McNary v. Haitian Refugee Center, Inc.

No. 89-1332

Argued Oct. 29, 1990

Decided Feb. 20, 1991

498 U.S. 479

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

Syllabus



The Immigration Reform and Control Act of 1986 (Reform Act) amended the

Immigration and Nationality Act (INA) creating, inter alia, a "Special

Agricultural Workers" (SAW) amnesty program for specified alien

farmworkers.  The Immigration and Naturalization Service (INS)

determined SAW status eligibility based on evidence presented at a

personal interview with each applicant.  Section 210(e)(1) of the INA

barred judicial review "of a determination respecting an application"

except in the context of judicial review of a deportation order, a

review conducted by the courts of appeals.  Respondents, the Haitian

Refugee Center and unsuccessful individual SAW applicants, filed a class

action in the District Court, alleging that the initial application

review process was conducted in an arbitrary manner in violation of the

Reform Act and the applicants' due process rights under the Fifth

Amendment.  While recognizing that individual aliens could not obtain

judicial review of denials of their SAW status applications except in

deportation proceedings in the courts of appeals, the District Court

accepted jurisdiction because the complaint did not challenge any

individual determination of any application for SAW status, but rather

contained allegations about the manner in which the entire program was

being implemented.  The court found that a number of INS practices

violated the Reform Act and were unconstitutional, and the Court of

Appeals affirmed.



Held:  The District Court had federal question jurisdiction to hear

respondents' constitutional and statutory challenges to the INS

procedures.



(a) There is no clear congressional language mandating preclusion of

jurisdiction.  Section 210(e)(1)'s language prohibiting judicial review

"of a determination respecting an application" refers to the process of

direct review of individual denials of SAW status, not to general

collateral challenges to unconstitutional practices and policies used by

the INS in processing applications.  The reference to "a determination"

describes a single act, as does the language of  210(e)(3), which

provides for "judicial review of such a denial."  Section 210(e)(3)(B),

which specifies that judicial review is to be based on the

administrative record, and that factual [498 U.S. 480] determinations

contained in such a record shall be conclusive absent a showing of an

abuse of discretion, supports this reading.  A record emerging from the

administrative appeals process does not address the kind of procedural

and constitutional claims respondents have brought, and the

abuse-of-discretion standard does not apply to constitutional or

statutory determinations, which are subject to de novo review.  Limiting

judicial review of general constitutional and statutory challenges to

the provisions set forth in  210(e) therefore is not contemplated. 

Moreover, had Congress intended the limited review provisions of  210(e)

to encompass challenges to INS procedures and practices, it could easily

have used broader statutory language.



(b) As a practical matter, the individual respondents would be unable to

obtain meaningful judicial review of their application denials or of

their objections to INS procedures if they were required to avail

themselves of the INA's limited judicial review procedures.  Under the

statutory scheme, review of an individual determination would be limited

to the administrative record, which respondents have alleged is

inadequate; aliens would have to surrender themselves for deportation in

order to receive any judicial review, which is tantamount to a complete

denial of such review; and a court of appeals reviewing an individual

determination would most likely not have an adequate record as to a

pattern of allegedly unconstitutional practices, and would lack a

district court's factfinding and record-developing capabilities.  Given

this Court's well settled presumption favoring interpretations of

statutes that allow judicial review of administrative action, the Court

cannot conclude that Congress so intended to foreclose all forms of

meaningful judicial review of SAW application denials and general

collateral challenges to INS procedures.  This case is therefore

controlled by Bowen v. Michigan Academy of Family Physicians, 476

U.S. 667, which interpreted the Medicare statute to permit individuals

to challenge a payment regulation's validity even though the statute

barred judicial review of individual claims for payment under the

regulation.  Heckler v. Ringer, 466 U.S. 602, distinguished.



872 F.2d 1555 (CA 11 1989), affirmed.



STEVENS, J., delivered the opinion of the Court, in which MARSHALL,

BLACKMUN, O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and in Parts I,

II, III, and IV of which WHITE, J., joined.  REHNQUIST, C.J., filed a

dissenting opinion, in which SCALIA, J., joined, 499. [498 U.S. 481]

STEVENS, J., lead opinion



Justice STEVENS delivered the opinion of the Court.



The Immigration Reform and Control Act of 1986 (Reform Act) constituted

a major statutory response to the vast tide of illegal immigration that

had produced a "shadow population" of literally millions of undocumented

aliens in the United States.



On the one hand, Congress sought to stem the tide by making the plight

of the undocumented alien even more onerous in the future than it had

been in the past; thus, the Reform Act imposed criminal sanctions on

employers who hired undocumented workers and made a number [498 U.S.

482] of federally funded welfare benefits unavailable to these aliens. 

On the other hand, in recognition that a large segment of the shadow

population played a useful and constructive role in the American

economy, but continued to reside in perpetual fear, the Reform Act

established two broad [498 U.S. 483] amnesty programs to allow existing

undocumented aliens to emerge from the shadows.



The first amnesty program permitted any alien who had resided in the

United States continuously and unlawfully since January 1, 1982, to

qualify for an adjustment of his or her status to that of a lawful

permanent resident.  See 100 Stat. 3394, as amended, 8 U.S.C.  1255a. 

The second program required the Attorney General to adjust the status of

any alien farmworker who could establish that he or she had resided in

the United States and performed at least 90 days of qualifying

agricultural work during the 12-month period prior to May 1, 1986,

provided that the alien could also establish his or her admissibility in

the United States as an immigrant.  The Reform Act required the Attorney

General first to adjust the status of these aliens to "Special

Agricultural Workers" (SAW) lawfully admitted for temporary residence,

see 100 Stat. 3417, as amended, 8 U.S.C.  1160(a)(1), and then

eventually to aliens lawfully admitted for permanent residence, see 

1160(a)(2).



This case relates only to the SAW amnesty program.  Although additional

issues were resolved by the District Court and the Court of Appeals, the

only question presented to us is whether  210(e) of the Immigration and

Nationality Act (INA), which was added by  302(a) of the Reform Act and

sets forth the administrative and judicial review provisions of the SAW

program, see 8 U.S.C.  1160(e), precludes a federal district court from

exercising general federal question jurisdiction over an action alleging

a pattern or practice of procedural due process violations by the

Immigration and Naturalization Service (INS) in its administration of

the SAW program.  We hold that, given the absence of clear congressional

[498 U.S. 484] language mandating preclusion of federal jurisdiction and

the nature of respondents' requested relief, the District Court had

jurisdiction to hear respondents' constitutional and statutory

challenges to INS procedures.  Were we to hold otherwise and instead

require respondents to avail themselves of the limited judicial review

procedures set forth in  210(e) of the INA, meaningful judicial review

of their statutory and constitutional claims would be foreclosed. I



The Reform Act provided three important benefits to an applicant for SAW

status.  First, the mere filing of a "nonfrivolous application" entitled

the alien to a work authorization that would remain valid during the

entire period that the application was being processed.  See 8 U.S.C. 

1160(d)(2)(B).  Second, regardless of the disposition of the

application, the Reform Act expressly prohibited the Government from

using any information in the application for enforcement purposes. 

Thus, the application process could not be used as a means of

identifying deportable aliens; rather, the initiation of a deportation

proceeding had to be based on evidence obtained from an independent

source.  See  1160(b)(6).  Third, if SAW status was granted, the alien

became a lawful temporary resident, see  1160(a)(1), and, in due course,

could obtain the status of a permanent resident, see  1160(a)(2).



In recognition that the fear of prosecution or deportation would cause

many undocumented aliens to be reluctant to come forward and disclose

their illegal status, the Reform Act directed the Attorney General to

enlist the assistance of a variety of nonfederal organizations to

encourage aliens to apply and to provide them with counsel and

assistance during the application process.  These "Qualified Designated

Entities" (QDE), which included private entities such as farm labor

organizations and associations of agricultural [498 U.S. 485] employers

as well as qualified state, local, and community groups, were not

allowed to forward applications for SAW status to the Attorney General

unless the applicant consented.  See  1160(b)(2), (b)(4).



The Reform Act provided that SAW status applications could be filed with

a specially created Legalization Office (LO), or with a QDE, which would

forward applications to the appropriate LO, during an 18-month period

commencing on June 1, 1987.  See  1160(b)(1)(A).  Regulations adopted by

the INS to administer the program provided for a personal interview of

each applicant at an LO.  See 8 CFR  210.2(c)(2)(iv) (1990).  In the

application, the alien had to prove by a preponderance of the evidence

that he or she worked the requisite 90 days of qualifying seasonal

agricultural services.  See  210.3(a), (b)(1).  To meet the burden of

proof, the applicant was required to present evidence of eligibility

independent of his or her own testimony.  See  210.3(b)(2).  The

applicant could meet this burden through production of his or her

employer's payroll records, see 8 U.S.C.  1160(b)(3)(B)(ii), or through

submission of affidavits by agricultural producers, foremen, farm labor

contractors, union officials, fellow employees, or other persons with

specific knowledge of the applicant's employment. See 8 CFR  210.3(c)(3)

(1990).  At the conclusion of the interview and of the review of the

application materials, the LO could deny the application or make a

recommendation to a regional processing facility that the application be

either granted or denied.  See id. at  210.1(q).  A denial, whether at

the regional or local level, could be appealed to the legalization

appeals unit, which was authorized to make the final administrative

decision in each individual case.  See  103.3(a)(2)(iii).



The Reform Act expressly prohibited judicial review of such a final

administrative determination of SAW status except as authorized by 

210(e)(3)(A) of the amended INA.  [498 U.S. 486] That subsection

permitted "judicial review of such a denial only in the judicial review

of an order of exclusion or deportation."  In view of the fact that the

courts of appeals constitute the only fora for judicial review of

deportation orders, see 75 Stat. 651, as amended, 8 U.S.C.  1105a, the

statute plainly foreclosed any review in the district courts of

individual denials of SAW status applications.  Moreover, absent

initiation of a deportation proceeding against an unsuccessful

applicant, judicial review of such individual determinations was

completely foreclosed. [498 U.S. 487] II



This action was filed in the District Court for the Southern District of

Florida by the Haitian Refugee Center, the Migration and Refugee

Services of the Roman Catholic Diocese of Palm Beach, and 17

unsuccessful individual SAW applicants.  The plaintiffs sought relief on

behalf of a class of alien farmworkers who either had been or would be

injured by unlawful practices and policies adopted by the INS in its

administration of the SAW program.  The complaint alleged that the

interview process was conducted in an arbitrary fashion that deprived

applicants of the due process guaranteed by the Fifth Amendment to the

Constitution.  Among other charges, the plaintiffs alleged that INS

procedures did not allow SAW applicants to be apprised of or to be given

opportunity to challenge adverse evidence on which denials were [498

U.S. 488] predicated, that applicants were denied the opportunity to

present witnesses on their own behalf, that non-English speaking Haitian

applicants were unable to communicate effectively with LOs because

competent interpreters were not provided, and that no verbatim recording

of the interview was made, thus inhibiting even any meaningful

administrative review of application denials by LOs or regional

processing facilities.  See App. 44-45; Haitian Refugee Center, Inc. v.

Nelson, 694 F.Supp. 864, 867 (SD Fla.1988).



After an evidentiary hearing, the District Court ruled that it had

jurisdiction, that the case should proceed as a class action, and that a

preliminary injunction should issue.  The court recognized that

individual aliens could not contest the denial of their SAW applications

"unless and until the INS institut[ed] deportation proceedings against

them," but accepted jurisdiction because the complaint does not

challenge any individual determination of any application for SAW

status, but rather attacks the manner in which the entire program is

being implemented, allegations beyond the scope of administrative

review. On the merits, the District Court [498 U.S. 489] found that a

number of INS practices violated the Reform Act and were

unconstitutional, and entered an injunction requiring the INS to vacate

large categories of denials,{10} and to modify its practices in

certain respects.{11}



The Court of Appeals affirmed.  On the merits, it upheld all of the

findings and conclusions of the District Court, and it [498 U.S. 490]

also rejected each of the Government's jurisdictional arguments. 

Relying on earlier Circuit precedent, it held that the statutory bar to

judicial review of individual determinations was inapplicable: In Jean

v. Nelson, 727 F.2d 957 (11th Cir.1984) (in banc), aff'd, 472 U.S. 846

(1985), we reaffirmed that section 106 of the INA (codified at 8 U.S.C. 

1105a) does not deprive district courts of jurisdiction to review

allegations of systematic abuses by INS officials.  Jean, 727 F.2d at

980.  We explained that to postpone judicial resolution of a disputed

issue that affects an entire class of aliens until an individual

petitioner has an opportunity to litigate it on habeas corpus would

foster the very delay and procedural redundancy that Congress sought to

eliminate in passing  1105a. Id.  In this action, appellees do not

challenge the merits of any individual status determination; rather . .

. they contend that defendants' policies and practices in processing SAW

applications deprive them of their statutory and constitutional rights.

Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1560 (CA11 1989).



In their certiorari petition, petitioners did not seek review of the

District Court's rulings on the merits or the form of its injunctive

relief.  Our grant of certiorari is therefore limited to the

jurisdictional question. III



We preface our analysis of petitioners' position with an identification

of matters that are not in issue.  First, it is undisputed that SAW

status is an important benefit for a previously undocumented alien. 

This status not only protects the alien from deportation; it also

creates job opportunities that are not available to an alien whose

application is denied.  Indeed, the denial of SAW status places the

alien in an even worse position than he or she was in before the Reform

Act was passed, because lawful employment opportunities are no [498 U.S.

491] longer available to such persons.  Thus, the successful applicant

for SAW status acquires a measure of freedom to work and to live openly

without fear of deportation or arrest that is markedly different from

that of the unsuccessful applicant.  Even disregarding the risk of

deportation, the impact of a denial on the opportunity to obtain gainful

employment is plainly sufficient to mandate constitutionally fair

procedures in the application process.  At no time in this litigation

have petitioners asserted a right to employ arbitrary procedures, or

questioned their obligation to afford SAW status applicants due process

of law.



Nor, at this stage of the litigation, is there any dispute that the INS

routinely and persistently violated the Constitution and statutes in

processing SAW applications.  Petitioners do not deny that those

violations caused injury in fact to the two organizational plaintiffs as

well as to the individual members of the plaintiff class.  Although it

does not do so explicitly, petitioners' argument assumes that the

District Court would have federal question jurisdiction over the entire

case if Congress had not, through the Reform Act, added  210(e) to the

INA.  The narrow issue, therefore, is whether  210(e), which bars

judicial review of individual determinations except in deportation

proceedings, also forecloses this general challenge to the INS's

unconstitutional practices. IV



Petitioners' entire jurisdictional argument rests on their view that

respondents' constitutional challenge is an action seeking "judicial

review of a determination respecting an application for adjustment of

status," and that district court jurisdiction over the action is

therefore barred by the plain language of  210(e)(1) of the amended INA.

 See 8 U.S.C.  1160(e)(1).{12}  The critical words in  210(e)(1),

[498 U.S. 492] however, describe the provision as referring only to

review "of a determination respecting an application" for SAW status

(emphasis added).  Significantly, the reference to "a determination"

describes a single act, rather than a group of decisions or a practice

or procedure employed in making decisions.  Moreover, when  210(e)(3),

see 8 U.S.C.  1160(e)(3), further clarifies that the only judicial

review permitted is in the context of a deportation proceeding, it

refers to "judicial review of such a denial" -- again referring to a

single act, and again making clear that the earlier reference to "a

determination respecting an application" describes the denial of an

individual application.  We therefore agree with the District Court's

and the Court of Appeals' reading of this language as describing the

process of direct review of individual denials of SAW status, rather

than as referring to general collateral challenges to unconstitutional

practices and policies used by the agency in processing applications.

[498 U.S. 493]



This reading of the Reform Act's review provision is supported by the

language in  210(e)(3)(B) of the INA, which provides that judicial

review shall be based solely upon the administrative record established

at the time of the review by the appellate authority and the findings of

fact and determinations contained in such record shall be conclusive

unless the applicant can establish abuse of discretion or that the

findings are directly contrary to clear and convincing facts contained

in the record considered as a whole. 8 U.S.C.  1160(e)(3)(B).  This

provision incorporates an assumption that the limited review provisions

of  210(e) apply only to claims that have been subjected to

administrative consideration and that have resulted in the creation of

an adequate administrative record.  However, the record created during

the SAW administrative review process consists solely of a completed

application form, a report of medical examination, any documents or

affidavits that evidence an applicant's agricultural employment and

residence, and notes, if any, from an LO interview -- all relating to a

single SAW applicant.  Because the administrative appeals process does

not address the kind of procedural and constitutional claims respondents

bring in this action, limiting judicial review of these claims to the

procedures set forth in  210(e) is not contemplated by the language of

that provision.



Moreover, the "abuse of discretion" standard of judicial review under 

210(e)(3)(B) would make no sense if we were to read the Reform Act as

requiring constitutional and statutory challenges to INS procedures to

be subject to its specialized review provision.  Although the

abuse-of-discretion standard is appropriate for judicial review of an

administrative adjudication of the facts of an individual application

for SAW status, such a standard does not apply to constitutional or

statutory claims, which are reviewed de novo by the courts.  The

language of  210(e)(3)(B) thus lends substantial credence to the

conclusion that the Reform Act's review provision [498 U.S. 494] does

not apply to challenges to INS's practices and procedures in

administering the SAW program.



Finally, we note that, had Congress intended the limited review

provisions of  210(e) of the INA to encompass challenges to INS

procedures and practices, it could easily have used broader statutory

language.  Congress could, for example, have modeled  210(e) on the more

expansive language in the general grant of district court jurisdiction

under Title II of the INA by channeling into the Reform Act's special

review procedures "all causes . . . arising under any of the provisions"

of the legalization program.  66 Stat. 230, 8 U.S.C.  1329.  It moreover

could have modeled  210(e) on 38 U.S.C.  211(a), which governs review of

veterans' benefits claims, by referring to review "on all questions of

law and fact" under the SAW legalization program.



Given Congress' choice of statutory language, we conclude that

challenges to the procedures used by INS do not fall within the scope of

 210(e).  Rather, we hold that  210(e) applies only to review of denials

of individual SAW applications.  Because respondents' action does not

seek review on the merits of a denial of a particular application, the

District Court's general federal question jurisdiction under 28 U.S.C. 

1331 to hear this action remains unimpaired by  210(e). V



Petitioners place their principal reliance on our decision in Heckler

v. Ringer, 466 U.S. 602 (1984).  The four respondents in Ringer wanted

to establish a right to reimbursement under the Medicare Act for a

particular form of surgery that three of them had undergone and the

fourth allegedly needed.  They sought review of the Secretary's policy

of refusing reimbursement for that surgery in an original action filed

in the District Court, without exhausting the procedures specified in

the statute for processing reimbursement claims.  The District Court

dismissed the case for lack of jurisdiction because the essence of the

complaint was a claim of entitlement to payment for the surgical

procedure.  With respect [498 U.S. 495] to the three respondents who had

had the surgery, we concluded that "it makes no sense" to construe their

claims "as anything more than, at bottom, a claim that they should be

paid for their BCBR [bilateral carotid body resection] surgery," id. at

614, since success in their challenge of the Secretary's policy

denying reimbursement would have the practical effect of also deciding

their claims for benefits on the merits.  "Indeed," we noted, the relief

that respondents seek to redress their supposed "procedural" objections

is the invalidation of the Secretary's current policy and a

"substantive" declaration from her that the expenses of BCBR surgery are

reimbursable under the Medicare Act. Ibid.  Concluding that respondents'

judicial action was not "collateral" to their claims for benefits, we

thus required respondents first to pursue their administrative remedies.

 In so doing, we found it significant that respondents, even if

unsuccessful before the agency, clearly have an adequate remedy in 

405(g) for challenging [in the courts] all aspects of the Secretary's

denial of their claims for payment for the BCBR surgery. Id. at

617.{13}



Unlike the situation in Heckler, the individual respondents in this

action do not seek a substantive declaration that they are entitled to

SAW status.  Nor would the fact that they prevail on the merits of their

purportedly procedural objections have the effect of establishing their

entitlement to SAW status.  Rather, if allowed to prevail in this

action, respondents would only be entitled to have their case files

reopened and their applications reconsidered in light of the newly

prescribed INS procedures. [498 U.S. 496]



Moreover, unlike in Heckler, if not allowed to pursue their claims in

the District Court, respondents would not as a practical matter be able

to obtain meaningful judicial review of their application denials or of

their objections to INS procedures, notwithstanding the review

provisions of  210(e) of the amended INA.  It is presumable that

Congress legislates with knowledge of our basic rules of statutory

construction, and, given our well settled presumption favoring

interpretations of statutes that allow judicial review of administrative

action, see Bowen v. Michigan Academy of Family Physicians, 476 U.S.

667, 670 (1986), coupled with the limited review provisions of 

210(e), it is most unlikely that Congress intended to foreclose all

forms of meaningful judicial review.



Several aspects of this statutory scheme would preclude review of

respondents' application denials if we were to hold that the District

Court lacked jurisdiction to hear this challenge.  Initially,

administrative or judicial review of an agency decision is almost always

confined to the record made in the proceeding at the initial

decisionmaking level, and one of the central attacks on INS procedures

in this litigation is based on the claim that such procedures do not

allow applicants to assemble adequate records.  As the District Court

found, because of the lack of recordings or transcripts of LO interviews

and the inadequate opportunity for SAW applicants to call witnesses or

present other evidence on their behalf, the administrative appeals unit

of the INS, in reviewing the decisions of LOs and regional processing

facilities, and the courts of appeals, in reviewing SAW denials in the

context of deportation proceedings, have no complete or meaningful basis

upon which to review application determinations.



Additionally, because there is no provision for direct judicial review

of the denial of SAW status unless the alien is later apprehended and

deportation proceedings are initiated, most aliens denied SAW status can

ensure themselves review in courts of appeals only if they voluntarily

surrender themselves for deportation.  Quite obviously, that price is

tantamount [498 U.S. 497] to a complete denial of judicial review for

most undocumented aliens.



Finally, even in the context of a deportation proceeding, it is unlikely

that a court of appeals would be in a position to provide meaningful

review of the type of claims raised in this litigation.  To establish

the unfairness of the INS practices, respondents in this case adduced a

substantial amount of evidence, most of which would have been irrelevant

in the processing of a particular individual application.  Not only

would a court of appeals reviewing an individual SAW determination

therefore most likely not have an adequate record as to the pattern of

INS' allegedly unconstitutional practices, but it also would lack the

factfinding and record-developing capabilities of a federal district

court.  As the American Bar Association, as amicus, points out, statutes

that provide for only a single level of judicial review in the courts of

appeals are traditionally viewed as warranted only in circumstances

where district court factfinding would unnecessarily duplicate an

adequate administrative record -- circumstances that are not present in

"pattern and practice" cases where district court factfinding is

essential [given the inadequate administrative record]. Brief for

American Bar Association as Amicus Curiae 7.  It therefore seems plain

to us, as it did to the District Court and the Court of Appeals, that

restricting judicial review to the courts of appeals as a component of

the review of an individual deportation order is the practical

equivalent of a total denial of judicial review of generic

constitutional and statutory claims.



Decision in this case is therefore supported by our unanimous

holding{14} in Bowen, supra.  In that case we rejected the

Government's contention that two sections of the Social Security Act, 42

U.S.C.  301 et seq. (1982 ed.), barred judicial review of the validity

of a regulation governing the payment of Medicare benefits.  We

recognized that review of [498 U.S. 498] individual determinations of

the amount due on particular claims was foreclosed, but upheld the

collateral attack on the regulation itself, emphasizing the critical

difference between an individual "amount determination" and a challenge

to the procedures for making such determinations: The reticulated

statutory scheme, which carefully details the forum and limits of review

of "any determination . . . of . . . the amount of benefits under part

A," 42 U.S.C.  1395ff(b)(1)(C) (1982 ed., Supp. II), and of the "amount

of . . . payment" of benefits under Part B, 42 U.S.C.  1395u(b)(3)(C),

simply does not speak to challenges mounted against the method by which

such amounts are to be determined, rather than the determinations

themselves.  As the Secretary has made clear, "the legality,

constitutional or otherwise, of any provision of the Act or regulations

relevant to the Medicare Program" is not considered in a "fair hearing"

held by a carrier to resolve a grievance related to a determination of

the amount of a Part B award.  As a result, an attack on the validity of

a regulation is not the kind of administrative action that we described

in [U.S. v.] Erika [Inc., 456 U.S. 201] as an "amount determination"

which decides "the amount of the Medicare payment to be made on a

particular claim" and with respect to which the Act impliedly denies

judicial review.  456 U.S. at 208. 476 U.S. at (emphasis

in original).  Inherent in our analysis was the concern that, absent

such a construction of the judicial review provisions of the Medicare

statute, there would be no review at all of substantial statutory and

constitutional challenges to the Secretary's administration of Part B of

the Medicare program. Id. at 680.



As we read the Reform Act and the findings of the District Court,

therefore, this case is controlled by Bowen, rather than by Heckler. 

The strong presumption in favor of judicial review of administrative

action is not overcome either by the [498 U.S. 499] language or the

purpose of the relevant provisions of the Reform Act.



The judgment of the Court of Appeals is affirmed.



It is so ordered. REHNQUIST, J., dissenting



Chief Justice REHNQUIST, with whom Justice SCALIA joins, dissenting.



Congress has carefully limited the judicial review available under the

Immigration Control and Reform Act of 1986 (Reform Act) in language

which "he who runs may read."  The Court, with considerable and obvious

effort, finds a way to avoid this limitation, because to apply the

statute as written could bar judicial review of respondents'

constitutional claims.  The statute as written is, in my view,

constitutional, and there is therefore no need to rewrite it. I



The relevant provisions of the Reform Act dealing with administrative

and judicial review are found in 8 U.S.C.  1160(e):



(1) Administrative and judicial review



There shall be no administrative or judicial review of a determination

respecting an application for adjustment of status under this section

except in accordance with this subsection.



(2) Administrative review



(A) Single level of administrative appellate review



The Attorney General shall establish an appellate authority to provide

for a single level of administrative appellate review of such a

determination *    *    *    *



(3) Judicial review



(A) Limitation to review of exclusion or deportation



There shall be judicial review of such a denial only in the judicial

review of an order of exclusion or deportation under section 1105a of

this title. [498 U.S. 500]



The first of the quoted sentences states, as clearly as any language

can, that judicial review of a "determination respecting an application

for adjustment of status under this section" may not be had except in

accordance with the provisions of the subsection.  The plain language of

subsection (3)(A) provides that judicial review of a denial may be had

only in connection with review of an order of exclusion or deportation. 

The Court chooses to read this language as dealing only with direct

review of individual denials of SAW status, rather than as referring to

general collateral challenges to unconstitutional practices and policies

used by the agency in processing applications. Ante p.   492.  But the

accepted view of judicial review of administrative action generally --

even when there is no express preclusion provision as there is in the

present statute -- is that only "final actions" are reviewable in court.

 The Administrative Procedure Act provides: [F]inal agency action for

which there is no other adequate remedy in a court [is] subject to

judicial review.  A preliminary, procedural, or intermediate agency

action or ruling not directly reviewable is subject to review on the

review of the final agency action. 5 U.S.C.  704.



The Court's reasoning is thus a classic non sequitur.  It reasons that,

because Congress limited judicial review only of what were in effect

final administrative decisions, it must not have intended to preclude

separate challenges to procedures used by the agency before it issued

any final decision.  But the type of judicial review of agency action

which the Court finds that Congress failed to preclude is a type not

generally available, even without preclusion.  In the light of this

settled rule, the natural reading of "determination respecting an

application" in  1160(e) encompasses both final decisions and procedures

used to reach those decisions.  Each of respondents' claims attacks the

process used by Immigration and [498 U.S. 501] Naturalization Service

(INS) to make a determination respecting an application.



We have on several occasions rejected the argument advanced by

respondents that individual plaintiffs can bypass restrictions on

judicial review by purporting to attack general policies, rather than

individual results.  For instance, in United States v. Erika, Inc.,

456 U.S. 201 (1982), we found that, in the context of the "precisely

drawn provisions" of the Medicare statute, the provision of judicial

review for awards made under Part A of the statute, coupled with the

omission of judicial review for awards under Part B, "provides

persuasive evidence that Congress deliberately intended to foreclose

further review of such claims."  Id. at 208 (citations omitted). 

Similarly, in Heckler v. Ringer, 466 U.S. 602 (1984), we addressed a

challenge to a ruling issued by the Secretary of Health and Human

Services that precluded payment under Medicare for a particular medical

procedure.  The Medicare Act permits judicial review of "any claim

arising under" the Act, 42 U.S.C.  405(g), (h), only after a claimant

seeks payment and exhausts administrative remedies.  The plaintiffs

contended that their lawsuits challenging the Secretary's refusal to

reimburse the procedure at issue were permissible without exhausting

administrative remedies because they challenged only the Secretary's

"`procedure' for reaching her decision," not the underlying decision on

their particular claims.  466 U.S. at 614.  We rejected this

distinction, finding that it makes no sense to construe the claims . . .

as anything more than, at bottom, a claim that they should be paid for

their . . . surgery. Ibid.  This holding was based on the recognition

that a contrary result would allow claimants to bypass the exhaustion

requirements of the Medicare Act by simply bringing declaratory judgment

actions in federal court before they undergo the medical procedure in

question. Id. at 621.  We expressly rejected the contention -- also

urged by the respondents here -- that simply because a claim somehow can

be construed [498 U.S. 502] as "procedural," it is cognizable in federal

district court by way of federal question jurisdiction. Id. at 614.



It is well settled that, when Congress has established a particular

review mechanism, courts are not free to fashion alternatives to the

specified scheme.  See United States v. Fausto, 484 U.S. 439,

(1988); Whitney National Bank v. Bank of New Orleans & Trust

Co., 379 U.S. 411, 419-422 (1965).  In creating the Reform Act and the

SAW program, Congress balanced the goals of the unprecedented amnesty

programs with the need "to insure reasonably prompt determinations" in

light of the incentives and opportunity for ineligible applicants to

delay the disposition of their cases and derail the program.  The

Court's ponderously reasoned gloss on the statute's plain language

sanctions an unwarranted intrusion into a carefully drafted

congressional program, a program which placed great emphasis on a

minimal amount of paperwork and procedure in an effort to speed the

process of adjusting the status of those aliens who demonstrated their

entitlement to adjustment.  "If the balance is to be struck anew, the

decision must come from Congress, and not from this Court."  Ringer,

supra, 466 U.S. at 627. II



The Court bases its conclusion that district courts have jurisdiction to

entertain respondents' pattern and practice allegations in part out of

"respect [for] the `strong presumption that Congress intends judicial

review of administrative action.'"  Ante at 498 (quoting Bowen v.

Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986)). 

This presumption, however, comes into play only where there is a genuine

ambiguity as to whether Congress intended to preclude judicial review of

administrative action.  In this case, two things are evident:  first, in

drafting the Reform Act, Congress did not preclude all judicial review

of administrative action; as detailed earlier, Congress provided for

judicial review of INS action in the courts of appeals in deportation

proceedings, and in the district courts in orders of exclusion.  Second,

by enacting [498 U.S. 503] such a scheme, Congress intended to foreclose

all other avenues of relief.  Therefore, since the statute is not

ambiguous, the presumption has no force here.



The Court states that this presumption of judicial review is

particularly applicable in cases raising constitutional challenges to

agency action.  Ante at   I believe that Congress intended to

preclude judicial review of such claims in this instance, and that, in

this context, it is permissible for it to do so.



In the Reform Act, Congress enacted a one-time amnesty program to

process claims of illegal aliens, allowing them to obtain status as

lawful residents.  Congress intended aliens to come forward during the

limited, 12-month eligibility period because "[t]his is the first call

and the last call, a one-shot deal."  132 Cong.Rec. 33217 (1986)

(remarks of Sen. Simpson).  If an alien failed to file a legalization

application within the 12-month period, the opportunity was lost

forever.  To further expedite this unique and unprecedented amnesty

program and to minimize the burden on the federal courts, Congress

provided for limited judicial review.



Given the structure of the Act and the status of these alien

respondents, it is extremely doubtful that the operation of the

administrative process in their cases would give rise to any colorable

constitutional claims. "An alien who seeks political rights as a member

of this Nation can rightfully obtain them only upon terms and conditions

specified by Congress.  Courts are without authority to sanction changes

or modifications; their duty is rigidly to enforce the legislative will

in respect of a matter so vital to the public welfare." INS v.

Pangilinan, 486 U.S. 875, 884 (1988) (quoting United States v.

Ginsberg, 243 U.S. 472, 474 (1917)).



Respondents are undoubtedly entitled to the benefit of those procedures

which Congress has accorded them in the Reform Act.  But there is no

reason to believe that administrative appeals as provided in the Act --

which simply have not been resorted to by these respondents before suing

in the [498 U.S. 504] District Court -- would not have assured them

compliance with statutory procedures.  The Court never mentions what

colorable constitutional claims these aliens, illegally present in the

United States, could have had that demand judicial review.  The most

that can be said for respondents' case in this regard is that it is

conceivable, though not likely, that the administrative processing of

their claims could be handled in such a way as to deny them some

constitutional right, and that the remedy of requesting deportation in

order to obtain judicial review is a burdensome one.  We have never

held, however, that Congress may not, by explicit language, preclude

judicial review of constitutional claims, and here, where that body was

obviously interested in expeditiously processing an avalanche of claims

from noncitizens upon whom it was conferring a substantial benefit, I

think it may do so. Footnotes STEVENS, J., lead opinion (Footnotes)



* Justice WHITE joins only Parts I, II, III, and IV of this opinion.



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

3359.



2. Prior to November 6, 1986, the enactment date of the Reform Act, the

employment of undocumented aliens did not violate federal law.  See 66

Stat. 228, as amended, 8 U.S.C.  1324(a) (1982 ed.) (providing that "for

the purposes of this section [criminalizing the bringing in and

harboring of aliens not lawfully entitled to enter and reside in the

United States] employment (including the usual and normal practices

incident to employment) shall not be deemed to constitute harboring"). 

Section 101 of the Reform Act, however, authorized both civil and

criminal penalties against employers who hire unauthorized aliens either

knowingly or without complying with specified verification requirements.

 See 8 U.S.C.  1324a.



3. Section 121 of the Reform Act amended several federal programs to

deny benefits to aliens who could not verify their lawful status.  See

Pub.L. 99-603, 100 Stat. 3384-3394.



4. The House Committee noted the purpose behind the legalization

programs in the Reform Act:



The United States has a large undocumented alien population living and

working within its borders.  Many of these people have been here for a

number of years, and have become a part of their communities.  Many have

strong family ties here which include U.S. citizens and lawful

residents.  They have built social networks in this country.  They have

contributed to the United States in myriad ways, including providing

their talents, labor and tax dollars.  However, because of their

undocumented status, these people live in fear, afraid to seek help when

their rights are violated, when they are victimized by criminals,

employers or landlords or when they become ill.



Continuing to ignore this situation is harmful to both the United States

and the aliens themselves.  However, the alternative of intensifying

interior enforcement or attempting mass deportations would be both

costly, ineffective, and inconsistent with our immigrant heritage.



The Committee believes that the solution lies in legalizing the statuts

[sic] of aliens who have been present in the United States for several

years, recognizing that past failures to enforces [sic] the immigration

laws have allowed them to enter and to settle here.



This step would enable INS to target its enforcement efforts on new

flows of undocumented aliens and, in conjunction with the proposed

employer sanctions programs, help stem the flow of undocumented people

to the United States.  It would allow qualified aliens to contribute

openly to society, and it would help to prevent the exploitation of this

vulnerable population in the workplace. H.R.Rep. No. 99-682, pt. 1, p.

49 (1986), U.S.Code Cong. & Admin.News 1986, pp. 5649, 5653.



5. Senator Simpson, one of the sponsors of the Reform Act, described the

vulnerability of this subculture of human beings who are afraid to go to

the cops, afraid to go to a hospital, afraid to go to their employer,

who says "One peep out of you, buster, and you are down the road." 132

Cong.Rec. 33222 (1986).



6. The full text of  210(e) of the INA, as set forth in 8 U.S.C. 

1160(e), reads as follows:



(e) Administrative and judicial review



(1) Administrative and judicial review



There shall be no administrative or judicial review of a determination

respecting an application for adjustment of status under this section

except in accordance with this subsection.



(2) Administrative review



(A) Single level of administrative appellate review



The Attorney General shall establish an appellate authority to provide

for a single level of administrative appellate review of such a

determination.



(B) Standard for review



Such administrative appellate review shall be based solely upon the

administrative record established at the time of the determination on

the application and upon such additional or newly discovered evidence as

may not have been available at the time of determination.



(3) Judicial review



(A) Limitation to review of exclusion or deportation



There shall be judicial review of such a denial only in the judicial

review of an order of exclusion or deportation under section 1105a of

this title.



(B) Standard for judicial review



Such judicial review shall be based solely upon the administrative

record established at the time of the review by the appellate authority

and the findings of fact and determinations contained in such record

shall be conclusive unless the applicant can establish abuse of

discretion or that the findings are directly contrary to clear and

convincing facts contained in the record considered as a whole.



7. The complaint alleges that this respondent has the following interest

in the litigation:



Plaintiff MIGRATION AND REFUGEE SERVICES OF THE ROMAN CATHOLIC DIOCESE

OF PALM BEACH ("RCDPB") is a component of the Roman Catholic Diocese of

Palm Beach.  Its principle [sic] place of business is West Palm Beach,

Florida.  Many members of parishes within the diocese of Palm Beach are

foreign agricultural workers who worked at least 90 man-days in the 1985

and 1986 season, and are therefore potentially eligible for the SAW

program.  In addition, Plaintiff MIGRATION AND REFUGEE SERVICES OF THE

RCDPB has been designated by Defendant INS as a "Qualified Designated

Entity" (QDE) under IRCA.  QDE's are authorized to provide counseling to

aliens about the legalization program, to assist them in filing out

applications and obtain documentation, and receive applications for

adjustment to temporary resident status.  Under IRCA, applications filed

with a QDE are deemed to have been filed as of the same date with INS to

whom the QDE's forward the applications for processing. QDE's are

authorized to receive fees from applicants and reimbursement from INS

for counseling and filing services.  The actions of Defendants

complained of in this case discourages otherwise eligible SAW applicants

from seeking counseling and filing of their applications by Plaintiffs

MIGRATION AND REFUGEE SERVICES OF THE RCDPB, and prevents them from

fulfilling its basic mission of assisting aliens to qualify under IRCA.

App. 24.



8. Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864, 873 (SD Fla.

1988).  The District Court also found that both of the organizational

plaintiffs had standing.  It explained:



HRC has alleged that the [d]efendants' refusal to recognize that such

persons [HRC's members] are eligible under IRCA both directly and

indirectly injures HRC.  It directly injures the organization because it

makes HRC's work of assisting the Haitian refugee community more

difficult and results in the diversion of HRC's limited resources away

from members and clients having other urgent needs. Complaint at  17. 

HRC also alleges an indirect injury through the adverse effect upon its

members.  Id.  The plaintiff MRS is a QDE under IRCA authorized to

provide counseling to aliens about the legalization process and to

assist them in obtaining documentation.  It also receives applications

and fees from aliens and is reimbursed by the INS for counseling and

filing services.  MRS alleges that the defendants' behavior has

discouraged otherwise eligible SAW applicants from seeking counseling

and/or filing their claims and MRS is prevented from fulfilling its

basic mission of assisting aliens to qualify under IRCA. Id. at 875.



9. Although many employers did not maintain payroll records for seasonal

workers, some LOs routinely denied applications that were not supported

by such records.  The District Court found that the INS maintained a

secret list of employers whose supporting affidavits were routinely

discredited, without giving applicants an opportunity to corroborate the

affiants' statements.  See id. at 871-872.  The District Court,

moreover, found that interpreters were not provided at LO interviews,

even though many Haitian applicants spoke only Creole and no personnel

in a particular LO understood that language, and that no recordings or

transcripts of LO interviews were made, despite the fact that the

interview "is the only face-to-face encounter between the applicant and

the INS allowing the INS to assess the applicant's credibility."  See

id. at 869.



10. The preliminary injunction provides in part:



(3) In those cases which the INS denied based in whole or in part on the

fact that the applicant failed to submit payroll records or piecework

receipts, the INS shall vacate the denials and reconsider the cases in

light of the proper standard of proof which will require the government

to present evidence to negate the just and reasonable inference created

by the affidavits and other documents submitted by the applicant;



(4) The INS shall vacate those denials issued by the Legalization

Offices during the period June 1, 1987, to March 29, 1988, unless the

government can show that the applications were clearly frivolous based

upon the documentation submitted by the applicant or that the applicant

admitted fraud or misrepresentation in the application process. Id. at

881.



11. The preliminary injunction entered by the District Court ordered the

INS to institute the following procedures:



(6) The Legalization Offices shall maintain competent translators, at a

minimum, in Spanish and Haitian Creole, and translators in other

languages shall be made available if necessary;



(7) The INS shall afford the applicants the opportunity to present

witnesses at the interview including but not limited to growers, farm

labor contractors, co-workers, and any other individuals who may offer

testimony in support of the applicant;



(8) The interviewers shall be directed to particularize the evidence

offered, testimony taken credibility determinations, and any other

relevant information on the form I-696. Ibid.



12. As petitioners state in their brief:



The Act declares in all-encompassing terms: There shall be no

administrative or judicial review of a determination respecting an

application for adjustment of status under this section except in

accordance with this subsection. 8 U.S.C. 1160(e)(1).  In the following

paragraphs, the subsection spells out the precise procedures intended to

provide the exclusive method of review.  The subsection requires the

establishment of a "a single level of administrative appellate review of

such a determination," and unequivocally states that [t]here shall be

judicial review of such a denial [of a SAW application] only in the

judicial review of an order of exclusion or deportation under section

1105a of this title. 8 U.S.C. 1160(e)(2)(A) and (e)(3)(A).  Section

1105a(a), in turn, provides that a petition for review in the court of

appeals "shall be the sole and exclusive procedure for[] the judicial

review of all final orders of deportation," while exclusion orders are

reviewable exclusively in habeas corpus proceedings.  8 U.S.C. 1105a(b).

 Congress could hardly have chosen clearer or more forceful language to

express its intention to preclude any judicial review of a

"determination respecting an application" for SAW status other than in

the specified review proceedings applicable to individual deportation or

exclusion orders.



In light of IRCA's clear directions, district courts are not free to

draw on their federal question jurisdiction under 28 U.S.C. 1331, or on

their jurisdiction granted under the immigration laws, 8 U.S.C. 1329, to

entertain collateral attacks on procedures used to adjudicate SAW

applications.  The exercise of either source of general power is barred

by the precise and specific language of IRCA. Brief for Petitioners

11-13 (footnotes omitted).



13. The Court in Heckler also concluded that the fourth respondent's

claim was "essentially one requesting the payment of benefits for BCBR

surgery, a claim cognizable only under  405(g)," 466 U.S. at 620, and

held that the claim for future benefits must be construed as a "claim

arising under" the Medicare Act because any other construction would

allow claimants substantially to undercut Congress' carefully crafted

scheme for administering the Medicare Act. Id. at 621.



14. Justice REHNQUIST did not participate in the case.

