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, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Eleventh Circuit

   Brief For The Petitioners

                       PARTIES TO THE PROCEEDING

   Petitioners, defendants below, /1/ are Gene McNary, Commissioner of
Immigration and Naturalization;  Richard B. Smith, 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
      A. The statutory scheme
      B. The present controversy
   Summary of argument
   Argument:
      The district court lacked jurisdiction over the complaint
      A. IRCA precludes the exercise of general district court
         jurisdiction over any "determination respecting an
         application for adjustment of status"
      B. Respondents' complaint challenges determinations respecting
         applications for adjustment of status, and therefore cannot
         be brought in this action
      C. No jurisdictional exception exists under IRCA for actions
         alleging a "pattern and practice" of misconduct
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-17a) is reported
at 872 F.2d 1555.  The opinion and order of the district court (Pet.
App. 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.  Pet. App.
58a-59a.  On January 3, 1990, Justice Kennedy extended the time within
which to file a petition for a writ of certiorari to and including
February 17, 1990.  The petition was filed on February 20, 1990 (a
Tuesday following a Monday holiday), and granted on June 4, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   The pertinent portions of Sections 106, 210, and 279 of the
Immigration and Nationality Act, 8 U.S.C. 1105a, 1160, and 1329, and
28 U.S.C. 1331 are set forth in an appendix (App., infra, 1a-4a).

                          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 review of a deportation or exclusion order (8 U.S.C. 1160(e)).
The question presented is whether this provision precludes a federal
district court from exercising jurisdiction over an action alleging a
pattern and practice of procedural due process violations by the
Immigration and Naturalization Service in its treatment of individual
applications under the SAW program.

                               STATEMENT

   A. The Statutory Scheme

   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 (1) 90 days of
qualifying agricultural work, and (2) 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.  The
legalization offices were required to interview each applicant
personally, and in those 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.  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)(1) 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).  /3/ The cited
provision, 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), and for the
exclusive review of an order of exclusion in habeas corpus
proceedings.

   The legalization program attracted "amnesty" applications on an
unprecedented scale.  According to information reported to Congress in
May 1989, nearly 3.1 million applications were filed.  Of the
1,843,744 applications adjudicated as of May 1989, 95.7% were
approved.  In the general legalization program, the approval rate was
96.6%, while in SAW, the approval rate was 92.9%.  /4/ 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).

   B. The Present Controversy

   1. 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 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.  /5/ 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 INS.  Pet. App. 2a, 19a-20a.

   Following a hearing, the district court granted respondents' motion
for class certification and for a preliminary injunction.  Pet. App.
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 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." Id. at 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 held that the organizational plaintiffs (HRC and
MRS) had standing to pursue their claims against the operation of the
SAW program.  Pet. App. 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 under IRCA it was a "qualified designated entity,"
authorized to assist in the preparation and submission of applications
for SAW status.  /6/ MRS alleged that 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 to remedy the violations that the court believed had
affected the determinations in those cases.  Pet. App. 55a-57a.  /7/
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.  /8/

   2. 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 of
appeals affirmed.  Pet. App. 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." Pet. App. 9a-10.  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 that the plaintiffs were not obligated to
exhaust any administrative remedies, and rejected petitioners'
argument that the organizational plaintiffs lacked standing.  Pet.
App. 11a-12a.

   After disposing 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 protection of due
process.  Applying the three-factor test of Mathews v. Eldridge, 424
U.S. 319 (1976), 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.  Pet. App. 13a-17a.

                          SUMMARY OF ARGUMENT

   The sole question presented is whether the judicial review
provisions of IRCA -- which permit review of a "determination
respecting" a SAW application only in two designated types of
proceedings -- bar a federal district court, in a completely different
proceeding, from exercising general jurisdiction over the individual
and organizational claims in this case.  We submit that the answer is
yes.  That conclusion flows from the language and design of the
statute;  it also accords with the holding of the D.C. Circuit based
on a detailed analysis of counterpart provisions in the general
legalization program.  Ayuda, Inc. v. Thornburgh, 889 F.2d 1325,
1329-1340 (1989), petition for cert. pending, No. 89-1018.  The
Eleventh Circuit's holding to the contrary, empowering district courts
to review broadscale procedural claims under the SAW program, should
be reversed.

   A. IRCA precludes "judicial review of a determination respecting an
application" for SAW status except in the context of a proceeding to
review an order of deportation or exclusion.  Deportation orders, in
turn, are reviewable exclusively in the courts of appeals;  exclusion
orders are reviewable exclusively in habeas corpus proceedings.  These
provisions plainly cut off other sources of district court
jurisdiction with respect to all claims within their coverage.  When
Congress establishes a particular review mechanism, courts are not
free to fashion alternatives to the specified scheme.  Thus, IRCA
prevents district courts from asserting federal question jurisdiction
under 28 U.S.C. 1331, or general immigration jurisdiction under 8
U.S.C. 1329, to review "determination(s) respecting" SAW applications.

   The legislative history confirms the natural reading of IRCA's
text.  Congress perceived that the massive scale of the legalization
programs required significant limitations on judicial review.
Consequently, the legislation ultimately enacted was intended to
authorize only a limited form of review of individual cases in the
deportation or exclusion context -- not the sort of sweeping class
action brought here.

   B. Respondents' complaint challenges determinations within the
scope of IRCA's review provisions, and therefore cannot be brought in
this action.  The individual respondents challenged a variety of INS
procedures used to adjudicate their SAW applications.  These claims
could have been raised before INS's Administrative Appeals Unit, and
subsequently presented to a court after entry of an exclusion or
deportation order.  See INS v. Chadha, 462 U.S. 919, 938 (1983).
Consequently, they are properly characterized as seeking review of a
"determination respecting an application" for SAW status under 8
U.S.C. 1160(e)(1).

   IRCA's review provisions cannot be evaded by respondents' claim
that the individual applicants are challenging only "practices,"
"policies," or "procedures," and not the ultimate denials of their
applications.  The practices in question cannot be divorced from their
impact on individual applications.  Cf. Heckler v. Ringer, 466 U.S.
602 (1984).  Indeed, if the complaint were construed as challenging
INS's practices in such an abstract and isolated fashion, the
complaint would not even have identified agency action amenable to
judicial review under general principles of reviewability.  Lujan v.
National Wildlife Federation, 110 S. Ct. 3172 (1990).

   But a fair reading of the complaint reveals that respondents have
sought review of INS's practices as they affect individual application
denials, and there can be no doubt that this action is barred by the
express terms of Section 1160(e)(1).  It is no answer to this bar that
respondents have not asked the district court actually to grant anyone
SAW status.  The phrase "determination respecting an application"
encompasses both procedures and final decisions.  Cf. Heckler v.
Ringer, supra.  And the preclusion of district court review does not
raise constitutional issues of the sort noted in Webster v. Doe, 486
U.S. 592, 603 (1988), because the individual applicants have an
opportunity for judicial review after entry of a final order of
deportation or exclusion.

   Nor does IRCA permit the organizational respondents to sue in
district court.  "(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, 476 U.S. 340, 349 (1984).  That is the
case here with respect to the organizational plaintiffs.  Permitting
such groups to sue would undermine the plan for administrative and
judicial review wrought by Congress, and such suits are not required
to ensure the protection of any statutory interest.

   C. The Eleventh Circuit failed to analyze either the structure of
IRCA or its specific language, instead relying on lower court
precedents under the general immigration laws that have upheld a
"pattern and practice" exception to 8 U.S.C. 1105a.  In our view,
those cases are wrongly decided, but in any event do not support a
similar result under IRCA's quite different language.  IRCA does not
simply incorporate the judicial review apparatus applicable to
deportation or exclusion cases, it goes farther by adding an explicit
prohibition on any other form of judicial review.

   The experience of district courts in applying the "pattern and
practice" theory under IRCA provides additional support for the view
that Congress did not intend to sanction it.  That theory has an
inevitable tendency to launch the judiciary not only into wholesale
challenges to agency programs, but also into an unaccustomed, and
unwarranted, role of administering a program entrusted to the hands of
the Attorney General.  Given the primary responsibility of the
political branches in formulating and executing immigration policy,
and the correspondingly limited role for the judiciary, courts should
be particularly hesitant to depart from the case-by-case method of
review that Congress provided under IRCA.

                               ARGUMENT

   THE DISTRICT COURT LACKED JURISDICTION OVER THE COMPLAINT

   A. IRCA Precludes The Exercise Of General District Court
Jurisdiction Over Any "Determination Respecting An Application For
Adjustment Of Status"

   1. In framing IRCA, 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 (or district courts in
exclusion proceedings), thereby cutting off general sources of
jurisdiction in federal district courts.

   The Act declares 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 the precise procedures
intended to provide the exclusive method of review.  The subsection
requires the establishment of "a single level of administrative
appellate review of such a determination," 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(a), in turn, provides that a petition
for review in the court of appeals "shall be the sole and exclusive
procedure for() the judicial review of all final orders of
deportation," while exclusion orders are reviewable exclusively in
habeas corpus proceedings.  /9/ 8 U.S.C. 1105a(b).  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 specified
review proceedings applicable to individual deportation or exclusion
orders.

   In light of IRCA's clear directions, district courts are not free
to draw on their federal question jurisdiction under 28 U.S.C. 1331,
or on their jurisdiction granted under the immigration laws, 8 U.S.C.
1329, /10/ to entertain collateral attacks on procedures used to
adjudicate SAW applications.  The exercise of either source of general
power is barred by the precise and specific language of IRCA.  It is
well settled that when Congress has established a particular review
mechanism, courts are not free to fashion alternatives to the
specified scheme.  See United States v. Fausto, 484 U.S. 439, 448-449
(1988);  Whitney Bank v. New Orleans Bank, 379 U.S. 411, 419-422
(1965);  Yakus v. United States, 321 U.S. 414, 429-431 (1944).  /11/

   In this case, permitting review of an alleged pattern and practice
of INS conduct in district court would lead to a "rather peculiar"
division of jurisdiction, because the courts of appeals, in reviewing
deportation orders, 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
* * * that would apply to a whole class of aliens." Ayuda, Inc. v.
Thornburgh, 880 F.3d 1325, 1331-1332 (D.C. Cir. 1989), petition for
cert. pending, No. 89-1018.  The structure of the statute refutes the
view that Congress intended such an anomaly.  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.  Carving out a
particular class of claims for immediate district court review
frustrates that objective.

   Moreover, permitting such actions 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.  8 U.S.C. 1160(e)(3)(B).  There is
no ready way for district courts to apply those standards in broad
class actions addressing generalized issues divorced from the
circumstances of a particular case.  Indeed, the structure of the Act
-- focusing as it does on judicial review of individual determinations
-- reveals Congress's intention to insist that courts review agency
action under IRCA not at the "program" level, but as applied in each
particular case.  The facial challenges to agency policy mounted in
this case and in Ayuda cannot be squared with that objective.

   2. The legislative history and background against which IRCA was
enacted are fully consistent with the import 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.  /12/
In explaining the rationale underlying such a complete prohibition of
judicial review, the Senate Report on a 1985 bill 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.  /13/

   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 are "quite purposeful."
Ayuda, 880 F.2d at 1330.  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.  Although the magnitude and demands of the program
were originally seen as warranting preclusion of all judicial review,
the desire to insure fairness to applicants led to a compromise
allowing limited review to individuals confronted with an order of
deportation or exclusion.  There is no evidence that, in effecting
that compromise, 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 a "pattern and
practice" of INS conduct.  /14/

   B. Respondents' Complaint Challenges Determinations Respecting
Applications For Adjustment Of Status, And Therefore Cannot Be Brought
In This Action

   The present action raises claims within the coverage of IRCA's
jurisdictional provisions.  Those claims can thus be advanced only in
a statutory review proceeding, not in a district court class action by
either the individual or the organizational respondents.

   1. The Individual Respondents.  The complaint alleged that the
individual respondents (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 complaint
asserted 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.  Compl. paras. 64, 80-82, 86;  J.A. 38-39, 43-45.  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 INS's Administrative Appeals Unit (AAU),
which provides administrative review of denials in the legalization
programs.  See 8 C.F.R. 103.3(a)(2), 210.2(f).  /15/ The same claims
could then be raised on review of an exclusion or 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'");  Martinez-Montoya v. INS, 904 F.2d 1018, 1019 & n.1
(5th Cir. 1990) (finding jurisdiction over a challenge to the denial
of legalization in the context of reviewing a deportation order, and
setting aside the AAU's denial);  Farrokhi v. INS, 900 F.2d 697,
703-704 (4th Cir. 1990) (considering and rejecting an alien's
legalization claim in the context of reviewing a deportation order).

   The individual respondents claimed to attack only "practices,"
"policies," and "procedures" independent of their particular cases --
not any "determination(s) respecting" their applications for SAW
status.  Pet. App. 11a.  But respondents cannot bypass IRCA through
such a pleading device because the practices in question cannot be
divorced from their impact on individual applications.  Cf. Heckler v.
Ringer, 466 U.S. 602 (1984).  Indeed, if the complaint were
characterized as challenging only an INS "practice," wholly apart from
its concrete application in a particular case, the complaint would
fail even to identify "agency action" that is amenable to judicial
review under general principles of reviewability.  The Court held a
strikingly similar agency "program" to be unreviewable under the
Administrative Procedure Act just last Term in Lujan v. National
Wildlife Federation, 110 S. Ct. 3172 (1990).  As the Court explained
in that case (slip op. 17-18):

         Respondent alleges that violation of the law is rampant
      within this program * * *.  Perhaps so.  But respondent cannot
      seek wholesale improvement of this program by court decree,
      rather than in the offices of the Department or the halls of
      Congress, where programmatic improvements are normally made.
      Under the terms of the APA, respondent must direct its attack
      against some particular "agency action" that causes it harm.
      /16/

   But respondents did not in fact limit their attack as they now
contend.  Rather, they specifically sought review of INS's practices
as they affect individual application denials.  The complaint
described the "harm" suffered by the individual respondents as the
denial of SAW status, Compl. para. 56;  J.A. 36, and it 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." Compl., Prayer for
Relief, paras. D(8)-D(9);  J.A. 48.  Likewise, the district court
ordered INS to vacate some notices of denial, to reconsider other
denials, and to afford still other applicants new opportunities to
submit evidence.  Pet. App. 56a.

   Such individualized relief makes manifest that the complaint's
purpose was to achieve, on a mass scale, review and reversal of INS's
denials of SAW applications in particular cases, and to do so free
from the constraints expressly imposed by Congress.  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 by combining them into a class action.
 Cf. Snyder v. Harris, 394 U.S. 332 (1969) (in a class action founded
on diversity jurisdiction, aggregation of claims is not permitted for
purposes of satisfying the jurisdictional-amount requirement).

   In short, the specific claims raised in the complaint that have
"been reduced to more manageable proportions, and (their) factual
components fleshed out, by some concrete (agency) action," Lujan, slip
op. 17, are not reviewable in this proceeding -- which, in essence,
seeks review of INS's initial or final denials of many individual
applications.  Respondents' claims attack integral parts of the
process of making a "determination respecting an application";  to
allow such matters to be isolated for wholesale challenge -- outside
the context of individual deportation or exclusion orders -- runs
counter to the expressed intent of Congress.

   In a closely 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.  Heckler v. Ringer, 466 U.S. 602 (1984).  The plaintiffs in
Ringer contended that their lawsuits (challenging the refusal by
Secretary of Health and Human Services to reimburse Medicare claimants
for a particular form of surgery) were permissible without waiting for
the Secretary's final decision on their benefits claims, because they
challenged only the Secretary's "'procedure' for reaching her
decision," not the underlying decision on their particular claims.
466 U.S. at 614.  This Court rejected the purported distinction,
explaining that "it makes no 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 claims,
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 contention -- also
urged by the respondents here -- 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.  /17/

   Because the courts have jurisdiction to hear respondents' claims in
reviewing deportation or exclusion orders, the denial of district
court review does not raise "the 'serious constitutional question'
that would arise if a federal statute were construed to deny any
judicial forum for a colorable constitutional claim." Webster v. Doe,
486 U.S. 592, 603 (1988).  Indeed, no heightened showing of
congressional intent is required to conclude that general district
court review is unavailable for individual applicants under IRCA.  Cf.
Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141 (1967);  United
States v. Fausto, 484 U.S. at 452.  Review in this case is not
foreclosed;  it is simply directed to another forum.  Cf. Florida
Power & Light Co. v. Lorion, supra (resolving the question whether
review was available in district court or court of appeals without
discussing the presumption against preclusion of review).  For that
reason, Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667
(1986), is inapposite.  There, 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.  But that holding was necessary to avoid a total
preclusion of judicial review of those regulations, 476 U.S. at
670-676, a conclusion that would have raised a "serious constitutional
question." Id. at 681 n. 12.  That consideration has no bearing on the
proper construction of IRCA.  /18/

   2. The Organizational Respondents.  The court of appeals compounded
its error by upholding the district court's jurisdiction over the
claims of the organizational respondents.  MRS predicated its right to
sue on its status as a "qualified designated entity," which the
statute charged with assisting applicants.  It claimed that 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.
Compl. paras. 17-18;  J.A. 23-24;  Pet. App. 41a.  /19/

   Organizations such as MRS and HRC, of course, cannot themselves
obtain review of the operation of the SAW program by raising claims on
review of an order of deportation or exclusion.  But far from
suggesting that these 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 these parties judicial recourse suggests
that Congress did not intend to authorize such challenges at all.  As
explained above, the matters raised in the complaint that are
reviewable under IRCA are matters integral to the determination of
individual applications, and the Act precludes all judicial review
with respect to such matters -- not just review at the instance of an
applicant -- except in a challenge to an order of deportation or
exclusion.  Thus, review at the instance of respondent organizations
is not available.

   "(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
Association of Data Processing Service Organizations, Inc., 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 mount such challenges, the detailed scheme governing
challenges by other parties, and the overlap of the consumers'
interest with that of other parties strongly indicated that Congress
had not intended to permit judicial review at the instance of
consumers.  The same principles are even more clearly applicable here
in light of the explicit statutory limitation of judicial review.

   Although Congress provided for qualified designated entities in
order to encourage aliens to come forward and apply for legalization,
it did not designate those entities as "litigating ombudsmen" for
aliens.  Ayuda, 880 F.2d at 1339.  Congress's careful description of
the functions of a qualified designated entity -- a description that
does not include authorization to sue -- constitutes powerful evidence
that no such role was intended.  Cf. United States v. Erika, Inc., 456
U.S. 201, 208 (1982).  Nor, of course, did Congress identify any role
under IRCA for a group like HRC, which simply seeks to assist Haitian
refugees.  Those omissions counsel against the recognition of a right
for these groups to litigate claims belonging to individual
applicants, for whom an opportunity for judicial review is provided.

   It is not simply IRCA's omission of authorization to sue that
compels the denial of the organizations' claims.  Permitting such
actions does appreciable damage to IRCA's express design for judicial
review.  Without administrative appeals by individual applicants, the
agency cannot complete its formulation of policy, determine whether
the alleged errors warrant reversal on statutory grounds, or assess
whether any procedural errors are harmless.  It clearly undermines
Congress's deliberate choice of case-by-case review to accord
organizational plaintiffs immediate and unrestricted access to the
courts under the SAW program.  Moreover, since these organizations are
not the intended beneficiaries of the SAW program, it is hard to
imagine that Congress meant to confer upon them such unique litigation
advantages.  These advantages would be especially inappropriate when,
as here, their legal claims essentially duplicate the legal claims of
applicants, so that "no statutory interest is left unprotected by
recognizing Congress' implicit preclusion of suits" by such
organizations.  Ayuda, 880 F.2d at 1340.  /20/ In light of those
factors, preclusion of the organizations' claims is "fairly
discernible in the statutory scheme." Block, 467 U.S. at 351.

   Contrary to the court of appeals' apparent view, the question is
not whether HRC and MRS might have alleged injury-in-fact for standing
purposes under Article III.  See Pet. App. 11a n.10, citing Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378-379 (1982) (holding that an
organization's impaired ability to counsel its members satisfies the
Article III requirement of injury-in-fact).  IRCA's detailed
provisions manifest 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 that complaint.

   C. No Jurisdictional Exception Exists Under IRCA For Actions
Alleging A "Pattern And Practice" of Misconduct

   In rejecting petitioners' jurisdictional arguments, the court of
appeals never analyzed the structure of IRCA or the language used by
Congress in limiting judicial review.  Instead, the court relied on
two court of appeals precedents under the general immigration laws
that purportedly created a "pattern and practice" exception to 8
U.S.C. 1105a.  Pet. App. 9a-11a, citing HRC v. Smith, supra, and Jean
v. Nelson, supra.  While those cases, in our view, are wrongly
decided, they are in any event not controlling here.  Neither case
involved the distinctive statutory framework governing judicial review
under IRCA.  Moreover, importing the "pattern and practice" exception
into IRCA produces consequences demonstrably at odds with Congress's
intention to assign primary responsibility for implementation of IRCA
to the Attorney General, not the courts.

   1. a. The leading "pattern and practice" case is HRC v. Smith.
There, 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 (including asylum
claims), 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 Fifth Circuit rejected it, asserting 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.

   The Eleventh Circuit extended the holding of HRC to statutory
"pattern" claims in Jean v. Nelson.  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 requires exhaustion of remedies and
permits aliens to challenge only final orders of exclusion, the court
concluded that those restrictions were not applicable.  The court drew
the same distinction marked out 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 instance, 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.  /21/

   In our view, both HRC and Jean go astray in announcing that the
district courts have power to adjudicate class action "pattern and
practice" claims that Congress has said may be heard only in
individual cases, in another forum or at another time.  Moreover,
their departure from correct principles of reviewability is made
clearer by this court's decision in Lujan, discussed at p. 19, supra.

   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, 449 (1850) ("Courts created by
statute can have no jurisdiction but such as the statute confers.  No
one of them can assert a just claim to jurisdiction exclusively
conferred on another * * *.").  District courts cannot assume the
power to hear cases simply because it may seem wise, efficient, or
prudent to do so.  While HRC asserted 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, "it is well established that '(c)ourts of equity can no more
disregard statutory and constitutional requirements and provisions
than can courts of law." 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 "experience
teaches that strict adherence to the procedural requirements specified
by the legislature is the best guarantee of evenhanded administration
of the law." Hallstrom v. Tillamook County, 110 S. Ct. 304, 311
(1989).  /22/

   b. Even if the HRC-Jean approach to Section 1105a were accepted,
there would still be no warrant for extending that approach to IRCA.
In IRCA, Congress not only incorporated the provisions of Section
1105a, but also expressly limited judicial review of a "determination
respecting an application" under the SAW program to a petition for
review of an order of deportation or exclusion.  As the D.C. Circuit
has recognized, "whatever the proper interpretation of (Section 1105a)
as it relates to 'final orders of deportation,' IRCA's judicial review
provisions, although employing the (Section 1105a) machinery, have a
broader preclusive effect." Ayuda, 880 F.2d at 1337.  Consequently, if
there had been any doubt about the result under Section 1105a standing
by itself, Congress removed it.  The sole source of judicial power to
review determinations respecting 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 sweeping district court actions not
involving a challenge to a deportation or exclusion order -- a
district court case must be dismissed for want of judicial power.

   2. The conclusion that Congress did not intend to sanction a
"pattern and practice" exception under IRCA is further supported by
experience.  The propensity of a pattern and practice exception is not
only to encourage wholesale challenges to agency programs but also to
draw courts into day-to-day supervision of the activities of agency
officials.  Litigation under IRCA has repeatedly demonstrated that
detailed judicial oversight is a nearly inevitable consequence of
district court jurisdiction.  Given the generally narrow scope of
judicial review applied to immigration matters, that phenomenon is,
beyond question, not what Congress had in mind.

   This case -- where the district court commanded the reopening of
more than 20,000 SAW applications, ordered the hiring of translators
in various languages, and dictated the fashion in which INS
interviewers had to make a record of proceedings -- illustrates the
way in which the jurisdictional exception for "pattern" cases tends to
mushroom into full-scale management of INS's functions.  And this case
does not stand alone.  The Ayuda litigation in the D.C. Circuit, /23/
in which the plaintiffs relied on the same jurisdictional theory as
that advanced here, began as a challenge to a particular INS
regulation under IRCA, but quickly metamorphosed into series of
supplemental orders interpreting, applying, and expanding the original
ruling "as if (the district court) were the administrator of the
program." Ayuda, 880 F.2d at 1342.  Ultimately, the government
successfully appealed from one of the court's orders, but even while
the appeal was pending, litigation proceeded apace in the district
court, generating a half-dozen new orders directed at INS.  /24/ Other
district courts have wielded their "pattern and practice" jurisdiction
to extend the deadline for aliens to apply for legalization, despite
Congress's express provision for a one-year application window.  /25/
The district courts' actions in these cases cannot be fairly described
as judicial "review." Rather, by restructing major aspects of the
legalization programs, these actions have shifted to the judiciary a
variety of policy and administrative decisions that Congress entrusted
to the Attorney General.

   This result is particularly inappropriate in light of the paramount
role of the political branches in immigration matters.  See Fiallo v.
Bell, 430 U.S. 787, 792 (1977);  Kleindienst v. Mandel, 408 U.S. 753,
766 (1972).  This Court has long held that the essentially political
nature of immigration matters requires a correspondingly limited role
for the courts.  See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580,
588-589 (1952);  The Japanese Immigrant Case, 189 U.S. 86, 97 (1903).
As the Court explained in Mathews v. Diaz, 426 U.S. 67 (1976), "(t)he
reasons that preclude judicial review of political questions also
dictate a narrow standard of review of decisions made by the Congress
or the President in the area of immigration and naturalization." Id.
at 81-82 (footnote omitted);  INS v. Abudu, 485 U.S. 94, 110 (1988).
The courts, of course, have the ultimate responsibility to declare the
due process rights of aliens who have "gain(ed) admission to our
country and beg(un) to develop the ties that go with permanent
residence," Landon v. Plasencia, 459 U.S. 21, 32 (1982).  /26/ But
nothing in this Court's jurisprudence indicates that judicial
intervention to adjudicate those rights should preempt the mechanisms
Congress established for that purpose.  In an area as sensitive as the
administration of a massive legalization program involving millions of
aliens, courts should be particularly hesitant to depart from the
case-by-case method of review that Congress provided.  In this case, a
correct reading of IRCA compels the conclusion that the exercise of
judicial power sanctioned by the court of appeals was unwarranted.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   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

   AUGUST 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 a Regional Processing Facility 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/ Congress enacted a virtually identical provision for the
general legalization program.  8 U.S.C. 1255a(f).

   /4/ 1,768,089 applications were filed under the general
legalization program, while 1,301,804 were filed under SAW.

   /5/ In particular, respondents alleged that 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 "non-frivolous" applications at the legalization
office 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 (i) failing to provide interpreters for
applicants, (ii) failing to disclose adverse evidence to applicants to
permit rebuttal, and (iii) refusing to allow applicants to present
witnesses in support of their claims.  Pet. App. 19a-20a.

   /6/ "Qualified designated entities" were created by IRCA in order
to allow aliens to file applications with nongovernmental
intermediaries who would forward the applications to the Attorney
General.  8 U.S.C. 1160(b)(1)(A) and (b)(2), 1255a(c)(1) and (c)(2).
Congress provided for such entities in order to encourage undocumented
aliens to apply for legalization without fear of exposure to INS.
H.R. Rep. No. 682, supra, Pt. 1, at 73.  To that end, the files of
such entities relating to the assistance of an alien with respect to
an application are confidential, and INS lacks access to those files
without the alien's consent.  8 U.S.C. 1160(b)(4), 1255a(c)(4).

   /7/ The injunction ordered INS to reopen denials involving:
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.  Pet. App. 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.

   /8/ The court subsequently granted respondents' motion to compel
INS to produce 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).

   /9/ 8 U.S.C. 1105a(a)(9) may provide a limited exception for review
of a deportation order in habeas corpus proceedings at the behest of
an alien who is "held in custody." Compare Marcello v. District
Director, 634 F.2d 964, 966-972 (5th Cir.) (finding such jurisdiction
to exist), cert. denied, 452 U.S. 917 (1981), with Daneshvar v.
Chauvin, 644 F.2d 1248, 1251 (8th Cir. 1981) (limiting the provision
to "review of the denial of discretionary relief where deportability
itself is not an issue").  "The deportation hearing is the usual means
of proceeding against an alien already physically in the United
States, and the exclusion hearing is the usual means of proceeding
against an alien outside the United States seeking admission." Landon
v. Plasencia, 459 U.S. 21, 25 (1982).

   /10/ 8 U.S.C. 1329 is a general provision in the immigration laws
that states, in pertinent part:  "The district courts of the United
States shall have jurisdiction of all causes, civil and criminal,
arising under any of the provisions of this subchapter." The provision
was enacted in 1952 (Immigration and Nationality Act, ch. 477, Section
279, 66 Stat. 230), based on a nearly identical predecessor dating
from 1917 (Act of Feb. 5, 1917, ch. 29, 39 Stat. 893-894) -- long
before Congress eliminated the amount-in-controversy requirement for
invoking federal question jurisdiction under 28 U.S.C. 1331.  See Act
of Oct. 21, 1976, Pub. L. No. 94-574, Section 2, 90 Stat. 2721).
Section 1329 was enacted in a chapter devoted to penalty provisions,
and, given its context and history, could reasonably be interpreted to
apply only to such matters.  See H.R. Rep. No. 1354, 82d Cong., 2d
Sess. 222-223 (1952).  Although courts have not so confined Section
1329, its general grant of jurisdiction uses similar language to 28
U.S.C. 1331, and therefore has been accorded a similar reach --
limited, of course, to immigration matters.  See Acosta v. Gaffney,
558 F.2d 1153, 1156 (3d Cir. 1977) ("(I)n view of the similarity of
the language used in the two sections we think that section (1329)
should be given an interpretation, similar to that which is accorded
section 1331 * * *.").

   /11/ The Administrative Procedure Act (APA) reflects a similar
principle.  See 5 U.S.C. 703 ("The form of proceeding for judicial
review is the special statutory review proceeding relevant to the
subject matter in a court specified by statute, or, in the absence or
inadequacy thereof, any applicable form of legal action * * * in a
court of competent jurisdiction.").  Additionally, when Congress
specifies that judicial review of agency action shall be had in the
courts of appeals -- as Congress has required for at least the vast
majority of deportation orders -- district courts cannot assert
general jurisdiction to review the same actions.  FCC v. ITT World
Communications, Inc., 466 U.S. 463, 468 (1984) ("Litigants may not
evade these provisions (requiring review of FCC orders in the courts
of appeals) by requesting the District Court to enjoin action that is
the outcome of the agency's order.");  Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 744-745 (1985).  See generally 16 C. Wright, A.
Miller, E. Cooper & E. Gressman, Federal Practice and Procedure
Section 3943, at 322-323 (1977);  id. at 326-329 (Supp. 1990).

   /12/ A Senate bill introduced in the 98th Congress (relating to the
general legalization program only) 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 to this bill much like the judicial
review 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 in conference.  See note 12,
infra.

   /13/ 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).

   /14/ A bill recently introduced in the House would provide that
"(n)othing in the provisions of (IRCA) * * * shall be construed -- (1)
as preventing judicial review" under the APA, 28 U.S.C. 1331, or 8
U.S.C. 1329 of "regulations, policies, and practices governing the
adjustment of status under IRCA," or as preventing certain forms of
relief from being granted.  See H.R. 4300, 101st Cong., 2d Sess.
Section 322(a) (1990).  The bill is pending before the House Committee
on the Judiciary;  we will, of course, inform the Court of any
legislation affecting this case.

   /15/ Even if the AAU would not have had the authority to address
respondents' constitutional claims, see Califano v. Sanders, 430 U.S.
99, 109 (1977);  but see Farrokhi v. INS, 900 F.2d 697, 701 (4th Cir.
1990) ("Nothing appears to divest the BIA from hearing procedural due
process claims that do not seek invalidation of congressional
enactments."), individual aliens could, "throughout the statutory
proceeding, raise and preserve any due process objection to * * * the
procedure, and secure its full judicial review" as provided by IRCA.
Yakus, 321 U.S. at 437.

   Moreover, the AAU could be urged to afford commensurate relief on
statutory grounds, thus eliminating the need for judicial
intervention.  Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S.
752, 772-773 (1947).  This consideration takes on particular force in
light of respondents' contention that the procedural protections they
seek are actually required by INS regulations (see Pet. App. 16a) -- a
contention well within the AAU's power to address.  Alternatively, an
alien might be found ineligible on grounds unrelated to the
constitutional issue.  See Weinberger v. Salfi, 422 U.S. 749, 762
(1975) (the exhaustion requirement "assures the Secretary the
opportunity prior to constitutional litigation to ascertain, for
example, that the particular claims involved are neither invalid for
other reasons nor allowable under other provisions * * *.").  But in
this case, many of the individual respondents did not even pursue
their claims beyond the legalization office or Regional Processing
Facility levels.  See Pet. App. 26a.

   /16/ See also Perales v. Casillas, 903 F.2d 1043, 1053 (5th Cir.
1990) ("The district court's fundamental error is the attempt to issue
a class-wide restraint on the basis of a quintessentially individual
problem.").

   /17/ Respondents have suggested (Br. in Opp. 13 & n.9) that Heckler
v. Ringer can be distinguished because that case construed the
language in the Medicare Act restricting review of "any claim arising
under" that Act (42 U.S.C. 405(h)), while this case involves the
language in IRCA restricting review of "a determination respecting an
application" (8 U.S.C. 1160(e)(1)).  But as with the "claim arising
under" language considered in Ringer, a "determination respecting" an
application cannot be confined to the final decision on the particular
claim;  rather, it quite naturally encompasses the myriad of
subsidiary procedural "determinations" that lead up to the ultimate
decision on an application.  Cf. Foti v. INS, 375 U.S. at 229 (the
term "final order of deportation" includes "all determinations made
during and incident to the administrative proceeding").

   /18/ Nor is this case like UAW v. Brock, 477 U.S. 274 (1986), where
the Court upheld the ability of a union (on behalf of its members) to
challenge the Department of Labor's guidelines governing a special
federal unemployment benefits scheme.  The applicable statute, the
Trade Act of 1974, 19 U.S.C. 2101 et seq., provided that benefits
determinations were to be made by a cooperating state agency, and that
such determinations were subject to judicial review only as provided
under state law.  The Court held that a federal court challenge to the
Department of Labor's guidelines was permissible because the challenge
did not seek benefits for any particular claimant.  477 U.S. at
284-285.  But that holding flowed from the quite different language
restricting judicial review in the Trade Act, which applied only to
"determination(s) by a cooperating State agency" -- not to
determinations by the Labor Department such as its program-wide
guidelines.  19 U.S.C. 2311(d) (emphasis added).  No such division of
responsibilities between different sovereigns, or even different
agencies, exists here.  Moreover, the holding in Brock was necessary
to assure some federal forum for initial review of the Department of
Labor's substantive rules.  As we have pointed out, district court
jurisdiction is not needed for that purpose under IRCA.

   /19/ HRC also claimed indirect injury because of adverse effects on
its membership.  Compl. para. 17;  J.A. 23.  But any such claim of
representative standing depends on a showing that the members
themselves could sue "in their own right." Hunt v. Washington State
Apple Advertising Comm'n, 432 U.S. 333, 343 (1977).  Because
individual SAW applicants may not circumvent IRCA's judicial review
provisions by commencing an action in district court, the
organizations cannot sue as their representatives.

   /20/ Respondents have insisted (Br. in Opp. 15) that they are
entitled to sue because they have experienced a distinctive injury:
the impaired ability to counsel their members.  The nature of the
injury, however, is not relevant to the inquiry under Block;  that
case directs attention to the nature of the legal issues asserted.
See Block, 467 U.S. at 349.  Indeed, just like respondents here, the
consumers in Block claimed a distinctive injury;  the Court
nevertheless rejected their claim because it would "disrupt" the
statutory scheme to allow consumers to assert in court "precisely the
same exceptions" that handlers must assert administratively.  Id. at
348.  Here also, it disrupts IRCA's system for review to allow the
organizations to litigate the applicants' due process claims.

   /21/ This Court ultimately affirmed the judgment in Jean v. Nelson,
supra, on other grounds, without discussing the jurisdictional issue.
The question presented by the petition in Jean was whether unadmitted
aliens could invoke the equal protection guarantee of the Fifth
Amendment's Due Process Clause.  This Court, in affirming, did not
reach that question because it found that nonconstitutional grounds
for decision should be considered further on remand.  Jean v. Nelson,
472 U.S. at 853-857.  Since neither the parties nor the Court
addressed the jurisdictional issue, the decision cannot be understood
to constitute endorsement of the theory espoused by the lower court.
See Hagans v. Levine, 415 U.S. 528, 535 n.5 (1974);  cf. United States
v. Verdugo-Urquidez, 110 S. Ct. 1056, 1064-1065 (1990).

   /22/ The "pattern and practice" exception is particularly
unmanageable because it contains no clearly delineated boundaries.
The common theme of the cases applying it seems to be only a feeling
that the judiciary must "get involved" to rectify some perceived
immigration problem.  This, to say the least, is not a workable
limiting principle.  Thus, "(a)lthough the Fifth Circuit emphasized
the narrowness of its holding and promised not to condone any 'end-run
around the administrative process,' the appliction of HRC v. Smith has
proliferated to the point where it now more nearly resembles a gaping
hole in the middle of the INS's defensive line," Ayuda, 880 F.2d at
1336 (citation omitted).

   /23/ See Ayuda, Inc. v. Meese, 687 F. Supp. 650 and 700 F. Supp. 49
(D.D.C. 1988), rev'd in part, 880 F.2d 1325 (D.C. Cir. 1989), petition
for cert. pending, No. 89-1018.  The facts are more fully set forth in
the government's brief in response to the petition for certiorari (a
copy of which has been provided to respondents here).

   /24/ Among these was an order appointing a Special Master to find
facts and recommend what relief, if any, would be appropriate for
aliens who failed to file a timely application for legalization
because of the regulation invalidated by the district court.  Because
of the potential burden of such proceedings, the government challenged
the appointment of a Special Master by petitioning for mandamus, but
the D.C. Circuit denied the petition.  In re Thornburgh, 869 F.2d 1503
(1989).

   /25/ See Catholic Social Services, Inc. v. Thornburgh, No.
S-86-1343-LKK (E.D. Cal. June 10, 1988), appeals pending, Nos.
88-15046, 88-15127 and 88-15128 (9th Cir. argued Nov. 18, 1988);
LULAC v. INS, No. 87-4757-WDK (C.D. Cal. 1988), appeal pending, No.
88-15046 (9th Cir.).  Although the Ninth Circuit expedited briefing
and argument in these cases, no decisions have issued, and, on June
28, 1990, the panel issued an order, sua sponte, that withdrew and
deferred submission of these cases pending this Court's decision in
the instant case.  In the meantime, under the terms of stays entered
in these cases, INS has been compelled to accept legalization
applications, grant work authorization, and withhold deportation to
class members for nearly two years -- despite Congress's intention to
create a one-year program.  8 U.S.C. 1255a(a)(1)(A), 1255a(f)(2).
Over 70,000 aliens have filed applications under the terms of the
stays.  Compliance with these stays has proved to be a major
logistical and financial strain for INS.

   /26/ Even in discharging that task, the Court has emphasized that
"it must weigh heavily in the balance that control over matters of
immigration is a sovereign prerogative, largely within the control of
the Executive and the Legislature.  * * * The role of the judiciary is
limited to determining whether the procedures meet the essential
standard of fairness under the Due Process Clause and does not extend
to imposing procedures that merely displace congressional choices of
policy." Landon v. Plasencia, 459 U.S. at 34-35.

   APPENDIX