Ayuda, Inc. v. Reno, s. 88-5226

• Decision Date: 26 October 1993
• Docket Number: 90-5293 and 89-5301,Nos. 88-5226,s. 88-5226
• Citation: 7 F.3d 246
• Parties: AYUDA, INC., et al. v. Janet RENO, Individually and as Attorney General of the United States, et al., Appellants (Two Cases). AYUDA, INC., et al., appellants, v. Janet RENO, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 246

7 F.3d 246

303 U.S.App.D.C. 374

AYUDA, INC., et al. v. Janet RENO, Individually and as Attorney General of the

United States, et al., Appellants (Two Cases).

AYUDA, INC., et al., appellants, v. Janet RENO, et al.

Nos. 88-5226, 90-5293 and 89-5301.

United States Court of Appeals, District of Columbia Circuit.

Decided Oct. 26, 1993.

Rehearing Denied Jan. 27, 1994.

Appeals from the United States District Court for the District of Columbia (88cv0625) On Remand from the United States Supreme Court.

Before: WALD, SILBERMAN and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge WALD.

SILBERMAN, Circuit Judge:

This case is returned to us by the Supreme Court for the second time. --- U.S. ----, 113 S.Ct. 3026, 125 L.Ed.2d 714. The Supreme Court vacated and remanded our first opinion, Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), and asked us to reconsider the issues presented in light of its opinion in McNary v. Haitian Refugee Center Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). We did so, and reiterated our view that the district court lacked jurisdiction to entertain a suit brought to challenge a supposed Immigration and Naturalization Service (INS) interpretation of a regulation governing the manner in which legalization decisions were made under the Immigration Reform and Control Act of 1986 (IRCA), Pub.L. No. 99-603, 100 Stat. 3359 (1986). Ayuda, Inc. v. Thornburgh, 948 F.2d 742 (D.C.Cir.1991). We are again asked to consider our opinion in the aftermath of Reno v. Catholic Social Servs., Inc., --- U.S. ----, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (CSS ). After carefully examining CSS, we stand by our conclusion that the district court lacked jurisdiction in this case, and hence, we decline to remand to the district court as plaintiffs urge.

I.

As we described in our first opinion, this litigation--directed at the INS' administration of the special one-time IRCA amnesty program--came on the heels of a developing line of cases in which aliens, or organizations representing aliens, sought to supplement courts of appeals review of INS deportation orders under 8 U.S.C. § 1105a with actions brought in the district court challenging generic INS policies before they were applied in deportation proceedings. Ayuda, 880 F.2d at 1335-36. Such a lawsuit, particularly when brought by an organizational plaintiff or by a class, permits aliens to challenge INS policies in federal court without the risk of identification and consequent deportation if they should lose. ¹ Our case, brought by five aliens and four organizational plaintiffs (so-called Qualified Designated Entities (QDEs) who are authorized to serve as intermediaries between aliens and the INS), focused only on the particular judicial review provisions of IRCA. We held that the district court lacked jurisdiction to hear the plaintiffs' challenge to an asserted interpretation of an INS regulation that defined the statutory term "known to the government." ²

We concluded that the district court lacked jurisdiction on two separate grounds. First, we thought that the statutory review provisions, which provide for exclusive review in the courts of appeals for all deportation orders, ³ precluded a district court challenge to any formal or informal manifestation of the INS' construction of aliens' substantive rights under the statute. Ayuda, 880 F.2d at 1333-40. Second, we determined that INS had not yet decided whether the absence of quarterly reports in an alien's INS file put the government on constructive notice that the alien's illegal status was "known to the government". Thus, even if the district court enjoyed statutory jurisdiction, the case was not yet ripe. Ayuda, 880 F.2d at 1343. We did not reach the government's challenge to the standing of organizational plaintiffs upon which the district court had premised "plaintiffs' " standing. Ayuda, 880 F.2d at 1339-40.

Subsequently, the Supreme Court in McNary held that district courts did have jurisdiction to entertain a constitutional and statutory challenge to the INS' alleged failure to provide due process in the administration of another portion of the amnesty program. The INS had been accused of depriving applicants of an opportunity to challenge material evidence, to present witnesses, and to employ competent interpreters, and the Court concluded that Congress did not mean to limit judicial review to the court of appeals in such a case. McNary v. Haitian Refugee Center, Inc., 498 U.S. at 487-88, 494, 111 S.Ct. at 893-94, 897.

On remand, we sought to reconcile what we thought were conflicting currents in the Supreme Court's opinion. On the one hand, the Court's language did appear to restrict the phrase "a determination respecting an application"--on which court of appeals jurisdiction is fixed--to "an individual denial of ... status" and not a "group of INS decisions." 498 U.S. at 492, 111 S.Ct. at 896. Still we did not think the IRCA judicial review provisions could reasonably be construed to permit two or more aliens to sue freely in the district court, if one alien would be limited presumably to the court of appeals. See Ayuda, 948 F.2d at 749 n. 5. Instead, we concluded that the Supreme Court meant McNary to stand as an exception to the exclusive court of appeals review of INS legalization determinations (after deportation orders) for collateral procedural challenges if the administrative record would be inadequate to support appellate review of those issues in the courts of appeals. If, instead, aliens were seeking review of INS interpretations of IRCA--which the plaintiffs in our case clearly were--the district court lacked jurisdiction.

We rejected the notion that to force any alien to come forward and provoke a deportation order as a prerequisite to challenging his or her denial of legalization would amount to a "complete denial of judicial review for most undocumented aliens," McNary, 498 U.S. at 497, 111 S.Ct. at 898, and therefore should be thought "inadequate" within the meaning of McNary 's holding. We did so because otherwise we would have either ignored the statutory scheme for exclusive court of appeals jurisdiction in cases involving a "determination respecting an application" or been faced with what seemed an impossible analytic task of drawing a boundary between the jurisdiction of the district court and courts of appeals in cases challenging INS' substantive interpretation of IRCA. See Ayuda, 948 F.2d at 753; 958 F.2d 1089, 1092-93 (D.C.Cir.1992) (Silberman, J., concurring in the denial of rehearing en banc ).

In addition, we reiterated our view that the plaintiffs' challenge was unripe (the INS still had not resolved the "known to the government" issue) and we once again reserved the issue of the QDEs standing. See Ayuda, 958 F.2d at 1093 (Silberman, J., concurring in the denial of rehearing en banc ).

The Supreme Court then granted certiorari in CSS, a case in which the Ninth Circuit read McNary contrary to the way we did. ⁴ While a petition for certiorari in Ayuda was pending before the Supreme Court, the Solicitor General notified the Court that the INS had recently arrived at an agency position as to whether the absence of documents from government files indicated that the alien's illegal status was known to the government. Hence, the particular ripeness ground upon which we had relied was no longer present.

The Court handed down CSS this summer and subsequently vacated our decision (along with several cases that disagreed with our opinion) for reconsideration in light of CSS. We then asked the parties for their views. Perhaps understandably in light of their long litigation struggle, the plaintiffs and the government disagree both as to the meaning of CSS and as to the appropriate next step in our case. The plaintiffs argue that "[b]ecause the generic challenges in Ayuda can be resolved without referring to or relying on the denial of any individual application (as indeed they were resolved by the district court), the district court may properly exercise jurisdiction over plaintiffs' challenges." The government argues that the district court lacked jurisdiction as the plaintiffs challenged INS' substantive regulations, rather than collateral procedures.

We think plaintiffs badly misread the Supreme Court's opinion. CSS confirmed the plaintiffs' view of McNary 's construction of section 1255a(f)(1) as applying only to the denial of a single application. But the Court, noting that federal courts have been reluctant to apply injunctive and declaratory judgment remedies to administrative determinations ⁵ unless these arise in the context of a controversy "ripe" for judicial resolution, elaborated and extended the general ripeness doctrine of Abbott Laboratories v. Gardner, 387 U.S. 136, 152-54, 87 S.Ct. 1507, 1517-18, 18 L.Ed.2d 681 (1967), and Lujan v. National Wildlife Federation, 497 U.S. 871, 891, 110 S.Ct. 3177, 3190, 111 L.Ed.2d 695 (1990), so as to severely limit McNary, see CSS, --- U.S. at ---- - ----, 113 S.Ct. at 2495-96, and thus neatly came, by a somewhat modified route, to our resolution of the boundary issue. The Court held that a putative beneficiary under a statute such as the amnesty program does not have a ripe claim merely when an agency publishes a regulation that might bear on his right to the benefit. CSS, --- U.S. at ----, 113 S.Ct. at 2496. The claimant must at least apply and be denied the benefit before the claim ripens. Typically, when the claimant is denied the benefit, the claim is then ripe for adjudication. ⁶ Id.

Under IRCA, as the Supreme Court observed, an alien who is denied legalization is subject to the exclusive administrative and judicial review provisions of that statute. His claim may, in general terms, be thought ripe, yet the statute directs him exclusively to the court of appeals and only on a review of a...