Hotel & Restaurant Employees Union, Local 25 v. Attorney General of the United States

judgment motion plaintiffs’ while two of ROBINSON, Before MIKVA and SIL- discovery requests pending, were and re- BERMAN, Judges. Circuit mand to the court for its resolution of those matters. Opinion by for the Court filed Circuit Judge MIKVA. Background I. Opinion concurring part dissenting in and A. The Statutory Broad Mandate the by Judge part filed Circuit SILBER- Immigration and Naturalization MAN. Service

MIKVA, Judge: Circuit reviewing discharge the INS’ of its Illegal duties, aliens in the United States face we must in mind the bear limited possibility deportation. scope the constant At- inquiry. precedents of our Our “ tempting omnipresent long to this recognized power expel remove ‘have to threat, plaintiff brought union in or suit exclude aliens as a fundamental sover- against eign by district court the United States At- attribute exercised the Govern- torney Secretary political departments General and the of State. ment’s largely im- ” co-plaintiff, Hernandez, Fiallo v. judicial Mauro is a Sal- mune from control.’ Bell, currently residing vadoran national 787, 430 U.S. 97 S.Ct. subject (1977) United Shaughnessy deportation. (quoting States and Mezei, 206, 210, sought Plaintiffs extensive revisions procedures Immigration (1953)). by political used and 97 L.Ed. 956 (INS) branches, course, respect pro- Naturalization Service in its treat- must ment of requirements process. Salvadoran aliens. Plaintiffs also cedural of due As observed, however, that Salvadoran nationals are enti- Justice Frankfurter has Attorney “[tjhat tled to a decision policies General formulation of these that he temporarily suspend deporta- exclusively Congress will entrusted has be- proceedings against tion firmly leg- them for humani- come about as in the embedded reasons; tarian aliens judicial body covered such islative and tissues of our possess Voluntary politic any aspect government.” decision De- of our “Extended Press, parture” (EVD) 522, 531, Galvan v. status. 347 74 U.S. S.Ct. 737, 742, (1954). In accord- L.Ed. parties After conducted extensive Congress’ plenary authority ance with discovery, granted the district sum- regulate aliens, recognized the Court has mary judgment for defendants on both rules, congressional validly ap- that some to the INS’ and the aliens, plied unacceptable “would be claim for EVD status. For the reasons Diaz, Mathews v. applied to citizens.” below, part, stated we affirm and re- 48 L.Ed.2d part. agree verse and remand in We (1976). plaintiffs the district court that stand- had ing to sue and ripe Immigration Nationality claims were In the and Act (the Act), seq. 1101 et decision. also affirm the of 1952 8 U.S.C. § (1982),Congress plenary pow- person who exercised is outside country of that immigration. regu- The statute person’s nationality er over unwilling iswho or may the conditions under which aliens lates country unable to return to his because of States, in the United enter remain persecution per- or a “well-founded fear Attorney broad au- vests General race, religion, secution account of na- thority to these conditions. The enforce membership tionality, in a social illegal aliens are to be Act directs that group, political opinion.” or 8 U.S.C. deported by Attorney General order 1101(a)(42)(A). An seeking refugee alien § upon a they determination that were ex- establishing status has the burden of entry time at the of their into the cludable he the statutory meets standard as a refu- United States entered the gee qualify in order for asylum. country inspection. 1251(a) without Id. § C.F.R. 208.5. § (setting deportable categories of forth asylum, may To seek an apply alien to an aliens). mandate, statutory To fulfill 208.3(a). INS district director. Id. § Attorney General is authorized “es- subject district director’s decision is not regulations perform tablish such ... and review, 208.8(c), id. but alien necessary.” such other as he acts deems application renew the in the event that the 1103(a). INS, turn, possesses Id. § begins deportation proceedings INS later delegated authority Attorney against him. If already the INS has com- General to enforce the proceedings menced nationality laws. See 8 C.F.R. 2.1§ him, alien may apply refugee status While the General and his del- immigration to judge presiding the iswho egates possess broad in enforcing latitude pending proceeding. over the 8 U.S.C. Act, they respect the must procedural the 1253; 208.3(b). 8 C.F.R. An alien § §§ rights Congress granted has to aliens fac- immigration seek review of the ing deportation proceedings. determi- INS judge’s asylum by ap- decision the normal nations of deportability are made an peal route. hearing immigration adversarial before an asylum Whether the application comes officer, following notice to the alien of the before a district director or an specific charges against him. 8 U.S.C. judge, regulations require 1252(b). the decision- hearing At this the alien has § request advisory opinion maker an to from right represented counsel,

the to by be to Department’s the evidence, State of Human introduce Bureau cross-examine Rights put by Id.; evidence the INS. Humanitarian Affairs C.F.R. (BHRHA). 208.7; 208.10(b). 242.16. alien may appeal The immi- 8 C.F.R. § § § gration judge’s purpose decision the Board requirement of this is to as- Immigration Appeals (BIA), 8 C.F.R. sure upon expertise INS draws 242.21, 236.7 & and the Board’s deci- of §§ Department refugee State mat- sions in turn by are reviewable the United ters. an advisory opinion When such is Appeal. States Courts of 8 U.S.C. sought BHRHA, from the the Office of 1105a(a). § Asylum (OAA) respon- Affairs primarily is OAA, sible it. preparing for Within the Congress has established various ave- responsible official for applications sub- obtaining nues for exemption from de- American, mitted aliens from Latin Cen- portation. Applying asylum political for is American, tral Caribbean countries exemption. one such Refugee Act of Foreign former Service officer and now a requires INS, under part-time employee contract Attorney General, established BHRHA. grant applications same official has political asylum any reviewed applicant who qualifies “refugee.” 1158(a); reviewing as a since 1974. After Id. § (1985) materials, see also 8 (proce- C.F.R. Part 208 available and sometimes for reviewing upon dures applications asy- drawing country-specific expertise lum). turn, A refugee, in Department defined as a of other State employees, he Department process due application. The State denied opinion on each issues an statutory require- Policy law and violated the by the Public is reviewed opinion making ments for these decisions. The of Inter-American for the Bureau Officer plaintiffs alleged Attorney also Department. the State Affairs withholding by the Director General’s of EVD status signed is then opinion letter past Salvadorans inconsistent with to INS. was forwarded of OAA and practice process rights and violated the due INS, returns to application When April of union In the dis- members. explain, and rebut may inspect, applicant denied motions to trict court defendants’ advisory opinion. 8 C.F.R. Bureau’s dismiss for lack of and for failure 208.10(b). must The INS decisionmaker upon relief could to state a claim which applicant examine the individual granted. Employees Hotel & Restaurant application. resolving the personally before Smith, F.Supp. Local 25 v. Union cases, majority In the vast 208.6. Id. § (D.D.C.1983). expedit- After extensive and applica- denied Salvadorans’ the INS has discovery, ed the defendants moved for asylum. tions for partial summary judgment on both counts. asylum, is a statu- In contrast with September discovery while mo- exemption deportation from for indi- tory pending, granted tions were still aliens, Voluntary Depar- Extended vidual judgment summary for defendants on both (EVD) discretionary suspension of is a ture the EVD and the issues. Hotel & proceedings applicable par- Employees Restaurant Union Local 25 v. groups of aliens. While the Attor- ticular Smith, (D.D.C.1984). F.Supp. ney has exercised his discretion General deportation proceedings against suspend II. Threshold Issues variety countries for a nationals of other Standing A. reasons, has declined to EVD he Appellees argue plaintiffs lack status either to all Salvadorans standing; they contend that neither the narrowly subgroup. more defined mak- organizational plaintiff individual nor the determination, Gener- cognizable as a result of political al cited both and economic factors. hold, however, defendants’ activities. We Attorney Letter from General William plaintiffs standing to sue. have Congressman French Smith to Lawrence J. Hernandez, application an Mauro whose 19,1983), (July App. Smith Jt. tab. district director for has been Thus, legality pres- of a Salvadoran’s denied, alleges consultative that the INS’ depends on either ence the United States State, Department of procedures with the visa, grant political asy- entry a valid agency’s and the refusal to EVD to lum, exemption, receipt or the of another Salvadorans, illegal inju cause him are and provisions. from the Act’s concrete, ry. allegation Hernandez’s re rights harm to his as an alien is Proceedings dressable B. District Court standing. sufficient to confer See Warth August plaintiffs filed suit Seldin, 490, 498, 95 S.Ct. U.S. for the the United States District Court (1975); 45 L.Ed.2d 343 Linda R.S. charged the District of Columbia. The suit 614, 617, D., 410 U.S. Richard Secretary and the General 1146, 1148, (1973). State, alia, violating the consti- inter standing admittedly rights question is clos- statutory and of Salvado- tutional plaintiff organization, Local 25 of plaintiffs challenged proce- er for the rans. The Employees determining the Hotel and Restaurant Un- by the INS in dures used ion, ap- states that ineligibility refugee for AFL-CIO. union eligibility alien’s or asylum. Specifi- proximately one thousand of its members political hence status and alleged present are Salvadorans now the United cally, plaintiffs INS’ States; illegal advisory opinions by rendered some these members use of deportation. threat requirement. aliens under satisfied the causation Plain- partic- that it argues union has tiff traced a direct line between defend- ipate in lawsuit because its activities ants’ injuries. actions and its own interests, organization, and as an are hin- According union, defendants’ denial by dered that defendants illegal of relief from denial follow Salvadoran members. subjects status Salvadoran aliens addition, argues union it is the employer pressure to remain silent or bring proper suit on representative be- reported deportation, else be and that half of its members who are Salvadoran resulting their unwillingness press their examining plaintiffs’ aliens. After com- grievances against employers hinders plaint, agree with the district court that we Finally, the union’s activities. redress- bring the union has suit under ability satisfied; requirement is the court either of its theories. relief, could order requiring such as INS to make revisions in its decisionmak- standing to To establish sue on its ing procedure applications or behalf, (1) “plausibly own the union must EVD, the granting of that would end the allege injury agen fact from the derived injury. union’s cy’s by action or inaction remediable [and defendant], (2) the court’s order to by separate opinion’s are baffled injury arguably assert within claim complaint that Local 25’s “does not protected regulated the zone of interests meet require- the bedrock constitutional by the complaint law on which the is found Separate sepa- Op. at 1273. The ment[s].” Capital Legal ed.” Foundation v. Com opinion charges rate that Local 25 cannot Corp., modity Credit demonstrate link the injury between (D.C.Cir.1983). requirement This first con complains, impairment it of the un- constitutionally tains three mandated com activities, organizational ion’s and the al- ponents fact, must injury leged procedural flaws in the INS’ scheme —there must be traceable to the alleg defendant’s granting political asylum. Id. This conduct, edly unlawful and it must be likely argument is incomplete. both incorrect and requested. to be redressed the relief It is incorrect because it misstates and See Action Alliance Senior Citizens v. trivializes explanation the union’s of how Heckler, (D.C.Cir.1986). why fairly its claimed tracea- second, requirement zone-of-interests ble to actions defendants. The prudential is a one. Wright, See Allen v. assumes, separate opinion simply without 3315, 3324, 468 82 explanation, among insecurity Local 25’s the only possi- Salvadoran members is activities, id. damper on union ble infra We hold that the union satisfied 1273-74, conclusorily that then states each constitutionally required com “it cannot insecurity be concludedthat that is ponents standing. allegation of The of in procedural irregularities attributable to the jury intense; large “need not be or allegedly political asylum mark the sys- ‘identifiable trifle’ suffices.” Action Alli Separate Op. tem.” It seems Citizens, ance Senior F.2d at of presumptuous judiciary for the federal (quoting United States v. Students Chal illegal claim that since generally aliens are lenging Procedures, Regulatory Agency insecure, particularized insecurity lim- 689 n. segment ited to a smaller aliens (1973)). 37 L.Ed.2d 254 union in possibly cannot be occasioned the INS’ plausibly alleged case has more than a procedures processing applica- trifle; it asserts that it has suffered a tions. ability organize diminution of its and retain Salvadorans as union members The separate opinion questions also protect rights insecurity of its members to whether among employees be un- jobs. activities, secure in their The union has also dermines a union’s labor since a entry country fears status to this and are acts to alleviate members’ accord- union A reflection ingly parties, moment’s will free from the threats of third and concerns. generalization possi- employers, that no report reveal such such as them for de- the union’s claim is that portation proceedings report griev- The nub of if they ble. resulting apprehensions from pro-union its members’ ances or demonstrate tendencies. ability hinder the union’s Refugee Immigra- Act of 1980 and the employee grievances those Act, to address Nationality by erecting tion and a com- may any employment in rela- which arise plex procedural scheme substantive and tionship. importantly, gener- no such aliens, More safeguards protect this same necessary; allega- the union’s alization is entry interest secure status. purpose as true tions must be taken for the separate opinion expresses doubt determining plaintiff whether has stand- prudential requirement standing Seldin, See Warth ing. U.S. at satisfied, asserting that labor unions are 95 S.Ct. at 2206. Refugee not intended beneficiaries of the addition, separate opinion’s argu- proof Act of 1980. As ostensible of this incomplete cavalierly ment is because it proposition, separate opinion notes that brushes aside the claim EVD. Sep- unions fall within the zone of interests of Op. at 1276 n. 8. The plainly union arate limiting entry of for- alleged that the denial of EVD hindered its eign implies workers therefore organization. functioning as labor they cannot fall within the zone of interests Complaint Amended at 3. This claim alone protected by political asylum exception concrete, allegation of a re- is a sufficient Separate Op. to those laws. infra dressable attributable to defendants’ n. 2. That observation creates a false dichot- suspension Clearly deporta- actions. omy. granting political asylum proceedings, tion which is one of the reme- imposition entry of limitations on the sought by plaintiff, dies would alleviate the foreign place sepa- workers take under two injuries which the union claims it now suf- statutory protect rate schemes which each fers aas result of defendants’ actions. interests, different zones of for different unions under different circumstances. Having concluded that the union organized gen- Whatever interest labor require has satisfied the constitutional workers, limiting foreign eral have standing ments for to sue on its be own we conclude that Local 25 of the Hotel and half, prudential require we turn to the now Restaurant Workers asserts and describes plaintiff ment that the interest seeks to statutorily protected interest in its actual protect “arguably within the zone of potential oppor- access to the members’ protected regulated by interests to be or Refugee tunities for offered guarantee the statute or constitutional Act. The union is therefore within the question.” Association Data Process protected by zone of interests the statute. Organizations, Camp, Service Inc. v. independent 25 We now turn to an basis for We have held that the union asserts. As well “passed plaintiff’s claiming standing right, zone test is interest its own appears bring action to fall within union asserts that it has clause, resolving the ambit of the constitutional stat suit on behalf of its members. ute, regulation allegedly question organization’s standing of an violated.” Foundation, members, Capital Legal representative 711 F.2d at as a of its we are (footnotes omitted). set forth Hunt guided by principles the 259 The union’s inter Apple Washington Advertising v. Com est here falls within the zone of interests mission, protected by the statutes at issue. The 97 S.Ct. 53 Supreme protection organizational union seeks of an L.Ed.2d 383 which the interest; reaffirmed. See Inter seeing po recently that interest is in Court has — Brock, national Union tential and secure members obtain lawful U.S. — 1264 (1986). 2523, 2533, 228 therefore have not been harmed the 91 L.Ed.2d

106 S.Ct. procedures. Even INS’ those members Citi- See also Action Alliance Senior of however, 10; applied asylum, not zens, n. Trea- who have F.2d at 939 National standing alleging would harm a Systems v. Merit have as sury Employees Union (D.C. the Board, agency’s asylum procedures result of Protection and its denial of Cir.1984). Washington Apple, trade EYD. association, promote apple the created Continuing Apple with the Washington state, sought Washington industry organizational standing, test for it is also regulation barring challenge a federal plaintiff’s theory clear that of the case Washington-grown apples promotion of in and require the remedies it seeks do not deciding that the associa- another state. participation individual aliens. standing, Court forth tion had set government’s challenges proce- union orga- three-part test to evaluate claims processing applications, dures for First, standing. if the associa- nizational disposition any asylum request. not its plaintiffs, they

tion’s members were must Thus, inquiry our whether narrows to standing right. have to sue their own protect interests the union seeks to are Second, organization the interests germane purpose. union’s We hold protect germane seeks to must its they purposes are. The union’s in- purpose. Finally, neither the claim assert- clude, alia, organizing inter all workers requested require ed relief nor the must jurisdiction protecting within its and its to participate members in the individual Employees members. Hotel & Restaurant organization’s lawsuit. Bylaws (1977), I, Local Art. AFL-CIO

Accepting allegations the union’s govern- Sec. 2. union stated that the true, find we that the union has satisfied deportation poli- ment’s current and forth in requirements Washington set cies aliens keep out of the mainstream of Apple organizational standing. the association’s business. Understand- requirement first ably unwilling is satisfied if the associa and fearful to come for- “ members, any them, ward, tion’s employed by ‘or one of aliens hotels and suffering Washington immediate threatened in the do restaurants area ” union, challenged identify as a result of the action.’ themselves to the do not Freight against Central grievances & Southern Motor make known their their Tariff States, employers, Ass’n v. United and do not become involved in (D.C.Cir.) (quoting Seldin, directly 422 union Wartk activities. This reticence 490, 511, U.S. purpose organizing hinders the union’s (1975) added)), (emphasis serving and and cert. workers hotel res- — denied, —, 88 taurant field. Affidavit Ronald Richard- son, L.Ed.2d Secretary-Treasurer have no doubt that Executive Union, (Nov. 4, 1982). at least one of the union’s Salvadoran mem- at The union’s bers, Hernandez, Mauro protect would otherwise current effort to its inter- members’ standing right; have sue his own est in reformed government’s immigration procedures germane therefore to the un- processing asylum applications organization. directly ion’s as an activities We con- him, activities, willing- affects his his clude that union has sue on public ness to enter life. Hernandez’s behalf of its members.

standing is to satisfy sufficient this ele- separate opinion wolf, arguing cries Washington Apple ment of the test. reasoning adopt today, that under we

Overlooking point, opin- separate this union could the enforcement of all, including ion maintains that at union’s members narcotics stat- utes, would not have Separate Op. sue members. right applied own because have not We think charge misinterprets political asylum holding reading prece- and been denied our and our upon rely. ignores we also all dents which It law ger- enforcement does not meet the unique test, facts of case. crucial maneness but it does not necessarily allegation point is not the bare that union’s particularized follow that a interest in the prosecution impairs orga- of enforcement particular of a statute fails con- dispositive nizational activities. the test. is, separate opinion appar- sideration as the In misreading Hunt, addition to the sepa- ently recognizes, rights sought “the that opinion rate overlooks EVD claim as an rights sort be vindicated are the of that integral part plaintiff’s claim orga- for their nature to a orga- relate standing. arguing nizational that aliens’ Op. Separate nization.” at 1276. Thus in procedural claims for regularity “simply do Washington Apple, the found Court that implicate the functions of qua a union by plaintiff, the interests asserted orga- union”, Separate Op. sep- infra performed that nization the functions of a opinion ignores arate the fact the At- that association, traditional trade satisfied the torney General’s decision not to EVD requirement “germaneness” organiza- for implicates organizational status func- standing. tional The Court noted that the tions the union. As already we have challenge Commission’s marketing to the observed, illegal the fact that aliens who statute at issue was “central the Com- Washington, work in D.C. area hotels and purpose protecting

mission’s and en- subject deportation restaurants are hancing Washington the market for ap- germane to the purposes. union’s central ples.” 432 U.S. at 97 S.Ct. at 2442. precedents within our circuit also B. Ripeness “germaneness” have found require- While the doctrine of in ment pur- satisfied when the association’s quires parties may institute claim poses reasonably are to the related chal- relief, ripeness for doctrine asks when lenge bring. NTEU, it seeks to supra, a court appropriately consider the we held that the NTEU’s interest claim. See Action Alliance Senior Citi rights of its seasonal workers to statutory zens, 789 F.2d at In determining protections against adverse actions was appellants’ whether claims lend themselves germane to its purposes as exclusive repre- judicial resolution, to immediate we note sentative of those workers. F.2d at challenge is to the manner 910. In West Virginia Ass’n Commu- which the INS all asy handles Salvadoran Centers, nity Heckler, Health Inc. v. lum applications under the (D.C.Cir.1984), 1574n. 4 we held laws, not to the agency’s of any treatment that an association has to chal- application. one Appellees therefore miss lenge the Secretary of HHS’ formula for arguing mark in resolution awarding grants primary block for medical premature would solely because the care; we had “little doubt that WVACHC has not denied identifiable un proper representative.” Likewise, is a ion application member’s and has union’s here to the INS’ treat- not commenced deportation proceedings illegal ment of Salvadoran aliens is central person. purpose to its protecting rights of its policies that the Depart INS and the State members, some whom Salva- ment follow are well-established for summary, doran aliens. In wholly suf- malized; they represent product the final reply separate ficient opinion’s pro- agency’s pro deliberations on which fessed concerns about breadth of our cedure to follow in administering the immi holding is that the threatened gration laws. potential actual and union members is germane to Recognizing the union’s in way “agency interests action” potential prosecution challenged procedure of actual and here is the INS’ for potential offenses, processing asylum members narcotics applications, the district example, simply is not. The interest in ripe judi- court held that the was case 1266 diately agree. subject

cial Courts re- those in conducting review. to it Gardner, quired v. Laboratories their day-to-day Abbott affairs.” Toilet Goods As- 136, 1507, 387 18 L.Ed.2d 681 U.S. 87 sociation, Gardner, Inc. fitness of both the the to examine hardship judicial issues review and (1967). Bearing plaintiffs’ in mind that withholding court consideration would review, claims are fit we also find that cause Id. at 87 S.Ct. at parties. challenged actions a direct impact have “very inquiry 1515. This is much a matter upon appellants. The agency’s pol- current practical common sense.” Continental procedures icies and immediately and un- CAB, (D.C. Air Lines v. F.2d questionably appellants. affect These ac- 1974) (en banc). following the dictates tions practical have a direct and effect Laboratories, inquire must Abbott we upon an day-to-day alien’s activities as an whether “the interests of the and employee person subject as a depor- to agency postponing ques- until the review tation. analysis As we noted in our of the tion more arises some concrete final standing, union’s procedures INS’ also outweighed by form” are the interest of affect organizational the union’s day-to-day those who relief from the seek immediate summary, adjudication activities. In our impact challenged and practical of the ac- this case judicial does not threaten entan- upon tion them. Diamond Shamrock glement in “abstract disagreements over Costle, (D.C.Cir. Corp. policies.” administrative Abbott Laborato- 1978); see also Action Alliance Senior ries, at 87 S.Ct. at 1515. Citizens, 940; Continental, at Appellants challenge procedure a is 522 F.2d at 125. already in ripe use. The case is for review. test, Applying legal- we find that challenging conclusions, Without these ity present procedures of the is INS’ well- separate opinion applies an erroneous judicial suited review. There would be a ripeness view of According doctrine. strong postponing interest review if the separate opinion, Hernandez’s claim is likely INS were modify abandon or its ripe not political asylum “because the treatment asylum applica- of Salvadoran contemplates scheme further administra- putting tions before it into effect. Conti- procedures tive before the denial of nental, case, 522 F.2d at 125. In this finalized, however, and because Hernandez will the INS has stated that follows irrevocably injured post- ongoing procedure a clear review is dealing poned.” Separate Op. asylum applications. these pro- This infra final, separate cedure opinion argues has been made first agency that Hernandez implemented its proce- deported consultative not be until after he has been dures Department. with the State through The ac- deportation proceeding and had plaintiffs challenge tion here much more opportunity to reapply for to an akin to a final action than to a immigration judge. question no There is agency policy. tentative Thus re- agency’s initial rejection of Her- view will agency’s not interfere with the nandez’s bid is not “its final or development aof final decision or misuse matter,” definitive Separate decision the court’s resources. Op. of Hernandez’s ultimate infra question deportability. There is also no Proceeding prong second this observation is ripe- irrelevant to the ripeness inquiry, we must evaluate the inquiry. ness If this case “present challenge were damaging effect” of the chal- deportation Hernandez, lenged INS’ then upon appellants action to determine adjudication outweighs premature would be post- whether it interest long as poning Shamrock, had not review. Diamond rendered final F.2d at hardship deport 673. The decision to him. inquiry focuses But this lawsuit is upon different; impact whether “the a challenge adminis- it is the legality trative action could be said felt to be imme- INS’ steps at the initial process. the entire It bears proceeding, and a structural repeating plaintiffs seek that revisions the handling asylum applications. INS’ process by initially the the result, which de- As a separate opinion the treats asylum illegal cides whether to Hernandez’s ripe claim as not due to a apply aliens it. who for misperception is merely that he challenging agency’s treatment of a ap- agency position clear; on this issue is plication. Separate Op. at 1277- it legitimate has no interest in postponing infra 1278. This is a fundamental misunderstand- judicial review of it. In strained effort to ing. Hernandez, union, like is challeng- identify “significant the court’s interest in ing the INS’entire framework for processing review,” deferring Separate Op. at infra asylum applications. The fact that Her- separate opinion advances an un- nandez could relief obtain from theory. opin- unsupported sound and in a proceeding later applica- focused on his change position by ion notes that a ipso tion does not unripe render agency case would facto as to Hernandez’s ren- prior challenge and different which he now unnecessary, der of his claim review concluded, raises. As we have this chal- and would also enable court to avoid lenge ripe for review. reaching the merits of this case. Accord- view, petitioner may to this no obtain Asylum Applications III. decision, review of an agency procedure or of Salvadorans no matter how irrational may it be, long as Plaintiffs mount broad still has the attack on the option taking step handling INS’ applications a later that would Salvadorans’ provide petitioner asylum. relief for argument, similar to Their essence, that through which he seeks his lawsuit. that applications This these do not receive all argument also overlooks the fact the scrutiny that the They that is due them. argue agency’s position procedures pro- for process the due clause and the Act cessing asylum applications is require clear and both thorough more and more indi- final. vidualized applica- consideration tions than now receive.

Finally, opinion the separate argues that Hernandez will no They suffer irreversible hard- attempt to demonstrate the ship if review is delayed. conclusory This shortcomings of current INS assertion rests assumption First, on the respects. several they argue that only possible hardship irreversible is the the employees in the State Department deportation. occurrence of plaintiff’s Yet who dispositions recommend appli- of these theory of the case trained, makes clear that the cations poorly unversed in the union perceive and its hardship politics America, members of central inadequate- much deportation. earlier than ly supervised. actual It is maintain that the Plaintiffs alleged shortcomings proce- procedures give INS’ principal politi- control to a practices dures and pervasively policy-oriented hinder cal and branch of the State the union in its illegal Department activities and the permit only a minimal alien who an outspoken hesitates amount of time for review each individu- employee and community an application. involved mem- al They allege also that for- ber. hardship, This eign policy suffered in play illegit- considerations an present, cannot be reversed even imate role in the consideration of these applicant individual ultimately prevails applications. obtains depor- or other relief from evaluating Before these substantive chal-

tation. lenges, we must examine the district separate opinion’s treatment of the court’s determination defendants’ ripeness greatly issue summary judgment suffers from a con- ripe motion was fusion between Appellants argue an individual’s review. that the district specific deportation final result prematurely court terminated their efforts evidentiary record develop tionally without extended to the files of aliens and legal analysis right is unfound- privacy.” court’s would violate their Re- summary judgment, sponses granting Objections by ed. Defendants to Request district failed to articulate its reasons Plaintiffs’ Second Production Documents, 17,1983, 1-2, filed Oct. permitting discovery for not the further requested plaintiffs. Without this ex- having produced requested Without adequately planation, we cannot review documentation, par- defendants moved propriety apparent of the district court’s summary judgment tial on the is- plaintiffs adequate conclusion received Thereafter, sue. plaintiffs moved to com- opportunities to uncover material issues of pel discovery requested in camera re- fact, to do and failed so. therefore allegedly view of the confidential records. ruling remand to the district court for a response, defendants filed a motion for a matters, discovery and do not reach protective seeking plain- order denial of issue of whether defendants were entitled compel tiffs’ motion preclusion judgment as a matter of law. discovery further until the court ruled on dispositive motion. The district court Upon A. The Posture the Case Sum- held a status call at it which entertained mary Judgment pending dispose motions but did not issues, discovery indicating relevant linchpin As the in establishing pro- a due parties’ would take the motions under ad- violation, plaintiffs sought cess to uncover visement. The district apparently conclusive evidence that the mere- INS was had not ruled on the cross-motions when it ly “rubber-stamping” the BHRHA’s adviso- argument heard oral on defendants’ mo- ry opinion every plaintiffs case. The summary judgment. tions for Appellants’ allegedly pro argued INS’ forma Brief at 22. approval of recommendations rendered Asylum the Office of Affairs denied Salva- Appropriateness B. Summary right doran aliens their to an hear- Judgment ing immigration judge before either an Deputy During Director. discovery Appellants argue by granting sum- parties depositions, both took mary judgment extensive to defendants the district produced documents, numerous and re- court improperly aborted essential factual sponded lengthy interrogatories. development Never- legal therefore the court’s theless, plaintiffs’ two of analysis document re- supported. cannot be Essentially, quests pertaining appellants issue were they contend that would have outstanding still when the genuine district court been able to raise issues of fact in ruled on defendants’ summary judgment opposition to defendants’ motion had their motion. discovery requests granted. They been ac- cordingly conclude that defendants’ sum- sought Plaintiffs two sets of documents. mary judgment ripe. motion was not First, they requested to review the individ- ual INS file for each Salvadoran summary judgment, national On a motion for applied (“the files”); who A try court cannot issues of fact. It must INS has A every established an file for ambiguities resolve all and draw all reason- asylum applicant. Second, they sought a able inferences in party favor of the by nationality breakdown of the State De- summary judgment whom partment’s asy- sought, recommendation rates of with the moving burden on the lum. objected Defendants party to these re- to demonstrate the absence of quests, claiming “oppres- were material genuinely dispute. factual issue unduly burdensome,” sive and “immaterial Abraham Graphic Arts International Union, irrelevant,” and that 811, (D.C.Cir.1981). disclose the 660 F.2d 814 “[t]o requested documents would violate Ordinarily, “summary judgment the con- motions fidentiality premature tradi- discovery until all [the has been defendants] [are]

1269 Normally, completed.” City stay Rome United in order to consider (D.D.C.1978) States, F.Supp. summary judgment motion, ation of the nonmoving J.) party files an (Richey, (granting motion extension affidavit outlin position. 56(f). his completion discovery of all See Fed.R.Civ.P. of time until Although several courts which discovery disputes). of all A have con and resolution agree filing sidered the issue court, however, an affi discre- district broad necessary preservation davit is for the of a scope discovery. tion over C. 56(f) contention, Rule Miller, see Mid-South Grizz Wright & A. Federal Practice and League, lies v. National Football 720 F.2d Procedure at 267-68 Al- (3d Cir.1983), denied, 780 n. cert. though power this broad cannot excuse a 81 L.Ed.2d summary judgment in the face of 56(f) fact, assayed other courts have Rule discretionary an issue of it is with a showings summary made in judgment op deny summary judg- trial court whether to position papers together outstanding response seeking ment in to a motion addi- discovery see, id.; requests, discovery. Freeman, e.g., tional See Nixon v. Wallace Co., (D.C.Cir.), Inc., v. Brownell Pontiac-GMC 363-65 cert. de- (11th Cir.1983); Carmen, Nixon, 527-28 nied sub nom. Nixon v. 670 F.2d at 363-65. (1982). practice We find this present sensible under the circumstances. Thus our standard of review is abuse of stay The district court’s refusal to Id.; 2 consider discretion. 6 Part Moore’s Federal ation of defendants’ Practice, 1156.24, (1982). pending motion fur at 56-1428 discovery ther is not automatically justified 56(f), Under Rule court district by appellants’ 56(f) failure to file a Rule ruling defer summary judg- on a motion for affidavit. permit discovery ment and further so that purpose The of the affidavit is to ensure nonmoving party may obtain infor- nonmoving party invoking that the is necessary mation to show issue of mate- protections 56(f) good of Rule faith dispute. 56(f). rial fact Fed.R.Civ.P. affirmatively demonstrating why he however, cannot nonmoving party, has the respond summary judgment to the showing motion. burden of the trial court what procedure designed prevent fish- hopes he facts to discover that would cre- ing expeditions by narrowing scope of justifies ate a triable issue and what reason discovery affording the trial court the inability his produce them on the motion. showing necessary to assess the merit of a FTC, Corp. Exxon v. 663 F.2d 126-27 party’s opposition. (D.C.Cir.1980). See First National Co., Bank Arizona v. Cities Service of Appellants attempted to meet this bur- 253, 298, 1575, 1597, opposing den. defendants’ motion for question There is no partial summary judgment, plaintiffs urged positioned the district court was deny the district court to the motion and judge appellants’ plea for further dis- proceed through allow their covery. Appellants’ outstanding discovery discovery They complained to trial. requests sought identified the information impact were unable to establish the specificity; opposition their papers Department advisory opinions State on Sal- they sought outlined the use to make of the applicants vadoran “because defend- information which remained defendants’ discovery ants have withheld which would hands. tracing comparison allow of recommen- sample sought dations and results on a even ba- Plaintiffs to examine the A Copy sis.” Corrected empirical Plaintiffs’ Memo- files to establish correlations be Oppo- Department’s randum of Points and Authorities in tween the State rec sition to Defendants’ Motion Partial ommendations and the INS’ decisions to Issue, Summary Judgment Asylum on deny asylum. or Plaintiffs believe filed Jan. that this statistical information will demon- adequately proprie- deferral to State De- complete strate We cannot assess ty in violation district court’s exercise of discre- partment recommendations 1158(a), reasoning. deci- tion of its which vests without articulation U.S.C. § plain- impossible Attorney It if the sions in the General. determine deny plaintiffs’ view, discovery its decision to tiffs’ denial into this based dis- requests prevented covery them from on its that the ex- information establish- belief Depart- production treme of the impropriety State burden would out- weigh probativeness, person- asylum process. ment’s involvement its argue precluded district al nature of the documents Plaintiffs also release, discovery sought or that the court’s denial of of the statistics information was concerning Department’s litigation. recom- to the the State irrelevant We therefore judgment nationality mendation rates denied them reverse the and remand to the that, opportunity ruling reasoning to demonstrate con- district on Refugee trary plaintiffs’ requests. Act of El two Salva- document Our being course, favorably holding, opinion no dorans were treated less reflects than aliens other Al- of the case. nationalities. merits though express no likeli- we view as to the hood that these data will enable Voluntary Departure Extended IV. plaintiffs genuine to raise a materi- issue of enjoys General broad lati- fact, al we note statistical evidence enforcing tude in laws. alone, sufficiently capable condemning, is 1103(a) (authorizing 8 U.S.C. See Attor- withstanding summary motion for ney regulations such General establish

judgment. McKenzie Sawyer, perform such other acts as he deems (D.C.Cir.1982) VII); (Title necessary carry authority). out his Thompson Sawyer, grant decision to or to withhold EVD falls (D.C.Cir.1982)(same); see also Teamsters within broad this mandate. On several oc- States, v. United in past, Attorney casions General (1977) granted by temporarily suspend- has EVD (same). ing enforcement of Act for granting summary judgment, the dis- group Attorney of aliens. Letter of Gener- trict court identified the issue between Congressman (July al to Lawrence J. Smith parties “propriety Depart- as the of the 19, 1983), Jt.App. tab at 1. The Attor- ment of State’s involvement in INS ney General determined that circum- F.Supp. decisions.” 594 at 510. The court do granting stances not warrant EVD to genuine ruled that there no were issues Salvadoran aliens. This assessment was perceived fact in dispute. It as issues upon: (a) based number Salvadoran “purely question Thus, law.” (b) already country; aliens cur- “the view, may appropriately court’s the issues country rent crisis which experi- our summary judgment. resolved Id. encing illegal immigrants”; a ‘floodtide’ of (c) The district offered prospect inducing no reasons further immi- declining permit discovery (d) gration by Salvadorans; further be- the effect of ruling summary judg- fore illegal immigration defendants’ on the United States’ Indeed, plaintiffs’ attempt enforcement, services, ment motion. finite law social resources, seek A and (e) Salvadoran other files for trac- availability economic comparison statutory relief, was never addressed. including avenues of Compel application Plaintiffs’ Motion to remained for asylum. Id. These factors best, unresolved. we imply correspond Secretary At can denial of State’s de- pending discovery scription motions from the process: EVD State unexplicated, court’s conclusory Department statement: “invariably considers a num- genuine “There are no fact in deciding issues of ber of factors in whether to rec- dispute F.Supp. here.” at 510. granting any partic- See ommend the of EVD in case, granting may application ular and the of EVD that consistent of this standard objectives meet different in different requires grant either a of EVD to Salvado- George P. cases.” Letter from Schultz to explanation rans or an for the de- (June 23, 1983), French William Smith Jt. parture previous from policy. We cannot App. tab agree presence of humanitarian past grants concerns in of EVD must con- no We have doubt that the EVD disposition trol the of this case. The dis- disposed properly by summary issue was correctly trict court held that humanitarian argue judgment. Appellants they not, be, concerns are nor could “the opportunity denied the develop were sole or overriding factor” in an EVD deter- analogous facts to an administrative record F.Supp. mination. 594 at 508. In exercis- Attorney to test General’s exercise discretion, ing his Attorney General his discretion. This contention misses the may take a number of account; factors into point. development Further factual would requiring grant him to EVD hu- whenever sharpened not have the issues before the present manitarian concerns are would im- initial, dispositive, district court. The permissably curtail the exercise of that dis- simply issue was whether the court could cretion. Attorney review the General’s discretion ary withholding of EVD status. Finally, plaintiffs maintain that the properly interpreted district court Attorney General has acted arbitrarily, Act, the Administrative Procedure 5 U..S.C. pursuing wavering policy granting dis seq. et barring judicial re- § cretionary relief available under a statute. view of the General’s decision not They seek an order compelling him to con EVD status in this case. An sider granting Salvadorans, EVD status to agency subject action is only review basis, on an individual because he has is “made reviewable statute or if it is a granted EVD to nationals of other coun final action for which there is no past. tries in the We think such a adequate other a court.” Id. remedy order inappropriate. agree would be subjects No statute the EVD deci- agency may that an not arbitrarily grant or review; Immigration sion to and Na- withhold statutorily created and defined tionality Act does not even contain the Sang Seup INS, remedies. Skin v. words “Extended Voluntary Departure.” (D.C.Cir.1984)(Bureau 750 F.2d 122 of Im Moreover, the denial of EVD is not a final migration Affairs arbitrarily deny agency Attorney action. While the Gener- reopen deportation motions to proceedings); grant al’s decision not to EVD to Salvado- Motor Vehicle Ass’n v. cf Manufacturers ran group nationals as a imple- has been State Farm Mutual Automobile Insur ripe review, mented and is his denial of Co., ance 463 U.S. 103 S.Ct. as to any yet EVD individual is not a final (1983)(agency L.Ed.2d 443 discharging its action; agency Attorney may General statutory provide mandate must reasoned prior confer the status at time to actu- explanation course). change of in agen An deportation. al assuming Even cy’s inherent, exercise of extra-statutory Attorney General has rendered his final discretion, however, quite another mat decision, Salvadorans still have an ade- held, ter. As the district court EVD “de quate remedy deportation. before Once Attorney scribes the General’s discretion in alien has exhausted administrative reme- determining the circumstances of both for dies in proceedings, may he eign and policy domestic may give which appeal to Immigration Ap- the Board of discretionary rise to a grant decision to peals and thereafter to the ap- courts of temporary suspension deportation pro of peal. 1105a(a); 8 U.S.C. 8 C.F.R. Part 3. § ceedings particular to of members class

Plaintiffs claim that a “humanitari aliens.” F.Supp. an” standard has controlled Attorney Congress Where has not seen fit to limit grants General’s in past, EVD the the agency’s suspend discretion to enforce- opinion granting groups of The the district court a statute to ment of legitimate summary judgment for defendants is there- facially aliens, review we cannot fore that discretion. exercises of ultimately part, and reversed and re- opinion, while separate Affirmed issue, part. of this manded in disposition

agreeing with our opinion rests puzzling path. pursues a SILBERMAN, Judge, concurring Circuit non-reviewability on the finding part dissenting part: Attorney refusal General’s ground that the to grant is “committed EVD possess Federal courts do not “uncondi- 701(a)(2) law,” by 5 U.S.C. discretion authority tioned to determine the constitu- meaning- has no (1982), the court because acts,” tionality legislative or executive against judge which to standard ful Valley Forge College Christian v. Ameri- agree agency’s exercise of discretion. We Separation cans United Church meaningful in this no standard that there is State, Inc., 464, 471,102 454 U.S. case, all decisions decline to insulate but 70 L.Ed.2d 700 but rather concerning from review on the far- EVD justiciable must await the existence of a “committed reaching theory that are allegations controversy. case or posi- That agency discretion law.” plaintiffs’ complaint, my raised in the de- effectively insulate all EVD tion would view, fail to out a case that a federal make cisions, may animated even ones that I properly entertain. would hold animus, illegal discriminatory from review. plaintiff union Local 25 lacks seen, Instead, made as we have decisions challenge process by Congress or President by the asy- the INS considers aliens’ claims for immigration subject are to a nar- area of lum; plaintiff Mauro Hernandez’ sim- standard of review. Fiallo v. row challenge ripe ilar is not review 1473,1480, Bell, juncture; Attorney at this and that Diaz, (1977); Mathews v. suspend regu- General’s decision 67, 81-82, 1883, 1892, 48 enforcement of the lar aliens is unreviewable. Salvadoran therefore, would,

I remand the case to the V. Conclusion district court with instructions to dismiss jurisdiction. the case for lack of Whatever the level of violence and un- Salvador, rest in El we nevertheless I. obligated apply assessing the law majority that a union plaintiff's challenges to the INS’ decides labor adequacy General’s training Department officers and decision not to EVD to Salvadorans. State weight Depart- agree with the district court that EVD the INS accords State advisory opinions in extra-statutory remedy processing asy- and that the ment is an Arriving far-reaching decision to award or to withhold it for lum claims. at this conclusion, view, squarely majority, my lies in ex- citizens of a nation the discretion of the Gen- ceeds the established limitations on the within however, us, power of III eral. On the record before we federal courts under Article of dutifully reciting approve are unable to the district court’s the Constitution. While applicable governing doc- grant summary judgment of for defend- standards standing, majority nonetheless ants on the issue. The district trine of explain manifestly misapplies in the face those standards. court failed to its majority keep plaintiffs’ unrequited requests of for fur- The thus fails to itself within proper properly limited—role of ther information which contended “the —and necessary society.” would arm them with evidence the courts a democratic Warth 2197, Seldin, genuine raise a issue of fact. 422 U.S. 95 S.Ct. (1975) (citations alleges omit- union. Local 25 many 45 L.Ed.2d 343 of the ted). hotel and employees restaurant within its jurisdiction who, are Salvadorans apparent- case, standing In this Local 25 asserts ly, are aliens only whose realistic its own interests and both on the basis of prospect lawfully remaining in the Unit- for its members. representative as political asylum. ed States is Declaratory Complaint for Because of Amended theory precarious status, The first re- their Injunctive Relief U2. these employees upon alleged interference with lies Local “do identify union, not themselves to the do organizational activities. 25’s See Havens grievances make known their Coleman, Realty Corp. v. 455 U.S. employers, and do not become active- (1982). 71 L.Ed.2d To ly involved in union Maj. Op. activities.” at basis, standing plain- on establish this Next, alleges Local 25 pro- satisfy must tiff both constitutional and cedures which the INS handles prudential requirements encompassed by claims are unlawful: gives too standing. See, e.g., the doctrine of Allen v. weight much Department’s to the State 737, 751, Wright, S.Ct. which, advisory opinions, turn, ill- (1984). case, 82 L.Ed.2d 556 In this prepared arbitrary. and otherwise although profound I have doubts about problem argument, with Local 25’s satisfy prudential whether Local 25 can it, Ias see there is recognizable no aspects standing,1 I think Local 25’s line of causation between the injury it procedures to the INS’ putative claims and the law violations it infirmity: suffers from a more fundamental seeks to redress. The INS’ it does not meet the administration bedrock constitutional requirement immigration resting “personal injury laws as a whole could fairly allegedly traceable to the defendant’s upon have at best an indirect effect Local likely unlawful conduct and to be redressed 25’s relations with its members. When requested view, my relief.” Id. In particularized what is at stake is a attack any the absence of demonstrable link be- upon single aspect i.e., of those laws— tween the of which Local 25 com- challenge to the used in consid- plains alleged procedural and the flaws ering political asylum claims for it is —then political asylum prevents scheme this apparent truly diapha- that that effect is entertaining court from its claim. assuming nous. Even arguendo that the insecurity which Local injury upon 25’s Salvadoran which Local 25 would premise experience impairment palpably its is an members undermines of its ability perform activities,2 its duties as a labor the union’s it cannot be conclud- Cir.1985). odd, least, prudential aspects say 1. The include the It would be requirement plaintiffs that a claim fall within labor unions fell both within the zone inter- protected by the zone of interests the law he protected by immigration limiting ests 737, 751, Wright, invokes. See Allen v. 468 U.S. entry foreign workers and within the zone of 3315, 3324, (1984). 82 L.Ed.2d 556 I protected by political asylum interests ex- cannot believe that labor unions were intended ception to those laws. Refugee beneficiaries of the Act of 1980. That response objection, majority to this quite clearly protect statute was meant to simply protection tells us that the union seeks foreign political suffering interests of nationals "organizational seeing interest” in homelands; such, persecution rep- in their entry members obtain "lawful and secure tus,” sta- exception general resents an immigration thrust Refugee ”protect[s] and that the Act laws, large which are intended entry Maj.Op. same interest in secure status.” part preserve jobs "to for American workers." tautology dem- 1263. Absent from this Sure-Tan, NLRB, 883, 893, Inc. v. Congress recognized sought onstration that fact, protect "organizational the union’s interest" this circuit has held that a labor union’s eco- proper administration of the preventing foreign nomic interest workers entering laws. country places from it within the protected by provision zone of interests of the insecurity 2. It is not all clear to at me that immigration laws. See International Union of among 798, employees Meese, (D.C. will tend to undermine a la- Bricklayers v. 761 F.2d 804-05 respecting political asylum applica- matters to the insecurity is attributable that that ed illegal alien’s af- tions, of an in most allegedly irregularities procedural The fear and fairs, inevitable. insecurity is political asylum system. mark the 25’s Salvadoran Local uncertainty which governing statutory standards likely repre- more experience is members particularly asylum are political of angst of sent the undifferentiated eligible for satisfy. To become difficult to “fairly tracea- harm discrete than a aliens prov- of the burden asylum, applicants bear improper proce- allegedly INS’ ble” a well-founded fear ing “persecution or specula- Therefore “unadorned dures. race, religion, on account persecution Kentucky tion,” Wel- v. Eastern Simon particular membership in a nationality, 44, 26, 96 S.Ct. 426 U.S. Rights Org., opinion.” 8 U.S.C. group, political or fare 1927, is needed 1101(a)(42)(A)(1982). They must demon- § Local granting of harm threat conclusion that strate an individualized to reach the deported; proof awaiting decree them relief it seeks—however 25 the repression in their general unrest or inse- remove the might be framed —would v. is insufficient. See Sanchez homeland allegedly curity its alien members (D.C.Cir.1983). INS, 1526-28 activities. organizational undermines exacting satisfy this stan- those who Even independent var- short, presence of an “the asylum in the discre- may be denied dard [puta- ... the harm and iable between 1158(a) agency. 8 U.S.C. See tion causation suf- illegal] makes tively conduct 208.8(a) (1986).3 (1982); Tradi- 8 C.F.R. § standing should be ficiently tenuous percentage appli- tionally, only a small Hodel, 792 v. Systems Mideast denied.” granted asylum. Without a has been cants (D.C.Cir.1986). also change in onerous substantive stan- these 757-58, 104 468 U.S. at Wright, Allen then, dards, proce- of INS modification 3328-29.4 S.Ct. at likely to make would not be dures Perhaps per- Local because 25 cannot applicant confident about his itself, suasively establish it also lawfully in remaining prospects for upon theory “representative relies Uncertainty inheres United States. standing” recognized in Hunt v. Wash- process: applicant may not an Comm’n, ington Apple Advertising sufficiently “well-founded fear fact have a persecution”; may or lack the evidence U.S. 53 L.Ed.2d 383 it; prove permits voluntary be denied This doctrine as- grounds. discretionary It follows that sociations to sue on behalf of their mem- appear complaint principal and does not in the func- tiffs union’s activities. Since bor assuage the fears and con- of unions is to tion record. members, traditionally unions of their cerns however, suggest, greatest among that exer- influence I do not mean to have achieved employees times. in troubled cises of this discretion would be unreviewable. heeding majority objects that I am not allegations concerning 4. That the causal link between that factual inju- rule the asserted purposes of a motion must be taken as true ry putative and the law violation is tenuous (citing Maj.Op. Worth at 1263. to dismiss. See suggests that Local 25’s suit is motivated more Seldin, 2206). But 95 S.Ct. at 422 U.S. at by sympathy for its members than defense something "pleadings must be it is also true that Though sympathy may its own interests. ingenious academic exercise more than understandable, III be it is clear that "Article at 95 S.Ct. at 2210 the conceivable." Id. requires more than a desire to vindicate value omitted). (citation contenting itself Far from — Charles, U.S. —, Diamond v. interests.” plaintiffs’ allega- uncritically accepting the (cita- (1986) tions, moreover, majority embellishes those omitted); Wright, tion 754, Allen v. cf. allegations that Local 25's with the assertion (”[A]n right asserted 104 S.Ct. at 3326. subject "employer Salvadoran members are act in accordance with have the Government reported pressure to remain silent or else sufficient, alone, to confer law is not Maj.Op. sugges- This —” court.”). jurisdiction on a federal plain- is creative but is not tion

1275 procedural a involving majori- claim. The in certain circumstances. Under bers standing Hunt, ty explain organization has sue does not how individuals an can be “(a) if of its members its mem- by on behalf injured procedural regu- infirmities in a standing bers would otherwise have to sue latory they yet scheme that have not in- right; (b) it in their own the interests seeks seem, The injury alleged, voked. it would germane organiza- protect to the contingent: are apply is Local 25’s members purpose; (c) and tion’s neither the claim asylum, asserted, it appli- is their then requested requires nor the relief asserted given cations will not Nei- be their due. participation of in individual members conjectural ther injury, psy- such nor the 333, 2434; lawsuit.” Id. at 97 S.Ct. see chic experiences anticipating harm one in Union, Brock, government also International UAW v. that respond will not law- — U.S. —, 2523, 106 S.Ct. 91 L.Ed.2d fully ultimately when one chooses to call precisely it not 228 While clear upon it, cognizable under Article III. requirements which these are constitu- 37, Longshore- Local International prudential, court, and are tional which this 222, Boyd, men’s Union v. 74 course, authority disregard has no 447, (alien (1954) S.Ct. 98 L.Ed. 650 work- any contrary majori- of them. And challenge policies ers cannot respect- INS’ ty, I believe these criteria are not country their admission to the ad- by allegations satisfied in Local 25’s admission); seeking vance of such also see Putting complaint. any question aside 746, Wright, 755, Allen U.S. at requirements,51 about last these am (parents challenge S.Ct. at 3322 cannot tax convinced both that Local 25’s members discriminatory private status of schools standing would not now have to sue in they which sought have not to have their capacities their individual that the in- enrolled); Seldin, children Warth v. sought protected by terests to be 516, (builders law- U.S. at at 2214 can- germane orga- suit not to Local 25’s challenge zoning policies municipali- not purpose. nizational ty they sought have not to build

any Littleton, projects); O’Shea v. complaint Local 25’s allege does not that U.S. 94 S.Ct. 38 L.Ed.2d 674 its members have in applied fact politi- (1974) (individuals challenge proce- cannot asylum, cal and the record only discloses justice system they dures criminal when single member who has done so.6 I think any cannot establish likelihood that plain that Local 25’s members cannot procedures); claim subjected will be to those to have been unfairly Irvis, treated —and con- Lodge Moose No. 107 v. U.S. cretely government 166-67, until 32 L.Ed.2d 627 harmed— they actually have applied (1972) for and (individual have private cannot asylum. been denied This proposition is all policies club’s when membership he the more compelling in a case like this one applied membership). never might thought 5. Doubtless it test. Justice examina- Hunt As Powell cautioned in — asylum applications Brock, Union, tion individual is indis- International UAW v. pensable —, evaluation the fairness of (1986) political asylum procedures; all, process, due after (Powell, J., dissenting op. S.Ct. 2536- right, right. group is an not individual 37), orga- number of members in the "[t]he nization with a concrete stake in the outcome language 6. Examination of the Hunt test may ... be so small that theoretical identi- th[e] itself—rather than dictum from another case— ty organization its [between members] majori- proposition belies ty, announced concluding disappears.” union had Le., possess standing that Local 25 UAW, standing representative the Court noted single sue behalf of its members if a one of "many” sue union members had currently would thousands of members have id., right, certainly own see individually. rule sue Such a bla- fundamentally did authorize the unsound tantly disregards autonomy the concerns about adopted by majority rule in this case. representation adequacy of that underlie germane representing part company major- I to union affected must also with the suggest I question rights employees). the do not mean to that ity on the whether through may standing repre- unions Local 25 seeks to vindicate never have organizational to its germane lawsuit are sent interests of their members that do not majority deems it sufficient purpose. The relate to a union’s traditional functions. operation Where, Congress example, recog- that Local 25 has has immigration legitimacy participation interferes with its of union of the laws nized the scheme, statutory in a courts would have Maj.Op. union at 1264. But activities. See questioning “germane- the little basis said of the enforcement the same could be statutorily created ness” of the interests against a union’s members. any laws UAW, purpose. the union’s 106 S.Ct. See allege could that nar- example, For a union Congress gave (noting that unions a its im- prosecutions against members cotics administration). In role statute’s the activities, and seek paired organizational its congressional recognition, of such absence challenge governmental action at the however, I do not that a union believe I that issue on that basis. cannot believe infinitely expand “germane” the interests intended to Supreme Court Hunt organizational purpose simply by to its ex- proxy litigation. authorize such dubious concern, pressing in its its constitution precise- intend is That the Court did not so elsewhere, operation particu- about the ly why insisted that the interests an it sure, lar laws. To be the duties and func- organization in a must asserts lawsuit be tions of a labor union vis-a-vis its members i.e., “germane” purpose, to its official that indeed, may be broad and courts should rights sought to be vindicated are the normally circumspect determining rights by sort of their nature relate to appropriate scope representa- of a union’s particular organization.7 tion of its members. But Article III courts regard, types wishing In this certain of laws in- anyone are not available to and, submit, grievances, I herently litigate any relate to a union’s traditional func- instance, UAW, procedural Supreme regularity tions. claims of aliens for asylum process, any recognized political under rea- Court union’s interest see- view, simply implicate sonable do not statutory its members received I qua functions of a union union. there- displaced by benefits available to workers that Local 25 lacks fore would conclude foreign competition. See procedures by standing to Treasury Employees See also National political asylum which the INS considers MSPB, (D.C. Union applications.8 Cir.1984) (public employment regulations issue”). regard, just way saying regulation perhaps statute or In this This is another organization by Attorney implicated must be within the zone of Gener- the interests protected by the law it invokes. See suspend interests of the al’s decision not to enforcement supra are, note 1. Hunt, immigration laws under no more germane purpose to the union's than are those majority failing takes me to task for 8. The by procedures governing political implicated bearing upon the union’s discuss asylum. Nor does the decision to enforce the Attorney separate challenge General’s to the inju- immigration any laws Local 25 itself cause operation suspend regular not to decision ry suspension redressable a court: because immigration of the Salvadorans. of enforcement would not alter aliens’ Maj.Op. have I should at 1263-65. status, legal temporary, would be and would be analyzed thought must be it settled General, reversable at the will of the Wright, claim-by-claim Allen v. on a basis. See would not itself render Local 25’s members (courts must 468 U.S. at 104 S.Ct. at 3325 enough participate "secure" in union activi- plaintiff particular "ascertain whether the is en- event, ties. the decision to enforce adjudication claims titled to an asserted”); Charles, 106 S.Ct. at laws is unreviewable. See Diamond v. infra (Article standing “requires III Part III. character of the with a nexus to the substantive Gardner, II. requires courts challenge to Hernandez’s Mauro Plaintiff to evaluate the fitness of the issues for obvi- asylum procedures political INS’ hardship decision and the ously ground rests on somewhat sturdier parties deferring review, id. at ap- does Local 25’s. Hernandez than 1515, S.Ct. at applied cannot be with syllo- plied asylum for to an district director gistic Rather, certainty. test the entails “a rejected. procedures and has been If the prudential attempt to in way time review a in involved that determination were unlaw- petitioner’s that balances the in interest ful, then cogniza- Hernandez has suffered prompt allegedly consideration of unlawful interest; moreover, injury personal ble to a agency against action agency’s interest applicant political asylum, for as an Her- crystallizing policy in policy before that is pro- nandez within zone of interests subjected judicial is to review and the Refugee supra tected Act. See avoiding unnecessary court’s interests 1. agree note I therefore the majority adjudication deciding and issues in a challenge has that Hernandez to Indus, setting.” concrete Eagle-Picher processing asy- procedures used his EPA, 905,915 (D.C.Cir.1985) (foot- application.9 say lum To that Hernandez omitted). idle, moreover, note It would be however, standing, say is not to a that attempt explicate ap- to all immediately court must his I hear claim. proaches balancing inquiry to this reflected political would conclude that because decisions of this circuit as formed asylum contemplates scheme ad- further finely being a meshed doctrine. That much ministrative before denial conceded, however, say I must that I have finalized, asylum is and because Hernan- difficulty little that concluding Hernan- injured not irrevocably dez will be if review challenge ripe. dez’s is not It seems to me postponed, yet

is Hernandez’s claim is not that all of the relevant interests to be ripe judicial review.10 point balanced in this case in the direction deferring judicial review. Although the governing criteria ripe- ness doctrine familiar, they have not— Although application Hernandez’s may be evident from my disagreement rejected by was an INS district with the majority proven themselves sus- director, hardly is determination deci- — ceptible precise application. The test for deported sive. Hernandez not un- be ripeness enunciated in Abbott Laboratories government less and until the establishes 9. O’Neill, Because the 1166, General’s (D.C.Cir.) decision (Bork, 1178-79 enforcing continue against J., concurring), denied, 823, cert. 464 U.S. unreviewable, Salvadorans is see 78 L.Ed.2d 98 infra satisfaction III, unnecessary Part it is to decide whether of the latter follows from satisfaction fortiori Hernandez has that deter- Power, of the former. See Duke 438 U.S. at mination as well. My 98 S.Ct. lie concerns instead with purely prudential requirements ripe- 10. So that there no misunderstanding, I i.e., doctrine, with the developed by ness— courts of emphasize should that I consider Hernandez’s equity, governs appropriate constitutional, "ripe" claim to be controversy case-or- timing judicial challenged review of adminis- sense. Hernandez has actu- trative action. See Abbott Laboratories v. Gard- al, non-speculative injury to himself sufficient ner, 136, 148, 1507, 1515, 387 U.S. 87 S.Ct. give constitutionally ripe rise to controversy. (1967). L.Ed.2d 681 quires typically That doctrine re- See Duke Study Power Co. v. Carolina Envtl. only party allege not injury, Inc., Group, but 2620, 2634, 438 U.S. 98 S.Ct. the sort that (1978); will be ir- Regional 57 L.Ed.2d 595 Reorgani- Rail judicial Cases, postponed. remediable if 102, 138, review Act See 419 U.S. zation Gardner, Toilet Goods Ass’n v. (1974). In this 164-65, 1520, 1524-25, regard, requirements constitutional of stand- (1967). ripeness overlap, Jagt Vander cf. 1158(a)(1982). providing for consider- adversary pro- through § deportability his asylum applications by ation of the district review. to ultimate subject cess director, contemplate Part did 1252(b)(1982); 8 C.F.R. 8 U.S.C. See § prelimi- de- that courts would intervene at this initiates government (1986). If the 208.8(c)(1986). him, nary stage. Hernan- See C.F.R. proceedings § portation reapply majority nevertheless maintains opportunity have dez will immigration judge, see challenge may to an id. be heard now Hernandez’s illegali- systemwide, because “structural” 208.9, question will be considered § alleged. Maj.Op. ties are point afresh. A denial of at that majority ignores What the is the incentive appealable to the Board of Immi- would be government its decision creates for the 3.1(b)(2), gration Appeals, see id. away screening applica- do with advance to the United States Court of thereafter altogether. prospect tions Faced with the Appeals. 1105a See 8 U.S.C. § judicial oversight prelimi- of intrusive of its agency’s rejection initial of Hernandez’s nary processes, decisional the Executive thus, respect asylum, bid for no consti- pre-enforcement Branch conclude that tutes its final or definitive decision screening simply not worth the candle. circumstances, matter. these Under agency strong deferring has a interest in event, any agency’s dispo- because the judicial agency’s review: the resources will application may sition of Hernandez’s be engaged only if it chooses to initiate modified, significant this court also has a deportation proceedings against Hernan- deferring interest in review. Continental dez, agency opportuni- and the will have an Lines, Air 522 F.2d An about-face made, ty correct mistakes has free by agency judicial would render review judicial from unwarranted interference. of Hernandez’s unnecessary. claim It CAB, Continental Air Lines v. 522 See would also enable the court to avoid reach- (D.C.Cir.1974)(en banc). 125 ing the difficult constitutional issues raised in this lawsuit. Review of Hernandez’s Examination of the character of the dis- time, then, might claim at this well be a process trict director’s role gratuitous entailing venture the risk of an procedure this conclusion. The buttresses improvident pronouncement on the law.11 by which the district director entertains precisely prudential These are consider- is, applications essence, ripeness ations with which the doctrine is pre-enforcement form of administrative Laboratories, concerned. Abbott See 387 screening. agency appli- Both the and the (doctrine U.S. at at S.Ct. procedure cant benefit from a permits “prevent serves courts ... from asylum applications to be considered in ad- entangling disagree- themselves in abstract vance of the commencement of policies”). ments over administrative proceedings: reduces the num- claim Hernandez seeks to raise thus “un- deportation proceedings ber of it must initi- fit” for review at this time. ate, applicant gets and the early an word asylum. on his nothing bid for But addition, Hernandez will suffer ir- no review; requires Act such advance the Act hardship if delayed. reversible review is vests broad discretion in the Gen- Although the “in- INS district director procedural eral to establish framework jured” by rejecting applica- Hernandez his governing asylum claims. asylum, injury See U.S.C. tion for is not irrev- imagine 11. effect his lawsuit —which majority cannot what to doubt that a seems possibly only prospective could seeks have, political asylum will moot his to Hernandez relief — jurisprudential “the refinement of challenge the INS in save used College, ValleyForge Maj.Op. understanding." Christian considering application. his See at 102 S.Ct. at 759. political asylum, 454 U.S. I 1267. If Hernandez receives government authority de- discretion to initiate absolute decide ocable. Should Hernandez, against United proceedings prosecute a case.” portation whether Nixon, a second bite at the States he will have 418 U.S. time,

apple. 3090, 3100, (1974) Hernandez labors (citations Until omitted). no for which there is no ulti- under The decision whether or not to apparently remedy. majority mate enforce the against par- “hardship” in requisite the uncer- finds nationalities, moreover, ticular is an exer- subject. alien is tainty power cise of “the executive to control the Maj.Op. at 1267. An interest in estab- foreign affairs of the nation.” United lishing certainty relations, legal one’s States ex rel. v. Shaughnessy, Knauff however, accompanies every putative chal- 537, 542, 94 L.Ed. lenge action, and, to administrative without The Executive Branch is there- more, traditionally thought been fore free to take into account whatever sufficient upon enable one to call considerations it deems in the national in- prior courts availability of autho- terest. Such action is agen- “committed to See, e.g., Tennes- rized routes of review. law,” cy discretion 701(a)(2) 5 U.S.C. § FERC, Pipeline see Gas Co. v. (1982), because “a court would have no (D.C.Cir.1984). 750-51 ir- Since “no meaningful standard which to remediable consequences adverse flow judge agency’s exercise of discretion.” requiring from a later to this Chaney, Heckler v. Gardner, Toilet Goods Ass’n v. [decision],” 1649, 1655, To be 158, 164, sure, Chaney agency’s involved an refusal I would hold that Her- action, to initiate enforcement while this nandez’s preliminary to the INS’ suspend case involves the refusal en- ripe determination is not for re- decision, forcement. Review of either how- view. ever, would enmesh a court matters that beyond judicial competence and that properly belong sphere within the of the III. Executive. The General’s deci- agree I majority with the that the Attor- sion enforcing immigration to continue ney General’s decision suspend not to against laws plainly Salvadorans is not re- regular operation immigration viewable under the Administrative Proce- (the Salvadoran nationals so-called majority, although dure Act. The taking a grant of voluntary departure”) “extended path, ultimately somewhat different reach- judicially reviewable. Maj.Op. es the same destination. conclusion, I would rest how- ever, squarely ground on the the ac-

tion is “committed discretion

law,” 701(a)(2) (1982). 5 U.S.C. §

The decision to withhold enforcement of laws is extrastatutory;

constitutes one of the Executive’s inherent

prerogatives. The Constitution entrusts to duty President to "take Care that executed____” faithfully Laws be Const, II, art. long 3. It has been settled

that “the Executive Branch has exclusive

Case Details

Case Name: Hotel & Restaurant Employees Union, Local 25 v. Attorney General of the United States

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

Date Published: Jan 12, 1987

Citation: 804 F.2d 1256

Docket Number: 84-5859

Court Abbreviation: D.C. Cir.