir.1984); re- F.2d also 5 see U.S.C. provision. distinguish- (1982) view But Brock (“Nothing herein ... confers (not Ringer authority any able from mentioned grant relief if other stat ease, opinion) Court’s and our because Con- expressly ute or impliedly forbids the re gress sought.”) intended TRA to ex- (emphasis added). never claimants lief which is challenging haust state remedies when provision The IRCA sets guidelines. The Trade Act procedure. judi federal forth that kind It limits passed against background of a line of cial respect review of “determination Supreme Court application cases in the fed- adjustment” lower holding eral appeals, 1255a(f) courts there is federal courts of 8 U.S.C. § jurisdiction to state unemployment (Supp. 1987), V if uphold and we were separately pow challenge reviewable rests on less said “[t]he distinction between Foti, insignificant grounds. guideline erful—if not to benefit determi- — 313-14; at might meaningful 375 U.S. at petitioners S.Ct. nations if had Internation Union, Brock, al UAW v. U.S. challenged guidelines (White, Brock, S.Ct. as-yet-unsubmitted L.Ed.2d 228 claims.” J., dissenting). (White, J., dissenting). 106 S.Ct. at 2535 proposition The dissent was limited Brock, three of the petitioners interrupt Even dissenters in who could not state admin- majority Ringer, recog- were begun process seemed to istrative review had once it they nize the difference between the cases when consider claims under submission. they de- not have intended that would have no authority to enter court’s the district relief, right QDEs we would claratory injunctive independent to sue. The system that destroy organizations much of the the other claim are in- any injury crafted. jured apart from suffered — ability their advise aliens—because agree appeared to district impaired by “uncertainty” aliens is plaint as it affects individual analysis our by government’s regulation caused orga iffs,15 thought that some of the but particularly problematic application its authorized appellees were nizational the section 265 issue. policies in district challenge the INS “qualified as special their status because QDEs government responds that the (QDEs). Since these designated entities” actually agents under IRCA are pro no administrative organizations had Cooperative agreements INS. between the appeal, the court they could cess to which QDEs Department of Justice and the direct remedy they have a must reasoned comply latter all rele- that the “will with somewhere, fed and that somewhere was regulations relating legali- vant INS F.Supp. at Ayuda, 687 eral district court. programs zation ... and follow the instruc- Manual,” Training tions in the and the court, appellees the district support QDEs making statute forbids the “a QDEs’ special role in the argue that the required by determination to be [IRCA] they are enti- program implies by Attorney made General.” 8 U.S.C. challenge the court to tled to sue district 1255a(c)(3) 1987). (Supp. thus find Y We subject to even if an alien INS’s argument government’s much force to the Attorney Gen- deportation were not. QDEs’ interest is so “inconsistent “designate obliged under IRCA eral was purposes implicit with the in the statute” to assist qualified voluntary organizations” they standing lack to sue. Clarke legalization process. in the Ass’n, 479 U.S. Securities Indus. 1987). 1255a(c)(2) Congress, (Supp. V (1987). 93 L.Ed.2d 757 S.Ct. apprehen- understanding illegal alien’s most, Congress, at It seems to us that sions, applicants that to “assure wished intermediaries, QDEs to act as intended apply such entities they may without if the litigating ombudsmen. And even fearing applications their will be for- QDEs thought agents of as for the the INS even if the view of warded to aliens, doubt intended we qualify legali- they entities do not judi- rights to seek agents to have broader S.Rep. Cong., 99th 1st zation.” No. principals. cial than do the QDEs’ very Since the Sess. assuming appellee or- But even provide confi- function was buffer —a sue, standing ganizations we think have intermediary the INS and dential —between authority alien, to hear appellees Congress could the district court lacked insist No, engaged following standard. THE COURT: but that’s not the 15. The district court counsel, colloquy appellees' they get long after counsel is that as can The standard plaintiffs presented asserted that the individual Appeals.... And it reversal in the Court of jurisdiction. strongest case for they to me that could then have this would seem Well, plain- but the individual THE COURT: go Appeals and the Court of case to the Court of tiffs, me, they why it would seem to interpreta- Appeals say could ... it was bad would— go through they wouldn’t have to the adminis- they wrong I on that? Don’t have tion. Am they process? trative ... seems to me that [I]t goes right appeal If an individual here? through can have their status determined down, goes up applies and he and he’s turned process. administrative Appeals appeal, reverse can’t the Court think, Honor, they COUNSEL: I Your cannot that? to do so would be a futile act. We because ... Yes, obviously, Ap- the Court of COUNSEL: testimony. presented heard We have affi- it, peals and for those individual could reverse changing that the INS is not davits opinion. show Appeals plaintiffs, could do that. It the Court of could reverse it. Why THE COURT: is it futile? get a COUNSEL: Because could never process. reversal in the administrative claim, clearly ard, because to do so would their 88 L.Ed. congressional intent to channel frustrate the Court in explained Block disputes legalization program about the all producers’ Stark, interest in appeals the courts of under a into narrow involved a challenge to Secretary’s ad- scope The flaw in the district of review. ministration of the fund from which the view, in our analysis, assump- court’s is its producers paid, pro- would be could not be aggrieved party every tion that must have by statutory provisions tected authoriz- remedy under the statute. It did not handlers, suits since the latter Congress sometimes consider that intends had no Therefore, interest in the fund. preclude plain- certain classes of suits preclude did not intend to suits 701(a)(1)(1982) tiffs, (judicial see 5 U.S.C. § producers, because such suits were the APA not review under available when “necessary to ensure achievement of the statute), precluded by and we think a “bal- wit, Act’s most fundamental objectives—to statutory construction,” approach anced protection producers of the of milk and Inst., Community Block v. Nutrition 467 products.” milk 467 U.S. at 104 340, 350, 2450, 2456, U.S. 81 S.Ct. at 2457. The consumer’s in interest 270 reveals that a congres- L.Ed.2d Block, conversely, was similar to the han- preclude judicial in purpose sional IRCA dlers, and therefore handlers could ex- by anyone, except deportation “ pected “challenge agency unlawful ac- context, ‘fairly discernible in the statu- ” tion and to ensure that objec- the statute’s tory scheme.’ Id. at 104 S.Ct. at tives will not be frustrated.” Id. Consum- (quoting 2456 Data Processing Camp, v. ers independent suits served no purpose 827, 831-32, U.S. S.Ct. and were (1970)). precluded deemed they L.Ed.2d 184 because “would congressional undermine the pref- Block, jurisdictional Court faced a erence for administrative remedies pro- challenge brought to an action under the vide a disrupting mechanism for adminis- disputing APA consumers legality congressional tration of a scheme.” Id. Secretary Agriculture’s milk mar- keting government orders. The claimed proposition That here, is even more true the consumers lacked standing, but the organizations because the seek review of necessary court did find it to reach that (without the INS’s actions the need to ex- determined, instead, issue because it remedies) haust administrative in a differ- the statute barred seeking consumers from ent court under a somewhat different stan- judicial ruling review—a which the court dard provided of review than that in IRCA. jurisdictional. described as “in effect” Id. And the interests asserted the organizа- 467 U.S. at 353 n. 104 S.Ct. at 2455-56 tions, even if can be seen as somehow 4;n. see also Clarke v. Securities Indus- different from those of the aliens who seek try Ass’n, 399-400, 107 S.Ct. legalization, clearly so similar to those 750, 757-58, 93 L.Ed.2d 757 Since the aliens that no interest is provided statute “a detailed mechanism unprotected by left recognizing Congress’ judicial particular consideration of is- implied preclusion by QDEs of suits or sues at the particular behest of persons organizations. Congress other in- allowed handlers], judicial review of [milk those aliens, dividual undoubtedly who have the issues at the behest of persons other [was] most direct interest the administration of impliedly found to be precluded.” Id. 467 IRCA, unfavorable rul- U.S. at 104 S.Ct. at (emphasis ings only in context. It added). That detailed required mechanism Congress’ would undermine system of ad- milk handlers to exhaust administrative plan ministrative remedies and its for limit- seeking remedies before- judicial review in determinations, ed review of IRCA district court. Although the Court had previously QDEs if producers held that declaratory were able to seek could seek despite judgments no statutory provi- in the district courts without sion authorizing suits, Stark v. any applicable Wick- requirement. exhaustion hardship parties withholding”

III. re- Laboratories, view. Abbott 387 U.S. at argues alternatively government Determining S.Ct. “fit- jurisdic- if the court had that even district ness,” turn, generally involves considera- challenging entertain a suit the INS tion to tion of several factors: “final” how is the jurisdiction to consider regulation, it lacked action; agency whether the issue raised is question presented this the narrower requires one of law no further factual “policy” applied appeal the INS —whether development, compare Ciba-Geigy Corp. to section 265 cases lawful—because EPA, (D.C.Cir.1986) 801 F.2d taken “final ac- the INS had not (Silberman, J., with id. at 443-44 dissent- ripe tion” ‍‌​​‌​​‌‌​‌​​​‌‌​​‌‌‌​‌​​‌​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌​‌‍or the issue was not for review. ing); whether additional administrative question, thus goWe on to decide clarify agen- consideration is needed to resting judgment on alternative hold- our cy’s position; and whether consideration of require- ings, statutory exhaustion because the issue would benefit from a more con- (and variation) ments the Block as well setting. crete Action Alliance Senior ripeness finality jurisdictional are all Heckler, (D.C. Citizens v. 789 F.2d jurisdiction-related, and discussion of this Cir.1986). paradigm hardship against illustrates the inherent latter issue further ripeness which the other side of the calcu presented by direct district difficulties “ lus is balanced has been described as ‘a court review of a broad private dilemma party who must policy INS under IRCA. disadvantageous compli choose between ” brief, government In its melds risking penalties.’ ance and serious Pub jurisdictional three related distinct con but Group lic Citizen Health Research cepts. The INS conduct this case is Commissioner, 21, (D.C.Cir. 740 F.2d 31 “agency if it constitutes reviewable 1984) (quoting 4 K. Davis, Admin.L.Trea action,” 551(13) (1982), that is § (2d 1983)). ed. tise “final,” 704, “ripe” for id. and otherwise parties very We find the much in dis- review. See Abbott Laboratories v. Gard agreement toas whether the INS had actu- ner, 136, 148-49, 1507, 387 U.S. 87 S.Ct. ally agency policy ap- formulated an 1515, (1967). 18 L.Ed.2d 681 Each of these plied the “known to the Government” stan- requirements designed is to maintain dard to section 265 cases after the INS appropriate relationship between federal аcquiesced interpreta- in the district court’s agencies by pre courts administrative phrase. Although tion of that the INS venting premature judicial intervention in agreed comply interpre- with the court’s process. “Agency the administrative ac tation that “known to the Government” part tion” includes “the or whole nonimmigrant qualified meant that a rule, order, license, sanction, relief, agency legalization if he could show that the feder- thereof, equivalent or denial or fail government al as a whole had documenta- 551(13)(1982); ure to act.” 5 U.S.C. see illegal his status tion established be- Co., 232, FTC v. Standard Oil 449 U.S. 1982, government it fore claims had not 488, n. 101 S.Ct. 492 n. 66 L.Ed.2d 416 nonimmigrant yet determined whether a action Such is “final” within by pointing that status could establish meaning APA, of section 704 of the quarterly the absence of a document—the represents unless it a “definitive state report the INS’s files. —from agency’s position. ment” of the Id. at 493; proposed at Savings S.Ct. A A Fed. In both the intervenors’ US McLaughlin, points Bank v. 849 F.2d notice and authorities before the (D.C.Cir.1988). agency (adopted by appellees) Even “final action” district court court, unripe reviewing counseling is often if appellees’ for review a brief to this Legaliza presented appli organizations court is not with a concrete claimed that INS agency policy. ripeness refusing accept appli cation of in tion Officers were quiry requires applicants, a court to balance “the fit cations from section 265 even against ruling ness of issues for district court’s of March 30 decision after the declaring meaning term The focus of proceeding was the defini- However, appellees “Government,” tion of “Government.” con- meaning not the “known.” argument ceded at oral our Once the district own re- court declared —and that, invalid insofar view of the affidavits as it defined at confirms — enjoined “Government” most, agency some local INS offices were inform- applying further, the court’s reten- ing aliens that the office would recom- tion of and continuing “supervi- mend denial of applications based on the sion” of INS’s pro- administration of the theory. Assuming section 265 a recom- gram was not an appropriate exercise of regional mended denial INS office judicial power government. vis-a-vis the “agency constitutes action” under 5 U.S.C. Eastex, NLRB, Inc. v. 551(13), it clear is that such a recommen- 57 L.Ed.2d 428 dation, prior let alone a indication that such (1978) (once precise ques- decides the made, a recommendation would be does not raised, necessary neither nor “[i]t constitute action. See FTC v. final appropriate ... to delineate precisely the Co., Standard Oil U.S. at boundaries” provision). S.Ct. at 493. For all recommended denials should, minimum, have been adjudicator, referred to an whose deci- given the opportunity to reconsider im subsequently sion is reviewable the Le- plications of the ruling court’s for its IRCA galization Appeals (LAU), Unit 8 C.F.R. legalization policy. See Continental Air appellees 245a.2 do allege CAB, Lines v. (D.C.Cir. 522 F.2d that the LAU has ever decided a case in- 1974) (“If [agency’s] position likely volving the section 265 issue. That be abandoned or modified before it is actu some of the INS field offices were recom- ally put effeсt, into then its review ... mending denial of section 265 claims while interferes process by which the not, moreover, others were shows that the agency is attempting to reach a final deci INS had no clear policy internal on the sion.”). issue. Review of a tentative administrative The dissent asserts that the district court position expressed by only regional some “struck down” regulation the entire as if INS offices would be “at odds with funda- every word illegal, not, was but that is in mental notions of administrative law that view, our an accurate understanding of generally require the agency to resolve what occurred. The district court disputed in substantive issues the first instance.” negative implication of regulation: the Citizen, Public 740 F.2d at 31. that an alien could not illegal show that his sure, original To be the INS “known to status was government known to the by the regulation Government” appears to any means other than the four circum- precluded have claims, section 265 because, recognized stances regulation. It above, as noted enumerated four (and is) was undisputed that an alien can circumstances in which an alien’s unlawful qualify if his case falls within scope statute would be deemed “known to the any of those are, four eventualities. There supra Government.” at 1327. But in perhaps, an infinite number of pat- factual complaint, their appellees never discussed terns, four, other than those upon which an the section 265 issue. Although they did alien rely could to base a claim of “known vaguely allege that the regulation “re- to the Government.” court, The district statutory provision strict[ed] enu- regardless of sweeping its language, decid- merating the limited circumstances under ed only legal argued issue before it— which the INS is deemed to know of an whether “known the Government” was status,” alien’s unlawful they offered no not limited to the knowledge. INS’s legal concrete case or theory for the dis- The court did thereby gain not jurisdiction trict to consider. Their specific to decide whatever new variations could be argument, tell, so far as we can was that presented on the “known to the Govern- “Government” must mean the entire feder- ment” if theme as it were the administrator al Government and merely the INS. program. Since, empha- as we judiciary uphold must an sized, required to issue therefore was not the INS “ra- interpreta- agency decision on the matter if it is its embodied regulations which statute, anoma- tional and consistent with the statute.” particularly it is of the sought to extend NLRB v. United Food & Commercial district court lous that the Workers, encompass a claim as its regula- 98 L.Ed.2d 429 negative implication of the

another presented. originally tions that was follows, then, dealing It that when ambiguous statutory term such as with the sec appellees had raised Even “known,” interpose a court should not its court at before the district tion 265 issue own of the term before challenged the defini the same time as it agency opportunity has consider (and pointed tion of “Government” and fix on its own construc issue action”), an an agency as “final may tion. It well be that court could ruling meaning on the ticipatory properly conclude—faced with a concrete indication of without a clear word “known” intended —that interpretation would government’s own encompass something “known” more the is appropriate, because not have been positive than the four manifestations de- ripe been sue would not then have regulation. scribed But that conclu- determining whether an is review. When surely necessarily carry does not sion propriety brings question into sue knowledge it a determination that could be interpretation of a statute it agency of an imputed government on an based ripe, must in mind enforces is we bear report. alien’s failure to file a section 265 principles of administrative law. The other agency given op- should have been position taken a INS had never portunity question latter answer particular question posed section the court did. This is not a case before Must an unlawful status claimants: alien’s agency position where the has taken clear proved by presence of a document then, litigation, attempted portray file, of a doc an alien’s or is the absence policy as unsettled order to render (such quarterly ument as a section 265 Rather, dispute unripe. though even proof? appar report) adequate The issue might involved here the INS ently was not raised before the claims, literally apply to section 265 it is during rulemaking process, 52 Fed. see agency had never formulated clear 16,206, Reg. appellees at and neither nor position on that issue. We thus are not its was even of the section 265 INS aware agency faced with a facial to an theory proposed until the intervenors came clearly particu regulation that commands April. nothing in on the scene We see result this issue. lar on Cablevision Cf. statutory language legislative or histo Ass’n, Systems Dev. Co. v. Motion Picture ry indicating Congress ever considered 599, denied, (D.C.Cir.), F.2d 615 cert. 836 precise the section 265 issue or the mean — 2901, U.S. -, 108 101 L.Ed.2d S.Ct. ing of “known.” Inc. See Chevron U.S.A. (1988) (although 934 “strict adherance NRDC, 837, 842-43, v. 467 U.S. 104 S.Ct. Copyright language” literal of letter 2778, 2781-82, 81 L.Ed.2d 694 On appeared con- Office’s General Counsel face, statutory certainly term ad law, trary unripe case was because meanings, multiple mits of and even the rulemaking from which inability on the district court commented issue, disputed grew never addressed the party any legislative either to “unearth ma showing interpre- of an and there was “no specifically directly terials which focus ad- [agency] firmly to which tation on the term ‘unlawful status was known to here[d].”). ” F.Supp. Ayuda, the Government.’ 687 at recognized long 663 n. 16. It should thus evident that It has been “directly primary jurisdiction to pre agency did not address the that an has issue,” Chevron, question to the facts on a matter apply cise at 467 U.S. the law 843-44, 2781-82, statutory authority. arguably within its at 104 at S.Ct. States, not 342 U.S. all aliens who failed to file the United

Far East Conf. 574-75, quarterly reports slipped 96 L.Ed. 576 section 265 into (1952); v. Allegheny status; also Air Nader to file see unlawful failure must 304-05, lines, U.S. S.Ct. Ayuda, also have been willful. (1976). Although 1987-88, 48 L.Ed.2d 643 F.Supp. 668; 1306(b) at see 8 U.S.C. § primary was the doctrine 1306(b) by 8 amended U.S.C. § originally agencies rooted in the notion that (1982). Obviously, the statute contem- expertise, experience, and greater plated that some failures file would not regu dealing courts in with flexibility than grounds depor- be willful and thus not matters, latory Conf., see Far East example, caused by tation —for failures U.S. at 72 S.Ct. at as well as hospitalization or other unusual extenuat- lаw, application of desire for uniform We do see how circumstances. id., recently see we have held that absten could, government before make this agencies charged tion in re favor with willfulness determination based docu- conflicting statutory solving policies also mentation its files. We are therefore promotes proper relationships between confident that section 245A at least am- agencies. administrative courts and Na biguous toward the claims of Republican Cong. Legi- tional Comm. v. merely aliens who failed to file section 265 (D.C.Cir. Corp., Tech 795 F.2d prior reports to 1982. 1986). naturally This follows from Chev Going beyond even relief ordered ron, explained that deference to court, the district the dissent reads IRCA agencies appropriate because require grant legalization the INS to expertise but also because Con transgression alien whose was an gress delegate presumed policy inadvertent or excused failure to file a sec- resolving statutory choices inherent report. tion 265 Dissent at 1366. This ambiguities agency charged reading purposes distorts both sec- implementation Chevron, of the statute. tion 265 and IRCA. obviously 865-66, 2792-93; 467 U.S. at 104 S.Ct. at did not mean to declare the status of such Co., Systems Cablevision Dev. F.2d at unlawful, provided statutory 608-09. To hold otherwise in case mechanism for them to avoid preclude from adopting by establishing inadvertence excuse. permissible different but construction of grant Nor did it “amnesty” seek “known,” the term Republi National cf. permanent resident status to aliens who Comm., Cong. can F.2d at 194 n. here legally were and could not have been result that would undermine the central deported. The dissent raises issue tenet of and its progeny. Chevron yet about the meaning another Chevron, 866, 104 at S.Ct. at 2793 and, phrase most, (“The status” — —“unlawful responsibilities for assessing the ambiguity establishes one more policy wisdom of such choices and resolv should be in resolved the first instance struggle the between competing views the INS. public the interest are not ones: ‘Our Constitution vests such responsibili assuming Even that failure to file a sec- ” political ties in the branches.’ (quoting did, report itself, tion 265 in establish un- Hill, 153, 195, TVA v. 437 U.S. cases, lawful status in all the “known to 2279, 2302, 57 (1978))). L.Ed.2d 117 provision the Government” ambigu- is still argues, however, applied

The dissent ous as section 265 claims. what- ever possible the argues ambiguities possible term dissent the the whatever “known,” it “unambiguously ambiguities “known,” of the term embraces” claims aliens who failed to file a could have meant distinguish be- quarterly report. section 265 Dissent at tween proving knowledge, methods of 1365. But the district court’s presence order itself as the absence or of a document file, illustrates the error in the a government dissent’s conclu- and there is thus sion. Supplemental recognized Order V no need for consideration of permissible construction possible one have “known” could term But the issue. “known to the Government” (1) phrase of the meanings: separate at least three policies Depending on the Con- in IRCA. about actually knew Government it enacted the in mind when gress had status; (2) the Government alien’s unlawful statute, listed any of those definitions known, i.e., exercise should have 245A of apply to section IRCA. above could to actual led care would have reasonable legislative history on the there is no Since could the Government knowledge; and issue, only speculate from more we can known, i.e., although the exercise history Congress’ legislative as to general not have led to care alone reasonable purpose. extraordinary steps knowledge, actual presence of noted, done so. While could have earlier the “known to the As we illegal sta- reporting an alien’s in requirement IRCA seems a document Government” in actual result identi- likely Only illegal those aliens whose tus would most odd. agent presumably ty knowledge that fact and status known— eligible amnesty. files the doc- notorious—are most who receives government expressed legis- Congressional concerns quarterly ument, the mere absence reports accompanying IRCA reveal lative actual knowl- not lead to report may well limi- possible three reasons for this at least closely. are not monitored edge if all files eligibility. likely purpose One tation on first agree, on we to Even were legaliza- protect against fraud was to correct appellees’ were impression, that easily program by providing an admin- claims, included section that “known” bright-line Ayuda, istered rule. See accept proposed resolution we could legislative history also F.Supp. at 664. The discrete collapse the two it would because however, estoppel that an notion suggests, A into one. analysis prongs of Chevron program, underlay the whole organic agency’s may construe undoc- large settlements of because agency’s regard to legislation without past umented aliens were attributable “di Congress has when government properly to en- failures of the precise question at rectly addressed Rep. H.R. immigration laws. See force 843, 104 Chevron, 467 S.Ct. issue.” U.S. Sess., Cong., pt. 2d at 49 99th No. plain This means that either at 2781. IRCA A third focus clear, see, must language of the statute present now “illegal on the subclass Hospital v. Georgetown University e.g., characterized society,” which is our (D.C.Cir.1988), Bowen, F.2d S.Rep. deportation, imminent fear of No. history design of the act legislative and it Cong., 1st Sess. 99th despite ar specific intent must illustrate those aliens whose might thought that statutory language. guably ambiguous the au- actually known to illegal status is Inc., Corp. K Mart v. Cartier part of the likely more to be thorities are L.Ed.2d 313 S.Ct. Although need not and we subclass. situations, a (1988). Lacking one of these course, not, decide attempt should step two of court must move to Chevron dominant, suf- these concerns was which of agency has ad consider whether the discerning recognize fice it for us interpretation. Even vanced a reasonable delegat- task Congress’ policy objective—a an alterna if we were not able to envision choice impact on the ed to the INS—will by ap to the one offered meanings tive construction of “known” among the different imposing pellees, we should hesitate before listed above. agency may perceive well own. An our compelling rea- against these Juxtaposed ambiguous language meaning another of judicial intervention postponing sons not occur to a court that is

which would if de- hardship appellees to alleged the the intricacies of the less familiar with to rapid clarification of “known prived of a particular regulatory field. Although the district the Government.” inquiry ripeness a may, how it did not conduct Be that as it we do not see court se, plaintiffs would found that the stage per at this that there is can be contended irreparable potential without immedi- theory amnesty; suffer harm an a with that ruling, many qualified opinion hand, ate because aliens in undocumented aliens could applying from for am- would be deterred come legal- either forward to receive their nesty impending May the (if before theory ized status approved) the were or F.Supp. Ayuda, deadline. at 665. (if in hiding illegal remain with their status problem repeated with this unavailable). amnesty were But time assertion — organizations here—is it con- appellee pressures and risks to involved aliens in parties arguably cog- a who fuses the give do not a IRCA district court— injury in court nizable redressable district they than give ap- more would court parties alleged suffer with the who will peals power preempt the adminis- —the hardship. organizations do not com- authority trative INS and direct the plain pressing hardship themselves legalization program from the bench. counselors; appear they sliding as foregoing reasons, For the we conclude capacity representative by invoking into a jurisdiction the district lacked court to is- of the aliens. interests Supplemental sue Order V and it is there-

The difficulties faced individual fore aliens, proper were even focus of Vacated. analysis, importance our of little equation. ripeness illegal The risk to WALD, Judge, dissenting: Chief coming legaliza aliens of forward to seek I majority’s holding dissent from the position. in tion is inherent their Hotel Cf. provisions of the Immi- Employees and Restaurant Union gration Reform and Control Act of 1986 Smith, (opinion F.2d at 1518 Silber (“IRCA” “Act”) deprive the district man, did, IRCA, J.). Congress in seek present over the ac- illegal an alleviate somewhat alien’s obvi I tion. dissent well majority’s from the difficulty determining ous whether he or refusal, ripeness alternative on grounds, to qualified she re without appellees’ challenge entertain the vealing identity by or her providing his Immigration and Naturalization Service's whereby mechanism the alien could seek (“INS”) policy excluding from the IRCA QDEs. confidential advice from the But legalization program nonimmigrant aliens required regula was not INS issue prior whose unlawful status to 1982 promulgate policy possi tions or on every stemmed quarter- from their failure file theory legal supporting amnesty ble reports ly required by with the INS as claim, and the LAU does not advisory issue Immigration Nationality opinions. QDEs, Even with advice from (“INA”). Act I Because find neither of uncertainty part some prospective majority’s grounds a bar jurisdiction, I applicants inevitable administrative also standing address the issue and find program like hardship this. A claimed organizations brought results “not delay enforcement present standing action have to do so. On standard, delay established but from merits, agree I with the district court generally establishment standard” is treatment 265 violators in 8 action, not a prompt judicial reason for 245a.l(d) сontrary C.F.R. to law.1 Citizen, Public 740 F.2d at 31 (emphasis added), especially where has not

lations even required ^[*] defining # the term “known.” ^{[*] [*]} promulgate # regu only to curtail illegal immigration but also enacting I. IRCA, Introduction Congress sought plaintiffs really

What sought from to eliminate a subclass undocumented the district court was an advisory ruling on already living illegally within this however, do, disagree 1. I with the district note 1355. infra decision respect. court's on the merits in one rules because such application” pro- legalization The country’s borders. impact” “embod[y] determinations will accomplish both designed gram was Majority opinion applications. future already resi- aliens By legitimizing goals. ante, (emphasis at 1331 add- (“Maj. op.,”) Congress years, of a number here for dent ed). colleagues speculate, without My resources up the scarce free wanted to Act, history of the support in the text or new prevention of to focus the INS adopted a restrictive also Legalization was illegal entrants. fending INS in policy to assist the anomaly of put an end adopted to per- interpretations of IRCA off indefinitely being longtime alien residents’ regu- litigate validity of its mitting it to working wages and depressed consigned to circuit, even when that lations in each bargain- their weak conditions because in of different result a checkerboard would gener- Congress instituted ing position. policies being enforced differ- eligibility ends; both amnesty program to serve ous during parts country the brief ent num- greatest affirmatively wanted eligibility. period of 12-month “window” to avail themselves eligible aliens ber 1330-1332, majority 1334-1335. Id. the Act. that INS ultimately concludes however, de- that an alien Recognizing, categories of illegally exclude entire apply for ciding whether to legalization program can- from the if is deportation she risk of fear the would except through filings challenged not be many ineligible, and that ultimately found applications certain by individual aliens of aliens, authority suspicious of underground plain rejected initially under to be culture, to our yet acclimated and not regulations. This existing terms risk, perceived might deterred inten- Congress’ afoul of documented runs encourage special pains Congress took given much accurate that aliens as tion during step illegal forward residents legaliza- their possible about information period which 12-month “window” brief deciding whether to prospects before that, It knew applications were to be filed. for the applications. I find no basis submit unallayed, aliens’ normal mistrust if left reading majority’s of IRCA. hamper severely suspicion would majority denies the Alternatively, Con- legalization program’s effectiveness. availability review on up set a network of sequently, concluding that ripeness, grounds provide each community organizations to a final decision on has not arrived at advice potential applicant with confidential legalization of nonimmi- eligibility for becoming legalized her chances of about prior status whose unlawful grant aliens applica- a formal the alien submits before failure to meet from their 1982 stemmed tion. quar- filing requirement INA 265 at 1341- terly reports the INS. ignores all of ruling today This court’s holding I to be 1345-46. find this background and motivation for the case the record totally at odds with plain amnesty program; it also distorts before us. concludes words of the Act. regula- challenge to an INS that a direct legislative My reading of the text court, tion, an action brought in district judge’s: the trial history is at one with 1255a(f)(l)’s ap- of a determination seeking “judicial review bar jurisdictional U.S.C. § adjustment application for respecting an that involve a court plies only to lawsuits itself) (or undertaking and that district court reviewing status” fact-finding law-application U.S.C. functions therefore barred eligi- 1255a(f)(l), re- provides specific that such individual’s that determine legalization. While place only ineligibility in a federal court may bility view take (whether filed fact-specific lawsuit appeals in the context of such a filing of a majori- or after the order. before “judicial review of regu- seek INS-promulgated application) ty reasons that application,” respecting an respect- a determination “a determination lation constitutes 1348 benefits of I present challenging one under con-

a suit such as the IRCA. assuredly face by INS’ rules on their does sider this Realty case controlled Havens challenge Coleman, “determination” Corp. such a and not jurisdic- thus does not fall under IRCA’s proge- L.Ed.2d and its 1255a(f)(l) bar. tional Since ny court, § in this all of which found have preclude jurisdiction, the district does standing in situations. similar question juris- has its usual federal merits, I would On the affirm the district to entertain a or constitu- diction to the ruling court’s as inclusion of § regulations. tional 28 violators within the “known to the Govern- 1331(a) (federal question jurisdic- U.S.C. § category ment” of aliens. A viola- § tion); (jurisdiction over “all U.S.C. § tor’s unlawful status was “known provisions of arising any under of cases January of if Government” as subchapter”); also 5 see U.S.C. alien can that his show INS files do not 701(a)(review under available the Admin- § contain reports required he was to file (“APA”) Procedure Act istrative unless nonimmigrant under 265. Each alien had § preclude judicial agency review or statutes any change inform the INS of ad- of is committed to action discretion dress, including change a of residence a law). of This construction IRCA is com- foreign country, had and to file a statement pelled only by language of of his each period address for three-month 1255a(f)(l) and of the subsections sur- § in which he remained the United States rounding background it but also (even if unchanged). his were address purpose of the Act as whole. Because Consequently, the INS must be deemed to special care took to ensure that have “known” of alien’s sta- unlawful aliens would receive accurate advice from tus if missing the alien’s INS records are designated community organizations before quarterly report pre-1982 quarter having applica- to decide whether to file an do not contain record of the alien’s tion, my colleagues’ contention that Con- having changed his address to another gress’ purpose would best be served country. affirm, I therefore would in sub- permitting only review of INS rules in the stantially respects, all the district court’s deportation context of individual reviews Supplemental V. Order application long period after the 12-month is, lapsed put charitably, had counter- II. IRCA’s Judicial Review Provisions

intuitive. Similarly, majority’s position ripe- provides on “[tjhere IRCA that shall be no faulty understanding ness based on a judicial administrative or review of deter- procedural history of this case. The respecting mination ad- plaintiffs challenged, outset, have from the justment [gov- under status this section the INS’ restrictive definition of “known” erning applications legalization] except meaning within the IRCA’s requirement in accordance with this subsection.” pre-1982 that an alien’s unlawful status 1255a(f)(l). U.S.C. The subsection autho- § have been must “known the Govern- single rizes the establishment level of 1255a(a)(2)(B). ment.” U.S.C. The INS appellate administrative review of legaliza- policy had a has formal 265 violators tion applications, 1255a(f)(3)(A), id. the beginning, it was embodied in provides “[tjhere judicial shall be re- a formal did constitute final adjustment view of a denial [of agency action ripe and was for review. review of status]

I order organizations deportation would also find under 106 of [§ brought 1255a(f)(4)(A). present lawsuit Section 106 INA].” standing alleged provides to do so. INA injuries organizations them place only include not orders can take “confusion” ‍‌​​‌​​‌‌​‌​​​‌‌​​‌‌‌​‌​​‌​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌​‌‍about how Appeals should advise U.S. Courts of after the alien has aliens, but also frustration their mission exhausted his administrative remedies. helping 1255a(f)(4)(A),1105a(a)(re- aliens to avail themselves of the 8 See U.S.C. §§ presumption a normal in favor of ground of appeals); of in courts view reviewability agency rulemaking, of Con- (exhaustion 1105a(c) 1255a(f)(4)(A), §§ only gress’ preclude jurisdiction decision to remedies). obviously do appellees These respecting appli- “a determination an over orders; rath- any deportation as a deci- cation” must be seen conscious in district court er, they brought this action preclude preenforcement sion not to excluding the INS rule to invalidate § of rules. eligible pool for from the violators my disagreement The crux of legalization. language alleg- begin I with the I not view the majority is that do with the edly exclusionary section itself. words seeking “judicial review action as present “application adjustment status” applica- respecting an of a determination clearly describe a written dociiment sub- all, at and so adjustment applicant of status” by particular mitted alien for a the within bar of change I do not find comes of his status. Consistent with this view, face does not provisions That section on its other of IRCA inform us 1255a. adjustment “application[ conceived for that an apply to this suit and was ] piece paper is a concrete purpose altogether. status” different entities, “may filed” various be 1255a(c)(l),may U.S.C. “forward[ed]” and Back- Language, A. Structure General, Attorney by those entities to the ground Statute 1255a(c)(3),and must “contain” cer- id. § rulemaking “a determination Either a is 1255a(a)(l)(C). information. tain Id. § If, application” or it is not. respecting an majority conveniently ignores every- this itself, maintain, not, in rulemaking is as I meaning day application” of “an stress- applica- an respecting “a determination ing surrounding it: “re- instead words tion,” preclusion provi- then the respecting view of a determination an 1255a(f)(l) simply does sion of 8 U.S.C. § 1255a(f)(l) (emphasis application.” case; apply to IRCA’s bar to dis- this reader, added). however, ordinary To the only to judicial review attaches trict court phrase appears to cover too applica- an respecting “a determination respect determinations that are made with tion.” rulings go into an application: to each If, hand, the other as the on partic- determination of whether a ultimate say, Maj. op. a rulemak- seems to disapproved. application approved is ular appli- respecting “a determination an however, places entire majority, cation,” anomalies then several “re- weight argument of its on the word scheme, presented none interprets encompass specting,” which it major- adequately explained by the which is impact to or anything having any relation First, linguistic ity. there is the obvious present or any legalization applications on difficulty stretching the term “a determi- reading I overbroad and future. find that respecting application” an to cover nation phrase “re- misguided; the context of Second, promulgation general rules. conveys application” an an alto- specting respecting interpreting “a determination i.e., meaning: that a re- gether different compels application” encompass rules appli- any aspect an individual’s view that the administrative the odd conclusion through channeled the de- cation must be up appellate review board set under IRCA proceeding. Note that portation actually power to entertain a facial has “any arising under say did not claim prom- validity on the “any attack nor that legalization program,” Third, Attorney ulgated General. re- or decision made with action taken majority’s program” reliance on the word “re- must spect Rather, specting” explain preclusion provi- reach of “a broad channeled. so 1255a(f) respecting application” to “a determination sion of is addressed by Congress’ interchangeable respecting applica- undermined determination 1255a(f)(l) (emphasis phrase use of that with “the determination tion.” U.S.C. § added). Against application.” the back- dealing way with ad- in such a as to avoid The entire subsection op., review, Maj. conflict with the statute. of which ministrative ante, (I at 1332. if were Even that true part, makes clear that 1255a(f)(l) is § skeptical), consequences of remain other phrase the “a determination used majority’s position the are more ominous. application” a catch-all for respecting an as instance, If, majority’s cor- the view is of aspects peti- an individual’s and all rect, 1255a(f)(3) then au- merely does not § ascertaining i.e., the of the indi- facts tion— applications thorize aliens whose have been law to applying the those vidual’s case denied to raise a to rule before Attorney requires Act the Gen- facts. The saving interpreta- the LAU and receive single of “a level adminis- eral establish majority’s reading rule. tion The appellate review of a determina- trative respecting “a an applica- determination (1).” paragraph described compels a stranger tion” far result: the added). 1255a(f)(3)(A) re- (emphasis Such § issuance of the rule itself would “a solely “upon shall based the admin- view determination,” the em- LAU would be the istrative record established at time of powered to cоnduct appel- “administrative application" determination on the the late review determination” —that [that] upon newly-discovered evidence that is, appellate va- rule’s facial the was unavailable “at time the deter- lidity. 1255a(f)(3)(A). short, In U.S.C. § 1255a(f)(3)(B) (emphasis mination.” § majority if the wants stretch the term “a added). respecting determination application” an provisions dealing None of these bar district court over the appellate review administrative makes case, present explain must the absurd insists, if, majority promul- the sense consequence of empowering an administra- gation general concerning rule eligibili- appellate tive review board to strike down ty is also construed as a Attorney regulations. General’s 1255a(f)(l). in” “determination described § majority The denies that its reading ante, Maj. op., at 1332. Certainly Con- empower the Act would the LAU to enter- gress Legalization did not envision that the regulation, tain a challenge to a be- facial (the Appeals “LAU”) Unit the INS cause the LAU can hear cases involv- would undertake administrative review of ing challenges disposition to the INS’ Attorney regulations. General’s Yet individual applications. Maj. that must if follow a is “a deter- op., ante, at 1332 n. 7. majority 1255a(f)(l), mination described in” as the § grounds argument premise on the majority insists it is. majority con- Congress entirely attached different mean- tends nothing that there is or odd unusual ings 1255a(f)(l) phrase “a determi- § about administrative rulemaking, review of application” nation respecting an and the requirement nor about a that a challenge to 1255a(f)(3)(B)phrase “the determination § LAU; a rule be raised first before the application.” 1255a(f) on 8 U.S.C. § argue that, probably while the LAU would (emphasis added). (f)(3) Yet subsection Attorney be bound regula- General’s clearly interchange- uses the two terms tions, the LAU would be ably.2 free to interpret encompass Either both terms rulé- is?. reading 1255a(f)(3) 2. A of 8 U.S.C. 1255a(f)(3)(B) (emphasis added). illustrates Congress’ interchangeable short, use of the two terms. provided for review of a deter- (3)(A) Paragraph ap- establishes administrative "respecting" application, mination an based pellate review of "a determination described the record established at the time of the deter- (1),” paragraph paragraph which is the contain- application. mination “on” the ing the "a respecting ap- term determination contends that "re- words plication adjustment status." specting" signal “on” the statute is 1255a(f)(3)(A),(f)(1) added). (emphasis Para- referring Thus, determinations. different (3)(B) graph appellate states that "[s]uck administrative majority argues, paragraph (f)(3)(A) establishes signalling by the word review”— appellate rulemaking administrative review of “such” review is of a “determination alike, adjudication and (f)(3)(B) paragraph while under respecting application" be based on —shall place only such review can take after administrative record "established at adjudication. ante, Maj. op., time of application.” 1332 n. determination on the Adminis adjudication administered Veterans’ well as making as —in reading of majority’s providing strained for veterans case tration benefits being given the dependents results LAU IRCA and their survivors” would reg- challenges to power facial 211(a) to entertain review. be immune to 38 U.S.C. § encompasses neither term ulations—or added). (emphasis preclusion That kind of which case rulemaking scope within its alia, to, obviously apply clause inter —in provision of 8 U.S.C. preclusion alleging suits Y.A. were jur- 1255a(f)(l) is no bar to district impermissible interpretation on an based major- present The over the case. isdiction Traynor statute. v. Tur a benefits ways. have it both ity cannot 535, 108 1372, 1379-80, nage, 485 U.S. S.Ct. (1988).3 IRCA, all-embracing defini- by of an 99 L.Ed.2d 618 con On the basis my trast, col- “respecting,” Congress the word did not apply tion of its exclusive wipe away general presump- leagues procedure to any review “decision of the rulemaking. reviewability tion of Attorney any question General on of law or Gardner, 387 v. See Abbott Laboratories IRCA,” fact under but to “a determi 139-41, 1507, 1510-11, U.S. 87 S.Ct. respecting an application adjust nation (1967) (preenforeement re- L.Ed.2d 681 ment of status.” available, long regulations is so as view of judicial provi- of the The location review met, are unless “there ripeness standards sion within the structure of the Act also Congress reason to persuasive believe” interpretation a more bolsters limited review); cut off National intended to 1255a(f)(l)’s intended effect. It follows Devine, Employees Treasury Union v. immediately after several subsections deal- (D.C.Cir.1984)(rejecting 117 n. 8 F.2d adjudication applications; suggestion “that a detailed scheme of ad- rulemaking general authority under which adjudication pre- impliedly ministrative challenged promul- INS preenforcement cludes review subsection, gated appears following rules”). Congress it gave Yet no indication provisions no review in it. 8 which has any such curtailment envisioned drastic 1255a(g). oth- Were the structure U.S.C. § here, although it knows excise well how to the limits on review erwise—with procedures puts its normal review when it following authorizing adjudica- the sections Thus, example, mind to it. where Con- rulemaking read- majority’s and tions gress intended to foreclose review of all —the plausible. Act ing of the would be more rulemakings adjudications Vet- sequence strongly suggests actual Administration, But the provided erans’ it that “the applications, review of individual any of the decisions Administrator on 1255a(f).4 rulemaking, question law or law is limited under fact reading a "law n. 7. Yet a common-sense ent with a federal statute other than (f)(3)(B) (f)(3)(A) together indicates that the the Veterans' Administration administered (B) providing at term refers same determination as benefits.” 108 S.Ct. 1379-80. (A) reading term does. This is underscored majority argues permitting a district 4. The the definite second the use of article in the rulemaking INS would cir- court to review an applica- reference: “the determination on the 1255a(f)(4)(B)'s pro- scope-of-review cumvent added). (emphasis juxtaposition tion.” appeals reviewing legaliza- vision. A court of phrases, coupled of the two with the use of tion denial in the course of order word "the” to indicate that the same determina- apply must an "abuse of discretion” stan- application being and the same are referred tion to, of review to the "determinations contained dard compel Congress saw no conclusion that record,” id.; majority administrative] in [the "respecting” between a difference determination rulеmaking fears that district ap- and a determination “on” permit an end that restrictive run around argument plication: phrase encompasses neither rulemak- But this relies on what standard. ing. majority distinc- even the admits is slender Supreme preclu of dis- 3. The Court there held that the tion—the difference between the "abuse inapplicable declaratory judg enunciated sion was cretion” standard the standard U.S.A., Traynor Turnage ment action in Inc. Resources not because in Chevron v. Natural Council, challenged regulations, the action it but because U.S. Defense (1984) i.e., challenged regulations being agency's those inter- as inconsist- L.Ed.2d 694 that an — History Statutory Legislative practices uniform acknowledged B. Purpose “long Supreme time” before Court eventually key questions settled about eli- ordinary Certainly meaning gibility standards. Id. 1330-31 n. permit a conclusion that text does not 1334-35. According to the majority, immunized from the normal Congress pur- was content to let the INS challenge in district court. Fur- avenues of policies many sue its chosen in as jurisdic- thermore, legislative history IRCA’s con- possible long tions as possible for as at all tains no evidence this is so: despite contrary judicial rulings. prob- contrary. quite the ingenious lem with this spends majority little time on the Congress’ intent is that can Instead, history. pro- legislative Act’s point absolutely no evidence whatsoever pounds argument. It a circular assumes in fact valued nonuniformi- (not proves) pre- intended to ty, uncertainty getting and slowness in ma- clude district court over this jor legalization questions settled. The ma- case, up packet and comes with a of its own jority merely infers intent from the Then, why. goes it reasons on to conclude fact consequences those would follow stunningly that this court cannot flout 1255a(f) preclud- were construed as §if otherwise. See by holding Congress will of ing district over this ante, Maj. 1330-32, op., at 1334-35. action. The majority’s “evidence” of con- colleagues argue my Thus that an action gressional intent on this issue nothing is seeking speedy judicial determination of but a creature of conjuring.5 its own validity an rule would defeat Congress’ imputed intent to have such de- 1. Congress’ Adoption of the House piecemeal, by made terminations different Provision on Judicial Review appeals, circuit in challenges courts of ante, orders. Maj. op., majority proffers only argument one 1330-32. Congress they legislative based on say history. IRCA’s My — —must have cared about splits colleagues that, intercircuit and say since the Senate con- nonacquiescence despite even intracircuit provision ferees abandoned a strict Senate legal its attendant uncertainties precluding non- all aspects review of all pretation ambiguous statutory language majority Congress must 5. The infers that intended upheld unless it is rulemaking go unreasonable or manifest- court-by-court review to because ly contrary statutory purpose. placed agency The ma- “it review of action in the courts jority acknowledges "may ante, is, that it appeals." well be” that Maj. op., of course, at 1334. It markedly.” the two standards "would not differ agency adju- uncontested that review of ante, Maj. op., at 1329-30 placed n. 2. exclusively dication was in the courts of appeals, incontestably says because the Act so. To the extent the abuse of discretion hand, statutory On the other whether the same Chevron, standard more deferential than action,” language applies "agency to all includ- unprecedented apply super- would be such a ing rulemaking, distinctly not clear from the question deferential standard to the of whether Moreover, text. certainty agency's regulations interests of comport with its statu- uniformity apply Davis, greater tory with much force to mandate. S. Childress & M. Cf. adjudications. review of rules than to review of § Standards (citing Review 17.2 at 335-36 regulations required The INS representing publi- were Chevron as to be the most defer- widely, broadly spectrum applicable cized ential end of the are review of Koch, discussed, large categories statutory interpretation); infra, 2 C. of aliens. As is Adminis- Congress trative supp. Law and Practice 9.13 at also established a network of commu- (1985 nity Supp.1987) (agency agencies & service rules that fill in to advise aliens about the gaps legislation judi- left in merit rules and "rather strict about their individual chances of le- scrutiny though galization. cial even it is sometimes identi- From the fact that was discretion”). willing narrow, fied as Nor has the splits of- to tolerate circuit on the any example fered fact-specific questions arising abuse-of-discretion review adjudications, agency rulemaking. I therefore think it un- it should not be inferred absent text or likely among that INS legislative history support the "de- such an inference terminations contained in [the administrative] also intended the same uncertain- record” ty to which the abuse dog validity of discretion stan- eligibility of the criteria applies. 1255a(f)(4)(B). dard U.S.C. § themselves. Indeed, there is acceded to further evidence program and understood the “determination Senate term narrowly- allowing a provision House respecting adjustment for ad- procedure review channeled adjudication. status” to mean an The Sen- unlikely the Senators it is judications, applicants ate bill had also limited independent district court permit meant to appellate re- single level of administrative Maj. rulemaking as well. See respecting view “of a final determination ante, op., rejected at 1334-35. The Sen- adjustment application for of status.” precluded review would have ate version 202(f)(4). supra, House Like the S. under or determination any “decision ultimately adopted, version such review Cong., 99th 1st Sess. S. section.” solely upon be based “the adminis- would 202(f)(1) “this section” Since record the time of the trative established at authorizing provision included that bill on the application.” determination regu- promulgate Attorney General however, provision, bill That Senate pro- necessary for the lations discussed, the one addition to earlier 202(g)(1), restriction gram, the Senate id. § bill, precluded same precluded review of clearly have this sec- “decision determination under adjudication.6 That rulemaking as well 202(f)(1). Thus, tion.” Id. when the Sen- however, quite a differ- suggests, scenario dropped comprehensive preclusion ate panel’s: when the ent conclusion agreed retain limited the more which, language agreed to House Senate involving respecting one “determination[s] face, only judicial review limited the on its application,” surely must have known respecting procedure for determinations that the abandonment would have some it must be to have applications, assumed i.e., ordinary rulemaking effect — broadly receding it was from a known that adju- continue of the review would outside one, preclusion to a much narrower worded dication format. consciously made that choice. and to have Purpose of the Review Provi- 2. Judicial history in adds to the credi-

This of fact bit sions my interpretation that bility of 1255a(f)(l) judicial outside of bars review majority legislative misreads IRCA’s proceedings only of determina- deportation First, it con- history ways. in two basic specific legalization applica- cludes, pur- surprisingly, Congress’ tions about that for pose providing so narrow a channel tions.7 Congress. report accompanying His carved out 6. S. 1200 lends the 99th amendment The Senate view, by support stating preclu- preclud- exception provision to this a draft that one any to “a determination sion attaches decision or of or determination ed review "decision respect legalization program." to the made with by Attorney sec- the General under this made tion”; S.Rep. Cong., No. 99th 1st Sess. 48 rulemaking "this included since section” added). (emphasis authority, preenforcement rules was review of Sess., Cong., 1st excluded. S. 98th scenario, competing treats In its the (f) (1983) (as reported). 301(g)(1), While Senator Cran- as crucial statement made single carving exception deportation out a for during a 1983 floor debate over an immi- ston proposed proceedings, Senator Cranston’s fatally gration ultimately reform bill that was 301(g)(1) would have other- amendment left Congress. conference in stalled in the 98th intact, explains why his remarks wise ante, at Maj. op., 1334-35. Senator Cranston preenforcement unavailability the of assumed judicial amendment to the advocated review 12,810 (text Cong.Rec. of rules. See 129 529; discussion, then under S. his amend- bill contrast, amendment). proposed By con- of “very "merely permitted]” would have ment compromise that was ulti- ference committee judicial form of review” that "would limited (fully mately into three enacted law in 1986 improper available when an been] [have remarks) years after Senator Cranston’s legalization is denial of raised as a defense in wording provision: changed preclusion proceeding already subject judi- deportation of 12,810 broadly (1983); dropped Cong.Rec. worded version the Senate review.” 129 see cial Maj. op., ante, any Contrary impres- precluding review of or determi- "decision at 1335. to the it, conveyed by majority's nation under this section” and acceded sion reference to signifi- containing re- version the “determination Senator Cranston's amendment differed cantly House provision ultimately application” language specting now at issue. enacted justment status), denied, towas afford the INS more of judicial review cert. (1978); S.Ct. L.Ed.2d 170 fending off adverse decisions leeway in Acupuncture Washington Center presumably judiciary, even at the federal of (review (D.C.Cir.) Dunlop, 543 F.2d 852 delays and of substantial dis- expense certification), denied, dеnial labor cert. legalization ruption operation of the U.S. S.Ct. 50 L.Ed.2d 78 op., ante, 1330-32, Maj. program. See enacting provision IRCA’s bar I find 1334-35. ring pre-deportation-order review of “a de- extraordinary. Congress’ purpose most respecting termination suggests opposite, My reading adjustment section,” under status primary limiting judi- reason for Congress’ 1255a(f)(l), Congress obviously U.S.C. de- prevent adjudications cial create, cided to for the IRCA uncertainty. report delays The Senate program, judicial a narrow channel for re- purpose explained follows: view of factfinding law-appli- the INS’ is concerned efforts Committee jurisdic- cation functions. The exercise made, many persons will on behalf tion over this in way case is no inconsistent ineligible who goal. with that program, delay final determina- partial While insulation of adju- the INS’ This applications. their tions of dication actions from scattershot prevent their own a logical review was means to end of expeditious operation but speed, finality, operation and the smooth program others. system, op., Maj. ante, at 1330- cf. purpose helping for the It is to 32, 1334-35, it intuitively implausible prompt reasonably insure deter- final to Congress attribute a conscious desire (f) provides minations subsection spur fight major the INS on rule will no that there review of a challenge to the bitter end in each of a or determination decision made with re- dozen circuits. The best evidence of what spect legalization program. goes exactly did op- want posite direction. 132, Traynor S.Rep. Cong., Turnage, 99th See No. 1st Sess. 48 535, 485 U.S. S.Ct. added). (emphasis above, As noted (1988) (finding L.Ed.2d judi- no bar IRCA enacted retreated as from the total cial review of certain decisions of the Vet- preclusion of Senate version. Administration, erans’ noting “[p]er- does, however, report The Senate illustrate mitting go these cases to forward will not underlying purpose Congress’ true purposes undermine the review-pre- of” the decision to restrict review. clusion provision). As the majority itself legislative language and history of acknowledges, a suit such as this one di- Congress IRCA what really indicate that rectly challenging by INS rules is far the by preclusion intended section was to superior vehicle to achieve a swift and deci- flooding foreclose aliens from the courts sive resolution of the law nationwide with- with seeking premature suits review of in- out the need for ultimate settlements of applications i.e., dividual review of the — intercircuit conflict the Supreme Court INS’ of determination the facts of each itself, followed reopening of thousands case of and law those of in appeals the courts whose views are deportation facts hearings before were con- rejected. Maj. ante, op., at 1330-32. My Congress legislated against cluded. a 1255a(f) of allowing as di- background in which individual aliens were rules, rect coupled review of with limited permitted bring often actions district judicial review of adjudications, individual long before the start of is the most consistent of court— method accom- proceedings seeking declaratory or in- plishing Congress clearly what intended. — junctive relief to redress disposi- the INS’ 3. Purpose Legalizаtion of Program tion applications of their peti- various and Generally immigration tions See, under the laws. e.g., Director, Navarro v. District 574 F.2d fails also to consider the 379, (7th Cir.) (review of provisions denial of ad- in the context of large majority ap- It reduces had to attract a legalization scheme. of the the entire merely “part proximately legalization program illegal of one million esti- 132, necessary eligible. S.Rep. legislative compromise” to en- mated be No. a See (estimate at gineer passage goal supra, proposed the statute's main on of based date, penalizing employers illegal who hire 1980 cutoff rather -than 1982 date IRCA). end, majority adopted Thus—the To Congress aliens. Id. at 1326. likely “generous a argues Congress program” intended that would — “implemented about individual alien’s generous worried fear and liberal coming forward order to fashion” to “ensure true resolution of the denying eligibility problem an invalid INS rule him ensure program ... deportation. be a one-time-onlyprogram.” would entail risk See id. H.R. [would] 682, 1, 49, Rep. pt. 72, 1345-46. No. supra, at U.S. Cong. Code & pp. Admin.News colleagues’ My legaliza- dismissal of the component inaccurate, of the bill is as reading history will Congress naturally recognized careful show. il legal saw one initially suspicious aliens would components immigration any amnesty central program. plethora reform. A of wit H.R.Rep. so, pt. Cong., See No. 99th 2d told if they nesses them had not known Cong. already. See, Sess. 49 U.S.Code & Admin. e.g., Immigration Reform 1986, p. (legalization News is “an es- on Hearings Control Act: H.R. 1510 immigration part leg- sential reform the Subcomm. on Immigration, Before islation”). Legalization always had Refugees been a and International Law (along employer critical feature sanc- House Comm. Judiciary, on the 98th control) improved tions Cong., (1983) (statement of immi- border 1st Sess. gration proposals DeHaan, reform advanced of Dale American Council for Vol Ford, Reagan Agencies); 844-45, Carter and untary administrations id. at 855-56 (statement by Congress Huerta, debated for over a decade. of John Mexican Ameri S.Rep. Cong., Fund). No. 99th Legal 1st Sess. can Defense and Education (1985); H.R.Rep. 20-24 pt. No. apply part su- Because failure 53-56; pra, at (employer significant see also id. at 103 number of aliens could defeat bill, sanctions and major purpose “core took Reagan special elements” steps encourage apprehensive administration program) (quoting Attorney General Edwin aliens to come out the shadows and Meese, III). Legalization apply was motivated in for an adjustment of status. It re part by the long-standing belief that quired Attorney resi- the to widely General dis it,8 dent aliens deserved but there were seminate information about the pragmatic First, more program requirements concerns as well. and the for obtain legalization would enable the INS to ing adjustment focus status. illegal entry 1255a(i); 1000, resources on the H.R.Conf.Rep. of new No. 99th § aliens, thereby giving the Cong., Congress United States 2d Sess. 93 also

more “enforcement its dollar.” S.Rep. Attorney told the to General name as 132, 16; supra, No. H.R.Rep. at “qualified designated (“QDEs”) see No. entities” 682, 1, Second, pt. supra, 49. legaliza- community at organizations with whom the illegal would “eliminаte the subclass aliens had friendly relations to advise and present society,” now in our whose mem- preparation assist them in of applica the bargaining position bers’ weak (stemming 1255a(c)(2). QDE tions. Id. A could for status) illegal from their eroding application U.S. ward Attorney Gener wages working and S.Rep. conditions. only No. al if applicant authorized the to do 16; supra, so, at H.R.Rep. pt. 1255a(c)(3), see No. id. and impor even more 1, supra, at tant, 49. To be effective those Attorney the General and the INS goals, however, legalization program the QDE could not obtain access to alien’s See, e.g., H.R.Rep. pt. supra, No. at 49. work, program literally hun- consent. Id. For the to that alien’s

file without had QDEs of thousands of aliens to be to be honest dreds 1255a(c)(4). The were find to come if If induced forward out suspicious aliens. counselors eligible during they period. were that brief she was not seeking help their found alien They to the given had be correct informa- automatically be would not eligible, she legalization requirements if the tion about reported the INS. to apply. By pro- maximum number were mea- unusual fashioned such Congress QDEs, viding for a network expressed response legislators’ sures permit unsure of sta- meant to aliens their participation a “low rate of about concern step tentatively, obtain ac- tus forward eligible candidates.” among the legali- about curate and confidential advice distrust part of reason is At least zation, only decide whether to then understanding lack authority and to the INS. submit population. undocumented among scheme, light carefully crafted of this working hopes The Committee majority’s reading of 8 tortured U.S.C. At- voluntary agencies, the through the 1255a(f)(l) deny any avenue for chal- might to encour- torney General be able lenging restricting eligibility ex- rules among undocumented age participation cept through applications individual aliens’ coming fear forward.... who aliens illegal told is untenable. An alien that he confidentiality of the records [of ineligible regulations is under INS must applicants QDEs] meant assure may decide which be unautho- serious, process step appli- rized and to submit his forward ruse to invite undocumented not a anyway cation and become test-case. only by the snared come forward be just courageous And not act one INS. required; wishing all aliens would 682, pt. 1, supra, at 73. See H.R.Rep. No. ruling themselves avail benefits at S.Rep. supra, No. U.S.Code also against applica- must submit (QDEs p. Cong. Admin.News & They tions to INS. would al- provision applicants “to aims assure wait on until lowed to the sidelines the first may apply to such entities without they case came test to closure since window applications for- fearing that their will be long period was 12 months to the INS even if the view of warded applications review of the first wave qualify legali- do not such entities certainly place almost not take until zation”). Simpson, IRCA's main Senator long period had lapsed. after 12-month Senate, sponsor acknowledged Although the majority dismisses aliens’ could it were program work if being understandable fear of the INS widely publicized way such a as to over- ante, Maj. op., “inherent in position,” their speech natural In a come aliens’ distrust. fact is that made one urging adoption floor Senate purposes of IRCA’s chief the diminution of version, he stated: Conference expressly A Congress that fear. desirous they legalize they So when will have to seeing accurately of that aliens are advised know, out, call goes as that that this eligibility of their for existent, legalization period is hardly the majority choose the course must come forward because this is the Certainly presumptuous stakes out. call, call. This the first and the last scheme, impute Congress such as call, a one-shot last deal. Come on out. does, it runs when counter to church. your trying We are not Go sent, signals Congress actually all time. you this fool yields a harvest of distrust and subverts 17, Cong.Rec. (daily 132 S16888 ed. Oct. major goals the Act. It infi- of makes 1986). nitely more to assume that in sense provided bar, then for a one-time- any specific of absence only legalization program keep place ordinary with a 12-month meant to ave- period for filing applications. eligibility regula- “window” nues of direct for review misinterpretations provisions egregious judicial review tions so that IRCA. quickly Nelson, 713, all aliens in could corrected for See Doe v. 703 F.Supp. be 720-22 period (N.D.Ill.1988); jurisdictions all the 12-month Immigration before Assistance applications out. That intent was INS, C88-379R, for ran slip v. Project op. No. at court’s restricted at the base district (W.D. 2, 1988); 10-11 Wash. Nov. Haitian 1255a(f)(l), agree and I interpretation of Nelson, 864, § Refugee F.Supp. Center v. with it. (S.D.Fla.1988); INS, 873-74 Zambrano v. S-88-455, op. (E.D.Cal. Aug. No. at slip 6-7 C. Prior Cases 9, 1988). majority’s reading flamboyant majority evidently believes that 1255a(f) step is also out of with the rul- § misinterpreted these all courts have § ings other federal It is courts. at odds IRCA, of the INA and 1255a of and cites § with three sister circuits’ support other cases in of its restrictive INA, governs 106 of the review of approach INS, to both sections: v. Foti deportation IRCA’s orders. review 217, 306, U.S. 84 S.Ct. 11 L.Ed.2d 281 provision legalization applica- denials Chadha, 919, and INS v. requires place take tions 103 S.Ct. 77 L.Ed.2d 317 In deportation course Foti, appearing deportation an alien at a turn, proceedings. Section has its hearing deportability conceded his and re- procedure own “sole and exclusive for [] quested discretionary relief, in the form of of all final orders of suspension of deportation, which was de- 1105a(a), deportation,” 8 U.S.C. “[a]n He granted right nied. was to volun- deportation order of or of exclusion shall tary departure at his own expense, but that by any not be reviewed if the court alien grant coupled contingent with a depor- was has not exhausted the administrative reme- directing deported tation order that he if 1105a(e). dies available to him.” Id. § depart he voluntarily failed within the Notwithstanding language, three cir- prescribed time. 375 U.S. at 219 n. challenges cuit courts have held that S.Ct. at n. 1. The Court held that policy official INS in the form of —whether suspension deporta- review of denial of regulations or of an officially approved pro within appeals’ fell the court of exclu- gram, pattern or scheme immi followed jurisdiction sive under since the stat- gration approved by officials and those in utory deportation” term “final orders of charge directly attacked in a dis —can “all during included determinations made proceeding trict brought against proceed- and incident to the administrative agency. See Director, Salehi v. District special inquiry conducted office (10th Cir.1986) (chal 796 F.2d together reviewable the Board of lenge validity and to the Immigration Appeals.” Id. at denying INS’ of them in plain Chadha, granted an alien was applications asylum); tiffs’ Jean Nel suspension but House of son, (11th Cir.1984) 727 F.2d 979-81 Representatives suspension; (en banc) vetoed the (challenge policy to an INS deported. alien then ordered detaining pending disposition of their petitions Court held that asylum, alien’s constitutional being as discriminato challenge to ry authorizing the statute having adopted been without comment), notice one-house veto within fell aff'd, 472 U.S. 2992, of (1985) (ex appeals

105 the court of S.Ct. 86 L.Ed.2d under 106. The 664 § pressing jurisdictional issues); no view Court held that term on “the ‘final orders’ in Smith, 106(a) Refugee Haitian Center v. ‘includes all matters on which the 676 § 1023, (5th F.2d Cir.1982) 1033 of (challenge validity the final order contingent, is an alleged program unlawfully of dis rather than those determinations actu- ” criminatory of petitions treatment ally hearing.’ Haitians’ made at the 462 U.S. at asylum). for 937-38, Four district courts have al 103 (quoting S.Ct. at 2777 INS v. ready logic 408, extended the of Chadha, (9th those Cir.1980)). cases to 634 F.2d 423

1358 Chadha, precedent any proposition ‍‌​​‌​​‌‌​‌​​​‌‌​​‌‌‌​‌​​‌​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌​‌‍circuit for the seek- the alien

In both Foti challenging regula- subject a suit a review was 106 bars appeals § of court agency-wide practice of or or outstanding deportation. final order 1, n. and at one Foti, grounds, n. 84 S.Ct. at 308 least at 219 constitutional 928, sum, In goes way. at 103 S.Ct. at none of 1; Chadha, 462 U.S. case the other primarily seeking Thus, panel’s were citations offers both 106 case § final of de- meaningful my colleagues’ of in- “judicial support for order[] [a] 1105a(a). The 1255a(f)(l). Su- portation.” terpretation of § § held that an alien predictably preme Court analogizes also this case to deporta- order to a subject who is of final 104 Ringer, Heckler v. U.S. S.Ct. matters on which the challenge all tion can (1984), involving ap- 80 L.Ed.2d 622 is contingent order validity that final of Act. peals Medicare In that under the 106; order under those his appeal of case, plaintiff Ringer sued in district court “included” or “encom- other matters are invalidating declaratory judgment for a a the term “final passed” within order[].” ruling Secretary of Health Hu- different, however, a quite This is precluded man Services that Medicare reim- no can holding under circumstances surgical particular proce- bursement for a presumably even the consti- legality, or “any arising claim dure. Judicial review of policies tutionality, of INS under” the Medicare Act is available challenged directly outside the undergoes procedure, a after claimant Supreme procedure. The Court did not payment exhausts seeks administrative in either any view Foti or Chadha intimate Ringer, undergo remedies. who wished to exclusivity as to feature whether procedure could but said he not do so only to the depor- not actual 106 attaches repayment, argued without assurance itself, but also matters process tation yet that he have a “claim” and so did not might conceivably individual which the requirement did apply the exhaustion deportation proceeding. raise in such rеjected him. Supreme Ring- Court presently are on the circuits divided arguments, holding er’s that he was “clear- yet issue; has not ours chosen sides. right ly seeking to future establish INS, v. Compare Jaa F.2d payments ultimately should he decide to (9th Cir.1986)(denial application for ad proceed” surgery, with the and that his justment of status reviewable in district arising lawsuit therefore a “claim un- court) Nelson, Kashani 793 F.2d meaning der” the Act Medicare within (7th Cir.) (denial application 826-27 provision. jurisdiction-preclusion asylum not reviewable district 466 U.S. at 104 S.Ct. at 2024. The proceeding), but renewed must be IRCA, majority contends that like Medi- denied, t. U.S. cer S.Ct. care, provides only one defined channel (1986). Compare L.Ed.2d 701 case, review—in this Employees Hotel Restaurant Lo & Union that all other fronts —and Smith, (D.C. cal 846 F.2d 25 v. agency policy prohibited. attack on If Cir.1988) (en banc) court) (equally divided Ringer’s challenge arising was a “claim (exhaustion requirement of 106 does Act, under” the majority the Medicare be- apply challenge “general to the INS’ lieves, present “judi- action then seeks processing [asylum] framework for entire cial respecting review of a determination applications”) J.) (opinion Mikva, with id. application” legalization. (stating, deciding, without 1518-19 “it a denial likely asylum Ringer presents very of course differ- APA”) appealable (opinion under the ent fact very of Sil- situation and arises under a berman, J.). short, this court has not different than statute IRCA. The Court yet decided whether an held that Ringer’s namely, individual alien cause of action— direct, bring could district court the Secretary’s ruling barring reim- asylum to a adjust procedure denial or denial of medical bursement for a certain status; moreover, ment is there no was invalid under the Medicare Act—con- processing the Act for arising orderly anticipated stituted a “claim under” the pursued Ringer every year; and must be as such. millions of pur- claims for that cannot, however, of its pose, be stretched out up requires it “set a scheme that the say shape claim here—that own to presentation aof concrete claim to the Sec- the INS’ are under eligibility rules invalid retary.” Ringer, 466 U.S. at seeking “judicial IRCA—is an action re- Act, at 2027. The according Medicare to respecting ap- view of a determination Court, Ringer the balancing was intent on plication” legalization. for Unlike the hardship by the individual caused uncer- Act, attempts Medicare IRCA nowhere to tainty as reimbursability “against to the prescribe define and method potential overly for premature casual or arising for all “claims under” the Act. In- judicial intervention in an administrative deed, discussed, Congress rejected as we a system processes literally millions of proposal just Senate that would have done every year.” claims 104 S.Ct. at Congress merely that. IRCA laid down Congress’ foci in the two Acts was procedure single uniform for re- very encourage different: IRCA to appli- respecting ap- of “a view determination cations, regulate in Medicare to their flow. legalization. plication” “ap- for The word very The dissimilar circumstances of the plication” as used in IRCA denotes the Here, two point. lawsuits illustrate this written document that filed alien. QDEs seeking are to redress harm nothing similarly IRCA said at all about obligation caused them in their statutory to regulating challenges other kinds of to provide accurate information providing Far actions. from mod- legalization requirements by about construed, el how for IRCA should be government’s regulations. misconceived Medicare Act illustrates organizations These cannot themselves file comprehensive juris- knows how to draft a applications adjustment status, for so diction-preclusion provision it when wants their bring redress is to an action to. challenging in district background purposes two Ringer, hand, court. on the other Acts, moreover, dispar- could be not more seeking guarantee an advance that his la- Congress, enacting IRCA, ate. up set ter “claim” for oper- reimbursement for an finite-period program one-shot crash to le- ation would There be successful. is no galize undocumented aliens. It was intent QDEs parallel. submitting are not making sure those undocumented aliens request for approval “appli- advance would not be filing legal- deterred from cation”; they suing stop INS rules; ization due uncertainty about the acting way in a as to hinder so their QDEs it created the that purpose purpose disseminating basic accurate in- mandated that accurate information about legalization program formation about program broadly In disseminated. encouraging eligible applicants all IRCA, encouraged aliens were to come for- apply. majority’s analogy asserted ward aon confidential basis obtain ad- statutory Ringer inapposite. The text in vice eligibility about from the different; the two cases is QDEs; only then need decide whether different; purposes schemes are present legalization. a concrete claim for regulating judicial two laws in review are uniformity To the extent interpreta- altogether different. The strives eligibility requirements tion of prompt mightily squeeze elephant into the correction of erroneous administrative rul- proverbial phone booth, ultimately but it ings can achieved direct re- fails. key regulations, view of Congress’ aim enhanced, Indeed, will be denigrated. Supreme In interpret Court case Act, contrast, Medicare recently the Medicare Act more had no than applicants reason to fear points up would not file Heckler v. best Ringer major reimbursement; fact, claims ity’s logic in interpreting strained sought to permanent 1255a(f)(1). establish a scheme Michigan Bowen v.

1360 676, 106 at 2138-2139. 476 U.S. 476 U.S. at S.Ct. Family Physicians, Academy of distinguished Ringer as a case 2133, The Court 623 90 L.Ed.2d seeking of an determina- review amount family physicians and organization an of tion, 7,n. 2139- id. at 677-78 106 S.Ct. at filed suit physicians several individual argument rejected 2140 n. Hu- challenging a Health and district court floodgates ruling open would regulation autho- Department man Services litigation. B” “part Medicare payment of rizing the for similar of amounts in different amounts Unlike the determinations benefits benefits, government ar- which such The the method physicians’ services. ordinarily af- jurisdic- court lacked amounts are determined gued that the district tion, money im- fects and thus dif- contending Act vast sums that Medicare qualitatively “quite any fers from the minor judicial forecloses review pliedly matters” con- review which part B of the Medicare аction taken under hearings by fined to carriers. addi- program, it fails authorize because out, tion, pointed as ju one commentator simultaneously authorizing review while “permitting partic- ... a as “any determination ... [of] dicial review ular or administrative standard part under the amount of benefits ... costly ... would not result in a flood of 2137 at at A.” 476 U.S. S.Ct. litigation, validity of a stan- because the (1982 1395ff(b)(1)(C) (quoting 42 U.S.C. § established, readily dard can be at times ed., II)). government point Supp. also single even in a case.” pri Act provision requiring ed to a B furnishing part vate insurance carriers at 680-81 n. 106 S.Ct. at 2140-41 hear coverage to afford claimants a “fair Note, (emphasis original) (quoting n. ing” challenge claimant’s to “the on (1984)). 97 Harv.L.Rev. B, payments” part amount of ... under but Michigan Academy Family Bowen v. making provision no Physicians majority’s demolishes the broad hearings. those fair reading of the IRCA term “determination 1395u(b)(3)(C). respecting application.” U.S.C. 1255a(f)(l). Application panel’s of this rejected Supreme govern- Court logic Michigan Academy case would holding arguments, that the district ment’s degrees opposed dictate result 180 to that jurisdiction over plaintiffs’ court had Supreme major- reached Court. The regulation. to the reimbursement ity here argues is a “de- provisions de- Court reasoned respecting application” termination be- tailing how and in what forum an individu- it on impacts cause the outcome of future al can of a obtain review determination applications. Maj. op., on determinations A parts the amount of benefits under ante, logic at 1331. That same would have “simply speak challenges and B [do] required Supreme Court deem against mounted the method which such regulation in Michigan Academy HHS amounts are to be determined than rather determination” “amount because the determinations themselves.” 476 U.S. surely impact on future at (emphasis origi- 106 S.Ct. at 2138 determinations; Supreme amount nal). Court, however, refused to do so. validity regula- attack [A]n tion is not kind of Michigan Academy administrative also shows the limit- action we described in ed applicability Ringer Heckler v. [United Erika, Inc., holding, States U.S. on which Af- relies. S.Ct. L.Ed.2d as an Academy, proposition ter Michigan ] is, most, “amount determination” Ringer which decides stands amount of payment “the the Medicare individual Medicare fol- claimants must particular made on claim” statutory path and with low the narrow limited respect to which impliedly the Act denies administrative and review rather judicial review. challenge regulations than in federal dis- Michigan Academy found that has Michigan Academy Ring- trict court. knocked its simply do er out of the provisions the narrow review not box.

apply organization physicians an of bringing facial in district court. a Ripeness III. logic prevail A in this similar should case: organiza just Academy Alternatively, majority as the the Michigan rules policy yet on challenging tion was not an “amount deter INS cases was not § mination,” organizations bringing ripe review; the this finalized so as to be for be- seeking of still only lawsuit are not review “a deter cause it reflected decisions Thus, application.” lower respecting agency yet mination level officials and had not logic Ringer approved adopted top even if the were to been policy- dictate or at level, making bring that aliens could not it not an “agency individual action” directly meaning within the challenging action in district court of the Administrative Act, regulations 551(13), in challenged INS the Procedure 5 U.S.C. not “fi- § present proposition meaning APA, in itself nal” within the case—a dubi of the id. “ripe” Michigan Academy purposes ous makes clear be and not for of the § 9— yond peradventure logic test Ringer’s that is no familiar enunciated in Abbott Labora- Gardner, challenge brought by bar to a alien-assist tories v. U.S. (like physicians organizations

ance who 18 L.Ed.2d 681 I disagree. Academy) in never Michigan will have My colleagues begin analysis by their being processed capable through claims pointing “acquiesced out INS procedure. the standard interpretation” district court’s of 8 Finally, Michigan adopts 1255a(a)(2)(B) Academy majority a U.S.C. § —which pragmatic interpretation paraphrases holding of a narrow statu- “that ‘known tory judicial focusing scheme Government’ nonimmigrant meant that a —in Con- way panel a qualified has failed to—on legalization for if he could show gress’ purpose limiting judicial government review. the federal as a whole had Michigan Academy recognized illegal Court documentation that established his challenges distinction to agency op., ante, between status Maj. before 1982.” at determinations on applications, 1255a(a)(2)(B)). individual 1341 (quoting 8 U.S.C. § hand, challenges the one say acquiescing in the But— court’s —after validity regulation establishing interpretation, the INS fo- never method cases, such determinations do will cused on what to about made, present case, on the other. In government’s knowledge which the just Michigan as in Academy, permitting alien’s unlawful status must derive from direct regulation document, review of a required absence rather “would result in costly presence document, not flood of litiga- than the tion, validity because the of a standard alien’s files. can Evidence that field some INS established, readily personnel position times even in a took the 265 vio- single case.” 476 U.S. at n. eligible 680-81 106 lators were not S.Ct. at 2140-41 even acquiescence n. after the INS’ 11.10 majority’s quest Supreme support Court for its district court’s reading 1255a(f)(1) 1255a(a)(2)(B) U.S.C. is doomed: sufficient to show above, Ringer preclusion As discussed circumscribe review of deci- challenges brought by rule applied regulations individual Medicare sions that issued, whatever transplanted readily claimants cannot be IRCA, into and at same time to allow APA jurisdiction-preclusion provision challenges whose almost arising does all not bar "claims under” op., IRCAbut Maj. district court of the United States.” seeking ante, however, instead all bars suits Michigan review "a deter- Academy, at 1333. respecting application." supra mination does shows sometimes intend p. 1359. (or foreclose) judicial circumscribe review of case-by-case application permit- while rules 10. ting challenges states: “It seems inconceivable district court to the rules them- closely would have wished ... selves. invali- decision Sporkin’s March on the issue. action any final because dated that statement, rule, view, policy their narrowly as lim- too defined “Government” position in a de- litigation perhaps official INS, it con- but also because ited to the a chal- make proceeding would portation overly definition of the restrictive tained ripe. lenge the INS must have sort of information in the trial the record reading of My “knowledge]” files to constitute its own imple- the was me that INS convinces pro- the “known to the Government” under refusing legal- policy of menting an official logic language The vision IRCA.12 it had even after 265 violators ization to § April 6 Judge Sporkin’s March 30 and “known to judge’s the trial acquiesced in drop regu- rulings compelled the INS to ruling, and so the the Government” § against legalizing policy lation-based § that ripe for review. I find aliens,13 was yet at some INS officials least agency interpreting in an other- persisted was embodied his order policy such a result, plaintiffs sought 245a.l(d).11 Judge wise.14 As regulation, 8 C.F.R. § Judge Sporkin’s qualifi- order stated without regulation provided circum- for four 11. 13. regulation contrary “I declare INS’ to status cation: an alien’s unlawful in which stances law,” and, again qualification, without it en- to have been "known be considered "any joined possi- the INS from further the four can None of the Government.” F.Supp. regulation." order at 666. The The four bly 265 violators. § be read to include regulation’s on the narrow was based categories are as follows: of "Government” but also on its nar- definition (1) received factual information The [INS] "knowledge].’’ Id. at 664. row definition of constituting nonim- a violation of the alien's Thus, entirety the the court invalidated in its any agency, bureau or migrant from status policy concerning regulation on which the INS’s thereof, department, subdivision of the or was 265 aliens based. § government, and such information Federal Judge Sporkin’s Supplemental April Order of otherwise recorded in the offi- was stored or regulation’s clarified that the invalidi- 6 further file.... In order to meet Service alien cial part ty its narrow definition stemmed in from constituting of “information the standard Id. at 666-67. That order stated of "known.” status,” nonimmigrant of the alien's violation an alien’s unlawful status was "known made a clear or must have statement the alien documentation the Government” if that alien’s agency, the other federal bu- declaration to agencies, government "taken as in one or more department that he she was in or reau or finding a whole would warrant status; nonimmigrant or violation of nonimmigrant alien's status in the United States (2) was made An affirmative determination was unlawful.” Id. at 666. 1, 1982, prior January the Service subject deportation proceed- the alien plaintiffs report- 14. Affidavits submitted ings....; personnel telling of front-line INS ed instances (3) response by copyA the Service to applications would be 265 aliens that their § partic- which advised that a other Moreover, a wire for denial. recommended legal status in the United ular alien had no by the Associate Commissioner of the INS sent or for whom no record could States 13, 1988, paraphrased April QDEs to all foundf; or] way ruling in such a as to fore- district court’s applicant produces documentation quoting After close of 265 aliens. approved foreign to enroll stu- a school order, language Judge Sporkin’s April 6 ... which establishes that the said dents must be able to the wire stated: violation “[T]he report to the Service a school forwarded clearly submitted to Federal be inducеd from evidence applicant had violated indicated January agencies only, prior 1982.” nonimmigrant prior his or her status to Janu- added). (emphasis Appendix ("App.”) at 88 ary 1982. Thus, order referred to "docu- while the court’s 1(d). 8 C.F.R. 245a. whole,” F.Supp. at taken as a mentation encompass the absence of which would Wholly apart from its discussion of the INS’ submitted, top never official of documents “Government,” interpretation Judge Sporkin’s encompass interpreted INS the order not regulation’s provi- March 30 order criticized the aliens. § 265 concerning what must be contained in sions Meese, Ayuda F.Supp. Additionally, INS files. See counsel for the INS voiced the (D.D.C.1988)(opining aspects April interpretation that those 664-65 of the March 30 and same Transcript operate “are narrow of the the district court. orders before claims," Call, prevent (plaintiffs’ practice April some valid and elab- Status at 20 arguments concerning orating unlikely 265 violators do not on bow it would be for an alien "known”). "comport Court’s order that there be INS' with the to meet the definition of legal Sporkin against regula- “concrete” claim Judge subse- received from V) tion’s term quent (Supplemental Order court order (“Their ante, at 1342 clarifying were covered Maj. op., “known.” only specific argument, far so as we can logic ruling his and that earlier tell, was that must mean ‘Government’ accordingly.15 must act merely entire federal Government and not circumstances, along the ex- These INS.”). This is fallacious. com- plaintiffs’ urgency plight treme plaint challenged the definition INS’ (aliens literally days had two left to file then allege “Government” and went on to ruling), applications at the time the se- restrict the “[t]he further verely majority’s ripeness the ar- undercut statutory provision by specifically enumer- guments. insistence that the cited Their ating the limited circumstances under actions scattered INS officials discour- which the INS is deemed know of an aging filing in 265 violators from the § Complaint, alien’s unlawful status.” App. following ruling the weeks March 30 did added). (emphasis Quite plainly, 35 the agency not final is beside constitute action complaint assuming asserted that even the point: original regulation, 8 the it was the INS must know of the alien’s unlawful 245a.l(d), ap- C.F.R. not the scattershot § status, regulation the “known” defined in plication of it March that consti- after impermissibly narrow fashion. The Supplemental agency tuted final action. complaint’s relief, prayer moreover, re- V, Order the clarifying the quested the establishment broad evi- violators, simply earlier order to 265 reit- § dentiary standard: an alien would meet the regulation erated entire had been test whenever federal “has or merely aspect struck of it down—not that, separately evidence had or in combi- solely which defined “Government” as the nation, shows that such alien had violated INS, portion defining but also the what nonimmigrant his or her prior status kind information constituted January App. Complaint, 1982.” “knowledge].” Judge Sporkin When be- Clearly, plaintiffs sought the invalida- came continuing aware that the INS 245a.l(d) whole, tion of 8 C.F.R. as a § policy follow the embodied just as it defined “Government.” For the down, already he had struck and that the majority to assert that aon miscon- proceeding” was on the one issue rather focus of the “[t]he doing INS was so in reliance prior rulings, struction of his he was war- than other is a weak retort to issuing ranted in clarifying new order record; reality wrong: it is rulings already what his other had stated: complaint theory advanced that included 245a.l(d) that 8 C.F.R. was invalid both § 265s, opinion adopted the district court’s § interpretation in its of “Government” and it; post-hoc this court cannot wish out of in its of “known.” existence. (even contends assum- however, The majority argues, that even ing original 1(d) 8 C.F.R. 254a. did plaintiffs initially challenged if the § had 8 aliens) appellees’ original exclude 265 245a.l(d) C.F.R. on the of its § basis inter- § “known,” complaint in pretation district court contained no yet the INS had not Supplemental Appendix documents in the in a file ("Supp.App.”) Government show- 12at & n. file residence”) added). (emphasis ("Now unlawful policy judicially that the INS has been rejected remaining there is no valid ... reason (who plaintiffs adopted arguments 15. The denials.”). agency’s putative inter- by organizations advanced several other plaintiffs sought venors and an order com- present tried without success to intervene pelling comply the district case) styled arguments contending their id. at 8, or, rulings, court’s other 16 n. April the March 30 and 6 orders their terms alternative, modifying logic already order the earlier rul- reached the issue § 265 favor; they ings sought eligible resolved it in their therefore to indicate that were necessary. enforcement legalization. Judge Sporkin’s and clarification if at 16 n. 8. Sup- Memorandum of Points and Authorities Supplemental essentially V Order did the latter. port Compel Compli- of Intervenors’ Motion F.Supp. at 668-69. Modify Injunction, ance and/or Permanent (2) injury that Maj. actual or threatened some on the issue. position taken a challenged traced to the ac- fairly can be This is contradict ante, 1342-1345. op., (3) likely by a to be redressed tion and of 8 C.F.R. plain terms by the ed decision. National favorable 11. The 245a.1(d) supra note See itself. Wildlife Hodel, F.2d v. Federation 265 violat face excludes regulation on (D.C.Cir.1988). Additionally, there is the program. Given from the ors requirement that the asserted prudential regulation, it cannot be clarity in- injury “arguably within the zone of yet fit for here is not the issue argued that protected regulated the law terests Abbott Laboratories judicial decision. complaint Ac- which the is founded.” 136, 149-52, Gardner, v. Heck- Alliance Citizens Senior 1507, 1515-16, 18 L.Ed.2d 681 (D.C.Cir.1986). ler, 789 F.2d where review available (preenforcement clear-cut,” present regulations are organizations allege “[t]he plaintiff These did issue, and constitute “purely legal” ing a injury organizational their ac- concrete and definitive state agency’s formal tivities, promulgation of caused the INS’ Eagle-Picher Industries policy); ment of 245a.l(d), by the and redressable 8 C.F.R. § 905, n. EPA, 917-18 & 68 759 F.2d regulation. invalidation of that court’s (“the (D.C.Cir.1985) validity of a rule can allegations Their fall into three broad cate- or not it has ripe for review whether (1) ability provide ac- gories: that their to improperly applied and en- actually been concerning legalization curate information setting”). concrete factual forced requirements impaired has eligibility been arguments short, majority’s ripeness legal generated by the by the confusion formal, IRCA, the INS hаd a ignore the fact that alleged INS’ misconstruction and at least policy 20; (2) on 265 violators Complaint, App. final that their funda- § pursue assisting continued to organizational purpose some of its officers mental misconstruing the district policy after of the benefits of aliens to avail themselves challenged ruling striking directly down the harmed legalization court’s has been Only regula- regulation. a fundamental mis- because those INS’ procedural history organizations’ deterred the reading of the tions have filing applications, Complaint, finding 265 clients from case can sustain § 21-23;16 (3) had to App. and ripe issue review. was significant devote resources to counteract allegedly the effects of the INS’ unlawful Standing IV. the Plaintiff App. interpretation. Complaint, 23. Organizations allegations especially the latter These — Although does not base its indistinguishable allega- from the two—are standing negative grounds, outcome on convey tions held to be sufficient to stand- standing plaintiffs’ intimate that the does ing plaintiff organizations in on the Havens in this case is doubtful. Since I find no Coleman, Realty Corp. v. jurisdiction, and since the bar 71 L.Ed.2d 214 issue, standing I government raised There, plaintiff it was sufficient that the briefly. must discuss it organization, purpose help whose was buy plaintiff challenging agency housing, A action in minorities available was frus- must, purpose by illegal in order meet the in that “racial federal court trated standing, steering” practices consequently III Article test demonstrate and had original complaint orga- significantly directly harmed and 16. stated that one frustrated regulations." potential App. nization’s clients had been “deterred the INS’ invalid 21-22. (another filing” App. organizational plain- because of the INS' See also App. complaint goals purposes 21. The of IRCA. stated that tiff’s "fundamental of assist- organization’s counseling youth legali- cam- "extensive Latino to obtain benefits of Ethiopians significantly paign to assist other nationali- zation under IRCA have thus been legali- directly ties to avail themselves of the benefits of harmed and frustrated the INS’ IRCA, zation under which is one of its funda- misconstruction of the 'known to the Govern- organizational purposes, requirement"). mental has thus been ment' i.e., his or her unexcused failure to file the significant resources counter- to devote reports practices. quarterly required by 265. 687 effects of those act the § is, F.Supp. 378-79, 1124. This case at 668. The district court held that 102 S.Ct. at respects, required identical Havens the absence document in all material government “knowledge]” file confers Realty. government. also The interests at stake in case satisfy prudential “zone interests” INA, prior Under 265 of the to Janu- complaint alleged requirement. ary nonimmigrant alien was re- 245a.l(d) made it more difficult C.F.R. quired stating to file a document his cur- eligible under months, aliens every long rent three so address statutory right their IRCA to exercise States, he remained the United re- legalization, organiza- obtain and that the gardless changed. of whether his address helping tions’ interest in obtain (amended as of Dec. 21- thereby injured. App. 97-116, No. Pub.L. 95 Stat. Congress clearly 22. had in mind the inter- 1617). quarterly Failure to file such re- organizations, like ests of alien-assistance ports living in while the United States ren- here, designed and plaintiffs when it nonimmigrant’s dered a status unlawful. Alliance, 789 adopted IRCA. Action Moreover, notify an alien the Attor- had 939-40 F.2d at n. ney ten days General within of “each recognized but indeed institutionalized change address,” id., of address and new if organizations’ ability itself the Act those departed he to live in United States legal legaliza- about render accurate advice Thus, country. another the alien’s INS file Congress’ requirements. tion Given ex- to quarterly would have contain either a recognition by press key played of the role report period for each three-month or a organizations, orga- alien-assistance the change-of-address report indicating that squarely with- nizations’ own interests fall the alien left the United States and had protected by IRCA. zone interests exempt quarterly therefore was from the held, matter, general Action Alliance as a report Consequently, requirement. as of organizational “pro- that such interests as January 1, the INS was able to deter- knowledge, enjoyment, motion of the nonimmigrant’s file, by mine from INS a rights protection by of the stat- created a quarterly reports, the whether absence securely ute are within the ‘zone of inter- alien 265. the was violation of § protected ests’ by statute.” Action When term “the used the Alliance, 789 F.2d at 939. The interests of alien’s unlawful status was known to the organizational plaintiffs the in this fall case 1255a(a)(2)(B), in Government” U.S.C. § precisely into a category and meet the obviously contemplated that the INS would prudential as well as the Article III re- deemed of an alien’s unlaw- to “know[ ]” quirements standing. ful status where an examination the up a alien’s file would turn document that V. § Merits Question the in itself indicates that alien’s status is Finding no bar to the no district court’s unlawful.17 There is defensible differ- case, of jurisdiction exercise this I over ence between circumstance dispute. file reach—at last—the merits of one: an examination of alien’s INS present up required a challenged appeal order turn the absence of document, held was alien’s unlawful status which absence itself indicates “known to the within the In Government” that the alien’s status unlawful. both that, 1255a(a)(2)(B) meaning agency of 8 knowledge U.S.C. if cases the has actual § credibly illegal alien can establish his or her “will- from its files the alien’s status. INA, ful perusal produces violation of 265” of the section Since the files actual recognized report clearly ap- 17. Even the INS this in 8 C.F.R. the INS "a indicated the 245a.l(d)(4), pellant nonimmigrant § which considers an un- or her alien's had violated his January lawful status to be known if a school sent had status” before 1982. more the absence of one or point solely from illegality, majority’s knowledge of the alien’s status required definitions of 265 forms that possible about the various § op., Maj. irrelevant. Since that offi- prima “known” is was unlawful. word facie Thus, ante, court’s everything district known needed at 1344.18 cial would have unam- the term “known” bring deportation proceeding against conclusion that circumstance alien, biguously embraces nonfiling the alien’s unlawful sta- itself document where the absence I Government.” tus was “known unim- status seems unlawful indicates that the treat- agree with the district court U.S.A., Inc. peachable. See Chevron in 8 C.F.R. ment of 265 violators § Inc., Council, Resources Nаtural 1(d) contrary to law.19 245a. Defense § 2778, 2781- 837, 842-43, 104 S.Ct. (where congres- L.Ed.2d VI. Conclusion clear, court and intent sional my view, juris- the district court had unambiguously effect to give “must eligibility diction rule § Congress”). expressed intent of legalization. Neither IRCA’s violators for Moreover, majority’s con- contrary to the ripeness provisions, nor tention, unlawful status 265 violator’s standing precluded the doctrine district simply by noting could determined federal-question jurisdic- court’s exercise file. required documents in his absence of under 1331 and 8 U.S.C. argues that the could INS invalidate rules. known, merely looking at exception, one minor I would affirm With file, file that the alien’s failure to alien’s Supplemental Order V. alien’s and thus rendered the was “willful” legalization pro- meant Maj. op., ante, status unlawful. gram generous long- hand extend with, Yet, begin to file a failure illegal previously time resident con- in the INA to be report was defined signed living shadows. Under completely regard without misdemeanor— dictates, amnesty IRCA’s the aliens had to 1306(b). to More- willfulness. § apply quickly act to in or- over, provided any INA alien who prescribed deadlines; der to meet filing requirement violated the § QDEs were to aid them in their established deported such to be arrested and “unless quest legalization. It flouts the text alien the satisfaction of the established to purpose design to Attorney that such failure was General 1255a(f), do, interpret my colleagues as reasonably or was not willful.” excusable prevent any prompt judicial testing to 1306(b). Thus, not an willfulness was violation; instead, wrongfully INS rules that bar element of a large aliens, categories to deportation alien in- those threatened with could relegate aliens to voke as an affirmative de- those individual chal- nonwillfulness lenges proceed- fense the alien would have the burden the course of establishing. looking ings. interpreted, legalization pro- An INS official So prior gram joke compassionate an alien’s file to 1982 know would a cruel that, pres- government 18. contends part while the ness on the to make out Hence, convey ence in INS files prima of a document would violation. the absence of facie knowledge, quar- reports "mere actual absence of a sufficient to make a viola- terly report may government. Conversely, well not lead actual knowl- "known” edge Maj. closely.” wishing past if all files not monitored the alien show a violation would op. distinguishes I fail point at 1345. to see how this have to the absence of the same “presence" case reports. government's “absence” case. If an earlier failure to agency’s closely, files are not prosecute thereby monitored equally ignorant then violation afford the officials will be of what opportunity plead alien an nonwillfulness the files do contain and what con- do not defense cannot result in a heavier burden on the tain. prove govern- alien a violation now than the ment itself would have had then. is the This text, however, respect modify Judge 19. As discussed in I do one I would requiring showing Sporkin’s read 265 as willful- order. purports nation to wel- play those

come I cannot and redeem. believe Con- result,

gress so I intended re- spectfully dissent.

In re SEALED MOTION.

Division No. Misc.-2. Appeals, United States Court District of Columbia Circuit.

(Division Purpose for the Appointing Independent Counsel Ethics ‍‌​​‌​​‌‌​‌​​​‌‌​​‌‌‌​‌​​‌​​​‌​‌​​‌‌‌​​‌​‌​​‌​‌​‌‍in Government Act of Amended). July 1989. July As Amended

Case Details

Case Name: Ayuda, Inc. v. Richard Thornburgh

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 18, 1989

Citation: 880 F.2d 1325

Docket Number: 88-5226

Court Abbreviation: D.C. Cir.