For cases commencing after April 1, 1997, the exclusivity of the statutory remedy is explicit:
"(9) Consolidation of Issues for Judicial Review.--Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section." 8 U. S. C. §1252(b)(9).
While other sections of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") may be less than exemplars of draftsmanship, this one is crystal clear. It is difficult to see how Congress could have stated exclusivity more clearly. A construction of the IIRIRA to provide other channels of review when review of a final order is available,(4) as the Ninth Circuit construed subsection (f) in the present case, American-Arab Anti-Discrimination Committee v. Reno, 119 F. 3d 1367, 1372 (CA9 1997) ("American-Arab II"), would be contrary to the unmistakable language of subsection (b)(9).
Review of the final order as the exclusive remedy comports with Congress' intent to streamline the deportation process by precluding initial judicial review(5) and provides for meaningful review of all claims. Sections 1105a and 1252 were enacted to preclude initial judicial review and to allow for the completion of the INA's administrative review process. To reach this objective, Congress limited the judicial system's jurisdiction to review of final deportation orders only. Section 1252(g) was enacted to reinforce this preclusion of jurisdiction.
Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 207 (1994) illustrates the appropriate analysis to review statutory schemes that limit initial judicial review. In Thunder Basin, this Court was asked to analyze the Mines Act's judicial review scheme. Id., at 206. The Mines Act gave the Secretary of Labor the authority to enforce compliance with the Act's provisions through civil penalties and other sanctions. Id., at 204. Individuals could challenge the Secretary's enforcement of the Act by seeking review with the Mine Safety and Health Commission ("MSHC"). Ibid. In addition, 30 U. S. C. §816(a)(1) of the act granted exclusive jurisdiction to the Court of Appeals to review challenges to MSHC decisions. Id., at 208.
The Thunder Basin petitioner, however, sidestepped the administrative scheme and made a preemptive strike. Before the Secretary of Labor even attempted to enforce sanctions for Thunder Basin's violation of 30 CFR §40.4, the petitioners filed suit in the federal District Court to prevent the enforcement. Id., at 204-205. The petitioner's employees, pursuant to the requirements of section 813(f) of the Mine Act, had appointed two employees of the United Mine Workers of America Union, who were not employees of the mine, to serve as their representatives. Ibid. Thunder Basin claimed that the designation of these non-employee union representatives violated the principles of collective-bargaining representation under the National Labor Relations Act. Id., at 205. Thunder Basin alleged that requiring it to make the challenge
"through the statutory-review process would violate the Due Process Clause of the Fifth Amendment, since the company would be forced to choose between violating the Act and incurring possible escalating daily penalties, or, on the other hand, complying with the designations and suffering irreparable harm." Ibid. (footnote omitted).
The Court of Appeals for the Tenth Circuit concluded that the district court lacked jurisdiction over the petitioner's claims, and this Court agreed. Id., at 205, 218.
Although the presumption normally favors constructions that allow judicial review of administrative proceedings, 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law §2.11, p. 132, n. 23 (2d ed. 1992), this presumption was overcome in Thunder Basin because Congress' intent to preclude initial judicial review was " 'fairly discernible in the statutory scheme.' " Block v. Community Nutrition Institute, 467 U. S. 340, 351 (1984) (quoting Data Processing Service v. Camp, 397 U. S. 150, 157 (1970)); see Thunder Basin, supra, 510 U. S., at 207.
The Court instructed that
"[w]hether a statute is intended to preclude initial judicial review [should be] determined from the statute's language, structure, and purpose, its legislative history, Block, 467 U. S., at 345, and whether the claims can be afforded meaningful review. See, e.g., Board of Governors of Federal Reserve System v. MCorp Financial, Inc., 502 U. S. 32 (1991); Whitney Bank v. New Orleans Bank, 379 U. S. 411 (1965)." Thunder Basin, 510 U. S., at 207.
Under this analysis, Congress' intent to limit judicial review to final orders of deportation only is apparent.
The INA's statutory scheme as a whole supports the conclusion that Congress intended to preclude initial judicial review. See Block, supra, 467 U. S., at 349. Congress has set up a system of administrative and judicial review that is comprehensive. See generally 8 U. S. C. former §1105a; §1252. The system provides mechanisms for review of all claims insuring that judicial review will not be completely denied, see, e.g., 28 U. S. C. §2347(b)(3), and explicitly designates the appropriate courts for such review. Development of such a comprehensive administrative and judicial review scheme suggests that Congress intended to limit review to final orders of deportation. If sections 1105a and 1252's procedures are not applied to the American-Arab petitioners' claim, this comprehensive system has no real authority over the efficient resolution of immigration matters.
Congress' intent to preclude initial judicial review can also be "inferred . . . from the collective import of legislative and judicial history behind a particular statute." Block, supra, 467 U. S., at 349. When Congress enacted 8 U. S. C. §1105a in 1961, it intended to limit judicial review to final orders of deportation. Soon after section 1105a was enacted, this Court had occasion to interpret the provision and address the purpose behind the new legislation. Foti v. Immigration and Nationalization Service, 375 U. S. 217 (1963). The Court explained that the
"fundamental purpose behind section 106(a) [codified as 8 U. S. C. §1105a] was to abbreviate the process of judicial review of deportation orders in order to frustrate certain practices which had come to the attention of Congress, whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts." Id., at 224.
To prevent attorneys from exploiting the judicial review process and delaying the enforcement of the INA deportation provision, Congress eliminated "the previous initial step in obtaining judicial review--a suit in a District Court-- . . . ." and limited review to the statute's provisions. Id., at 225.
Since 1961, the INA has been modified a number of times. A. Fragomen & S. Bell, Immigration Fundamentals--A Guide to Law and Practice, ch. 1.3, p. 1-5 (4th ed. 1997) (listing amendments to the INA). The goal behind each amendment to the INA has always been to develop "an immigration policy that is both fair and effective . . . ." S. Rep. No. 249, 104th Cong., 2d. Sess., 7 (1996) (emphasis added); see also S. Rep. No. 48, 104th Cong., 1st Sess., 1, 3 (1995) (describing how the immigration system is in disarray and needs to be simplified as applied to criminal aliens in order to be effective); Fragomen & Bell, supra, at 1-6 (explaining that the Immigration Reform and Control Act of 1986 stemmed from an attempt by Congress to "regain control of its border while upholding the traditional American standards of fairness and compassion . . .").
Of particular concern recently has been insuring the enforcement of the INA's provisions. S. Rep. No. 249, at 7. A report on the Immigration Control and Financial Responsibility Act of 1996 explained:
"Some Americans appear to be ambivalent about the enforcement of the Immigration and Nationality Act. This includes a number of judges, perhaps reflecting a tension they feel between their duty to apply the law and their inclination to be humane toward those seeking a better life in this country . . . ." Ibid.
To correct this ambivalence and to achieve a fair and effective procedure for deportation matters, the judiciary committee realized that Congress needed to be explicit regarding its objectives. Ibid. Congress could not have been more explicit with its retroactive application of section 1252(g): "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction . . . ." 8 U. S. C. §1252(g) (emphasis added).
In McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991), the Court reiterated that the presumption is that Congress intended to allow for meaningful judicial review of administrative proceedings. If review of the final order did not provide meaningful review, there would be a presumption against its exclusivity. Recognizing that this Court would avoid statutory interpretation that results in "the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims," id., at 497, Congress left 28 U. S. C. §2347(b)(3) untouched, while it prohibited factfinding pursuant to 28 U. S. C. §2347(c). See 8 U. S. C. §1252(a).
As explained in 8 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure §104.13[3][a], page 104-177 (rev. ed. 1998) when discussing the IIRIRA revisions, "alternative bases of jurisdiction typically exist . . . . [and] it is mistaken to assume that a particular provision of the IIRIRA or the AEDPA terminates all access to the courts simply because a new statute eliminates the traditional route." "Our whole constitutional history shows that Congress generally doesn't intend to violate constitutional rights, and a court ought not readily assume any sudden departure." Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1399 (1953). By leaving section 2347(b)(3) untouched, Congress demonstrated its concern that all meaningful review not be terminated. Congress has ensured the constitutionality of its limitation of jurisdiction to review of final orders of deportations.
Even though the doctrine of exhaustion of administrative remedies delays application of section 2347(b)(3), the petitioners will receive adequate and meaningful review of their claims. The remedy provided by the court of appeals' post-administrative review combined with section 2347(b)(3)'s additional factfinding when necessary, is an adequate and effective means "to test the validity of the order." See 8 U. S. C. §1252(d); 8 U. S. C. former §1105a(c). This Court has found judicial review schemes that similarly delay review until exhaustion of administrative remedies to be adequate and effective. Board of Governors of Federal Reserve System v. MCorp Financial, Inc., 502 U. S. 32, 43-44 (1991).
In Board of Governors, this Court reviewed "the judicial review provisions of the Financial Institutions Supervisory Act of 1966." Id., at 36. The act gave the Board of Governors of the Federal Reserve System ("Board") "substantial regulatory power over bank holding companies and establishe[d] a comprehensive scheme of judicial review of Board actions . . . ." Id., at 37. The specific provision at issue in the litigation was 12 U. S. C. §1818(i)(1) which "precluded judicial review of many Board actions . . . ." Board of Governors, 502 U. S., at 42. MCorp claimed that notwithstanding the statutes' explicit preclusions of jurisdiction, the district court had jurisdiction to issue an injunction pursuant to specific sections of the bankruptcy code and the judicial code. Id., at 39.
This Court held that section 1818(i)(1) precluded such injunctions. Id., at 42-44. The Court primarily relied on the fact that "FISA expressly provides MCorp with a meaningful and adequate opportunity for judicial review . . . ." Id., at 43. MCorp was challenging the "validity of the source of strength regulation." Ibid. The Court concluded that this regulation could be reviewed in the Court of Appeals after the Board concluded that MCorp had violated the regulation. Id., at 43-44. Although finishing the Board proceedings would delay MCorp's judicial review, the Court concluded the review was adequate.
In the present case, we are faced with a procedurally similar challenge. The aliens subjected to deportation proceedings "have filed a federal suit challenging deportation proceedings on First Amendment grounds before a final order of deportation has been issued." American-Arab II, supra, 119 F. 3d, at 1369. Because the immigration statutes require exhaustion of administrative remedies before the Court of Appeals obtains jurisdiction, see 8 U. S. C. former §1105a(c); §1252(d), the aliens' challenge will be delayed until a final order of deportation is issued. Individuals, often with greater rights at stake than in the present case, have their access to federal courts delayed while their administrative or judicial proceedings are completed. For example, state prisoners are typically kept in prison awaiting completion of their state criminal trials and appeals before they seek federal habeas corpus relief, yet this exhaustion is required. 28 U. S. C. §2254(b)(1). As in Board of Governors, this delay does not diminish their ability to obtain meaningful review of their claims.
"A person against whom a deportation proceeding is brought may feel that the proceeding is unjustified and illegal but generally has no right to go to court immediately to stop the proceeding." Gordon, Mailman & Yale-Loehr, supra, §104.02[2], at 104-22. A petitioner will generally only be allowed to forego exhaustion of judicial or administrative remedies if "irreparable injury" would result from the delay. See, e.g., Huffman v. Pursue, Ltd., 420 U. S. 592, 612 (1975).
In American-Arab Anti-Discrimination Committee v. Reno, 70 F. 3d 1045 (CA9 1995) ("American-Arab I"), the Court of Appeal "held that prompt judicial review of the Plaintiffs' claims was required because violation of Plaintiffs' First Amendment interests would amount to irreparable injury that 'cannot be vindicated by post-deprivation remedies.' " American-Arab II, supra, 119 F. 3d, at 1374 (quoting, with original emphasis, American-Arab I, at 1057). As has been demonstrated, the post-deprivation review provided by former section 1105a and section 1252, along with the factfinding procedures of 28 U. S. C. §2347(b)(3), are adequate to resolve the plaintiff's selective enforcement claims. Furthermore, "[t]he mere fact that the litigant is subjected to the burden of undergoing the administrative hearing process does not in itself demonstrate the irreparable harm that would justify injunctive relief." Gordon, Mailman & Yale-Loehr, supra, §104.02[2], at 104-24.
American-Arab I claimed "that the perpetual threat of deportation based on group affiliation constitute[d] the kind of irreparable injury" that required federal district court intervention. American-Arab I, supra, 70 F. 3d, at 1058. Yet issuance of a preliminary injunction would not relieve this threat. A preliminary injunction, even when affirmed on appeal, is not res judicata. See 16B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4009, p. 157 (2d ed. 1996). Even a permanent injunction can be lifted if the precedent on which it is based is no longer good law. See Agostini v. Felton, 138 L. Ed. 2d 391, 409, 117 S. Ct. 1997, 2006 (1997). The preliminary injunction issued in this case, therefore, does not eliminate the threat of deportation. The possibility that the plaintiffs will eventually lose on the merits, and hence the threat of deportation, remains to this day.(6)
The uncertainty can only be resolved by a final judgment in this action or a final order of deportation. The original complaint was filed on April 3, 1987. American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F. 2d 501, 505 (CA9 1991). The present case has been litigated for over ten years and still has not prevented this "irreparable injury" the Court of Appeals claims needs federal court intervention. Had the courts stayed on course, the process would have been much simpler: two administrative hearings, a court of appeal review and, if necessary, additional factfinding in the district court. See supra, at 5-13. Indeed, the plaintiffs' selective enforcement claims would likely have been resolved by now. The uncertainty which is supposedly injuring First Amendment rights has been extended, not eliminated, by the Ninth Circuit's failure to adhere to the INA's provisions.
"Congress' intent in adopting and then amending the INA was to expedite both the initiation and the completion of the judicial review process." Stone v. INS, 514 U. S. 386, 400 (1995). The doctrine of exhaustion of administrative remedies' "underlying aim is to prevent harassing interruptions of the administrative process and to avoid unnecessary or repetitious court reviews." Gordon, Mailman & Yale-Loehr, supra, §104.02[2], at 104-26. In the present case, if the doctrine had been followed we would have avoided a decade-long debate over court jurisdiction, and the plaintiffs would have received both meaningful and timely review of their claims. Instead, the final resolution of the selective enforcement claim is still delayed. Since "in a deportation proceeding . . . as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States," INS v. Doherty, 502 U. S. 314, 323 (1992), this may not cause the plaintiffs lasting injury.
However, "frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures." McKart v. United States, 395 U. S. 185, 195 (1969). Congress recognized this principle when it reaffirmed the appropriate limits on federal courts' jurisdiction. See discussion of 8 U. S. C. §1252(g), supra, at 17. It is now time for this Court to allow the INA's administrative and judicial review to proceed as designed.
The decision of the Court of Appeals for the Ninth Circuit should be reversed and the case remanded with directions to dismiss for lack of subject-matter jurisdiction.
July, 1998
Respectfully submitted,
Kent S. Scheidegger*
Christine M. Murphy
*Attorney of Record
.
.
.
Footnote 4. The question of availability of habeas corpus when review of the final order is precluded by section 1252(a)(2), see, e.g., Jean-Baptiste v. Reno, No. 97-6062 (CA2 May 8, 1998), is not presented by the present case and need not be considered. [GO BACK]
Footnote 5. "Initial judicial review" refers to review conducted before the administrative remedies are exhausted. [GO BACK]
Footnote 6. As noted earlier, plaintiffs support an organization that has declared the United States its enemy and murdered American citizens. See supra, at 2. Their "disparate impact" evidence consisted of a showing that people supporting opponents of the now-defunct Communist regimes in Afghanistan and Nicaragua, which were Cold War enemies of the United States, were not deported. American-Arab II, 119 F. 3d, at 1375-1376. By holding that this made a case, the District Court held, in effect, that the Constitution requires the United States, in the conduct of its foreign affairs, to treat its enemies equally with its allies. Any rational person would conclude that the possibility of this decision eventually being reversed is substantial. [GO BACK]