Ayuda, Inc. v. Thornburgh, 88-5226

• Decision Date: 18 July 1989
• Docket Number: No. 88-5226,88-5226
• Citation: 880 F.2d 1325
• Parties: 50 Empl. Prac. Dec. P 39,174, 279 U.S.App.D.C. 252, 58 USLW 2074 AYUDA, INC., et al. v. Richard THORNBURGH, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1325

880 F.2d 1325

50 Empl. Prac. Dec. P 39,174, 279 U.S.App.D.C. 252,

58 USLW 2074

AYUDA, INC., et al. v. Richard THORNBURGH, et al., Appellants.

No. 88-5226.

United States Court of Appeals, District of Columbia Circuit.

Argued March 7, 1989.

Decided July 18, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-00625).

Donald E. Keener, Atty., Dept. of Justice, Washington, D.C., with whom David J. Kline, Asst. Director, Office of Immigration Litigation, Dept. of Justice, Alexandria, Va., and John R. Bolton, Asst. Atty. Gen., Civ. Div., Dept. of Justice, Washington, D.C., were on the brief, for appellants.

Wayne H. Matelski, with whom Lynda S. Zengerle, Carolyn Waller, Michael Rubin, David Aronofsky and Deborah Sanders, Washington, D.C., were on the brief, for appellees.

Before WALD, Chief Judge, SILBERMAN and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Chief Judge WALD.

SILBERMAN, Circuit Judge:

This is an appeal from a declaratory order and injunction issued by the district court concerning implementation of the legalization or "amnesty" provisions of the Immigration Reform and Control Act of 1986 ("IRCA"). We hold the district court lacked jurisdiction and therefore vacate the order.

I.

IRCA, passed in 1986, imposed civil and criminal penalties upon employers who hire illegal aliens. Congress, through that approach, sought to discourage illegal immigration into the United States and to make it difficult for undocumented aliens to remain in the country. As part of a legislative compromise, the Act provided for the legalization of those immigrants who had entered the United States unlawfully prior to January 1, 1982, and had resided continuously in the country in an unlawful status since then. It was said that "past failures to enforce[ ] the immigration laws have allowed [illegal immigrants] to enter and settle here" and that "the alternative of intensifying interior enforcement or attempting mass deportations would be ... costly, ineffective and inconsistent with our immigrant heritage." H.R. REP. NO. 682, 99th Cong., 2d Sess. pt. 1, at 49 (1986), U.S.Code Cong. & Admin.News 1986, pp. 5649, 5653.

As a corollary, Congress also provided for the legalization of non immigrants, who entered the country lawfully (for example, as employees or students) but whose presence subsequently became unlawful, so long as their status was unlawful prior to January 1, 1982 and they resided continuously in the United States after that date. ¹ Perhaps counterintuitively, then, in order to qualify for legalization under this corollary provision to the general amnesty program, the nonimmigrant had to prove his illegal status prior to 1982. That could be accomplished, according to section 245A of the Act, in one of two ways:

In the case of an alien who entered the United States before January 1, 1982, the alien must establish that the alien's period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien's unlawful status was known to the Government as of such date.

8 U.S.C. Sec. 1255a(a)(2)(B) (Supp. V 1987) (emphasis added).

This case involves the interpretation of the second clause of that provision: what does "known to the Government" mean? In 1987, the INS issued a regulation defining "Government" to mean only the Immigration and Naturalization Service, based on the notion that the Attorney General and the INS were charged with enforcement of the immigration laws (and implicitly responsible for "past failures") and only they could ascertain--truly "know"--that an alien's status was "unlawful." A broader interpretation of "Government," the agency concluded, would make administration of the legalization program difficult and "would vest [other] government agencies with an authority that Congress specifically granted only to the Attorney General." 52 Fed.Reg. at 16,206 (1987). The regulation provided that an alien who originally entered legally could establish that his subsequent illegal status was "known to the Government" prior to 1982 through one of the following documents: (1) an INS record received from another agency, referring to a clear statement or declaration by the alien to the other federal agency that he was in violation of nonimmigrant status; (2) a record showing an affirmative determination by the INS prior to January 1, 1982 that the alien was subject to deportation proceedings; (3) a copy of a response by the INS to any other agency, stating that a particular alien had no legal status in the United States; or (4) school records which establish that a school forwarded to the INS a report clearly indicating that the applicant had violated his nonimmigrant status prior to January 1, 1982. Id. at 16,208; 52 Fed.Reg. at 43,845 (1987).

Under the statute, all aliens seeking to qualify for legalization were obliged to apply for an adjustment of status within a twelve-month period that expired on May 4, 1988. On March 8, only two months before the deadline, appellees, which include four organizations that advise and counsel aliens--Ayuda, Inc., The Ethiopian Community Center, the Latin American Youth Center, and the Mexican American Legal Defense and Educational Fund--and five individual aliens, sued in district court claiming that the INS regulation was based on an impermissible interpretation of the statute. They sought a declaratory order and injunction preventing the INS from applying a "known to the Government" standard that barred an alien from legalization "whenever the federal Government, through any of its agencies, departments, bureaus or entities has or had evidence that, separately or in combination, shows that such alien had violated his or her nonimmigrant status prior to January 1, 1982." The government challenged the jurisdiction of the district court, asserting that the organizational plaintiffs lacked standing to sue, and that review of legalization determinations was available only in the court of appeals after an individual claimant had exhausted his administrative remedies and been subject to a deportation order entered pursuant to section 242(b) of the Immigration and Naturalization Act, 8 U.S.C. Sec. 1252(b) (1982).

The organizational plaintiffs responded that the normal procedures for administrative determination and judicial review in the courts of appeals designed for aggrieved aliens did not preclude them from bringing an action in the district court pursuant to the APA, because their mission was to advise aliens on how to proceed through the legalization program and, particularly, on their prospects for receiving amnesty. The INS's alleged misconstruction of the statute caused injury to the counseling organizations, they complained, because it impaired their ability to provide accurate information about IRCA eligibility requirements to aliens and required them to expend additional resources to clarify the confusion about the correct legal standard. One organization also asserted that the INS's interpretation of IRCA was unlawful and frustrated the organization's purpose of assisting aliens to obtain legalization. Because the statutory administrative and judicial procedures were not designed to remedy this type of injury, appellees contended APA review was available in district court. The individual plaintiffs asserted that although there is an exclusive statutory mechanism for judicial review of individual legalization determinations, the district court nevertheless had jurisdiction to hear a challenge to the INS's IRCA regulation as long as specific legalization applications were not involved. Appellees argued further that because the May 4, 1988 application deadline was rapidly approaching, an injunction was warranted.

The district court (without reaching the claims of the individual aliens) concluded that the organizational plaintiffs had standing to sue and that judicial review of decisions regarding the legalization program was available in the district court. Ayuda, Inc. v. Meese, 687 F.Supp. 650, 654-60 (D.D.C.1988). The court held that the term "Government" in section 245A meant the entire United States Government and not simply the INS, and declared the INS regulation "contrary to law." Id. at 666. The INS was also enjoined from "any further application of the regulation" anywhere in the United States, and ordered "to take steps to notify promptly all persons affected by the regulation of the court's decision," id., the court observing that appellee organizations "need certainty in this field, and they need it now." Id. at 657. The government acquiesced in the court's interpretation of the statute and did not appeal its order.

The court retained jurisdiction of the case "to assure [the] decree [was] carried out fully and completely and to provide such other and further relief as [might] be necessary to implement [its] decision." Id. at 666. Subsequently, the court issued nine supplemental orders dealing with various aspects of the "known to the Government" provision of IRCA. The first supplemental order, issued April 6, 1988, noted that "[a] question has arisen with respect to the precise meaning of the term 'unlawful status was known to the Government,' " and directed that an alien could satisfy the standard by showing that "documentation existed in one or more government agencies so that ... such documentation taken as a whole would warrant the finding that the nonimmigrant alien's status in the United States was unlawful." Id. (emphasis added). The government has not appealed this supplemental order either.

Eleven new organizations filed a motion to intervene in the case on April 21, 1988. They raised an issue, not previously surfaced, concerning the interrelationship between section 245A of IRCA and former section 265 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1305 (1976), amended...