Judicial Review and Administrative Remedies

New York Law Journal (p. 3, col. 1)

August 28, 1995

THE RIGHT TO JUDICIAL review of a decision in immigration law, as in other areas of administrative law, often involves issues of exhaustion of administrative remedies and ripeness. Perhaps because of the Byzantine character of immigration law,*1 these important limits on court jurisdiction are sometimes hard to apply in individual cases. The difficulty may also lie in the imbalance between the resources we are willing to allocate to immigration proceedings and the human interests at stake.

Take this question: May an alien whose application for adjustment of status in the United States to lawful permanent resident was denied by the Immigration and Naturalization Service (INS), obtain review of that decision in a U.S. district court? Implicated in several 1995 cases, this question was only addressed seriously in one. Overwhelmingly, reasoned decisions rendered earlier in the federal courts have denied such review, but the issue awaits better analysis.

No Double Judicial Review

A good starting point is Cruz v. INS,*2 a district court decision handed down on Jan. 11, which carefully reviews much of the case law. In Cruz, the INS had denied the plaintiff's application for adjustment of status to lawful permanent residence (the so-called ``green card''), and plaintiff sued for a declaratory judgment and an injunction against deportation proceedings. The court dismissed for lack of subject-matter jurisdiction on the ground that plaintiff failed to exhaust her administrative remedies. It explained that she could renew her application for adjustment in a deportation proceeding and, in turn, appeal to the Board of Immigration Appeals (BIA) and seek review by petition to a court of appeals; she could not have judicial review twice -- once by suit in the district court, and again by petition from the BIA decision.

Acknowledging a split in the circuits, the Cruz court was bound by the 1971 decision of its own court of appeals in Massignani v. INS.*3 There, the issue arose the same way. The INS had denied Massignani's application because she had publicly praised the actions of anti-war demonstrators in destroying Selective Service records. The order of denial directed her to leave the United States in 30 days or face deportation proceedings where she could renew her adjustment application. Instead Massignani sued to overturn the denial and to enjoin any deportation proceeding. The district court found the suit premature, and the court of appeals agreed, noting that if the adjustment were again denied by the immigration judge, an unsuccessful appeal to the BIA would give the court ``an opportunity, with the benefits of a full and complete record from the deportation hearing and the Board of [Immigration] Appeals, to determine whether there has been an abuse of discretion in considering plaintiff's application.'' The decision was without prejudice to plaintiff's renewal of the suit if she were injured by a delay in bringing the deportation proceeding.

Two other appellate courts have reached the same result, one, the D.C. court, in a thoughtful decision written by then Circuit Judge Ruth Bader Ginsburg in Randall v. Meese.*4 The dissenting judge pointed out an inadequacy of the administrative remedy to be exhausted, in that it delays the alien from achieving lawful permanent residence and qualifying for naturalization.*5 But delay alone is no longer in judicial favor as a reason for failing to exhaust an administrative remedy.*6

There is also Jain v. INS,*7 a Second Circuit decision requiring the unsuccessful applicant for adjustment to undergo deportation proceedings in order to exhaust administrative remedies. More precisely, Jain held that the exhaustion requirement was not a denial of due process, saying, ``We consider this dual opportunity to present a section 245 application to provide ample process, particularly in light of the discretionary nature of section 245 relief.''*8 It had little sympathy with the argument that Jain should not have to risk deportation proceedings as a condition of judicial review, noting that, as an overstay, Jain was clearly deportable and was unable to avoid deportation proceedings by choosing not to renew his adjustment application.

Temporary Arrangements

In fact, however, before a recent amendment, most applicants for adjustment had to be in lawful status at the time of application*9 and, by the nature of the proceeding, have to remain in the United States many months before its completion. Recognizing this delay, INS meanwhile gives them temporary authorization to work, and permission to make round-trips to other countries.*10 If INS denies their application, and they are no longer in a valid status, they are almost invariably permitted to depart voluntarily. Contrary to the court's comment on Jain's situation, they can indeed avoid deportation proceedings ``simply by choosing not to renew [their] section 245 application.'' The question remains whether they can be made to choose deportation proceedings before an immigration judge as a condition for getting proper consideration of their application for adjustment, a benefit afforded by statute.

A Ninth Circuit decision, cited in Cruz, goes the other way: It allows the applicant denied adjustment by INS to sue for redress in a district court. Jaa v. INS presents this question purely as one of exhaustion, unaffected by the issue of ripeness.*11 Denying Jaa's application for adjustment in February 1983, the INS instructed her to depart by March 4, 1983. As she failed to leave, the INS initiated a deportation proceeding. In January 1984, she was found deportable and ordered deported if she failed to leave voluntarily within six months. She neither left nor appealed to the BIA, making the deportation order final and unreviewable by petition to the court of appeals. Faced with a warrant of deportation, Jaa sued in the district court, claiming, among other things, that INS should be estopped from denying her residence application because of its prejudicial delay in processing her adjustment papers. The court agreed, issuing a permanent injunction against her deportation.

The court of appeals reversed on the merits, confirming however the district court's subject-matter jurisdiction to entertain a direct challenge to the adjustment denial. Although determinations made in a deportation hearing are reviewable exclusively by a court of appeals, the court saw that decisions ancillary to an application for permanent residence must be challenged first in district court. For the specific holding that the district court may review an adjustment denial, the court relied on a lower court decision.*12 That decision baldly asserted the district court's jurisdiction without examining the exhaustion issue and only citing as authority two other lower court decisions. Actually, neither of the cases cited involved adjustment applications, but rather the INS's handling of visa petitions, an earlier step in the immigration process that cannot be renewed in deportation proceedings. Besides, one of these decisions, Stokes v. United States,*13 came out of the Southern District of New York, controlled by Jain's bar to direct review of adjustment denials in the Second Circuit. The other, Nasan v. INS,*14 is equally unfortunate, the earlier Massignani precluding such review in the Seventh Circuit.

The Jaa court gave no consideration to the exhaustion/ripeness issues except to note that ``[a]pparently, Jaa could not submit [INS's refusal to adjust Jaa's status] to the BIA for review.''*15 What the court apparently meant was that Jaa was foreclosed by failing to file an appeal to the BIA. That appeal would have preserved her claim for presentation to the court of appeals.*16 Her right to review the district director's denial however is a separate question.

Ijoma v. INS,*17 a 1995 case in Nebraska, presents the same jurisdictional posture as Jaa's. Time-barred from seeking review of the deportation order in the court of appeals, Ijoma sued in the district court. The court's decision, although refusing to review any part of the deportation order and ultimately denying relief on the merits, agrees that there was jurisdiction to review the INS denial of the adjustment application. It makes no mention of the exhaustion issue. Neither does the March 8, 1995, decision in Pan v. Reno,*18 which proceeded to the merits of an adjustment denial without noting the decision in Jain.*19

Compelling Interests

From this scattering of decisions on both sides of the issue, the three appellate courts that deny jurisdiction have the better of the argument, simply because they are more persuasive. For reasons discussed below, it is less clear that they are right. Against the ``murky rubrics [of] ripeness, prematurity, exhaustion, [and] finality''*20 that these cases rely on as court-imposed limits on jurisdiction, the interests of adjustment applicants to district court review remain compelling.*21

The statute provides for adjustment ``by the Attorney General, in his discretion and under such regulations as he may prescribe . . . .''*22 Those regulations establish a one-stage process for consideration by the district director without appeal.*23 That they permit the alien to renew a denied application in deportation or, in some cases, exclusion proceedings, does not make the denial any the less a final action of the district director and the agency for which he works, the INS. The application for adjustment, initially or by renewal, is simply one of several requests for relief from deportation that an alien in deportation proceedings may make of the immigration judge,*24 an employee of still another agency.*25 A denial of adjustment by the immigration judge can be appealed to the BIA, and, if necessary, reviewed by a court of appeals as part of the deportation order.*26 But again that fact doesn't alter the finality of the district director's denial. Requiring renewal in the deportation proceeding is attractive in terms of ripeness: The proceeding involves a hearing, the development of a record for review and formal opinions, rather than the scanty paperwork on which the district director (actually, an examiner) ordinarily renders a brief decision.*27 But given the INS's failure to provide a better forum, initially or by administrative appeal, the district director's decision is the agency's, and hence is as ripe as it can get. Viewed in terms of exhaustion, the opportunity to renew the adjustment application is hardly an adequate remedy. It may involve a significant delay in achieving green-card status and qualifying for citizenship, as the dissenting judge pointed out in Randall. The decision of the immigration judge is de novo; it does not review the district director's decision, and it cannot grant adjustment of status retroactively.*28 Moreover, renewal of the application requires the alien to undergo the stigma, expense and exposure of a deportation proceeding, and the not-inconsiderable risk of deportation.*29 Contrary to the situation posited in Jain, the vast majority of aliens denied adjustment administratively do have the choice of departing voluntarily, some because they are still in valid status, others because the INS recognizes that their overstay is only technical, needed to await the adjustment decision.

Limited Resources

In any event, the INS cannot afford to commit its enforcement resources to such cases; its adjustment denials routinely direct applicants to depart voluntarily within a prescribed time.*30 The hardship of their dilemma -- to depart and abandon their adjustment application or to undergo deportation proceedings in order to pursue the application -- is precisely a situation that cries for district court resolution.*31

The Supreme Court said in Abbott Laboratories v. Gardner, that an issue was concrete enough for review in the context of a challenged rule when the plaintiffs had to decide between complying with onerous restrictions and risking the penalties for violation.*32 The Court found the situation ripe for review in part because it presented ``a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.''*33 It is hard to believe that Congress, in permitting adjustment, was limiting that benefit to those willing to risk deportation.*34 Nothing in the text of the statute suggests that restriction.

The underlying tension between the arguments for and against district court jurisdiction stem from the peculiarity of the INS regulation. Of course it is inefficient to permit two parallel procedures for judicial review of adjustment denials, one from the district director's order and another from an eventual order of deportability. But nothing requires the Attorney General to provide, as she does, for renewing the application in deportation proceedings. One reason for doing so is to provide a substantial procedure for deciding difficult cases that failed the first cut -- the district director's summary consideration. And to establish a more elaborate primary or even appellate procedure for applications might be too expensive, and perhaps unwarranted, given the small percentage of cases that founder in the current process. Given these considerations, and the stakes involved for the alien applicant, the occasional overlap in judicial review might be a relatively small price to pay for fairness.

Notes

(1) Not only immigration statutes, which Judge Kaufman of the Second Circuit compared with King Minos's labyrinth in ancient Crete, but regulations of the Immigration and Naturalization Service (INS), can ``accelerate the aging process of judges.'' See Lok v. INS, 548 F2d 37, 38 (2d Cir. 1977).

(2) 871 F. Supp. 1049 (N.D. Ill.)

(3) 438 F2d 1276 (7th Cir.) (per curiam).

(4) 854 F2d 472, 480-82 (1982) (judicial review of adjustment application only available in connection with final order of deportability), cert. denied, sub nom. Randall v. Thornburgh, 491 U.S. 904, 109 S.Ct. 3186 (1989). Cruz also cites Kashani v. Nelson 793 F2d 818, 823-27 (7th Cir. 1986), to the same effect as Massignani, but in the asylum context: as an application for asylum denied by the district director may be renewed in deportation proceedings the denial may not be reviewed in the district court.

(5) 854 F2d at 487 (Circuit Judge Mikva, dissenting).

(6) See 2 Kenneth Culp Davis & Richard J. Pierce Jr., Administrative Law Treatise Sec.15.10 (1994).

(7) 612 F2d 683, 689-90 (1979).

(8) Id. at 690.

(9) See Immigration and Nationality Act (INA) Sec.245(c), 8 USC Sec.1255(c) (denying adjustment eligibility to certain classes of aliens including those who have failed to maintain lawful status), qualified by INA Sec.245(i), added by Pub. L. No. 103-17, Sec.506, 108 Stat. 1724 (1994) (offering adjustment despite the disqualifications contained in Sec.245(c) and the requirements of Sec.245(a) to those applicants who pay an enhanced filing fee).

(10) See 8 CFR Sec.245.2(a)(4)(i). If the adjustment application is denied after their parole into the United States, they are placed in exclusion proceedings, where they may renew their application for adjustment. Whether they can directly challenge the adjustment denial, i.e., without completing the exclusion proceedings raises the same issue generally discussed in this article. An alien who has not been admitted to the United States but has been initially paroled and is otherwise admissible for permanent residence may also file for adjustment. The application denied in that instance is not renewable in exclusion proceedings; the denial therefore should clearly be reviewable immediately in the district court without raising the exhaustion issue.

(11) 779 F2d 569 (1986).

(12) 503 F. Supp. 35, 38 (C.D. Cal. 1980).

(13) 393 F. Supp. 24 (SDNY 1975).

(14) 449 F. Supp. 244, 245-47 (N.D. Ill. 1978).

(15) 779 F2d at 571.

(16) See, e.g. Patel v. INS 738 F2d 239 (7th Cir. 1984).

(17) 875 F. Supp. 625 (D. Neb. 1995).

(18) 879 F. Supp. 18 (SDNY 1995).

(19) Cf. Rahman v. McElroy, No. 95 Civ. 1902 (HB) (SDNY) (April 4, 1925) (immigration lottery winners could not compel INS to process their adjustment applications in order of their filing, despite that visa numbers might otherwise run out, as adjustment applicants may not have direct review in district court but must renew applications in deportation proceedings); Agoustinakis v. INS, 693 F. Supp. 1554, 155 (SDNY 1988) (Jain, the law of the circuit implies that an alien denied adjustment by INS may not directly challenge that result through direct review in the district).

(20) Abbs v. Sullivan, 963 F2d 918, 925 (7th Cir. 1992) (describing issue of district court's jurisdiction).

(21) See, e.g., Reno v. Catholic Social Services, 113 S. Ct. 2485, 2495 n.18 (1993) (``ripeness doctrine is drawn both from Article III limitations on judicial power [to real cases and controversies] and from prudential reasons''). See also 8 USC Sec.329 (providing for review in the district courts of all causes arising under any of the provisions of the immigration laws; 5 USC [Administrative Procedure Act] Sec.Sec.702 (``A person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof . . . .''), 704 (providing for judicial review of agency action made reviewable by statute or final agency action for which there is no other adequate judicial remedy); 2 Kenneth Culp Davis & Richard J. Pierce Jr., supra note 6, at Sec.15.12.

(22) INA Sec.245, 8 USC Sec.1255.

(23) 8 CFR Sec.245.2(a)(5).

(24) See 8 CFR Sec.242.17.

(25) The authority delegated by the Attorney General to the Commissioner of the INS excepts authority over the Executive Office for Immigration Review, the BIA, the Office of the Chief Special Inquiry Officer, and Special Inquiry Officers (a term used in the statute which by usage has given way to ``Immigration Judge'' [IJ], an alternate term now permitted by regulation to be used interchangeably with SIO, see 8 CFR Sec.1.1[l]). 8 CFR Sec.2.1. See also 8 CFR Part 3, concerning the authority and operation of the Executive Office, the BIA, and the Chief IJ.

(26) Patel v. INS, supra note 16.

(27) In routine cases the examiner is instructed to take no more than 15 to 30 minutes and may not extend the interview longer without approval of a supervisor. INS Operations Instructions 245.3b, reprinted in 9 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure 832 (revised ed. 1995). Moreover, interviews are waived in many categories of cases, see 8 CFR Sec.245.6. See also Randall v. Meese, 854 F2d at 474-75 (comparing summary nature of district director's consideration to plenary hearing afforded in deportation proceeding).

(28) See cases cited in the Randall dissent, 854 F2d at 489-90.

(29) In the event adjustment is again denied, the immigration judge ordinarily grants voluntary departure, but that relief is discretionary and not assured. See 3 Gordon, Mailman, & YaleLoehr, Sec.74.02(b).

(30) See, e.g., Randall v. Meese, supra note 4; Jaa v. INS, supra note 11.

(31) See generally 2 Kenneth Culp Davis & Richard J. Pierce Jr., supra note 6, at Sec.15.12.

(32) Abbott v. Gardner, 387 U.S. 136, 148-149, 152-153 (1969).

(33) Id. at 152.

(34) Cf. the legalization provisions of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, Title II, 100 Stat. 3359, codified at 8 USC Sec.1255a(f)(3)(A), (4)(A), which prohibit the use in deportation proceedings of information volunteered by alien in connection with adjustment application, but expressly defer judicial review of adjustment denials to review of later deportation orders, without providing for renewal of the application in the deportation proceeding. Because of the important differences between that regime and the basic adjustment process, the analysis in Reno v. Catholic Social Services, 113 S. Ct. 2485 (1993), in terms of the ripeness of a class action for review in the district court, is not helpful to this discussion.