OCTOBER TERM, 1992
Syllabus
RENO, ATTORNEY GENERAL, ET AL.
v. CATHOLIC SOCIAL
SERVICES, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-1826. Argued January 11, 1993-Decided June 18, 1993
Under the alien legalization program created by Title II of the
Immigration Reform and Control Act of 1986, an alien unlawfully
present in the United States who sought permission to reside
permanently had to apply first for temporary resident status by
establishing,
inter alia, that he had resided continuously
in this country in an unlawful status and had been physically
present here continuously for specified periods. After the
Immigration and Naturalization Service (INS) issued regulations
construing particular aspects of, respectively, the "continuous
physical presence" and "continuous unlawful residence"
requirements, two separate class actions were brought, each
challenging one of the regulations on behalf of aliens whom it
would render ineligible for legalization. In each instance, the
District Court struck down the challenged regulation as
inconsistent with the Reform Act and issued a remedial order
directing the INS to accept legalization applications beyond the
statutory deadline. The Court of Appeals, among other rulings,
consolidated the INS's appeals from the remedial orders, rejected
the INS's argument that the Reform Act's restrictive judicial
review provisions barred district court jurisdiction in each case,
and affirmed the District Courts' judgments.
Held: The record is insufficient to allow this Court to
decide all issues necessary to determine whether the District
Courts had jurisdiction. Pp.53-67.
(a) The Reform Act's exclusive review scheme-which applies to
"determination[s] respecting an application for adjustment of
status," 8 U. S. C. § 1255a(f)(1), and specifies that "a denial" of
such adjustment may be judicially scrutinized "only in the ...
review of an order of deportation" in the courts of appeals, §
1255a(f)(4)(A)-does not preclude district court jurisdiction over
an action which, in challenging the legality of an INS regulation,
does not refer to or rely on the denial of any individual
application. The statutory language delimiting the jurisdictional
bar refers only to review of such an individual denial.
M
cNary v.
Haitian Refugee Center, Inc., 498 U. S. 479, 494. Pp.
53-56.
(b) However, the promulgation of the challenged regulations did
not itself affect each of the plaintiff class members concretely
enough to
44
render his claim "ripe" for judicial review, as is required by,
e. g., Abbott Laboratories v.
Gardner, 387 U. S. 136, 148-149.
The regulations impose no penalties for violating any newly imposed
restriction, but limit access to a benefit created by the Reform
Act but not automatically bestowed on eligible aliens. Rather, the
Act requires each alien desiring the benefit to take further
affirmative steps, and to satisfy criteria beyond those addressed
by the disputed regulations. It delegates to the INS the task of
determining on a case-by-case basis whether each applicant has met
all of the Act's conditions, not merely those interpreted by the
regulations in question. In these circumstances, a class member's
claim would ripen only once he took the affirmative steps that he
could take before the INS blocked his path by applying a regulation
to him. Ordinarily, that barrier would appear when the INS formally
denied the alien's application on the ground that a regulation
rendered him ineligible for legalization. But a plaintiff who
sought to rely on such a denial to satisfy the ripeness requirement
would then still find himself at least temporarily barred by the
Reform Act's exclusive review provisions, since he would be seeking
"judicial review of a determination respecting an application"
under § 1255a(f)(1). pp. 56-61.
(c) Nevertheless, the INS's "front-desking" policy-which directs
employees to reject applications at a Legalization Office's front
desk if the applicant is statutorily ineligible for adjustment of
status-may well have left some of the plaintiffs with ripe claims
that are outside the scope of § 1255a(f)(1). A front-desked class
member whose application was rejected because one of the
regulations at issue rendered him ineligible for legalization would
have felt the regulation's effects in a particularly concrete
manner, for his application would have been blocked then and there;
his challenge to the regulation should not fail for lack of
ripeness. Front-desking would also have the untoward consequence
for jurisdictional purposes of effectively excluding such an
applicant from access even to the Reform Act's limited
administrative and judicial review procedures, since he would have
no formal denial to appeal administratively nor any opportunity to
build an administrative record on which judicial review might be
based. Absent clear and convincing evidence of a congressional
intent to preclude judicial review entirely, it must be presumed
that front-desked applicants may obtain district court review of
the regulations in these circumstances. See
McNary, supra,
at 496-497. However, as there is also no evidence that particular
class members were actually subjected to front-desking, the
jurisdictional issue cannot be resolved on the records below.
Because, as the cases have been presented to this Court, only those
class members (if any) who were front-desked have ripe claims over
which the District Courts should exercise jurisdiction, the cases
must be remanded for
45
new jurisdictional determinations and, if appropriate, remedial
orders. pp.61-67.
956 F.2d
914, vacated and remanded.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
O'CONNOR, J., filed an opinion concurring in the judgment,
post, p. 67. STEVENS, J., filed a dissenting opinion, in
which WHITE and BLACKMUN, JJ., joined,
post, p.77.
Ronald
J. Mann argued the cause for petitioners. With him
on the briefs were Solicitor General Starr, Assistant Attorney
General Gerson, Deputy Solicitor General Mahoney, and Michael Jay
Singer.
Ralph Santiago Abascal argued the cause for respondents. With
him on the brief were Stephen A. Rosenbaum, Peter A. Schey, and
Carlos R. Holguin.
*
JUSTICE SOUTER delivered the opinion of the Court.
This petition joins two separate suits, each challenging a
different regulation issued by the Immigration and Naturalization
Service (INS) in administering the alien legalization program
created by Title II of the Immigration Reform and Control Act of
1986. In each instance, a District Court struck down the regulation
challenged and issued a remedial order directing the INS to accept
legalization applications beyond the statutory deadline; the Court
of Appeals consolidated the INS's appeals from these orders, and
affirmed the District Courts' judgments. We are now asked to
consider whether the District Courts had jurisdiction to hear the
challenges, and whether their remedial orders were permitted
*Briefs of amici curiae urging affirmance were filed for the
city of Chicago et al. by Lawrence Rosenthal, John Payton, Q Peter
Sherwood, Leonard
J. Koerner, and Stephen
J. McGrath;
for the American Bar Association by
J. Michael McWilliams,
Ira Kurzban, Robert A. Williams, and Carol L. Wolchok; for the
American Civil Liberties Union et al. by Lucas Guttentag, Steven R.
Shapiro, John A. Powell, and Carolyn P. Blum; and for Church World
Service et al. by Steven L. Mayer.
46
by law. We find the record insufficient to decide all
jurisdictional issues and accordingly vacate and remand for new
jurisdictional determinations and, if appropriate, remedial orders
limited in accordance with the views expressed here.
I
On November 6, 1986, the President signed the Immigration Reform
and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3359, Title II
of which established a scheme under which certain aliens unlawfully
present in the United States could apply, first, for the status of
a temporary resident and then, after a i-year wait, for permission
to reside permanently.l An applicant for temporary resident status
must have resided continuously in the United States in an unlawful
status since at least January 1, 1982, 8 U. S. C. § 1255a(a)(2)(A);
must have been physically present in the United States continuously
since November 6, 1986, the date the Reform Act was enacted, §
1255a(a)(3)(A); and must have been otherwise admissible as an
immigrant, § 1255a(a)(4). The applicant must also have applied
during the 12-month period beginning on May 5, 1987. §
1255a(a)(1).2
1 The Immigration Reform and Control Act of 1986 amended the
Immigration and Nationality Act, 66 Stat. 163, as amended, 8 U. S.
C. § 1101
et seq. Section 201(a)(I) of the Reform Act
created the alien legalization program at issue in this case by
adding § 245A to the Immigration and Nationality Act, codified at 8
U. S. C. § 1255a. For the sake of convenience, we will refer to the
sections of the Act as they have been codified.
2 The Reform Act requires the 12-month period to "begi[n] on a
date (not later than 180 days after November 6, 1986) designated by
the Attorney General." 8 U. S. C. § 1255a(a)(I)(A). The Attorney
General set the period to begin on May 5, 1987, the latest date the
Reform Act authorized him to designate. See 8 CFR § 245a.2(a)(I)
(1992). A separate provision of the Act requires "[a]n alien who,
at any time during the first 11 months of the 12-month period ... ,
is the subject of an order to show cause [why he should not be
deported]" to "make application ... not later than the end of the
30-day period beginning either on the first day of such 12-month
period or on the date of the issuance of such order, whichever day
is
47
The two separate suits joined before us challenge regulations
addressing, respectively, the first two of these four requirements.
The first,
Reno v.
Catholic Social Services, Inc. (CSS),
et al., focuses on an INS interpretation of 8 U. S. C. §
1255a(a)(3), the Reform Act's requirement that applicants for
temporary residence prove "continuous physical presence" in the
United States since November 6, 1986. To mitigate this requirement,
the Reform Act provides that "brief, casual, and innocent absences
from the United States" will not break the required continuity. §
1255a(a)(3)(B). In a telex sent to its regional offices on November
14, 1986, however, the INS treated the exception narrowly, stating
that it would consider an absence "brief, casual, and innocent"
only if the alien had obtained INS permission, known as "advance
parole," before leaving the United States; aliens who left without
it would be "ineligible for legalization." App. 186. The INS later
softened this limitation somewhat by regulations issued on May 1,
1987, forgiving a failure to get advance parole for absences
between November 6, 1986, and May 1, 1987. But the later regulation
confirmed that any absences without advance parole on or after May
1, 1987, would not be considered "brief, casual, and innocent" and
would therefore be taken to have broken the required continuity.
See 8 CFR § 245a.1(g) (1992) ("Brief, casual, and innocent means a
departure authorized by [the INS] (advance parole) subsequent to
May 1, 1987 of not more than thirty (30) days for legitimate
emergency or humanitarian purposes").
The
CSS plaintiffs challenged the advance parole
regulation as an impermissible construction of the Reform Act.
After certifying the case as a class action, the District Court
eventually defined a class comprising "persons prima facie eligible
for legalization under [8 U. S. C. § 1255a] who de-
later." § 1255a(a)(1)(B); see § 1255a(e)(1) (providing further
relief for certain aliens "apprehended before the beginning of the
application period").
48
parted and reentered the United States without INS authorization
(i. e. 'advance parole') after the enactment of the [Reform Act]
following what they assert to have been a brief, casual and
innocent absence from the United States."3 No. Civ. S-86-1343 LKK
(ED Cal., May 3, 1988) (App. 50). On April 22, 1988, 12 days before
the end of the legalization program's 12-month application period,
the District Court granted partial summary judgment invalidating
the regulation and declaring that "brief, casual, and innocent"
absences did not require prior INS approval. No. Civ. S-86-1343 LKK
(ED Cal., Apr. 22, 1988) (Record, Doc. No. 161); see
Catholic
Social Services, Inc. v.
Meese, 685 F. Supp. 1149 (ED
Cal. 1988) (explaining the basis of the April 22 order). No appeal
was taken by the INS (by which initials we will refer to the
Immigration and Naturalization Service and the Attorney General
collectively), and after further briefing on remedial issues the
District Court issued an order on June 10, 1988, requiring the INS
to extend the application period to November 30, 19884 for class
members who "knew of [the INS's] unlawful regulation and thereby
concluded that they
3 The
CSS lawsuit originally challenged various aspects
of the INS's administration of both the legalization program
created by Title II of the Reform Act and the "Special Agricultural
Workers" (SAW) legalization program created by Part A of Title III
of the Reform Act (codified at 8 U. S. C. § 1160). The challenge to
the SAW program eventually took its own procedural course, and was
resolved by a district court order that neither party appealed. No.
Civ. S-86-1343 LKK (ED Cal., Aug. 11, 1988) (App. 3, Record, Doc.
No. 188). With respect to the Title II challenge, the District
Court originally certified a broad class comprising all persons
believed by the Government to be deportable aliens who could
establish a prima facie claim for adjustment of status to temporary
resident under 8 U. S. C. § 1255a. No. Civ. S-86-1343 LKK (ED Cal.,
Nov. 24,1986) (App. 15). After further proceedings, the District
Court narrowed the class definition to that set out in the
text.
4 The District Court chose November 30, 1988, to coincide with
the deadline for legalization applications under the Reform Act's
SAW program. See No. Civ. S-86-1343 LKK (ED Cal., June 10, 1988)
(App. to Pet. for Cert.22a).
49
were ineligible for legalization and by reason of that
conclusion did not file an application."5 No. Civ. S-86-1343 LKK
(ED Cal., June 10, 1988) (App. to Pet. for Cert. 25a). Two further
remedial orders issued on August 11, 1988, provided, respectively,
an alternative remedy if the extension of the application period
should be invalidated on appeal, and further specific relief for
any class members who had been detained or apprehended by the INS
or who were in deportation proceedings.6 No. Civ. S-86-1343 LKK (ED
Cal.) (Record, Doc. Nos. 187, 189). The INS appealed all three of
the remedialorders.7
The second of the two lawsuits, styled
INS v.
League
of United Latin American Citizens (LULAC) et al., goes to the
INS's interpretation of 8 U. S. C. § 1255a(a)(2)(A), the Reform
Act's "continuous unlawful residence" requirement. The Act provides
that certain brief trips abroad will not break an alien's
continuous unlawful residence (just as
5 The order also required the INS to identify all class members
whose applications had been denied or recommended for denial on the
basis of the advance parole regulation, and to "rescind such
denials ... and readjudicate such applications in a manner
consistent with the court's order." No. Civ. S-86-1343 LKK (ED
Cal., June 10, 1988) (App. to Pet. for Cert. 24a). The INS did not
appeal this part of the order. See Brief for Petitioners 11, n.
11.
6 The latter order required the INS to provide apprehended and
detained aliens, and those in deportation proceedings, with "a
reasonable opportunity, of not less than thirty (30) days, to
submit an application [for legalization]." See n. 2,
supra
(describing the Act's provisions regarding such aliens); n. 12,
infra (describing the
LULAC court's relief for such
aliens in
INS v.
League of United Latin American
Citizens).
7The
CSS plaintiffs cross-appealed, challenging the
District Court's denial of their request for an injunction ordering
the INS to permit class members outside the United States to enter
the United States so that they could file applications for
adjustment of status. The Court of Appeals affirmed the District
Court's denial, see
Catholic Social Services, Inc. v.
Thornburgh, 956 F.2d
914, 923
(CA9 1992), and the plaintiffs did not petition
this Court for review of the Court of Appeals' judgment; thus, the
issues presented by the cross-appeal are not before us.
50
certain brief absences from the United States would not violate
the "continuous physical presence" requirement). See §
1255a(g)(2)(A). Under an INS regulation, however, an alien would
fail the "continuous unlawful residence" requirement if he had gone
abroad and reentered the United States by presenting "facially
valid" documentation to immigration authorities. 8 CFR §
245a.2(b)(8) (1992).8 On the INS's reasoning, an alien's use of
such documentation made his subsequent presence "lawful" for
purposes of § 1255a(a)(2)(A), thereby breaking the continuity of
his unlawful residence. Thus, an alien who had originally entered
the United States under a valid nonimmigrant visa, but had become
an unlawful resident by violating the terms of that visa in a way
known to the Government before January 1, 1982, was eligible for
relief under the Reform Act. If, however, the same alien left the
United States briefly and then used the same visa to get back in (a
facially valid visa that had in fact become invalid after his
earlier violation of its terms), he rendered himself
ineligible.
In July 1987, the
LULAC plaintiffs brought suit
challenging the reentry regulation as inconsistent both with the
Act and the equal protection limitation derived from Fifth
Amendment due process. With this suit still pending, on November
17, 1987, some seven months into the Reform
8 This regulation expresses the INS policy in signally cryptic
form, stating that an alien's eligibility "shall not be affected by
entries to the United States subsequent to January 1, 1982 that
were not documented on Service Form 1-94, Arrival-Departure
Record." By negative implication, an alien
would be rendered
ineligible by an entry that
was documented on an 1-94 form.
An entry is documented on an 1-94 form when it occurs through a
normal, official port of entry, at which an alien must present some
validlooking document (for example, a nonimmigrant visa) to get
into the United States. See 8 CFR § 235. 1 (f) (1992). Under the
INS policy, an alien who reentered by presenting such a "facially
valid" document broke the continuity of his unlawful residence,
whereas an alien who reentered the United States by crossing a
desolate portion of the border, thus avoiding inspection
altogether, maintained that continuity.
51
Act's 12-month application period, the INS modified its reentry
policy by issuing two new regulations.9 The first, codified at 8
CFR § 245a.2(b)(9) (1992), specifically acknowledged the
eligibility of an alien who "reentered the United States as a
nonimmigrant ... in order to return to an unrelinquished unlawful
residence," so long as he "would be otherwise eligible for
legalization and ... was present in the United States in an
unlawful status prior to January 1,1982." 52 Fed. Reg. 43845
(1987). The second, codified at 8 CFR § 245a.2(b)(10) (1992),
qualified this expansion of eligibility by obliging such an alien
to obtain a waiver of a statutory provision requiring exclusion of
aliens who enter the United States by fraud.
Ibid.
Although the
L ULAC plaintiffs then amended their
complaint, they pressed their claim that 8 CFR § 245a.2(b)(8)
(1992), the reentry regulation originally challenged, had been
invalid prior to its modification. As to that claim, the District
Court certified the case as a class action, with a class
including
"all persons who qualify for legalization but who were deemed
ineligible for legalization under the original [reentry] policy,
who learned of their ineligibility following promulgation of the
policy and who, relying upon information that they were ineligible,
did not apply for legalization before the May 4,1988 deadline." 10
No. 874757-WDK (JRx) (CD Cal., July 15, 1988) (App. 216).
9 The INS first announced its intention to modify its policy in
a statement issued by then-INS Commissioner Alan Nelson on October
8, 1987, see Record, Addendum to Doc. No.8; however, it did not
issue the new regulations until November 17 following.
10 The
L ULAC plaintiffs also challenged the modified
policy, claiming that aliens should not have to comply with the
requirement of 8 CFR § 245a.2(b)(10) (1992) to obtain a waiver of
excludability for having fraudulently procured entry into the
United States. With respect to this challenge, the District Court
certified a second class comprising persons adversely affected by
the modified policy. See No. 87-4757-WDK (JRx) (CD Cal., July 15,
1988) (App. 216). However, the District Court ultimately
52
On July 15, 1988, 10 weeks after the end of the 12-month
application period, the District Court held the regulation invalid,
while reserving the question of remedy.
Ibid. (App.
224-225). Again, the INS took no appeal. The
LULAC
plaintiffs then sought a remedial order extending the application
period for class members to November 30, 1988,11 and compelling the
INS to publicize the modified policy and the extended application
period. They argued that the INS had effectively truncated the
12-month application period by enforcing the invalid regulation, by
publicizing the regulation so as to dissuade potential applicants,
and by failing to give sufficient publicity to its change in
policy. On August 12, 1988, the District Court granted the
plaintiffs' request for injunctive relief.12 No. 87-4757-WDK (JRx)
(CD Cal., Aug. 12, 1988) (App. to Pet. for Cert. 50a). The INS
appealed this remedial order.
In its appeals in both
CSS and
LULAC, the INS
raised two challenges to the orders of the respective District
Courts. First, it argued that the restrictive judicial review
provisions of the Reform Act barred district court jurisdiction
over the claim in each case. It contended, second, that each
District Court erred in ordering an extension of the 12month
application period, the 12-month limit being, it maintained, a
substantive statutory restriction on relief beyond the power of a
court to alter.
rejected the challenge to the modified policy, see
ibid.
(App. 234), and the
LULAC plaintiffs did not appeal the
grant of summary judgment to the INS on this issue.
11 As in the
CSS case, this date was chosen to coincide
with the deadline for legalization applications under the Reform
Act's SAW program. No. 87-4757-WDK (JRx) (CD Cal., Aug. 12, 1988)
(App. to Pet. for Cert. 50a); see n. 5,
supra.
12 The order also required the INS to give those illegal aliens
apprehended by INS enforcement officials "adequate time" to apply
for legalization. App. to Pet. for Cert. 60a; see n. 2,
supra (describing the Act's provisions regarding such
aliens); n. 6,
supra (describing the
CSS court's
relief for such aliens).
53
The Ninth Circuit eventually consolidated the two appeals.
After holding them pending this Court's disposition of
McNary v.
Haitian Refugee Center, Inc., 498 U. S. 479 (1991), it
rendered a decision in February 1992, affirming the District
CourtsP
Catholic Social Services, Inc. v.
Thornburgh,
956 F. 2d 914 (1992). We were prompted to grant certiorari, 505
U. S. 1203 (1992), by the importance of the issues, and by a
conflict between Circuits on the jurisdictional issue, see
Ayuda, Inc. v.
Thornburgh, 292 U. S. App. D. C.150,
156-162,
948 F.2d
742, 748-754 (1991) (holding that the Reform Act precluded
district court jurisdiction over a claim that INS regulations were
inconsistent with the Act), cert. pending, No. 91-1924. We now
vacate and remand.
II
The Reform Act not only sets the qualifications for obtaining
temporary resident status, but also provides an exclusive scheme
for administrative and judicial review of "determination[s]
respecting ... application[s] for adjustment of status" under the
Title II legalization program. 8 U. S. C. § 1255a(f)(1). Section
1255a(f)(3)(A) directs the Attorney General to "establish an
appellate authority to provide for a single level of administrative
appellate review" of such deter-
13 While the appeals were pending in the Ninth Circuit, the
orders of the District Courts were each subject to a stay order.
Under the terms of each stay order, the INS was obliged to grant a
stay of deportation and temporary work authorization to any class
member whose application made a prima facie showing of eligibility
for legalization, but was not obliged to process the applications.
See App. to Pet. for Cert. 63a-64a. Because the Court of Appeals
has stayed its mandate pending this Court's disposition of the
case, see Nos. 88-15046, 88-15127, 88-15128, 88-6447
(CA9,
May 1, 1992) (staying the mandate); Nos. 88-15046, 88-15127,
88
15128,88-6447 (CA9, Sept. 17,1992) (denying the INS's
motion to dissolve the stay and issue its mandate), the INS is
still operating under these stay orders. By March 1992, it had
received some 300,000 applications for temporary resident status
under the stay orders. See App. to Pet. for Cert.83a.
54
minations. Section 1255a(f)(4)(A) provides that a denial of
adjustment of status is subject to review by a court "only in the
judicial review of an order of deportation under [8 U. S. C. §
l105aJ"; under § l105a, this review takes place in the courts of
appeals. Section 1255a(f)(1) closes the circle by explicitly
rendering the scheme exclusive: "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."
Under this scheme, an alien denied adjustment of status by the
INS in the first instance may appeal to the Associate Commissioner
for Examinations, the "appellate authority" designated by the
Attorney General pursuant to § 1255a(f)(3)(A). See 8 CFR §§
103.1(f)(1)(xxvii), 245a.2(p) (1992). Although the Associate
Commissioner's decision is the final agency action on the
application, an adverse decision does not trigger deportation
proceedings. On the contrary, because the Reform Act generally
allows the INS to use information in a legalization application
only to make a determination on the application, see 8 U. S. C. §
1255a(c)(5),14 an alien whose appeal has been rejected by the
Associate Commissioner stands (except for a latent right to
judicial review of that rejection) in the same position he did
before he applied: he is residing in the United States in an
unlawful status, but the Government has not found out about him
yet.15
14 The INS may also use the information to enforce a provision
penalizing the filing of fraudulent applications, and to prepare
statistical reports to Congress. § 1255a(c)(5)(A).
15 This description excludes the alien who was already in
deportation proceedings before he applied for legalization under §
1255a. Once his application is denied, however, such an alien must
also continue with deportation proceedings as if he had never
applied, and may obtain further review of the denial of his
application only upon review of a final order of deportation
entered against him. See 8 U. S. C. § 1255a(f)(4)(A). The Act's
provisions regarding aliens who have been issued an order to show
cause before applying are described at n. 2,
supra; the
provisions of the
55
We call the right to judicial review "latent" because §
1255a(f)(4)(A) allows judicial review of a denial of adjustment of
status only on appeal of "an order of deportation." Hence, the
alien must first either surrender to the INS for deportation 16 or
wait for the INS to catch him and commence a deportation
proceeding, and then suffer a final adverse decision in that
proceeding, before having an opportunity to challenge the INS's
denial of his application in court.
The INS takes these provisions to preclude the District Courts
from exercising jurisdiction over the claims in both the
CSS
and
LULAC cases, reasoning that the regulations it adopted
to elaborate the qualifications for temporary resident status are
"determination[s] respecting an application for adjustment of
status" within the meaning of § 1255a(f)(1); because the claims in
CSS and
LULAC attack the validity of those
regulations, they are subject to the limitations contained in §
1255a(f), foreclosing all jurisdiction in the district courts, and
granting it to the courts of appeals only on review of a
deportation order. The INS recognizes, however, that this reasoning
is out ofline with our decision in
McNary v.
Haitian
Refugee Center, Inc., supra, where we construed a virtually
identical set of provisions governing judicial review within a
separate legalization program for agricultural workers created by
Title III of the Reform ActP There, as
District Court orders regarding such aliens are described at nn.
6 and
12, supra.
16 Although aliens have no explicit statutory right to force the
INS to commence a deportation proceeding, the INS has represented
that "any alien who wishes to challenge an adverse determination on
his legalization application may secure review by surrendering for
deportation at any INS district office." Reply Brief for
Petitioners 9-10 (footnote omitted).
17The single difference between the two sets of provisions is
the addition, in the provisions now before us, of a further
specific jurisdictional bar: "No denial of adjustment of status
under this section based on a late filing of an application for
such adjustment may be reviewed by a court of the United States or
of any State or reviewed in any administrative pro-
56
here, the critical language was "a determination respecting an
application for adjustment of status." We said that "the reference
to 'a determination' describes a single act rather than a group of
decisions or a practice or procedure employed in making decisions."
Id., at 492. We noted that the provision permitting judicial
review only in the context of a deportation proceeding also defined
its scope by reference to a single act: "'judicial review of
such a denial.'" Ibid. (emphasis in original) (quoting 8 U.
S. C. § 1160(e)(3)); see § 1255a(f)(4)(A) (using identical
language). We therefore decided that the language setting the
limits of the jurisdictional bar "describes the denial of an
individual application," 498 U. S., at 492, and thus "applies only
to review of denials of individual ... applications."
Id.,
at 494. The INS gives us no reason to reverse course, and we reject
its argument that § 1255a(f)(1) precludes district court
jurisdiction over an action challenging the legality of a
regulation without referring to or relying on the denial of any
individual application.
Section 1255a(f)(1), however, is not the only jurisdictional
hurdle in the way of the
CSS and
LULAC plaintiffs,
whose claims still must satisfy the jurisdictional and
justiciability requirements that apply in the absence of a specific
congressional directive. To be sure, a statutory source of
jurisdiction is not lacking, since 28 U. S. C. § 1331, generally
granting federal-question jurisdiction, "confer[s] jurisdiction on
federal courts to review agency action."
Califano v.
Sanders, 430 U.
S. 99, 105 (1977). Neither is it fatal that the Reform Act is
silent about the type of judicial review those plaintiffs seek. We
customarily refuse to treat such silence "as a denial of authority
to [an] aggrieved person to seek appropriate relief in the federal
courts,"
Stark v.
Wickard, 321 U. S. 288, 309
(1944), and this custom has been "reinforced by the enactment of
the Administrative Procedure Act, which embod-
ceeding of the United States Government." 8 U. S. C. §
1255a(f)(2). As the INS appears to concede, see Brief for
Petitioners 19, the claims at issue in this case do not fall within
the scope of this bar.
57
ies the basic presumption of judicial review to one 'suffering
legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute.'"
Abbott Laboratories v.
Gardner, 387 U. S. 136, 140 (1967)
(quoting 5 U. s. C. § 702).
As we said in
Abbott Laboratories, however, the
presumption of available judicial review is subject to an implicit
limitation: "injunctive and declaratory judgment remedies," what
the respondents seek here, "are discretionary, and courts
traditionally have been reluctant to apply them to administrative
determinations unless these arise in the context of a controversy
'ripe' for judicial resolution," 18 387 U. S., at 148, that is to
say, unless the effects of the administrative action challenged
have been "felt in a concrete way by the challenging parties,"
id., at 148-149. In some cases, the promulgation of a
regulation will itself affect parties concretely enough to satisfy
this requirement, as it did in
Abbott Laboratories itself.
There, for example, as well as in
Gardner v.
Toilet Goods
Assn., Inc., 387
U. S. 167 (1967), the promulgation of the challenged
regulations presented plaintiffs with the immediate dilemma to
choose between complying with newly imposed, disadvantageous
restrictions and risking serious penalties for violation.
Abbott
Laboratories, supra, at 152-153;
Gardner, supra, at
171-172. But that will not be so in every case. In
Toilet Goods
Assn., Inc. v.
Gardner, 387 U. S. 158 (1967), for
example, we held that a chal-
18We have noted that ripeness doctrine is drawn both from
Article III limitations on judicial power and from prudential
reasons for refusing to exercise jurisdiction. See,
e. g.,
Buckley v.
Valeo, 424 U. S. 1, 114 (1976)
(per curiam); Socialist Labor Party v.
Gilligan,
406 U. S. 583,
588 (1972). Even when a ripeness question in a particular case is
prudential, we may raise it on our own motion, and "cannot be bound
by the wishes of the parties."
Regional Rail Reorganization Act
Cases, 419 U. S.
102, 138 (1974). Although the issue of ripeness is not
explicitly addressed in the questions presented in the INS's
petition, it is fairly included and both parties have touched on it
in their briefs before this Court. See Brief for Petitioners 20;
Brief for Respondents 17, n. 23.
58
lenge to another regulation, the impact of which could not "be
said to be felt immediately by those subject to it in conducting
their day-to-day affairs,"
id., at 164, would not be ripe
before the regulation's application to the plaintiffs in some more
acute fashion, since "no irremediabl[y] adverse consequences
tiow[ed] from requiring a later challenge,"
ibid. See
Lujan v.
National Wildlife Federation, 497 U. S. 871, 891 (1990)
(a controversy concerning a regulation is not ordinarily ripe for
review under the Administrative Procedure Act until the regulation
has been applied to the claimant's situation by some concrete
action).
The regulations challenged here fall on the latter side of the
line. They impose no penalties for violating any newly imposed
restriction, but limit access to a benefit created by the Reform
Act but not automatically bestowed on eligible aliens. Rather, the
Act requires each alien desiring the benefit to take further
affirmative steps, and to satisfy criteria beyond those addressed
by the disputed regulations.19 It
19JUSTICE O'CONNOR contends that "if the court can make a firm
prediction that the plaintiff will apply for the benefit, and that
the agency will deny the application by virtue of the [challenged]
rule[,] then there may well be a justiciable controversy that the
court may find prudent to resolve."
Post, at 69. Even if
this is true, however, we do not see how such a "firm prediction"
could be made in this case. As for the prediction that the
plaintiffs "will apply for the benefit," we are now considering
only the cases of those plaintiffs who, in fact, failed to file
timely applications. As for the prediction that "the agency will
deny the application by virtue of the [challenged] rule," we
reemphasize that in this case, access to the benefit in question is
conditioned on several nontrivial rules other than the two
challenged. This circumstance makes it much more difficult to
predict firmly that the INS would deny a particular application "by
virtue of the [challenged] rule," and not by virtue of some other,
unchallenged rule that it determined barred an adjustment of
status.
Similarly distinguishable is our decision in
Northeastern
Fla. Chapter, Associated Gen. Contractors of America v.
Jacksonville, 508 U. S. 656 (1993), the
factual and legal setting of which JUSTICE STEVENS appears to
equate with that of the present cases, see
post, at 81-82.
In
Associated General Contractors, the plaintiff association
alleged that "many of its members regularly bid on and perform
construction work for the [defendant city]," 508 U. S., at 659
(internal quotation marks omitted), thus pro-
59
delegates to the INS the task of determining on a case-bycase
basis whether each applicant has met all of the Act's conditions,
not merely those interpreted by the regulations in question. In
these circumstances, the promulgation of the challenged regulations
did not itself give each
CSS and
LULAC class member a
ripe claim; a class member's claim would ripen only once he took
the affirmative steps that he could take before the INS blocked his
path by applying the regulation to him.20
viding a historical basis for the further unchallenged
allegation that the members "would have ... bid on ... designated
set aside contracts but for the restrictions imposed by the
[challenged] ordinance,"
ibid. (internal quotation marks
omitted). A plaintiff in these cases can point to no similar
history of application behavior to support a claim that "she would
have applied ... but for the invalid regulations,"
post, at
85; and we think the mere fact that she may have heard of the
invalid regulations through a Qualified Designated Entity, a
private attorney, or "word of mouth,"
post, at 80,
insufficient proof of this counterfactual. Further, we defined the
"injury in fact" in
Associated General Contractors as "the
inability to compete on an equal footing in the bidding process,
not the loss of a contract," 508 U. S., at 666; thus, whether the
association's members would have been awarded contracts but for the
challenged ordinance was not immediately relevant. Here, the
plaintiffs seek, not an equal opportunity to compete for
adjustments of status, but the adjustments of status themselves.
Under this circumstance, it becomes important to know whether they
would be eligible for the adjustments but for the challenged
regulations.
20 JUSTICE O'CONNOR maintains that the plaintiffs' actions are
now ripe because they have amended their complaints to seek the
additional remedy of extending the application period, and the
application period is now over.
Post, at 71-72. We do not
see how these facts establish ripeness. In both cases before us,
the plaintiffs' underlying claim is that an INS regulation
implementing the Reform Act is invalid. Because the Act requires
each alien desiring legalization to take certain affirmative steps,
and because the Act's conditions extend beyond those addressed by
the challenged regulations, one cannot know whether the challenged
regulation actually makes a concrete difference to a particular
alien until one knows that he will take those affirmative steps and
will satisfy the other conditions. Neither the fact that the
application period is now over, nor the fact that the plaintiffs
would now like the period to be extended, tells us anything about
the willingness of the class members to take the required
60
Ordinarily, of course, that barrier would appear when the INS
formally denied the alien's application on the ground that the
regulation rendered him ineligible for legalization. A plaintiff
who sought to rely on the denial of his application to satisfy the
ripeness requirement, however, would then still find himself at
least temporarily barred by the Reform Act's exclusive review
provisions, since he would be seeking "judicial review of a
determination respecting an application." 8 U. S. C. § 1255a(f)(1).
The ripeness doctrine and the Reform Act's jurisdictional
provisions would thus dovetail neatly, and not necessarily by mere
coincidence. Congress may well have assumed that, in the ordinary
case, the courts would not hear a challenge to regulations
specifying limits to eligibility before those regulations were
actually applied to an individual, whose challenge to the denial of
an individual application would proceed within the Reform Act's
limited scheme. The
CSS and
LULAC plaintiffs do
not
affirmative steps, or about their satisfaction of the Reform
Act's other conditions. The end of the application period may mean
that the plaintiffs no longer have an opportunity to take the steps
that could make their claims ripe; but this fact is significant
only for those plaintiffs who can claim that the Government
prevented them from filing a timely application. See
infra,
at 61-64 (discussing the INS's "front-desking" practice).
JUSTICE O'CONNOR'S ripeness analysis encounters one further
difficulty.
In her view, the plaintiffs' claims are ripe because "[i]t is
certain that an alien who now applies to the INS for
legalization will be denied that benefit because the period has
closed."
Post, at 72 (emphasis in original). In these
circumstances, she suggests, it would make no sense to require "the
would-be beneficiary [to] make the wholly futile gesture of
submitting an application."
Ibid. But a plaintiff who, to
establish ripeness, relies on the certainty that his application
would be denied on grounds of untimeliness, must confront §
1255a(f)(2), which flatly bars all "court[s] of the United States"
from reviewing "denial[s] of adjustment of status ... based on a
late filing of an application for such adjustment." We would almost
certainly interpret this provision to bar such reliance, since
otherwise plaintiffs could always entangle the INS in litigation
over application timing claims simply by suing without filing an
application, a result we believe § 1255a(f)(2) was intended to
foreclose in the ordinary case.
61
argue that this limited scheme would afford them inadequate
review of a determination based on the regulations they challenge,
presumably because they would be able to obtain such review on
appeal from a deportation order, if they become subject to such an
order; their situation is thus different from that of the "17
unsuccessful individual SAW applicants" in
McNary, 498 U.
S., at 487, whose procedural objections, we concluded, could
receive no practical judicial review within the scheme established
by 8 U. S. C. § 1160(e),
id., at 496-497.
This is not the end of the matter, however, because the
plaintiffs have called our attention to an INS policy that may well
have placed some of them outside the scope of § 1255a(f)(1). The
INS has issued a manual detailing procedures for its offices to
follow in implementing the Reform Act's legalization programs and
instructing INS employees called "Legalization Assistants" to
review certain applications in the presence of the applicants
before accepting them for filing. See Procedures Manual for the
Legalization and Special Agricultural Worker Programs of the
Immigration Reform and Control Act of 1986 (Legalization Manual or
Manual).21 According to the Manual, "[m]inor correctable
deficiencies such as incomplete responses or typographical errors
may be corrected by the [Legalization Assistant]."
Id., at
IV -6. "[I]f the applicant is statutorily ineligible," however, the
Manual provides that "the application
will be
rejected by the [Legalization Assistant]."
Ibid.
(emphasis added). Because this prefiling rejection of applications
oc-
21 Under the Manual's procedures, only those applications that
were not prepared with the assistance of a "Qualified Designated
Entity" (the Reform Act's designation for private organizations
that serve as intermediaries between applicants and the INS, see 8
U. S. C. § 1255a(c)(1)) are subject to review by Legalization
Assistants. The applications that were prepared with the help of
Qualified Designated Entities skip this step. See Legalization
Manual, at IV -5, IV -6. There is no evidence in the record
indicating how many
CSS and
LULAC class members were
assisted by Qualified Designated Entities in preparing their
applications.
62
curs at the front desk of an INS office, it has come to be
called "front-desking." 22 While the regulations challenged in
CSS and
LULAC were in force, Legalization Assistants
who applied both the regulations and the Manual's instructions may
well have "front-desked" the applications of class members who
disclosed the circumstances of their trips outside the United
States, and affidavits on file in the
LULAC case represent
that they did exactly that.23 See n. 26,
infra.
22 The INS forwards a different interpretation of the policy set
forth in the Legalization Manual. According to the INS, the Manual
reflects a policy, motivated by "charitable concern," of
"inform[ing] aliens of [the INS's] view that their applications are
deficient before it accepts the filing fee, so that they can make
an informed choice about whether to pay the fee if they are not
going to receive immediate relief." Reply Brief for Petitioners 9
(emphasis omitted). The "rejection" policy, argues the INS, did not
really bar applicants from filing applications; another sentence in
the Manual proves that the door remains open, for it provides that
"[i]f an applicant whose application has been rejected by the
[Legalization Assistant] insists on filing, the application will be
routed through a fee clerk to an adjudicator with a routing slip
from the [Legalization Assistant] stating the noted
deficiency(ies)." Legalization Manual, at IV-6.
We cannot find, in either of the two sentences the parties point
to, the policy now articulated by the INS. The first sentence does
not say that applicants will be informed; it says that applications
will be rejected. The second sentence contains no hint that the
Legalization Assistant should tell the applicant that he has a
right to file an application despite the "rejection," or that he
should file an application if he wants to preserve his rights.
Rather, it seems to provide little more than a procedure for
dealing with the pesky applicant who "won't take 'no' for an
answer." Neither of the sentences preserves a realistic path to
judicial review.
23 In its reply brief in this Court, see Reply Brief for
Petitioners 14, the INS argues that those individuals who were
front-desked fall outside the classes defined by the District
Courts, since the
CSS class included only those who "knew of
[INS's] unlawful regulation and thereby concluded that they were
ineligible for legalization and by reason of that conclusion did
not file an application," App. to Pet. for Cert. 25a, and the
LULAC class included only those "who learned of their
ineligibility following promulgation of the policy and who, relying
upon information that they were ineligible, did not apply for
legalization before the May 4, 1988 deadline," App. 216. The
language in
CSS that the INS points to, however, is not
63
As respondents argue, see Brief for Respondents 17, n. 23, a
class member whose application was "front-desked" would have felt
the effects of the "advance parole" or "facially valid document"
regulation in a particularly concrete manner, for his application
for legalization would have been blocked then and there; his
challenge to the regulation should not fail for lack of ripeness.
Front-desking would also have a further, and untoward, consequence
for jurisdictional purposes, for it would effectively exclude an
applicant from access even to the limited administrative and
judicial review procedures established by the Reform Act. He would
have no formal denial to appeal to the Associate Commissioner for
Examinations, nor would he have an opportunity to build an
administrative record on which judicial review might be based.24
Hence, to construe § 1255a(f)(1) to bar district court jurisdiction
over his challenge, we would have to impute to Congress an intent
to preclude judicial review of the legality of INS action entirely
under those circumstances. As we stated recently in
McNary,
however, there is a "well-
the class definition, which is much broader, see
supra,
at 48-49; rather, it is part of the requirements class members must
meet to obtain one of the forms of relief ordered by the District
Court. We understand the
LULAC class definition to use the
word "apply" to mean "have an application accepted for filing by
the INS," as under this reading the definition encompasses all
those whom the INS refuses to treat as having timely applied (which
is the refusal that lies at the heart of the parties' dispute), and
as the definition then includes those who "learned of their
ineligibility" by being front-desked, since it would be odd to
exclude those who learned of their ineligibility in the most direct
way possible from this description. As we note below, however, see
n. 29,
infra, we believe that the word "applied" as used in
§ 1255a(a)(1)(A) has a broader meaning than that given to the word
in the
LULAC class definition.
24 The Reform Act limits judicial review to "the administrative
record established at the time of the review by the appellate
authority." 8 U. S. C. § 1255a(f)(4)(B). In addition, an INS
regulation provides that a legalization application may not "be
filed or reopened before an immigration judge or the Board of
Immigration Appeals during exclusion or deportation proceedings." 8
CFR § 103.3(a)(3)(iii) (1992).
64
settled presumption favoring interpretations of statutes that
allow judicial review of administrative action," 498 U. S., at 496;
and we will accordingly find an intent to preclude such review only
if presented with "'clear and convincing evidence,'"
Abbott
Laboratories, 387 U. S., at 141 (quoting
Rusk v.
Cort, 369 U.
S. 367, 379-380 (1962)). See generally
Bowen v.
Michigan Academy of Family Physicians, 476 U. S. 667, 670-673
(1986) (discussing the presumption in favor of judicial
review).
There is no such clear and convincing evidence in the statute
before us. Although the phrase "a determination respecting an
application for adjustment of status" could conceivably encompass a
Legalization Assistant's refusal to accept the application for
filing at the front desk of a Legalization Office, nothing in the
statute suggests, let alone demonstrates, that Congress was using
"determination" in such an extended and informal sense. Indeed, at
least one related statutory provision suggests just the opposite.
Section 1255a(f)(3)(B) limits administrative appellate review to
"the administrative record established at the time of the
determination on the application"; because there obviously can be
no administrative record in the case of a front-desked application,
the term "determination" is best read to exclude front-desking.
Thus, just as we avoided an interpretation of 8 U. S. C. § 1160(e)
in
McNary that would have amounted to "the practical
equivalent of a total denial of judicial review of generic
constitutional and statutory claims,"
McNary, supra, at 497,
so here we avoid an interpretation of § 1255a(f)(1) that would bar
front-desked applicants from ever obtaining judicial review of the
regulations that rendered them ineligible for legalization.
Unfortunately, however, neither the
CSS record nor the
LULAC record contains evidence that particular class members
were actually subjected to front-desking. None of the named
individual plaintiffs in either case alleges that he or
65
she was front-desked,25 and while a number of affidavits in the
LULAC record contain the testimony of immigration attorneys
and employees of interested organizations that the INS has
"refused," "rejected," or "den[ied] individuals the right to file"
applications,26 the testimony is limited to such general
assertions; none of the affiants refers to any specific incident
that we can identify as an instance of frontdesking.27
25 In
LULAC, the one named individual plaintiff who
represents the subclass challenging the INS's original
"facially-valid document" policy never attempted to file an
application, because he was advised by an attorney over the
telephone that he was ineligible. See
LULAC, First Amended
Complaint 11-12 (Record, Doc. No. 56) (describing plaintiff John
Doe). In
CSS, none of the named plaintiffs challenging the
"advance parole" regulation allege that they attempted to file
applications. See
CSS Sixth Amended Complaint 12-18 (Record,
Doc. No. 140).
26 See App. 204 (affidavit of Pilar Cuen) (legalization
counselor states that "INS has refused applications for
legalization because our clients entered after January 1, 1982 with
a non-immigrant visa and an 1-94 was issued at the time of
reentry"); App. 209 (affidavit of Joanne T. Stark) (immigration
lawyer in private practice states that she is "aware that the
Service has discouraged application in the past by
[LULAC
class members] or has rejected applications made"); Record, Doc.
No. 16, Exh. R, p. 135 (affidavit of Isabel Garcia Gallegos)
(immigration attorney states that "the legalization offices in
Southern Arizona [have] rejected, and otherwise, discouraged
individuals who had, in fact entered the United States with an 1-94
after January 1, 1982"); App. 200 (affidavit of Marc Van Der Rout)
(immigration attorney states that "[i]t has been the practice of
the San Francisco District legalization office to deny individuals
the right to file an application for legalization under the [Reform
Act] if the individual had been in unlawful status prior to January
1, 1982, departed the United States post January 1, 1982, and
re-entered on a non-immigrant visa").
27 Only one affiant refers to a specific incident. Re recounts:
"[I]n August [1987] I was at the San Francisco legalization office
when an individual came in seeking to apply for legalization. She
was met at the reception desk by a clerk and when she explained the
facts of her case, [that she had departed and re-entered the United
States after January 1, 1982, on a non-immigrant visa], she was
told that she did not qualify for legalization and could not file."
App. 200-201 (affidavit of Marc Van Der Rout). The significance of
this incident is unclear, however, since there is no way
66
This lack of evidence precludes us from resolving the
jurisdictional issue here, because, on the facts before us, the
front-desking of a particular class member is not only sufficient
to make his legal claims ripe, but necessary to do so. As the case
has been presented to us, there seems to be no reliable way of
determining whether a particular class member, had he applied at
all (which, we assume, he did not), would have applied in a manner
that would have subjected him to front-desking. As of October 16,
1987, the INS had certified 977 Qualified Designated Entities which
could have aided class members in preparing applications that would
not have been front-desked, see 52 Fed. Reg. 44812 (1987); n. 21,
supra, and there is no prior history of application behavior
on the basis of which we could predict who would have applied
without Qualified Designated Entity assistance and therefore been
front-desked. Hence, we cannot say that the mere existence of a
front-desking policy involved a "concrete application" of the
invalid regulations to those class members who were not actually
front-desked.28 Because only those class members (if any) who were
front-desked have ripe claims over which the District Courts should
exercise jurisdiction, we must vacate the judgment of the Court of
Appeals, and remand with directions to remand to the respec-
of telling whether this individual was a
LULAC class
member (that is, whether she would otherwise have been eligible for
legalization), nor whether she had a completed application ready
for filing and payment in hand.
28 The record reveals relatively little about the application of
the frontdesking policy and surrounding circumstances. Although we
think it unlikely, we cannot rule out the possibility that further
facts would allow class members who were not front-desked to
demonstrate that the frontdesking policy was nevertheless a
substantial cause of their failure to apply, so that they can be
said to have had the "advanced parole" or "facially valid document"
regulation applied to them in a sufficiently concrete manner to
satisfy ripeness concerns.
67
tive District Courts for proceedings to determine which class
members were front-desked.29
The judgment of the Court of Appeals is vacated, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment.
I agree that the District Courts in these two cases,
Reno
v.
Catholic Social Services, Inc. (CSS), and
INS v.
League of United Latin American Citizens (LULAC), erred in
extending the application period for legalization beyond May 4,
1988, the end of the 12-month interval specified by the Immigration
Reform and Control Act of 1986. I would not, however, reach this
result on ripeness grounds. The Court holds that a member of the
plaintiff class in
CSS or
LULAC who failed to apply
to the INS during the 12-month period does not now have a ripe
claim to extend the application deadline. In my view, that claim
became ripe after May 4, 1988, even if it was not ripe
before. The claim may well lack merit, but it is no longer
premature.
The Court of Appeals did not consider the problem of ripeness,
and the submissions to this Court have not discussed
29 Although we do not reach the question of remedy on this
disposition of the case, we note that, by definition, each
CSS and
LULAC class member who was front-desked
presented at an INS office to an INS employee an application that
under the terms of the Reform Act (as opposed to the terms of the
invalid regulation) entitled him to an adjustment of status. Under
any reasonable interpretation of the word, such an individual
"applied" for an adjustment of status within the 12-month period
under § 1255a(a)(1)(A). Because that individual timely applied, the
INS need only readjudicate the application, and grant the
individual the relief to which he is entitled. Since there is no
statutory deadline for processing the applications, and since a
front-desked individual need not await a deportation order before
obtaining judicial review, there is no reason to think that a
district court would lack the power to order such relief.
68
that problem except in passing. See Pet. for Cert. 11, n. 13;
Brief for Petitioners 20; Brief for Respondents 17, n. 23. Rather,
certiorari was granted on two questions, to which the parties
rightly have adhered: first, whether the District Courts had
jurisdiction under 8 U. S. C. § 1255a(f), the judicial-review
provision of Title II of the Reform Act; and second, whether the
courts properly extended the application period. See Pet. for Cert.
1. The Court finds the jurisdictional challenge meritless under
McNary v.
Haitian Refugee Center, Inc., 498 U. S. 479 (1991), see
ante, at 53-56, as do 1. But instead of proceeding to
consider the second question presented, the Court
sua sponte
attempts to resolve the case on ripeness grounds. It reaches out to
hold that "the promulgation of the challenged regulations did not
itself give each
CSS and
LULAC class member a ripe
claim; a class member's claim would ripen only once he took the
affirmative steps that he could take before the INS blocked his
path by applying the regulation to him."
Ante, at 59. This
is new and, in my view, incorrect law. Moreover, even if it
is correct, the new ripeness doctrine propounded by the
Court is irrelevant to the case at hand.
Our prior cases concerning anticipatory challenges to agency
rules do not specify when an anticipatory suit may be brought
against a benefit-conferring rule, such as the INS regulations
here. An anticipatory suit by a would-be beneficiary, who has not
yet applied for the benefit that the rule denies him, poses
different ripeness problems than a preenforcement suit against a
duty-creating rule, see
Abbott Laboratories v.
Gardner, 387
U. S. 136, 148-156 (1967) (permitting pre-enforcement suit).
Even if he succeeds in his anticipatory action, the would-be
beneficiary will not receive the benefit until he actually applies
for it; and the agency might then deny him the benefit on grounds
other than his ineligibility under the rule. By contrast, a
successful suit against the duty-creating rule will relieve the
plaintiff immediately of a burden that he otherwise would bear.
69
Yet I would not go so far as to state that a suit challenging a
benefit-conferring rule is necessarily unripe simply because the
plaintiff has not yet applied for the benefit. "Where the
inevitability of the operation of a statute against certain
individuals is patent, it is irrelevant to the existence of a
justiciable controversy that there will be a time delay before the
disputed provisions will come into effect."
Regional Rail
Reorganization Act Cases, 419 U. S. 102, 143
(1974). If it is "inevitable" that the challenged rule will
"operat[e]" to the plaintiff's disadvantage-if the court can make a
firm prediction that the plaintiff will apply for the benefit, and
that the agency will deny the application by virtue of the
rule-then there may well be a justiciable controversy that the
court may find prudent to resolve.
I do not mean to suggest that a simple anticipatory challenge to
the INS regulations would be ripe under the approach I propose. Cf.
ante, at 58-59, n. 19. That issue need not be decided
because, as explained below, these cases are
not a simple
anticipatory challenge. See
infra, at 71-74. My intent is
rather to criticize the Court's reasoning-its reliance on a
categorical rule that would-be beneficiaries cannot challenge
benefit-conferring regulations until they apply for benefits.
Certainly the line of cases beginning with
Abbott
Laboratories does not support this categorical approach. That
decision itself discusses with approval an earlier case that
involved an anticipatory challenge to a benefit-conferring
rule.
"[I]n United States v. Storer Broadcasting Co.,
351 U. S. 192, the Court held to be a final agency action ...
an FCC regulation announcing a Commission policy that it would not
issue a television license to an applicant already owning five such
licenses, even though no specific application was before the
Commission." 387 U. S., at 151 (emphasis added).
70
More recently, in
EPA v.
National Crushed Stone
Assn., 449 U. S.
64 (1980), the Court held that a facial challenge to the
variance provision of an EP A pollution-control regulation was ripe
even "prior to application of the regulation to a particular
[company's] request for a variance."
Id., at 72, n. 12. And
in
Pacific Gas &
Elec. Co. v.
State Energy
Resources Conservation and Development Comm'n, 461 U. S. 190 (1983), the
Court permitted utilities to challenge a state law imposing a
moratorium on the certification of nuclear power plants, even
though the utilities had not yet applied for a certificate. See
id., at 200-202. To be sure, all of these decisions involved
licenses, certificates, or variances, which exempt the bearer from
otherwise-applicable duties; but the same is true of the instant
cases. The benefit conferred by the Reform Act-an adjustment in
status to lawful temporary resident alien, see 8 U. S. C. §
1255a(a)-readily can be conceptualized as a "license" or
"certificate" to remain in the United States, or a "variance" from
the immigration laws.
As for Lujan v. National Wildlife Federation, 497 U. S.
871 (1990), the Court there stated:
"Absent [explicit statutory authorization for immediate judicial
review], a regulation is not ordinarily considered the type of
agency action 'ripe' for judicial review under the AP A until the
scope of the controversy has been reduced to more manageable
proportions, and its factual components fleshed out, by some
concrete action applying the regulation to the claimant's situation
in a fashion that harms or threatens to harm him. (The major
exception, of course, is a substantive rule which as a practical
matter requires the plaintiff to adjust his conduct immediately.
Such agency action is 'ripe' for review at once, whether or not
explicit statutory review apart from the APA is provided.)"
Id., at 891-892 (citations omitted).
71
This language does not suggest that an anticipatory challenge to
a benefit-conferring rule will of necessity be constitutionally
unripe, for otherwise an "explicit statutory review" provision
would not help cure the ripeness problem. Rather,
Lujan
points to the prudential considerations that weigh in the ripeness
calculus: the need to "fies[h] out" the controversy and the burden
on the plaintiff who must "adjust his conduct immediately." These
are just the kinds of factors identified in the two-part,
prudential test for ripeness that
Abbott Laboratories
articulated. "The problem is best seen in a twofold aspect,
requiring us to evaluate both the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration." 387 U. S., at 149. See
Thomas v.
Union Carbide Agricultural Products Co., 473 U. S. 568, 581-582
(1985) (relying upon
Abbott Laboratories test);
Pacific
Gas, supra, at 200-203 (same);
National Crushed Stone,
supra, at 72-73, n. 12 (same). At the very least, where the
challenge to the benefit-conferring rule is purely legal, and where
the plaintiff will suffer hardship if he cannot raise his challenge
until later, a justiciable, anticipatory challenge to the rule may
well be ripe in the prudential sense. Thus I cannot agree with the
Court that ripeness will never obtain until the plaintiff actually
applies for the benefit.
But this new rule of ripeness law, even if correct, is
irrelevant here. These cases no longer fall in the above-described
category of anticipatory actions, where a would-be beneficiary
simply seeks to invalidate a benefit-conferring rule before he
applies for benefits. As the cases progressed in the District
Courts, respondents amended their complaints to request an
additional remedy beyond the invalidation of the INS regulations:
an extension of the 12-month application period. Compare Sixth
Amended Complaint in
CSS (Record, Doc. No. 140) and First
Amended Complaint in
LULAC (Record, Doc. No. 56) with Third
Amended Complaint in
CSS (Record, Doc. No. 69) and Complaint
in
LULAC (Record,
72
Doc. No.1). That period expired on May 4, 1988, and the District
Courts
thereafter granted an extension. See App. to Pet. for
Cert. 22a-28a, 50a-60a (orders dated June and August 1988). The
only issue before us is whether these orders should have been
entered. See
ante, at 48-49, 52-53. Even if the Court is
correct that a plaintiff cannot seek to invalidate an agency's
benefit-conferring rule before applying to the agency for the
benefit, it is a separate question whether the would-be beneficiary
must make the wholly futile gesture of submitting an application
when the application period has expired and he is seeking to
extend it.
In the instant cases, I do not see why a class member who failed
to apply to the INS within the 12-month period lacks a ripe claim
to extend the application deadline, now that the period actually
has expired. If Congress in the Reform Act had provided for an
18-month application period, and the INS had closed the application
period after only 12 months, no one would argue that court orders
extending the period for 6 more months should be vacated on
ripeness grounds. The orders actually before us are not
meaningfully distinguishable. Of course, respondents predicate
their argument for extending the period on the invalidity of the
INS regulations, see
infra, at 75-77, not on a separate
statutory provision governing the length of the period, but this
difference does not change the ripeness calculus. The "basic
rationale" behind our ripeness doctrine "is to prevent the courts,
through premature adjudication, from entangling themselves in
abstract disagreements," when those "disagreements" are premised on
"contingent future events that may not occur as anticipated, or
indeed may not occur at all."
Union Carbide, supra, at
580-581 (internal quotation marks omitted). There is no contingency
to the closing of the 12-month application period. It is
certain that an alien who now applies to the INS for
legalization will be denied that benefit because the period has
closed. Nor does prudence justify this Court in postponing an
alien's claim to extend the period, since that
73
claim is purely legal and since a delayed opportunity to seek
legalization will cause grave uncertainty.
The Court responds to this point by reiterating that class
members who failed to apply to the INS have not yet suffered a
"concrete" injury, because the INS has not denied them legalization
by virtue of the challenged regulations. See
ante, at 59-60,
n. 20. At present, however, class members are seeking to redress a
different, and logically prior, injury: the denial of the very
opportunity to apply for legalization.
The Court's ripeness analysis focuses on the wrong question:
whether "the
promulgation of the challenged regulations
[gave] each
CSS and
LULAC class member a ripe claim."
Ante, at 59 (emphasis added). But the question is not
whether the class members' claims were ripe
at the inception of
these suits, when respondents were seeking simply to invalidate
the INS regulations and the 12-month application period had not yet
closed. Whatever the initial status of those claims, they became
ripe once the period had in fact closed and respondents had amended
their complaints to seek an extension. In the
Regional Rail
Reorganization Act Cases, this Court held that "since ripeness
is peculiarly a question of timing, it is the situation now rather
than the situation at the time of the District Court's decision
that must govern." 419 U. S., at 140. Accord,
Buckley v.
Valeo, 424 U. S.
1, 114-118 (1976)
(per curiam). Similarly, in the cases
before us, it is the situation now (and, as it happens, at the time
of the District Courts' orders), rather than at the time of the
initial complaints, that must govern.
The Court also suggests that respondents' claim to extend the
application period may well be "flatly" barred by 8 U. S. C. §
1255a(f)(2), which provides: "No denial of adjustment of status
[under Title II of the Reform Act] based on a late filing of an
application for such adjustment may be reviewed by [any] court ....
" See
ante, at 60, n. 20. I find it remarkable that the
Court might construe § 1255a(f)(2) as barring
any suit
seeking to extend the application dead-
74
line set by the INS, while at the same time interpreting §
1255a(f)(1)
not to bar respondents' substantive challenge to
the INS regulations, see
ante, at 53-56. As the INS itself
observes, the preclusive language in § 1255a(f)(1) is "broader"
than in § 1255a(f)(2), because the latter provision uses the word
"denial" instead of "determination." See Brief for Petitioners 19.
If Congress in the Reform Act had provided for an 18-month
application period, and the INS had closed the period after only 12
months, I cannot believe that § 1255a(f)(2) would preclude a suit
seeking to extend the period by 6 months. Nor do I think that §
1255a(f)(2) bars respondents' claim to extend the period, because
that claim is predicated on their substantive challenge to the INS
regulations, which in turn is permitted by § 1255a(f)(1). In any
event, § 1255a(f)(2) concerns reviewability, not ripeness; whether
or not that provision precludes the instant actions, the Court's
ripeness analysis remains misguided.
Of course, the closing of the application period was not an
unalloyed benefit for class members who had failed to apply. After
May 4, 1988, those aliens had ripe claims, but they also became
statutorily ineligible for legalization. The Reform Act authorizes
the INS to adjust the status of an illegal alien only if he
"appl[ies] for such adjustment during the 12-month period beginning
on a date ... designated by the Attorney General." 8 U. S. C. §
1255a(a)(1)(A). As the INS rightly argues, this provision precludes
the legalization of an alien who waited to apply until after the
12-month period had ended. The District Courts' orders extending
the application period were not unripe, either constitutionally or
prudentially, but they
were impermissible under the Reform
Act. "A court is no more authorized to overlook the valid
[requirement] that applications be [submitted] than it is to
overlook any other valid requirement for the receipt of benefits."
Schweiker v.
Hansen, 450 U. S. 785, 790 (1981)
(per curiam).
75
Respondents assert that equity requires an extension of the time
limit imposed by § 1255a(a)(1)(A). Whether that provision is seen
as a limitations period subject to equitable tolling, see
Irwin v.
Department of Veterans Affairs, 498 U. S.
89, 95-96 (1990), or as a substantive requirement subject perhaps
to equitable estoppel, see
Office of Personnel Management v.
Richmond, 496
U. S. 414, 419-424 (1990), the District Courts needed some
special reason to exercise that equitable power against the United
States. The only reason respondents adduce is supposed "affirmative
misconduct" by the INS. See
Irwin, supra, at 96 ("We have
allowed equitable tolling in situations ... where the complainant
has been induced or tricked by his adversary's misconduct into
allowing the filing deadline to pass");
Richmond, supra, at
421 ("Our own opinions have continued to mention the possibility,
in the course of rejecting estoppel arguments, that some type of
'affirmative misconduct' might give rise to estoppel against the
Government"). Respondents argue that the INS engaged in
"affirmative misconduct" by promulgating the invalid regulations,
which deterred aliens who were ineligible under those regulations
from applying for legalization. See Plaintiffs' Submission Re
Availability of Remedies for the Plaintiff Class in
CSS, pp.
6-15 (Record, Doc. No. 164), Plaintiffs' Memorandum on Remedies in
LULAC (Record, Doc. No. 40). The District Courts essentially
accepted the argument, ordering remedies coextensive with the INS'
supposed "misconduct." The
CSS court extended the
application period for those class members who "knew of [the INS']
unlawful regulation and thereby concluded that they were ineligible
for legalization and by reason of that conclusion did not file an
application," App. to Pet. for Cert. 25a; the
LULAC court
provided an almost identical remedy, see
id., at 59a.
I cannot agree that a benefit-conferring agency commits
"affirmative misconduct," sufficient to justify an equitable
extension of the statutory time period for application, simply
76
by promulgating a regulation that incorrectly specifies the
eligibility criteria for the benefit. When Congress passes a
benefits statute that includes a time period, it has two goals. It
intends
both that eligible claimants receive the benefit
and that they promptly assert their claims. The broad
definition of "misconduct" that respondents propose would give the
first goal absolute priority over the second, but I would not
presume that Congress intends such a prioritization. Rather, absent
evidence to the contrary, Congress presumably intends that the two
goals be harmonized as best possible, by requiring would-be
beneficiaries to make a timely application
and concurrently
to contest the invalid regulation. "We have generally been much
less forgiving in receiving late filings where the claimant failed
to exercise due diligence in preserving his legal rights."
Irwin, supra, at 96. The broad equitable remedy entered by
the District Courts in these cases is contrary to Congress'
presumptive intent in the Reform Act, and thus is error. "'Courts
of equity can no more disregard statutory ... requirements and
provisions than can courts of law.'"
INS v.
Pangilinan, 486 U. S. 875, 883 (1988)
(quoting
Hedges v.
Dixon County, 150 U. S. 182, 192
(1893)).
I therefore agree with the Court that the District Courts'
orders extending the application period must be vacated. I also
agree that "front-desked" aliens already have "applied" within the
meaning of § 1255a(a)(1)(A). See
ante, at 67, n. 29. On
remand, respondents may be able to demonstrate particular instances
of "misconduct" by the INS, beyond the promulgation of the invalid
regulations, that might perhaps justify an extension for certain
members of the
LULAC class or the
CSS class. See
Brief for Respondents 16-20, 35-42. I would not preclude the
possibility of a narrower order requiring the INS to adjudicate the
applications of both "frontdesked" aliens and some aliens who were
not "front-desked," but neither would I endorse that possibility,
because at this
77
point respondents have made only the most general suggestions of
"misconduct."
JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE BLACKMUN
join, dissenting.
After Congress authorized a major amnesty program in 1986, the
Government promulgated two regulations severely restricting access
to that program. If valid, each regulation would have rendered
ineligible for amnesty the members of the respective classes of
respondents in this case. The Government, of course, no longer
defends either regulation. See
ante, at 48, 52.
Nevertheless, one of the regulations was in effect for all but 12
days of the period in which applications for legalization were
accepted; the other, for over half of that period. See
ante,
at 48, 50-51. Accordingly, after holding the regulations invalid,
the District Courts entered orders extending the time for filing
applications for certain class members. See
ante, at
48-49,52.
On appeal, the Government argued that the District Courts lacked
jurisdiction both to entertain the actions and to provide remedies
in the form of extended application periods. The Court of Appeals
rejected the first argument on the authority of our decision in
McNary v.
Haitian Refugee Center, Inc., 498 U. S. 479 (1991).
Catholic Social Services, Inc. v.
Thornburgh,
956 F.2d
914, 919-921 (CA9 1992). As the Court holds today,
ante,
at 53-56, that ruling was plainly correct. The Court of Appeals
also correctly rejected the second argument advanced by the
Government, noting that extension of the filing deadline
effectuated Congress' intent to provide "meaningful opportunities
to apply for adjustments of status," which would otherwise have
been frustrated by enforcement of the invalid regulations. 956 F.
2d, at 921-922. We should, accordingly, affirm the judgment of the
Court of Appeals.
This Court, however, finds a basis for prolonging the litigation
on a theory that was not argued in either the District
78
Courts or the Court of Appeals, and was barely mentioned in this
Court: that respondents' challenges are not, for the most part,
"ripe" for adjudication.
Ante, at 57-61. I agree with
JUSTICE O'CONNOR,
ante, p. 67 (opinion concurring in
judgment), that the Court's rationale is seriously flawed. Unlike
JUSTICE O'CONNOR, however, see
ante, at 73, I have no doubt
that respondents' claims were ripe as soon as the concededly
invalid regulations were promulgated.
Our test for ripeness is two pronged, "requiring us to evaluate
both the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration."
Abbott Laboratories v.
Gardner, 387 U. S. 136, 149
(1967). Whether an issue is fit for judicial review, in turn, often
depends on "the degree and nature of [a] regulation's present
effect on those seeking relief,"
Toilet Goods Assn., Inc. v.
Gardner, 387
U. S. 158, 164 (1967), or, put differently, on whether there
has been some "concrete action applying the regulation to the
claimant's situation in a fashion that harms or threatens to harm
him,"
Lujan v.
National Wildlife Federation, 497 U. S. 871, 891
(1990). As JUSTICE O'CONNOR notes, we have returned to this
two-part test for ripeness time and again, see
ante, at 71,
and there is no question but that the
Abbott Laboratories
formulation should govern this case.
As to the first
Abbott Laboratories factor, I think it
clear that the challenged regulations have an impact on respondents
sufficiently "direct and immediate," 387 U. S., at 152, that they
are fit for judicial review. My opinion rests, in part, on the
unusual character of the amnesty program in question. As we
explained in
McNary:
"The Immigration Reform and Control Act of 1986 (Reform Act)
constituted a major statutory response to the vast tide of illegal
immigration that had produced a 'shadow population' of literally
millions of undocumented aliens in the United States .... [I]n
recognition that a large segment of the shadow population played
a
79
useful and constructive role in the American economy, but
continued to reside in perpetual fear, the Reform Act established
two broad amnesty programs to allow existing undocumented aliens to
emerge from the shadows." 498 U. S., at 481-483 (footnotes
omitted).l
A major purpose of this ambitious effort was to eliminate the
fear in which these immigrants lived, "'afraid to seek help when
their rights are violated, when they are victimized by criminals,
employers or landlords or when they become ill.'"
Ayuda,
Inc. v.
Thornburgh, 292 U. S. App. D. C. 150, 168,
948 F.2d
742, 760 (1991) (Wald, J., dissenting) (quoting H. R. Rep. No.
99-682, pt. 1, p. 49 (1986)). Indeed, in recognition of this fear
of governmental authority, Congress established a special procedure
through which "qualified designated entities," or "QDE's," would
serve as a channel of communication between undocumented aliens and
the INS, providing reasonable assurance that "emergence from the
shadows" would result in amnesty and not deportation. 8 U. S. C. §
1255a(c)(2); see
Ayuda, 292 U. S. App. D. C., at 168, and n.
1, 948 F. 2d, at 760, and n. 1.
Under these circumstances, official advice that specified aliens
were ineligible for amnesty was certain to convince those aliens to
retain their "shadow" status rather than come forward. At the
moment that decision was made-at the moment respondents conformed
their behavior to the invalid regulations-those regulations
concretely and directly affected respondents, consigning them to
the shadow world from which the Reform Act was designed to deliver
them, and threatening to deprive them of the statutory entitlement
that would otherwise be theirs.2 Cf.
Lujan, 497 U. S., at
891 (concrete application threatening harm as basis for
ripeness).
1 This case involves the first, and more important, of the two
amnesty programs;
McNary involved the second.
2 As the majority explains, the classes certified in both
actions were limited to persons otherwise eligible for
legalization. See
ante, at 4748,51.
80
The majority concedes, of course, that class members whose
applications were "front-desked" felt the effects of the invalid
regulations concretely, because their applications were "blocked
then and there." See
ante, at 63. Why "then and there," as
opposed to earlier and elsewhere, should be dispositive remains
unclear to me; whether a potential application is thwarted by a
front-desk Legalization Assistant, by advice from a QDE, by
consultation with a private attorney, or even by word of mouth
regarding INS policies, the effect on the potential applicant is
equally concrete, and equally devastating. In my view, there is no
relevant difference, for purposes of ripeness, between respondents
who were "front-desked" and those who can demonstrate, like the
LULAC class, that they" 'learned of their ineligibility
following promulgation of the policy and who, relying upon
information that they were ineligible, did not apply,'"
ante, at 51, or, like the class granted relief in
CSS, that they" 'knew of [the INS'] unlawful regulation and
thereby concluded that they were ineligible for legalization and by
reason of that conclusion did not file an application,'"
ante, at 48-49. As Judge Wald explained in
Ayuda:
"[T]he majority admits that if low level INS officials had
refused outright to accept legalization applications for filing,
the district court could hear the suit. Even if the plaintiffs'
affidavits are read to allege active discouragement rather than
outright refusal to accept, this is a subtle distinction indeed,
and one undoubtedly lost on the illegal aliens involved, upon which
to grant or deny jurisdiction to challenge the practice." 292 U. S.
App. D. C., at 169, n. 3, 948 F. 2d, at 761, n. 3 (dissenting
opinion) (citation omitted).
The second
Abbott Laboratories factor, which focuses on
the cost to the parties of withholding judicial review, also weighs
heavily in favor of ripeness in this case. Every day during which
the invalid regulations were effective meant
81
another day spent in the shadows for respondents, with the
attendant costs of that way of life. See
supra, at 78-79.
Even more important, with each passing day, the clock on the
application period continued to run, increasing the risk that
review, when it came, would be meaningless because the application
period had already expired. See
Ayuda, 292 U. S. App. D. C.,
at 178, 948 F. 2d, at 770 (Wald, J., dissenting).3 Indeed, the
dilemma respondents find themselves in today speaks volumes about
the costs of deferring review in this situation. Cf.
Toilet
Goods Assn., 387 U. S., at 164 (challenge not ripe where "no
irremediable adverse consequences flow from requiring a later
challenge").
Under
Abbott Laboratories, then, I think it plain that
respondents' claims were ripe for adjudication at the time they
were filed. The Court's contrary holding, which seems to rest on
the premise that respondents cannot challenge a condition of
legalization until they have satisfied all other conditions, see
ante, at 58-59, is at odds not only with our ripeness case
law, but also with our more general understanding of the way in
which government regulation affects the regulated. In
Northeastern Fla. Chapter, Associated Gen. Contractors of
America v.
Jacksonville, 508 U. S. 656 (1993), for
instance, we held that a class of contractors could challenge an
ordinance making it more difficult for them to compete for public
business without making any showing that class members were
actually in a position to receive such business,
3 "Absent judicial action, the period for filing for IRCA
legalization would have ended and thousands of persons would have
lost their chance for amnesty. In purely human terms, it is
difficult-perhaps impossiblefor those of us fortunate enough to
have been born in this country to appreciate fully the value of
that lost opportunity. For undocumented aliens, IRCA offered a
one-time chance to come out of hiding, to stop running, to 'belong'
to America. The hardship of withholding judicial review is as
severe as any that I have encountered in more than a decade of
administrative review." 292 U. S. App. D.
C., at 178, 948 F.
2d, at 770 (Wald, J., dissenting).
82
absent the challenged regulation. We announced the following
rule:
"When the government erects a barrier that makes it more
difficult for members of one group to obtain a benefit than it is
for members of another group, a member of the former group seeking
to challenge the barrier need not allege that he would have
obtained the benefit but for the barrier in order to establish
standing. The 'injury in fact' in an equal protection case of this
variety is the denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to obtain the
benefit." Id., at 666.4
Our decision in the
Jacksonville case is well supported
by precedent; the Court's ripeness holding today is notable for its
originality.
Though my approach to the ripeness issue differs from that of
JUSTICE O'CONNOR, we are in agreement in concluding that
respondents' claims are ripe for adjudication. We also agree that
the validity of the relief provided by the District Courts, in the
form of extended application periods, turns on whether that remedy
is consistent with congressional intent. See
ante, at 76
(opinion concurring in judgment);
American Pipe &
Constr. Co. v.
Utah, 414 U. S. 538, 557-558
(1974) (equitable relief must be "consonant with the legislative
scheme");
Weinberger v.
Romero-Barcelo, 456 U. S.
305, 313 (1982) (courts retain broad equity powers to enter
remedial orders absent clear statutory restriction);
INS v.
Pangilinan, 486 U. S. 875, 883 (1988)
(courts of equity bound by statutory requirements). Where I differ
from
4 Jacksonville is, of course, an equal protection
case, while respondents in this case are seeking a statutory
benefit. If this distinction has any relevance to a ripeness
analysis, then it should mitigate in favor of finding ripeness
here; I assume we should be more reluctant to overcome
jurisdictional hurdles to decide constitutional issues than to
effectuate statutory programs.
83
JUSTICE O'CONNOR is in my determination that extensions of the
application period in this case were entirely consistent with
legislative intent, and hence well within the authority of the
District Courts.
It is no doubt true that "[w]hen Congress passes a benefits
statute that includes a time period, it has two goals." See
ante, at 76 (opinion concurring in judgment). Here,
Congress' two goals were finality in its one-time amnesty program,
and the integration of productive aliens into the American
mainstream. See
Perales v.
Thornburgh, 967 F.2d
798, 813 (CA2 1992). To balance both ends, and to achieve each,
Congress settled on a 12-month application period. Twelve months,
Congress determined, would be long enough for frightened aliens to
come to understand the program and to step forward with
applications, especially when the full period was combined with the
special outreach efforts mandated by the Reform Act.
Ibid.;
see 8 U. S. C. § 1255a(i) (requiring broad dissemination of
information about amnesty program); § 1255a(c)(2) (establishing
QDE's). The generous 12-month period would also serve the goal of
finality, by "'ensur[ing] true resolution of the problem and ...
that the program will be a one-time-only program.'" 967 F. 2d, at
813 (quoting H. R. Rep. No. 99-682, pt. 1, at 72.
The problem, of course, is that the full 12-month period was
never made available to respondents. For the
CSS class, the
12-month period shrank to precisely 12 days during which they were
eligible for legalization; for the
LULAC class, to roughly 5
months. See
supra, at 77. Accordingly, congressional intent
required an extension of the filing deadline, in order to make
effective the 12-month application period critical to the balance
struck by Congress. See 956
That congressional intent is furthered, not frustrated, by the
equitable relief granted here distinguishes this case from
Pangilinan, in which we held that a court lacked the
authority to order naturalization for certain persons after
expira-
84
tion of a statutory deadline. 486 U. S., at 882-885. In
Pangilinan, we were faced with a "congressional command
[that] could not be more manifest" specifically precluding the
relief granted.
Id., at 884. The Reform Act, on the other
hand, contains no such explicit limitation.5 Indeed, the Reform Act
does not itself contain a statutory deadline at all, leaving it
largely to the Attorney General to delineate a 12-month period. 8
U. S. C. § 1255a(a)(1)(A). This delegation highlights the relative
insignificance to Congress of the application cutoff date, as
opposed to the length of the application period itself. See
Perales, 967 F. 2d, at 813, n. 4.
Finally, I can see no reason to limit otherwise available relief
to those class members who experienced "frontdesking," on the
theory that they have "applied" for legalization. Cf.
ante,
at 67, n. 29;
ante, at 76-77 (O'CONNOR, J., concurring in
judgment). It makes no sense to condition relief on the filing of a
futile application. Indeed, we have already rejected the
proposition that such an application is necessary for receipt of an
equitable remedy. In
Teamsters v.
United States,
431 U. S. 324
(1977), a case involving discriminatory employment practices under
Title VII of the Civil Rights Act of 1964, we held that those who
had been deterred from applying for jobs by an employer's practice
of rejecting applicants like themselves were eligible for relief
along with those who had unsuccessfully applied. We reasoned:
"A consistently enforced discriminatory policy can surely deter
job applications from those who are aware of it and are unwilling
to subject themselves to the humiliation of explicit and certain
rejection.
5 There is no language in the Reform Act prohibiting an
extension of the application period. Section 1255a(f)(2), relied on
by the Government, see Brief for Petitioners 28-29, precludes
review of
individual late-filed applications; like §
1255a(f)(1), it has no bearing on the kind of broad-based challenge
and remedy at issue here. See
ante, at 55, and n. 17;
ante, at 73-74 (O'CONNOR, J., concurring in judgment).
85
" ... When a person's desire for a job is not translated into a
formal application solely because of his unwillingness to engage in
a futile gesture he is as much a victim of discrimination as is he
who goes through the motions of submitting an application." 431 U.
S., at 365-366.
The same intelligent principle should control this case. A
respondent who can show that she would have applied for
legalization but for the invalid regulations is "in a position
analogous to that of an applicant," and entitled to the same
relief. See
id., at 368.
In my view, then, the Court of Appeals was correct on both
counts when it affirmed the District Court orders in this case:
Respondents' claims were justiciable when filed, and the relief
ordered did not exceed the authority of the District Courts.
Accordingly, I respectfully dissent.
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