GENE MCNARY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, ET AL., PETITIONERS V. HAITIAN REFUGEE CENTER, INC., ET. AL. No. 89-1332 In The Supreme Court Of The United States October Term, 1989 The Solicitor General, on behalf of Gene McNary, Commissioner of Immigration and Naturalization, et al., petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit PARTIES TO THE PROCEEDING Petitioners, defendants below, /1/ are Gene McNary, Commissioner of Immigration and Naturalization; Richard Smith, Acting District Director, Immigration and Naturalization Service, District Office Number 6, Thomas Fisher, District Director, Immigration and Naturalization Service, District Office Number 26; Lewis DeAngelis, Director, Immigration and Naturalization Service Regional Processing Facility for the Southern Region; Immigration and Naturalization Service, Department of Justice; James A. Puleo, Acting Associate Commissioner for Examination, Immigration and Naturalization Service; Terrance M. O'Reilly, Assistant Commissioner for Legalization, Immigration and Naturalization Service; Dick Thornburgh, Attorney General of the United States; and the United States Department of Justice. The respondents, plaintiffs below, are Haitian Refugee Center, Inc., a not-for-profit corporation; Roman Catholic Diocese of Palm Beach; Marie Gizele Angrand; Germaine Cadet; Rosita Delva; Dieumercie Desir; Joseph Saintil Dieudonne; Gerard Henry; Marie France Jean-Philippe; Novamise Julien; Francklin Joseph; Sylvia Lindor; Recol Neus; Rose Pierrecina Lebon Pierre; Marie Philomene Servilien; Hector Trejo Tamayo; Juan Tamayo Vega; Marie Raquel Viera; and Jeanette Vixama. TABLE OF CONTENTS Question Presented Parties to the Proceeding Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-17a) is reported at 872 F.2d 1555. The opinion and order of the district court (App., infra, 18a-54a, 55a-57a) are reported at 694 F. Supp. 864. JURISDICTION The judgment of the court of appeals was entered on May 23, 1989. A petition for rehearing was denied on October 10, 1989. App., infra, 58a-59a. On December 28, 1989, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including February 17, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The pertinent provisions of the Immigration and Nationality Act, 8 U.S.C. 1105a, 1160, are set forth in an appendix (App., infra, 60a-63a). QUESTION PRESENTED The Immigration Reform and Control Act of 1986 provides that there shall be no judicial review of a determination "respecting an application" for Special Agricultural Worker (SAW) status except in the courts of appeals on review of a deportation order (8 U.S.C. 1160(e)). The question presented in this case is whether this provision precludes a federal district court room exercising general federal question jurisdiction over an action alleging a pattern or practice of procedural due process violations by the Immigration and Naturalization Service in its administration of the SAW program. STATEMENT 1. The Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, "represent(ed) the most comprehensive immigration reform effort in the United States in 20 years." S. Rep. No. 132, 99th Cong., 1st Sess. 18 (1985); H.R. Rep. No. 682, 99th Cong., 2d Sess., Pt. 1, at 51-55 (1986) (describing history of legislation). As an integral part of that effort, Congress established two major legalization programs that permitted certain undocumented aliens in the United States to obtain lawful resident status. The first legalization program applied to aliens who had resided continuously and unlawfully in the United States since January 1, 1982. 8 U.S.C. 1255a. The second program applied to "Special Agricultural Workers" (SAW) -- those aliens who had performed at least 90 days of qualifying agricultural work in the United States during the 12 months ending May 1, 1986. 8 U.S.C. 1160(a). IRCA provided that applicants for SAW status had to submit their applications during an 18-month period beginning June 1, 1987. 8 U.S.C. 1160(a)(1)(A). If an applicant established both 90 days of qualifying agricultural work and his admissibility to the United States as an immigrant, the Attorney General was required to adjust the alien's status to that of temporary resident. 8 U.S.C. 1160(a)(1). In a second phase of the SAW program, such aliens would become eligible for adjustment of status to that of aliens lawfully admitted for permanent residence. 8 U.S.C. 1160(a)(2). Congress conferred authority for administering the legalization programs on the Attorney General, who in turn has delegated that authority to the Commissioner of Immigration and Naturalization. 8 U.S.C. 1160, 1255a; 8 C.F.R. 2.1. Under regulations of the Immigration and Naturalization Service (INS), SAW applications were initially processed by specially created legalization offices (LO). The LOs were required to interview each applicant personally, and in such interviews the applicant had to establish eligibility for SAW status. 8 C.F.R. 210.1(h), 210.2(c)(2)(iv) and (c)(4)(i). Thereafter, the applications were adjudicated by one of the four INS Regional Processing Facilities (RPF). 8 C.F.R. 210.1(p). /2/ Whenever a SAW application was denied, INS regulations required that the alien be given written notice setting forth the reasons for the denial and the applicant's right to an administrative appeal. 8 C.F.R. 103.3(a)(2), 210.2(f). IRCA expressly limits the scope of administrative and judicial review in the SAW program. Section 1160(e) of IRCA provides: "There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection." 8 U.S.C. 1160(e)(1). The subsection then directs the Attorney General to establish an "appellate authority to provide for a single level of administrative appellate review," and provides that "(t)here shall be judicial review of such a denial (of SAW status) only in the judicial review of an order of exclusion or deportation under section 1105a of this title." 8 U.S.C. 1160(e)(2)(A) and (e)(3)(A). The cited section, 8 U.S.C. 1105a, provides for the exclusive review of an order of deportation in the courts of appeals. See Foti v. INS, 375 U.S. 217 (1963); INS v. Chadha, 462 U.S. 919, 938 (1983). Judicial review of the denial of a SAW application is to be based solely on the record established before the administrative appeals authority. The findings of fact and determinations in that record are conclusive absent abuse of discretion or a demonstration that the findings are contrary to clear and convincing facts in the record as a whole. 8 U.S.C. 1160(e)(3)(B). Congress enacted virtually identical provisions for the general legalization program. 8 U.S.C. 1255a(f). The legalization programs attracted "amnesty" applications on an unprecedented scale. According to information reported to Congress in May 1989, nearly 3.1 million applications were filed under the legalization programs. Of the 1,843,744 applications that had been adjudicated as of May 1989, 95.7% had been approved. In the general legalization program, the approval rate was 96.6%, while in SAW, the approval rate was 92.9%. /3/ The INS anticipated that the overall approval rate for the SAW program would decline somewhat as it completed investigation of cases for fraud. Immigration Reform and Control Act of 1986 Oversight: Hearings Before the Subcomm. on Immigration, Refugees and International Law of the House Comm. on the Judiciary, 101st Cong., 1st Sess. 400, 403 (1989) (statement of Alan C. Nelson, INS Commissioner). 2. Respondents are the Haitian Refugee Center (HRC); the Migration and Refugee Services of the Roman Catholic Diocese of Palm Beach, Florida (MRS); and 17 individual aliens whose SAW applications were denied. On June 13, 1988, respondents brought suit against petitioners in the United States District Court for the Southern District of Florida. Respondents alleged that the INS had adopted unlawful policies and practices in making SAW determinations, and that these policies and practices were resulting in erroneous denials of SAW applications. /4/ Respondents claimed that these policies and practices violated IRCA and the Due Process Clause. On behalf of themselves and a class consisting of SAW applicants in the Eleventh Circuit who had been or would be denied SAW status because of the alleged unlawful practices, respondents sought declaratory, injunctive, and mandatory relief against the INS prohibiting those practices. App., infra, 2a, 19a-20a. Following a hearing, the district court granted respondents' motion for class certification and for a preliminary injunction. App., infra, 55a-57a. Initially, the court held that it had subject matter jurisdiction over the action, notwithstanding IRCA's specific and limited provisions for judicial review. Id. at 36a-40a. The court reasoned that respondents' complaint fell under its general federal question jurisdiction because it did not challenge the INS's determination in any particular case. "(R)ather," the court explained, the complaint "attacks the manner in which the entire program is being implemented." App., infra, 38a, citing Haitian Refugee Center (HRC) v. Smith, 676 F.2d 1023 (5th Cir. 1982), and Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (en banc), aff'd on other grounds, 472 U.S. 846 (1985). The court also rejected petitioners' arguments that the organizational plaintiffs (HRC and MRS) lacked standing to pursue their claims against the operation of the SAW program. App., infra, 40a-44a. The court noted that HRC, whose main function is to provide legal representation to Haitian refugees, had alleged a direct injury to its ability to assist the Haitian refugee community, and an indirect injury to its membership. As to MRS, the court noted that it was a "qualified designated entity" under IRCA, authorized to assist in the preparation and submission of applications for SAW status. /5/ MRS alleged that the INS's practices, by discouraging aliens from applying for SAW status, had prevented it from performing its mission. Id. at 41a. Turning to respondents' claim for preliminary relief, the court concluded that respondents were likely to prevail on the merits and had satisfied the other requisites for a preliminary injunction. The court therefore entered a detailed preliminary injunction ordering INS, inter alia, to vacate the denials issued to certain SAW applicants and remedy the violations that the court believed had affected the determinations in those cases. App., infra, 55a-57a. /6/ Other paragraphs of the injunction ordered INS to take the following steps with regard to the processing of SAW applications (id. at 57a): (6) The Legalization Offices shall maintain competent translators, at a minimum, in Spanish and Haitian Creole, and translators in other languages shall be made available if necessary; (7) The INS shall afford the applicants the opportunity to present witnesses at the interview including but not limited to growers, farm labor contractors, co-workers, and any other individuals who may offer testimony in support of the applicant; (8) The interviewers shall be directed to particularize the evidence offered, testimony taken, credibility determinations, and any other relevant information on the form I-696. /7/ 3. Petitioners sought review of paragraphs (6), (7), and (8) of the preliminary injunction in the court of appeals, and challenged the district court's jurisdiction to entertain this action. The court granted a stay of those paragraphs pending appeal, but after briefing and argument, the court of appeals affirmed, holding that the district court had properly exercised jurisdiction over this case and had not abused its discretion in granting a preliminary injunction. App., infra, 1a-17a. The court began by holding that 8 U.S.C. 1160(e) did not preclude the district court from exercising federal question jurisdiction. Stating that it "had previously considered and rejected this argument," the court explained that HRC v. Smith, supra, and Jean v. Nelson, supra, established the propriety of district court jurisdiction to review "allegations of systematic abuses by INS officials." App., infra, 9a-10a. Applying the principles announced in those cases, the court said (id. at 11a): In this action, appellees do not challenge the merits of any individual status determination; rather, like the plaintiffs in Haitian Refugee Center v. Smith and Jean v. Nelson, they contend that defendants' policies and practices in processing SAW applications deprive them of their statutory and constitutional rights. In addition, the court found inapplicable the exhaustion-of-remedies requirement of 8 U.S.C. 1105a. The court stated that the exhaustion requirement was not triggered because "the individual plaintiffs here do not seek substantive review of any individual ruling respecting their status," but only "challenge the adequacy of the procedures employed in the processing of their SAW application." App., infra, 12a. The court further refused to apply prudential exhaustion principles, because it concluded that even if the plaintiffs had pressed their claims through the administrative process, the chances that INS would revise its policies in response to the claims of a single applicant were "remote." Id. at 13a (citing Mathews v. Eldridge, 424 U.S. 319, 330 (1976)). As to the organizational plaintiffs, the court held that exhaustion was "clearly" inapplicable because they "had no remedy to exhaust." App., infra, 11a. The court also rejected petitioners' argument that the organizational plaintiffs lacked standing. The court believed that petitioners had challenged only the organizations' standing to raise the rights of third parties, but it dismissed that argument because the district court had found that the organizations had a cognizable injury in their own right. App., infra, 11a n.10. Having disposed of the jurisdictional issues, the court of appeals held that the issuance of the preliminary injunction did not constitute an abuse of discretion. The court stated that the right of SAW applicants to apply for temporary residency, and to substantiate their claims to eligibility, must be accorded the protections of due process. Applying the three-factor test of Mathews v. Eldridge, supra, and Landon v. Plasencia, 459 U.S. 21 (1982), the court upheld the provisions of the injunction requiring INS to provide adequate translators at SAW interviews, to permit applicants to call witnesses at such interviews, and to particularize evidence offered, testimony taken, and evidentiary determinations on its forms for such interviews. App., infra, 13a-17a. REASONS FOR GRANTING THE PETITION This case presents a question of great importance in the governance of the legalization programs mandated by Congress in 1986. The court of appeals held that district courts have jurisdiction to entertain sweeping challenges to the policies and practices employed by INS in administering IRCA. That decision is contrary to the language and structure of IRCA's carefully crafted jurisdictional provisions. The court's decision permits circumvention of the sole avenue for judicial review under IRCA intended by Congress: a petition to a court of appeals for review of an order of deportation. By so holding, the court has sanctioned the improper intervention of federal district courts into the day-to-day business of administering the immigration laws. Moreover, the court of appeals' decision conflicts with the holding of the D.C. Circuit in Ayuda, Inc. v. Thornburgh, 880 F.2d 1325, 1337 (1989), petition for cert. pending, No. 89-1018, which construed the virtually identical jurisdictional provisions applicable to the general legalization program. The resolution of this conflict is of intense practical significance to INS. Numerous IRCA cases, based on the same jurisdictional theory as that accepted by the court below, have been filed in district courts around the country. These cases have caused substantial disruption to INS's processing of tens of thousands of legalization applications. Because the decision below undermines the scheme for judicial review embodied in IRCA and fundamentally alters the balance of responsibilities between the INS and the courts, this Court's review is warranted. /8/ 1.a. Congress carefully structured the SAW program to channel all judicial review of INS determinations to the courts of appeals in the review of a deportation order. The statute provides in all-encompassing terms: "There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection." 8 U.S.C. 1160(e)(1). In the following paragraphs, the subsection spells out precise procedures intended to provide the exclusive method of review. The subsection requires the establishment of "a single level of administrative appellate review," and unequivocally states that "(t)here shall be judicial review of such a denial (of a SAW application) only in the judicial review of an order of exclusion or deportation under section 1105a of this title." 8 U.S.C. 1160(e)(2)(A) and (e)(3)(A). Section 1105a, in turn, requires that a deportation order be reviewed only in a court of appeals. /9/ Congress could hardly have chosen clearer or more forceful language to express its intention to preclude any judicial review of a "determination respecting an application" for SAW status, other than in the court of appeals following the entry of a deportation order. The present action raises claims that are squarely covered by IRCA's jurisdictional provisions, and thus cannot be brought in district court. The complaint alleged that the individual plaintiffs (and the class they sought to represent) were denied SAW status because of alleged unlawful procedures employed by INS in adjudicating their applications. For example, the plaintiffs alleged that INS imposed an improper burden of proof on SAW applicants; that INS denied SAW applicants the opportunity to present witnesses; that INS failed to furnish translators at government expense; and that INS provided defective notices of denial, hindering the ability of rejected SAW applicants to prosecute an administrative appeal. Complaint, paras. 64, 80-82, 86. Each of these claims directly attacks the process used by INS to make a determination respecting entitlement to SAW status. Hence, they could all have been raised before the INS's Administrative Appeals Unit, which provides administrative review of denials in the legalization programs. See 8 C.F.R. 103.3(a)(2), 210.2(f). The same claims could be raised in the court of appeals in the review of a deportation order. INS v. Chadha, 462 U.S. at 938 ("the term 'final orders' in (Section 1105a) 'includes all matters on which the validity of the final order is contingent'"). Consequently, respondents' claims are properly characterized as seeking review of a "determination respecting an application" for SAW status -- precisely the type of claim that is governed by 8 U.S.C. 1160(e). /10/ Although respondents claimed to attack only a pattern or practice of conduct independent of particular cases, the relief that the complaint requested, and that the court granted, belies that claim. The complaint sought, in addition to prospective changes in INS procedures, an order requiring INS "to set aside all denials of SAW applications filed by Plaintiffs and members of the class they seek to represent who are subject to the practices, policies, and procedures addressed in this complaint," and "to reconsider all (such) SAW applications." Complaint, Prayer for Relief, paras. D(8)-D(9). Likewise, the district court ordered the INS to vacate some notices of denial, to reconsider other denials, and to afford still other applicants new opportunities to submit evidence. App., infra, 56a. Such individualized relief makes manifest that the complaint's purpose was to achieve, on a mass scale, review and reversal of the INS's denials of SAW applications in particular cases. That reading of the complaint is no less accurate simply because respondents stopped short of asking that any applicant actually be granted SAW status by the court. The complaint simply combined many individual procedural claims, none of which was cognizable individually in district court, into one composite claim. But claims that are jurisdictionally barred individually cannot be salvaged simply by combining them into a class action. See Snyder v. Harris, 394 U.S. 332 (1969) (aggregation of claims not permitted for purposes of the jurisdictional-amount requirement in a class action founded on diversity jurisdiction). In an analogous context, this Court has rejected arguments that individual plaintiffs can bypass restrictions on judicial review by purporting to attack general policies rather than individual results. In Heckler v. Ringer, 466 U.S. 602 (1984), three plaintiffs had undergone a form of surgery and had unsuccessfully pursued a claim for reimbursement from the Secretary of Health and Human Services through some, but not all, layers of administrative review. A fourth plaintiff had not undergone the surgery at all, but claimed that the Secretary's refusal to allow payment for that type of surgery precluded him from obtaining it. All sued in district court to challenge the Secretary's reimbursement policy, although the applicable statute provided that judicial review was available only after the Secretary rendered a "final decision" on a particular claim. Like the respondents here, the plaintiffs in Ringer contended that their suits were permissible because they challenged only the Secretary's "'procedure' for reaching her decision," not the underlying decisions on their benefits claims. 466 U.S. at 614. This Court rejected the purported distinction. As to the three plaintiffs who were in the midst of the administrative process, the Court said that "it makes not sense to construe the claims * * * as anything more than, at bottom, a claim that they should be paid for their * * * surgery." Ibid. Explaining that the procedural challenges were "inextricably intertwined" with the underlying benefits claim, the Court concluded that "all aspects of respondents' claim for benefits should be channeled first into the administrative process which Congress has provided for the determination of claims for benefits." Ibid. The Court expressly rejected the view that "simply because a claim somehow can be construed as 'procedural,' it is cognizable in federal district court by way of federal-question jurisdiction." Ibid. /11/ Just as the claimants in Ringer sought to evade the judicial review provisions of the Medicare Act by casting their challenge as a procedural one, respondents here sought to avoid the force of Section 1106(e) by contending that they were challenging only policies and practices of the INS, not any determinations respecting their applications for SAW status. That distinction is untenable. The procedures challenged by respondents are integral parts of INS's determinations of eligibility. The burden of proof, the ability to call witnesses, and the presence of translators all concern the process by which a particular claim is adjudicated, a process that takes on meaning only because of the outcome it produces. Such procedures can readily be challenged in an administrative appeal and, ultimately, in a court of appeals in the review of a deportation order; hence, review of those procedures in district court is precluded by IRCA. Because the courts of appeals have jurisdiction over such matters, this is not a case where district court jurisdiction is required in order to avoid construing IRCA to preclude all judicial review. Compare Webster v. Doe, 486 U.S. 592, 603 (1988); Lindhahl v. OPM, 470 U.S. 768, 778 (1985). /12/ The court also erred in upholding the district court's jurdisdiction over the claims of the organizational plaintiffs. MRS predicated its right to sue on its status as a "qualified designated entity," which the statute charged with assisting applicants. It claimed that the INS's conduct discouraged eligible applicants from filing applications and thereby prevented MRS from performing its mission under IRCA. HRC simply claimed injury to itself because of an impairment of its ability to assist its members and the diversion of its resources. Complaint, paras. 17-18; App., infra, 41a. /13/ Organizations such as MRS and HRC, of course, cannot obtain review of the operation of the SAW program by raising claims in a petition for review of an order of deportation. But far from suggesting that such organizations are free to bring district court challenges to substantive or procedural aspects of the SAW program (unencumbered by the need to exhaust administrative remedies), the absence of a provision giving such parties judicial recourse suggests that Congress did not intend to authorize them to mount such challenges at all. "(W)hen a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded." Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984). Although there is ordinarily a presumption favoring judicial review, it is overcome "whenever the congressional intent to preclude judicial review is 'fairly discernible in the statutory scheme.'" Id. at 351 (quoting Data Processing Service v. Camp, 397 U.S. 150, 157 (1970)). See also Clarke v. Securities Industry Ass'n, 479 U.S. 388, 399 (1987). In Block, this Court applied those principles in rejecting a claim that consumers could challenge administrative milk-handling orders free from the exhaustion requirements applicable to milk producers and handlers, the parties subject to those orders. The absence of any express provision for consumers to raise such challenges, the detailed scheme governing challenges by other parties, and the overlap of the consumers' interest with that of other parties supported the view that Congress had not intended to permit judicial review at the instance of consumers. The same principles are applicable here. Although Congress provided for "qualified designated entities" in order to encourage aliens to come forward and apply for legalization, it did not designate them as litigation agents for aliens. Far less did Congress identify any role under IRCA for a group, like HRC, that simply seeks to assist aliens. To allow either group to sue would vastly enlarge the range of possible lawsuits involving IRCA, while frustrating the contemplated layer of administrative review within the INS. For example, many of the procedural objections made in this case could be resolved administratively by appeals from individual applicants, without the need for judicial intervention. It would obviously undermine the statutory scheme to accord organizational plaintiffs such as MRS and HRC a right to immediate and unrestricted judicial review under the SAW program. IRCA was not designed for the benefit of those organizations, and it affords them no special protection. Moreover, their claims simply duplicate the claims of applicants. Under these circumstances, the court of appeals erred in allowing the organizational plaintiffs to sue. /14/ b. The legislative history and background against which IRCA was enacted are fully consistent with the natural interpretation of Section 1160(e)'s language. The Senate precursors to IRCA would have gone farther than the statute later enacted by precluding all judicial review of decisions or determinations involving the legalization program. /15/ The Senate Report on a 1985 bill, explaining the rationale underlying such a complete prohibition of judicial review, noted that since the legalization program was of a "magnitude * * * unique in history," it would require a "major managerial effort * * * to review the applications and assure that applicants qualified to be legalized will actually receive this benefit and that other applicants will not." S. Rep. No. 132, supra, at 48. Concerned about the incentives and opportunity of ineligible applicants to delay the disposition of their cases and derail the program, the Committee stated that the purpose of precluding all judicial review was "to insure reasonably prompt final determinations" so that dilatory tactics could not interfere with "the expeditious operation of the program for others." Ibid. /16/ Although the legislation ultimately enacted provided for limited judicial review, Congress did not intend to open the door to the kind of action brought here. As the House Committee Report explained, "(t)he bill provides for limited administrative and judicial review of denials of applications for legalization. * * * (T)he applicant can appeal a negative decision within the context of judicial review of a deportation order." The sectional analysis of the bill confirms that the provision governing review in the SAW program "(r)estricts judicial review to the context of review of an order of exclusion or deportation." H.R. Rep. No. 682, supra, Pt. 1, at 74, 99. Given the size of the undertaking involved in the legalization programs, the restrictions on judicial review serve an important purpose. According to Congressional Budget Office estimates in 1985, as many as 5.6 million undocumented aliens lived in the United States, and as many as 565,000 would apply for legalization. S. Rep. No. 132, supra, at 64. The legalization program was described as "a 'one-time-only' program to address a problem resulting from the large-scale illegal immigration of the past." Id. at 16. In light of the obvious logistical and practical problems in implementing such a program, Congress had to balance fairness for individual applicants against the need for overall efficiency in implementing the program for the benefit of all applicants. There is no evidence that, in effecting a compromise allowing limited judicial review in the courts of appeals in the context of deportation proceedings, Congress envisioned that district courts would have the power (and obligation) to supervise the processing of thousands of legalization applications under the aegis of reviewing INS "policies and practices." c. In rejecting petitioners' jurisdictional arguments, the court below never analyzed the language used by Congress in limiting judicial review. Instead, the court relied on two court of appeals precedents that purportedly created a "pattern and practice" exception to 8 U.S.C. 1105a. App., infra, 9a-11a, citing HRC v. Smith, supra, and Jean v. Nelson, supra. While we believe those cases were wrongly decided, they are in any event not controlling here, as neither case involved the distinctive statutory framework governing judicial review under IRCA. In HRC, a class action was filed on behalf of over 4,000 Haitians who claimed that INS was improperly expediting their asylum claims in violation of their statutory and constitutional rights. INS contended that Section 1105a, which governs judicial review of all final orders of deportation and determinations incident thereto, precluded the assertion of the plaintiffs' claims in district court. 676 F.2d at 1032. Although finding INS's argument to have "surface appeal," the court rejected it, reasoning that an INS "pattern and practice" of violating the constitutional rights of aliens raised a "separate matter" from any individual case, and was "independently cognizable in the district court under its federal question jurisdiction." Id. at 1033. In Jean v. Nelson, the court of appeals relied on the same jurdisdictional theory. There, a class of Haitian refugees who were in the midst of exclusion proceedings sued in district court claiming that they had been denied notice of their right to apply for asylum. Although Section 1105a permits aliens to challenge only final orders of exclusion after exhaustion of administrative remedies, the court conlcuded that those requirements were not applicable. /17/ The court accepted the distinction drawn in HRC between "an individual challenge on a preliminary procedural matter," which was barred by Section 1105a, and "allegations of widespread abuses by immigration officials," which could be heard in district court under 28 U.S.C. 1331. 727 F.2d at 980 & n.32. In the latter case, the court said, because the legal issues affect "an entire class of aliens," the purposes of postponing judicial review until after the entry of individual final orders (the avoidance of delay and "procedural redundancy") would not be served. Ibid. In our view, both HRC and Jean err in announcing that the district courts have power to adjudicate claims that Congress has said may be heard only in another forum or at another time. It is a fundamental principle of our judicial system that the jurisdiction of the lower federal courts is governed by statute. Finley v. United States, 109 S. Ct. 2003, 2006 (1989); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). District courts cannot assume the power to hear cases simply because it may seem wise, efficient, or prudent to do so. While the court in HRC said that district courts may draw upon their "equitable powers when a wholesale, carefully orchestrated, program of constitutional violations is alleged," 676 F.2d at 1033, and Jean extended that principle to statutory claims, 727 F.2d at 980 n.32, this Court has only recently reaffirmed the longstanding principle that such equitable powers cannot override restrictions imposed by statute. INS v. Pangilinan, 486 U.S. 875, 883 (1988). HRC and Jean advance various policy reasons for short-circuiting the scheme for judicial review reflected in Section 1105a, but fail to reconcile their analysis with the language and meaning of the statue. /18/ But even accepting the HRC-Jean approach as to Section 1105a, there is still no warrant for extending that approach to IRCA. In IRCA, Congress employed language even broader than that in Section 1105a, expressly limiting review of all claims "respecting an application" under the SAW program to petitions for review of an order of deportation. This incorporates the judicial review apparatus applicable to deportation cases, but goes farther by adding an explicit prohibition on any other form of judicial review. Consequently, if there had been any doubt abouth the result under Section 1105a standing by itself, Congress removed it. The sole source of judicial power to review determinations respecting the denials of SAW applications is found in 8 U.S.C. 1160(e). If that section does not afford a basis for review -- and it clearly does not authorize district court actions -- a district court case must be dismissed for want of judicial power. /19/ 2. The decision below conflicts with a decision of the United States Court of Appeals for the District of Columbia Circuit. In Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C. Cir. 1989), petition for cert. pending, No. 89-1018, the court of appeals, applying virtually identical jurisdictional provisions in IRCA, held that the district courts lack jurisdiction to hear challenges to INS rules governing eligibility for adjustment of status under the general legalization program. In that case, as here, individuals and organizations that advise aliens challenged in district court certain INS policies regarding the administration of the legalization program under IRCA. /20/ Under 8 U.S.C. 1255a(f), the judicial review "of a determination respecting an application for adjustment of status" in the legalization program may be had "only in the judicial review of an order of deportation under Section 1105a of this title." The plaintiffs argued that their challenge to a rule or policy was not controlled by that language. Rejecting that argument, the D.C. Circuit stated: "While some courts have found that allocation of jurisdiction appropriate under the judicial review provisions of (8 U.S.C. 1105a), apparently because they believed the only purpose of exclusive court of appeals jurisdiction was to prevent piecemeal litigation by aliens in the district courts that would delay deportation, we do not believe Congress intended that result under IRCA." 880 F.2d at 1331 (citation omitted). The Ayuda court explained that since a regulation governing eligibility will affect the outcome of many individual applications, "the regulation embodies determinations that will impact, and therefore are 'respecting,' future applications." 880 F.2d at 331. Consequently, the plain language of Section 1255a(f)(1) (the counterpart to Section 1160(e) for the general legalization program) covers challenges to rules. Moreover, the court noted, permitting review of rules in district court would lead to a "rather peculiar" division of jurisdiction, because the courts of appeals would hear "only the application of the statute in presumably less important individual cases," while district courts would review "the much more important cases involving broad questions of statutory construction that would apply to a whole class of aliens." 880 F.2d at 1331-1332. Taking note of the precise and limited standard of review that Congress established in IRCA, the court added that it "seems inconceivable" that Congress would have closely cabined court of appeals review of INS regulations as applied to particular cases, but would have authorized full-scale APA challenges to such rules in district court. Id. at 1333. The court concluded that since an alien could later contest the validity of regulations in the fashion set forth in IRCA -- in review of a deportation order -- "it follows that the district court lacked jurisdiction to hear the same claim in a different forum." Ibid. The court also held that the organizational plaintiffs could not invoke the district court's jurisdiction, because to allow such actions would undermine IRCA's jurisdictional scheme. Id. at 1339-1340. /21/ The Ayuda decision dealt with the same jurisdictional language as that applicable to the SAW program. Compare 8 U.S.C. 1160(e) (SAW) with 8 U.S.C. 1255a(f) (general legalization program). Although Ayuda involved review of a regulation (as opposed to the challenge to "policies and practices" here), the same principles are controlling in both situations. In both cases, the core inquiry is whether Congress intended to permit district court review of challenges to general policies adopted by INS in administering the legalization programs. The Ayuda court's answer to that question is precisely contrary to that of the decision below. 3. The resolution of the jurisdictional issue is of practical significance to the INS. Apart from this case and Ayuda, nearly 30 other cases have been filed in district courts across the county to challenge INS rules and policies under the legalization programs. See, e.g., Doe v. Nelson, 703 F. Supp. 713, 720-722 (N.D. Ill. 1988); Zambrano v. Thornburgh, No. S-88-455 EJG (E.D. Cal. Aug. 9, 1988), appeal pending, Nos. 88-15438, 88-15533 (9th Cir.); Catholic Social Services v. Thornburgh, No. S-86-1343-LKK (E.D. Cal. June 10, 1988), appeal pending, Nos. 88-15046, 88-15127, 88-15128 (9th Cir. argued Nov. 18, 1988); LULAC v. INS, No. 87-4757-WDK (C.D. Cal. 1988), appeal pending, No. 88-6447 (9th Cir.); Immigrant Assistance Project v. INS, 709 F. Supp. 998 (W.D. Wash. 1989), appeal pending, Nos. 89-35345, 89-35593 (9th Cir.). In many of these cases, the district court expressly found jurisdiction on the same theory espoused by the court below. These cases have deeply intruded upon INS's functions under IRCA. Some courts (like the district court in Ayuda) have ordered detailed revision of the INS's rules; other courts, despite Congress's express provision for a one-year application window, have purported to extend the deadline for aliens to apply for legalization (Catholic Social Services, supra; LULAC, supra); still others (like the court below) have ordered the reopening of thousands of applications to correct purported procedural errors in their processing. INS has been compelled to defend itself in complex class actions around the country, often having to address the same legal issue in different cases pending simultaneously. Discovery and fact finding involving legalization issues have been particularly intrusive. /22/ Moreover, the INS has been forced to respond to the plaintiffs' discovery requests for information deriving from legalization applications despite IRCA's strict confidentiality provisions. See 8 U.S.C. 1160(b)(6), 1255a(c)(5); note 6, supra. Above all, the district courts' micromanagement of the INS has distracted it from performing the task Congress entrusted to the Attorney General: administration of the legalization effort. Although the legalization programs have largely concluded their first phase, we believe that the issues raised here warrant this Court's attention. Several large cases (including this one) are still pending, and tens of thousands of legalization applications may be affected by their outcome. In addition, the second phase of the legalization process (involving permanent residency) is underway and may engender similar lawsuits. More fundamentally, provisions that define and limit opportunities for judicial review are a common feature of many statutory schemes. Clarifying the proper role of the courts in schemes like the present one thus has continuing significance, for "(w)hat is of paramount importance is that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts." Finley v. United States, 109 S. Ct. at 2010. The litigation under IRCA has demonstrated that such clarity has not yet been achieved. Review of the decision below is therefore warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General DAVID L. SHAPIRO Deputy Solicitor General MICHAEL R. DREEBEN Assistant to the Solicitor General DAVID V. BERNAL Attorney FEBRUARY 1990 /1/ The individual petitioners, who are parties in their official capacities, have been substituted for their predecessors in office, Alan C. Nelson, Perry Rivkind, Kenneth Pasquarell, William Chambers, Richard Norton, William Slattery, and Edwin Meese III, respectively. See Sup. Ct. R. 35.3. /2/ As amended, the regulations permitted INS district directors to approve SAW applications if an RPF had required a second interview and the alien established eligibility, or to deny SAW applications filed by applicants who were ineligible for approval. 8 C.F.R. 103.1(n)(2). /3/ 1,768,089 applications were filed under the general legalization program, while 1,301,804 were filed under SAW. /4/ In particular, respondents alleged that the INS (1) had imposed an improper burden of proof on applicants by insisting upon corroborating evidence in addition to affidavits submitted by applicants to establish the requisite 90 days of agricultural employment; (2) had improperly denied "nonfrivolous" applications at the LO level, thereby depriving applicants of work authorization pending review of their applications; (3) had issued notices of denial that inadequately described the grounds for denial and provided inaccurate information regarding appeals; and (4) had conducted improper interviews by failing to provide interpreters for applicants, failing to disclose adverse evidence to applicants to permit rebuttal, and refusing to allow applicants to present witnesses in support of their claims. App., infra, 19a-20a. /5/ "Qualified designated entities" were created by IRCA in order to permit aliens to file legalization and SAW applications with nongovernmental intermediaries who would forward the applications to the Attorney General. 8 U.S.C. 1160(b)(1)(A), 1160(b)(2); 1255a(c)(1), 1255a(2). Congress provided for such entities in order to encourage undocumented aliens to apply for legalization without fear of exposure to the INS. H.R. Rep. No. 682, supra, Pt. 1, at 73. To that end, the files of such entities relating to an alien being assisted regarding a SAW application are confidential, and the INS lacks access to those files without the alien's consent. 8 U.S.C. 1160(b)(4). /6/ The denials that the injunction ordered INS to reopen involved: defective notices of denial; applications denied on the basis of adverse evidence that INS had considered without the applicants' knowledge; and applications determined under an incorrect burden of proof. App., infra, 55a-56a. Petitioners did not challenge those paragraphs of the preliminary injunction on appeal (except to the extent that petitioners challenged the district court's jurisdiction). Id. at 2a-3a. /7/ The court subsequently granted respondents' motion to compel the INS to produce in discovery up to 20,000 "legalization files" pertaining to the class members, notwithstanding the confidentiality provisions in IRCA protecting against disclosure of such files, see 8 U.S.C. 1160(b)(6). The government's petition for mandamus challenging that order was denied by the court of appeals. In re Nelson, 873 F.2d 1396 (11th Cir. 1989) (per curiam). /8/ Although we do not agree with the court of appeals' analysis in affirming paragraphs (6), (7), and (8) of the preliminary injunction, we are not challenging that aspect of the judgment here. We have determined not to seek review of those holdings because the order at issue was only a preliminary injunction, and further proceedings were contemplated before the district court. Moreover, if our principal contention is accepted -- that the district court lacks jurisdiction -- further review of the details of the injunction is unnecessary. Nonetheless, we note that the court's affirmance of the injunction seriously misapplied the multifactor analysis set forth in Mathews v. Eldridge, supra, to govern procedural due process claims. In particular, the court gave no consideration to the government interest in retaining the current procedures, and it overrated the risk of error in the "generality of cases" (Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 330 (1985)). See App., infra, 15a-16a. For example, Congress did not mandate the provision of government-paid interpreters at SAW interviews, apparently believing that the expense was unjustified in light of the size of the program, the probability that most applicants could obtain adequate translation assistance on their own, and the existence of bilingual INS employees. Such an assumption appears to be valid, as over 90% of the SAW applications thus far adjudicated nationwide have been approved. Moreover, the court of appeals failed to recognize the prospect that, because of INS's finite resources, the requirement of providing more "process" for some might force the agency to give less consideration to others. Compare Mathews, 424 U.S. at 348. /9/ 8 U.S.C. 1105a was the product of a 1961 amendment to the Immigration and Nationality Act. Act of Sept. 26, 1961, Pub. L. No. 87-301, Section 5(a), 75 Stat. 651. By making applicable the Hobbs Act, 28 U.S.C. 2341 et seq., as the "sole and exclusive" provision for the review of "final orders of deportation," it confers exclusive jurisdiction on the courts of appeals. Congress's purpose in providing for review of "final orders of deportation" in the courts of appeals was "to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts." Foti v. INS, 375 U.S. at 226 (denial of of suspension of deportation reviewable under Section 1105a); Giova v. Rosenberg, 379 U.S. 18 (1964) (per curiam) (denial of motion to reopen deportation proceedings reviewable under Section 1105a); cf. Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) (district director's denial of a stay of deportation three months after entry of deportation order not reviewable under Section 1105a). /10/ Other provisions of IRCA support that conclusion. The statute contemplates administrative review of objections to a denial of SAW status (8 U.S.C. 1160(e)(2)), and, by incorporating 8 U.S.C. 1105a, requires that such administrative remedies be exhausted. The holding below frustrates that objective, as plaintiffs may proceed to federal court without obtaining administrative review of their claims. App., infra, 26a. Permitting district court actions also breeds confusion about the appropriate record and standard of review. IRCA specifically designates the record for judicial review, and formulates a highly restrictive standard for reversal to be applied by the courts of appeals. 8 U.S.C. 1160(e)(3)(B). The district court in this case ignored that standard in requiring the INS to reopen thousands of SAW applications. /11/ The Court was equally emphatic in rejecting the arguments by the plaintiff who had never even submitted a claim for benefits, and who simply wanted to challenge the formal rule issued by the Secretary that would preclude reimbursement. 466 U.S. at 620-621. The Court explained: "Although it is true that Ringer is not seeking the immediate payment of benefits, he is clearly seeking to establish a right to future payments should be ultimately decide to proceed with * * * surgery." Id. at 621. The Court rejected such a preemptive attack on the Secretary's rule, because the alternative "would allow claimants substantially to undercut Congress' carefully crafted scheme for administering the Medicare Act." Ibid. /12/ For that reason, Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), is not relevant here. In that case, the Court held that notwithstanding provisions barring all judicial review of individual Medicare Part B claims, a district court challenge to regulations under Part B was permissible. The paramount consideration in that context was that absent such a challenge to the regulations, there would have been no judicial review of them at all. Id. at 670-676. Nor is this a case like UAW v. Brock, 477 U.S. 274 (1986), where the Court upheld the standing of a union (on behalf of its members) to challenge the Department of Labor's guidelines governing an unemployment benefits scheme. There, the applicable statute said that benefits determinations were to be made by a cooperating state agency and were reviewable only as provided under state law. The Court held that a district court challenge to the federal guidelines was permissible because the union did not seek benefits for any particular claimant. Id. at 284-285. Brock is distinguishable because the statute considered there was passed against a backdrop of prior Supreme Court decisions recognizing the availability of federal review under similar statutory schemes; moreover, the language restricting judicial review in the particular statute applied only to determinations by the state agency, not by the Department of Labor. /13/ HRC also claimed indirect injury because of adverse effects on its membership. Complaint, para. 17. Any such claim of representative standing, however, depends on a showing that the members themselves could sue. UAW v. Brock, 477 U.S. at 282. /14/ Contrary to the court of appeals' apparent view, the question is not simply whether HRC and MRS have constitutional standing under Article III. See Appp., infra, 11a n.18, citing Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). Havens Realty merely found that an organization's impaired ability to counsel its members satisfied the Article III requirement of injury-in-fact. Id. at 378-379. IRCA, however, manifests a far more restrictive approach to judicial review than the constitutional minimum examined in Havens Realty. And, as "congressional preclusion of judicial review is in effect jurisdictional," Block, 467 U.S. at 353 n.4, the conclusion that Congress did not intend to authorize suit by the organizational plaintiffs means that the district court was without subject matter jurisdiction to hear their complaint. /15/ A Senate bill introduced in the 98th Congress expressly prohibited all judicial review. See S. 529, 98th Cong., 1st Sess., Section 301(a) (1983) ("No decision or determination made by the Attorney General under this section may be reviewed by any court of the United States or of any State."); S. Rep. No. 62, 98th Cong., 1st Sess. 53 (1983). Senator Cranston supported an amendment much like the provision later enacted in IRCA. He described it as providing a "very limited form of judicial review that would not expand the burden of the courts." Rather, "(i)t would be available only when an improper denial of legalization is raised as a defense in a deportation proceeding." 129 Cong. Rec. 12,810-12,811 (1983) (remarks of Sen. Cranston). That amendment was rejected. Id. at 12,837. Although both the Senate and the House passed immigration reform bills in the 98th Congress, their conflicting provisions were not reconciled and no final bill was enacted. The Senate bill that passed in the 99th Congress also precluded judicial review, but the House version containing the present language prevailed to conference, see note 15, infra. /16/ The bill in question, which would have established a general legalization program, provided for "no * * * judicial review (by class action or otherwise) of a decision or determination under this section." S. 1200, 99th Cong., 1st Sess., Section 202(f) (1985). Although S. 1200 passed the Senate, the House version, H.R. 3810, 99th Cong., 2d Sess. (1986), which provided for limited judicial review, was accepted in conference. See H.R. Conf. Rep. No. 1000, 99th Cong., 2d Sess. 92, 95-96 (1986) (noting the selection of the House legalization provisions without explanation and without reference to judicial review provisions). ##FN17 /17/ The immigration laws distinguish between "excludable" aliens, who have not made an entry into the United States, and "deportable" aliens, who have entered although they may have done so unlawfully. See Landon v. Plasencia, 459 U.S. at 25-27. Different administrative proceedings are applicable to each category, ibid., and an order of exclusion is reviewable exclusively in district court in a petition for habeas corpus. 8 U.S.C. 1105a(b). /18/ When Congress has specified a particular review mechanism, courts are not free to fashion alternatives to the specified scheme. See United States v. Fausto, 484 U.S. 439 (1988); Whitney Bank v. New Orleans Bank, 379 U.S. 411, 419-422 (1965); Yakus v. United States, 321 U.S. 414 (1944). In particular, when Congress specifies that judicial review of agency action shall be had in the courts of appeals, district courts cannot assert jurisdiction to review the same actions. FCC v. World Communications, Inc., 466 U.S. 463, 468 (1984) ("Litigants may not evade these provisions (requiring review of FCC orders in the court of appeals) by requesting the District Court to enjoin action that is the outcome of the agency's order."). See also Public Utilities Comm'r v. Bonneville Power Admin., 767 F.2d 622, 626 (9th Cir. 1985) (Kennedy, J.) ("where a statute commits review of final agency action to the court of appeals, any suit seeking relief that might affect the court's future jurisdiction is subject to its exclusive review"); Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) ("a statute which vests jurisdiction in a particular court cuts off original jurisdiction in other courts in all cases covered by that statute"). /19/ That conclusion applies equally to the grant of general federal question jurisdiction under 28 U.S.C. 1331 and to the provision in the immigration laws giving jurisdiction to the district courts for "all causes, civil and criminal, arising under any of the provisions of this subchapter." 8 U.S.C. 1329. The grant of general jurisdiction under those provisions does not override the more specific limitations set forth in IRCA. Cf. Whitney Bank v. New Orleans Bank, supra. /20/ The challenge in Ayuda arose from INS's interpretation of the eligibility requirements under the general legalization program. IRCA requires an alien to establish his continual unlawful residence in the United States since January 1, 1982. 8 U.S.C. 1255a(a)(2)(A). For nonimmigrant aliens (those who entered under a visa not entitling them to permanent residency, see 8 U.S.C. 1101(a)(15)), the alien must establish (unless his visa had expired through the passage of time) that he had violated the conditions for lawful status and that this was "known to the Government." 8 U.S.C. 1255a(a)(2)(B). The INS issued regulations that construed the term "Government" to mean the INS. 8 C.F.R. 245a.1(d). The plaintiffs contended that "Government" required a broader reading. Ayuda, 880 F.2d at 1327. /21/ The court of appeals also relied on an alternative ground, namely, that the agency action under review was not ripe. 880 F.2d at 1341-1346. Chief Judge Wald dissented in Ayuda, id. at 1346-1367, believing that the district court had properly exercised jurisdiction, and that the INS's actions were ripe for review. The D.C. Circuit denied rehearing en banc, with Chief Judge Wald, and Judges Mikva, Edwards, and Ruth B. Ginsburg stating that they would have reheard the case en banc. Order, No. 88-5226 (Oct. 4, 1989). /22/ For example, the district court in Ayuda appointed a Special Master to conduct a hearing designed to determine whether aliens had been deterred from applying for legalization because of INS's improper "known to the government" standard. Concerned by the potential burden of conducting such hearings, the government petitioned for mandamus, but the petition was denied. In re Thornburgh, 869 F.2d 1503 (D.C. Cir. 1989). APPENDIX