Aparicio v. Blakeway

REVISED SEPTEMBER 9, 2002

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-51133

JAVIER APARICIO, Individually and on
behalf of all persons similarly
situated; JUDITH RANGEL, Individually
and on behalf of others similarly situated;
ELISEO REALZOLA, Individually and on behalf
of others similarly situated,

Plaintiffs-Appellants,

versus

WILEY BLAKEWAY, In his official capacity;
KENNETH G. PASQUARELL, Director, in his
official capacity as District Director of
the Immigration and Naturalization Service
for the San Antonio Division; IMMIGRATION
AND NATURALIZATION SERVICE,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Texas

August 15, 2002

Before GARWOOD, DEMOSS and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellants Javier Aparicio, Judith Rangel and Eliseo

Realzola filed this suit against the Immigration and Naturalization

Service (INS), and against Wiley Blakeway, the head of the San
Antonio INS Citizenship Branch, Kenneth Pasquarell, the Director of

the San Antonio INS District, and Attorney General Janet Reno, all

in their official capacities only. Plaintiffs alleged that the San

Antonio INS office relied on information in their respective

applications for Special Agricultural Worker status while reviewing

their applications for naturalization, despite the confidentiality

provision set forth in 8 U.S.C. § 1160(b)(6)(A)(i). Plaintiffs

sought declarative and injunctive relief on behalf of a putative

class that would have been affected by this policy. Because none

of the class representatives had been denied citizenship after

exhausting the statutorily mandated review process, their suit was

dismissed by the district court for lack of subject-matter

jurisdiction. For the same reason, we affirm the dismissal.

Background

A. The Applicable Laws

In 1986, Congress recognized that a “shadow population” of

millions of illegal immigrants had been living in this country for

a number of years. H.R. REP. 99-682(I), at 49 (1986), reprinted in

1986 U.S.C.C.A.N. 5649, 5653; McNary v. Haitian Refugee Center,

Inc., 111 S.Ct. 888, 891 (1991). Yet, despite their contributions

to employers and their communities, these immigrants were

victimized because their undocumented status rendered them afraid

to seek help from the governmental authorities. H.R. REP. 99-

682(I), at 49 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5653.

2
Because Congress found it undesirable that the INS would spend its

resources intensifying interior enforcement or attempting to deport

these aliens en masse, they amended the Immigration and

Naturalization Act to legalize the immigration status of certain

categories of these aliens. This would permit those aliens to

openly contribute to American society and allow the INS to focus

its efforts on border enforcement. Id. The legislation also made

the burden on undocumented aliens more onerous by criminalizing the

hiring of undocumented workers and denying them many federal

welfare benefits. McNary, 111 S.Ct. at 891. One subsection of

this legislation addressed the fact that producers of perishable

agricultural commodities had come to heavily rely upon an

undocumented labor force. In order to keep these laborers

available for work at these farms but give them the independence to

move from job to job at their discretion, Congress created the

“Special Agricultural Worker” or “SAW” program. H.R. REP. 99-

682(I), at 83-85 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5687-

89. Under the SAW program, a worker could apply for “temporary

resident” immigration status during a specified eighteen-month

period if he could prove both that he has resided in the United

States and that he performed “seasonal agricultural services” in

the United States for at least ninety days during the period from

May 1, 1985 to May 1, 1986. See 8 U.S.C. § 1160(a)(1). After a

fixed period of either one or two years, depending on the number of

3
applicants, those temporary resident workers would automatically

receive permanent resident status. Id. at § 1160(a)(2).

A prominent feature of the SAW statute was its confidentiality

guarantee. The government was forbidden to “use the information

furnished by the applicant pursuant to an application filed under

this section for any purpose other than to make a determination on

the application. . . .” Id. at § 1160(b)(6)(A)(i). The government

could, however, rely on any other information in its file as well

as any information it could obtain from another source. Id. at §

1160(b)(6)(C)(i). Congress did not directly explain the purpose of

this provision, but in regard to similar language elsewhere in the

legislation Congress commented that “[t]he confidentiality of the

records is meant to assure applicants that the legalization process

is serious, and not a ruse to invite undocumented aliens to come

forward only to be snared by the INS.” H.R. REP. 99-682(I), at 73

(1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5677. This

confidentiality provision has been strictly construed. In In re

Masri, Int. Dec. 3419 (BIA 1999), the Board of Immigration Appeals

held that the confidential information could not be used in a later

proceeding to rescind permanent resident status, even though the

recission was based on alleged fraud in the SAW application

process. See also 8 C.F.R. § 210.2(e)(3) (implementing the statute

strictly).

After five years of continuous residence following lawful

4
admission to permanent residence, an alien becomes eligible to

apply for naturalization. 8 U.S.C. § 1427(a). A naturalization

applicant must demonstrate, inter alia, good moral character; the

ability to read, write and speak English; and a basic knowledge of

United States history and government. See 8 U.S.C. § 1423(a), §

1427(a)(3). The applicant also has the burden of proving he was

“lawfully admitted to the United States for permanent residence.”

8 U.S.C. § 1429. Once the application has been filed, an INS

officer interviews the applicant and makes a determination to

either approve or deny the application. 8 U.S.C. § 1446. If the

application is denied, the applicant can request a hearing before

an immigration officer. 8 U.S.C. § 1447(a). This second hearing

must be before an officer of a higher grade level than the first.

8 C.F.R. § 336.2(b). If the INS again denies the application, or

if 120 days elapse from the date of the first determination without

the reconsideration taking place, the applicant may seek review of

the denial in the United States District Court. 8 U.S.C. §

1421(c). Applicants may only appeal to the district court,

however, if they either sought administrative review and the

application was again denied, or if they sought administrative

review and the review was delayed for more than 120 days. Id. at

§ 1421(d). Rather than conducting an administrative review, the

district court reviews the case de novo and makes its own findings

of fact and conclusions of law. Id.

5
B. The Present Appeal

1. The Class Representatives

The three appellant class representatives share a similar

story. They are each Mexican nationals who applied for and

received temporary resident status under the SAW program in 1988,

and accordingly then received permanent resident status

automatically in 1990. They each applied for naturalization in

1998 or 1999, and for that purpose were interviewed in 1999 and

2000 in the San Antonio office of the INS. During their

interviews, each claims he or she was quizzed extensively about the

agricultural work that had qualified him or her for SAW status and

each claims the INS interviewer had reviewed the confidential

information from his or her SAW application. For each of them, the

interview was followed by a letter from the INS commanding him or

her to produce evidence corroborating the legitimacy of his or her

agricultural work.

From that point, their experiences diverged somewhat. Javier

Aparicio responded to the follow-up letter by filing this class

action lawsuit against the INS challenging their practice of

reviewing the SAW information. The INS reiterated its demand for

the corroborating evidence, and Aparicio's reply informed the INS

that he was unable to acquire the information and alleged the

request violated the SAW confidentiality provisions. On June 26,

2000, the INS informed Aparicio that it had independently

6
investigated the lawfulness of his permanent resident status and

approved his application for naturalization. This approval came

before the district court considered the motion to dismiss at issue

in this case.

Judith Rangel responded to the letter by providing some, but

not all, of the requested corroboration. The INS denied her

application on October 8, 1999, and she never sought any sort of

review of that denial. On June 5, 2000, Aparicio amended his

lawsuit to include Rangel as a class representative.

Eliseo Realzola received the letter and then submitted the

proof he was able to obtain along with explanations why he could

not obtain the rest. On October 19, 1999, the INS informed

Realzola that his evidence was insufficient and ordered him to

provide corroboration. He did not do so, and on June 5, 2000 he

joined Aparicio's suit as a class representative. The INS finally

approved Realzola's application for naturalization on February 21,

2001, four months after the present appeal was filed.

2. The Lawsuit

Aparicio filed his class action lawsuit on April 14, 2000, on

behalf of himself and the class of persons who received permanent

resident status through the SAW program and who had applied for or

would apply for naturalization through the San Antonio INS office.

He sued the Immigration and Naturalization Service itself, as well

as (in their official capacities) Wiley Blakeway, the head of the

7
San Antonio INS Citizenship Branch, Kenneth Pasquarell, the

Director of the San Antonio INS District, and Attorney General

Janet Reno. Aparicio alleged the INS's use of the confidential SAW

application information in the naturalization process violated 8

U.S.C. § 1160(b)(6)(A)(i) and the constitutional right to due

process, and sought a declaratory judgment, an injunction against

the further use of the confidential information, and an injunction

to reopen all cases affected by this practice that had been denied

or withdrawn for lack of prosecution. Aparicio then filed for a

preliminary injunction against the continued use of the

confidential information and moved to certify the class. Aparicio

aggressively began discovery, but the INS moved for a protective

order on the grounds that discovery was premature. The district

court granted the protective order on June 2, 2000. On June 5,

2000, Aparicio amended his complaint to include Rangel and Realzola

as class representatives.

The district court granted a motion to dismiss the suit on

August 31, 2000, holding the plaintiffs' claims were unripe because

they had not exhausted the statutory appeal procedures before

taking their case to the district court. The present appeal

followed.

Discussion

This court must consider whether the district court correctly

dismissed Aparicio's suit. We review this decision de novo. See

8
Home Builders Ass'n v. City of Madison, Miss., 143 F.3d 1006, 1010

(5th Cir. 1998). It is worthwhile to begin by noting that Aparicio

raises neither a privacy concern nor a challenge to the original

process of applying for SAW status. Aparicio also conceded at oral

argument that the INS can investigate whether SAW status was

properly granted, so long as the INS does not use the information

made confidential by 8 U.S.C. § 1160(b)(6)(A)(i). Similarly, the

INS does not attempt to revoke the SAW (or lawful permanent

residence) status of the appellants, and appellants do not contend

that it does; rather, the INS seeks only to use the confidential

application information when and for purposes of determining

whether the naturalization applicant was “lawfully admitted to the

United States for permanent residence” as required for

naturalization by 8 U.S.C. § 1429. The plaintiffs' suit, thus

properly understood, challenges only the INS's alleged practice of

referring to the confidential SAW information solely during and for

purposes of the naturalization process. May the district court

take jurisdiction over this claim given that all three class

representatives failed to follow the administrative review process

mandated by 8 U.S.C. § 1421? We hold today that the district court

correctly declined jurisdiction.

A. McNary v. Haitian Refugee Center, Inc.

The legal issues in this case stand under the shadow of two

Supreme Court cases, the first of which is McNary v. Haitian

9
Refugee Center, Inc., 111 S.Ct. 888 (1991). Appellants rely on

McNary to support their claim that challenges to INS practices and

statutory interpretation lie outside mandatory review provisions.

In McNary, seventeen unsuccessful SAW applicants and two

refugee services challenged the procedure by which the INS reviewed

SAW applications. McNary, 111 S.Ct. at 893. The suit challenged

INS practices including, inter alia, refusing to show adverse

evidence to the applicant, refusing to allow the applicant to rebut

adverse evidence, refusing to allow applicants to present witnesses

on their own behalf, refusing to provide competent interpreters,

and refusing to make a transcript of the hearing. Id. at 894.

After the district court entered an injunction against it, the INS

appealed, ultimately raising before the Supreme Court the sole

contention that the district court lacked jurisdiction over the

case due to the exclusive review provisions in 8 U.S.C.

§ 1160(e)(1). Id. at 894-95. The Supreme Court rejected the INS's

contention, finding that the provision only applied to “a

determination respecting an [SAW] application” and a generalized

challenge to INS practice was not contemplated by this statutory

language. Id. at 896. The Court also held the statutory words

“such denial” indicated a singular decision, not a pattern or

practice. Id. The Court found additional support by reasoning

that the administrative review process would not generate the type

of record necessary for reviewing the plaintiffs' claims, and thus

10
Congress did not contemplate that procedural and constitutional

claims would come within that provision. Id. Additionally, the

Court reasoned that the “abuse of discretion” standard of review

mandated by the statute would be improper for the claims raised by

the plaintiffs, further indicating that Congress never intended for

the exclusive review provision to apply to such challenges. Id. at

897.

Though it had been the cornerstone of the INS’s case, the

McNary Court distinguished Heckler v. Ringer, 104 S.Ct. 2013 (1984)

on several grounds. In Heckler, the plaintiffs had sought review

of a Medicare policy denying them a particular form of surgery, but

the Court held the federal courts lacked jurisdiction because the

plaintiffs had not followed the administrative review procedures.

Heckler, 104 S.Ct. at 2021-23. The McNary Court held the Heckler

plaintiffs had essentially sought review of the denial of their

benefits and a substantive declaration of their rights, which was

a direct appeal within the contemplation of the Medicare review

statute, while the McNary plaintiffs went outside the SAW statute

by generally challenging INS practices and merely asking that their

case files be reconsidered in light of the newly prescribed

procedures. McNary, 111 S.Ct. at 897-98. The Court also reasoned

that the Heckler plaintiffs had been able to receive a meaningful

review while the McNary plaintiffs would not: no adequate record

was assembled during the INS administrative review process,

11
especially not for the type of challenges being raised by the

plaintiffs. Id. at 898. Moreover, direct judicial review would

have been available only in a deportation proceeding and thus was

“tantamount to a complete denial of judicial review for most

undocumented aliens.” Id. The Court therefore distinguished

Heckler and affirmed the decision to accept jurisdiction over the

case. Id. at 899.

B. Reno v. Catholic Social Services

The Court revisited McNary in Reno v. Catholic Social

Services, Inc., 113 S.Ct. 2485 (1993) [hereinafter “CSS”], the

second case affecting our decision today. In CSS, the Court again

addressed the effects of the 1986 reform of the Immigration and

Naturalization Act. The CSS Court addressed two separate

challenges to the INS interpretation of the statutory provisions

permitting certain undocumented aliens to receive temporary

resident status. The first concerned the requirement that the

alien show “continuous physical presence” since a certain date; the

INS had determined that the statutory exception for “brief, casual

and innocent” absences would only be permitted if the alien had

received advance permission from the INS. Id. at 2490. The second

challenge addressed the requirement that the alien show “continuous

unlawful residence” in the United States during that period, with

a statutory exception for certain brief periods. The INS

regulations said that an alien who left the country and then

12
reentered by showing “facially valid” documentation had broken the

chain of “unlawfulness” and therefore could not meet this standard.

Id. at 2491. In both cases, the INS modified the rule not long

after it was initially promulgated. In neither case did the INS

appeal the initial determination that the regulations were invalid,

but in both cases the INS challenged a later order of the district

court seeking to extend the application period because of the

error. Id. at 2493. The INS argued that the district court lacked

jurisdiction due to the restricted judicial review mandated by the

Act. Id.

The Court accepted both appeals and decided to vacate and

remand. Id. The Court recognized that the limited judicial review

provision, 8 U.S.C. § 1255a(f)(1), was “virtually identical” to the

provision it had interpreted in McNary two years earlier.

Accordingly, the Court again held that the statutory language “a

determination respecting an application for adjustment of status”

and “such denial” did not describe a challenge to a practice or

procedure. Id. at 2494-95. The INS claimed that an action

challenging the INS's interpretation of a statute was different

than the procedural challenge in McNary, but the Court rejected the

argument and held the the plaintiffs' arguments were not restricted

by the limited review provision. Id. at 2495.

The Court then noted that another jurisdictional hurdle lay in

the path of the plaintiffs: the ripeness requirement traditionally

13
applied in suits seeking injunctive and declarative relief. Id. at

2495. The Court noted that sometimes the very promulgation of a

regulation creates an “immediate dilemma” that causes parties to

feel the impact in a concrete way. Such claims are already ripe.

Id. In other cases, the impact of the regulation cannot be said to

“be felt immediately by those subject to it in conducting their

day-to-day affairs.” Id. at 2496, quoting Toilet Goods Assn., Inc.

v. Gardner, 87 S.Ct. 1520, 1524 (1967). In such cases, the claim

would not be ripe if there were “no irremediably adverse

consequences.” CSS, 113 S.Ct. at 2496. The Court then addressed

the INS regulations at issue and noted they were limitations on

access to a benefit, not a newly imposed restriction, and thus did

not seem to have an immediate impact. Id. Moreover, the Court

observed that the Act delegated to the INS the task of determining

whether applicants met several requirements in addition to the ones

at issue, which also suggested that the impact of the regulations

was deferred rather than immediate. Because the INS must apply

these several regulations on a case-by-case basis, the Court held,

a plaintiff's claims would only ripen “once he took the affirmative

steps that he could take before the INS blocked his path by

applying the regulation to him.” Id.

The Court then recognized that a case would only become ripe

when “the INS formally denied the alien's application on the ground

that the regulation rendered him ineligible for legalization.” Id.

14
at 2497. Such an alien, however, would find his newly ripe case

barred by the exclusive review provisions because it would now be

“a determination respecting an application.” Id. The Court

considered this interaction to be an intentional “dovetailing” of

the two provisions, representing Congress's intent to insure that

INS regulations would only be challenged through the limited

channels permitted by the Act. Id. The McNary plaintiffs were

allowed to circumvent this scheme because they had no “practical

judicial review.” In contrast, the CSS plaintiffs would be able to

raise their arguments on appeal, even though that appeal would only

come during the review of a deportation order. The CSS plaintiffs

therefore had to content themselves with the “dovetailed”

provisions. Id.

The Court then determined that the parties whose claims were

accepted for processing by the INS were constrained by the

mandatory review provisions, although parties whose applications

lower level INS personnel informally refused to even accept for

filing due to an INS “front-desking” policy may have been outside

the mandatory review provisions. Id. at 2497-2500. The CSS Court

noted in the latter connection:

“[Front-desking] 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. Hence, to construe §
1255a(f)(1) to bar district court jurisdiction over his

15
 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,” 498
U.S., at 496, 111 S.Ct., at 898; and we will accordingly
find an intent to preclude such review only if presented
with ‘”clear and convincing evidence,”’[citations
omitted].

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
detemrination 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, 498
U.S., at 497, 111 S.Ct., at 899, 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.” Id. at 2499 (footnote omitted; emphasis
added).

Accordingly, the CSS Court vacated and remanded the case so

that the District Courts could determine which claims had been

subjected to “front-desking” and thus were ripe. Id. at 2500. All

other claims were barred by the statutory judicial review

provisions.

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C. The Present Case

1. The Claims Are All Unripe

We hold that to the extent appellants’ claims are unripe they

are barred by CSS. To the extent the claims are ripe, they are

barred by 8 U.S.C. § 1421(c), which provides:

“A person whose application for naturalization under this
subchapter is denied, after a hearing before an
immigration officer under section 1447(a) of this Title,
may seek review of such denial before the United States
district court for the district in which such person
resides in accordance with chapter 7 of Title 5. Such
review shall be de novo, and the court shall make its own
findings of fact and conclusions of law and shall, at the
request of the petitioner, conduct a hearing de novo on
the application.”1

It must be recognized then that the naturalization statute

does not contain many of the features upon which the McNary opinion

relied and upon which CSS relied in regard to those whose

applications were “front-desked.” Judicial review of

naturalization denials is always available and is de novo, and is

not limited to any administrative record but rather may be on facts

established in and found by the district court de novo.

As with the regulations in CSS, the INS interpretation

challenged in this case did not have an immediate effect on the

day-to-day affairs of those who received permanent resident status

through the SAW provisions. Instead, the INS interpretation

“limit[s] access to a benefit [here naturalization] . . . not

1
See also § 1421(d), providing: “A person may only be naturalized as a citizen of the United
States in the manner and under the conditions prescribed in this subchapter and not otherwise.”

17
automatically bestowed on eligible aliens.” CSS, 113 S.Ct. at

2496. The INS has the duty of determining whether each applicant

for naturalization has “met all of the Act's conditions, not merely

those interpreted by the [challenged practices] in question.” Id.

As a result, we come to the same conclusion as the Court in CSS: “a

class member's claim would ripen only once he took the affirmative

steps that he could take before the INS blocked his path by

applying the regulation to him.” Id.

Here, if a claim was approved, then the applicant has no

grounds for complaint because his path has not been “blocked” and

he has suffered no “irredeemably adverse consequence.” The federal

courts not acting under section 1421(c) must reject all denied

claims as well. Because there are many possible reasons for a

denial of naturalization,2 not merely matters which would arise

under the interpretations of section 1160(b)(6)(A)(i) at issue in

this case, we cannot know whether a denied claim was denied for any

of the reasons challenged here. See CSS, 113 S.Ct. at 2496-97

n.20. Pending claims would suffer from the same uncertainty, and

uncertainty renders the case unripe for consideration by the

federal courts.

2
See e.g. § 1423(a) (applicant must demonstrate “ability to read, write, and speak words in
ordinary usage in the English language” and “a knowledge and understanding of the history, and of
the principles and form of government, of the United States”); § 1427(a) (throughout the immediately
preceding five years the applicant “has been and still is a person of good moral character, attached
to the principles of the Constitution of the United States, and well disposed to the good order and
happiness of the United States”).

18
 Rangel’s naturalization application has been administratively

denied, and consideration of her claim in this suit would be

reviewing the denial of her application for naturalization in

violation of section 1421(c). See CSS, 113 S.Ct. at 2497.

Similarly, the appellants seem to hope this Court will look at the

record and find that Aparicio, whose naturalization application has

been approved, would have had it approved sooner but for the

allegedly impermissible policy. We cannot do so; once we begin to

look at the specifics of Aparicio's case we will be allowing him to

seek review of his application in the district court without it

having been “denied.” Section 1421(c) prohibits this result. The

same is true of Realzola.

The appellants and the entire class they seek to represent are

thus caught between the ripeness doctrine and the exclusive review

provision of section 1421(c). We conclude that this was an

intentional formulation by Congress designed to serve a purpose.

In CSS, the Court reasoned that “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.” CSS, 113 S.Ct. at 2497. We conclude

that Congress intended naturalization applicants to be thus

restricted, not out of any desire to vex them but rather to

19
guarantee that the only people who challenged the INS's

interpretation of the Act would be those whose applications had

been denied and who then worked within the administrative review

system before resorting to the federal courts, with such resort

being only pursuant to section 1421(c). The appellants do not meet

this definition, nor would anyone within their putative class.

Appellants attempt to argue ripeness by complaining that they

lose the privileges and rights of citizenship during the appeal

process, but the 120-day limit imposed by section 1421(c)

guarantees a relatively swift resolution. Indeed, by the accepted

norms of the federal bureaucracy and the delay endemic to the

system, 120 days, or even much longer, seem not so egregious as to

authorize departure from the evident Congressional scheme of

review. At any rate, it is less onerous than the CSS requirement

that the applicants seek review in an appeal from an order of

deportation. If the delay and uncertainty inherent in a

deportation action did not make the CSS cases ripe, the present

case must be considered unripe as well.

2. The Review Is Adequate

There remains one more point to analyze. The CSS Court noted

that the McNary plaintiffs had escaped this system because they

“could receive no practical judicial review within the scheme”

20
established by Congress. In contrast, the CSS plaintiffs3 were

stuck within the system because it could afford the plaintiffs an

adequate review, albeit one that only occurred during the appeal of

a deportation order. CSS, 113 S.Ct. at 2497. Thus, the

availability of review in CSS satisfied the need for review of

administrative processes emphasized in McNary and in Bowen v.

Michigan Academy of Family Physicians, 106 S.Ct. 2133 (1986). See

McNary, 111 S.Ct. at 899 (quoting Bowen). It has been suggested

that this exception for inadequate judicial review is all that

remains of McNary's end-run around mandatory review provisions.

See Ayuda, Inc. v. Reno, 7 F.3d 246, 249 (D.C. Cir. 1993).

Regardless, the appellants can find no relief in this

inadequate review exception. The review afforded them by section

1421(c) is fully de novo, with the district court considering

evidence brought before it and making its own findings of fact and

conclusions of law. See 8 U.S.C. § 1421(c). Congress has

therefore afforded the appellants a complete and wholly adequate

review, greatly in excess of the review found acceptable in CSS.

We also note that the applicants here are not fighting to gain or

keep their permanent resident status through the one-time-only SAW

program, but merely seek to be naturalized. Nothing prevents an

applicant denied naturalization from filing another application.

3
Other t han those who were “front-desked” and suffered the same lack of avenue for
meaningful administrative or judicial review as the McNary plaintiffs.

21
Finally, while the possible delays in the system may be

frustrating, a delay of some 120 days–or much longer-- does not

render the appeal so inadequate as to allow the plaintiffs to

escape Congress's intended review process.

The appellants have a sufficient review available to them, and

therefore they (and the class they purport to represent) can only

challenge the INS interpretation of 8 U.S.C. § 1429 and

§ 1160(b)(6)(A)(i) by waiting for an application to be denied, and

then by appealing that denial through the process set forth in

section 1421(c).4

Conclusion

The appellants raise a generalized challenge to the INS's

interpretation of two statutes, as embodied in the practice of the

San Antonio INS office. Their claims are not ripe because they

have either not felt the full impact of the interpretation by being

“blocked” from naturalization or have been denied or delayed for an

uncertain reason. If the claims were ripe, they would be barred by

section 1421; if not barred by section 1421, they would not be

ripe. It seems that Congress desired that this issue only be

raised by plaintiffs who were denied naturalization and who

followed the administrative and judicial appeal process. Finally,

4
By holding the case unripe as to the entire class, we need
not address the question of whether the class could be certified
despite the failings of the class representatives. See, e.g.,
United States Parole Com'n v. Geraghty, 100 S.Ct. 1202 (1980).

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appellants may not take the McNary escape route from this dilemma

because section 1421 provides an adequate review for their

challenge. Accordingly, the district court was correct to dismiss

the case.

AFFIRMED.

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