Ayuda, Inc. v. Richard Thornburgh, Individually, and as Attorney General of the United States, (Two Cases) Ayuda, Inc. v. Richard Thornburgh

INC., AYUDA, al. et

v. Individually, THORNBURGH,

Riсhard Attorney of the United General Cases) (Two al., Appellants. States, et al., INC., Appellants,

AYUDA, et THORNBURGH, al. et

Richard 89-5301. 90-5293

Nos. Appeals, States

United Circuit. of Columbia

District May

Argued 5, 1991. Nov.

Decided Keener, Atty., of Jus- Dept, E.

Donald Gerson, Asst. tice, M. with whom Stuart Kendall, Jr., Asst. Gen., Robert Atty. Dept, Litigation, Immigration Director D.C., on the Justice, Washington, were and 90- brief, appellants 88-5226 for David J. appellees in 89-5301. Bolton, Dept, of Attys., R. Kline and John D.C., ap- also entered Justice, Washington, appellants. for pearances Rubin, Wayne H. whom Michael Sand- Matelski, Lynda Deborah Zengerle, D.C., Waller, ers, Carolyn Washington, brief, appellees in 88-5226 for on the were Washing- Aronofsky, David 90-5293. D.C., appearance ton, entered also appellees. D.C., Washington, Billings, David M. Matelski, Wayne H. 89-5301.

appellants in appeal Ayuda and that the III is there- D.C., appear- also entered Washington, fore moot. appellants. ance I WALD, and D.H. SILBERMAN

Before GINSBURG, Judges. Circuit A. background congressional pas- filed the Court Circuit Opinion for prior sage of IRCA is set forth our

Judge SILBERMAN. opinion, Ayuda, 880 F.2d at see in McNary, 111 S.Ct. at 890-91. Suf- Judge Dissenting opinion filed Circuit say congression- fice it to IRCA was WALD. compromise whereby techniques al new stopping illegal the aliens into flow the SILBERMAN, Judge: Circuit amnesty United States were balanced with cases all involve These three consolidated programs for undocumented who jurisdiction of the questions regarding the requirements. met certain brought by hear claims district to court amnesty program at issue in this orga (along with three other Ayuda, Inc. case, 1255a, gave see 8 aliens the U.S.C. § and un that advise aliens five nizations opportunity apply to during aliens) prevent Immigration the named to 4, one-year period ending May a on 1988. (INS) from ad and Service Naturalization 1255a(a)(l)(A). If “nonimmi- See id. § ministering Immigration the Reform and (aliens grants” country who entered the (IRCA)1 alleged in a fashion Control Act status) legally but later lost that lawful contrary the statute and the Constitu be show, alia, could inter were in I, 88-5226) (Ayuda The first case No. tion. 1, country unlawfully January since Court, from the is here remand 1982, and that their unlawful status was in opinion reconsider our us to which asked Government,” “known the id. Thornburgh, 880 F.2d 1325 Ayuda, Inc. 1255a(a)(2)(A) (B),they entitled & were §— remanded, (D.C.Cir.1989),vacated and legalization. promulgated regu- a The INS U.S. -, 1068, 112 L.Ed.2d 1174 S.Ct. stating “known to the Govern- lation (1991), lacked holding that the district court Ap- ment” meant “known to the INS.” light of the subse jurisdiction, in Court’s 4, proximately May before the seven weeks quent in v. Haitian decision Refu deadline, in plaintiffs filed suit dis- — U.S. -, Center, Inс., gee court, claiming that “known to trict (1991). 112 L.Ed.2d 1005 The second in its reach and Government” was broader 90-5293) II, inter No. involves (Ayuda case any agency of meant “known to in granted by the district im relief court court held district Government.” The in which had proceeding same we held regulation contrary to the INS was jurisdiction. government, court lacked of four a series orders statute issued challenges the district surprisingly, plaintiffs’ inter- adopting implementing jurisdiction to issue the or court’s interim Meese, 687 pretation. Ayuda, Inc. v. (No. 89-5301) Finally, Ayuda III der. (D.D.C.1988). F.Supp. 666-68 appeal the district court’s plaintiffs2 government appeal, did not and therefore request denial of their of these rul- acquiesced the substance violating contempt allegedly held ings. protract order in this prior a Then, hold, one week before end our less than proceeding. We line ed amnesty period, the district court original position, that the district (Supplemental fifth Order issue issued a order subject matter lacked V), construing the word “known” Ayuda II this time sought Ayuda I and the orders appellee parties appellant 2. As none of the Immigration Control Reform and Act cases, refer we will in all three consolidated 100 Stat. 3359. Pub.L. No. organizations aliens and the undocumented supporting "plaintiffs.” them as Amendment), pro- Fifth and the One “Government.” word than rather legality of claimants) were direct (section 265 vide class of aliens issue reside the “known” permitted to law3 which regulation pre-IRCA under —of long they periodi- as so by-product States the United —because INS; with the ap- forms court of filed certain exclusive cally providing sections ruling from the district sought determination covered “a peals review these failed to submit alien if an court that 8 U.S.C. application,” respecting an alien’s unlawful knowledge of the forms, added), there- 1255a(f)(l) (emphasis government. imputed to could be status challenges to apply to “broad did not fore promul- never had though the INS Even that could legal position policy or an INS whether position on an official gated Ayuda, many apply [determinations].” from the ab- inferred knowledge could construing regulation F.2d at A infor- presence of opposed sence agency interpretations statute alien, even concerning mation con- regulation comprised, Unit Legalization Appeals INS’ though the tended, legal position. policy just such legaliza- denied alien’s (LAU) never reason- argument, rejected plaintiffs’ We that the ab- ground on the application tion legality of the alia, that ing, inter establish insufficient to of forms sence by challenged certainly could be regulation plain- granted court knowledge, the district depor- appeal from a alien an individual on govern- at 668. The id. request. tiffs’ regulation was order and that jurisdictional tation order on this appealed ment ap- an respecting a determination therefore grounds. would otherwise thought we plication. We challenging “in effect government, in a situation which an anomalous create the en- jurisdiction over court’s the district deportation challenging his single claimant 1329,argued case,” 880 F.2d at Ayuda, tire regulation was grounds that order respecting adminis- provisions that IRCA’s his statute and that with the inconsistent require ex- first judicial review trative im- application was therefore remedies administrative haustion of bring obliged to properly denied would in the exclusive then vest appeals, of while appeal to the his legaliza- to review INS appeals of courts potential claimants combination some specify provisions Those decisions. tion court, avoiding directly district sue could no administrative “[tjhere shall that procedures statutory administrative respect- a determination review judicial We appeals. court of See id. ex- legalization] ing application an [for Ringer, 466 part relied in on Heckler 8 with subsection.” cept in accordance 622 80 L.Ed.2d 104 S.Ct. They further direct 1255a(f)(l). U.S.C. § held ap- (1984), Supreme Court “establish an in which the Attorney General single a sought a to establish provide who authority to pellate opera- appellate type review for a reimbursement right to of administrative level determination,” id. by an bringing Act under the Medicare tion [such] pur- state that 1255a(f)(3)(A), obliged were “[t]here in district court action § of such a denial review judicial first. remedies shall be their administrative sue order review an in the “claim” the word there defined The Court this title 1105a of section under deportation pre- plaintiff’s one the Act to include under ap- exclusive court provides agency policy that challenge emptive [which 1255a(f)(4)(A). id. jurisdiction],” peals § get- him from prevent ever allegedly would operation would constitute ting the district argued Plaintiffs reimbursement. See his claim basis jurisdiction, question federal general (citing Ringer, 1332 880 Ayuda, (as as jurisdiction well 1331 see 28 U.S.C. § 2024-25). U.S. at laws, 8 U.S.C. immigration see under (1982); 265.1 (INA) see also 8 C.F.R. Nationality § 1305 U.S.C. Act Immigration and 3. See (1981). (1976), amended 8 U.S.C. unripe for unnecessary to decide a sec section 265 issue was review. We found at 1343-46. The word objection raised the See id. “known” jurisdictional ond ambiguous, naturally and it “follows from organizational plaintiffs’ government—the Inc. v. Re- court seemed to Chevron Natural standing. The district [U.S.A. Council, Inc., plain sources 467 U.S. that the individual have determined Defense 837, 842-43, 2778, 2781-82, tiffs, S.Ct. singularly groups, or in could not sue (1984),]” dealing legal question L.Ed.2d 694 “when court to raise a ..., ambiguous statutory term courts of with could be resolved impose interpreta- court should not its organizations Ay- such as own appeals, but that designated agency tion of the term has an “qualified entities” before uda— opportunity fix (QDEs) to consider the issue and recognized under the statute as statutory Ayuda, construction.” having counseling illegal role for aliens— own were, course, (emphasis original). F.2d at 1343-44 We could sue because “compelling concluded that the reasons for deportation therefore had no subject postponing judicial clearly intervention” in the courts of right outweighed alleged hardship “the appeals. at 1339 & n. 15. We did See id. [the plaintiffs] deprived rapid if aof clarifica- standing not decide the issue because we ” Government,’ that, espe- tion of ‘known Community concluded as Block v. Institute, 340, 104 cially hardship alleged con- because 467 U.S. Nutrition QDEs’ (1984), plaintiff organizational in- fused 81 L.Ed.2d 270 non-party terests the interests of congressional provisions revealed a event, and, glossed over the preclude judicial review of is purpose to inevitably fact that aliens faced the risk of appeal could raised in an sues that coming challenge a part orga an forward to denial deportation order on the was, effect, legalization, any guarantees without acting in as a nization that success. Id. at 1345-46. aliens even representative of individual though asserting “organizational an it was Subsequently, Supreme Court decid- injury.” Ayuda, 880 F.2d at 1339-40. See McNary ed and we are now to consider extent, whether, McNary and to what alternatively then held that the dis- We obliges opinion. our us to reexamine issue trict court also lacked ’ concerning “policy” re- its order B. that garding section 265 claimants because ripe. Only policy was neither final nor dealing Special IRCA’s McNary, reviewable, agency “final action” (SAW) amnesty pro- Agricultural Workers alleged “policy” but all the U.S.C. interpret gram, required the Court most, amounted to was that “at some local and review parallel administrative informing aliens that the 1160(e), INS offices were IRCA, section of U.S.C. § applica- office would recommend denial phrase “a determina- mark the reach theory.” on the section 265 tions based application,” id. respecting tion (emphasis origi- in Ayuda, 880 F.2d at 1342 1160(e)(1). Supreme Court held that nal). denials Because “all recommended “general col- wording did not refer to adjudicator, referred to an challenges prac- to unconstitutional [would be] lateral subsequently re- decision agency whose in by the policies [would be] tices and used Legalization Appeals viewable 111 S.Ct. at processing applications,” Unit,” actually decided a which had never preclude an action did not and therefore issue, involving the clear that case was to redress such brought in district court recommendation, prior “such a let alone practices. such a recommendation

indication claimed, made, does not constitute would be final Supreme review it purposes of Court (emphasis original). agency action.” Id. engag- undisputed, that the INS was procedural practice or ing pattern in “a position of a clear INS also The lack administra- process heavily that the due violations to our decision contributed their ad- they exhausted plaintiffs, if Id. program.” [amnesty] the SAW tion of get ade- procedures, would alleged, for It exam- ministrative 892. was Ill whereas, review; McNary, not afforded were applicants quate ple, that challenge material adverse pointed out: the Court opportunity witnesses, that com- present toor evidence found, because Court District [T]he provided, were interpreters petent transcripts of recordings or the lack of applicant recordings of no there were interviews and [Legаlization LO Office] at 894. Crucial interviews. See id. ap- opportunity SAW inadequate 1160(e)(1)was its reading of section Court’s present other witnesses plicants call pro- provision that companion on a focus behalf, the administra- on their evidence shall be based “judicial review vides INS, reviewing appeals unit of tive record es- upon the administrative solely pro- regional of LOs and the decisions time of the at the tablished facilities, ap- the courts of cessing authority appellate INS].” [within reviewing denials in SAW peals, added). 1160(e)(3)(B) (emphasis U.S.C. § have proceedings, deportation context record cre- The Court concluded upon meaningful basis complete no administrative review during the SAW ated application determina- which to review inadequate any mean- would be process tions. pro- of the serious appellate ingful added). (emphasis at 898 questions raised. constitutional cedural not decide (“[T]he Ayuda, ad- did McNary, at 896 like McNary, 111 S.Ct. ad- process QDE organizational does not appeals ministrative whether fact, and constitu- procedural standing. the kind of Court dress have bring in this ac- orga- respondents those tional claims at all whether not consider did tion_”). noted litigation The Court independent have nizations fact-finding lack the appeals courts under IRCA. See role necessary to capacities record-developing Instead, n. & Therefore, Congress this deficit. correct it was unnec- assumed that appears to have ‍‌‌​​​‌‌‌​‌‌​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​​​​‌​​​​​‌‍that those sort of not have intended issues because essary consider those exhaus- administrative subject claims be to in aliens as there were individual appeals court of review. limited to tion and organiza- and, presumably, the action 896-97, 898-99.4 at id. greater have no plaintiffs would tional indeed, right) sue (if, they any had right on distinguished Ringer two The Court plaintiffs. did the individual Ringer that in than first was grounds. The court was not collat- in claim raised substantive entitle- plaintiffs’ eral to the C. operations; for the reimbursement ment to plaintiffs assert reargument In whereas, McNary in the Court observed original our obliges us to alter McNary prevailed, they if the that even that the district opinion and now determine “appli- to have their only be entitled would jurisdiction over properly exercised newly light in reсonsidered cations has They McNary case. believe at procedures.”

prescribed INS provi- review special judicial confined the believed that Second, Ringer, the Court in error, see, e.g., Pappas legal v. late review a “collateral believed that chal- Court also 4. The (D.C.Cir.1986); FCC, statutory Jai review lenges" exception limita- (D.C.Cir. by Bell, “abuse of discretion” tions was indicated 598 F.2d mez-Revolla review under section 1979); standard think the meant we do not which, although “appropriate 1160(e)(3)(B), proposition. And disagree in with that adjudica- an administrative review of case, appear to be concern does not the Court's application an individual facts tion of the here, by presented since implicated claims ...[,] apply to constitutional statu- does not questions statutory interpretation are such claims, novo tory are reviewed de which review set clearly governed the standard of have, S.Ct. at 897. We courts.” Chevron, at 467 U.S. at S.Ct. in forth however, commonly “abuse of understood dis- 2781-82. appel- unrestricted to allow cretion” standards statutory interpretation if of that plaintiffs’ an individual the case of IRCA to sions of accepted, the decision phrase on the were to deportation order challenging a establishing “have the effect of their application was legalization his ground legalization. McNary, government, entitlement” denied. improperly creating permit plaintiffs bring hand, McNary as at 898. To reads the other provi- designed action district court an exception to federal procedur- they strictly to collateral the core of law that limited issue sions resolve process, challenges legalization proceeding, in a will encounter al plaintiffs. deporta- number regardless perhaps appeal in an from a “ order, ‘would claimants sub- tion allow certainly true that Although it is Congress’ carefully stantially to undercut words reading of the Supreme Court’s administering the crafted scheme for application” respecting an “a determination ” at 898 n. 13 McNary, 111 S.Ct. [IRCA].’ original in our than was ours is narrower at 104 S.Ct. (quoting Ringer, 466 U.S. rea that the Court’s opinion,5 we believe 2025). why Ringer the Court That its distinction soning particularly —and plaintiff thought it mattered not whether Ringer our case on Ringer —leaves suing actually madе a claim was In the first analytical divide. side of claim; filing a either anticipation of never indirect but lawsuit is an place, this event, as a “claim the action was construed adjudicate the effort theless obvious Medicare Act because arising under” the for le eligibility ultimate plaintiff aliens’ mere to allow otherwise would be hold a collat galization. We do encounter purpose. congressional form to defeat which does challenge, resolution of eral at 2024- Ringer, 466 U.S. eligibility. necessarily confer regard, are not sure we Second, plaintiffs have not shown focusing on the is correct complete and they cannot be assured why of the word repeated use Supreme Court’s appeals, adequate in the courts proce- setting a strict forth “procedure” proce exhaustion of administrative think the after dichotomy; we dural/substantive dures, definition of the issue—the drawing a distinction instead Court was (which might to the Government”—that nor- “known issues collateral between We district court decide. go have the to would mally procedural) and those problem of an here in are not faced As applicant’s claim. of an the heart review, appellate inadequate record for invalida- “the plaintiffs here seek Ringer, Supreme Court as con- which troubled policy” [agency] the current tion of that Con led it to conclude and a trary to statute “declaration” judi to limit have gress could not intended proper is the they believe what challenges 614, procedural of the review U.S. at cial Ringer, 466 interpretation. case is question The this there. aliens involved at 2021. individual 104 S.Ct. interpretation alleged told, agency’s stake, we are whether are at interests whose law, question a contrary to statute is United of a presence persons whose are decide quite frequently appeals of Government” courts “known to the was States No one agency of action. on direct review other statu- satisfy the are able to and who appeals would Thus, a court of legalization. contends requirements tory or, presum- applications with the "determination ization ably, seemed to read the INS— Court reading what transform barring This language both. application" as respecting an "limit[ing] re- agreed provisions single were only Court of "a the view,” review district court direct 898, bestowing upon provisions into id. at SAW status” of act" or "individual denials [INS] against Seen “gen- a of forum. choice or aliens group of [INS] of "a decisions" and not light analysis, and in the Court's at of challenges." 111 S.Ct. remainder eral collateral provisions Ringer’s directive that added). this were the of (emphases But if 896 forum-shopping, prevent any to case, (two "group”) be construed” being or “must a two 621, do not we freely 104 S.Ct. U.S. at at could with similar claims class of aliens is con- individual/group distinction judgment this filing declaratory ac- think trolling. between choose legal- See 752-753. filing individual court and in district tions infra misunderstanding of edy alleged INS any deciding difficulty whether any have to IRCA. as it related of IRCA interpretation good law not. 265 claimants section there, notwithstanding the Nor is a seriously suggested that it cannot be And dissenting opinion, in the implications hampered be appeals would stemming from either admin right general specific question in legal considering such a challenge to law istrative or constitutional is, par- to applied as contexts—that factual case, or, inter regulations as agency short, if the administra- aliens. ticular facially rather regulations pretations that Con- procedure tive and case-by-case basis. as-applied, than on an adequate provide full to gress provided is legal aliens’ claim—and of individual relief [prin- that this case-by-case approach is, Ayuda, 880 F.2d that it see believe we agency only actions ciple that individual permit is no reason n. 15—there 1339 & can chal- “programs” be and not entire statutory pro- to circumvent understandably frus- lenged requires] is cedure. traditional, is the trating. But this ... normal, opera- mode and remains the apparent, a not, be as should This Except Con- courts. where tion of the of administra variety exhaustion garden provides for our gress explicitly correc- reviewing case, a in which tive remedies process at a tion of the administrative (“waive”) exhaus dispense with can generality, we intervene higher level that resort the court determines tion if only in the administration laws inadequate be agency procedures would that, when, specific and to the extent Ven Randolph-Sheppard or futile. See agenсy has an actual “final action” Weinberger, Am. v. dors of Congress here ex threatened effect (D.C.Cir.1986). immediately 105-07 [citation may alien could chal ulti- that an an intervention pressly provided Such omitted]. grant requiring refusal lenge government’s mately have the effect only if statute regulation under the revised order be the alien sought deport that the court the unlawful result avoid appeals. assuredly in the courts swift then it is not a discerns. But 749, 766, 95 422 U.S. far-reaching Weinberger Salfi, immediately a correc- or as (1975) L.Ed.2d sys- process those interested in tive statutorily specified juris (holding that “a would desire. Until improvement temic “something more prerequisite” is however, dictional us, sweeping more confided judicially simply than a codification Branches. actions are the other exhaustion, may developed doctrine — Fed’n, v. National Lujan Wildlife by judicial merely dispensed not be U.S. -, L.Ed.2d futility”). The conclusion of course, (1990). prevailed if an alien Of Congress did intend thought challenging appeals INS’ in the court of district court preclude procedure section 265 as a “rule interpretation of practices that remedy INS authority to well applicability,” the result could broad reviewed adequately could not invalidated, simply “that the rule deporta a appeal of appeals courts of on application to a the court that forbids Supreme Court tion order. as Insofar 110 particular individual.” INS’ admin of the examined the adequacy J., (Blackmun, dissenting). 3201 it McNary, in procedures istrative tell, As far we can neither as adequate an record to determine whether upon any fix real nor dissent plaintiffs provide a court of compiled would be developed inadequacy has could that meaning for appeals the wherewithal with develop in the administrative expected to nor Con the Court ful Neither review. plaintiffs purposes any of the record open-ended com gress us an granted has Apparently, none of judicial review. “adequa judge for ourselves mission to through gone has the individual procedures, short cy” of the administrative subject none is legalization process and review, judicial are available rem- that sure, is, under decisive wheth- To deportation order. ato scheme— aliens were er or not “subtle.” Dissent at 761 n. 3. suggest that sоme to file their opportunity even denied an argues although The dissent also — legalization. Were that prosecu plaintiffs never did—that the INS’ case, agree McNary we would when, against torial discretion to decide the district court would apply and would whom, bring it and which circuit should to order the INS’ local jurisdiction have had deportation proceedings raise that would (Indeed, accept applications. offices statutory interpretation questions gives the conceded as government’s initial brief inappropriate power judicial to control INS Otherwise, much.) position alien in that authority review. But that kind of is inher develop any not have been able discretion, prosecutorial ent in and it is which, record on if sort of administrative day surely late for it to be chal deportation pro- initiated lenged by judge. a circuit See Heckler v. order, ceedings deportation a and obtained 821, 831, Chaney, rely appeals. in the court of the alien could (1985) (“This 84 L.Ed.2d 714 case; not this there was no But that recognized has on several occasions over (much presented any evidence years many agency’s that an decision not plain- any five individual alien less prosecute or enforce ... is a decision tiffs) appli- prevented filing were generally agency’s committed to an abso Ayuda, 880 F.2d at 1341-42. cation. See discretion.”). colleague goes lute Our on may local INS offices well have told Some footnote, suggest a see Dissent at they if some section 265 claimants government might 767-768 n. fee) (which applied required hefty $185 deport actually refuse to aliens who were legaliza- the office would recommend that disputable legal denied on that oc- tion be denied. To the extent requested de grounds someone who curred, may some aliens have been discour- —even portation re order obtain aged filing, just as or deterred from just to frustrate review. Of QDE (or, discouraged if would have been view— course, we have not seen a shred evi matter, gave lawyer) for that the same the INS has ever considered dence that advice, hardly give suffices to but course, despicable even if it such a but preempt district court occur, we think that the were to declaratory judg- and issue its own again apply. Aliens faced exception would legal The distinction ment on the issue. plain with that effort to circumvent legal giving between advice on a difficult by denying any them congressional scheme may may not turn question —advice certainly could meaningful judicial review wrong literally closing the out to be —and directly in district rely McNary to sue INS’ office doors aliens’ faces—fore- statutory closing judicial review under the court.6 legalization only in the context

6. The dissent cites two recent Ninth Circuit of a denial cases, Nail, (9th Campos proceeding. 940 F.2d 495 Cir. See 8 U.S.C. a section 106 Servs., 1991), Legal 1255a(f)(4)(a). and El Rescate Inc. v. Execu Whatever the reach Review, Immigration cases, then, tive (9th Cir.1991), regarding McNary exception IRCA Office support juris for district respect might to non-IRCA well be broader this case. See Dissent at 766-767 & diction over immigration Ayuda, F.2d at cases. See cases, however, involved n. 7. Each of those Indeed, court did not the El Rescate 1337-38. INA, but rather section 106 of the not IRCA McNary. even cite 497; Campos, F.2d at U.S.C. 1105a. event, we think that the results—if Rescate, El 941 F.2d at 953. As we discussed reasoning Campos and El Rescate are —of prior opinion, question "whether there our reading McNary. Cam- our consistent with ‘program’ exception to section 106[] is a (IJ) Judge Immigration pos who involved an raised be constitutional and claims" continued, despite the court of two reversals proceedings deportation initiation of fore the denying practice employ of appeals, to a blanket Ayuda, open in circuit. 880 F.2d at remains deportation changes faced with noted, however, venue to aliens although We that 1335-37. that proceedings. The Ninth Circuit determined provision incorporates judicial of IRCA review “rogue" effectively IJ control the machinery expressly it could not it the provides of section also deporta- judicial through judicial review of individual may that an alien seek their plain could know whether argument real that only legalization ultimately lead to before the statute’s the effect that to tiffs make filing applications inadequate statutory period for procedure is judicial burdensome) is that short it is Dissent at 765. The (besides expired. that See forward, contention, lose to come complete have answer to this aliens would аnd deportation in order to risk anonymity, view, Judge stat- is that Wald’s desired our statutory of an INS judicial review Congress obtain not the one enacted. ute is legalization governed that interpretation argued as a matter of certainly It can be recog important It is determinations. put have Congress that should not policy statutory regard that under nize in this to the applications are denied aliens whose scheme, applying run no risk when courting deporta- choice of either difficult may not the INS legalization because seeking judicial not review. See tion or through the gained use information Kanstroom, Judicial Review generally review of application or the administrative Must Bet Their Amnesty Denials: Aliens prosecute a initiate or application Court?, Lives to Get Into Harv. the alien. proceeding against deportation (1990).8 Congress But C.R.C.L.L.Rev. Still, 1255a(c)(5). a denial 8See U.S.C. § did, our task to make an is not “[i]t injury and legalization surely causes some perfect.” Ver- imperfect statute Central that an way under the statute Ry. mont v. Brotherhood Maintenance provoke challenge the is to can denial alien 793 F.2d Employees, Way deportation proceeding. a (D.C.Cir.1986). it also ar- Ringer, “that is tanta say price did statutory require- gued exhaustion re judicial denial of complete to a mount waivable) could de- (jurisdictional, not ment aliens,” most undocumented view for meaningful administra- prive claimant a we do not 111 S.Ct. at but might he judicial tive review because extended could be see how observation operation an not be able to afford were, it even holding in the case. If would be a reimbursement claim which dis could sue federal alien individual willing might made—and his doctor not deporta any point prior to a trict court at by the nonpayment risk of challenge any of the assume action tion order to concern, expressed government. That on his and to that bore dissenting opinion, led the Court’s ma- opinion would make judicial a obtain “Congress surely respond that application jority his decision on actual the INS’ whereby provided a scheme make a hash could have formality. That would mere judg- scheme, declaratory could obtain legislative which envisioned claimants (and to bene- ments their entitlements only coming forward los about alien fits_” 625, 104 Ringer, 466 U.S. at becoming also the sub ing anonymity) but Similarly, Congress here pre deportation order as S.Ct. at ject of an actual declaratory judg- provided for a id. at could have requisites to review. See contends, however, alien’s en- procedure ment to ascertain an Judge 893.7 Wald least for legalization, or at right bring “test titlement have the aliens should legalization. direct review of a denial so that in federal cases” orders, general against presumption of fictitious upheld use the district court’s so tion enjoin except the IJ’s a "threat of misbehavior where names require merits “strong privacy him to consider individual physical inter- harm” or actual requests. El Rescate involved an aliens' stake); Employees Hotel & Restaurant est" is providing incompetent practice and in- INS complete Smith, Union, Local 25 v. 846 F.2d during interpretation immi- to aliens Silberman, J.) (D.C.Cir.1988) (noting (opinion of hearings very practic- gration —one standing ripeness analyzing problems McNary. es at issue in identified). plaintiffs are not when apparent why preemptive even It also necessarily preserve plain- an alien suit would argue do not 8. The generally anonymity. 2A J. J. tiff’s Moore, itself their con- review scheme violates & Lucus G. Grotheer, Jr., Federal Practice Moore’s rights. stitutional 10.02, (1991) (discussing the 10-6 to 10-8 ¶

753 words, reviewing the other read statute —in not, do not and we did Congress But reading McNary, of Judge Wald’s case. say otherwise. McNary (without against squarely runs accordingly, difficulty analytical Essentially, the important principle any explanation) and, due with all position plaintiffs’ with agency action: review of governing judicial dissenting col in our flaw respect, brought into may not he question same inability to in an reasoning, lie league’s appeals or the the court of either not covered those situations describe Ayu litigant’s pleasure. at the See court judicial to IRCA’s exception 1338; da, 880 F.2d at Telecommunications dissent, in procedures. review FCC, 750 v. Action Center & Research an indi stance, anyone us that tells —even (TRAC). (D.C.Cir.1984) 70, 77-79 F.2d declaratory judg may seek vidual alien— if sum, that McNary holds we believe interfering with injunction ment judicial re statutory administrative simply by of IRCA INS’ administration meaningful court of provides scheme view at a challenge as “directed framing claim, legal of an аlien’s appeals review not an individualized general policy that scheme to be Congress then intended n. 4—some determination,” Dissent at 763 jur ousting the district court of exclusive— surely lawyer competent could thing any issue of claim at to hear the sort isdiction of the such, runs the dissent afoul As do. issue, a collateral here. It when en Ringer the dissenters problem same practice, cannot be procedural typically a exception would inevita countered, that the ap courts of presented to the adequately 466 U.S. Ringer, bly swallow rule. exclusivity of section peals that 2027-28; see also at 104 at S.Ct. dispute 1255a(f)(1)gives way. doWe not think do therefore note 5. We supra favoring in presumption the “well-settled interpreta is a fair approach Judge Wald’s judicial that of allow statutes terpretations opinion Court’s tion of action.” of administrative Congress thought that the Court McNary; will Plaintiffs’ claims at 898. 111 S.Ct. exception to the restric implied created only after judicial review—but receive full legalization denials— of judicial review tive process the administrative of exhaustion in the deportation orders of on review only in provided Congress that cases those appeals only of courts provided.9 — Congress court reasons, ap of which, court for structural worlds, judi- immediate of all In the best inadequate. would be peals review might parties of these for all access cial Congress, read as stat- focused McNary were But [the If desirable. ap- balance, refusing inadequacy court ute], struck a different structural requiring that ad- declaratory collateral constitutional relief review of the peals case, be- remedies be exhausted presented we ministrative claims Secretary’s as to of confusion hopeless judicial review jumble fore create Congress must place. to the district takes come IRCA cases decisions which hard- appeals. cases of individual felt that the courts have and which to delays in adminis- resulting could not, ship in our view from does The dissent balanced had to be process us a case come trative not, contend should overly casual or potential appeal against the on an appeals any other in an ad- intervention premature raising sеction deportation order processes liter- system difficulty in ministrative claim, have we would 265 every year, ally [foot- millions claims interpretation examining the INS’ judicial re- respect the scheme Michigan must courts Bowen invocation The dissent’s provided. Our Congress specifically Practitioners, U.S. view Academy Family why explained opinion also International (1986), prior misses the 90 L.Ed.2d Brock, Union, UAW v. original opinion, see in our As we noted mark. by plain- (1986), relied on Michigan 91 L.Ed.2d n. Ayuda, F.2d 1336-37 at now, see Dissent dissent then and Congress in- tiffs 768-69, Academy whether dealt with Ayuda, inapposite. See of certain preclude all tended here, not, claims, whether Medicare clearly gated McNary in were also If is to be the balance note omitted]. final collateral anew, ripe review as decision must come struck agency’s undisputed sys- challenges to the not from this Court. Congress and S.Ct. at practices. temic See at 2028. Ringer, McNary plaintiffs’ claims did not 895. The D. preempt court to the INS’ ask the district ambiguous pro- interpret to IRCA’s efforts in this case rested original opinion Our visions; plaintiffs’ claims do. jurisdictional holdings, both on alternative the INS concluded that in We character. original opinion we dis In our sought to attack “policy” that length why thought the sec cussed at we by the adopted applied had not been presented to the district tion 265 issue fashion, enough if at in definitive agency a (our ripe ripeness not final or court was all, judicial review—even assum- permit to included, course, hardship discussion jurisdiction to court had ing the district examining McNary, we analysis). After at 1341- Ayuda, 880 F.2d hear the claim. question. by our views on that See stand nothing McNary in that im- 46. We see Wald, Judge 880 F.2d at 1341-46. Ayuda, finality ripeness on our pacts at all however, original ‍‌‌​​​‌‌‌​‌‌​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​​​​‌​​​​​‌‍position, abandons her holding. alternative C.J., (Wald, Ayuda, 880 F.2d at 1362-64 see formal, sure, 1255a(f), (“[T]hfe final dissenting) INS had subsection on To be ”), centers, and now policy 265 violators.... jurisdiction discussion our which yet had “not articu things. agrees that does statutory provision two regard to agency’s policy with exhaustion of administrative lated requires It court, applicants” yet act going any 265 IRCA procedures before —had of administrative determi ed—but contends nevertheless limits review it be “ripe” was “review” are or could be decided that case nations that plain hardship that the appeals. Exhaus cause of the severe process to the courts law, Dissent aliens would otherwise suffer. tion, doctrine of administrative tiff as a simply do not understand ripeness finality. at 769-770. We overlaps with See thought FTC, could be 814 how the district court Ticor Title Ins. Co. generally authority posi actions or (D.C.Cir.1987). All three are de have to “review” F.2d 731 yet agency. To permit agency tions not taken signed, part, sure, Procedure under the Administrative Branch decide issues of ad Executive (APA), judicial is available to fully before a court inter Act ministrative law agency whether action has been as concluded that determine venes. Insofar unreasonably de 1160(e) “unlawfully did not collateral withheld or section bar chal 706(1). Public Cit procedures layed.” unconstitutional 5 U.S.C. See lenges applica Group Research v. Commis processing the INS izen Health adopted (D.C.Cir. sioner, FDA, tions, Congress 740 F.2d did not determined 1984). plaintiffs have never require But intend that section exhaustion dilatory that the INS procedures regard with claimed was of administrative that, unreasonably delayed action. On the way have dis those claims. But we agency cussed, contrary, the seems to have been because those issues could not applicants moving alacrity process adequately addressed in the courts of period. More compiled during window appeals since the record over, opinion, inadequate. previous noted in our process was as we administrative circumstances, obliged, nor could it rea did the INS was not Under those expected, to announce in Congress sonably have been intended that believe receipt fully litigat issues had to be advance those sorts of infinite, many, perhaps process position on all the through an administrative ed legal issues that could arise really equipped to deal with a variations was not interpretation Ayuda, of IRCA. challenge agency’s constitutional Indeed, also 1332-33. as we liti- 880 F.2d at practices procedures. issues noted, agency If Congress did not direct the our dissenting we understand (with colleague, regulations excep- she the one contends that issue here) court could do the that forth reverse—issue an order tion not relevant would set effectively statute, preventing the court of appeals agency’s interpretations of the the gaining jurisdiction from over a claim that expect- Congress so it can be assumed that adjudicate. the district court wished to interpretations issue in ed those would That would seem be the effect of the case-by-case determinations. court’s order “enjoin[ing the from regula- INS] agency, by issuing See id. denying legalization” to section 265 claim so, tion it did not have to do attracted when ants, clearly preempts govern since it the not, regulation this litigation. But that did denying ment from legalization, issuing a Judge agrees, the Wald now resolve order, deportation and defending the denial question by raised the section claim- appeals in the court of id, accordance with ants. at 1342-43. We do See therefore the Judge scheme. We think by not see how the cause of action created argument premised Wald’s is on a rather APA, authorizing judicial the intervention peculiar view of the interrelationship of the agency unreasonably delays when an ac- is, event, two courts and in any a misread tion, anything has to do with this case— not, ing case, of TRAC. We did in that jurisdictional much less cures its defects. jurisdiction underlying take agency the TRAC, (“APA See 750 F.2d proceeding; simply prevented we the dis 706(1)] unquestionably does not confer [§ trict court interfering with a case that grant independent jurisdiction_”). an eventually could come ap to the court of ripe agency’s was not nor was case Here, peals. dissent—although not action final. plaintiffs judge—would or the district have All Nor do we understand the district court use All Writs how Act Act, 1651(a), entirely unprecedented way, allowing an Writs 28 U.S.C. could have become, effect, the district court to provided authority to district court temporary extraordinary administrator or overseer of this have issued orders. portion of permissible. IRCA. That is not upon place, the first the Act was not relied explained, As we if the McNary have even either by as basis for relief case, exception applied to this the district judge. impor or the district Even more jurisdiction court still lacked tant, issue its however, provide jurisdic it never can directing order act on INS to the sec tion to a court that does not and would not agency’s tion 265 “poli issue because the TRAC, jurisdiction. otherwise have cy” crystallized had that issue not to the (“[I]t firmly at 76 F.2d established point finality ripeness. Surely expand juris that not section does All may district court not use the Writs Act court....”); at 77 diction of a see also id. agency jurisdiction to exercise over (“Because n. District has no & 33 (rather court) against encroaching than present jurisdiction agency or future over ripe agency’s a case is or the action assigned appellate by actions statute to before Otherwise, final. district courts could review, contemplate exer can no easily jurisdictional those circumvent bars. might jurisdiction cise of that mandamus did, case, aid.”). This TRAC may It that well be some suffered protect pro use the All Writs Act to our filing applications legaliza harm not But, spective did appellate jurisdiction. we during one-year grace period. tion protect so our to review so, course, only they That would if agency against final FCC action encroach 265 claimants who dis were section were at 76- they ment the district court. See id. applying not suaded from because did arguably the only It seems then that they that they believe could establish use the Act in this case appropriate willfully quar to file section failed or, could, terly reports they would have been at the instance even if against pro illegal prove their status government, appellate jurisdiction. Ayu tect our was “known” see ex- prevent did it from Pangilinan it will at 1344-45 — and da, deadline, held wrong. tending the but then out that were ultimately turn earlier decision to decision—as well as its eertainly regrettable, even That would dead- deny plaintiffs’ to toll the motion apparent to who bears sad, us it is but special abeyance” appointed a risk- line—“in Congress provided the blame. any whether legalization applica masters to determine filing of free method applying from had a had fact been dissuaded alien who Any undocumented tions. from of misinformation received legalization should have because claim plausible whether those aliens could Every the INS and timely application. at least filed prima facie case of getting otherwise make out a the society bears risk in our one legalization. Ayuda, for Inc. v. eligibility the And we all bear legal also advice. bad (D.D.C.1988). Meese, F.Supp. 700 51-53 court relying on an inсorrect district risk government’s the effort This court denied judgment. directing the a writ mandamus obtain II Ayuda appointments, court to withdraw district Thornburgh, 869 F.2d 1503 see In re A. (D.C.Cir.1989), then held in but when we before the much time left There was not juris- court lacked district legali- for 4, 1988, statutory deadline May matter, the diction over the entire district the court when district zation pro- stayed not all—of the most—but interpreting “known issued its orders ceedings involving special the masters. Government”; of the sec- in the case the filing petition for certiorari in After there were two applicants, tion 265 Ayuda, asked district grace pe- remaining. before the days Just provide the INS to interim court to order plaintiffs moved to expire, the riod towas authorizations, relief, including work affected for the aliens toll the deadline de- plaintiff organizations aliens who May 4, district orders. On the court’s applying from had been dissuaded cided request but ostensibly denied eligible legalization. Not- and were pro- jurisdiction to retained nevertheless withstanding the law of this that under the dead- missed “relief” to aliens who vide hear he had no circuit them the INS had “dissuaded” line because case, judge grant- aspect of this Meese, v. 687 Ayuda, Inc. applying. from requested injunction “pending a fi- ed the later, a month F.Supp. at 669-70. About disposition by the United States Su- nal to undertake a the INS the court ordered Thornburgh preme Ayuda, Court of Inc. v. asking aliens who publicity campaign of this Court.” and further Order to send a deadline not filed before F.Supp. Thornburgh, 744 Ayuda, Inc. v. reasons for not detailing their statement (D.D.C.1990). granted the We eligibility filing and their stay of government’s motion for a id. at 671-74. plaintiffs’ counsel. See preliminary injunction, Ayuda, see Inc. v. moved to vacate government soon (D.C.Cir.1990), F.2d 153 Thornburgh, 919 Supreme authority of this order on the ap- government’s consider the and now intervening decision INS v. Pan Court’s peal.10 875, 108 gilinan, 486 U.S. which, (1988), L.Ed.2d 882 B. extending or argued, precludes courts injunctive interim propriety statutory dead disregarding a otherwise (1) four factors: initially decided relief turns on familiar line. The district court disposed Ayuda, preme Court has indeed but argues appeal is moot 10. The that this dissent disposition “a final indication that the dis- because there has been there is no whatsoever Ayuda" Court of the United States its own Order.” We court had "vacate[d] trict regarding language a “fur- because order’s presume glibly the interim relief cannot "boiler-plate” ther Order of this Court" is mere 772; end,” the issue come to an Dissent "has "only issuing its own since court can vacate properly us. remains before thus The Su- & n. 15. Order.” at 771-772 Dissent and work authorization for undoc the mer zation success on likelihood plaintiffs’ nonimmigrant aliens. See id. umented harm to irreparable its; threat (2) the 1255a(e)(2); see also Perales v. Thorn denied; (3) if relief interim F.Supp. burgh, if to others harm of substantial the threat (S.D.N.Y.1991). The timeliness (4) public granted; and the relief therefore, application, alien’s contributes Bell, See, Ambach v. e.g., interest. of the merits of ultimate determination curiam). (D.C.Cir.1982) (per 974, 979 other crite application his no less than the court’s normally the district bal We aliens whose ria listed the statute. For of discre factors for abuse ancing of these criteria so applications satisfy those other See, e.g., Foundation Economic tion. “pri- present could an otherwise Heckler, 756 F.2d Trends adjustment of sta facie application ma (D.C.Cir.1985). do not afford defer But we 1255a(e)(2), tus,” in this 8 success U.S.C. § appeal presents substan ence when the practical effect of action “would have the decision argument that the trial court’s tial deciding also their claims for benefits legal erroneous con upon an premised was merits,” merely reopening rather than Ambach, 152; F.2d 686 id. at clusion. See light their files for reconsideration 979-80; Ry. v. & H. at see also Delaware 111 protections. McNary, procedural new 603, Union, Transp. 450 620 United 897; 466 U.S. at Ringer, at see also S.Ct. 911, denied, 91 (D.C.Cir.), 403 U.S. cert. 614, 104 at 2021. S.Ct. (1971) (such le 29 L.Ed.2d 689 S.Ct. process section established review fully and de gal premises are “reviewable moreover, 1255a(f), appears entirely able to Indeed, novo”). has held that this Court ju- challenges (assuming plaintiffs’ address jur to district court doubt” as “substantial is plaintiffs’ avail- dicial claims review suspending a provides a basis for isdiction II-D). all, Ring- at see Part See able Ry. infra injunction. preliminary See Southern 2022-23; er, 104 at S.Ct. Firemen, v. Brotherhood Locomotive no at 898. We see McNary, S.Ct. cf. (D.C.Cir.1967) (per cu 384 F.2d why appeals the courts of reason riam). difficulty in consid- any unusual encounter course, does raise serious appeal, This interpreta- of the INS’ ering propriety concerning the district court’s questions or disallow 1255a allow tion of seсtion grant work power to order have filings. Nor late “constructive” not who did tender aliens authorizations fact-finding capa- plaintiffs argued that the statu- legalization applications before are essential district court bilities of the conclude, on sepa- We two tory deadline. process would administrative because the court lacked that the district grounds, rate that would allow produce a record an order. to issue jurisdiction such their claims. meaningful judicial review of 896, 898-99. And 111 S.Ct. at McNary, Cf. C. clearly able to appeals are the courts of legal or plaintiffs whatever afford analy relief— Drawing same upon the claims merit. equitable part of this developed in the first —their sis we that the district do not think opinion, short, we establish dis- plaintiffs cannot authority in this ancil simply by presenting exercise court’s trict refusing more authorized to file group lary proceeding claims as a their allow exception to IRCA’s statu that would McNary applications by the the individual operate. process it was procedures Ayu than tory the administrative review to the con- a “collat in this case Limiting case as aliens do not view this da I. We process proce practice gressionally established challenge to an INS eral” constitute Instead, govern appropriate because would agree with we dure. denial equivalent of total practical is one of “[tjimely application” “the that a ment And, as we at 899. judicial review.” congressionally mandated substan the four before, not allow the statute will decided “requirements,” see U.S.C. eligibility tive op- broader plaintiffs a organizational legali- 1255a(a)(l)-(4), for entitlement case, attempt to plaintiffs’ brief does not that of the aliens whom than portunity language does not consti- explain why this obtain district court declara- assist proceeding. to this separate tute a bar controlling the INS' treat- tory judgments That, argues, the dissent Dissent at Ayuda, 880 F.2d those aliens. See ment of yet actual there have not been “denial[s]” at 1339-40. plaintiff filing due to late because preempted administrative action D. filing in court cannot defeat this present if the Even otherwise, bar; missed the aliens who McNary fell within the ed a claim that Congress’ clear could circumvent deadline reаch the same result exception, we would preventing coming to purpose of them from separate jurisdictional limitation because losing before the INS on this court after unequivocally bars of IRCA in this section filing by going simply issue before jurisdiction. In addition court’s the district agency. administrative and providing the 13; 466 U.S. at Ringer, 898 n. at issue structure Therefore, that we can- S.Ct. at 2024-25. I, also directs that section 1255a for certain whether the INS will not know adjustment of status under denial “[n]o wholly irrele- reject these filing on a late of an section based this vant. adjustment may for such application presumption fa The “well-settled by a court of the United States reviewed voring interpretations of statutes that al any in administra any or reviewed State judicial review of administrative ac the United States low proceeding tive tion,” 898; 1255a(f)(2). McNary, This 111 S.Ct. at see also 8 U.S.C. Government.” Academy Family in Michigan is not included the stat Bowen v. provision, which 667, 670-73, Physicians, in 476 U.S. 106 S.Ct. provisions considered utory review 2133, 2135-37, (1986),is, 623 emphasizes which the con 90 L.Ed.2d McNary11 and course, presumption it amnesty period just that —a gressional intent that —and scheduled, by sufficiently clear as in can be overcome to an end could not come Bowen, plainly congressional directive. See 476 opinion indicate more our 2137; 673, power no 106 at Block v. has to order the U.S. district court Inst., 467 Community authorizations to aliens Nutrition U.S. at grant work INS 349, 351, 2455, 104 2456.12 It is applications to file on time. De S.Ct. at who failed Congress repeated to see how could have spite government’s reference difficult prevent speaks directly which to made clearer its intention to provision, to this judicial into the INS’ enforce- court’s over this intervention the district fact, 1255a(f)(2) only merely statutory part issue 8 U.S.C. is the also seems restate 11. In Ayuda at issue in the in constitutional terms. Plaintiffs do not ex- of the review subsection cases, 1255a(f)(l)-(4), dupli- plain why "opportunity apply legaliza- that is not for see id. entitlement, constitutionally protected in the review subsection at issue in tion" is a cated 1160(e)(1) (3). is, assuming Payne, Lyng id. § see it but see 476 — nor— U.S. 2333, 926, 942, L.Ed.2d 106 S.Ct. 90 sure, (1986) (“We judicial applicants 921 have never held that elimination of 12. To benefits, already presents from those re- claims a serious distinct over constitutional them, legitimate question presumption ceiving in have a claim of entitle- and the cоnstitutional may protected difficult to ment the Due Process that context therefore be more See, Doe, e.g., Clause_”) why U.S. did not receive Webster v. 486 overcome. 592, 603, — 2047, 2053-54, constitutionally process due under the cir- 108 S.Ct. 100 L.Ed.2d Furthermore, Robison, (1988); 415 U.S. cumstances. do Johnson v. 1160, 1168-69, 373-74, theory" process L.Ed.2d even hint that this "due acts to 94 S.Ct. (1974). pro- Congress’specific preclusion override Plaintiffs make mention of a “due Rather, govern- authority filings. plain- theory” late based on the idea that the to review cess affording theory in the context of tiffs’ is raised ment violated the Constitution meaningful "distinguishing Pangilinan,” "many Ayuda-AigúAe Pl.Br. at a case aliens ... no apply legalization" of a deadline opportunity to before the that involved extension express statutory statutory clusion, however, bar This is a con- rather than evasion of deadline. Pl.Br. at 30. argument review. and not an —and deadline; application we do not III ment of the interpretation of plausible see a alternative nonimmigrant “A” and “G” visas are Congress that would language used provided foreign diplomats, to certain offi- Certainly judicial review this case. allow cials, representatives, and their families explicit more in its provision this is far employees; type the visas restrict the than the statutes at preclusion of review may perform of work their holders while Block, such as 467 U.S. at issue cases 1101(a)(15)(A) country. 8See U.S.C. § 2455-57, 348-52, or Morris v. 104 S.Ct. (G). “A” & Certain and “G” visaholders Gressette, ap- who had violated the work restrictions (1977), L.Ed.2d 506 which made no plied legalization, INS contend- preclusion reference at all to of review. ing that the unauthorized work made their nothing legis- in the And we are directed to presence government unlawful and that the history lead us to a differ- lative that would knew their status. The INS denied the Indeed, legislative his- ent conclusion. ground on the that the claim- language. tory support plain seems to ants’ status unlawful because the opinion original noted in our that: We Department State had not revoked their Congress intended aliens to come for- sought visas. Plaintiffs then to hold the eligibility pe- during ward the 12-month contempt civil of the district court’s call riod because “this is the first construing orders “known to the Govern- call, Cong. last a one shot deal.” ment”; the district court denied the motion. 17, 1986) S16,888 (daily ed. Oct. Rec. appealed, Plaintiffs then asked our court to (remarks Simpson). If of Sen. aliens did appeal abeyance pending hold their fur- during that not make a claim appellate opinion ther review of our first period, lost forever. window it was dismiss, Ayuda; moved to Furthermore, F.2d at Ayuda, 880 1333. arguing ruling first that the district court’s 1988, April ap- with the deadline fast late then, appealable was not an final order and Congress proaching, refused to extend the decision, the after despite con- grace period, well-ventilated jurisdiction court had no over this matter. court decisions had cerns that last-minute The issue before us is thus both the district Cong.Rec. 9291- confused aliens. See plaintiffs’ jurisdiction court’s to hear mo- (1988).13 plaintiffs’ jurisdiction tion and our to hear 1255a(f)(l) hold that both 8 U.S.C. appeal, We but not the merits of the motion.14 (f)(2) jurisdiction deny the district court and I, however, effectively we hold injunctive relief that

to order jurisdic timely application require- that the district court was without eliminates the is We there- tion to issue the orders which the INS ment for work authorization. allegedly contempt. accordingly We government’s remain- fore do not reach appeal contempt, moot. arguments. view this as Civil ing finality Grassley’s that is what comments ... We have to have 13. Plaintiffs cite Senator —and here, way during support produce or other— debate as for the idea we must one the 1988 disregard judicial power finality procedures; the deadline: if in the that this is it and dream, your you want to live the here is may very equitable well be reasons to There 4, you by midnight, May do it chance apply [after allow these individuals again. come that is it and it will never deadline]; but there is no doubt Id. at 9293-94. equipped equitable to evaluate courts are well considerations. mention, however, 14. It bears that the visahold- spoke in at But no other senator complaint seemingly with the INS has noth- ers’ conception judicial power, support of this ing others, whatsoever to do with the district court’s among flatly Simpson, re- and Senator quarreling are about the orders—the visaholders jected such a view: status,” meaning of "unlawful whereas the court people to trust us and trust We asked meaning of to the orders concern the “known year." it is. It is 1 ... "It is a one- was "Here is; Thornburgh, Ayuda, only.” See Inc. v. Government.” here it one time That time shot and 88-0625, op. slip at 3 & n. 1 expressеd Civ. Action No. we and that is what is what 29, (D.D.C. 1989). people June of the United States know.... immigra- illegal the incentives reduce contempt, imposed not criminal unlike goal, Congress court but to authority of the To its second tion. meet vindicate by the court rights clemency deemed corresponding with a enforce acted party. opposing See belonging although acknowledging that humanity, Corp., Foods Spectro v. States United aliens “have become many undocumented Wright Cir.1976); (3d 11 C. 1175, 1182 F.2d con- “have part of their communities” Miller, A.& and Proce Practice Federal myriad States tributed United (1973 Supp. & 583-87 Civil § dure, fear, seek they afraid to ways," “live that the dis have concluded 1991). As we violated, when rights are help their when plain power to determine had no trict criminals, employers they are victimized context, is no there in this rights tiffs’ they ill.” become landlords when government holding the longer a basis Sess., 99-682, Cong., 99th 2d H.R.Rep. No. contempt. United States in civil Cong. Ad- (1986), & U.S.Code pt. 258, 295, Workers, 330 U.S. Mine United To those pp. min.News (1947) 91 L.Ed. such fear for endured aliens who had civil con relief (“The remedial right to [for amnesty. time, Congress offered longest injunc when tempt] falls ... fortiori beyond jurisdiction tion ... was opened amnesty program IRCA’s —brief- Foods, court.”); Spectro [district] for undoc- opportunity ly window —a inapplicable rule (collateral bar at 1182 year, undoc- aliens. For one umented contempt). civil find could come forward umented aliens legalization. eligible

out if were court was with- that the district holdWe credit, recognized Congress its Much to Supplemental to issue Or- out population of undoc- shadow injunctive relief interim to order der V and aliens, long residing in constant umented filing dead- extend the suit to plaintiffs’ authority, ‍‌‌​​​‌‌‌​‌‌​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​​​​‌​​​​​‌‍governmental fear of appeal of plaintiffs’ hold that We also line. amnesty pro- suspicious of the new deeply of their motion court’s denial the district shining promise. gram, no matter how contempt civil hold the Therefore, mea- included several IRCA moot. designed allay these fears sures ordered. It is so apply encourage aliens to suspicions and to legalization.1 dissenting: WALD, Judge, Circuit amnesty us involves this The case before 1986, Congress passed and the Presi- procedural of its and program. For all immigration legisla- landmark signed dent intricacies, presents a rudi- institutional and Control tiоn, Immigration Reform the is a court mentary question: when district Act”). Act The (“IRCA” or “the Act poli- challenges to the to hear authorized compromise a admittedly pragmatic, in its practices adopted the INS cies and illegal sharply immi- sought to reduce both amnesty program? amnesty for administration provide those gration and status, re- illegal Fighting had of the statute who, their words and despite many States controlling Supreme in the United power mained years. decision, ques- majority answers Through a crabbed tion “almost never.” Congress goal, acted meet its first To governing statute case reading of the and certainty, imposed authority and law, un- majority has transformed an employ- penalties on criminal stiff civil clemency into legislative precedented act in order aliens ers of undocumented ("QDEs”) designated qualified entities as Attorney name required General dis- Congress community organizations aliens legaliza- with whom the widely about information seminate friendly to advise and assist requirements for relations obtain- program and the tion applications. 1255a(i). preparation § 8 U.S.C. ing adjustment of status. 1255a(c)(2). Attorney § General Congress also directed group of aliens that came to be known as mirrors.”2 trap doors and “hall of aliens.” Former 265 of the “§ § Immigration and Naturalization Act

BackgRound (“INA”) (under required penalty depor- history this case is not entangled tation) nonimmigrant aliens to make cer- Plaintiffs —both un easily summarized. filings. quarterly tain annual and See organizations documented aliens (1976), U.S.C. 1305 amended 8 U.S.C. § suit assist aliens—filed (1982). however, Apparently, many § interpretation of 8 challenging the INS’ nonimmigrant aliens failed to make such 1255a(a)(2)(B). section sets That U.S.C. § filings. amnesty requirements out as one of the program that “the alien’s under the new ruling, Prior to the district court’s to the Govern unlawful status was known regulations made clear that failure to file [January The INS ment as of 1982].” required by 265 did not render an § regulations which defined promulgated government.” In alien “known to the or- government” as “known “known to the government, der to be known to the “the 245a.1(d) (1988). the INS.” C.F.R. § alien must have made a clear statement or interpre that this contended [anjother agency” declaration to federal inconsistent too narrow and was tation was conveyed then that information to which agreed, The district with IRCA. or the INS itsеlf must have made the INS declaratory injunctive relief granted an “affirmative determination ... regulation, the INS plaintiffs, vacated subject deportation proceed- alien was to enforce promulgated several orders (1988). 245a.l(d)(lH2) ings.” 8 C.F.R. § Meese, 687 Ayuda, Inc. v. its decision. However, the district court’s vacation (D.D.C.1988). F.Supp. 650 regulation Sup- and its issuance of the INS rulings. appeal those did not I removed the basis for plemental Order were not any presumption that 265 aliens Supplemental Order The district court’s amnesty. Supple- eligible for Under stated, 6, 1988, in rele- April issued on Order, quite reasonably be mental it could part: vant taken argued that if “such documentation statutory standard In order to meet the only papers filed as a whole” included not 30, 1988 March pursuant to this Court’s also the absence re- with the INS but Order, must estab- nonimmigrant alien ful- then 265 aliens would quired filings, January docu- prior lish government” re- fill the “known to govern- in one or more mentation existed amnesty. quirement for IRCA agencies so that such docu- ment as a whole would war- mentation taken Order, Supplemental Armed with the nonimmi- finding rant representa- approached INS 265 aliens in the United grant alien’s status apply for advised not to tives but were States was they grounds that did legalization, on the unlawful. government” to the meet the “known supplied). This order (emphasis Id. at 666 orga- Accordingly, requirement.3 several eligibility of questions about the triggered 1068, -, (1991). 1174 112 L.Ed.2d Kanst- 111 S.ct. phrase from Daniel This is borrowed 2. Denials, organizations that room, intervenors were Amnesty § 25 The 265 Review Judicial 53, allege they had been (1990). counseled did that aliens 64 Harv.C.R.-C.L.L.Rev. 1328-29. advised not to file. Id. at that, majority beyond admits that if the evi- But majority’s that there is no comment 3. The outright to had refused plaintiffs,” low level INS officials alien five individual dence that "the filing, 751, accept legalization applications for the ("Maj. op.”) were Majority opinion Maj. op. suit. could hear the five district court away by is irrelevant. The the INS turned plaintiffs’ are read to original affidavits parties 751. Even if the aliens were individual discouragement than out- allege rather interpretation active challenging the INS’ lawsuit accept, distinc- right this is a subtle refusal to U.S.C. 8 the term "Government” indeed, undoubtedly the lost on and one 1255a(a)(2)(B) tion illegal 265 intervention. § not to § involved, grant 1325, upon which to Thornburgh, 1327 Ayuda, Inc. v. — remanded, challеnge practice. deny jurisdiction (D.C.Cir.1989), U.S. vacated filings August until sought to and allowed for such assist 265 aliens nizations that 6,000 (in- 31, Approximately persons compel in order to this suit intervene filing cluding 265 aliens and aliens both modify the dis- and/or compliance with bases) filings made such on other as to injunction so permanent trict court’s Special appointed a Master district court The eligibility of 265 aliens. clarify the pos- filings and to recommend evaluate claims adopted the intervenors’ plaintiffs Opinion Memorandum sible remedies. See court issued and the district as their own (filed 27, Sept. XI Supplemental Order 2,May V on Supplemental Order (filed 1988); XII Oct. Supplemental Order hereby that INS shall be It is ordered 28, 1988). time, plaintiffs had filed By this legalization to denying enjoined petition Supreme with the for certiorari contend that nonimmigrant aliens who light seeking Ayuda I. In Court nonimmigrant status they their violated I, the dis- opinion Ayuda the circuit by failing prior January stay Special compelled trict court felt mandatory registra- comply ... thereby leaving proceedings, Master requirements of Section 265 tion 6,000 legal early applicants in limbo. that such aliens [INA], if INS determines injunction for an moved credibly established their willful vi- have temporary requiring provide 265, and such aliens olation of Section 6,000 applicants. work authorization to the applicable met all other condi- have also they failed applicants averred that had legalization. tions for timely in on from the to file reliance advice Meese, F.Supp. at 668. Ayuda, Inc. v. they they timely, had filed INS and that appealed this order and automatically entitled to have been panel of this court reversed a divided temporary work authorization. Thornburgh, Ayuda, district court. Inc. v. (e)(2). 1255a(a)(l), U.S.C. § (D.C.Cir.1989),vacated and 880 F.2d 1325 evidentiary hearing, the district After an — -, remanded, court found that the “are unable (1991). 112 L.Ed.2d 1174 solely employment because to obtain opinion re appellate for Court vacated requisite work authorization” and lack light McNary v. Haiti consideration impossible inability “that this has made —Inc., U.S. -, Center, Refugee adequate shel provide for them to food and (1991). 112 L.Ed.2d 1005 It is Ay ter for themselves and their families.” government’s appeal from this case—the uda, .Supp. Thornburgh, 744 Inc. v. that, remand, Supplemental Order V— (D.D.C.1990). The court also noted that us the first of the cоnsolidated cases before requested that the Solicitor the INS had “Ayuda /”]. [hereinafter abeyance petition General hold getting story. ahead of the But we are I certiorari Sup- By time the district court issued apparently acceded. The district court V, plemental apply- inequitable time limit for Order concluded that “[i]t [the effectively ing amnesty delay adjudication plaintiffs’ over: the INS] 2, 1988, May rights affording plaintiffs and the a modi Order was issued without 4,May relief.” For those rea filing closed on 1988. cum of interim window sons, this, Supplemental Order issued the court issued Recognizing the district court XIV which Supplemental Order IX which established procedures persons for amnesty-application that, pending disposition a final ordered 4,May by who to file Supreme had failed of by the United States Court /], deadline and who could “show this [Ayuda and further Order of [that] indirectly by Court, directly Immigration were misled or the Defendant agents grant or not allowed to shall INS or its ... Naturalization Service work applying legal- for have apply or dissuaded from authorization to those who eligible through plain- agents.” Ayuda, Inc. been deemed by ization INS or its process, with the Meese, Supplemen- prescreening tiffs’ F.Supp. v. at 674. may con- understanding that defendants tal on Order IX was issued June applicants and a representing SAW tions any determination this Court test before challenged cer- of farmworkers class alien eligibility. individual of employed processing in practices tain Id. applications as unconstitutional individual a divided sought, and government and in violation of IRCA. Sup- stay of granted, a this court panel of 1160(e) precluded argued that 8 U.S.C. § Inc. Ayuda, XIV. Order plemental plain- hearing the district court (D.C.Cir.1990). 919 F.2d Thornburgh, that, pursuant challenge and tiffs’ by Su- I was vacated Although Ayuda 1160(e)(3)(A), only could se- § February preme Court if a of their claims cure review re- XIV Order Supplemental appeal from to “an nonimmigrant subject alien were of our con- the second us as mains before deportation,” or which exclusion order “Ayuda II’’]. cases solidated [hereinafter was, turn, in a circuit subject to review court, the appeals. The district court Supplemental Order V I. Circuit, Appeals for the Eleventh Court Question Jurisdiction I. Federal Supreme rejected the finally the Court argument. government’s I is by Ayuda raised question The initial 1255a(f) dis- precludes whether 8 U.S.C. § analysis began its Court challenge to a over a jurisdiction trict court Al- language of the statute. plain involving the the INS policy of general 1160(e)(3) “[tjhere though provides that § legalization 265 aliens for eligibility of § judicial review of such a denial shall be question I that this IRCA. believe under an order of review of only language by express clearly answered noted deportation,” the Court exclusion itself, 1255a(f) the structure of § to “a determi- denial” “such a referred that by the Su- INA, and, importantly, most adjust- respecting application nation controlling interpretation of preme Court’s 1160(e)(1) 8 U.S.C. of status.” See § ment These McNary. provision identical “Significantly,” supplied). (emphasis 1255a(f) does demonstrate sources § stated, to ‘a determi- “the reference col- over jurisdiction district not bar than single act rather a nation’ describes general policies challenges to lateral practice or a decisions group employed in are the INS which practices of (emphasis Ill at 896 procedure.” applica- of individual the determination em- Accordingly, the Court supplied). tions. “reading of courts’ the lower braced describing process 1160(e)] as [§ A. denials individual direct referring status, rather than pro- amnesty SAW two established IRCA challenges to unconstitu- (at general collateral program issue grams: a by the policies used practices and continuously tional case) persons who this applications.” agency processing in the United States unlawfully resided Thus, con- the Court supplied). (emphasis Special Agri- period and specified dis- 1160(e) supersede the cluded, did not grant- (“SAW”) program § cultural Workers juris- question general court’s federal met trict who farmworkers ing amnesty alien organiza- diction.4 specified criteria. 210(e) applies peti- hold that colleagues complain [W]e neither the My applications. challenges SAW of individual of denials I delineate what kind tioners nor interpre- seek re- respondents’ our does not under action not covered Because are Maj. op. particular short answer at 753. The denial of a tation. merits of a view on the might McNary says suit general feder- Court’s application, the District juris- question general prosecuted under federal 28 U.S.C. under question аl 210(e), or its coun- if § diction unim- remains to hear action here, may p. not exist terpart did see 210(e). infra paired long is directed at so as it prosecuted still be at 897. McNary, 111 S.Ct. deter- policy an general and not individualized mination: support practices, easily found further for that could have used broader

The Court Id. statutory language.” provisions INA’s concern- in the conclusion judicial standard of re- scope and ing the ineluctably All of this leads to the conclu- 1160(e)(3)(B), provides Section which view. Supreme analysis in sion that Court’s solely “shall based judicial review McNary controls this case as well. The record,” serves as upon the administrative judicial provision in case review this that, limiting judicial in indication further 1255a(f)) (§ 1160(e). is identical to The § 1160(e), Congress con- review § provisions in sister two sections are sister the kind of claim before cerned not with and, programs as the itself but rather with dis- the Court concedes, provisions enti- identical are amnesty trict court review individual interpretations. tled to identical Accord- Id. Similarly, the applications. Court ob- ingly, it seems to me that inevitable provided that courts that the statute 1255a(f), served restriction in like review § 1160(e) review cases appeals 1160(e), should “applies only to review of denials § § of discretion.” See U.S.C. Id. [amnesty] applications.” for “abuse of individual 1160(e)(3)(B). The Court found that § apply does not to consti- “such a standard B. claims, which are re- tutional escape The hatch from this conclusion viewed de novo by the courts” but is in- my colleagues argument is the “judicial stead the alternative standard Ring- I is controlled Heckler v. adjudication administrative review of an er, 466 U.S. 80 L.Ed.2d application.” Ill the facts of an individual (1984), a case in which the Thus, (emphasis supplied). S.Ct. at 897 rejected challenge Court a federal court provided in the standard of review policy Secretary of Health and holding supported the Court’s Act further payment Human Services as to of benefits 1160(e) “applies only review § A program. under Part of the Medicare applications.” of individual SAW denials McNary The own Court’s discussion supplied).5 (emphasis Ringer, however, argument drains that energy. Ringer all its involved different completed interpre- Finally, the Court facts, statutory language, different by emphasizing Congress’ analysis use tive fundamеntally legislative goals. different 1160(e). The of narrow terms § end, Ringer any In the neither nor other 1160(e)’s “judicial restriction of compared § McNary. authority provides escape respecting of a determination

review adjustment application for of status” with Ringer filed an action INA language elsewhere which ad- court, invoking federal district the court’s of all judicial review causes “aris- dressed (28 question jurisdiction federal U.S.C. provisions par- of a ing under” 1331), right to establish a to Medicare § subchapter another and with statute ticular particular reimbursement form of questions “on all governed which review surgery. governing statute, however, particular program. under a law and fact” precluded judicial under review 1331 of § Id. The Court concluded that “had “any arising claim Con- under(cid:127)” the Medicare provi- gress 405(h) the limited review (emphasis sup- intended Act. U.S.C. § [1160(e)] plied). of the INA to encom- required sions of The statute all Medicare § challenges procedures pass to INS claimants to exhaust their administrative reading way majority’s amnesty programs dismissal of Court’s in which the IRCA statute, Maj. provision op. at 748 n. being of this are administered. The Court an- point. appellate Of course an misses question negative. swered that in the Abuse of can review for mistakes of law under an review, found, suggests discretion the Court discretion standard. That is not the abuse of 1160(e), Congress intended thus Rather, Congress question is whether issue. 1255a(f), govern primarily judicial by enacting particular pro- intended adjudica- of the facts found in administrative preclude ordinary question federal re- vision to legalization applications. tions of individual challenges view under 1331 in the case of could have practices and it procedures in INS federal seeking review before remedies as statutory language such broader used 405(g). 42 U.S.C. § court. “ any of the arising under causes ... ‘all found that predictably Court Ringer The program.” legalization the provisions’ of [plain- construe sense to makes no “it 1329) (quoting 8 U.S.C. at 897 § Ill than, at anything more as ... claims tiffs’] supplied). (emphasis paid be they should bottom, a claim preclusion of expansive more Congress’ at 466 U.S. surgery.” their for under jurisdiction question federal such claims Because at 104 S.Ct. is reflected than under IRCA Act Medicare Act, the Court the Medicare under” “arise in but language in textual federal court lacked held goals of legislative fundamentally different plain- adjudicate jurisdiction question above, Con- As discussed the two statutes. to exhaust had Plaintiffs tiffs’ claims. trapped most aliens recognized that gress pursuant remedies administrative their be illegal would an status years in seeking review 405(g) before 42 U.S.C. pro- legalization initially of distrustful 104 S.Ct. Id. at court. federal for a net- providing By in IRCA. cedures 2027-28. and QDEs to aliens accurate offer work however, the critically, Additionally and advice, ensuring the confi- by confidential though Ringer that even found Court information, application all dentiality of their have to exhaust first plaintiffs would widespread dissemina- mandating and review administrative through the claims information, Congress legalization tion have an “clearly process, these uncertainty to minimize structured IRCA challeng- 405(g) for remedy adequate allay the fears possible as insofar and aspects all federal ing court] [in Precluding federal applicants. potential claims.” of their Secretary’s denial regulations or of all INS question review at 2023. directly con- run practices would general it For statutory policies. trary these I Sub- Ayuda Involve Ringer and living in the illegal mean that would Statutory Lan- stantially Different expected society would be our shadows Goals Legislative and guage identify themselves come forth argues officials, in this case majority by regula- though such, even action they were plaintiffs’ telling federal Ayuda them were policy, tion reading A careful offi- Ringer. and that precluded legalization ineligible for however, applica- demonstrates that their Ringer, recommend would cials I. though from distinguishable denied, even clearly be tions Ringer challenge significantly, First, opportunity most no have would statute from through appeals a different interpreting except policies those brought The IRCA here. proceedings at issue deportation one than later applies Furthermore, they would review limiting judicial against them. provision applica- after respecting until to wait required “a determination come 1255a(f)(l). legalization tion.” 8 U.S.C. deadline were contrast, withdraws if out their gone to find Ringer, provision cases could “any “test” denied, no so that question fact federal individual cases. involving Act. 42 brought Medicare arising under” claim cоntrol effectively Moreover, INS could supplied). 405(h) (emphasis U.S.C. § poli- a far review of signals language any ultimate “arising under” authority to discretionary ordinary through its cies statutory preclusion broader depor- to initiate or not paral- whether than IRCA’s decide question federal only ve- are the which proceedings determina- tation “a over of review limitation lel It is incredible Indeed, judicial review. hicle application.” respecting tion such a played have Congress noted believe expressly the Court abandon” “seduce game of shabby Congress difference, finding that had very benefitting. to be it claimed the aliens all with 1255a(f) limit review intended § Act, contrast, by Con- the merits ... have the effect of estab- Medicare In the applicants lishing reason to fear had no their entitlement to SAW sta- gress reimbursement; quite [They] only not file for would tus .... would be entitled problem was to establish a opposite, reopened have their case files and their process mil- orderly light for the permanent applications reconsidered in anticipated would be filed newly prescribed procedures. lions of claims INS up purpose, it “set a every year. For S.Ct. at 898. requires presentation of a scheme Michigan Academy Family Bowen v. Secretary.” Ringer, concrete claim to 667, 106 Physicians, 476 S.Ct. U.S. 625, 104 at 2027. The at (1986), Ringer, L.Ed.2d 623 is thus the Act, according Ringer to the Medicare Bowen, precedent. most relevant balancing Court, the individu- intent on was permitted challenge a district court uncertainty hardship by caused as to al governing by to a rule the method which reimbursability “against potential for calculated, Medicare benefits were even premature judicial overly casual or inter- though appeals administrative had been system administrative vention an mandated for individual reimbursement every millions of claims processes literally claims. The rule reimbursement for barred year.” 104 S.Ct. at 2028. Con- services, physician non-Board certified very gress’ foci in the two Acts was thus disputed plain that was also the issue in encourage legaliza- different: IRCA to Certainly tiffs’ individual claims. no less very filed within a tion hand, ruling than in the case at for the timeframe, regulate Medicare short gone long way would have to long haul. To bar the their flow over “establishing ward their entitlement” to plaintiffs’ access to federal court on Ayuda sought. Maj. op. (quot the benefit at 749 authority Ringer ignores this funda- ing just McNary). similarly, But as indi difference between Acts.6 mental vidual still had to meet Bowen many requirements additional for Medicare Ayuda I 2. The are Not Plaintiffs reimbursement, Ayuda plaintiffs Seeking a Substantive Declaration require have to meet the numerous other Right Legalization Their legalization ap ments for in the individual majority asserts that like the suit in The plication process. mere circumstance “this lawsuit is ... effort to Ringer, the rule both and an individual deter adjudicate plaintiff aliens’ ultimate eli- might implicate legal mination the same opposed gibility legalization” for to “a issue found determinative challenge, resolution of collateral which Bowen Court when one attack is directed necessarily eligibility.” does not confer general interpretative at a rule and the Maj. disagree. peti- I These op. at 749. eligibility specif other at an individual’s seeking are not an ultimate deter- tioners govern ic benefits. The same result should eligibility legalization, mination of their here. they only ruling that could not be turned door of an erroneous away at the because Majority’s 3. The Ruling Amounts to to the interpretation of the “known Govern- Denial Judicial Re- Effective requirement ment” the statute. What Any Challenge view Substantive petitioners about the there is McNary said Legalization Program true here as well. argues, however, [They] majority do not seek a substantive declara- plaintiffs, are entitled to Ringer, tion that SAW status. like those will they prevail eventually meaningful the fact that Nor would attain re- majority’s permitting lenges might assertion that dis- undercut administration Act, challenges generalized policies they affirmatively support trict court Medicare the ef- Congress’ carefully crafted would "undercut ficient IRCA administration of the IRCA, administering Maj. op. scheme” for program. target. thus While such chal- 752 is off injured persons to a class appli- caused individual completing the upon view It is practice. unconstitutional their situation so process, cation that court through an action district plaintiffs the Bowen from distinguishable an members can obtain injured class But cut off. had been review all whom for unconstitutional stopping the injunction McNary ignores the totally argument this praсtice. review judicial of dismissal own Court’s for only ineffective omitted). IRCA as (footnote under 498 Id. at well ineffectual applicants, but fearful conveniently ignores majority The pro- deficiencies remedying broad for in- regarding concern McNary Court’s administration. gram application for sufficiency of an individual pat The practice that in a cases. pattern found or adjudicating Court McNary The handicap in like appellate review a plaintiffs action suffer practice tern sys- do has the INS application attempting prove would to that SAW individual an allegedly applications. 265 tematically discouraged nothing illuminate to § little action, appellate there An federal court practice. a direct pattern or Absent illegal factfinding capabil in this case said, simply way no for court, needs the is of, allegedly effectively adjudi redress court to and seek prove, to ity of a district officials at 898-99. 111 S.Ct. of lower level illegal claims. actions such cate picked applying has Circuit the Ninth 265 aliens discouraging Since juris court find district to up legalization.7 on this theme pattern challenge to for a diction argues shortsightedly majority also — (“IJ”) in Judge Immigration of an practice challenge legal to only a I believe—that Nail, Campos v. rejecting applications. opposed statute as interpretation Cir.1991), per the court (9th F.2d 495 940 procedures practices or challenge to a challenge to federal direct a mitted Ayu- that therefore here and involved all rejecting practice of IJ’s can receive McNary’s, plaintiffs, unlike da seek by asylum venue made change of individual cases through adequate review Id. El Salvador. from Guatemala ers ap- proceedings deportation culminating in argued that 496. The at Maj. op. at appeals. the courts pealed to similar by a statute was barred claim 749-750. review judicial 1255a(f) limited so claim were petitioner’s if even the But deportation orders. individual appeals from construed, Court ob- narrowly argument, this rejected Ninth Circuit served “difficult, if were claims noting such for direct provision is no there because present in an individual impossible sta- SAWof of the denial review judicial in review deportation proceeding apprehended alien later unless the tus 497- Id. court.” at before proceeding initiated, are proceedings deportation alien Moreover, if individual even 98. themselves can ensure aliens ... most illus his case was prove that able to were voluntarily sur- if only review practice, pattern or illegal anof trative deportation. themselves render still fail would process individual supplied). (emphasis meaningful review because 898 provide price is tanta that “that concluded the Court remedy available review.” judicial complete denial case, injunction. mount not an of that reversal 8 harm Id. to alleviate the little do This would juris- (1985) (finding district Servs., L.Ed.2d Legal Inc. Executive Rescate El

7. Cf. widespread "allegations adjudicate Review, diction 941 F.2d Immigration Office of officials”). immigration be- Cir.1991) (recognizing abuse (9th the "distinction of an on the merits jurisdiction to rule tween "absent initiation noted The Court also 8. jurisdiction to deportation order individual against an unsuccess- deportation proceeding practice of con- alleged pattern and on an rule judicial legalization], applicant violations”); [for v. Nel- ful statutory Jean stitutional or son, com- determinations Cir.1984), such individual (11th 111 F.2d aff'd 893. McNary, 111 S.Ct. at foreclosed.” pletely grounds, other in McNary found obvi- a run-of-the-mill exclusive case the Court What equal force here: “re- ously applies with gen- in which have to overcome stricting review to the courts of presumption statutorily pre- eral that a component of the review of an appeals as a scribed method of review the court of practical deportation order is the individual appeals displaces general grant the more equivalent of a total denial of re- question jurisdiction federal generic constitutional and view of Maj. op. courts in 28 U.S.C. why claims.” at 899. That is the most agree Supreme I with the Court in precedent relevant —as however, provision limit- Bowen, Ringer. not McNary noted in —is ing judicial review of individual denials The Bowen Court construed the See id. appeals from individual de- provisions of the judicial review Medicare portation (1) not orders “exclusive” of challenges review of to the statute to allow ordinary question jurisdiction federal calculating method for certain Medicare challenges generalized practic- rules and payments. empha- Part B The Court there effect, (2) es and in real life tantamount to presumption favoring sized its “well-settled judicial no In review at all. the case of interpretations judi- of statutes that allow no, defective, fatally or even re- action,” cial of administrative view, the government burden falls on the (citation omitted), McNary, 111 S.Ct. at 898 Congress to demonstrate that intended to contrary interpretation and that a noted preclude general question jurisdic- federal there would mean that would be “no re- Supreme tion. The Court said as much in a statutory view at all of substantial involving judicial case review of the admin- challenges Secretary’s constitutional to the unemployment pro- istration of an benefits pro- administration of ... the Medicare gram: Bowen, 680, gram.” 476 U.S. at at 2141. Just so here. [wjhile the Act vested state courts with majority’s jurisdiction reliance on exclusive over claims Ringer is mis- chal- facts, placed. Ringer lenging agency’s application involved different ... a[n] statutory language, and different funda- guidelines federal to the benefit claims legislative mentally goals. different employees, of individual there is no indi- vigor clarity Court’s Congress cation that intended rele- [the dismissed, holding is not to be distin- deprive vant statute] federal guished, or eluded: “we hold that subject-matter courts of applies 1255a(f)] only to review de- [§ 1331(a) under 28 U.S.C. ... to hear applications.” nials individual ... statutory or challenges constitutional (emphasis Ill supplied). S.Ct. at 897 guidelines the federal In- themselves. deed, base, majority frequently upheld At and I differ in our we have a con- majority trary principle: although vision of this case. The sees it as problematical they rejected apply interpreta Thus it is conceivable that a rul- continue to circuits, ing legalization proceedings escape could re- tion not in other but to other government completely See, view if the chose not to e.g., individuals’ claims in the same circuit. deportation 3-4, 15-16, initiate involved, in all such cases. The aliens Petitioner-Appellant Brief of however, would lose all benefits of the Bd., Johnson v. United States R.R. Retirement Act since would be denied work authoriza- (D.C.Cir. 12, Aug. Nos. 90-5380 filed tion, Court, and in the words of the 1991) (discussing non-acquiescence by Railroad position [they “in an even worse than were] Board); Respondent-Appel Retirement Brief of passed before the Reform Act was because law- (D.C.Cir. 12, 1991) Sept. lee at (same); Johnson filed employment opportunities longer ful are no (D.C.Cir. Appendix at Johnson filed persons.” Id. at available to such 12, 1991) Aug. (dissenting opinion of Railroad not, criticizing Maj. op. Retirement Board member "Despicable” non-ac a case Board). quiescence by currently Railroad Retirement before this court demonstrates that rate, point government agencies At have been of the caveat is that known to avoid Congress any nationally hardly applicable have test of their devised a scheme interpretations illegal by refusing petition for Su- left aliens under such time con- preme legalization applications Court review of adverse circuit court straints on so much at rulings appeals mercy immigration in individual at the same time officials’ discretion. my argues and jurisdiction, eligibility determinations individual INS has agree that because colleagues may be con- programs benefit certain agency action on final yet state undertaken law to adminis- not federal fined disposition claims of IRCA processes, trative my in contra- unripe.10 being operated aliens, the case is program Consti- broadly. or the sweeps statute too argument view, of a federal vention in fed- brought ripeness nonetheless concerns finality can tution Although Michigan v. Bowen from eral court. the district may prohibit Cf. Family Physicians,.... Academy authority to primary the INS’ preempting eligibility Brock, 477 on the to rule Union, IRCA interpret UAW International not bar aliens, concerns do 274, 285, such (ci supplied) taking measures (1986) (emphasis L.Ed.2d the district omitted). de- agency’s designed tations ensure prejudice irreparably layed does action the oth- thus on shoe is presumptive the dis- destroy does plaintiffs and perva- majority’s Contrary er foot. jurisdiction. ultimate fed- mount a trict court’s right to the assumption, sive general challenge to adminis- question eral is to ripeness doctrine of purpose re- INS of the practices policies trative courts, through avoidance the “prevent otherwise.9 signals Congress mains unless entangling from adjudication, premature Con- that superclear it McNary made And over disagreements in abstract themselves here. judgment make gress did “protect and to policies” administrative judi- in favor presumption strong “The until an interference judicial from agencies is not action of administrative cial formalized has been decision administrative the language or by either overcome way by the ‍‌‌​​​‌‌‌​‌‌​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​​​​‌​​​​​‌‍in a felt concrete its effects and provisions the relevant purpose Laboratories challenging parties.” Abbott at 899. S.Ct. McNary, 111 Act.” Reform 136, Gardner, U.S. 387 v. conclu- then, no other is there my In view (1967). Abbott 1515, 681 18 L.Ed.2d had court possible but sion two to examine us directs Laboratories chal- plaintiffs’ adjudicate judi- issues “the fitness factors: administration INS’ lenge to the parties hardship to the cial decision program. IRCA Id. at withholding consideration.” court 1515.11 S.Ct. at 87 Finality Ripeness II. does not case, government In this colleagues’ second my Passing on now a “case present plaintiffs that the dispute I denying

ground as I — Insofar ripe for review. challenge Federation, is not Lujan v. National 9. Wildlife circular, reasoning it, (1990), find their I -, understand 111 L.Ed.2d S.Ct. have never i.e., could proposition that the district for the majority cites because which the agen- challenge agency ac- right final "general ... if there were even jurisdiction, is no there facially regulations juris- rath- interpretation nothing preserve cy tion, ... could do it basis,” case-by-case as-applied, pages prior hopefully on Obviously, er than diction. Lujan, contrary. In not to the Maj. op. is established, Arti- did have the district have on administra- an attack mounted controversy” jurisdiction which “case or cle III" program which consisted entire of an tion agency taken preserve until the could agency actions individual approximately matter. on the cut substantive final at 3189. Id. 110 determinations. attempt “wholesale to seek rejected this Court improvement” complements parallels and first factor 11.This program government general re Act’s Procedure Administrative courts, explicitly "[i]f found but through the prior to agency be "final” action quirement that regula- specific order or fact is in some there have As we § U.S.C. See 5 judicial review. across- tion, particular measure applying some noted, finality to con “tend challenged ripeness and of course often verge it сan ... the-board prema prevent adversely affect- are person both meant in that APA under the ed_" origi- (emphasis in in the administrative & n. at 3190 intervention ture Group nal). Research Health Public process.” Citizen 1984). (D.C.Cir. FDA, my critique of colleagues’ my read I have plaintiffs’ argument that the to their refutation short, then, while one of the controversy”; 265 aliens seek Abbott § discouraged applying (hardship) points for Laboratories factors to- have been constitutionally (fitness legalization. ripeness, To this IRCA ward the other and finali- extent, challenge plaintiffs’ ty) points away. Facing mandated a similar conflict judicial review. But unlike Citizen, suitable concluded that hard- Public we challenge plaintiffs’ initial to 8 C.F.R. ship 245a.l(d) (the govern- “known to the § rarely finality will overcome the and fit- regulation) the 265-related chal- ment” problems attempts inherent ness lenge regulation. involve a More- does not positions_ review tentative A tenta- over, Legalization Appeals Unit the INS’ agency position generally will not tive (“LAU”) agen- yet has not articulated the and, susceptible in a form of review ... regard ap- cy’s policy with 265 IRCA perhaps importantly, more Therefore, ar- plicants.12 at odds fundamental notions of ad- has gues, it cannot be said generally require ministrative law that agency position eligibil- taken a final agency to resolve substantive issues ripe and the case is not ity of 265 aliens in the first instance. for review. principle applies 740 F.2d at 31. The same Although majority appears content to ripeness, in this case: the doctrines of fi- here, analysis I end its believe Abbott nality, deference to lawful weight and the of circuit Laboratories agency interpretations all indicate that the precedent require more. dis- “[W]hen give oppor- courts should the INS the first finality, inclined to find ‘we must then tunity eligibility to determine the of § weigh against consideration the imme- aliens. impact challeng- on the diate of the actions ers, impact is so harmful and whether explained in But—as we Public Citi- ” present consideration is warranted.’ determination does not ... “[t]hat zen— Group Public Health Research Citizen close the book on this case.” Id. at 34. FDA, (D.C.Cir.1984)(quot- 740 F.2d though may ordinarily Even the court not ing Midwestern Gas Transmission Co. v. substitute, instance, in the first its own (D.C.Cir.1978)). FERC, 589 F.2d judgment way a statute should be interpreted applied agen- for that of an hardship factor—“the This second may keep cy, a court watch over the tim- withholding parties of court considera- agency ing Notwithstanding of action. strongly in of a find- tion”—militates favor finality, certainly lack of “courts are not judi- ing ripeness of this case. Absent power to the without address interests of a action, period filing cial the for for IRCA regulatory beneficiary ... when unwar- legalization would have ended and thou- agency delay prejudices ranted those inter- persons sands of would have lost their Accordingly, in ests.” Id. at 32. Public amnesty. purely In human chance Citizen we went on to observe that the terms, perhaps impossible— it is difficult— strongly suggests pace “record of enough us fortunate to have those of agency decisionmaking unreasonably is dil- country appreciate been in this to born atory” and remanded to “the District Court fully opportunity. the of that lost value initially to take evidence and rule on wheth- aliens, For undocumented IRCA offered response agency er the ... been ‘un- hiding, one-time chance to come out of ha[d] ” reasonably delayed.’ Id. at 34-35. This stop “belong” running, to to America. The comports conclusion with Abbott Laborato- hardship withholding judicial is of finality ries’ direction that doctrines of as that I have encountered in severe applied in a ripeness more of re- “flexible” and than a decade administrative “pragmatic” view. manner. Abbott Laborato- inaction, course, fully filing require- 12. § This of is understanda- the basis of failure to meet 1(d), ble: until the district court vacated 245a. § ments. regulation clearly amnesty precluded on 30, 1988, would meant that March 1515- ries, take a final opportunity to have the eligibility of the position on agency that a clearly establishes Public Citizen filing pe- 12-month 265 aliens before § contin- in which finality in a context lack agen- May Until the riod ended impose grave harm does delay would ued action, the district final cy took such jurisdiction. a court totally divest legality of that action. on the rule could not action, may agency a court final Absent act, the Thus, court did not if the district agency's authority preempt lack time passage the INS and inaction of interpret the sub- jurisdiction primary district destroy the conspire to jur- statute, still retains the but it stantive over claims jurisdiction court’s actions, agency’s oversee the isdiction circumstances, the aliens. such 706(1) under, of the Admin- example, authority to equitable court has 706(1)) (5Act Procedure U.S.C. § istrative prospective juris- preserve its take action Citizen). (as Public case authori- thereby preserve diction protect authority is essential This policies of the INS’ legality ty to review Thus jurisdiction. prospective court’s practices. likely to de intervening events are when equitable power exercise the All jurisdiction, of its prive a court wholly appropriate. this situation to “issue all the court Act authorizes Writs withholding judi- harm to aid necessary appropriate writs severe, imminent, irrepa- cial 28 U.S.C. jurisdiction ].” [its] rable; relief is consistent interim context, analogous we 1651(a). In an IRCA; articulated in public interest as authority is not limited that such noted “ urge relief pressures time and the jurisdic in aid of writs ‘to the issuance plaintiffs.13 through no fault arise extends already acquired ... but tion circumstances, I believe that In such are within cases which [the court’s] those soundly exer- properly and district court appeal although no appellate ” power “to long-recognized cised its perfected.’ Telecommunica has been may as events injunction] adapt[ the initial FCC, v. Action Center Research tions v. & States shape need.” United (“TRAC”) Swift 70, (D.C.Cir.1984) 76 750 460, 463, 106, 114, 76 Co., 286 U.S. Trade Federal Commission (quoting (1932). L.Ed. 999 597, 603-04, Co., 86 384 U.S. Foods Dean (1966) 1738, 16 L.Ed.2d 802 properly S.Ct. tai- Order V Supplemental omitted)). According (internal quotations power limited suit the court’s lored to All Act TRAC, that the Writs we held ly, agency action. of final the absence writs court to issue “empowers a federal judg- the court’s not substitute Order does pro protect its necessary to determining mandamus that of the INS ment for (em 750 F.2d at jurisdiction.” aliens; spective Order eligibility of § in this supplied). The district phasis “enjoin[s strictly INS] prohibitory: by es analogous power exercised case legalization” denying § collection of tablishing for the a mechanism grant the INS to require does not aliens—it who claimed by those filed Meese, 687 Inc. v. legalization. Ayuda, statutory peri that, filing in not within in- subsequent Orders F.Supp. 668. As the INS’ unlawful od, they had relied lim- recognized the dicate, district court representations. regulations and as a authority served not its of its as a agency but rather surrogate of court’s initial timing the district applica- constructively filed collector vacating the ruling INS’ unappealed did not order The district court tions.14 regulation on government” “known court’s of the district character important 14. The interim regard latter it is to this fact With recognize that such directly its instruction arose also evident 265 issue action is ruling that the INS’ district court’s from the regulation government" was in- "known valid. aliens, merely pre- food, clothing, but out the bare necessities: quo by accepting status and shelter. served the applicants holding applications from who April In 1990—more than 25 months af- they would have filed but for averred that litigation began ter —the regulations. unlawful Such an the INS’ sought argument interim relief. Their was provided develop the INS time to action straightforward potent. If the INS policy eligibility of on the 265 aliens properly interpreted IRCA’s “known to light of the vacation its initial “known to government” requirement, per- these government” regulation. actions Such legalization. sons would have filed for If fully are with the court’s limited consistent persons legalization, these had filed for power preserve prospective juris- its own automatically grant- would have been authority diction and established temporary permits. ed work The district modify injunctions adapt its own to un- agreed Supplemental and issued Or-

foreseen circumstances. required grant der XIV which the INS to work authorization aliens who had filed sum, McNary establishes that IRCA Supplemental under Order IX. preclude district does not court review of challenges regulations, collateral to INS I. Mootness Therefore, policies, practices. the dis- strange pos This case is before us in a properly trict court in this case exercised ture. We are asked to review the district Moreover, question jurisdiction. its federal court’s order “interim relief” although challenge raised after relief has come to an Supplemental end. may ripe by ordinary not have been provided “pending Order XIV relief a final standards, unripeness such did not divest disposition by the United States jurisdiction. Instead, the court of under Ayuda, Court of Thornburgh, Inc. v. No. law, well-established circuit the court re- Ayuda, 89-1018.” Inc. v. Thornburgh, power preserve pro- tained the its own F.Supp. at 22.15 It is undisputed that spective jurisdiction. Supplemental Order disposition granted such final Febru precisely V did that and therefore that Therefore, ary ap I believe the Order, my opinion, should be affirmed. propriate Ayuda action is to dismiss the II appeal as moot and to remand this matter Supplemental II. Order XIV to the district court to vacate the Order. Inc., Munsingwear, See United States v. original complaint litigation in this 340 U.S. 39-40 n. & years was filed on March 1988. Two (1950). 106-07& n. 95 L.Ed. 36 changed: later little had the district court Orders, had a dozen government issued the however, compelled, I feel to make one appealed appeals, twice the court of further observation. This is the third time 4,000 6,000 persons and still waited for years litigation three that this has been rights adjudicated. their to be As litigation before this court and the has last- grew waited their situation more and more ed more length than three times the desperate. The INS enforced IRCA’s new amnesty program itself. While I admire sanctions, employer and the aliens lost tenacity sides, the of counsel for I both primary jobs. their source of income—their suspect litigation might, sadly, that this They expenses, upon cut their drew their itself become moot of “natural causes”: savings, money some borrowed from their support hope with no means for and little friends or from churches or charities. De- legalization, of the thousands of aliens who spite generosity, many pressed may such were left with- their claims be forced to leave

filings accepted statutorily without the re- 15. The does Order condition the interim relief "pending quired filing prevent as further Order fee in of this Court." order aliens from F.Supp. phrase, at 22. But that it seems to forfeiting Supplemental the fee should Order V me, simply boilerplate language the of inter- appeal. F.Supp. be reversed on See 687 at 668. only issuing im relief: the court can vacate its own Order. (filed nunc filed promptly constructively unadjudicated, rights their country, the Mas- Special by the suggested as pro tunc by law not but determined status their Office Second, Legalization ters). necessity. so and instead do must refuse (“LO”) Third, late filed. as reject applications the Discretion II. Abuse of determination. that affirm must the LAU merits the reach if I were Even the challenge to Fourth, upon a collateral it can- Order, I believe court’s district inter- must federal court ruling, a LAU’s court reasonably be said not nunc barring such 1255a(f)(2) as pret § ordering interim its discretion abused these only if If and filings. pro tunc relief. fail to suc- plaintiffs the occur will events considers court the district factors The merits. the ceed on of likelihood (1) plaintiffs’ the are familiar: colleagues that my with agree I not do of (2) threat merits; the on the success required the four all of of probability the absent plaintiffs the injury to irreparable the to offer high as occurring is so events the relief; (3) possibility the interim of suc- likelihood only minimal others; harm substantial cause relief will do not Accordingly, I the merits. cess on Ambach (4) public interest. either that colleagues my agree (D.C.Cir.1982). 974, 979 Bell, in order- its discretion abused district rely majority feed, The necessary to relief ing interim factors. of these the first heavily on most of aliens the thousands clothe, shelter 8 U.S.C. emphasizes majority The is a only request whose families and their that: provides 1255a(f)(2),which heard.16 claims legal their to have chance under status adjustment No denial filing of a late based on section Conclusion may be adjustment such application United truly know by a court must reviewed AYUDA snatched having defeat meaning States.... colleagues’ victory. My jaws from gun. however, jumps the majority, over denying decision earlier “reviewing” a district court by the vacated claims was status, their it was adjustment “denial” “reconsid- remanded case and the This Court quo. status preserving merely McNary was McNary. of” light eration ap- play come into section —and Su- by the interpretation plain-speaking majority prehensions sound— revisit we provision preme events. of several occurrence upon the ap- did restricting judicial today must direct First, theirs. like challenges generalized ply collected consider litigation underlying has Even where panel der. holding of the dissent I also adjudica- concluded, contempt civil not been moot. Ayuda III is now appeal in plaintiffs’ injunctions are permanent arising from tions Maj. op. majority, by the As summarized may and proceedings post-judgment considered of denial court’s district appealed the U.S.C. under 28 appealable immediately con- hold motion their Corp., Realty v. Shore New York See § 1291. denying the tempt for Cir.1985); (2d York State New 51 F.2d holders. non-immigrant visa "G” and of "A" Corp., Corp. v. VSL Dev. Urban appeal government has moved deny the Cir.1984). (2d I would therefore grounds that the alternative on dismissed ap- plaintiffs’ to dismiss motion gоvernment’s plain- to hear- jurisdiction lacked district peal. plaintiffs’ of the denial motion and tiffs’ however, Maj. op. colleagues, my Along with order. final appealable was not motion dispute over the too note n. I nonimmigrant holders visa "G” of "A” status district I believe interpreta- INS’ around apparently before revolves the issue so plaintiffs’ motion hear 1255a(a)(2) than aspect of § a different appealable was tion order the court’s is whether us provision that government” view, "known court’s my order. aas final orders court's the trial the basis to hold motion plaintiffs’ denying order Ayuda II. I and or- appealable contempt was an government in however, has, subjected now been interpretation in order to to a revisionist basically the same relief

deny them years Three of a dedi-

grounds as before. painstaking efforts to judge's trial

cated justice to one of our most

bring reason and problems have been

troubled national pen. stroke of a with the

erased sincerely I believe to

I dissent from what statute, interpretation of the wrong

abe unnecessarily cramped

compounded by an ef-

interpretation of the Court’s injury Schloss, D.C., to ration- implement Washington, forts to it. David M. statutory interpretation principles petitioner. Regan, Washington, M. al Patrick controlling precedent by today’s D.C., decision is appearance, peti- also entered an suffering in- surpassed only by the human tioner. 6,000 turning applicants for away

volved Rockville, Md., Healy, James G. for re- amnesty hearing. without Hertzig, spondents. Attorney, Michael S. Labor,

Dept, Maiberger, Donald P. D.C., Washington, appear- also entered an ance, respondents. EDWARDS,

Before WILLIAMS and RANDOLPH, Judges. Circuit RIVERA, Petitioner, Jose Opinion by for the filed Circuit Judge F. MASONRY, STEPHEN WILLIAMS. INCORPORATED UNITED Compa- Liberty Mutual Insurance Separate concurring opinion filed Director, ny and Office of Workers’ Judge Circuit HARRY T. EDWARDS. Program, Depart- Compensation Labor, Respondents. ment of WILLIAMS, Judge: STEPHEN F. Circuit

No. 90-1615. scaffolding fell from Jose Rivera while employment Masonry, of United break- Appeals, States Court of United ing temporary his left arm. He received Circuit. District Columbia disability covering total benefits the time Argued Oct. recovery during complete- he which was ly incapacitated, temporary partial disabili- Nov. Decided ty covering recovery benefits the time

during partly incapacitated, which he was partial disability permanent benefits permanent impairment of arm. for the his Longshore and Harbor Workers’ Com- Act, pensation seq. U.S.C. et (the “Act”), (1988) as extended the Dis- Compensation Workmen’s trict Columbia Act, (1973) (re- seq. 36 D.C.Code 501 et §§ 1980). pealed injury Rivera also claimed that the en- shoulder, compassed ‍‌‌​​​‌‌‌​‌‌​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​​​​‌​​​​​‌‍left and that the his arm and combined effect of the shoulder prevent working, him from injuries was to

Case Details

Case Name: Ayuda, Inc. v. Richard Thornburgh, Individually, and as Attorney General of the United States, (Two Cases) Ayuda, Inc. v. Richard Thornburgh

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

Date Published: Nov 5, 1991

Citation: 948 F.2d 742

Docket Number: 88-5226, 90-5293 and 89-5301

Court Abbreviation: D.C. Cir.