Subject:  McNARY v. HAITIAN REFUGEE CENTER, INC., Syllabus



    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
    is being done in connection with this case, at the time the opinion is
    issued.  The syllabus constitutes no part of the opinion of the Court
    but has been prepared by the Reporter of Decisions for the convenience
    of the reader.  See United States v. Detroit Lumber Co., 200 U.9S. 321,
    337.
SUPREME COURT OF THE UNITED STATES


Syllabus


AMcNARY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, et al. v. HAITIAN
REFUGEE CENTER, INC., et al.

Bcertiorari to the united states court of appeals for the eleventh circuit


CNo.989-1332.  Argued October 29, 1990--Decided February 20, 1991

DThe Immigration Reform and Control Act of 1986 (Reform Act) amended the
Immigration and Nationality Act (INA) creating, inter alia, a "Special
Agricultural Workers" (SAW) amnesty program for specified alien
farmworkers.  The Immigration and Naturalization Service (INS) determined
SAW status eligibility based on evidence presented at a personal interview
with each applicant.  Section 210(e)(1) of the INA barred judicial review
"of a determination respecting an application" except in the context of
judicial review of a deportation order, a review conducted by the courts of
appeals.  Respondents, the Haitian Refugee Center and unsuccessful
individual SAW applicants, filed a class action in the District Court,
alleging that the initial application review process was conducted in an
arbitrary manner in violation of the Reform Act and the applicants' due
process rights under the Fifth Amendment.  While recognizing that
individual aliens could not obtain judicial review of denials of their SAW
status applications except in deportation proceedings in the courts of
appeals, the District Court accepted jurisdiction because the complaint did
not challenge any individual determination of any application for SAW
status, but rather contained allegations about the manner in which the
entire program was being implemented.  The court found that a number of INS
practices violated the Reform Act and were unconstitutional, and the Court
of Appeals affirmed.

EHeld: The District Court had federal question jurisdiction to hear
respondents' constitutional and statutory challenges to the INS procedures.
Pp.911-18.

    F(a) There is no clear congressional language mandating preclusion of
    jurisdiction.  Section 210(e)(1)'s language prohibiting judicial review
    "of a determination respecting an application" refers to the process of
    direct review of individual denials of SAW status, not to general
    collateral challenges to unconstitutional practices and policies used
    by the INS in processing applications.  The reference to "a
    determination" describes a single act, as does the language of
    9210(e)(3), which provides for "judicial review of such a denial."
    Section 210(e)(3)(B), which specifies that judicial review is to be
    based on the administrative record and that factual determinations
    contained in such a record shall be conclusive absent a showing of an
    abuse of discretion, supports this reading.  A record emerging from the
    administrative appeals process does not address the kind of procedural
    and constitutional claims respondents have brought, and the
    abuse-of-discretion standard does not apply to constitutional or
    statutory determinations, which are subject to de novo review.
    Limiting judicial review of general constitutional and statutory
    challenges to the provisions set forth in 9210(e) therefore is not
    contemplated.  Moreover, had Congress intended the limited review
    provisions of 9210(e) to encompass challenges to INS procedures and
    practices, it could easily have used broader statutory language.
    Pp.911-14.

    (b) As a practical matter, the individual respondents would be unable
    to obtain meaningful judicial review of their application denials or of
    their objections to INS procedures if they were required to avail
    themselves of the INA's limited judicial review procedures.  Under the
    statutory scheme, review of an individual determination would be
    limited to the administrative record, which respondents have alleged is
    inadequate; aliens would have to surrender themselves for deportation
    in order to receive any judicial review, which is tantamount to a
    complete denial of such review; and a court of appeals reviewing an
    individual determination would most likely not have an adequate record
    as to a pattern of allegedly unconstitutional practices and would lack
    a district court's factfinding and record-developing capabilities.
    Given this Court's wellsettled presumption favoring interpretations of
    statutes that allow judicial review of administrative action, the Court
    cannot conclude that Congress so intended to foreclose all forms of
    meaningful judicial review of SAW application denials and general
    collateral challenges to INS procedures.  This case is therefore
    controlled by Bowen v. Michigan Academy of Family Physicians, 476 U.9S.
    667, which interpreted the Medicare statute to permit individuals to
    challenge a payment regulation's validity even though the statute
    barred judicial review of individual claims for payment under the
    regulation.  Heckler v. Ringer, 466 U.9S. 602, distinguished.
    Pp.914-18.

G872 F. 2d 1555, affirmed.

HStevens, J., delivered the opinion of the Court, in which Marshall,
Blackmun, O'Connor, Kennedy, and Souter, JJ., joined, and in Parts I, II,
III, and IV of which White, J., joined.  Rehnquist, C.9J., filed a
dissenting opinion, in which Scalia, J., joined.
------------------------------------------------------------------------------




Subject: Y, 89-1332--OPINION



McNARY v. HAITIAN REFUGEE CENTER, INC.
 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 89-1332



AGENE McNARY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, et al.,
PETITIONERS v. HAITIAN REFUGEE CENTER, INC., et al.

Bon writ of certiorari to the united states court ofappeals for the
eleventh circuit

C[February 20, 1991]



Y
A Justice Stevens delivered the opinion of the Court. {15}
X
B The Immigration Reform and Control Act of 1986 (Reform Act)9 {1}
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.  On the one hand, Congress
sought to stem the tide by making the plight of the undocumented alien even
more onerous in the future than it had been in the past; thus, the Reform
Act imposed criminal sanctions on employers who hired undocumented workers9
{2} and made a number of federally funded welfare benefits unavailable to
these aliens. {3}  On the other hand, in recognition that a large segment
of the shadow population played a useful and constructive role in the
American economy, {4} but continued to reside in perpetual fear, {5} the
Reform Act established two broad amnesty programs to allow existing
undocumented aliens to emerge from the shadows.
    The first amnesty program permitted any alien who had resided in the
United States continuously and unlawfully since January 1, 1982, to qualify
for an adjustment of his or her status to that of a lawful permanent
resident.  See 100 Stat. 3394, as amended, 8 U.9S.9C. 91255a.  The second
program required the Attorney General to adjust the status of any alien
farmworker who could establish that he or she had resided in the United
States and performed at least 90 days of qualifying agricultural work
during the 12-month period prior to May 1, 1986, provided that the alien
could also establish his or her admissibility in the United States as an
immigrant.  The Reform Act required the Attorney General first to adjust
the status of these aliens to "Special Agricultural Workers" (SAW) lawfully
admitted for temporary residence, see 100 Stat. 3417, as amended, 8
U.9S.9C. 91160(a)(1), and then eventually to aliens lawfully admitted for
permanent residence, see 91160(a)(2).
    This case relates only to the SAW amnesty program.  Although additional
issues were resolved by the District Court and the Court of Appeals, the
only question presented to us is whether 9210(e) of the Immigration and
Nationality Act (INA), which was added by 9302(a) of the Reform Act and
sets forth the administrative and judicial review provisions of the SAW
program, see 8 U.9S.9C. 91160(e), precludes a federal district court from
exercising general federal question jurisdiction over an action alleging a
pattern or practice of procedural due process violations by the Immigration
and Naturalization Service (INS) in its administration of the SAW program.
We hold that given the absence of clear congressional language mandating
preclusion of federal juris diction and the nature of respondents'
requested relief, the District Court had jurisdiction to hear respondents'
constitutional and statutory challenges to INS procedures.  Were we to hold
otherwise and instead require respondents to avail themselves of the
limited judicial review procedures set forth in 9210(e) of the INA,
meaningful judicial review of their statutory and constitutional claims
would be foreclosed.

CI


D The Reform Act provided three important benefits to an applicant for SAW
status.  First, the mere filing of a "nonfrivolous application" entitled
the alien to a work author ization that would remain valid during the
entire period that the application was being processed.  See 8 U.9S.9C.
91160(d)(2)(B).  Second, regardless of the disposition of the application,
the Reform Act expressly prohibited the Government from using any
information in the application for enforcement purposes.  Thus, the
application process could not be used as a means of identifying deportable
aliens; rather, the initiation of a deportation proceeding had to be based
on evidence obtained from an independent source.  See 91160(b)(6).  Third,
if SAW status was granted, the alien became a lawful temporary resident,
see 91160(a)(1), and, in due course, could obtain the status of a permanent
resident, see 91160(a)(2).
    In recognition that the fear of prosecution or deportation would cause
many undocumented aliens to be reluctant to come forward and disclose their
illegal status, the Reform Act directed the Attorney General to enlist the
assistance of a variety of nonfederal organizations to encourage aliens to
apply and to provide them with counsel and assistance during the
application process.  These "Qualified Designated Entities" (QDE), which
included private entities such as farm labor organizations and associations
of agricultural employers as well as qualified state, local, and community
groups, were not allowed to forward applications for SAW status to the
Attorney General unless the applicant consented.  See 91160(b)(2), (b)(4).
    The Reform Act provided that SAW status applications could be filed
with a specially created Legalization Office (LO), or with a QDE, which
would forward applications to the appropriate LO, during an 18-month period
commencing on June 1, 1987.  See 91160(b)(1)(A).  Regulations adopted by
the INS to administer the program provided for a personal interview of each
applicant at an LO.  See 8 CFR 9210.2(c)(2)(iv) (1990).  In the
application, the alien had to prove by a preponderance of the evidence that
he or she worked the requisite 90 days of qualifying seasonal agricultural
services.  See 9210.3(a), (b)(1).  To meet the burden of proof, the
applicant was required to present evidence of eligibility independent of
his or her own testimony.  See 9210.3(b)(2).  The applicant could meet this
burden through production of his or her employer's payroll records, see 8
U.9S.9C. 91160(b)(3)(B)(ii), or through submission of affidavits "by
agricultural producers, foremen, farm labor contractors, union officials,
fellow employees, or other persons with specific knowledge of the
applicant's employment."  See 8 CFR 9210.3(c)(3) (1990).  At the conclusion
of the interview and of the review of the application materials, the LO
could deny the application or make a recommendation to a regional
processing facility that the application be either granted or denied.  See
id., at 9210.1(q).  A denial, whether at the regional or local level, could
be appealed to the legalization appeals unit, which was authorized to make
the final administrative decision in each individual case.  See
9103.3(a)(2)(iii).    The Reform Act expressly prohibited judicial review
of such a final administrative determination of SAW status except as
authorized by 9210(e)(3)(A) of the amended INA.  That subsection permitted
"judicial review of such a denial only in the judicial review of an order
of exclusion or deportation."9 {6}  In view of the fact that the courts of
appeals constitute the only fora for judicial review of deportation orders,
see 75 Stat. 651, as amended, 8 U.9S.9C. 91105a, the statute plainly
foreclosed any review in the district courts of individual denials of SAW
status applications.  Moreover, absent initiation of a deportation
proceeding against an unsuccessful applicant, judicial review of such
individual determinations was completely foreclosed.

NII
D This action was filed in the District Court for the Southern District of
Florida by the Haitian Refugee Center, the Migration and Refugee Services
of the Roman Catholic Diocese of Palm Beach, {7} and 17 unsuccessful
individual SAW applicants.  The plaintiffs sought relief on behalf of a
class of alien farmworkers who either had been or would be injured by
unlawful practices and policies adopted by the INS in its administration of
the SAW program.  The complaint alleged that the interview process was
conducted in an arbitrary fashion that deprived applicants of the due
process guaranteed by the Fifth Amendment to the Constitution.  Among other
charges, the plaintiffs alleged that INS procedures did not allow SAW
applicants to be apprised of or to be given opportunity to challenge
adverse evidence on which denials were predicated, that applicants were
denied the opportunity to present witnesses on their own behalf, that
non-English speaking Haitian applicants were unable to communicate
effectively with LOs because competent interpreters were not provided, and
that no verbatim recording of the interview was made, thus inhibiting even
any meaningful administra tive review of application denials by LOs or
regional processing facilities.  See App. 44-45; Haitian Refugee Center,
Inc. v. Nelson, 694 F. Supp. 864, 867 (SD Fla. 1988).
    After an evidentiary hearing, the District Court ruled that it had
jurisdiction, that the case should proceed as a class action, and that a
preliminary injunction should issue.  The court recognized that individual
aliens could not contest the denial of their SAW applications "unless and
until the INS institut[ed] deportation proceedings against them," but
accepted jurisdiction because the complaint "does not challenge any
individual determination of any application for SAW status but rather
attacks the manner in which the entire program is being implemented,
allegations beyond the scope of administrative review."9 {8}  On the
merits, the District Court found that a number of INS practices violated
the Reform Act and were unconstitutional, {9} and entered an injunction
requiring the INS to vacate large categories of denials, {10} and to modify
its practices in certain respects. {11}
    The Court of Appeals affirmed.  On the merits, it upheld all of the
findings and conclusions of the District Court and it also rejected each of
the Government's jurisdictional arguments.  Relying on earlier Circuit
precedent, it held that the statutory bar to judicial review of individual
determinations was inapplicable:

E"In Jean v. Nelson, 727 F. 2d 957 (11th Cir. 1984) (in banc), aff'd, 472
U.9S. 846 .9.9. (1985), we reaffirmed that section 106 of the INA (Codified
at 8 U.9S.9C. 91105a) does not deprive district courts of jurisdiction to
review allegations of systematic abuses by INS officials.  Jean, 727 F. 2d
at 980.  We explained that to postpone `judicial resolution of a disputed
issue that affects an entire class of aliens until an individual petitioner
has an opportunity to litigate it on habeas corpus would foster the very
delay and procedural redundancy that Congress sought to eliminate in
passing 91105a.'  Id.  In this action, appellees do not challenge the
merits of any individual status determination; rather .9.9. they contend
that defendants' policies and practices in processing SAW applications
deprive them of their statutory and constitutional rights."  Haitian
Refugee Center, Inc. v. Nelson, 872 F. 2d 1555, 1560 (CA11 1989).
F

    In their certiorari petition, petitioners did not seek review of the
District Court's rulings on the merits or the form of its injunctive
relief.  Our grant of certiorari is therefore limited to the jurisdictional
question.

CIII
D We preface our analysis of petitioners' position with an identification
of matters that are not in issue.  First, it is undisputed that SAW status
is an important benefit for a previously undocumented alien.  This status
not only protects the alien from deportation; it also creates job
opportunities that are not available to an alien whose application is
denied.  Indeed, the denial of SAW status places the alien in an even worse
position than he or she was in before the Reform Act was passed because
lawful employment opportunities are no longer available to such persons.
Thus, the successful applicant for SAW status acquires a measure of freedom
to work and to live openly without fear of deportation or arrest that is
markedly different from that of the unsuccessful applicant.  Even
disregarding the risk of deportation, the impact of a denial on the
opportunity to obtain gainful employment is plainly sufficient to mandate
constitutionally fair procedures in the application process.  At no time in
this litigation have petitioners asserted a right to employ arbitrary
procedures, or questioned their obligation to afford SAW status applicants
due process of law.
    Nor, at this stage of the litigation, is there any dispute that the INS
routinely and persistently violated the Constitution and statutes in
processing SAW applications.  Petitioners do not deny that those violations
caused injury in fact to the two organizational plaintiffs as well as to
the individual members of the plaintiff class.  Although it does not do so
explicitly, petitioners' argument assumes that the District Court would
have federal question jurisdiction over the entire case if Congress had
not, through the Reform Act, added 9210(e) to the INA.  The narrow issue,
therefore, is whether 9210(e), which bars judicial review of individual
determinations except in deportation proceedings, also forecloses this
general challenge to the INS's unconstitutional practices.

NIV
D Petitioners' entire jurisdictional argument rests on their view that
respondents' constitutional challenge is an action seeking "judicial review
of a determination respecting an application for adjustment of status" and
that district court jurisdiction over the action is therefore barred by the
plain language of 9210(e)(1) of the the amended INA.  See 8 U.9S.9C.
91160(e)(1). {12}  The critical words in 9210(e)(1), however, describe the
provision as referring only to review "of a determination respecting an
application" for SAW status (emphasis added).  Significantly, the reference
to "a determination" describes a single act rather than a group of
decisions or a practice or procedure employed in making decisions.
Moreover, when 9210(e)(3), see 8 U.9S.9C. 91160(e)(3), further clarifies
that the only judicial review permitted is in the context of a deportation
proceeding, it refers to "judicial review of such a denial"--again
referring to a single act, and again making clear that the earlier
reference to "a determination respecting an application" describes the
denial of an individual application.  We therefore agree with the District
Court's and the Court of Appeals' reading of this language as describing
the process of direct review of individual denials of SAW status, rather
than as referring to general collateral challenges to unconstitutional
practices and policies used by the agency in processing applications.
    This reading of the Reform Act's review provision is supported by the
language in 9210(e)(3)(B) of the INA, which provides that judicial review
"shall be based solely upon the administrative record established at the
time of the review by the appellate authority and the findings of fact and
determinations contained in such record shall be conclusive unless the
applicant can establish abuse of discretion or that the findings are
directly contrary to clear and convincing facts contained in the record
considered as a whole."  8 U.9S.9C. 91160(e)(3)(B).  This provision
incorporates an assumption that the limited review provisions of 9210(e)
apply only to claims that have been subjected to administrative
consideration and that have resulted in the creation of an adequate
administrative record.  However, the record created during the SAW
administrative review process consists solely of a completed application
form, a report of medical examination, any documents or affidavits that
evidence an applicant's agricultural employment and residence, and notes,
if any, from an LO interview--all relating to a single SAW applicant.
Because the administrative appeals process does not address the kind of
procedural and constitutional claims respondents bring in this action,
limiting judicial review of these claims to the procedures set forth in
9210(e) is not contemplated by the language of that provision.
    Moreover, the "abuse of discretion" standard of judicial review under
9210(e)(3)(B) would make no sense if we were to read the Reform Act as
requiring constitutional and statutory challenges to INS procedures to be
subject to its specialized review provision.  Although the
abuse-of-discretion standard is appropriate for judicial review of an
administrative adjudication of the facts of an individual application for
SAW status, such a standard does not apply to constitutional or statutory
claims, which are reviewed de novo by the courts.  The language of
9210(e)(3)(B) thus lends substantial credence to the conclusion that the
Reform Act's review provision does not apply to challenges to INS's
practices and procedures in administering the SAW program.
    Finally, we note that had Congress intended the limited review
provisions of 9210(e) of the INA to encompass challenges to INS procedures
and practices, it could easily have used broader statutory language.
Congress could, for example, have modeled 9210(e) on the more expansive
language in the general grant of district court jurisdiction under Title II
of the INA by channeling into the Reform Act's special review procedures
"all causes .9.9. arising under any of the provisions" of the legalization
program.  66 Stat. 230, 8 U.9S.9C. 91329.  It moreover could have modeled
9210(e) on 38 U.9S.9C. 9211(a), which governs review of veterans' benefits
claims, by referring to review "on all questions of law and fact" under the
SAW legalization program.
    Given Congress' choice of statutory language, we conclude that
challenges to the procedures used by INS do not fall within the scope of
9210(e).  Rather, we hold that 9210(e) applies only to review of denials of
individual SAW applications.  Because respondents' action does not seek
review on the merits of a denial of a particular application, the District
Court's general federal question jurisdiction under 28 U.9S.9C. 91331 to
hear this action remains unimpaired by 9210(e).

NV
D    Petitioners place their principal reliance on our decision in Heckler
v. Ringer, 466 U.9S. 602 (1984).  The four respondents in Ringer wanted to
establish a right to reimbursement under the Medicare Act for a particular
form of surgery that three of them had undergone and the fourth allegedly
needed.  They sought review of the Secretary's policy of refusing
reimbursement for that surgery in an original action filed in the District
Court, without exhausting the procedures specified in the statute for
processing reimbursement claims.  The District Court dismissed the case for
lack of jurisdiction because the essence of the complaint was a claim of
entitlement to payment for the surgical procedure.  With respect to the
three respondents who had had the surgery, we concluded that "it makes no
sense" to construe their claims "as anything more than, at bottom, a claim
that they should be paid for their BCBR [bilateral carotid body resection]
surgery," id., at 614, since success in their challenge of the Secretary's
policy denying reimbursement would have the practical effect of also
deciding their claims for benefits on the merits.  "Indeed," we noted, "the
relief that respondents seek to redress their supposed `procedural'
objections is the invalidation of the Secretary's current policy and a
`substantive' declaration from her that the expenses of BCBR surgery are
reimbursable under the Medicare Act."  Ibid.  Concluding that respondents'
judicial action was not "collateral" to their claims for benefits, we thus
required respondents first to pursue their administrative remedies.  In so
doing, we found it significant that respondents, even if unsuccessful
before the agency, "clearly have an adequate remedy in 9405(g) for
challenging [in the courts] all aspects of the Secretary's denial of their
claims for payment for the BCBR surgery."  Id., at 617. {13}
    Unlike the situation in Heckler, the individual respondents in this
action do not seek a substantive declaration that they are entitled to SAW
status.  Nor would the fact that they prevail on the merits of their
purportedly procedural objections have the effect of establishing their
entitlement to SAW status.  Rather, if allowed to prevail in this action,
respondents would only be entitled to have their case files reopened and
their applications reconsidered in light of the newly pre scribed INS
procedures.
    Moreover, unlike in Heckler, if not allowed to pursue their claims in
the District Court, respondents would not as a practical matter be able to
obtain meaningful judicial review of their application denials or of their
objections to INS procedures notwithstanding the review provisions of
9210(e) of the amended INA.  It is presumable that Congress legislates with
knowledge of our basic rules of statutory construction, and given our
well-settled presumption favoring interpretations of statutes that allow
judicial review of administrative action, see Bowen v. Michigan Academy of
Family Physicians, 476 U.9S. 667, 670 (1986), coupled with the limited
review provisions of 9210(e), it is most unlikely that Congress intended to
foreclose all forms of meaningful judicial review.
    Several aspects of this statutory scheme would preclude review of
respondents' application denials if we were to hold that the District Court
lacked jurisdiction to hear this challenge.  Initially, administrative or
judicial review of an agency decision is almost always confined to the
record made in the proceeding at the initial decisionmaking level, and one
of the central attacks on INS procedures in this litigation is based on the
claim that such procedures do not allow applicants to assemble adequate
records.  As the District Court found, because of the lack of recordings or
transcripts of LO interviews and the inadequate opportunity for SAW
applicants to call witnesses or present other evidence on their behalf, the
administrative appeals unit of the INS, in reviewing the decisions of LOs
and regional processing facilities, and the courts of appeals, in reviewing
SAW denials in the context of deportation proceedings, have no complete or
meaningful basis upon which to review application determinations.
    Additionally, because there is no provision for direct judicial review
of the denial of SAW status unless the alien is later apprehended and
deportation proceedings are initiated, most aliens denied SAW status can
ensure themselves review in courts of appeals only if they voluntarily
surrender themselves for deportation.  Quite obviously, that price is
tantamount to a complete denial of judicial review for most undocumented
aliens.
    Finally, even in the context of a deportation proceeding, it is
unlikely that a court of appeals would be in a position to provide
meaningful review of the type of claims raised in this litigation.  To
establish the unfairness of the INS practices, respondents in this case
adduced a substantial amount of evidence, most of which would have been
irrelevant in the processing of a particular individual application.  Not
only would a court of appeals reviewing an individual SAW determination
therefore most likely not have an adequate record as to the pattern of INS'
allegedly unconstitutional practices, but it also would lack the
factfinding and record-developing capabilities of a federal district court.
As the American Bar Association as amicus points out, statutes that provide
for only a single level of judicial review in the courts of appeals "are
traditionally viewed as warranted only in circumstances where district
court factfinding would unnecessarily duplicate an adequate administrative
record--circumstances that are not present in `pattern and practice' cases
where district court factfinding is essential [given the inadequate
administrative record]."  Brief for American Bar Association as Amicus
Curiae 7.  It therefore seems plain to us, as it did to the District Court
and the Court of Appeals, that restricting judicial review to the courts of
appeals as a component of the review of an individual deportation order is
the practical equivalent of a total denial of judicial review of generic
constitutional and statutory claims.
    Decision in this case is therefore supported by our unanimous holding9
{14} in Bowen, supra.  In that case we rejected the Government's contention
that two sections of the Social Security Act, 42 U.9S.9C. 9301 et seq.
(1982 ed.), barred judicial review of the validity of a regulation
governing the payment of Medicare benefits.  We recognized that review of
individual determinations of the amount due on particular claims was
foreclosed, but upheld the collateral attack on the regulation itself,
emphasizing the critical difference between an individual "amount
determination" and a challenge to the procedures for making such
determinations:

E"The reticulated statutory scheme, which carefully details the forum and
limits of review of `any determination . . . of . . . the amount of
benefits under part A,' 42 U.9S.9C. 91395ff(b)(1)(C) (1982 ed., Supp. II),
and of the `amount of . . . payment' of benefits under Part B, 42 U.9S.9C.
91395u(b)(3)(C), simply does not speak to challenges mounted against the
method by which such amounts are to be determined rather than the determi
nations themselves.  As the Secretary has made clear, `the legality,
constitutional or otherwise, of any provision of the Act or regulations
relevant to the Medicare Program' is not considered in a `fair hearing'
held by a carrier to resolve a grievance related to a determination of the
amount of a Part B award.  As a result, an attack on the validity of a
regulation is not the kind of administrative action that we described in
Erika as an `amount determination' which decides `the amount of the
Medicare payment to be made on a particular claim' and with respect to
which the Act impliedly denies judicial review.  456 U.9S., at 208."  476
U.9S., at 675-676 (emphasis in original).
F

Inherent in our analysis was the concern that absent such a construction of
the judicial review provisions of the Medicare statute, there would be "no
review at all of substantial statutory and constitutional challenges to the
Secretary's administration of Part B of the Medicare program."  Id., at
680.
    As we read the Reform Act and the findings of the District Court,
therefore, this case is controlled by Bowen rather than by Heckler.  The
strong presumption in favor of judicial review of administrative action is
not overcome either by the language or the purpose of the relevant
provisions of the Reform Act.
    The judgment of the Court of Appeals is affirmed.
GIt is so ordered.


T
 
 
 
 
 

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1
    9Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat.
3359.

2
    9Prior to November 6, 1986, the enactment date of the Reform Act, the
employment of undocumented aliens did not violate federal law.  See 66
Stat. 228, as amended, 8 U.9S.9C. 91324(a) (1982 ed.) (providing that "for
the purposes of this section [criminalizing the bringing in and harboring
of aliens not lawfully entitled to enter and reside in the United States]
employment (including the usual and normal practices incident to
employment) shall not be deemed to constitute harboring").  Section 101 of
the Reform Act, however, authorized both civil and criminal penalties
against employers who hire unauthorized aliens either knowingly or without
complying with specified verification requirements.  See 8 U.9S.9C. 91324a.
3
    9Section 121 of the Reform Act amended several federal programs to deny
benefits to aliens who could not verify their lawful status.  See Pub. L.
99-603, 100 Stat. 3384-3394.

4
    9The House Committee noted the purpose behind the legalization programs
in the Reform Act:
    "The United States has a large undocumented alien population living and
working within its borders.  Many of these people have been here for a
number of years and have become a part of their communities.  Many have
strong family ties here which include U.9S. citizens and lawful residents.
They have built social networks in this country.  They have contributed to
the United States in myriad ways, including providing their talents, labor
and tax dollars.  However, because of their undocumented status, these
people live in fear, afraid to seek help when their rights are violated,
when they are victimized by criminals, employers or landlords or when they
become ill.
    "Continuing to ignore this situation is harmful to both the United
States and the aliens themselves.  However, the alternative of intensifying
interior enforcement or attempting mass deportations would be both costly,
ineffective, and inconsistent with our immigrant heritage.
    "The Committee believes that the solution lies in legalizing the
statuts [sic] of aliens who have been present in the United States for
several years, recognizing that past failures to enforces [sic] the
immigration laws have allowed them to enter and to settle here.
    "This step would enable INS to target its enforcement efforts on new
flows of undocumented aliens and, in conjunction with the proposed employer
sanctions programs, help stem the flow of undocumented people to the United
States.  It would allow qualified aliens to contribute openly to society
and it would help to prevent the exploitation of this vulnerable population
in the work place."  H.9R. Rep. No.999--682, pt.91, p.949 (1986).

5
    9Senator Simpson, one of the sponsors of the Reform Act, described the
vulnerability of this "subculture of human beings who are afraid to go to
the cops, afraid to go to a hospital, afraid to go to their employer who
says `One peep out of you, buster, and you are down the road.'9"  132 Cong.
Rec. 33222 (1986).

6
    9The full text of 9210(e) of the INA, as set forth in 8 U.9S.9C.
91160(e), reads as follows:
H
"(e) Administrative and judicial review
    "(1) Administrative and judicial review
    "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.
H
"(2) Administrative review
    "(A) Single level of administrative appellate review
    "The Attorney General shall establish an appellate authority to provide
for a single level of administrative appellate review of such a
determination.
    "(B) Standard for review
    "Such administrative appellate review shall be based solely upon the
administrative record established at the time of the determination on the
application and upon such additional or newly discovered evidence as may
not have been available at the time of determination.
H
"(3) Judicial review
    "(A) Limitation to review of exclusion or deportation
    "There shall be judicial review of such a denial only in the judicial
review of an order of exclusion or deportation under section 1105a of this
title.
    "(B) Standard for judicial review
    "Such judicial review shall be based solely upon the administrative
record established at the time of the review by the appellate authority and
the findings of fact and determinations contained in such record shall be
conclusive unless the applicant can establish abuse of discretion or that
the findings are directly contrary to clear and convincing facts contained
in the record considered as a whole."

7
    9The complaint alleges that this respondent has the following interest
in the litigation:
    "Plaintiff MIGRATION AND REFUGEE SERVICES OF THE ROMAN CATHOLIC DIOCESE
OF PALM BEACH ("RCDPB") is a component of the Roman Catholic Diocese of
Palm Beach.  Its principle [sic] place of business is West Palm Beach,
Florida.  Many members of parishes within the diocese of Palm Beach are
foreign agricultural workers who worked at least 90 man-days in the 1985
and 1986 season, and are therefore potentially eligible for the SAW
program.  In addition, Plaintiff MIGRATION AND REFUGEE SERVICES OF THE
RCDPB has been designated by Defendant INS as a "Qualified Designated
Entity" (QDE) under IRCA.  QDE's are authorized to provide counseling to
aliens about the legalization program, to assist them in filling out
applications and obtain documentation, and receive applications for
adjustment to temporary resident status.  Under IRCA, applications filed
with a QDE are deemed to have been filed as of the same date with INS, to
whom the QDE's forward the applications for processing.  QDE's are
authorized to receive fees from applicants and reimbursement from INS for
counseling and filing services.  The actions of Defendants complained of in
this case discourages otherwise eligible SAW applicants from seeking
counseling and filing of their applications by Plaintiffs MIGRATION AND
REFUGEE SERVICES OF THE RCDPB and prevents them from fulfilling its basic
mission of assisting aliens to qualify under IRCA."  App. 24.

8
    9Haitian Refugee Center, Inc. v. Nelson, 649 F. Supp. 864, 873 (SD Fla.
1988).  The District Court also found that both of the organizational
plaintiffs had standing.  It explained:
    "HRC has alleged that the `[d]efendants' refusal to recognize that such
persons [HRC's members] are eligible under IRCA both directly and
indirectly injures HRC.  It directly injures the organization because it
makes HRC's work of assisting the Haitian refugee community more difficult
and results in the diversion of HRC's limited resources away from members
and clients having other urgent needs.'  Complaint at 917.  HRC also
alleges an indirect injury through the adverse effect upon its members.
Id.  The plaintiff MRS is a QDE under IRCA authorized to provide counseling
to aliens about the legalization process and to assist them in obtaining
documentation.  It also receives applications and fees from aliens and is
reimbursed by the INS for counseling and filing services.  MRS alleges that
the defendants' behavior has discouraged otherwise eligible SAW applicants
from seeking counseling and/or filing their claims and MRS is prevented
from fulfilling its basic mission of assisting aliens to qualify under
IRCA."  Id., at 875.

9
    9Although many employers did not maintain payroll records for seasonal
workers, some LOs routinely denied applications that were not supported by
such records.  The District Court found that the INS maintained a secret
list of employers whose supporting affidavits were routinely discredited
without giving applicants an opportunity to corroborate the affiants'
statements.  See id., at 871-872.  The District Court moreover found that
interpreters were not provided at LO interviews, even though many Haitian
applicants spoke only Creole and no personnel in a particular LO understood
that language, and that no recordings or transcripts of LO interviews were
made, despite the fact that the interview "is the only face to face
encounter between the applicant and the INS allowing the INS to assess the
applicant's credibility."  See id., at 869.

10
    9The preliminary injunction provides in part:
    "(3) In those cases which the INS denied based in whole or in part on
the fact that the applicant failed to submit payroll records or piecework
receipts, the INS shall vacate the denials and reconsider the cases in
light of the proper standard of proof which will require the government to
present evidence to negate the just and reasonable inference created by the
affidavits and other documents submitted by the applicant;
    "(4) The INS shall vacate those denials issued by the Legalization
Offices during the period June 1, 1987, to March 29, 1988, unless the
government can show that the applications were clearly frivolous based upon
the documentation submitted by the applicant or that the applicant admitted
fraud or misrepresentation in the application process."  Id., at 881.

11
    9The preliminary injunction entered by the District Court ordered the
INS to institute the following procedures:
    "(6) The Legalization Offices shall maintain competent translators, at
a minimum, in Spanish and Haitian Creole, and translators in other
languages shall be made available if necessary;
    "(7) The INS shall afford the applicants the opportunity to present
witnesses at the interview including but not limited to growers, farm labor
contractors, co-workers, and any other individuals who may offer testimony
in support of the applicant;
    "(8) The interviewers shall be directed to particularize the evidence
offered, testimony taken, credibility determinations, and any other
relevant information on the form I-696."  Ibid.

12
    9As petitioners state in their brief:
    "The Act declares in all-encompassing terms: `There shall be no
administrative or judicial review of a determination respecting an
application for adjustment of status under this section except in
accordance with this subsection.'  8 U.9S.9C. 1160(e)(1).  In the following
paragraphs, the subsection spells out the precise procedures intended to
provide the exclusive method of review.  The subsection requires the
establishment of a `a single level of administrative appellate review of
such a determination,' and unequivocally states that `[t]here shall be
judicial review of such a denial [of a SAW application] only in the
judicial review of an order of exclusion or deportation under section 1105a
of this title.'  8 U.9S.9C. 1160(e)(2)(A) and (e)(3)(A).  Section 1105a(a),
in turn, provides that a petition for review in the court of appeals `shall
be the sole and exclusive procedure for[9] the judicial review of all final
orders of deportation,' while exclusion orders are reviewable exclusively
in habeas corpus proceedings.  8 U.9S.9C. 1105a(b).  Congress could hardly
have chosen clearer or more forceful language to express its intention to
preclude any judicial review of a `determination respecting an application'
for SAW status, other than in the specified review proceedings applicable
to individual deportation or exclusion orders.
    "In light of IRCA's clear directions, district courts are not free to
draw on their federal question jurisdiction under 28 U.9S.9C. 1331, or on
their jurisdiction granted under the immigration laws, 8 U.9S.9C. 1329, to
entertain collateral attacks on procedures used to adjudicate SAW
applications.  The exercise of either source of general power is barred by
the precise and specific language of IRCA."  Brief for Petitioners 11-13
(footnotes omitted).

13
    9The Court in Heckler also concluded that the fourth respondent's claim
was "essentially one requesting the payment of benefits for BCBR surgery, a
claim cognizable only under 9405(g)," 466 U.9S., at 620, and held that the
"claim for future benefits must be construed as a `claim arising under' the
Medicare Act because any other construction would allow claimants
substantially to undercut Congress' carefully crafted scheme for
administering the Medicare Act."  Id., at 621.

14
    9Justice Rehnquist did not participate in the case.

15
    Justice White joins only Parts I, II, III, and IV of this opinion.





Subject: 89-1332--DISSENT, McNARY v. HAITIAN REFUGEE CENTER, INC.

 


        SUPREME COURT OF THE UNITED STATES


No. 89-1332



AGENE McNARY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, et al.,
PETITIONERS v. HAITIAN REFUGEE CENTER, INC., et al.

Bon writ of certiorari to the united states court ofappeals for the
eleventh circuit

C[February 20, 1991]



A Chief Justice Rehnquist, with whom Justice Scalia joins, dissenting.
B Congress has carefully limited the judicial review available under the
Immigration Control and Reform Act of 1986 (Reform Act) in language which
"he who runs may read."  The Court, with considerable and obvious effort,
finds a way to avoid this limitation, because to apply the statute as
written could bar judicial review of respondents' constitutional claims.
The statute as written is, in my view, constitutional, and there is
therefore no need to rewrite it.

CI
D The relevant provisions of the Reform Act dealing with administrative and
judicial review are found in 8 U.9S.9C. 91160(e):

E"(1) Administrative and judicial review
    "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.

E"(2) Administrative review
    "(A) Single level of administrative appellate review  "The Attorney
General shall establish an appellate authority to provide for a single
level of administrative appellate review of such a determination

O


"(3) Judicial review
    "(A) Limitation to review of exclusion or deportation
    "There shall be judicial review of such a denial only in the judicial
review of an order of exclusion or deportation under section 1105a of this
title."
F

    The first of the quoted sentences states, as clearly as any language
can, that judicial review of a "determination respecting an application for
adjustment of status under this section" may not be had except in
accordance with the provisions of the subsection.  The plain language of
subsection (3)(A) provides that judicial review of a denial may be had only
in connection with review of an order of exclusion or deportation.  The
Court chooses to read this language as dealing only with "direct review of
individual denials of SAW status, rather than as referring to general
collateral challenges to unconstitutional practices and policies used by
the agency in processing applications."  Ante, p.912.  But the accepted
view of judicial review of administrative action generally-even when there
is no express preclusion provision as there is in the present statute--is
that only "final actions" are review able in court.  The Administrative
Procedure Act provides:

E"[F]inal agency action for which there is no other adequate remedy in a
court [is] subject to judicial review.  A preliminary, procedural, or
intermediate agency action or ruling not directly reviewable is subject to
review on the review of the final agency action."  5 U.9S.9C. 9704.
F

    The Court's reasoning is thus a classic non sequitur.  It reasons that
because Congress limited judicial review only of what were in effect final
administrative decisions, it must not have intended to preclude separate
challenges to procedures used by the agency before it issued any final
decision.  But the type of judicial review of agency action which the Court
finds that Congress failed to preclude is a type not generally available
even without preclusion.  In the light of this settled rule, the natural
reading of "determination respecting an application" in 91160(e)
encompasses both final decisions and procedures used to reach those
decisions.  Each of respondents' claims attacks the process used by
Immigration and Naturalization Service (INS) to make a determination
respecting an application.
    We have on several occasions rejected the argument advanced by
respondents that individual plaintiffs can bypass restrictions on judicial
review by purporting to attack general policies rather than individual
results.  For instance, in United States v. Erika, Inc., 456 U.9S. 201
(1982), we found that in the context of the "precisely drawn provisions" of
the Medicare statute, the provision of judicial review for awards made
under Part A of the statute, coupled with the omission of judicial review
for awards under Part B, "provides persuasive evidence that Congress
deliberately intended to foreclose further review of such claims."  Id., at
208 (citations omitted).  Similarly, in Heckler v. Ringer, 466 U.9S. 602
(1984), we addressed a challenge to a ruling issued by the Secretary of
Health and Human Services that precluded payment under Medicare for a
particular medical procedure.  The Medicare Act permits judicial review of
"any claim arising under" the Act, 42 U.9S.9C. 9405(g), (h), only after a
claimant seeks payment and exhausts administrative remedies.  The
plaintiffs contended that their lawsuits challenging the Secretary's
refusal to reimburse the procedure at issue were permissible without
exhausting administrative remedies because they challenged only the
Secretary's "9`procedure' for reaching her decision," not the underlying
decision on their particular claims.  466 U.9S., at 614.  We rejected this
distinction, finding that "it makes no sense to construe the claims .9.9.
as anything more than, at bottom, a claim that they should be paid for
their .9.9. surgery."  Ibid.  This holding was based on the recognition
that a contrary result would allow claimants "to bypass the exhaustion
requirements of the Medicare Act by simply bringing declaratory judgment
actions in federal court before they undergo the medical procedure in
question."  Id., at 621.  We expressly rejected the contention--also urged
by the respondents here--that "simply because a claim somehow can be
construed as `procedural,' it is cognizable in federal district court by
way of federal-question jurisdiction."  Id., at 614.
    It is well settled that when Congress has established a particular
review mechanism, courts are not free to fashion alternatives to the
specified scheme.  See United States v. Fausto, 484 U.9S. 439, 448-449
(1988); Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.9S.
411, 419-422 (1965).  In creating the Reform Act and the SAW program,
Congress balanced the goals of the unprecedented amnesty programs with the
need "to insure reasonably prompt determinations" in light of the
incentives and opportunity for ineligible applicants to delay the
disposition of their cases and derail the program.  The Court's ponderously
reasoned gloss on the statute's plain language sanctions an unwarranted
intrusion into a carefully drafted congressional program, a program which
placed great emphasis on a minimal amount of paperwork and procedure in an
effort to speed the process of adjusting the status of those aliens who
demonstrated their entitlement to adjustment.  "If the balance is to be
struck anew, the decision must come from Congress and not from this Court."
Ringer, supra, at 627.

CII
D The Court bases its conclusion that district courts have jurisdiction to
entertain respondents' pattern and practice allegations in part out of
"respect [for] the `strong presumption that Congress intends judicial
review of administrative action.'9"  Ante, at 14 (quoting Bowen v. Michigan
Academy of Family Physicians, 476 U.9S. 67, 670 (1986)).  This presumption,
however, comes into play only where there is a genuine ambiguity as to
whether Congress intended to preclude judicial review of administrative
action.  In this case two things are evident: First, in drafting the Reform
Act, Congress did not preclude all judicial review of administra tive
action; as detailed earlier, Congress provided for judicial review of INS
action in the courts of appeals in deportation proceedings, and in the
district courts in orders of exclusion.  Second, by enacting such a scheme,
Congress intended to foreclose all other avenues of relief.  Therefore,
since the statute is not ambiguous, the presumption has no force here.
    The Court states that this presumption of judicial review is
particularly applicable in cases raising constitutional challenges to
agency action since respect for the presumption avoids "9`the "serious
constitutional question" that would arise if a federal statute were
construed to deny any judicial forum for a colorable constitutional
claim.'9"  Ante, at 14.  I believe that Congress intended to preclude
judicial review of such claims in this instance, and that in this context
it is permissible for it to do so.
    In the Reform Act, Congress enacted a one-time amnesty program to
process claims of illegal aliens allowing them to obtain status as lawful
residents.  Congress intended aliens to come forward during the limited,
12-month eligibility period because "[t]his is the first call and the last
call, a oneshot deal."  132 Cong. Rec. 33217 (1986) (remarks of Sen.
Simpson).  If an alien failed to file a legalization application within the
12-month period, the opportunity was lost forever.  To further expedite
this unique and unprecedented amnesty program and to minimize the burden on
the federal courts, Congress provided for limited judicial review.
    Given the structure of the Act, and the status of these alien
respondents, it is extremely doubtful that the operation of the
administrative process in their cases would give rise to any colorable
constitutional claims.  "9`An alien who seeks political rights as a member
of this Nation can rightfully obtain them only upon terms and conditions
specified by Congress.  Courts are without authority to sanction changes or
modifications; their duty is rigidly to enforce the legislative will in
respect of a matter so vital to the public welfare.'9"  INS v. Pangilinan,
486 U.9S. 875, 884 (1988) (quoting United States v. Ginsberg, 243 U.9S.
472, 474 (1917)).
    Respondents are undoubtedly entitled to the benefit of those procedures
which Congress has accorded them in the Reform Act.  But there is no reason
to believe that administrative appeals as provided in the Act--which simply
have not been resorted to by these respondents before suing in the District
Court--would not have assured them compliance with statutory procedures.
The Court never mentions what colorable constitutional claims these aliens,
illegally present in the United States, could have had that demand judicial
review.  The most that can be said for respondents' case in this regard is
that it is conceivable, though not likely, that the administrative
processing of their claims could be handled in such a way as to deny them
some constitutional right, and that the remedy of requesting deportation in
order to obtain judicial review is a burdensome one.  We have never held,
however, that Congress may not, by explicit language, preclude judicial
review of constitutional claims, and here, where that body was obviously
interested in expeditiously processing an avalanche of claims from
noncitizens upon whom it was conferring a substantial benefit, I think it
may do so.

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