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

• Citation: 292 U.S.App.D.C. 150,948 F.2d 742
• Decision Date: 05 November 1991
• Docket Number: 90-5293 and 89-5301,Nos. 88-5226,s. 88-5226
• Parties: , 60 USLW 2317 AYUDA, INC., et al. v. Richard THORNBURGH, Individually, and as Attorney General of the United States, et al., Appellants. (Two Cases) AYUDA, INC., et al., Appellants, v. Richard THORNBURGH, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 742

948 F.2d 742

292 U.S.App.D.C. 150, 60 USLW 2317

AYUDA, INC., et al. v. Richard THORNBURGH, Individually, and as Attorney General of

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

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

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

United States Court of Appeals, District of Columbia Circuit.

Argued May 16, 1991.

Decided Nov. 5, 1991.

Donald E. Keener, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Robert Kendall, Jr., Asst. Director of Immigration Litigation, Dept. of Justice, Washington, D.C., were on the brief, for appellants in 88-5226 and 90-5293 and appellees in 89-5301. David J. Kline and John R. Bolton, Attys., Dept. of Justice, Washington, D.C., also entered appearances for appellants.

Michael Rubin, with whom Wayne H. Matelski, Lynda Zengerle, Deborah Sanders, and Carolyn Waller, Washington, D.C., were on the brief, for appellees in 88-5226 and 90-5293. David Aronofsky, Washington, D.C., also entered an appearance for appellees.

David M. Billings, Washington, D.C., for appellants in 89-5301. Wayne H. Matelski Before WALD, SILBERMAN and D.H. GINSBURG, Circuit Judges.

[292 U.S.App.D.C. 153] Washington, D.C., also entered an appearance for appellants.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge WALD.

SILBERMAN, Circuit Judge:

These three consolidated cases all involve questions regarding the jurisdiction of the district court to hear claims brought by Ayuda, Inc. (along with three other organizations that advise aliens and five unnamed aliens) to prevent the Immigration and Naturalization Service (INS) from administering the Immigration Reform and Control Act (IRCA) ¹ in a fashion alleged to be contrary to the statute and the Constitution. The first case (Ayuda I, No. 88-5226) is here on remand from the Supreme Court, which asked us to reconsider our opinion in Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), vacated and remanded, --- U.S. ----, 111 S.Ct. 1068, 112 L.Ed.2d 1174 (1991), holding that the district court lacked jurisdiction, in light of the Court's subsequent decision in McNary v. Haitian Refugee Center, Inc., --- U.S. ----, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). The second case (Ayuda II, No. 90-5293) involves interim relief granted by the district court in the same proceeding in which we had held the court lacked jurisdiction. The government, not surprisingly, challenges the district court's jurisdiction to issue the interim order. Finally, in Ayuda III (No. 89-5301) the plaintiffs ² appeal the district court's denial of their request that the government be held in contempt for allegedly violating a prior district court order in this protracted proceeding. We hold, in line with our original position, that the district court lacked subject matter jurisdiction to issue the orders sought in Ayuda I and Ayuda II and that the appeal in Ayuda III is therefore moot.

Ayuda I

A.

The background to congressional passage of IRCA is set forth in our prior opinion, see Ayuda, 880 F.2d at 1326-27, and in McNary, 111 S.Ct. at 890-91. Suffice it to say that IRCA was a congressional compromise whereby new techniques for stopping the flow of illegal aliens into the United States were balanced with amnesty programs for undocumented aliens who met certain requirements.

The amnesty program at issue in this case, see 8 U.S.C. § 1255a, gave aliens the opportunity to apply for legalization during a one-year period ending on May 4, 1988. See id. § 1255a(a)(1)(A). If "nonimmigrants" (aliens who entered the country legally but later lost that lawful status) could show, inter alia, that they were in this country unlawfully since January 1, 1982, and that their unlawful status was "known to the Government," id. § 1255a(a)(2)(A) & (B), they were entitled to legalization. The INS promulgated a regulation stating that "known to the Government" meant "known to the INS." Approximately seven weeks before the May 4, 1988, deadline, plaintiffs filed suit in district court, claiming that "known to the Government" was broader in its reach and meant "known to any agency of the Government." The district court held that the INS regulation was contrary to the statute and issued a series of four orders adopting and implementing plaintiffs' interpretation. See Ayuda, Inc. v. Meese, 687 F.Supp. 650, 666-68 (D.D.C.1988). The government did not appeal, and therefore acquiesced in the substance of these rulings.

Then, less than one week before the end of the amnesty period, the district court issued a fifth order (Supplemental Order V), this time construing the word "known" The government, "in effect challenging the district court's jurisdiction over the entire case," Ayuda, 880 F.2d at 1329, argued that IRCA's provisions respecting administrative and judicial review first require exhaustion of administrative remedies and then vest exclusive jurisdiction in the courts of appeals to review INS legalization decisions. Those provisions specify that "[t]here shall be no administrative or judicial review of a determination respecting an application ... [for legalization] except in accordance with this subsection." 8 U.S.C. § 1255a(f)(1). They further direct the Attorney General to "establish an appellate authority to provide for a single level of administrative appellate review of [such] a determination," id. § 1255a(f)(3)(A), and state that "[t]here shall be judicial review of such a denial only in the judicial review of an order of deportation under section 1105a of this title [which provides for exclusive court of appeals jurisdiction]," id. § 1255a(f)(4)(A).

                [292 U.S.App.D.C. 154] rather than the word "Government."   One class of aliens (section 265 claimants) were under pre-IRCA law 3 permitted to reside in the United States so long as they periodically filed certain forms with the INS;  plaintiffs sought a ruling from the district court that if an alien failed to submit these forms, knowledge of the alien's unlawful status could be imputed to the government.   Even though the INS had never promulgated an official position on whether knowledge could be inferred from the absence as opposed to the presence of information concerning an alien, and even though the INS' Legalization Appeals Unit (LAU) had never denied an alien's legalization application on the ground that the absence of forms was insufficient to establish knowledge, the district court granted plaintiffs' request.   See id. at 668.   The government appealed this order on jurisdictional grounds
                

Plaintiffs argued that the district court had general federal question jurisdiction, see 28 U.S.C. § 1331 (as well as jurisdiction under the immigration laws, see 8 U.S.C. § 1329, and the Fifth Amendment), to provide direct review of the legality of the INS regulation--of which the "known" issue was a by-product--because the statutory sections providing exclusive court of appeals review covered only "a determination respecting an application," 8 U.S.C. § 1255a(f)(1) (emphasis added), and therefore did not apply to "broad challenges to an INS policy or legal position that could apply to many [determinations]." Ayuda, 880 F.2d at 1330. A regulation construing the statute and agency interpretations of the regulation comprised, plaintiffs contended, just such a policy or legal position.

We rejected plaintiffs' argument, reasoning, inter alia, that the legality of the regulation could certainly be challenged by an individual alien on appeal from a deportation order and that the regulation was therefore a determination respecting an application. We thought we would otherwise create an anomalous situation in which a single claimant challenging his deportation order on grounds that the regulation was inconsistent with the statute and that his legalization application was therefore improperly denied would be obliged to bring his appeal to the court of appeals, while some combination of potential claimants could sue directly in district court, avoiding the statutory administrative procedures and the court of appeals. See id. We relied in part on Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), in which the Supreme Court held that plaintiffs who sought to establish a right to reimbursement for a type of operation under the Medicare Act by bringing an action in district court were obliged to pursue their administrative remedies first. The Court there defined the word "claim" under the Act to include one plaintiff's pre-emptive challenge to an agency policy that allegedly would prevent him from ever getting the operation that would constitute the basis for his claim to reimbursement. See Ayuda, 880 F.2d at 1332 (citing Ringer, 466 U.S. at 621, 104 S.Ct. at 2024-25).

We found it unnecessary to decide a second jurisdictional objection raised by the government--the organizational plaintiffs' standing. The district court seemed to have determined that the individual plaintiffs, singularly or in groups, could not sue in district court to raise a legal question that could be resolved in the courts of appeals, but that organizations such as Ayuda--"qualified designated entities" (QDEs) recognized under the statute as having a counseling role for illegal aliens--could sue because they were, of course, not subject to deportation and therefore had no right to judicial review in the courts of appeals. See id. at 1339 & n. 15. We did not decide the standing issue because we concluded that, as in Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), the statutory review provisions revealed a congressional purpose to preclude judicial review of issues that could be raised in an appeal from a deportation order on the part of an organization that was, in effect, acting as a representative of individual aliens even though it was asserting an "organizational injury." See Ayuda, 880...