The Immigration and Nationality Act ("INA") establishes the procedures for the deportation of aliens in this country. See generally 8 U. S. C. §1101 et seq. The Act also constructed a comprehensive administrative and judicial review scheme for the review of deportation proceedings.
"In general, removal determinations are initially made by immigration judges, and are appealable to the BIA [Board of Immigration Appeals]. The BIA, in turn, renders the final administrative decision with regard to all matters relating to removal proceedings, including eligibility for relief from removal, detention, and parole and bond determinations." A. Fragomen & S. Bell, Immigration Fundamentals--A Guide to Law and Practice, ch. 8.1, p. 8-1 (4th ed. 1997).
Upon completion of this administrative review process, the Act then permits review of the final order of deportation in the court of appeals. 8 U. S. C. former §1105a; §1252.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") has recently amended the INA. The IIRIRA, which was enacted as part of the Omnibus Appropriations Act of 1997, Pub. L. No. 104-208, 110 Stat. 3009-575, repeals the prior judicial review statute, 8 U. S. C. §1105a, and replaces it with 8 U. S. C. §1252. Subdivision (g) of the new section 1252 explicitly limits the jurisdiction of the federal courts. The Court of Appeals believed that application of this provision according to its plain meaning would prevent the plaintiffs in the present case from receiving meaningful review of their selective enforcement claims. Properly understood, however, the INA's administrative and judicial review scheme, both before and after the amendments, provides for complete review of all claims upon the issuance of the final order of deportation.
Part of the Court of Appeals' interpretive difficulty stemmed from the differing effective dates of the subdivisions of 8 U. S. C. §1252. See American-Arab Anti-Discrimination Committee v. Reno, 119 F. 3d 1367, 1372 (CA9 1997) ("American-Arab II"). Subdivision (g) of that section, titled "Exclusive jurisdiction," provides:
"Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter."
Congress instructed that the subsection should apply immediately. Section 306(c)(1) of the IIRIRA states that:
"subsection (g) of section 242 of the Immigration and Nationality Act (as added by subsection(a)), shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under such Act." Pub. L. No. 104-302, 110 Stat. 3009-612.
The rest of the act, however, does not apply until April 1, 1997, see Pub. L. No. 104-208, §309(a), 110 Stat. 3009-625 (1997),(2)
and cases pending on the effective date are "grandfathered." See infra, at 8.
If the term "this section" in subdivision (g) was applied literally, and if the effective date provisions are applied as written, illogical results would follow. If the remedies in subdivisions (a) through (f) of section 1252 are the only remedies, but those subdivisions do not apply to cases pending when IIRIRA was enacted, then there would be no judicial review for those cases. The Court of Appeals chose to break the second horn of this dilemma, disregarding the plain language of Congress' effective date mandate, and "incorporating" other subdivisions of section 1252 into the "retroactive" subdivision (g). There is a simpler solution that does less violence to the statutory language: break the first horn of the dilemma. Amicus submits that the term "this section" in subdivision (g) should be understood to refer to whichever judicial review section governs the proceeding in question, whether it be present section 1252 or its predecessor, former section 1105a.
The present case is a "transitional case." Section 309(c)(1) of the IIRIRA provides:
" . . . in the case of an alien who is in exclusion or deportation proceedings as of the title III-A effective date--
"(A) the amendments made by this subtitle shall not apply, and
"(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments."(3)
Deportation proceedings were begun against the plaintiffs in January 1987. American-Arab II, supra, 119 F. 3d, at 1370. Soon after, the plaintiffs filed in the district court a federal action contesting "the deportation proceeding on First Amendment grounds." Ibid. Since that time, the First Amendment claim and the appropriateness of the various courts' jurisdiction have been extensively litigated. See American-Arab Anti-Discrimination Committee v. Reno, 70 F. 3d 1045, 1066 (CA9 1995) ("American-Arab I"). Technically, then, the deportation proceedings are still pending. This case is governed by 8 U. S. C. former §1105a, as modified by IIRIRA §309(c)(4). As discussed further in part II, infra, 8 U. S. C. §1252(g) makes those review procedures exclusive.
The aliens' ability to litigate their claims on review of the final order of deportation follows from the principles in INS v. Chadha, 462 U. S. 919 (1983). In that case, Chadha's constitutional challenge to the congressional veto was beyond the administrative agency's authority. Hearings had been conducted and an immigration judge had suspended Chadha's deportation. Id., at 923-924. A report of the suspension was forwarded to Congress, as it had the power to veto the determination under section 244(c)(2) of the INA. Id., at 924-925. Congress ultimately vetoed the suspension, and the immigration judge reopened the deportation proceedings. Id., at 928. Chadha challenged the constitutionality of section 244(c)(2). Ibid. However, the immigration judge ruled that he had no authority to reach this question. Ibid. On appeal to the Board of Immigration Appeals ("BIA"), Chadha again challenged section 244(c)(2). Like the immigration judge in the prior proceeding, the BIA also held it was without authority to rule on the constitutionality of an act of Congress. Ibid.
Pursuant to 8 U. S. C. former §1105a(a), Chadha sought review in the Court of Appeals, where his constitutional challenge was resolved. Chadha, 462 U. S., at 928. Both Houses of Congress appearing as amicus curiae challenged the Court of Appeals' jurisdiction over Chadha's claim. Id., at 937. Amicus claimed that "the one-House veto authorized by §244(c)(2) takes place outside of the administrative proceedings," and therefore is not encompassed in section 1105a's grant of jurisdiction. Ibid. Although past authority could be interpreted as requiring a direct attack on the deportation order, the Court did not accept this argument. Id., at 937-938. The Court recognized that "Chadha's deportation stands or falls on the validity of the challenged veto." Id., at 938. The Court then concluded that a final order of deportation " 'includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing.' " Id., at 937 (emphasis added).
Resolution of the American-Arab plaintiffs' selective enforcement claim will determine whether the plaintiffs can be removed from the United States. Like Chadha's claim, plaintiffs' deportation "stands or falls" on the validity of the claim. The final order of deportation is thus contingent on the resolution of the challenge and, accordingly, is encompassed in both section 1252 and former section 1105a's judicial review schemes.
The majority of claims affecting an order of deportation can be resolved in the administrative review process under former section 1105a or section 1252. However, as this Court has counseled, "[c]onstitutional questions obviously are unsuited to resolution in administrative hearing procedures . . . ." Califano v. Sanders, 430 U. S. 99, 109 (1977). Under Chadha, the Court of Appeals, on review of the deportation order, has jurisdiction over all matters that effect the validity of the final order of deportation, regardless of whether the BIA could or did consider them.
Both former section 1105a and section 1252 incorporate the procedures of chapter 158 of title 28. In that chapter, 28 U. S. C. §2347 establishes a mechanism for review of claims not addressed during the administrative review process. Section 2347(b) provides:
"When the agency has not held a hearing before taking the action of which review is sought by the petition, the court of appeals shall determine whether a hearing is required by law. After that determination, the court shall--
"(1) remand the proceedings to the agency to hold a hearing, when a hearing is required by law;
"(2) pass on the issues presented, when a hearing is not required by law and it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or
"(3) transfer the proceedings to a district court for the district in which the petitioner resides or has its principal office for a hearing and determination as if the proceedings were originally initiated in the district court, when a hearing is not required by law and a genuine issue of material fact is presented."
The section requires the Court of Appeals to first determine "whether a hearing is required by law." 28 U. S. C. §2347(b). This determination directs where the court will remand the case for additional factfinding. When an agency has failed to properly develop the record for an issue that it is required to hear, the court can remand the case to the agency for correction of this error. §2347(b)(1). When an agency is not required to conduct a hearing and "a genuine issue of material fact" is raised, the Court of Appeals can then turn to the district court for additional factfinding. §2347(b)(3). To implement the Chadha principle, this section must be understood as applying separately to the various claims. That is, when the agency cannot consider a constitutional attack, an administrative hearing is not "required by law" as to that claim and district court factfinding is appropriate.
"An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U. S. C. §1229a(a)(1). These proceedings will normally focus on the violations charged. In the present case, the majority of the violations that have been charged are routine status violations. 8 U. S. C. §§1251(a)(2) and 1251(a)(9). For example, the plaintiffs have been charged with violations of 8 U. S. C. §1251(a)(2) for overstaying their visas. American-Arab I, supra, 70 F. 3d, at 1053. The hearing that is required to be conducted for the resolution of this claim will focus on the visa and evidence that the individuals overstayed its length. If the proceedings before the immigration judge and the appeal to the BIA fail to develop a record sufficient to establish the validity of the visa violations, then the Court of Appeals would be required to remand the case to the BIA for further development of these facts.
However, because INS v. Chadha has developed such a broad definition of review of final orders, some questions will be beyond the agency's authority. For example, the proceedings for the six aliens charged with status violations will focus on the actual violations as it is these charges that decide if the aliens are deportable. Finding the facts underlying the selective enforcement claim, however, is not necessary for the resolution of these violations, and therefore, the agency is not required by law to hold a hearing to find these facts. It is this situation that section 2347(b)(3) anticipated. If the administrative review process has failed to develop "a genuine issue of material fact" that affects the final order of deportation, the district court can then conduct additional factfinding.
The Court of Appeals rejected the argument that transfer to the district court was available. It believed that 8 U. S. C. §1252(b)(4)(A) and its predecessor, 8 U. S. C. former §1105a(a)(4), precluded such a transfer. The new section provides that the Court of Appeals "shall decide the petition only on the administrative record . . . " with exceptions not applicable here, and the former section is substantially the same.
To be sure, both the former and present provisions, read in isolation, would seem to have the meaning the Court of Appeals gives them. Yet these provisions must be read in light of the section as a whole and the Chadha principle. Congress unambiguously required "all questions of law and fact" to be litigated "in judicial review of a final order under" section 1252. 8 U. S. C. §1252(b)(9). Congress thought exclusivity of the remedy was so important that it made subsection (g) alone applicable to pending cases. IIRIRA §306(c)(1). When combined with the presumption that all claims must be reviewable at some point, see infra, at 18, these provisions indicate strongly that all claims against deportation should be cognizable on review of the final order.
In light of these considerations, the requirement that the petition be decided only on the administrative record should be understood as limited to those claims which the alien could present to the agency. For other claims, section 2347(b) remains available. This interpretation is reinforced by 8 U. S. C. §1252(a)(1), which specifically forbids use of subdivision (c) of section 2347. If Congress had intended to forbid invocation of both subdivisions (b) and (c), it would have been simple enough to say so. The omission of (b) while forbidding (c) implies that (b) remains available.
Congress intended that review of the final order be the complete and exclusive remedy. The interpretation of section 1252 that amicus proposes, while admittedly a bit of a stretch, does far less violence to the overall statutory language than the Court of Appeals' contortion.
.
.
Footnote 2. Section 309(a): IN GENERAL. --Except as provided in this section and sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) of this division, this subtitle and the amendments made by this subtitle shall take effect on the first day of the first month beginning more than 180 days after the enactment of the Act (in this title referred to as the "title III-A effective date"). [GO BACK]
Footnote 3. Paragraphs (2), (3), and (4) provide the Attorney General with options to apply the new act and for modifications to the old section. [GO BACK]