[ Souter ]
[ O'Connor ]
|Syllabus ||Dissent |
[ Stevens ]
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, Wash ington, 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
JANET RENO, ATTORNEY GENERAL, et al.,
PETITIONERS v. CATHOLIC SOCIAL SERVICES, INC., et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
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 schemeunder which certain aliens unlawfully present in the United States could apply, first, for the status of a temporary resident and then, after a one year wait, for permission to reside permanently. [n.1] 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). [n.2]
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 requirementthat 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 departed 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." [n.3] No. Civ. S-86-1343LKK (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, 1988 [n.4] for class members who "knew of [the INS's] unlawful regulation and thereby concluded that they were ineligible for legalization and by reason of that conclusion did not file an application." [n.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. [n.6] No. Civ. S-86-1343 LKK (ED Cal.) (Record, Doc. No. 187, 189). The INS appealed all three of the remedial orders. [n.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 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). [n.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 Act's 12 month application period, the INS modified its reentry policy by issuing two new regulations. [n.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 LULAC plaintiffs then amended their complaint, they pressed their claim that 8 CFR §245a.2(b)(8), 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." [n.10] No. 87-4757%WDK (JRx) (CD Cal. July 15,1988) (App. 216).
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, [n.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. [n.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 12 month application period, the 12 month limit being,it maintained, a substantive statutory restriction on relief beyond the power of a court to alter.
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 Courts. [n.13] Catholic Social Services, Inc. v. Thornburgh, 956 F. 2d 914 (1992). We were prompted to grant certiorari, 505 U. S. ___ (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.
The Reform Act not only sets the qualifications for obtaining temporary resident status, but 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 determinations. 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. § 1105a]"; under §1105a, 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), [n.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. [n.15] We call the right tojudicial 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 [n.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 of line with our decision in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), 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 Act. [n.17] There, as 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 embodies 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," [n.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 challenge 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 flow[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. [n.19] 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, 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 hetook the affirmative steps that he could take before the INS blocked his path by applying the regulation to him. [n.20]
Ordinarily, of course, that barrier would appear when the INS formally denied the alien's application on theground 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 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 of1986 (Legalization Manual). [n.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 occurs at the front desk of an INS office, it has come to be called "front desking." [n.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. [n.23] See n. 26, infra.
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. [n.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 settled presumption favoring interpretations of statutes that allow judicial review of administrative action," McNary, 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 she was front desked, [n.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, [n.26] thetestimony is limited to such general assertions; none of the affiants refers to any specific incident that we can identify as an instance of front desking. [n.27]
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. [n.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 respective District Courts for proceedings to determine which class members were front desked. [n.29]
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistentwith this opinion.
It is so ordered.
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)(1) 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)(1)(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)(1) (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 is later." § 1255a(a)(1)(B); see § 1255a(e)(1) (providing further relief for certain aliens "apprehended before the beginning of the application period").
3 The CSS lawsuit originally challenged various aspects of the INS'sadministration 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).
5 The order also required the INS to identify all class members whose applications had been denied or recommended for denial on the basis ofthe 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).
7 The Catholic Social Services 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.
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 I-94, Arrival Departure Record." By negative implication, an alien would be rendered ineligible by an entry that was documented on an I-94 form. An entry is documented on an I-94 form when it occurs through a normal, official port of entry, at which an alien must present some valid looking 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.
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 LULAC 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 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).
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.
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 withdeportation 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 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).
17 The 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 proceeding 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.
18 We 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 Act Reorganization 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.
19 Justice 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 3. Even if this is true, however, we do not see how sucha "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 Florida Chapter of Associated General Contractors of America v. Jacksonville, 508 U. S. ___ (1993), the factual and legal setting of which Justice Stevens appears to equate with that of the present cases, see post, at 6-7. 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 ___ (slip op., at 2) (internal quotation marks omitted), thus providing an 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 9; and we think the mere fact that she may have heard of the invalid regulations through a QDE, a private attorney, or "word of mouth," post, at 4, 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 ___ (slip op., at 9); 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 5. 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 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 17-20 (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 6 (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.
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.
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 fordealing 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 INS points to, however, is not the class definition, which is much broader, see supra, at 4; 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 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 § 1255(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).
25 In LULAC, the one named individual plaintiff who represents the subclass challenging the INS' 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 I-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, Ex. H, 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 I 94 after January 1, 1982"); App. 200 (affidavit of Marc Van Der Hout) (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. He recounts: "[I]n August  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 Hout). The significance of this incident is unclear, however, since there is no way 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 front desking 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 front desking policy was nevertheless a substantial cause of their failure not 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.
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.